SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. a first lien on the proceeds of the sale; except that such lien should not be effective to reduce her co-tenants' share in the proceeds to a smaller sum than the ascertained value of their interest in the land exclusive of the improvements. In other words, each of the defendant's co-tenants must receive the full value of his land as though the defendant had never occupied it at all, and he must also receive the fair rental value thereof, reckoned for the period of her occupancy. If, after these payments have been made, the proceeds of the sale exceed the value of the defendant's one-sixth of the premises, the excess will undoubtedly be due to the existence of the improvements, and it is only equitable, in view of the peculiar facts attending the development of the property held under this defective title, that such excess should go to the party by whom the improvements were made. This disposition of the equities of the case restores to the other tenants all their rights, and leaves them unharmed by anything which the defendant has done, while at the same time it prevents them from making any profit out of her innocent mistake. The interlocutory judgment should be modified by striking therefrom the adjudication that the defendant Mary A. Nichols is not entitled to compensation or allowance against any of the parties herein for any amount expended by her for improvements or other expenses upon the premises, and by inserting in lieu thereof a statement of the rights of the parties, and a direction to proceed in reference to such claim for compensation in accordance with the views expressed in this opinion. All concurred. Judgment modified in accordance with the opinion of BARTLETT, J. Order to be settled before BARTLETT, J., on notice. App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. IRA M. CLAPP, Plaintiff, v. SAMUEL S. GUY, JR., Defendant. Submission of a controversy under section 1279, Code of Civil Procedure — it must justify a judgment against one of the parties. The submission of a controversy under section 1279 of the Code of Civil Procedure must relate to "a question in difference which might be the subject of an action;" that section does not authorize a submission for the purpose of obtaining the opinion of the Appellate Division upon a mooted question of law merely because the answer thereto might be a guide to the termination of a lawsuit between the parties interested to be instituted upon other and further facts than those stated. The statement of facts must be such that if established by proof it would entitle the person named as plaintiff to some sort of a judgment against his adversary, provided the court agreed with the plaintiff as to the law applicable to the facts. SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. F. II. Van Vechten, for the plaintiff. Almet F. Jenks, for the defendant. WILLARD BARTLETT, J.: In 1896 the plaintiff, who then resided and still resides in the town of Flushing, was elected a coroner in and for the county of Queens for a term of three years from January 1, 1897. He duly qualified and entered upon the performance of his duties. By the operation of the Greater New York charter (Laws of 1897, chap. 378) the town of Flushing has become a part of the city of New York, and is now included in the division of the city known as the borough of Queens. In 1897 the defendant was elected a coroner of this new borough for a term of four years from January 1, 1898. He has also duly qualified and entered upon the performance of his duties. Since the beginning of the present year the plaintiff "has claimed the right to exercise the functions and duties appertaining to the office of a coroner of the county of Queens, within that part of the said county included within the said borough of Queens; and the defendant has claimed to exercise and has exercised jurisdiction as borough coroner within the said borough of 31 535 32 39 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. Queens to the exclusion of the plaintiff." Furthermore, the officials of the health department of the city of New York have refused to recognize the official acts of the plaintiff as a coroner within the borough of Queens. The foregoing is a summary of the facts stated by the parties to this controversy in the case which they have submitted to this court for determination. In that case they ask us to answer three questions, as follows: "First. Did the charter of the city of New York operate to terminate the office of the plaintiff as a coroner of Queens county? "Second. If said office still continues, does the charter of the city of New York divest coroners of Queens county of jurisdiction within that part of said Queens county included within the city of New York? Third. Have the borough coroners elected in the borough of Queens pursuant to section 1570 of the Greater New York charter, exclusive jurisdiction of all coroners' cases within the borough of Queens?" In my opinion these questions are not presented under such circumstances as to require or permit any adjudication upon them in this proceeding. The submission of a controversy under the Code of Civil Procedure must relate to "a question in difference which might be the subject of an action." (Code Civ. Proc. § 1279.) This does not mean that the opinion of the Appellate Division can be obtained in a proceeding of this character upon a mooted question of law, merely because the answer thereto would or might be a guide to the determination of a lawsuit between the parties interested, to be instituted upon other and further facts than those stated. The Code contemplates the existence and presentation of a state of facts upon which the person named as plaintiff in the submission could bring an action at law or in equity against the person named therein as defendant, and which of themselves, if established by proof in such an action, would entitle the person named as plaintiff to some sort of a judgment against his adversary, if the court agreed with the plaintiff as to the law applicable to the facts. Nothing of the sort is set forth in the present submission. It appears that the plaintiff was elected a county coroner in 1896, and that the defendant was elected a borough coroner in 1897; that during the present App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. year the plaintiff has claimed the right to act as coroner for the whole county, while the defendant has claimed to act as coroner for the borough, to the exclusion of the plaintiff from that part of the county. Claims of this sort, however, amount to nothing unless they are accompanied by acts which constitute some sort of interference with the person against whom the claim is made. They afford no basis for legal or equitable relief to the latter party. The plaintiff does not appear in any wise to be harmed by the claim which he alleges the defendant has made to exercise exclusive jurisdiction as coroner in the borough of Queens, and in the absence of some substantial injury to him, arising out of the pretensions of the defendant, he can well afford to ignore the claims of the latter. all events this court must ignore them. At The statement of facts contained in the case is not sufficient to enable the court to render judgment in the proceeding, and, therefore, the submission should be dismissed. (Code Civ. Proc. § 1281.) All concurred. CULLEN, J.: I concur, and am also of opinion that, after the decision in People v. Blair (21 App. Div. 213), an answer to these moot questions is unnecessary. Submission dismissed, without costs. CHARLES M. DAWSON, Respondent, v. THE TRUSTEES OF THE NEW YORK AND BROOKLYN BRIDGE, Appellant. Passenger injured between the cars of a train-liability of the company for allowing overcrowding on the platform — charge as to starting a train. When a common carrier permits a number of persons desiring to board a train to crowd upon a car platform so rapidly and with such force that a passenger is unable to control his own movements and is thrust hither and thither against his will, until one of his legs sinks into a space between the cars where he is injured, a question is presented for the jury whether by the exercise of a reasonable degree of foresight on the part of the common carrier it could not have anticipated the danger to passengers likely to arise from such overcrowdAPP. DIV.-VOL. XXXI. 68 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. ing and have exercised such care as would have prevented the injury occasioned to the passenger thereby. Where the passenger called to the conductor not to start the train, but it does not appear that he informed the conductor what was wrong or notified him that he was in a perilous situation, or that the conductor knew of his danger, it is erroneous for the court, in response to a request to charge "that there is no evidence in the case tending to charge the defendant with negligence in starting the train while the plaintiff was in a position of danger and before he could extricate himself from peril," to charge "I will leave that for the jury to say." APPEAL by the defendant, The Trustees of the New York and Brooklyn Bridge, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of March, 1898, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 9th day of February, 1898, denying the defendant's motion for a new trial made upon the minutes. James C. Bergen, for the appellants. Samuel S. Whitehouse, for the respondent. WILLARD BARTLETT, J.: There is sufficient evidence in the record before us to charge the defendants with negligence in permitting the platform of the car upon which the plaintiff took passage to be so overcrowded that the action of the crowd forced him into a position of danger from which he could not extricate himself quickly enough to escape injury. "The exposure of a passenger to a danger, which the exercise of reasonable foresight would have anticipated and due care avoided, is negligence on a part of a carrier." (Lehr v. Steinway & Hunter's Point R. R. Co., 118 N. Y. 556.) In the case cited, the defendant railroad company undertook to carry more passengers than the inside of the car would hold, so that the car platforms, and even the steps, were crowded. It was not so here, for, after the train started and the plaintiff had got his foot out from between the bumpers, he was able to find a seat in the car. Nevertheless, it clearly appears that the mass of persons desiring to board the train was allowed to crowd upon the car platform so rapidly and with such force that the plain |