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plaintiff is correct in his construction that his right to costs falls within section 3228, then he is in the position of winning at the special term, by compelling the defendants to pay for the reversal of his former erroneous judgment at the circuit. Sheridan v. Genet, 1 Civil Proc. R. 309, and note; Durant v. Abendroth, (Sup.) 1 N. Y. Supp. 538. See note to Sanders v. Townshend, 11 Abb. N. C. 217. The construction given to a direction by the court of costs to a particular party, as applied to a set-off of costs, is decided adversely to plaintiff in the case of Murphy v. Telegraph Co., (City Ct. N. Y.) 9 N. Y. Supp. 28, under section 779 of the Code of Civil Procedure. It will be seen by the cases cited by the plaintiff that the rule there contended for is one established by the court of appeals as to costs, in reference to the effect of its own decisions, upon a final judgment in that court. Murtha v. Curley, 92 N. Y. 359. But that rule is not applicable where the costs at the special term or the circuit are in the discretion of the (Out. In re Water Com'rs of Amsterdam, 104 N. Y. 677, 10 N. E. Rep. 545, where the case in 92 N. Y. 359, supra, is distin. guished, and the following headnote is given: “The words 'with costs,' in an order of affirmance or reversal in this court, in a case where the allowance of costs is discretionary, means costs in this court only.” The motion for a new taxation before the county clerk of Broome county must therefore be granted, under a proper order, with $10 costs of this motion to the defendai to be de ducted from the judgment and execution in this action.

(71 Hun, 213.) FIERO V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Second Department. July 28, 1893.) RAILROAD CONDUCTORS-FALLING FROM TRAIN-CONTRIBUTORY NEGLIGENCE.

In in action by a conductor of a train against the railroad company for injuries received in falling off the rear of his train while passing through it collecting tickets, the train being at the time in a tunnel, Where from the inside of the rear car the reflection made it appear that there was another car behind, the negligence complained of being defendant's failure to have a chain across the end of the rear platform, a requested charge that, if plaintiff knew there were but three cars in the train, he could not recover, was properly refused, as his mind might have been so occupied with his duties that he could have for the moment forgotten the number of cars, without being guilty of contributory negligence.

Appeal from circuit court, Westchester county.

Action by John Fiero against the New York Central & Hudson River Railroad Company for injuries received by plaintiff while in defendant's employ as a conductor. From a judgment for plaintiff, and an order denying defendant's motion on the minutes for a new trial, defendant appeals. Affirmed.

Plaintiff had been an employe of defendant for 18 years, and had been a conductor on its through trains which ran along the central portion of the Fourth avenue tunnel in New York city, and on these trains he had not been obliged to take up or punch tickets while in the tunnel. A week prior to his injury he had been assigned to a local train which ran through the side tunnels. On these trains he was obliged to take up and punch tickets while the train was in the tunnel. In these side tunnels, especially on damp days, the reflection from the lights in the cars made it appear from the inside of the rear car as if there was still another car in the rear, and, when passing over the platform from one car to another, it was, owing to the darkness, smoke, and cinders, impossible to see. Plaintiff claimed to be ignorant of this reflection, and that defendant had notice of it. Plaintiff fell from the rear of the train while passing back, thinking there was a car in the rear. It was claimed that defendant was negligent in failing to have a chain across the end of the rear platform.

Argued before BARNARD, P. J., and PRATT, J.
Frank Loomis, (D. W. Tears, of counsel,) for appellant.
William P. Fiero, for respondent.

PRATT, J. The charge of the court correctly stated the re. spective duties due to each other from the plaintiff and defendant. Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did not take that course, but received the requests, and restated the law in defendant's favor, so far as could be done consistently with the law. The objection to the charge most strenuously urged was to the request to charge that, if plaintiff knew there were but three cars in the train, he could not re cover. We think that request was properly refused. The plain tiff might know that fact, and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment, without being guilty of negligence that would bar his recovery. The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well-known fact, when fully occupied with pressing duties.

Judgment affirmed, with costs.


(Supreme Court, General Term, Second Department. July 28, 1893.) WATER RENTS-TAXES—NOTICE.

Laws 1873, c. 36, incorporating the board of water commissioners of Yonkers, directs the board to establish a scale of rents called "water rents,” and authorizes it to cut off the supply of water of any one not paying the rents. Held, that the rents are not a tax, entitling one to no tice as of the levying of a tax on land. Appeal from special term, Westchester county.

Action by Theodore H. Silkman to enjoin the board of water commissioners of the city of Yonkers from cutting off the supply of water furnished by defendant to plaintiff's premises, for failure of plaintiff to pay a water rent, and to recover certain amounts paid by plaintiff. Judgment for defendant. Plaintiff appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Rudd & Hunt, (William P. Fiero, of counsel,) for appellant.
Joseph F. Daly, for respondent.

BARNARD, P. J. The water rates are not taxes. The act under which the defendant was incorporated (chapter 36, Laws 1873) directs the commissioners to establish a scale of rents pay. able in advance or upon a stated term of credit, to be called “water rents." The board was authorized to cut off the supply of water if these rents were not paid. There is no basis for terming these water rents a “tax." Provident Inst. for Saving v. Jersey City, 113 U. S. 506, 5 Sup. Ct. Rep. 612; Treadwell v. Van Schaick, 30 Barb. 444. The commissioners did fix the rates, and it was supplied and paid for, but under a protest on account of his receiving no notice of the levying of a tax on the land. There is no lien on the land for water furnished and not paid for. There will be a tax on land for a deficiency to meet the purpose of the act, and, when this tax is laid, it will be upon notice. The judgment should be affirmed, with costs. All concur.


In re CITY OF BROOKLYN. (Supreme Court, Special Term, Kings County. April, 1893.) 1. WATER COMPANIES-ExcLUSIVE FRANCHISE.

Laws 1873, c. 737, provides that, whenever a certain number of persons propose to form a company for the purpose of furnishing a town or village with water, they shall present to certain officers of the town or vil. lage an application containing a request that they consider the application to supply said town or village, or the inhabitants thereof, with water, and that, if such officers grant the application, the persons named therein may proceed to organize the company. Held, every company organized under such statute sts by virtue of a contract with the town or village, and has an exclusive franchise, for which compensation must

be made if it is condemned for public uses. 2. ANNEXATION OF Town-EFFECT ON EXISTING CONTRACTS.

The rights of such water company are not affected by the fact that the town to which it supplies water is annexed to an adjoining city.

Proceeding by the city of Brooklyn, under Laws 1892, c. 481, to condemn the property and franchises of the Long Island Water Supply Company, organized in the town of New Lots, which town was afterwards annexed to the city of Brooklyn by Laws 1886, c. 335. The commissioners to whom the question of compensation was referred reported in favor of the water company for $570,000. The city of Brooklyn moves to confirm the report. Denied.

George G. Reynolds and Albert G. McDonald, for the city of Brooklyn.

William C. DeWitt and Thomas E. Pearsall, for the Long Island Water Supply Co.

PRATT, J. As now presented, this case involves simply a cold question of law. Were the rights of this water company to compensation for its franchises and contract with the town of New Lots mere gratuities, revocable or otherwise destructible at the will of the legislature or the pleasure of the town authorities? Or did they constitute permanent property, which, like any other property, was beyond legislative control except on the fundamental conditions that it must be fairly appraised and paid for before it can be appropriated to municipal use? The majority of the commissioners have reported that, in their opinion, the company's franchise and contract did not give it any exclusive rights to purvey water in the town; that the provisions of the annexation act requiring compensation before the city could extend its mains into this territory did not alter the character of the company's rights, and, because of the assumed power of the legislature to repeal the material provisions of that act, they certify that they have awarded a materially less sum for those rights than they would have awarded if they had believed they were exclusive and permanent during the remainder of the term of the company's franchise. The court, under the act of 1892, has nothing to do with fixing the value of these rights. It must affirm the award if satisfied that it has been made upon correct principles, or set it aside if error is apparent therein; hence the award must be set aside if these rights were exclusive and permanent, because on that hypothesis the valuation is materially inadequate.

Let us note a few points leading up to the main inquiry; they may enable us to present the question more sharply. The function of supplying water in a town, village, or city is not a public function. It is purely a private matter of business. A municipality is not bound, at common law, to furnish water, any more than to supply milk, for its inhabitants. Its power to furnish water is derived wholly by act of the legislature. Even when the power is thus given, its real character is not changed. It still remains a mere private business function. The distinction between the political or governmental functions of a town or city and those which it obtains by its own solicitation is broad and clear,—too clear to excuse debate. It opens streets, establishes police, and attends to education and public health and matters of public concern. In these respects it represents the state, and exercises acts of sovereignty. But when it manages market places, wharves, or piers, and derives an income therefrom, it acts wholly in a private capacity. City of Petersburg v. Applegarth, 28 Grat. 321. The powers of the city to furnish water to its inhabitants or for its own use are therefore of no higher order, nor are they entitled to any greater consideration, than those of this water company; nor are they to be encouraged in any respect because they will be of greater benefit to the consumer. Both are bound to furnish water at the same rates. Hence the question before us is stripped bare of any ideas of benefaction to anybody. It is simply a question whether the city or this company shall enjoy

the business profit of conducting this water business in this territory. It seeks to appropriate the water company's rights simply because it wants them. It has been assumed, erroneously, as i think, that, but for the prohibition of the annexation act, the city might extend its own mains into this territory, and compete in water business with this company, simply because it is now within the city limits, and has general authority, under other laws, to extend those mains generally throughout the city. I think it will aid us if we consider the question upon just this hypothesis, viz. that the annexation act contained no such prohibition. Could the city, in view of this water company's franchises and contracts, lawfully enter this territory, and set up a rival water business, if no prohibitory provisions were found in the annexation act? In my opinion it could not lawfully have done so, and could and ought to have been restrained from any such attempt by injunction. This conclusion is sustained by common sense and plain business, as well as legal considerations, which would prevail if the same question had arisen between individuals. We may note, in the first place, that, as to this territory, the city is the mere suc('essor of this town. It has paid nothing for the acquisition, and, even if it had, the existence of this water company and its contract with the town were matters of which the city had full notice and knowledge at that time. Hence, upon plain business rules, it has no greater rights than the town had against this company. What, then, were the reciprocal obligations between the company and the town? The answer to this question involves a brief statement of the history of this company. As we proceed, let us keep our eye upon this point,-that the company is simply an artificial person existing only under the act of this town, to the end that by means thereof the town might induce individuals to furnish money with which to build and establish waterworks in the town, for its benefit and that of its inhabitants, as an ordinary business enterprise, for the sake of the business profit to be derived therefrom. As already observed, the town had no power to build waterworks and engage in the business of purveying water. It and its inhabitants dwelling in certain localities needed modern water facilities. Under the general act of 1873 (chapter 737) each town and village in the state was authorized to establish a water company, and then to make a contract with the company thus created. The modus operandi was thåt not less than a certain number of individuals should sign a paper proposing to organize such a company, which should state the amount of the proposed capital, the proposed term of corporate existence, the proposed source of water supply, etc. This paper was to be submitted to certain officers of the town, viz. the supervisor, the town clerk, three justices of the peace, and the commissioners of high ways. The paper was to contain a request that the said town or village authorities shall consider the application of said company “to supply said town or village of this state, or the inhabitants thereof, with pure and wholesome water." Observe it was not to supply

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