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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

not sufficient evidence to go to the jury on either branch of the case

the defendant's negligence or the plaintiff's freedom from contributory negligence. As to the first proposition I am unable to agree with him. There was proof enough to justify an inference of negligence on the part of the defendant's agents and serve ants in charge of the train in failing to give any signal of its approach to the Yonkers station and the street crossing at which the plaintiff's intestate was killed. It is true the testimony on this subject was by no means conclusive, but still if believed by the jury it would suffice to sustain a finding that no signal whatever was given, either by bell or whistle. Two witnesses testified on this subject, neither of whom appears to have borne any relation whatever to the parties. One of them swore that he was standing in front of an office in a place where he could have heard the whistle blow or the bell ring on the train as it approached, and that he heard neither. “If the whistle blew or if the bell rang I certainly could have heard it,” he said. The other witness testified: “I heard the train go by, but I didn't know whether it was a freight train or a coach until I walked out afterwards. I did not hear any bell rung or whistle blown from that train.” This witness was only three or four hundred feet from the crossing on which the accident occurred. The learned trial judge in his charge, in commenting upon the testimony of these witnesses, told the jury that the law did not attach much importance to witnesses who merely say that they did not hear a thing. No doubt this is true. He probably had in mind the doctrine laid down in Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133), which is so often cited in support of the proposition therein expressly laid down by Judge ALLEN that, " as against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to the jury.” But in the present case there was no testimony of any witness, credible or otherwise, to the effect that the bell was rung or the whistle sounded on the engine of the train which killed the plaintiff's husband, though it is apparent that if either of those signals had been given the fact must have been known, either to the engineer or fireman or both.

App. Div.) SECOND DEPARTMENT, JULY TERM, 1903.

I conclude, therefore, that the verdict could not have been set aside on the ground that there was not enough evidence to authorize the submission of the case to the jury, so far as the alleged negligence of the defendant was concerned. A further examination of the record, however, in regard to the question of contributory negligence satisfies me that the proof was insufficient to show that the plaintiff's intestate was free from carelessness. The accident occurred just north of the station at Yonkers where Dock street crosses the defendant's railroad. Mr. Westervelt came down Dock street from the north, going toward the river, and thus approached the tracks from the east. The railroad company maintained gates on each side of its line at this crossing, and these gates were down at the time, so that he had to bend down to pass under them ; but no negligence can be imputed to him from this circumstance, as the evidence showed that the gates were ordinarily kept down on Sundays. There are four tracks at this point. The witness who first saw Westervelt was a man named Strainline, who testified: "I first saw Westervelt when he first got over to that first gate. I saw him when he first got under the east side gate with a basket on his arm, in a stooping position. That is the last I saw of him until I saw him laying there after the train struck him.” The deceased was also seen before the accident by McCann, an employee of the defendant, who was the night flagman at the foot of Dock street and had just gone off duty in the morning, and the flagman who succeeded him, a man named Larkin, who had just taken McCann's place. McCann was standing with his back to the approaching train when he said he heard Larkin yell. At this McCann turned around" to see what he was yelling about and saw a man coming across the crossing with a market basket on his arm walking directly toward the train. He was walking directly across the crossing to the west side of the railroad, the river side.” This witness further testified as follows: “When Larkin yelled ont he said stand back, stay back. He had his hand up in the air ; he was speaking to Westervelt, the man who was afterwards struck by the train.” Larkin's testimony as to the conduct of the deceased was as follows: “I stood at the south side of the west gate about two feet from the gate post when I first saw this man that was killed. He was then on the second track from the east side and I hollered at

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. him to keep back. I saw him look at me and I motioned to him to keep back. He paid no attention to me, but kept on coming across and got across the west rail of the south-bound track when he turned around to see what was coming when he was struck. I do not know whether it was the cross-beam of the engine or the side of the car that struck him, twisted him around and knocked him down and killed him."

It thus appears that the deceased was warned by the flagman on duty not to attempt to cross further when he was upon the second track, but that he continued on his way notwithstanding the warning and crossed the third track and even got over the fourth track upon which the approaching train was coming before he was struck. The testimony of Larkin indicates that he may have supposed that he was sufficiently far across to avoid contact with the train when he turned around and was hit. I do not see how we can very well avoid the conclusion that he was guilty of contributory negligence under the circumstances disclosed by this testimony. The proof shows that from the time when he first got within the gates on the east side of the railroad he could have seen a train approaching from the north when it was about a quarter of a mile distant if he had looked in that direction. It is true there is evidence that some cars were standing upon the tracks in a position where they would have hidden an approaching train from view at some points in his progress westerly across the railroad, but the deceased was chargeable with knowledge of the fact that the presence of these cars would thus obstruct his vision, and his conduct must be judged accordingly. The circumstances are quite different from those presented in Noble v. N. Y'. C. & II. R. R. R. Co. (20 App. Div. 40; affd., 161 N. Y. 620), where the approach of the train was in fact concealed by intervening cars, but the presence of those cars was also concealed from the deceased by a heavy fog.

I think the proof on the subject of contributory negligence justified the disposition of the case which was made by the court below and that the judgment and order should, therefore, be affirmed.

Present — GOODRICH, P. J., Bartlett, Jenks and HOOKER, JJ. Judgment and order unanimously affirmed, with costs.

App. Div.)

SECOND DEPARTMENT, JULY TERM, 1903.

Israel Pomeranz, Respondent, v. Louis Marcus, Appellant.

Settlement of a case without the knowledge of the defendant's attorney - application

by such attorney to put the case on the calendar with a view to his recovering costs - appeal in the defendant's name from its refusal proper procedure for its to riesc.

After an action was at issue, the defendant, without the intervention of his

attorney, effected a settlement with the plaintiff and the parties exchanged general releases and consents to a discontinuance. When the case was called for trial, the court, against the objection of the defendant's attorney, who contended that the settlement was made collusively for the purpose of defrauding him of his taxable costs, marked the case settled. The defendant's attorney subsequently made a motion to restore the case to the calendar for trial for the purpose of determining his right to the taxable costs. The motion was denied and an appeal was taken from the order. Such appeal purported

to be taken by the defendant himself and not by the defendant's attorney. Held, that the defendant was not aggrieved and had no status which enabled

him to maintain the appeal; That, while it might well be that the appeal, although in the name of the

defendant, was solely the act of the defendant's attorney, the court was bound

by the record in regard to the identity of the appellant. Semble, that had the attorney appealed from the order, it would have been neces

sary for him to serve the notice of appeal upon the defendant and that the latter would in that case be a respondent upon the appeal.

APPEAL by the defendant, Louis Marcus, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 16th day of April, 1903, denying the defendant's motion to restore this case to the calendar for the purpose of determining his right to taxable costs in the action.

Gustavus A. Rogers, for the appellant.

Rudolph Marks and Moses Weill, for the respondent. Willard BARTLETT, J.:

After this action was at issue the defendant, without the intervention of his attorney, made a settlement with the plaintiff and exchanged general releases and consents to a discontinuance. Subsequent to such settlement, when the case was finally called for trial,

APP. Div.-VOL. LXXXVI. 21

SECOND DEPARTMENT, JULY TERM, 1903.

Vol. 86.

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the trial court was informed on behalf of the plaintiff that it had been settled, and, although the defendant's attorney answered ready, the court marked the case settled, against his objection.

The defendant's attorney, alleging that the settlement was made without his knowledge or consent and collusively for the purpose of defrauding him of his costs, thereafter moved the Trial Term for an order to restore the case to the calendar for trial “ for the purpose of protecting the rights of the defendant's attorney herein, and for the purpose of determining his right to the taxable costs of this action to date.” The motion was denied, and the present appeal was taken.

It is to be observed that the appeal purports to be by the defendant himself, and not by the attorney for the defendant. If the attorney himself was the appellant, the case would seem to fall within the doctrine of National Exhibition Company v. Crane (167 N. Y. 505). In the case cited, after issue joined in an action at law, the defendant, after the cause was on the calendar and noticed for trial, without the knowledge or consent of his attorney, and without paying or providing for the payment of his costs and for the purpose of depriving him of his costs, stipulated with the plaintiff that the action might be discontinued without costs. The Court of Appeals held that under such circumstances the Supreme Court was vested with discretionary power to impose the payment of costs to the defendant's attorney by the plaintiff, as a condition of the granting of an order discontinuing the action on the application of the plaintiff; and an order of the Appellate Division in the first department, reversing a Special Term order which had denied such relief, was affirmed. In the case at bar the action of the trial judge in marking the case settled, at the instance of the plaintiff and over the remonstrance of the defendant's attorney, was in substance and effect a discontinuance of the action, and under the doctrine of the Crane case it must be regarded as having deprived the attorney of the protection to which he was entitled against the collusive settlement by the parties themselves.

In the Crane case, however, the attorney himself was the appellant before the Appellate Division. This appears from the report of the decision in that court. (54 App. Div. 175.) IIere, as we have already pointed out, the appeal is not taken by the attorney, but purports to have been taken by the defendant himself. But

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