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loss. It is manifest that it was not the intention of the testator that all gains, when realized, should belong immediately to the life tenant, and that all losses should be charged to the corpus of the fund. It is apparent that the testator intended the provisions of the will under consideration for the benefit of a tenant for life, to be enjoyed during such life, and not for the benefit of the personal representatives of a person who has been a tenant, but whose term must be ended by death, before the question of whether there is an increase or not can be determined. We think, therefore, that the judgment appealed from should be affirmed, with costs. All

concur.

CRIMMINS v. METROPOLITAN EL. RY. CO. et al.

(Supreme Court, General Term, First Department. May 17, 1895.) ELEVATED RAILROADS-INJURIES TO ABUTTERS-LESSEES.

In an action against an elevated railroad for injuries to abutting premises, the complaint alleged the execution of a lease to plaintiff by one S., before the construction of the road, with privilege of renewal; also the execution, on the day on which such lease expired, which was after the construction of the road, of a lease of the same premises for a similar term by several persons of the same name as the first lessor; but there was no allegation showing that the second lease was made in pursuance of the renewal clause of the first or growing out of it, or was connected with it in any manner. Held, that the complaint was insufficient, as the lessee in a lease executed after the construction of the road can recover only where it was the renewal of a lease executed before the construction of the road.

Appeal from special term, New York county.

Action by Thomas Crimmins against the Metropolitan Elevated Railway Company and another for an injunction and damages. Judgment was entered in favor of plaintiff, and defendants appeal. Reversed.

JJ.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER,

Julian T. Davies and Frederick Allis, for appellants.

Benjamin Yates, for respondent.

PARKER, J. This suit seems to have been prosecuted with the idea that certain facts which ought to have been alleged and proved could be assumed by the court. The complaint alleges the execution of certain leases March 1, 1869, by Adam T. Sackett to Thomas and John D. Crimmins, covering certain vacant lots on the southerly side of Sixtieth street, for a period of 21 years, with privileges of renewal for the further period of 21 years each; the erection of buildings thereon by the lessors; an assignment by John D. Crimmins to Thomas Crimmins of his interest therein, and that Sarah E., Clarence, Gertrude T., George E., Helen, T. William, and B. Lambert Sackett leased and conveyed to the plaintiff, Thomas Crim

mins, on the 15th day of April, 1890, the same premises for a period of 21 years, with the privilege of renewal for two further terms of 21 years each. It does not contain an allegation connecting the lease of 1869 with the one of 1890. The grantors in the leases are not the same, and the complaint does not allege that the title of the original lessor has become vested in the lessors of the lease of 1890. Nor does it allege that the second lease was made in pursuance of the renewal clause in the first lease, or that it grew out of it or was connected with it in any manner. This question was brought to the attention of the court by a motion to dismiss, made at the commencement of the trial. But the complaint was not amended, nor was an amendment asked for. Nor do we find any evidence connecting the leases of 1890 with those of 1869. The leases of 1890 do not recite the execution of former leases by Adam T. Sackett, and the devolution of his title upon the lessors in the lease of 1890. They do not recite any right of renewal covenanted in the former leases, or that the present leases are made in pursuance of such right, or that the new rent has been appraised or fixed under the terms of a renewal clause. No evidence was presented aside from the leases bearing upon these questions. We may conjecture that the lease of 1890 was a renewal of that of 1869, by parties who had succeeded to the title and interest of the lessor of the 1869 leases, but it is neither alleged nor proved that such is the fact. If the existence of such facts be essential to sustain a recovery for rental damage during the present term, the conjecture of the court will not suffice to accomplish the purpose. They must be proved.

The courts have been called upon to apply the general principle that the right of action belongs to the party who sustains the loss in a number of suits between lessees of real estate and elevated railroads, resulting in the establishment of certain rules: (1) When the lease is made subsequent to the construction of the elevated railroad, the exclusive right of action is in the landlord. This is because the rent is presumed to be based upon the reduced value of the property occasioned by the railroad which burdens the landlord with the loss. (2) The lessee has the right of action where the lease was made before the building of the road. In such case the lessee pays for the full use of the property, and is deprived of part of it, and therefore is the one injured. (3) Under a renewal lease made after, but in pursuance of, a lease given before the elevated railroad, and by which the parties are constrained in fixing the rent, terms, and conditions of the renewal lease, the right of action is in the lessee; and this is so because the two terms are treated as the outcome, in effect, of one continuous lease, commencing before the railroad, and therefore within the rule applicable to leases for a term of years made prior to the construction of the elevated railroad. Kernochan v. Railroad Co., 128 N. Y. 559, 29 N. E. 65; Kearney v. Railroad Co., 129 N. Y. 76, 29 N. E. 70; Witmark v. Railroad Co., 76 Hun, 302, 27 N. Y. Supp. 777.

Having these general rules in mind, we see that the lease of 1890,

standing alone, and wholly unconnected with any other lease, would deny recovery to plaintiff for rental damage for the present term, for it was made after the railroad was built. Therefore, it became necessary for the plaintiff to prove, if he could, that the lease of 1890 was not an independent lease, but one of the renewals provided for by the lease of 1869, which latter lease so constrained the action of the parties that they or one of them were not in a condition to negotiate freely with reference to the situation existing in 1890. This burden the plaintiff did not meet. Indeed, his complaint was not so framed as to entitle him to meet it without amendment. It did not allege that the lease of 1890 was a renewal of the lease of 1869, the only other lease pleaded. Although it asserted that the lessors were different, it contained no allegation that the lessors in the lease of 1890 had succeeded to the title of the lessor in the lease of 1869. Upon these questions the evidence, as we observed at the outset, is also silent. As the judgment of a court must be founded on evidence rather than surmise, the judgment rendered must fall for want of support.

The judgment should be reversed, and a new trial granted, with costs to appellants to abide the event. All concur.

(86 Hun, 519.)

BURK v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.

(Supreme Court, General Term, Third Department. May 14, 1895.)

RAILROAD COMPANIES-ACCIDENT AT PRIVATE CROSSING.

No recovery can be had for injuries received at a private crossing, where it appears that the train approached the crossing at a rate of about 15 miles an hour; that no signal or warning was given of its approach; where it does not appear that the speed was unusual for the train at that point, or that it was customary to give signals on approaching such crossing, as negligence cannot be presumed merely from the accident.

Appeal from circuit court, Saratoga county.

Action by John Burk, as administrator of Edward Burk, deceased, against the president, managers, and company of the Delaware & Hudson Canal Company for the alleged negligence of defendant whereby plaintiff's intestate was killed. From a judgment entered on the decision of the trial judge dismissing the complaint, plaintiff appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

E. T. Brackett (T. F. Hamilton, of counsel), for appellant.
Lewis E. Carr, for respondent.

MAYHAM, P. J. The plaintiff prosecuted this action as administrator to recover for the alleged negligence of the defendant in the management of its railroad train, by which the plaintiff's intestate

was killed. The case discloses that the defendant is a railroad corporation, and that in 1834 it acquired a right of way for its railroad, the line of which has not since that time been changed, over and upon which it has since owned and operated a railroad. That in 1871 the grandfather of the intestate, with whom the intestate resided, purchased a piece of land adjacent to such railroad land, and adjoining it on the east, on which he built a house, in which he and his family, since 1872, have resided. That such house stood near the lands of the railroad, and that the persons residing in such house had from the time of the erection thereof been in the habit of crossing over the defendant's railroad lands and track from the house to the highway on the opposite side of the railroad, and which ran at that point about parallel with the line of the railroad, and that that was the only or usual way of egress from and ingress to the house from such highway. At the time of the accident, and for some time previous thereto, the plaintiff's intestate had resided in the house as a member of his grandfather's family, and was, as such, accustomed to pass over and across this railroad track to and from such house. On the day of the injury which resulted in intestate's death, he started for school, and, while attempting to cross the defendant's railroad, he was struck by a train backing down on this track and killed. He was at the time about six years old, but no claim is made that he was non sui juris at the time of the injury.

When the train struck intestate, it was moving at the rate of about 15 miles an hour, and no bell was rung or whistle blown to give warning of the moving of the train. There is no proof in the case that this was an unusual rate of speed for the train at that point, or that there was any custom on the part of the defendant to give any warning or signal of the approach of the train at that point. The plaintiff in this action, to entitle him to recover, must show that the defendant has failed in the performance of some duty which it owed the intestate at the time the injury was inflicted, and that such failure caused or contributed to the injury. The plaintiff, having alleged the negligence of the defendant as the cause of the injury, assumed the burden of establishing by proof the fact or facts establishing such negligence. Heinemann v. Heard, 62 N. Y. 455; Lamb v. Transportation Co., 46 N. Y. 271-279. These requirements are not met by or established by proof of the accident alone, or by any presumption which can be drawn from it. The negligence cannot be presumed by reasoning from the effect back to some supposed cause, but a cause arising in some failure of duty on the part of the defendant must be shown, which produced the injurious effect complained of. In Cordell v. Railroad Co., 75 N. Y. 332, Earl, J., says:

"To maintain this action, the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant, and this must be shown by competent proof. It must not be left to mere speculation.”

This rule has been so long and universally accepted as the true one in this class of cases that it may be regarded as elementary, and the appellant, in the arguments in support of this appeal, seems

to concede its application to this case. But the appellant insists that he has complied with the requirements of this rule by prov ing the omission on the part of the defendant to ring a bell or blow a whistle when approaching the Burk house. It is quite clear from all of the evidence in this case that this was at most only a private way over the defendant's railroad, for the use of the occupants of the Burk house, arising from a user or implied license; but it is insisted that that is enough to bring the case within the rule laid down in Barry v. Railroad Co., 92 N. Y. 292. But that case discloses that the public were in the habit of crossing the track at the point where the injury occurred, and had been for more than 30 years, and that several hundreds crossed there daily. The only real analogy between that case and the one at bar is that there was an unrevoked license of the defendant to cross its track in either case, but in the one case it was a license to the public, which gave it the characteristics of a public crossing, while in the other case it was in the nature of a private license, to be used only in connec tion with the Burk dwelling. This distinction was one which clearly imposed a different obligation upon the defendants in these cases, and the case relied upon recognizes the difference in the obligation of a railroad company towards the public who are permitted to cross its tracks by sufferance and one who by sufferance is casually thereon. Barry v. Railroad Co., supra. In Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539, the public had notoriously and constantly been in the habit of crossing the defendant's track, and it was held that that fact imposed upon the defendants a duty to exercise reasonable care in runhing its trains so as to protect persons crossing from injury. These cases can be clearly distinguished from the one at bar in this, that the former by their use had become or were public crossings, while the case at bar is at most but a private crossing, and it is insisted by the respondent that this difference creates different obligations on the part of the defendants from those which the law imposes at a public crossing; that in case of a public crossing the law imposes upon a railroad company the exer cise of active vigilarce in the protection of the public from the dangerous agencies which it has created, while in case of a private crossing by a license the license to cross imposed no duty upon the railroad company except to do him no intentional harm or wanton injury. In Matze v. Railroad Co., 1 Hun, 417, it was held by the general term sitting in this department that:

"Even if there was evidence from which a license might be implied, and the plaintiff was not a trespasser, such license created no legal right and imposed no duty upon the defendant except the general duty, which every man owes to others, to do them no intentional wrong or injury."

And Miller, J., in another part of the same opinion, uses this language:

"I do not understand that they owe any duty, even to the owner of a pri vate right of way through which they pass, which calls upon them to exercise care in running their trains."

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