certain certificates, including the N. bonds, "to create a fund for the costs and expenses of the action, and the surplus, after paying such costs, was thereby directed to be distributed among the actual holders of the trust certificates;" that the proceeds of bonds other than the N. bonds were used to pay the costs and expenses; and plaintiffs demanded the amount received from the sale of the N. bonds. Held, that the complaint failed to state a cause of action, since there was no allegation of the amount of the costs and expenses, nor what share of the expenses should be paid out of the proceeds of the sale of the N. bonds.

2. SAME-PARTIES.

Unless the persons holding the other certificates be made parties to the litigation, no complete adjudication can be had.

Appeal from special term, New York county.

Action by William S. Carman and another against the Farmers' Loan & Trust Company to recover money. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT, JJ.

Turner, McClure & Rolston, (H. B. Turner, of counsel,) for appellant.

Isaac N. Miller, for respondents.

VAN BRUNT, P. J. In coming to a conclusion as to the correctness of the judgment rendered upon the demurrer, it will be necessary to bear in mind the peculiar allegations of the complaint, which may be briefly stated as follows: That prior to and on the 2d day of July, 1880, one Edward Crane was the holder of certain stock of the New York, Boston, Albany & Schenectady Railroad Company, and of the New York & New England Railroad Company, and of certain first mortgage bonds of the Connecticut Western Railroad Company, and of the Lebanon Springs Railroad Company, and was the owner and holder of 235 shares of the capital stock of the New York & New England Railroad Company, and that, at the time aforesaid, said Crane, with one Carpenter and others, owners and holders of bonds and stocks of said railroad companies, united upon a plan to consolidate said railroads, and to that end and purpose a trust deed was executed, appointing the defendant as trustee, in and by which it was recited that the parties of the first part, viz. Carpenter, for himself and his associates, are the owners of certain securities, viz. the first mortgage bonds of the Boston, Hartford & Erie Railroad Company; the stock of the New York & New England Railroad Company; the first mortgage bonds of the Connecticut Western Railroad Company; the stock of the New York, Boston, Albany & Schenectady Railroad Company; and the first mortgage bonds of the Lebanon Springs Railroad Company,-and that, for the purposes of consolidation, said party of the first part agreed to assign and transfer to the party of the second part (the defendant) the various securities owned by them in said companies, to be held, voted upon, and used as in said agreement thereafter provided, and the defendant

agreed to issue to the owners of said securities certificates in lieu thereof, in the form prescribed by said agreement. The agreement then provides for the taking of the steps necessary for the consolidation, and that when the consolidation shall have been effected the defendant shall exchange the various bonds and stocks for stock of the proposed consolidated railroad company, and that in case said consolidation shall not have been effected within three years from the date of the agreement the trust should cease and "degenerate," and the stocks and bonds aforesaid be divided pro rata among the shareholders in the trust upon the presentation of the trust certificates. The complaint further alleges that the defendant entered upon said trust, and received from the parties of the first part to said agreement the bonds and stocks before mentioned for the uses and upon the trusts therein specified, and that among the bonds and stocks so delivered to said defendant were the said 235 shares of the capital stock of the New York & New England Railroad Company, the same being the property of said Crane; that thereafter the defendant issued certificates for said bonds and stocks thus received, in the form and in accordance with the provisions of said deed of trust, and included therein were certificates issued to Crane for said 235 shares of New York & New England stock; and that said Crane duly assigned and transferred said certificates to the New Jersey Construction Company. The complaint further alleged that, such project of consolidation having failed, an action was commenced in this court in December, 1889, by the New Jersey Construction Company against the Farmers' Loan & Trust Company and others, to terminate the trust, and such proceedings were thereupon had that a judgment was recovered and entered, "terminating the said trust, and directing the defendant, the Farmers' Loan & Trust Company, to deliver certain bonds and stocks, in said judgment specified, to the parties therein named, and among other things to sell at public sale the first mortgage bonds of the Connecticut Railroad Company, and the said shares of the New York & New England Railroad Company, delivered to the said defendants in trust as aforesaid, to create a fund for the costs and expenses of the action, and the surplus, after paying such costs, was thereby directed to be distributed among the actual holders of the trust certificates issued therefor as aforesaid," and that a sale was had under said decree, and sufficient was realized from the sale of the said Connecticut Western Railroad first mortgage bonds, and of the stock of said New York & New England Railroad Company, to pay in full the costs and expenses of the action, and that all said costs and expenses were thereby fully paid, and that the market value of the stock of said New York & New England Railroad Company was at the time of said sale 453 per cent., for which sum per share said 235 shares of stock of said railroad company were on said day sold at said sale. The complaint further alleged that the plaintiffs were the holders of the trust certificates above set forth, issued in exchange for said 235 shares of said capital stock, and that they

were the owners of all the rights, interests, claims, and demands of said Crane and the New Jersey Construction Company, and that by reason of the premises the defendant is indebted to the plaintiffs for their interest in the value of said 235 shares of stock of said New York & New England Railroad Company, as originally intrusted to it, namely, the sum of $10,780.63, and that the plaintiffs demanded of the defendant payment of said sum, and duly tendered said certificates, and the defendant refused and still refuses to pay the same, wherefore the plaintiffs demanded judgment for the sum of $14,000, with interest and costs.

The theory upon which this complaint is based seems to be that the plaintiffs in this action were adjudged entitled to receive the proceeds of the sale of said 235 shares of stock, which it is alleged that Crane deposited under this trust agreement. Upon an examination of the complaint, however, it will be seen that the allegations do not bear out any such construction. Whatever were the rights of the parties who deposited these stocks and bonds, they were fixed by the adjudication, in respect to all the parties thereto, in the action brought by the New Jersey Construction Company, which was then the holder of the certificates, against the defendant, the Farmers' Loan & Trust Company, for the termination of the trust. As already seen, by that judgment certain stocks and bonds were to be returned to certain parties specified in said judgment, and certain first mortgage bonds of the Connecticut Western Railroad Company (deposited by whom the complaint does not allege) and the said shares of the New York & New England Railroad Company, viz. those deposited by Crane, were to be sold to create a fund for the costs and expenses of the action, and the surplus after paying such costs was to be divided among the actual holders of the trust certificates issued therefor as aforesaid. Now, it nowhere appears in this complaint as to who deposited the first mortgage bonds of the Connecticut Western Railroad Company, or to whom certificates for such deposit were issued. The complaint alleges that a sale took place of the bonds. of the Connecticut Western Railroad Company and the stock of the New York & New England Railroad Company, and that from such sale sufficient was realized to pay in full all costs and expenses, and that all said costs and expenses were thereby, and are, fully paid. It therefore appears that the proceeds of the sale of the first mortgage bonds of the Connecticut Western Railroad Company and of the shares of the New York & New England Railroad Company were to form the fund from which these expenses were to be paid, and that after these expenses were paid the surplus was to be divided among the holders of the trust certificates issued therefor. Now, the plaintiffs in this action have nowhere shown what part of these expenses were properly chargeable against the 235 shares of the New York & New England stock. It certainly is not the purport of that decree that the bonds of the Connecticut Western Railroad Company shall bear all of such expenses. But the costs and expenses were to be deducted out of the proceeds of both

classes of securities, and the surplus to be distributed pro rata among the holders of the certificates issued upon the surrender of those particular securities. It is apparent that the plaintiffs are only the holders of the certificates issued for the 235 shares of New York & New England stock, and that there are other persons interested in this litigation, namely, the holders of the certificates issued for the bonds of the Connecticut Western Railroad Company, who are necessary to a complete determination of the amount which the trust company, as trustee, is bound to pay. And, furthermore, there is no allegation showing the amount of these costs and expenses, and what amount was chargeable to the proceeds of the bonds of the Connecticut Western Railroad Company, and what amount to the stock of the New York & New England Railroad Company. Without these facts before the court no judgment could possibly be given, and without the parties representing the certificates issued upon the surrender of the bonds of the Connecticut Western Railroad Company no complete adjudication can be made. There seems to be some question whether the action can be maintained at all, and whether application should not have been made at the foot of the decree entered in the action in pursuance of which the securities were sold. But this question it is not necessary now to determine. The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with leave to amend upon payment of the costs of the appeal and in the court below. All concur.

(70 Hun, 181.)

FOX v. MAYOR, ETC., OF CITY OF NEW YORK et al. (Supreme Court, General Term, First Department. June 30, 1893.)

1. CARRIERS OF PASSENGERS-NEGLIGENCE-SPACE BETWEEN CAR AND STATION PLATFORM.

In an action for injuries received by failing through an open space, variously stated to be from 11% to 20 inches, between the station platform on Brocklyn bridge and defendants' car, on which plaintiff was a passenger, it appeared that the platform was built on a curve, so that necessarily the ends of the car were further therefrom than the center, and that thousands of passengers had gotten on and off the cars at that place during several years preceding without any such accident occurring. Held, that defendants were not guilty of negligence on account of the space between the car and platform.

2. SAME-INSTRUCTION.

Where, in such action, plaintiff claims that the platform was not properly lighted, it is error to refuse to charge that, if the platform was lighted with electric lights at the time, as testified by defendants' witnesses, the verdict must be for defendants.

Appeal from circuit court, New York county.

Action by Maggie Fox against the mayor, aldermen, and commonalty of the city of New York, and the city of Brooklyn, for personal injuries received while alighting from a car on which plaintiff was a passenger across the Brooklyn bridge, and caused by defendants' negligence. From a judgment entered on the verdict of a jury in

favor of plaintiff, and from an order denying their motion for a new trial, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

T. Connoly, for appellants.

J. D. Bell, for respondent.

VAN BRUNT, P. J. This action was brought to recover damages for injuries alleged to be sustained by the plaintiff upon alighting from one of the cars running over the Brooklyn bridge. It appears from the evidence that the plaintiff was a passenger upon the cars of the bridge upon the 24th of January, 1890, having boarded the cars about half past 6 in the afternoon; and, as she was about to step off the car on its arrival and stoppage at Brooklyn, she received a shove, and fell into the open space between the car and platform, and was thereby injured. Evidence tending to show that the platform was improperly lighted was given upon the part of the plaintiff, and it was also claimed that the opening between the platform of the car and the bridge was of an improper and dangerous width. It was shown that the bridge opposite to the platform of the car where the car stopped was on a curve, and that necessarily the center of the car was much nearer to the platform than the two ends. It further appears that for a considerable period of time the plaintiff had been accustomed to cross the bridge daily; but it was claimed by the plaintiff that upon previous occasions she had gotten off the middle of the car which was necessarily nearer the platform than the end from which she alighted at the time of the happening of the accident in question. Evidence in reference to the distance from the ends of the car to the platform was conflicting, and also as to the condition of the lights, the tes timony upon the part of the plaintiff being that the ends of the car were from 18 to 20 inches from the platform, and the middle from 4 to seven inches, whereas upon the part of the defendants the evidence was to the effect that the ends were within 113 inches of the platform and the center within 1 inch thereof. With respect to the lighting, also, the evidence of the plaintiff was that it was dark, so that you could not see on getting off the cars, and upon the part of the defendants that the platform was brilliantly illuminated by electric lights. The defendants showed that a large number of persons had both boarded and alighted from the cars, and that, under the conditions existing at the time of the happening of the accident, no one had ever been injured from a similar cause. The court thereupon submitted the question of the liability of the defendants to the jury, who found a verdict in favor of the plaintiff, and denied a motion for a new trial, and from the order and judg ment thereupon entered this appeal is taken.

It has not been considered necessary in the foregoing statement of facts to enter into an examination of the details of the testimony, but simply to present the salient features which bring up