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[Vol. 86. in favor of the defendant, entered in the office of the clerk of the county of Orange on the 22d day of January, 1902, upon an order entered in said clerk's office on the 13th day of January, 1902, dismissing the complaint and setting aside a verdict in favor of the plaintiff, and also from an order entered in said clerk's office on the 14th day of February, 1902, denying the plaintiff's motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal the said order upon which judgment was entered, and also an order entered on the 17th day of January, 1902, denying the plaintiff's motion to vacate or modify such order directing the said judgment.

Robert H. Barnett, for the appellant.

Henry Bacon [Joseph Merritt with him on the brief], for the respondent.

HIRSCHBERG, J.:

The plaintiff's intestate was killed at the village of Goshen, in Orange county, at about half-past nine o'clock in the evening of May 7, 1901, while crossing the defendant's railroad tracks at Main street. There was one eye-witness of the occurrence. According to his story, when the deceased stepped from the curbstone and walked toward the tracks there was a train coming from the west on the east-bound track-the track farthest from the deceasedmaking considerable noise. When the deceased was within ten or fifteen feet of the first or west-bound track he looked easterly, and, apparently seeing nothing, concentrated his attention upon the train coming from the west, until just as he reached the first track he turned again to the east and was immediately struck and killed by a fast freight train coming from that direction. The witness testified that he did not hear any whistle blown or bell rung by the train which struck the deceased. On the day following the accident, however, that is, May 8, 1901, this witness signed a statement containing the following narration of the occurrence: "I saw this man coming from the direction of the post office. There was a train coming from the west on the east-bound track. He was hurrying to get across ahead of that train, and was watching it. Just as the train coming east was at the first crosswalk east the station, and as the man stepped

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on the west-bound track, the west-bound train struck him. Just before it struck him, he turned his head and saw it and tried to pull back, but he was too late. The bell on the west-bound train was ringing. I did not hear any whistle. The east-bound train was making a great deal of noise. He did not stop on his way across the crossing, and was walking fast to get across ahead of east-bound train. He did not look the other way toward the east at all, and did not notice the train that struck him until it was right on top of him.”

In reference to the conflict between his evidence at the trial and this statement, he was asked and answered as follows: "Q. You stated at that time that this man did not look the other way toward the east at all. You state now that he did look toward the east when he stepped off the sidewalk; is that right? A. Yes, sir. Q. Is your memory better about it now than it was the day after the accident? A. No, not any better, but he was not asking me under oath then."

He

The witness was examined under oath before the coroner. then testified as follows: "I saw this man approach the said crossing from the north side and from the direction of the post office to the crosswalk leading to the west side of the crossing in front of the Occidental Hotel. I noticed an east-bound train approaching at the same moment and I saw the man apparently have his attention fixed to the said approaching east-bound train. Then I saw him walk directly in front of the west-bound fast train and struck." The plaintiff's case rests altogether upon the evidence of this wit

ness.

There was a great deal of evidence, much of it by employees of the defendant, but some from others, that the engine whistle was sounded as the train in question approached the crossing, and that the bell was rung then and until the crossing was passed. It was also proven that the west-bound track was in sight of the deceased looking eastwardly for several hundred feet as he approached the place where he left the sidewalk, and that from the sidewalk to the track, although the line of vision to the east decreases, the track is visible to a considerable distance, estimated at an average between 485 and 525 feet.

The learned trial justice at the close of the evidence denied a motion made by the defendant for a nonsuit, and submitted the case

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[Vol. 86. to the jury with two specific questions. The jury returned a general verdict in favor of the plaintiff and answered the questions submitted to the effect that the whistle was not blown, but the bell was rung upon the engine, as it approached the crossing.

If the case should have been submitted to the jury, the court was in error in dismissing the complaint, but should have granted a new trial upon setting aside the verdict. (McDonald v. Metropolitan Street R. Co., 167 N. Y. 66.) The court was certainly justified in setting aside the verdict because in any view it must be conceded that the preponderance of evidence is in the defendant's favor upon the question of its negligence. If there is no evidence in plaintiff's favor upon that question, however, I think the court was at liberty to dismiss the complaint, notwithstanding the previous submission of the case to the jury. What should have been done at the close of the evidence could be done at any time while the case remained within the jurisdiction and control of the trial court.

On the question of the defendant's negligence there was not sufficient evidence to carry the case to the jury. It is limited to the statement of her witness that he did not hear the whistle or the bell, the force of which (assuming it to have any) is weakened by his statement made the following day to the effect that he did hear the bell, and by his suggestion that the truth is only essential when under oath. While the fact that a whistle is not sounded or a bell rung may undoubtedly be established by circumstances under which neither has been heard by witnesses, the mere unfortified fact that a single witness not shown to be listening on an occasion when there is considerable other noise did not hear, can scarcely be said to be any evidence in a legal sense as against an abundance of positive evidence to the contrary. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.) In other words, it is not sufficient evidence to support a finding that the signals were not given. The rule applicable is stated by Judge CULLEN in Fealey v. Bull (163 N. Y. 397, 401) as follows: "On the other hand, this court has always asserted the doctrine that a finding of fact without evidence to support it constitutes an error of law (Mason v. Lord, 40 N. Y. 476), and that, in law, a finding on insufficient evidence is a finding without evidence. (Pollock v. Pollock, 71 N. Y. 137.) In the last case Judge FOLGER quoted MAULE, J. (Jewell v. Parr, 13 C. B. 916; 76

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that

E. Com. L. Rep. 909), with approval, as saying: 'When we say there is no evidence to go to a jury, we do not mean literally none; but that there is none that ought reasonably to satisfy a jury, that the fact sought to be proved is established.' There must be not only some evidence, but the evidence must be sufficient in its nature to warrant the court in submitting a cause to the jury. * A witness may be so discredited by his own confession that his uncorroborated testimony is insufficient in law to justify a verdict."

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It follows that the judgment and order should be affirmed.

Present- GOODRICH, P. J., BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ.

Judgment and order unanimously affirmed, with costs.

ELIZA DAVIS, Respondent, v. GABRIEL DAVIS and Others, Appellants, Impleaded with LOUIS CLARKE, JR., Sole Surviving Executor, etc., of BANNATT SALKY, Deceased, Respondent.

validity of a clause disinheriting any child renouncing the Hebrew faith not construed until the event occurs.

In an action to obtain a judicial construction of a will the court will not determine the validity of the following clause contained in the will: "If any of my grandchildren should ever renounce the Hebrew Faith, such grandchild shall be disinherited and deprived of all provision under this Will," where it does not appear that any one of the grandchildren has apostatized or threatens to do so, or that the question of the validity of such clause will ever be other than a purely academic one.

Quare, whether the clause in question is illegal.

APPEAL by the defendants, Gabriel Davis and others, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of December, 1902, upon the decision of the court, rendered after a trial at the Nassau Special Term, as determines that under the will of Bannatt Salky, deceased, the plaintiff took an absolute undivided one-sixth interest in fee in said testator's real and APP. DIV.-VOL. LXXXVI. 26

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personal estate, and as adjudges certain clauses of the testator's will to be null and void.

The action was brought to obtain a judicial construction of the will of Bannatt Salky, deceased.

G. L. F. Rohan, for the appellants.

Charles J. Gerlich, Jr., for the plaintiff, respondent.

JENKS, J.:

I advise affirmance of the judgment, except so far as it determines that the 17th clause of the will is void. The clause reads as follows: "If any of my grandchildren should ever renounce the Hebrew Faith, such grandchild shall be disinherited and deprived of all provision under this Will.”

It is not contended that any one of the grandchildren has apostatized or threatens to do so. The question has not arisen, nor is there any evidence that there is any probability of its being aught but academic. The purpose of the action is entirely foreign to the clause or to anything bearing upon it, and I see no reason why the court should grasp out to construe it. (Horton v. Cantwell, 108 N. Y. 255, 266.) If the question were necessarily before the court for construction, I am not prepared to say that the clause is illegal. I think that it has never been directly adjudicated in this State. But in England, Hodgson v. Halford (L. R. 11 Ch. Div. 959) and Ex Parte Mary Eleanor Dickson (1 Sim. [N. S.] 37) are authorities which go far to sustain its validity. The latter authority is mentioned in Hogan v. Curtin (88 N. Y. 162, 171) in the learned discussion upon conditions and their validity by ANDREWS, Ch. J. The fact that there is no devise over is to be read in connection with the latter part of the same learned opinion.

The judgment should be modified by striking therefrom the adjudication as to the validity of the 17th clause, and, as thus modified, affirmed, without costs.

GOODRICH, P. J., BARTLETT, WOODWARD and HIRSCHBERG, JJ., concurred.

Judgment modified in accordance with the opinion of JENKS, J., and as modified affirmed, without costs.