power, all the matters relating to the wills should be disposed of so far as possible in one proceeding, instead of in a series of contests in the Surrogate's Court. As the power exists, I exercise it.

The remaining question is as to the appointment of a receiver. The point is made that the court is without power, except in the single instance provided for in section 1869 of the Code, and that this is not such a case. So far as this particular litigation is concerned, the power may be found in section 713, if not in the inherent authority of the court. This is not merely an action for the establishment of a will, but, by virtue of the further allegations and the prayer for relief relating to the deeds, assignments, and other assets, involves property as the subject of the action. Irrespective of this consideration, however, I see no reason why the property is not adequately preserved, and will not properly be protected, if left in the custody of the present temporary administrator. It is asked that a receiver be appointed in its place. I am willing to designate it receiver if thereby the protection or administration of the estate will be furthered. But I am not satisfied that its appointment should be either directly or in effect canceled by designating a new receiver. The vague fears expressed are not facts. Nothing tangible is offered which would justify the inference that it will not be conscientious in the performance of its duties, or rigorous in its pursuit of any further assets of the estate that may be disclosed. Perhaps its appointment as receiver may be advisable to bring it under the direct control of the court. I will hear counsel on this point on the settlement of the order, which is to be drafted on the lines suggested in this opinion. In conclusion, I would say that I see no reason why an exception has been made in the case of the one piece of property not turned over to the temporary administrator, and that the order should also contain some provision directing its transfer to the custodian.

Ordered accordingly.

TOOKER v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. March 13, 1903.) 1. CARRIERS-INJURIES TO PASSENGERS-INADEQUATE DAMAGES.

The flesh of one of plaintiff's fingers was torn while he was attempting to alight from one of defendant's trolley cars, by his finger ring catching in the handle bar of the car, which was started with a sudden jerk as he was attempting to alight. Plaintiff's wound was very painful, and was dressed by a physician 20 or 25 times, for which plaintiff incurred a bill of $150 for medical services. Held, that a verdict for plaintiff for six cents damages was inadequate.

2. SAME-INCONSISTENT STATEMENTS.

In an action for injuries to a passenger, his sworn statement that he was not thrown by the force of the car, but had a ring on the third finger of his left hand that got caught on the brass car handle, lacerating the finger, was not inconsistent with his claim at the trial that the sudden forward movement of the car caused the laceration of his finger. Woodward, J., dissenting.

Appeal from Trial Term, Kings County.

Action by George A. Tooker against the Brooklyn Heights Railroad Company. From an order denying plaintiff's motion to set

and 114 New York State Reporter

aside a verdict for nominal damages and for a new trial on the minutes, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Albert A. Wray, for appellant.

I. R. Oeland, for respondent.

WILLARD BARTLETT, J. The plaintiff recovered a verdict. of six cents damages for injuries to his finger, sustained by the catching of his finger ring on the handle bar of one of the defendant's trolley cars, as he was alighting from the car, which had stopped, and started at the time with a sudden jerk. The evidence amply justified a finding of negligence on the part of the defendant in the management of the car, and of the absence of contributory negligence on the part of the plaintiff. The proof demonstrated that the wound. was a painful one, which had to be dressed by a physician 20 or 25 times, and that the plaintiff had incurred a bill of $150 for medical services. Under these circumstances the verdict was plainly inadequate, and should have been set aside. Of course the amount of the physician's bill was not conclusive upon the jury as to the value of the medical services rendered; but the proof left no doubt that those services were worth a substantial sum. The damages awarded were insufficient either to compensate the plaintiff for the injuries which he had sustained or for the expenses incurred in consequence thereof; and where this is the case it is the duty of the trial court to set aside the verdict. Saperstone v. Rochester Railway Co., 25 App. Div. 285, 49 N. Y. Supp. 486; De La Torre v. Metropolitan Street Railway Co., 48 App. Div. 126, 62 N. Y. Supp. 604.

It is argued that the verdict should not be disturbed because the plaintiff, prior to the trial, made an affidavit in which he said: "I was not thrown by the force of the car starting, but I had a ring on my third finger of the left hand that got caught some way on the brass handle, lacerating the finger." The fact that the starting of the car did not throw down the plaintiff was not inconsistent with his claim that its sudden movement forward caused the laceration of his finger. Upon the proof, it seems sufficiently clear that the result was right in all respects except the assessment of damages.

Order reversed, and new trial granted, costs to abide the event. All concur, except WOODWARD, J., who dissents.

KOMITSCH v. DE GROOT et al.

(Supreme Court, Appellate Division, Second Department. March 13, 1903) 1. BANK ACCOUNT-CONVERSATIONS WITH DEPOSITOR-ADMISSIBILITY.

In an action by K. against the executor of D., to determine the ownership of a bank deposit in the names of "D. or K.," the testimony of a witness to conversations with D. relative to the bank account, which is already in evidence, is admissible.

Appeal from Kings County Court.

Action by Amelia Komitsch against William A. De Groot, as executor of Cornelius Dod, deceased, and another. From a judgment. for defendants entered on a dismissal of the complaint on the merits, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Martin T. Manton, for appellant.

Edwin D. Kenyon, for respondent William A. De Groot.

JENKS, J. This action is brought by Amelia Komitsch against the executor of Cornelius Dod, deceased, and the Greenpoint Savings Bank, to determine the ownership of money on deposit in said bank in the names of "Cornelius Dod or Amelia Komitsch." The plaintiff called Lola Hodgdon as a witness, who testified that she knew Mr. Dod in his lifetime, and that they frequently exchanged visits. She was then asked this question:

"Do you remember having any conversation with Mr. Dod in reference to this bank account? A. I do. (Objection on the ground that this conversation took place with the decedent without the authority, and in the absence, of the adverse party. Objection sustained. Exception.) Q. Do you remember having a conversation with Mr. Dod at your house? A. I do. (Objection on the same ground. Same ruling. Exception.) Q. Mrs. Hodgdon, do you remember having a conversation with him on Nassau about this account? A. I do. (Objection on same ground. Same ruling. Exception. On motion, answer ordered stricken out; also answer to prior questions. Mr. Manton: I take an exception.)"

I am of opinion that the learned county court erred in its rulings upon the questions put to the witness Hodgdon. Hurlburt v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482; Greenleaf on Evidence (15th Ed.) vol. 1, § 189. The learned counsel for the respondent now seeks to sustain the rulings on the ground that at the time the witness was interrogated there was no proof of any account as alleged in the complaint. But, as I read the record, an account had been read in evidence, and it was clear enough that it was the very account referred to in the complaint, although there were some trifling inaccuracies in description, amounts, and dates, which the learned court very properly corrected by subsequent amendment. The question put to the witness did not relate to the accuracy of the description of the account, but referred to the statements which the testator had made with reference thereto. As we cannot say that the exclusion was harmless, I advise that the judgment and order be reversed, and a new trial ordered.

Judgment and order of the county court of Kings county reversed, and new trial ordered; costs to abide the event. All concur.

(39 Misc. Rep. 719.)

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BARNEY v. CITY OF NEW YORK et al.

(Supreme Court, Special Term, New York County. February, 1903.) 1. INJUNCTION-RAPID TRANSIT TUNNEL-UNAUTHORIZED CONSTRUCTION. The Rapid Transit Railroad Commissioners unlawfully constructed the rapid transit tunnel between certain streets 28 feet too far to the east. It appeared that if its construction was enjoined as a public nuisance, and the commissioners were required to cause it to be filled solid, and have a new tunnel constructed farther west, in the proper location, the expense would be about $700,000, and a delay of several years would result. The unlawful construction diminished by drilling and blasting an abutting owner's peaceful enjoyment of his property, though the annoyance resulting was not much in excess of what it would have been had the tunnel been built according to the adopted plans. The portion of the tunnel thus irregularly constructed is nearly completed. Held, that under all the circumstances an injunction would not be granted. but the owner was entitled to a bond indemnifying him against all possible loss.

Action by Charles T. Barney against the city of New York, the Board of Rapid Transit Railroad Commissioners, and others for an injunction. Denied.

Masten & Nichols, for plaintiff.

George L. Rives, Corp. Counsel, for defendant city of New York. Edward M. Shepard and Boardman, Platt & Soley, for defendant Board of Rapid Transit Com'rs.

Nicoll, Anable & Lindsay, for defendant John B. McDonald.

LEVENTRITT, J. Two public considerations have controlled my disposition of this application-that of the public safety and that of the public interest. The first has regard to the present; the latter to the immediate future. It is not to be gainsaid that there has been in this section of Park avenue a substantial and as yet unauthorized deviation from the established plan. It is unnecessary to review the reasoning leading to this conclusion, as I find myself in accord with its sequence, as contained in Barney v. City of New York, 38 Misc. Rep. 549, 77 N. Y. Supp. 1083. If anything, the plaintiff builds a stronger case in this action which he brings to protect his property rights by way of injunction than in the former suit which he brought under the statute as a taxpayer.

The plaintiff seeks in this action to enjoin the further construction of the rapid transit tunnel in front of his premises on Park avenue. The present easterly wall of the tunnel follows a line only 7 feet distant from his house line, whereas the original plan, as filed and adopted, shows the easterly extremity between 27 and 28 feet farther west. The plaintiff claims that the present construction, with its blasting and steam drilling and attendant noises, violates the peaceful enjoyment of his property and its appurtenant easements, while the prospective operation of the road threatens serious permanent injury. The complaint is framed on the theory of public nuisance, with allegations of special damage to the plaintiff. The injunctive relief prayed for is that not only the further construction of the tunnel along the present line be enjoined, but that the excavation so far

made be filled in, and the subsurface restored, so near as may be, to its previous condition.

That the present construction is unauthorized must be conceded. So, too, it may be admitted that the plaintiff shows resulting damage special to himself; but yet, after careful consideration, I am satisfied that the injunction asked should not issue. Were the entire construction on or under Park avenue, wherever placed illegally and unauthorized, there could be no question in any case of the plaintiff's right to the relief asked. That, however, is not the situation here. Were the easterly tunnel about 28 feet farther west its lawfulness would be beyond attack. The damage, therefore, on which the plaintiff can predicate his prayer, is not the damage for the entire tunnel construction, but only for the excess resulting from the more easterly construction. Or, to speak in mathematical terms, it is the total damage resulting from the authorized westerly construction subtracted from that resulting from the unauthorized more easterly construction which gives the amount of special injury to the plaintiff on the basis of which he can come into a court of equity with the form of action he has adopted. While the difference of damage is appreciable and measurable, I am not satisfied that it is large. The plaintiff does not claim that his foundation walls are impaired. The chief complaint is due to the blasting and drilling, present and prospective vibration, and, to some extent, the impeded approach to his building by the presence of various temporary structures in the streets. So far as the blasting and drilling are concerned, together with their attendant noises and vibrations, ther is this to be said: The affidavits satisfy me that this portion of the work is nearly completed, and that the increased noise, if any, is minimal. With reduced charges of dynamite as the house line is approached, it by no means follows that the noise and vibration of detonation is necessarily greater. So far as the temporary structures are concerned, they are sufficiently accounted for by the concededly legal part of the structure-the westerly tunnel.

Were this merely an action between private individuals, or even an ordinary action against the municipality, the extent of the plaintiff's special damage might be immaterial. Slight damage would be sufficient to enjoin the continuance of the nuisance. Beekman v. Third Ave. R. R. Co., 153 N. Y. 144, 47 N. E. 277; Adler v. Metropolitan El. R. Co., 138 N. Y. 173, 33 N. E. 935. But this is not the ordinary case, and it is one which, in my opinion, justifies the application of the rule that where the damage resulting from the allowance of the injunction to the defendant far exceeds that resulting to the plaintiff from its disallowance, the equitable arm of the court should not be raised in restraint. Gray v. Manhattan R. Co., 128 N. Y. 509, 28 N. E. 498; Riedeman v. Mount Morris Electric Light Co., 56 App. Div. 23, 67 N. Y. Supp. 391. It is here that the minimal excess of damage suffered by the plaintiff by the present structure over that he would have suffered had the road been constructed according to the original plan becomes most material.

In McElroy v. Kansas City (C. C.) 21 Fed. 261, Mr. Justice Brewer well states the recognized rule thus: