FIFTH DEPARTMENT, OCTOBER TERM, 1887. competent to advise them of other customary means used in the harbor for the purpose of accomplishing what the defendant sought to do with his vessel. A witness was asked whether there was any difficulty in running a propeller of the size of the Lyon, headed up the creek, when properly handled either by lines or tug, into the slip there and avoiding collision with one of the three canal boats lying abreast where these did, and was permitted to answer that he thought not. This was taken subject to the objection and exception of the defendant. The witness was an experienced mariner and familiar with the harbor, yet the question of the competency of this inquiry, in the form it was put to the witness, is not free from doubt, as it may be said the subject involved was matter for the conclusion of the jury rather than for the opinion of the witness. But in view of the fact that the attention of the court was not called to that particular objection by the ground upon which it was made, we think it is not available to the defendant. (Merritt v. Briggs, 57 N. Y., 651, 652; Crosby v. Day, 81 id., 242; Walker v. Erie Ry. Co., 63 Barb., 261, 268.) The specific objection taken was, that the foundation for the question had not been laid. The witness, it seems, knew the size of the propeller, the width of the creek and the slip, and a map of the situation was produced. He testified. that he was entirely familiar with the harbor and Peck slip, that he had frequently gone through there with his propeller. He neither assumed that the defendant had or had not a tug to take his vessel through at the time in question. His evidence had relation to the facility with which the defendant's propeller may have been taken into and through the slip properly handled with the aid of lines or a tug. The exception, therefore, was not well taken. The evidence on the part of the plaintiff tended to prove that there was a lighted lamp at the window and inside of the cabin of his canal boat, so situated that it may have been seen from a vessel going up the river and before reaching the slip; that it gave a good bright light; that there was nothing in the way, and that it may have been seen a quarter of a mile on the river below the place where the boat lay. After this evidence was given without objection, another witness was asked how far a bright light of a lamp at the window of the cabin of the plaintiff's boat could be seen by a person FIFTH DEPARTMENT, OCTOBER TERM, 1887. on the pilot-house of the Lyon coming up the river, to which objection was made that it was incompetent and immaterial and not matter for expert testimony, and the witness answered about 450 to 500 feet, and exception was taken to the reception of the evidence. The ability to answer the question intelligently was dependent upon some experience of observation. The witness had been engaged many years as mariner upon the lakes and was familiar with the situation of this harbor. He, in his answer, had reference to the night time and to an unobstructed view. And while there may be other conditions influencing the effect of light and distance from which it may come into view, they do not necessarily render the evidence of the witness incompetent, although they might when shown to exist go to qualify the force or weight of the evidence. The degree of the light is described as bright, and the size as that of a lamp in the cabin window. The evidence is of a fact derived from observation, and the conditions being in all respects the same, the distance which the light could be seen would be uniform as its effect is dependent upon natural cause only. In McKerchnie v. Standish (6 N. Y. W. Dig., 433), a witness who had made astronomy a study was permitted to state how far a certain vessel would be visible at half past six o'clock, P. M. on October fifteenth, if there was nothing to interrupt the view. The court, on review, remarked that this evidence was merely speculation and not to be relied upon unless other evidence failed, and that its competency even then was doubtful. The statement of the witness there does not appear to have been supported by any observation or knowledge other than that derived from his astronomical information and by that he must have undertaken to measure the obstructive force of twilight, merely by the application of science as an expert. We assume that the statement made by the witness of the distance the light could be seen was based upon his knowledge obtained from his observation as a mariner, and as such was competent for the same reason that a person who has given attention to the movement and velocity of railroad trains may give his opinion of their speed on occasions when he has observed their passage. (Northrup v. N. Y. 0. & W. R. R. Co., 37 Hun, 295.) And as to the time requisite for walls of a building to dry and become fit for occupation. (Smith v. Gugerty, 4 Barb., 615, 625.) FIFTH DEPARTMENT, OCTOBER TERM, 1887. The reason of the rule which permits such evidence is that knowledge on the subject is not common to all, but comes from the personal observation and experience of those only who have given it attention, or by habits and business have gained information which enables them to have and understandingly express a judgment in respect to the matter of inquiry. And when without the aid of such evidence the jury might have no means of intelligently considering the fact. But the value when given of opinions is always for the jury to determine. The objection did not go to the competency of the witness but to the character of the evidence only. (Stevens v. Brennan, 79 N. Y., 255; Cushman v. U. S. Life Ins. Co., 70 N. Y., 73.) These remarks are applicable to the objections to like evidence of other witnesses, except to that of the plaintiff which is not considered because he had before, without objection, testified to the same fact that he did in answering the question to which objection was taken. The time of the collision was about midnight. The plaintiff offered and put in evidence that portion of Dr. Jayne's almanac which purported to show the time of the rising of the moon on October 2, 1881, to which objection and exception were taken. The almanac was not competent evidence as such to prove when the moon rose on that or any day. But if the statement on the subject in it was correct the defendant could not have been prejudiced by it. Judicial notice will be taken of the time the moon rises and sets on the several days of the year as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and invariable course of nature. It may be assumed that the court, treating the almanac as correctly stating the time when the moon rose on the day in question, received it in evidence to refresh the memory of the jury on the subject. And in that view we think it was competent. (State v. Morris, 47 Conn., 179; Munchower v. State, 55 Md., 11; S. C., 39 Am. R., 414.) In the latter case the court held that the almanac was the most accurate available source of information on the subject and therefore competent. In England the almanac annexed to the book of common prayer has been treated as part of the law of that country, but as that did not contain anything about the rising or setting of the sun, POLLOCK, C. B., expressed doubt about the admissibility of the almanac as evidence of the fact. (Tutton v. Darke, 5 Hurl. & Norm., 647.) And in Collier v. Nokes (2 C. & K., 1012), FIFTH DEPARTMENT, OCTOBER TERM, 1887. it was held that while the courts would take judicial notice of days they would not of the hours of the day in the calendar. The reason before stated we think supports the ruling of the court. The defendant called a witness who had been mate and master of vessels for thirty years, and was mate on the Lyon on the night in question, and asked him "what do you say about the position of these canal boats in respect to its being a proper or improper position to lie at night?" The plaintiffs objection was sustained, the evidence was excluded and exception taken. It appears that Peck slip was an artificial channel 200 feet wide through which vessels passed in going from the river to the ship canal; that along on either side of it were elevators; that it was usual for canal boats to lay along the sides and next to the docks of the slip, and that it was within the harbor of Buffalo. The evidence tended to prove that the space in width occupied by the three canal boats was about sixty feet, and that the propeller was thirty-five feet in width and 275 feet in length. Whether the position of these canal boats was proper or otherwise at night, depended upon facts which so far as appears may have been disclosed, and in that view the conclusion was for the determination of the jury. The question called for the opinion of the witness and it does not appear to have been competent on the subject. There was no error in this ruling. The case of Ferguson v. Hubbell (26 Hun, 250) cited by counsel, was reversed for the reason that the opinions of witnesses upon the subject there involved were incompetent as evidence. (97 N. Y., 507.) The question raised by motion for nonsuit that the omission of the plaintiff to have on his boat the light required by the city ordinance was properly disposed of by denial of the motion. While the omission was a fact properly for the consideration of the jury on the question of the plaintiff's negligence, it did not necessarily establish that fact for the purpose of the defense. (McGrath v. N. Y. C. and H. R. R. R. Co., 63 N. Y., 522.) exceptions seem well taken. The jugment should be affirmed. None of the SMITH, P. J. and BARKER, J., concurred; LEWIS, J., not sitting. Judgment affirmed. FIFTH DEPARTMENT, OCTOBER TERM, 1887. IN THE MATTER OF THE PETITION OF MALINDA WHEELER FOR A DECREE REVOKING LETTERS OF ADMINISTRATION GRANTED TO JOHN GILLINGHAM ON THE ESTATE OF SARAH ANN GILLINGHAM, DECEASED. A surrogate's Court has jurisdiction to determine whether a person petitioning for the removal of an administrator is a creditor. Where an application for the removal of an administrator is made by a person who alleges in the petition that he is a creditor of the decedent, and this allegation is denied by the administrator, the Surrogate's Court has jurisdiction to try and determine the issue so raised. APPEAL by the petitioner from an order of the Surrogate's Court of Niagara county dismissing the petition. Henry M. Davis, for the petitioner, appellant. David Millar, for the respondent. BRADLEY, J.: The petition was dismissed upon the objections taken by the administrator, to the effect: 1. That the surrogate has no power to determine that the petitioner was a creditor. 2. That it has no power to compel the administrator to embrace in the inventory property which he denies belongs to the estate of the decedent. 3. That no sufficient ground of the revocation of the letters of administration is stated in the petition. The last two grounds seem to require no consideration further than to say that the proceeding is not taken to compel the insertion of any property in the inventory, and that the allegations are such as to permit evidence in support of them of a character to justify the relief in view. (Code Civ. Pro., § 2685, sub. 2.) The petitioner alleges that she is a creditor of the estate of the decedent, and as such takes this proceeding. The answer of the administrator denies that the petitiouer has the relation of creditor. In a proceeding which has for its purpose the direction for payment, by an executor or administrator, of a claim alleged to be due the petitioner, the denial of its validity or legality by the answer of such representative defeats the jurisdiction of the Surro |