other and better appliances which might have been, and some of which were, in general use, taken in connection with the evidence that it would take from 10 to 15 minutes to varnish a cask, and that sufficient heat could be generated by the lantern used in 15 or 20 minutes to ignite the vapor, we were of the opinion that it was a question of fact for the jury to say whether or not the defendant was negligent in using the lantern. But, assuming this to be true, it does not aid the plaintiff. The evidence is uncontradicted to the effect that the defendant had a rule, of which the intestate had knowledge, that, after the cask had been varnished inside, and the workmen had taken the lantern out, it was not to be again put into the cask. Here, as already stated, the work had been so far completed that Roos and the intestate had gone out of the cask, and taken the lantern with them. After the explosion, the lantern was found inside of the cask. Therefore, if it be assumed (and there is no evidence of it) that the lantern caused the explosion, it was by reason of the intestate's own negligence in violating defendant's orders in putting the lantern back into the cask. Roos, when he went upstairs, handed the lantern to the intestate, and no one was permitted near the cask, as already said, except Roos and the intestate, and therefore the jury could not have found otherwise than that the lantern was put back into the cask by the intestate; and this finding would necessarily have required them to find, in view of defendant's orders, if the lantern were the cause of the explosion, that his own negligence contributed to his injury.

For these reasons we are of the opinion that the judgment appealed from should be affirmed, with costs. All concur, except LAUGHLIN, J., who dissents.

MONROE v. METROPOLITAN ST. RY. CO.

(Supreme Court. Appellate Division, First Department. February 6, 1903.) 1. CARRIERS-NEGLIGENCE-EVIDENCE-QUESTION FOR JURY.

Where, in an action against a street railway company for injury to a passenger who was thrown down by the sudden starting of the car as he was getting on, there was no evidence relating to the conductor, except that plaintiff did not see him, it was error to leave the question of the conductor's negligence to the jury.

2. SAME-STREET CARS-INVITATION TO BOARD-INSTRUCTIONS.

Where, in an action against a street railway company, plaintiff, while stepping onto a slowly moving car, which he had signaled, was thrown off by its starting forward with a jerk, the refusal of the court to charge that "the slowing up of the car as it approached the street crossing was not an invitation to the plaintiff to board it before it stopped." was error.

Appeal from trial term, New York county.

Action by Orlando Monroe against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

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

Charles F. Brown, for appellant.
Frederick Hulse, for respondent.

80 N.Y.S.-12

and 114 New York State Reporter

INGRAHAM, J. The plaintiff testified that upon the afternoon of May 26, 1899, at about 4 o'clock, on the corner of 106th street and Amsterdam avenue, he signaled to the motorman upon one of the defendant's cars approaching from the north; that, in answer to the signal, the motorman nodded his head; that as the car crossed 106th street it slowed up until it had nearly stopped; that, as the car was slowly moving, the plaintiff attempted to step upon the platform, when the car started with a jerk, throwing him off and breaking his leg; that the car was one of the half-open and half-closed cars,—the open part toward the south, the direction in which the car was going; that it was at the last seat of the open part of the car where the plaintiff tried to get on; that as he tried to get on he took hold of the hand rail with his right hand, putting his foot on the footboard, when the car started with a jerk and threw him off. Upon cross-examination the plaintiff testified that, when he first gave his signal to the motorman to stop, the car was about midway between the north and south sides of 106th street; that the car was slowing up when he gave the signal; that it continued to slow up until he attempted to board it; that at that time the rear of the car had got to the south corner of 106th street, and the witness was standing between five and eight feet south of the south corner of 106th street, and it was at that point that he stepped upon the car; that he attempted to get on while the car was slowly moving, at what the witness called "a very slow walk"; that the rear of the car had not then come to where the plaintiff stood, but had come to the south corner of 106th street; that he did not notice the conductor, and could not tell where he stood; that all he noticed was the motorman; that he saw the motorman looking behind, over his right shoulder, to see if the plaintiff was getting on the car. A police officer called for the plaintiff testified that he noticed the car stopping on the south side of 106th street, and a man getting off; that the plaintiff got on the car, and the car started up, and he fell to the street; that he did not see anything in regard to the motorman and conductor; that he saw the plaintiff walk out from the sidewalk to board the car; that he stopped 10 to 15 feet south of the cross-walk. Another witness, who was a passenger on the car, testified that as the car came toward 106th street it slowed up, and at the south side of 106th street it came almost to a stop; that the witness noticed a man take hold of the bar and attempt to get on the car; that he had one foot on the car, when the car suddenly started with a jerk, and threw the plaintiff off; that after the accident the conductor rang three bells; that the car slowed up after it passed the north side of 106th street, and continued to go slower as it crossed the street; that it had got almost to a standstill at a little below 106th street, but that the car was still moving when the plaintiff attempted to board it; that from the time the plaintiff first attempted to board the car until he was thrown off was about five seconds, and during that time the car moved from 3 to 5 feet. On behalf of the defendant, the motorman testified that in crossing this street he remembers getting three bells, and that he stopped the car immediately, and then walked back to see what the matter was, and saw the plaintiff in the street; that he did not recollect seeing any one at the corner before he received the three bells, as he was then busy

putting the power off; that no one made a signal to him, standing upon the track, as he approached the south corner of 106th street; that just south of the corner of 106th street there was a break in the electrical conductor, at which place there was no possibility of putting power on the car; that before approaching that break the power is taken off, and the momentum of the car carries it over this space; that, when the witness got three bells to stop, the car was about 50 feet past 106th street, and he then stopped the car as soon as possible. In all this evidence there is no reference to the conductor, and no act of his contributed in any way to the accident, nothing to justify the jury in finding that the conductor was negligent. The question as to the defendant's negligence depended upon whether or not the motorman saw the plaintiff when he attempted to board the car, and, knowing of that fact, applied the power which caused the jerk that threw the plaintiff from the car. It would seem that, if the testimony of the plaintiff and his witnesses is true as to his position at the time that he says the car started, it would be impossible for the car to start, as at that time it was over the portion of the track at which there was a break in the electrical conductor, so that it was then impossible to apply power to the car. But assuming that there was a question for the jury as to the negligence of the motorman, there was certainly no evidence to justify a finding that the conductor was negligent. In submitting the case to the jury, the learned trial judge instructed them that "if the company, while he [plaintiff] was in the act of getting on board, did not start up the car with a sudden jerk, and thereby throw him off, there is no liability upon this company"; that the jury were, in the first place, to determine whether or not this accident was solely caused by the negligence of the defendant. At the end of the charge, counsel for the defendant asked the court: "Does your honor think there is any evidence here of any negligence on the part of the conductor? I think you left that to the jury." To which the court answered, "I did." Counsel for the defendant then excepted to the court's leaving to the jury any question of negligence on the part of the conductor, on the ground that no negligence on his part was shown, to which the court replied, "You may take an exception." think this was clearly error. There was here a distinct instruction to the jury that they could find for the plaintiff if they found that the conductor was negligent, when there is no testimony in the case to sustain a finding against the defendant upon that ground.

Counsel for the defendant further asked the court to charge that "the slowing up of this car as it approached 106th street was not an invitation to the plaintiff to board it before it stopped." That the court declined, to which counsel excepted. Counsel for the defendant further asked the court to charge that, "unless the motorman saw the plaintiff attempting to board the car, the defendant is not chargeable with negligence for any starting forward of the car, if any such took place, unless the motorman saw the plaintiff attempting to board the car when he was attempting to board it." That the court declined to charge, and the defendant excepted. Assuming that the motorman saw the plaintiff when he gave the signal to stop, he could not assume that the plaintiff would attempt to board the car until it

and 114 New York State Reporter

had actually stopped; and there was no invitation to enter the car, that would make it negligent for the motorman to start it ahead again until the car had actually come to a full stop. If the motorman looked around and saw the plaintiff attempting to board the car, and while the plaintiff was making that attempt, although the car had not come to a full stop, suddenly started it forward, that would be evidence which would sustain the charge of negligence; but the mere fact that the motorman saw the plaintiff waiting to board the car, and, instead of stopping before the rear of the car had reached the position at which he stood, the motorman started it forward, having no notice that the plaintiff would attempt to board the car until it had come to a full stop, there was no negligence to sustain the verdict of the jury.

Without deciding the other questions in the case, I think these errors require us to reverse the judgment.

The judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur; HATCH, J., in result.

STRAUS v. GUILHOU et al.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. ATTACHMENT-VOLUNTARY DISCONTINUANCE.

Where defendant in attachment has not appeared, except specially, to move to vacate the service of summons and warrant of attachment, plaintiff has the right to discontinue the suit.

2. SAME-JUDGMENT FOR DEFENDANT'S COSTS AND DAMAGES.

Where, on plaintiff's motion, an attachment suit, in which defendant had not appeared, except specially, to move to vacate service of summons and warrant of attachment, was discontinued, a judgment against plaintiff for defendant's costs and damages could not thereafter be entered in the suit.

8. SAME-ACTION ON UNDERTAKING.

Discontinuance of an attachment suit on plaintiff's motion, but without the consent of defendant, was equivalent to a final determination that plaintiff was not entitled to the attachment, and gave defendant an immediate right of action on the undertaking executed by plaintiff pursuant to Code Civ. Proc. § 640, providing that, before the granting of a warrant of attachment, plaintiff must give an undertaking to the effect that if defendant recovers judgment, or if the warrant is vacated, plaintiff will pay the damages sustained by defendant by reason of the attachment proceedings.

Appeal from special term, New York county.

Action by Hugo Straus against Aaron Guilhou and others. From an order modifying an order of discontinuance, and from a judgment entered therein, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Charles L. Cohn, for appellant.

Julius Miller, for respondents.

MCLAUGHLIN, J. This action was commenced by the service of a summons by publication, and a warrant of attachment was obtained

against defendants' property, under which a levy was made. Thereafter the defendants, by an attorney, appeared specially for the purpose of moving to vacate the attachment and the order of publication. Intermediate the argument of the motion and its determination, the plaintiff, with the permission of the justice before whom the motion was pending, applied, ex parte, to, and obtained from, a justice sitting in another part of the court, an order discontinuing the action and withdrawing the attachment. Subsequently the defendants appeared in the action, and moved to modify the order of discontinuance by inserting therein a provision to the effect that the defendants be permitted to enter judgment against the plaintiff dismissing the complaint. The order was granted, and judgment entered dismissing the complaint, from both of which plaintiff appeals.

We are of the opinion that the order appealed from should be reversed, and the judgment vacated. The plaintiff had a right to discontinue the action at the time the order was made. The defendants had not appeared, except for the sole purpose of moving to vacate the service of the summons and the warrant of attachment; and the relief which they sought by this motion was, in effect, accomplished when the order of discontinuance was made, and the warrant of attachment withdrawn. Thereafter there was nothing upon which a judgment could be entered. The authority to enter a judgment, of course, rests upon the determination of an issue, either of fact or law. It is the decree of the court as to the result of the issue raised. Booth v. Association, 18 App. Div. 407, 46 N. Y. Supp. 457. The action having been discontinued, there was no issue of any kind between the parties. The contention of the respondents that they are entitled to have a judgment, in order that they may recover the damages sustained by reason of the levy under the warrant of attachment, amounts to nothing. The undertaking which the plaintiff gave in order to obtain the warrant fully protects them in this respect. It complied with section 640 of the Code of Civil Procedure, which provides that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which may be sustained by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least $250. The discontinuance of the action without the consent of the defendants, and the withdrawal of the attachment, were equivalent to a final determination that the plaintiff was not entitled to the attachment, and the defendants thereupon became entitled to an order of reference to ascertain the damages they had sustained by reason of the granting of, and levy under the warrant of, attachment. Steamship Co. v. Toel, 85 N. Y. 646; New York Cent. & H. R. Co. v. Village of Hastings on Hudson, 9 App. Div. 256, 41 N. Y. Supp. 492; Wynkoop v. Van Beuren, 63 Hun, 500, 18 N. Y. Supp. 557; Water Co. v. Bissell, 78 Hun, 176, 28 N. Y. Supp. 938; Manning v. Cassidy, 80 Hun, 127, 30 N. Y. Supp. 23. The discontinuance was in effect a final adjudication of the action, and determined that the plaintiff was not entitled to the attachment, and this gave an immediate right of action upon the undertaking.

If we are correct in this, then it necessarily follows that the judg