claimed on behalf of the appellant that the authorities cited in the former opinion, or some of them, do not support the views then expressed. On both points it is sufficient to say that we deem the decision controlling and conclusive in this action, and that, even if doubt existed, no re-examination on this appeal of the soundness or accuracy of our former view would be consistent with a due regard for the rights of the litigants, or the orderly administration of justice. Dougherty v. Trustees, 5 App. Div. 625, 39 N. Y. Supp. 447; New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 28 App. Div. 411, 418, 50 N. Y. Supp. 1093; Wild v. Porter, 59 App. Div. 350, 69 N. Y. Supp. 839. It may be noted, however, that the question of what constitutes proximate cause has since been considered in this court, in the recent case of Travell v. Bannerman, 71 App. Div. 439, 75 N. Y. Supp. 866, and the same conclusion reached as in this case on the first appeal. Mr. Justice Woodward, writing for the majority of the court, said (page 443, 71 App. Div., and page 869, 75 N. Y. Supp.):

"But the defendant contends that the materials in question in the case at bar were harmless until two outside agencies intervened,-the boy who carried the materials from the lot to the street, and the boy who struck the mass with a rock. Counsel continues with the following extraordinary statement in italics: In other words, it [the lump which exploded] was not dangerous until made so, not by the defendant, but by the plaintiff and his companions.' As well might he urge that the loaded gun in Dixon v. Bell, 5 Maule & 9. 198, was harmless until made dangerous by the pressure applied to the trigger by the child's hand. However, the question of intervention by a responsible human agency is raised, and should be met. It is a general rule that a person injured by the fault of another, without which fault the injury could not have occurred, is not to be deprived of his remedy because the fault of a stranger not in privity with him also contributed to the injury, for the original negligence still remains as a culpable and direct cause of the injury, and the intervening events and agencies which may contribute to it are not to be regarded. Lane v. Atlantic Works, 111 Mass. 136. See, also, Sheridan v. Railroad Co., 36 N. Y. 39, 93 Am. Dec. 490; Webster v. Railroad Co., 38 N. Y. 260; Barrett v. Railroad Co., 45 N. Y. 628; and Spooner v. Railroad Co., 54 N. Y. 230, 13 Am. Rep. 570. In the Lane Case the defendants had carelessly left standing in a public highway a truck loaded with iron. A boy twelve years of age called to the plaintiff, a boy of seven, to come across the street and see him make the wheels move; and while doing this a piece of iron fell from the truck and injured the plaintiff. The court say (page 141, 111 Mass.): 'It is immaterial whether the act of [the older boy] was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against.'. The maxim, 'Causa proxima, non remota, spectatur,' does not mean that the cause which is nearest in time or space to the result is necessarily to be regarded as the proximate cause. Vandenburgh v. Truax, 4 Denio, 464, 47 Am. Dec. 268; Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Eckert v. Railroad Co., 43 N. Y. 502. 3 Am. Rep. 721; Gibney v. State, 137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690. And as Mr. Justice Jenks has pointed out in Trapp v. McClellan, 68 App. Div. 362, 368, 74 N. Y. Supp. 130, the primary cause may be the proximate cause of a disaster. It is also a well-known rule that if the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages from either or both, and neither can successfully plead that the negligence of the other contributed to the injury. Congreve v. Morgan, 18 N. Y. 84, 72 Am. Dec. 495; Colegrove v. Railroad Cos., 20 N. Y. 492, 75 Am. Dec. 418; Barrett v. Railroad Co., 15 N. Y. 628."

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The law governing this case having been settled by our former decision, there remains for consideration only the allegation of errors committed at the trial.

The appellant contends that the learned trial justice erred in rulings. upon the evidence and in the charge to the jury. We find no tenable grounds for such contention. We think it was proper to permit proof of the actual conditions existing at the time of the occurrence. This includes the proof, which was objected to, of the defective nature of the mortar in the chimney, occasioned by the lapse of time and the natural action of the elements, and also of the appearance of the brick and mortar when the chimney fell into the street. The photograph of the building on which the chimney stood was properly received in evidence, although it was taken some time after the accident. Cowley v. People, 83 N. Y. 464, 476, 38 Am. Rep. 464; Warner v. Village of Randolph, 18 App. Div. 458, 464, 45 N. Y. Supp. 1112. There is no claim that that building differed in appearance at the time the photograph was taken from that which it presented at the time of the accident, and if other objects were exhibited upon the photograph, which the appellant deemed prejudicial, the objection, if distinctly raised at the trial, might easily have been obviated by the court.

No error was committed in rejecting the written instrument executed by the plaintiff in favor of the Jackson Architectural Iron Works, the corporation in charge of the derrick which struck the wire. It was not under seal, and was not executed by the company. There was no proof of its delivery. It did not release the iron works (Schramm v. Railroad Co., 35 App. Div. 334, 54 N. Y. Supp. 945), and it expressly reserved the defendant from the operation of its provisions. Assuming that it might have been competent evidence on the question of motive on the part of some witness connected with the iron works, as employé or otherwise, it was not competent as against the credibility of all the plaintiff's witnesses generally, as indicated by the expression. of the appellant's counsel in offering it as legitimate evidence bearing upon "the motives of these witnesses who have testified here." There was nothing to show that any of the witnesses knew of the document, or could have been in any way influenced by it. If it was offered as evidence affecting any particular witness or class of witnesses, the individual or the class should have been pointed out.

The appellant requested the court to charge that "it was not the duty of the defendant to watch for the erection of buildings under its wires, or to inquire as to the intended height thereof." The response of the court was as follows:

"As to that, I charge, the duty was the duty of reasonable care. The duty was reasonable care proportionate to the apparent dangers of the situation, known, or that should have been known with reasonable care."

This stated the correct rule of law. It was not, as suggested by the counsel, equivalent to saying that the defendant was bound to watch the erection of all buildings in the neighborhood of its many miles. of wire, and to inquire as to their proposed dimensions, but was only equivalent to submitting to the jury the question of determining the requirements in that regard which the conditions surrounding the scene of the accident imposed on the defendant with respect to the

one wire under consideration, in compliance with the legal duty of exercising reasonable care.

No other exception has been urged, either in the brief or on the argument, as involving ground of error. The judgment and order should be affirmed.

Judgment and order affirmed, with costs. All concur, except GOODRICH, P. J., who dissents.

GOODRICH, P. J. I dissent from the opinion of Mr. Justice HIRSCHBERG, for the reason that the existence of the defendant's wire about the chimney was not the proximate cause of the accident. The wire was secure, and the chimney in no danger of falling, except for the intervening act of the persons operating the derrick. Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216, contains a definition and discussion of "proximate cause" applicable to the facts of the case at bar. At page 99, 158 N. Y., and page 688, 52 N. E., 44 L. R. A. 216, Judge Martin, speaking for the court, quotes with approval from Bishop on Noncontract Law, Shearman & Redfield on Negligence, and Wharton on Negligence, and reviews the authorities. on the subject. The conclusion of the court is well expressed in the syllabus:

"The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury, when the act of another person has intervened and directly inflicted it. When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause."

Judge Martin said that it was held in Hofnagle v. Railroad Co., 55' N. Y. 612, that the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it, and quoted from Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, where it was said, "The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury."

The careful review of authorities on proximate cause by Mr. Justice Jenks in Trapp v. McClellan, 68 App. Div. 362, 74 N. Y. Supp. 130, in which all the members of the court concurred, is the latest expression of our opinion upon the subject, and renders further discussion by me unnecessary. What he said in that case with reference to a rope which was broken by the act of another person than the defendant is applicable here (page 367, 68 N. Y. Supp., and page 133, 74 N. Y. Supp.), "The placing of the rope was the causa sine qua non, but the starting was the causa causans."

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* * *

The opinion of Mr. Justice Sewell on the former appeal in the present case was concurred in by two members of the court, while two others concurred in the result. I concurred in the result. In the present record I not only find no evidence which makes the presence of the wire the proximate cause of the accident, but I find evidence

and 114 New York State Reporter

which makes the negligent working of the derrick, with which the defendant had no connection, the intervening and sole proximate cause of the plaintiff's injury.

Under the authorities cited, I think the judgment and order should be reversed.

(78 App. Div. 440.)

MORAN v. MORRILL.

(Supreme Court, Appellate Division, First Department. January 23, 1903.) 1. EXECUTORS-ACTIONS-POSSESSION OF PROPERTY-REPRESENTATIVE CAPACITY. Where a testator attempted to will property which he held only as bailee, and his executor, as such, took possession of the property, and refused, on proper demand, to deliver it to the owner, the owner could maintain an action against the executor in his representative capacity for the possession of the goods or their value.

2. SAME-WAIVER-CONVERSION.

By bringing an action against an executor for the possession or the value of certain goods received by him in his representative capacity, plaintiff waives any right she may have had to treat the refusal of her demands for the goods as a conversion.

Ingraham, J., dissenting.

Appeal from trial term, New York county.

Action by Annette Moran against J. Lee Morrill, as executor of Edward Moran, deceased. From a judgment in favor of defendant and an order denying plaintiff's motion for an entry of a general verdict upon special verdicts of the jury and granting defendant's motion for nonsuit, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Theodore Sutro, for appellant.

Burton T. Beach, for respondent.

LAUGHLIN, J. The action is brought against the executor and trustee of Edward Moran, deceased, in his representative capacity, to recover the possession of certain paintings alleged to be owned by the plaintiff. Two causes of action to recover different pictures are set forth. The plaintiff gave evidence tending to show that on the 30th day of August, 1899, the testator, in his lifetime, by an instrument in writing under his hand and seal, assigned and transferred the paintings to which the first cause of action relates to her, and that the assignment was duly delivered. The assignment recited that the paintings were in testator's possession, and also contained the following declaration: "And I further declare that such possession of said paintings as I may hereafter have is to hold and manage the same as the property of said Annette Moran, I acting as agent for her in managing, holding, and controlling the same." The paintings remained in the possession of the testator pursuant to this agreement at the time of his death. The will was executed on the 7th day of June, 1901, and the testator died two days thereafter. The testator hereby, in disregard of his assignment to the plaintiff, expressly gave, devised, and bequeathed these paintings to his executor in trust for

other purposes. The second cause of action related to other paintings alleged to have been given by the testator to the plaintiff, and she gave evidence tending to establish a gift thereof inter vivos. The paintings came into the hands of the executor as part of the estate, and were inventoried by him as such. After demanding possession, which was refused, the plaintiff brought this action. The executor never asserted any individual right, title, or claim to the property; but he contended, and avers in the answer, that the paintings were part of the estate, and that it was his duty as executor to hold them. At the close of all the evidence motions were made by each party for direction of a verdict. The court reserved its decision thereon, and submitted special questions to the jury. The questions submitted were whether the testator made a valid gift of the pictures to the plaintiff in his lifetime and their value. The plaintiff is the widow of the testator. There was a fair question of fact as to whether the assignment was delivered to her. The court, in submitting this question, instructed the jury, in effect, that, if they found that it was delivered, there was a valid gift. There was also a fair question of fact as to whether there was a gift inter vivos of the other paintings. The jury found that the value of the paintings was $65,000. The court thereupon nonsuited the plaintiff upon the ground that the action was in tort, and was improperly brought against the executor in his representative capacity, and the plaintiff duly excepted. This is the principal question arising on the appeal.

The paintings were left in the possession of the testator. He held them as bailee. His possession devolved upon his executor, who likewise held them lawfully in the same capacity. The general rule is that, where a cause of action arises on contracts made with executors or administrators, or arises wholly out of some act done by them in their representative capacity, they are only liable individually. In Van Slooten v. Dodge, 145 N. Y. 327, 39 N. E. 950; O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238; Reimers v. Schmitt, 68 App. Div. 299, 74 N. Y. Supp. 122. In this case, while a demand for possession was doubtless necessary before bringing the action, the right to make the demand existed against the testator in his lifetime. and against his executor after his death. The testator, as bailee, owed a duty to the plaintiff to exercise reasonable. diligence in the care and preservation of this property, and that duty devolved upon his executor. The defendant admitted in the answer that he took possession of the property as executor, and, as has been shown, his possession was lawfully derived from the testator. It could become unlawful only upon a demand and refusal to deliver the property to the plaintiff. The right to possession was vested in the plaintiff, and, if she had made a demand upon the testator, her cause of action would have been complete against him, and would exist against his representatives as such. This, I think, brings the case within the rule that executors are liable in their representative capacity to the true owner for property received by them in such capacity. De Valengin v. Duffy, 14 Pet. 282, 10 L. Ed. 457; Wall v. Kellogg's Ex'rs, 16 N. Y. 385; Dunham v. Fitch, 48 App. Div. 321, 62 N. Y. Supp. 905. The plaintiff merely seeks to recover her property, or its value if possession