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made up of the three burial grounds, and made steps from the Palmer inclosure to the lane. In 1874 the plaintiff acquired her title to the plot in question, and on the same day she conveyed her interest in the defendant's farm, and neither deed reserved or gave any right of way to the plot. Under this state of these existing facts, there was no right of way of necessity resulting to plaintiff and her sister. It was intended that the burials should be made in the plot through the lane over the stone steps, or through the Bloomer & Haight lots direct from the lane. This lane is public. It is idle to doubt the fact. It has been open and used for nearly a century to go to a public burial ground. The right of way over the Bloomer piece is not disputed by any one. The plaintiff has a right in the Palmer plot, and must approach the land in question through it, there being no connection with the defendant's land otherwise. There are no grounds upon which a right of way of necessity can be based. The land can be reached through and by a public highway, and the piece of land was bought and sold with that local understanding. The deed of the defendant's plot was conveyed with a right of way to it through the lane, and this small piece of plaintiff's was but an addition to this plot, in respect to burials. The way of necessity is extinguished. Some five or six years ago the defendant threw a portion of his land into the lane opposite the south end of the Palmer lot, which enabled persons to pass to the Palmer lot without going over private property of defendant. The widening of the lane gave access sufficient for burial purposes, but without width for wagons to pass. The burials have always been made in the old burial ground by steps from the lane. When the lane was widened so as to permit access direct from the lane to the Palmer lot, the way was shorter to defendant's lot, and more convenient. This extinguished a right of access over defendant's farm, if one existed. Holmes v. Goring, 2 Bing. 76; Holmes v. Seely, 19 Wend. 507. The judgment should be affirmed, with costs.
OLMSTEAD V. TOWN OF POUND RIDGE.
(Supreme Court, General Term, Second Department. July 28, 1893.) 1. DEFECTIVE BRIDGE-NOTICE OF INJURY-AVERMENT ÎN COMPLAINT.
A complaint in an action against a town, for injuries Clused by de fendant's negligence in failing to keep a bridge in repair, must aver that the claim was served on the supervisors of the town within 6 months after the cause of action accrued, and that 15 days elapsed after the claim was so presented before the action was commenced, as required by Laws
1890, c. 568, $ 16. 2. SAME-TIME OF RAISING OBJECTION.
Objection to the complaint, for failure to show that such notice was given, may be raised at any stage of the action.
Appeal from circuit court, Westchester county.
Action by Charles 0. Olmstead against the town of Pound Ridge to recover damages for injuries to plaintiff's horse, caused
by defendant's negligence in failing to keep a bridge in repair. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
On the argument, plaintiff contended that the statute referred to in the opinion is in conflict with article 8, § 3, of the constitution of New York, which provides that all corporations shall have the right to sue, "and shall be subject to be sued, in all courts, in like cases as natural persons," and with section 1, art. 14, of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. He also contended that the limitation of such statute is unreasonably short, and therefore void.
Argued before BARNARD, P. J., and PRATT, J.
BARNARD, P. J. The complaint is framed to recover damages for a neglect to keep a highway in the town of Pound Ridge in proper repair by the commissioners of highways of the town. The accident is alleged to have occurred by the neglect of the commissioners, and without any neglect upon plaintiff's part, on the 25th of March, 1892. The complaint contains no averment that the claim was served upon the supervisor of the town within 6 months after the cause of action accrued, nor that 15 days had elapsed after the claim was so presented before the action was commenced, according to the requirement of section 16, c. 568, Laws 1890. The complaint was dismissed for this defect at the opening of the trial. The law in question simply imposed a condition which affected the remedy, and is subject to no objection. Morse v. Goold, 11 N. Y. 281; In re Palmer, 40 N. Y. 561. It was necessary to aver the performance of the conditions precedent in the complaint. This defect in the complaint can be raised at any stage of the action. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792. The judgment should be affirmed, with costs.
MCNEIL V. NEW YORK, L. E. & W. R. CO. (Supreme Court, General Term, Second Department. July 28, 1893.) MASTER AND SERVANT- ASSUMPTION OF RISK.
A brakeman who has been more than a year in the employ of a rall. road company assumes the risk incident to the fact that some of the guard rails in the company's switch yards are not blocked, so as to prevent an employe's foot from being caught between the guard rail and the main rail; and the company is not liable for his death, caused by failure to block such guard rails. Appel v. Railroad Co., 19 N. E. Rep. 93, 111 N. Y. 550, followed. Appeal from circuit court, Orange county.
Action by James McNeil, as administrator of the estate of Arthur McNeil, deceased, against the New York, Lake Erie & Western Railroad Company, to recover damages for the death of plaintiff's intestate, caused by defendant's negligence while he was in its
employ as a brakeman, in which position he had been engaged more than a year. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
John W. Lyon, for appellant.
BARNARD, P. J. Arthur McNeil, on the 2d of December, 1888, was killed by being run over by the moving cars of defendant. The deceased was a brakeman in the employ of defendant, and the accident to him happened while he was engaged in switching cars. The deceased stepped between moving cars to disconnect them, and his foot was caught between th guard rail and the main rail. The negligence claimed on the part of defendant is that the company did not block the guard rail, which is done by placing in the open space between the two rails something which would prevent the foot of an employe from being caught between the two rails. The rule is that an employe assumes the risk of the employment. Kern v. Refining Co., 125 N. Y, 50, 25 N. E. Rep. 1071; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573. The master is not bound to furnish the best kind of appliances, or to give an extreme character to the structure, so as to insure safety. The measure of duty is reasonable care. The evidence tended to show that some guard rails were blocked, and some not. The case cannot be distinguished from the case of Appel v. Railroad Co., lt1 N. Y. 550, 19 N. E. Rep. 93. The nonsuit was therefore right, and the judgment should be affirmed, with costs. All concur.
HORTON v. BARNES et al.
(Supreme Court, General Term, Second Department. July 28, 1893.)
DISCOVERY-EXAMINATION BEFORE TRIAL-SUFFICIENCY OF MOVING AFFIDAVIT.
Where an order for the examination of one of defendants before trial is based on the complaint and answer, as well as on the affidavit of plaintiff's attorney, and every allegation in the affidavit made on information and belief is contained in the complaint, such order will not be set aside on the ground that “the sources of affiant's information are not disclosed," or that the allegations in the affidavit “as to plaintiff's intentions and allegations are not corroborated by plaintiff.”
Appeal from special term, Kings county.
Action by Isabella Horton against William Barnes and William Wainwright to recover damages for personal injuries sustained while lawfully using a certain apparatus kept by defendants for the amusement of the public, known as a “Razzle Dazzle,” and caused by defendants' negligence. From an order denying their motion to set aside an order for the examination of defendant Wainwright before trial, defendants appeal. Affirmed.
Plaintiff filed a verified complaint, in paragraph 2 of which she alleges that, as she is informed and believes, at the time of her injury, defendants were the owners or lessees of a certain apparatus for the use and amusement of the public, commonly known as a "Razzle Dazzle," and that they had possession, control, and management of such apparatus. Defendants filed a verified answer, in which the allegations of paragraph 2 of the complaint are denied. Afterwards, plaintiff moved for the examination of defendant Wainwright before trial, the moving affidavit being made by her attorney. After reciting the nature of the action, and the substance of the allegations of the complaint and answer, the affidavit states that deponent further says that the testimony of defendant Wainwright is material and necessary to prove what interest or control of such razzle dazzle defendant had at the time of the injuries aforesaid, and deponent deems it material and necessary to examine defendant Wainwright in advance of the trial of this action, for the purpose of obtaining admissions of said facts in issue, and to dispense with the necessity of procuring witnesses to establish facts which may be ad. mitted by defendant on such examination. Deponent alleges, on informatiou and belief, that all the facts above alleged are within the personal knowledge of defendants, and that it is material and necessary for plaintiff to ascertain what control defendant had of the razzle dazzle mentioned in the complaint; that the testimony of defendant Wainwright is therefore necessary and inaterial to the plaintiff, for use at the trial of this action. Plaintiff desires and intends to use the said testimony at the trial for the purpose of proving that defendants Wainwright and Barnes had possession and control of the razzle dazzle at the time alleged in the complaint, and were the owners thereof.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Raphael J. Moses, Jr., for appellants.
PRATT, J. This is an appeal from an order made at special term, denying defendants' motion to set aside an order for the examination of the defendant Wainwright before trial.
The motion was made on certain grounds particularly specified in defendants' notice of motion. It is unnecessary to refer to but two of them,—the third (that “the sources of the affiant's information are not disclosed”) and the fourth, (that “the allegations as to plaintiff's intentions and allegations are not corroborated by the plaintiff.”) The answer to both of these grounds is that the order for defendant's examination is based on the pleadings, as well as the affidavit of plaintiff's attorney. Every allegation in the affidavit that is alleged on information and belief is contained in the complaint. In our opinion, the papers on which the order was granted were sufficient, and the motion to set aside the order was properly denied. The order appealed from should be affirmed, with costs. All concur.
(71 Ilyen 174.) MEGRUE v. UNITED LIFE & ACC. INS. CO. (Supreme Court, General Term, Second Department. July 28, 1893.) 1. APPEAL_EQUITABLE DEFENSE-JURY TRIAL-OBJECTION NOT MADE BELOW.
An objection that an action on a life insurance policy should not have been tried to a jury because an equitable defense was pleaded comes too late when it is first made on appeal.
2. EQUITABLE ACTION—JURY TRIAL.
The trial judge in an equity case may take the verdict of a jury to id
form his conscience. 3. LIFE INSURANCE-ACTION ON POLICY-EVIDENCE-APPLICATION.
Where, in an action on a life insurance policy, the admissions in the answer and on the trial and the policy make a prima facie case for plaintiff, it is in the discretion of the court whether or not to require plaintiff
to put the application in evidence. 4. SAME-QUESTION FOR JURY.
Where there is evidence in such case to support the contentions of both parties on the vital issues, it is properly submitted to the jury. Appeal from circuit court, Kings county.
Action by Anna Megrue against the United Life Insurance Association, sued as United Life & Accident Insurance Company, on a life insurance policy issued on the life of Conduce G. Megrue, plaintiff's husband. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT,JJ.
PRATT, J. This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a new trial upon the minutes. The action was upon a life insurance policy, and the defense was an affirmative one, based upon allegations that the deceased made false answers in his application for insurance. The issues submitted to the jury were three in number, viz.: (1) Whether the application for insurance was made December 31, 1889, or on January 9, 1890. (2) Was the deceased's answer to question No. 7 in his application a true answer? And (3) did the deceased make a true answer to the question, "Have you ever had any serious illness, local disease, or personal injury?"
It is apparent, and the court so instructed the jury, that, if they found in the affirmative upon the first question,-i. e. that the application was made on December 31, 1889,—there was no occasion to consider the second question, as it was conceded that at that time there had been no refusal by any other company to issue a policy upon any application made by the deceased. Upon the first question there was much evidence taken, and it was of a highly contradictory character. We think, as the matter stood, the court properly submitted the case to the jury, and that their verdict must stand.
The main issue was upon the third question, to wit, the physical condition of the insured at the time the insurance was effected. The defendant assumed the affirmative upon the issue that the deceased falsely answered the question as follows: "Have you ever had any serious illness, local disease, or personal injury?” Upon this issue much evidence was taken, and we cannot say there was any such preponderance of testimony as to require the court to take it away from the jury, and it is entirely clear that