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and 140 New York State Reporter “The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be bad without the presence of other parties, the court must direct them to be brought in."
The rest of the section is confined to allowing an application by a person not a party to be made a party, and is therefore not applicable to our case. It is obvious that in an action at law against one or some of several joint tort-feasors, the controversy may be determined as between the parties before the court, i. e., the plaintiff and the defendants, and "without prejudice to the rights of others.” The judgment will completely determine the controversy between them, and will not be res adjudicata between the plaintiff and any of the joint tort-feasors who is not a defendant and may be sued later-for joint tort-feasors may be sued separately or together, and nothing but the satisfaction of a judgment against one or more of them, or a release of the cause of action, will bar an action against the others. Therefore this provision cited from section 452 could have no application to our case. Moreover its adoption in the Code was only the continuance of an equity rule, and it continued to apply to equity cases only. Chapman v. Forbes, 123 N. Y. 532, 26 N. E. 3; Rosenberg v. Salomon, 144 N. Y. 92, 38 N. E. 982. It is also mandatory in terms, for the reason that it applies to cases where a complete determination of the controversy cannot be had without the presence of others as parties; whereas section 723 is discretionary, and not restricted to equity cases where the thing has to be done of necessity. The latter is meant for common-law actions, where the controversy between the parties can be completely determined, and without prejudice to the rights of others, which is not always so in suits in equity.
In the First judicial department it is held that an additional defendant cannot be brought in on motion of the plaintiff in an action in tort (Horan v. Bruning, 116 App. Div. 482, 101 N. Y. Supp. 986), but that it can be done in an action on contract (Haskell v. Moran, 118 App. Div. 810, 103 N. Y. Supp. 667). I think it must be admitted that the language and purpose of the said section admit of no such distinction. It is not expressed, nor is there any intention of it manifested in any way. In the Third and Fourth judicial departments it is held that it cannot be done, the decisions being in tort actions. Heffern v. Hunt, 8 App. Div. 585, 40 N. Y. Supp. 914; Ten Eyck v. Keller, 99 App. Div. 106, 91 N. Y. Supp. 169. In this judicial department it was held in one tort action that it could be done, and in another that it could not. Schun v. Brooklyn Heights R. Co., 82 App. Div. 560, 81 N. Y. Supp. 859; Goldstein v. Shapiro, 85 App. Div. 83, 82 N. Y. Supp. 1038.
In this contrariety of decision it would seem that the question ought to be reconsidered, and that the beneficial and remedial provision of section 723 should not be so construed as to deprive it of its chief value and frustrate the liberal intention of its framers. It can do no harm, but can do much good to allow additional defendants to be brought in on motion of the plaintiff in common-law actions, whether on contract
or in tort. We have express statute authority for it and no reason against it, and it should be done.
The order should be affirmed.
Order affirmed, with $10 costs and disbursements. All concur, except HIRSCHBERG, P. J., not voting.
TAYLOR V. VILLAGE OF MATTEAWAN. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. BRIDGES-REPAIRS-ASSUMPTION OF DUTY.
Under the express provisions of General Village Law, Laws 1870, p. 703, c. 291, & 27, and Laws 1897, p. 414, c. 414, 88 141-143, on the incorporation of a village, jurisdiction over bridges and their approaches therein and the duty to repair remains in the town in which the village is situated, unless the village relieves the town thereof by its own act.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Bridges, 88 51,
52.) 2. STATUTES-CONSTRUCTION-REPEALED AND RE-ENACTED STATUTE.
A decision relative to the duty of villages to repair bridges, construing General Village Law, Laws 1870, p. 674, c. 291, is equally applicable to a state of facts arising under General Village Law, Laws 1897, p. 366, C. 414; the former law being substantially re-enacted in the statute of 1897.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, $ 306.) Appeal from Special Term, Dutchess County.
Action by Elizabeth Taylor against the village of Matteawan for personal injuries. From a judgment dismissing the complaint, entered on the report of a referee, plaintiff appeals. Affirmed.
Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
W. E. Hoysradt, for appellant.
RICH, J. This is an appeal from a judgment entered upon the report of a referee in an action to recover damages for a personal injury. The learned referee dismissed the complaint upon the ground that the town of Fishkill was solely liable for the result of the dangerous conditions which were found to be the cause of plaintiff's injury.
The defendant was incorporated as a village in 1886. Before that time a highway called the "Old Road," in which had been constructed a bridge crossing a small stream, was one of the highways of the town of Fishkill, in which town the village of Matteawan is situate; said bridge being within the corporate limits of said village. Before the incorporation of the village said town of Fishkill had the entire and exclusive jurisdiction over the bridge referred to and its approaches, and was charged with the duty of repairing and maintaining it. This jurisdiction and duty continued after the incorporation of the village, notwithstanding such bridge was within the limits of said village, unless some act on the part of the latter reand 140 New York State Reporter lieved the town and placed a corresponding duty and liability upon the village. General Village Law, Laws 1870, p. 703, c. 291, § 27; Washburn v. Village of Mt. Kisco, 35 Hun, 329; General Village Law, Laws 1897, p. 414, c. 414, $$ 141-143. The latter act provides for the care and maintenance of bridges and their approaches in the following language:
"Sec. 142. If at the time this chapter takes effect, the board of trustees of a village has the supervision and control of a bridge therein, it shall continue to exercise such control under this chapter. In any other case, every public bridge within a village shall be under the control of the commissioners of highways of the town in which the bridge is wholly or partly situated, or such other officer as may be designated by special law, and the expense of constructing and repairing such bridge and the approaches thereto is a town charge, unless the village assumes the whole or part of such expense.
"Sec. 143. A village may assume the control, care and maintenance of a bridge or bridges wholly within its boundaries, upon the adoption of a proposition therefor, at a village election; or a proposition may be adopted authorizing the board of trustees to enter into an agreement with the commissioners of highways of a town, in which any part of such village is situated, to construct or repair a bridge in any part of the village included in such town, at the joint expense of the village and town, which agreement shall fix the portion to be paid by each."
It appears that the village never assumed any duties with reference to the bridge in question, never repaired or assumed to exercise jurisdiction over it, and it therefore remained a town bridge under the exclusive jurisdiction and control of the town which was charged by the statutes with the duty of its repair and maintenance. The referee has found that the place where plaintiff fell, and the dangerous and defective conditions there existing, causing the injury, was on the bridge or its approach. The sole question presented, therefore, is whether for this dangerous and defective condition the respondent is liable. A careful consideration of this question satisfies me that the referee correctly disposed of the case and that the judgment must be affirmed.
It was held in Washburn v. Village of Mt. Kisco, supra, that a village incorporated under the provisions of chapter 291, p. 674, of the Laws of 1870, was not bound to repair bridges situate within its corporate limits, unless it elected so to do, and that in the absence of such election the town continued to be bound to repair such bridges, and it, and not the village, was liable to any person injured by its neglect to perform the statutory duty of repairing and keeping them in safe condition, and a judgment recovered in that action against the village within whose limits the bridge was situate was reversed. It is contended by the appellant that this decision is without force, as the present village law, which took effect May 13, 1897, repealed chapter 291, p. 674, of the Laws of 1870; but this contention is without merit, for the reason that the provisions of that statute are substantially re-enacted in the statute of 1897, which makes the decision applicable with equal force to the case at bar.
The case at bar presents two municipalities, the town and village the latter having exclusive jurisdiction and control of its highways and sidewalks, charged with the duty of their maintenance and re
pair, and liable for a neglect of such duty, and the town having exclusive jurisdiction and control of the bridge within the village limits and its approaches, charged with their maintenance and repair and liable for injuries sustained as the result of a violation or neglect of this duty. The respondent was not bound to repair or maintain the bridge in question. It never assumed that duty, never made any repairs to, or interfered in any manner with, the bridge or its approaches, and the statutory duty and liability of the town remained and was operative and in force at all times prior to the accident. For its neglect to perform the duty of keeping and maintaining this bridge in proper repair the defendant is not responsible.
The judgment must be affirmed, with costs. All concur.
DAY v. DAY.
(Supreme Court, Appellate Division, Second Department. November 22, 1907.) DIVORCE-FRAMING ISSUES FOR JURY.
Under the direct provisions of Code Civ. Proc. $ 1757, subd. 1, in an action for divorce, defendant's motion for an order framing issues to be tried by a jury was improperly denied.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, 88 484486.)
Appeal from Special Term.
Action for divorce by Harry L. Day against Nancy J. Day. From an order denying defendant's motion for an order framing issues to be tried by a jury, defendant appeals. Reversed, and motion granted.
Argued before WOODWARD, JENKS, HOOKER, RICH, and MILLER, JJ.
Samuel P. Goldman, for appellant.
RICH, J. This is an appeal from an order denying defendant's motion for an order framing issues to be tried by a jury in an action
for a divorce on the ground of adultery. The defendant has answered, denying the allegation of adultery, and was entitled to the order. Section 757, subd. 1, Code Civ. Proc.
The order of the Special Term must therefore be reversed, and the motion granted.
Order reversed, with $10 costs and disbursements, and motion granted, witb $10 costs. All concur.
and 140 New York State Reporter
In re RIPLEY'S ESTATE. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. TAXATION-TRANSFER Tax-PROPERTY LIABLE.
Tax Law, $ 220, Laws 1896, p. 868, c. 908, as amended by Laws 1897, p. 150, c. 284, § 2, subd. 5, provides that, whenever any person shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment, when made, shall be deemed a transfer taxable in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will. A testator willed his property in trust for the benefit of his children and a grandchild, the income to be paid them while living, and directed that on the death of either, leaving lawful issue surviving, the share of the one so dying, "unless otherwise disposed of" by will, should be held for the use and benefit of such lawful issue. The grandson died; his will providing that his share of the property should go to his wife and his four children, in equal parts. Held, that the grandson's children took directly under their great-grandfather's will, and not by virtue of the exercise of the power of appointment given their father, he having "otherwise disposed of" only one-fifth of the property, which he gave his widow, and that their shares were not subject to a transfer tax created after their great-grandfather's death.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $f 1700,
1701.) 2. SAME-VESTED PROPERTY RIGHTS.
When beneficiaries under a will acquired a vested property right, it could not be cut down by the imposition of a transfer tax subsequently authorized by Laws 1897, p. 150, c. 284.
[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, $ 1676.) 3. WILLS-POWER OF APPOINTMENT-REFUSAL TO ACCEPT.
Where testator devised certain property to his grandson, his share, "unless otherwise disposed of" by the will of such grandson, to go to his children, and the grandson by will left one-fifth of the property to his wife and one-fifth to each of his children, the children had the right to claim under and avail themselves of the property in question under such appointment in their father's will, and also a right to repudiate such pro vision and claim directly under that of their great-grandfather.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 49, Wills, $f 1495, 1496.) Appeal from Surrogate's Court, Nassau County.
In the matter of the appraisal of the estate of Sidney Dillon Ripley, deceased, under the acts relating to taxable transfers. From an order of the Surrogate's Court, affirming an order approving the report of appraisal on the property passing under the will of deceased, the State Comptroller appeals. Affirmed.
Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.
Edmond C. Alger, for appellant.
WOODWARD, J. This is an appeal by the Comptroller of the state of New York from an order of the surrogate of Nassau county, affirming on appeal to him a prior order which approved the report of appraisal upon the property passing under the will of Sidney Dillon