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and 140 New York State Reporter “The act of using; employment, as of means or material for a purpose : application to an end, particularly a good or useful end; as, the use of steam in navigation."

The term "use” is also defined by Webster as follows:

"The act of employing anything or applying it to one's service; application, employment, conversion to some purpose, as the use of a pen in writing.”

It must necessarily follow, therefore, that to prove the use of a thing the use must be shown by an act of some kind, and the mere possession of a siphon or bottle does not prove the use of the same.

The Legislature evidently sought to make a distinction between the possession of siphons and their use; otherwise, it would not have employed the words in contradistinction to each other. The term "use" was advisedly adopted so as not to expose any person who was not a junk dealer, or a dealer in second-hand articles, to being subjected to a prosecution merely because he was in possession of a siphon. In order to hold such person answerable, he must have violated some one of the provisions set forth in this statute.

Statutes passed in the exercise of the police power of the state, restricting and regulating property rights or the pursuits of lawful occupations and callings, should be construed strictly. Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377,2 N. E. 29, 52 Am. Rep. 34; Wynehamer v. People, 13 N. Y. 378

The motion made by the learned counsel for the defendant to dismiss the charge for failure of proof should have been granted.

The judgment is therefore reversed.
Judgment reversed.

(121 App. Div. 573.)

RANDAZZO V. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. CARRIERS-INJURIES TO PASSENGERS-PROXIMATE CAUSE-EVIDENCE.

A finding that the starting of a car while a passenger was alighting therefrom was the proximate cause of an injury to him held warranted

under the evidence. 2. APPEAL-HARMLESS ERBOR-EXCLUSION OF EVIDENCE.

Where, in an action against a street railway company for injuries to a passenger, there was no evidence that the company required reports of accidents, or that it was customary for employés to make reports, and the company proved that there was no paper connected, with the accident on file, except a synopsis of the complaint made after service, the exclusion of evidence that no report of the accident was on the files of the company was not prejudicial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $8 4194-4199.] Appeal from Kings County Court.

Action by Rossario Randazzo against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

1. R. Oeland, for appellant. Donald F. Ayres, for respondent.

RICH, J. This action is brought to recover damages for a personal injury. The complaint alleges that the plaintiff was a passenger on one of defendant's cars, and that upon attempting to alight therefrom at a station, upon the platform of which there was a slippery substance, he stepped thereon, and before he had fully alighted the car started suddenly, throwing him down and causing the injury complained of. The trial court charged the jury that, if they found that the slippery substance upon the platform was the sole producing cause of the injury, the plaintiff could not recover; but if they found that the car started before the plaintiff could get his feet off the platform of the car, and he was thereby thrown down and injured, they might find a verdict for the plaintiff, if they also found that he was free from contributory negligence.

The appellant contends that there was no evidence in the case warranting the submission of this question to the jury, or from which they could find that the starting of the car while plaintiff was alighting therefrom caused the accident, and that the trial court erred in not granting its motion to dismiss the complaint. This contention is upon the assumption that the plaintiff's evidence as to how the accident occurred admits of no other conclusion than that his fall was caused solely by the slippery substance upon the platform. I do not so read it. The plaintiff speaks the English language imperfectly. While it is true that his narration of what occurred at the time he fell is not as clear as to the producing cause of his fall as one more conversant with our language would have made it, I think it was sufficient to justify

106 N.Y.S.-13

and 140 New York State Reporter the court in denying the motion made for a nonsuit, when the plaintiff rested his case. He says:

"When the train got down to Ninth street, the conductor hollers 'Ninth street! and I was sitting down.

As soon as the train stopped he (the conductor] opened the gates, and when I was stepping down he said *Step lively!' and when I got down, and I had my one foot on the station and one on the car, the conductor closed the gate, or whatever you call it, and pushed me, and the train was going, and I make me a slip, and I fall down, and my foot got down between the station and the car."

On cross-examination he said:

“I was getting off this car, and it was standing still. While getting off the car, the conductor closed the gate.

He pushed me, and I fell down." While plaintiff testified that he would not have fallen if the slippery substance had not been on the platform, this evidence did not preclude the jury from finding that the starting of the car was the proximate cause of the accident, and I think their verdict is sufficiently sustained by the evidence.

The appellant urges that the trial court erred in excluding evidence that there was no report of this accident on the files of the company. There is no evidence in the case that the defendant required, or that it was customary for, reports of accidents to be made by its employés, in the absence of which the evidence offered could have no weight. In addition to this the defendant proved by its witness Bradley, who was a clerk in its claim department, that there was no paper connected with the accident on file except a synopsis of the complaint, which he made after its service.

The defendant was not prejudiced by the ruling complained of, and the judgment and order of the County Court of Kings county must be affirmed, with costs. All concur.

(121 App. Div. 531.)

CONAWAY V. MARTIN.

(Supreme Court, Appellate Division, Second Department. October 18, 1907.) NEGLIGENCE-CONDITION OF BUILDING AND OTHER STRUCTURES-ELEVATORSACTIONS-QUESTIONS FOR JURY.

In an action for the death of plaintiff's intestate, caused by striking his head on the top of the archway entrance to an elevator as the elevator went up, held, that under the evidence it was a question for the jury whether it was negligence not to have a door or gate in the elevator car itself, or on the inside of the archway entrance, to prevent persons in the car from striking against the top of the archway if they leaned over a

little as the car went up. Appeal from Trial Term, Kings County.

Action by Mary A. Conaway, as administratrix of Charles E. Conaway, deceased, against William R. H. Martin, to recover for the death of plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for damages for negligence causing death.

The decedent was killed in the servants' elevator of a large apartment house, seven stories high, owned by the defendant. He entered the elevator

in the basement. The elevator shaft is of solid masonry from bottom to top. In the basement the entrance to the elevator is cut through the side of the shaft, which is 2 feet 6 inches thick. Such entrance is 3 feet 8 inches wide. At the outside of it, viz., the outside line of the wall, two doors open outward. The opening or arch is 8 feet 6 inches high. On the inside there was no door or gate to enclose those in the elevator from this entrance through the wall. As the elevator went up the top of the head of the deceased struck the arch, the top of the said entrance through the wall, and he was killed. It was quite dark in the elevator. The entrance doors being closed, the only light that came into the elevator was through a pane of glass 9 inches by 11 inches in the middle of each door. The elevator car was 4 feet 2 inches deep and 7 feet 3 inches wide.

Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.

L. Sidney Carrere, for appellant.
John C. Robinson, for respondent.

GAYNOR, J. The motion to dismiss at the close was properly denied. Especially owing to the lack of light, it was a question of fact whether it was not negligent not to have a door or gate in the elevator car itself, or else on the inside of the opening or arch through the wall which was the entrance to the elevator car, to prevent persons in the car from inadvertently getting so close to the entrance side of the car as to strike against the top of the said opening or arch, if they happened to lean over a little as the car was going up.

The judgment should be affirmed.
Judgment and order unanimously affirmed, witb costs. All concur.

(121 App. Div. 502.)

BUSSING V. CITY OF MT. VERNON. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) 1. MUNICIPAL CORPORATIONS-IMPROVEMENTS-SUFFICIENCY OF COUNCIL'S VOTE.

Though a city's charter requires "a unanimous vote" of all the members of the council to authorize a street improvement, an improvement proceeding and an assessment were not void because there was a unanimous vote

of only eight members, all that were present; the whole number being ten. 2. COURTS-PREVIOUS DECISION AS CONTROLLING.

The Appellate Division of the Supreme Court having decided that a street improvement assessment was not void because the improvement was authorized by a unanimous vote of only eight members of the council, all that were present, the whole number being ten, a referee, in a subsequent case relating to the same assessment, should have followed the decision.

Appeal from Judgment on Report of Referee.

Action by John Bussing, Jr., against the city of Mt. Vernon. From a judgment entered on a referee's report, defendant appeals. Reversed, and complaint dismissed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MIL LER, JJ.

David Swits, for appellant.
Milo J. White, for respondent.

and 140 New York State Reporter PER CURIAM. The judgment vacates an assessment on the plaintiff's property for the opening of a street in the city of Mt. Vernon, the defendant, on the ground that, whereas, the charter of the city required "a unanimous vote” of all of the members of the common council to allow the improvement, there was a unanimous vote of only eight of such members, all that were present; the whole number being ten. That this did not make the proceeding and the assessment void was decided and affirmed in this court. Matter of the Application of the City of Mt. Vernon, etc., 34 Misc. Rep. 225, 68 N. Y. Supp. 823; 64 App. Div. 619, 72 N. Y. Supp. 1097.

Nevertheless another justice thereafter, in case of one of the landowners assessed, decided to the contrary, and no appeal was taken from this judgment by the city. This was all irregular. Our decision should have been followed. The learned referee in the present case felt constrained to follow this later decision; but he was under no such constraint. He should have followed our decision. We also deem it strange that, when the appeal was before us in the matter of the writ of mandamus to compel the cancellation of the assessment in accordance with this later judgment (People ex rel. Jardine v. Brush, 115 App. Div. 688, 101 N. Y. Supp. 312), we were not informed that the proceeding and assessments were the same that we had formerly upheld in the said case first tried. The square decision there given in favor of the city should not be permitted to be frittered away.

The judgment should be reversed, with costs, and the complaint dismissed.

(56 Misc. Rep. 138.)

KEHOE V. INTERNATIONAL RY. CO.

(Supreme Court, Trial Term, Niagara County. October 12, 1907.) EVIDENCE-PIIYSICIAN'S OPINION-CAUSE OF PERSONAL INJURY.

In estimating damages for personal injury, apprehended future consequences which are merely possible and speculative may not be considered, but physician may testify that in his judgment plaintiff's alleged condition as to nervousness, headaches, and pain after the accident and before and at the trial might or could have resulted from the accident; plaintiff bav

ing previously testified that such conditions so resulted. Action by James B. Kehoe against the International Railway Company. Motion by defendant for new trial on judge's minutes after $1,500 verdict for plaintiff. Denied.

Morris Cohn, for the motion.
Alfred W. Gray, opposed.

POUND, J. Plaintiff, while riding as a passenger on defendant's trolley car between Buffalo and Lockport, was struck and wounded the head by a trolley wheel which flew off the front car trolley, and came through a transom window or ventilator into the smoking compartment, where plaintiff was sitting, in the forward part of a second car attached to and following the first car.

Defendant's counsel moves for a new trial on the ground that the court was in error in admitting, over his objection, the evidence of

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