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not be profitable at this time to inquire into. The Albany Law Journal.
Certain it is that the estimate of the work of the commission during the ten years of its
existence entertained generally by the proA Weekly Record of the Law and the Lawyers: Published by fession, as attested by the action of State and Contributions. items of news about couris; judges and lawyers' city bar organizations, is not such as to warqueries or comments, criticisms on various law questions addresses on legal topics, or discussions on questions of timely interest are solicited from members of the war and those inter
rant any great degree of confidence in the ested in legal proceedings.
value of its future labors, or to give strength
to any movement toward its indefinite con(All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.
tinuance. The New York City Bar AssoAll lettere relating to advertisements, subecriptions, or other business matters, should be addressed to THE ALBANY LAW
ciation has recently sent out a summary of JOURNAL COMPANY.)
the work of the commission, from which it Sabecription price, Five Dollars per annum in advance. Single
that while they have caused many
appears aumber Twenty-Five Con 18.
general acts to be passed, in the ten years of
their official existence, the work has been so ALBANY, MARCH 24, 1900.
carelessly or incompetently performed that the legislature has been obliged to pass no
less than 687 acts in amendment and correcCurrent Topics.
tion of the general laws; that last year these
amendatory acts comprised 21 per cent. of SUBJECT which is greatly interesting all the laws passed that year, and 63 per cent.
the legal profession throughout the of the entire legislation of 1899, including State at present is that of the continuance of private and local laws and code amendments. the State Statutory Revision Commission. Elsewhere in this issue of the Law JOURNAL In line with the action of bar associations in will be found expressions by New York the city of New York, the metropolitan papers which throw additional light upon papers have taken up the subject and are
this matter, which is of vital interest and imstrongly urging the governor to follow up portance to every lawyer in the State. the recommendation contained in his annual
Since the above was written, committees message to the legislature that the commis- from the New York City Bar Association sion be forthwith abolished. The bar asso
and the State Bar Association have apciation of the State also, through committees peared before the Assembly Judiciary Comappointed for that purpose, is making active mittee, in support of Assemblyman Weekes' efforts in the same direction. There appears bill to abolish the commission forth with. to be ample ground for the criticism made Among the speakers were Judge Howland, by Mr. Clarence F. Birdseye, in his interview Messrs. Brainerd, Row, Young and Curtis, with a New York Herald reporter, that the members of the commission, although draw of the bar association committees, Hon. J. ing ample salaries, have trusted altogether Newton Fiero, of Albany, representing the too much to their understudies, who have State Bar Association, and Mr. Clarence F.
. But while in: not only usurped the duties and responsibili- Birdseye, of New York. ties of the commissioners themselves, but veighing against the statutory revision have also found time to turn out a lot of commission and its work all the speakers more or less valuable work for law publish- favored a new commission and suggested ers in Albany and elsewhere. To what ex
the appointment on such new commission tent the work of the commission might have of Hon. Charles Andrews, formerly chief been improved had the members of the com- judge of the Court of Appeals, Hon. Robert mission given the important work entrusted Earl, of Herkimer, and Hon. Francis M. to them their whole personal attention, in- Finch, of Ithaca, also former judge of the stead of entrusting it to too ambitious subor- Court of Appeals, as a commission that dinates, is a question which perhaps it will I would revise and classify the laws of the
VOL. 61 - No. 12.
State in a manner thoroughly satisfactory by common-law evidence the liability of that to the lawyers of the State. Judge How citizen. While we should keep control of land suggested that the Hon. Charles Z. the subject, so as to see that no discriminaLincoln be made by law, not by practice, tion is practiced against our citizens, or inthe legal adviser to the governor at a justice done them either as to the substance salary of $5,000 a year, and that the pro- of the liability or the method of procedure, posed new commissioners be also paid when the same result is attained in practi$5,000 a year.
cally the same way as, under similar circumstances, would be attained in the case of a
domestic corporation, there is no reason for The New York Court of Appeals, in withholding that aid which is now afforded Leonard Howarth, as Receiver of the Trad- by the courts of almost all enlightened ers' Bank of Tacoma, Respondent, v. Charles countries.” E. Angle, Appellant, decided February 27, 1900, held that an action may be maintained in the courts of this State by the receiver of A very interesting question as to the effect an insolvent bank of another State against of the death of a candidate for public office a stockholder residing here, to recover of for whom a majority or plurality of votes him his equal and ratable proportion of the was cast at the election, on the day of elecdebts of the bank, under a liability imposed tion and before the polls are closed was reby a statute of the foreign State, where it cently decided by the Supreme Court of appears that the deficiency and defendant's Ohio. The question arose, whether, under proportion thereof had been judicially deter- such circumstances, the candidate for the mined in the foreign State and also here, and same office receiving the next highest numwhere the provisions of the foreign statute ber of votes would not have acquired the fixing the liability work no injustice to him right to be inducted into the said office. The and are not contrary to the policy of this case was entitled, The State of Ohio ex rel. State. Judge Vann wrote the opinion, The Attorney-General against Henry C. which is remarkable for its clearness and Speidel and William R. Walker. The office sound reasoning. In concluding he said: in question was that of sheriff of Clermont “When an action by a foreign receiver to county. E. W. Buvinger, who was sheriff collect assets, under the authority of the up to last November and a candidate for recourt which appointed him, works no detri- election, died one hour and forty-five minutes ment to any citizen of this State, and is not before the polls closed. J. B. Cover, the repugnant to its policy, it would be a pro- Republican candidate, asked the board of vincial and narrow view for our courts to canvassers to issue him a certificate, as it was refuse to extend the usual State comity. claimed that having received the next highThere is a close business connection between est number of votes he was entitled to the the citizens of the different States of the office. The board refused, and on NovemUnion. Investments are freely made in ber 9 the county commissioners appointed other States by the citizens of this State, who Walker to fill the unexpired term. When the need the aid of the courts of the jurisdiction term for which Buvinger had been serving where the investments are made. The had expired the commissioners appointed comity which we expect to have extended to Speidel for the full term of two years, begincitizens of our State, we cannot, in justice, ning on the first Monday in January, 1900. refuse to citizens of other States. State lines Walker refused to
State lines Walker refused to vacate, and Cover's should not prevent justice from being done. friends instituted a proceeding in quo warnus courts should not close their doors to a ranto to oust them both. The Supreme receiver from another State, who comes here, Court ousts Speidel and seats Walker, upon armed with the title to a just claim against a the theory that no vacancy existed or could citizen of this State, and offers to establish exist until Buvinger's term should have expired and that Walker's successor must be the state of war. And there seems to have elected at the next general election.
been no attempt to apply a similar proclamation to the Cape Colony or Natal.”
In view of the fact that Sir Alfred Milner
We desire to call the attention of the memrecently issued a proclamation announcing bers of the profession to a communication that within southern Rhodesia the military published elsewhere in this issue, with referauthorities were authorized to impress ence to the bill now pending before Conwagons, horses, mules, oxen, gear, provi- gress, to provide for the further distribution sions, forage and other necessaries, to be of the reports of the Supreme Court. Our paid for at a fair value by drafts upon the correspondent not only gives some timely British South Africa Company, or if objected information as to the nature of this peculiar to by the owner, the question of value to be bill, but adds some interesting suggestions settled by arbitration, an English contempo- as to the publication of these reports which rary expresses doubts whether English or
seem to us worthy of careful attention on the Roman-Dutch law has been applied to Rho- part of Congress and the legal profession. desia. It points out the fact that at common law the crown, under the name of “purvey
Notes of Cases. ence," possessed the right to impress vehicles and horses for the transportation of Carriers — Injury to Passengers. - In Bullock troops. It is added:
It is added: “But this right was v. Houston, E. & W. T. R’y, decided by the Court abolished in 1660, and the powers for this of Civil Appeals of Texas in January, 1900, it was purpose have since that date been statutory, boarded another, at a meeting point, to converse
held that where a passenger left her train and and have depended on the annual Mutiny with another person, she cannot recover for inActs until 1881, since when they have rested juries sustained through negligence of the comon the Army Act and its annual renewals. pany while she was leaving the latter train, in the Section 115 of the Army Act permits her absence of proof that the employes operating such majesty by order in a case of emergency to
latter train knew of her presence, and that it was authorize any field officer in command in the train upon which she was actually a passenger
only temporary, although the conductor of the United Kingdom to issue a requisition of consented to her boarding the other train. The emergency requiring justices in the United court said in part: Kingdom to issue warrants for the impress
In this case the court directed a verdict for the
defendant. ment of transport. Differences as to the
The testimony shows, on behalf of
plaintiff, that she, in company with her brotherprice to be paid are settled by a county court
a passenger on defendant's soundjudge in the United Kingdom. These pro- bound train from Nacogdoches to Houston. After visions extend to the United Kingdom, but midnight her train arrived at Fant Station about not to the Channel Islands or the Isle of fifteen minutes before the other. In order to see Man. By section 177 of the Army Act the her sister, who was to be on the north-bound train
that night. Whitehead, the conductor of her train, provisions of that act may be applied to a
an obliging officer, escorted her and her brothercolony, so far as the local law is silent, in in-law to the engine, which she was allowed to cases where any local force is serving with board to keep warm, it being a cold night, until part of the regular forces of the crown, sub- the other train arrived. When it did arrive, she ject to modifications made by the general the baggage car by her brother-in-law, and she
was helped to the platform of the coach next to officer commanding. But it is by no means
and her brother-in-law went through that coach, clear that this provision is intended to do and, not seeing the sister as expected, returned to more than bring local levies under discipline, the platform, and while there, in the act of getting or to create a liability to impressment on the off, the train was moved with a sudden and severe part of the civil proclamation. And prob- , jolt
. and she was thrown off, and suffered a severe
sprain of the ankle. They were not on the train ably the explanation of the high commis
any longer than to pass through it and return to sioner's proclamation will be found in some the platform. For this injury the action was Rhodesian ordinance or in the necessities of : brought.
The testimony claimed to exist, as showing that to discuss in this case. It was, at all events, inthe conductor of the north-bound train (Conelly) cumbent on plaintiff here to show that the conknew she was on the train for the temporary pur- ductor or some employe engaged in the operation pose for which she was there, will be adverted to of the north-bound train knew, not only that she hereafter. The propositions of appellant are that was upon the train, but that she was there templaintiff was a passenger on defendant's train, and porarily, and expected to alight. That the conthat she was a licensee on defendant's train, and ductor of her train knew this was not sufficient. It was injured through the failure of defendant to was essential to plaintiff's case that she prove that exercise proper care for her safety. Plaintiff was some employe of the train upon which she was a passenger on the train upon which she was trav- hurt knew, before her injury, that she had boarded eling, and remained such so long as she did not it, intending not to travel therein, but to see her assume a relation or position inconsistent with that sister, and then alight. No case of intentional or relation. It has been held that a passenger m^" wanton injury upon her was shown, and this is not alight at an intermediate station for a temporary claimed. purpose of business, exercise, or curiosity, without losing his status as a passenger (Railway Co. v. ACCIDENT AT RAILROAD CROSSING. Overfeld (Tex. Civ. App.), 47 S. W. 684). A per
NEGLIGENCE EVIDENCE MASTER AND SERVson remains a passenger while going from one
ANT — DANGER SIGNALS. train to another in the prosecution of his journey. But here the plaintiff left her train altogether, and
NEW YORK COURT OF APPEALS. went upon another for a purpose that had no connection with her journey, and inconsistent with the
Decided February 27, 1900. relation of passenger which she sustained to de- JOHN J. Lewis, an Infant, by JEANETTE L. LEWIS, fendant. Certainly she could not be regarded as a his Guardian ad litem, Respondent, v. THE passenger of the north-bound train, and while she Long Island RAILROAD, Appellant. was upon said train she had for the time being The failure of a locomotive engineer, when sudceased to be a passenger on her own. The fact denly confronted with an emergency, to use that her conductor accompanied her and consented the best possible judgment to bring his engine to her act in boarding the north-bound train can- to a stop, does not establish lack of care or not be treated as the act of the company; for the skill on his part which will render the comuncontradicted testimony is that his authority was
It is, therefore, error for the limited to the conduct and operation of his own court to charge in such a case that if the engitrain, and this, we may say, was the extent of his neer omitted any act which might have preostensible authority (Railway Co. v. Cooper, 88 vented the collision the company is guilty of Tex. 607, 32 S. W. 517; Railway Co. v. Anderson, negligence. 82 Tex. 520, 17 S. W. 139; Railroad Co. v. Carper. A driver approaching a railroad crossing is not 112 Ind. 26, 13 N. E. 122, and 14 N. E. 352; Shear required, as matter of law, to stop before at& R. Neg., sec. 148). It is and was evident that, in tempting to cross the track, but his omission accompanying her to the other train and placing to do so is a fact for the consideration of the her upon it, he was not serving the defendant, and, jury. no special authority being shown, it cannot be The fact that a railroad company omitted to maintreated as the act of defendant.
tain a signboard, as required by section 33 of Not being a passenger when hurt, no duty de- the Railroad Law, over the highway at its volved upon defendant's servants operating the crossing, is admissible upon the question of its train she was on, in the absence of notice to them negligence. Such omission may constitute of her presence and temporary purpose there, ex- actionable negligence when injury is shown to cept to refrain from knowingly or wantonly injur
have been caused thereby. ing her. At stations where the journey begins and The degree of care which a traveler must observe ends it is decided that one may accompany a pas.
in approaching a railroad crossing is only such senger to a seat on the train, and while so engaged as a prudent man would ordinarily exercise is entitled to reasonable precaution for his safety
under the circumstances.
The court may. in going upon and alighting from the train; but. therefore, properly refuse to charge that the even in such cases, this duty does not arise unless
traveler is bound to use extraordinary care. defendant's servants are in some manner informed Where a number of persons engage a coach of a of the presence of such person on the train and of liveryman for a pleasure trip, the latter to his purpose (Railway Co. v. Satterwhite. 15 Tex. furnish the coach and teams and send them in Civ. App. 103. 38 S. W. 401). Whether or not.
charge of a competent driver, the relation of when a person goes upon the train at an interme- master and servant is not thereby created bediate point of the journey to visit the passenger.
tween the passengers and the driver. the same duty is, under like circumstances, im- Appeal from a judgment entered upon an order posed upon the carrier, it is not necessary for us of the Appellate Division in the Second Department, unanimously affirming a judgment entered crossing, which was to some extent obscured by upon the verdict of a jury, and from an order telegraph poles between it and the track. This affirming an order denying the delendant's motion board, instead of being maintained across the for a new trial. The appeal was allowed by the street, as required by the statute, was placed upon Appellate Division upon the ground that a ques- a single post at the side of and six feet from the tion of law had arisen in this case which in its edge of the macadamized road. The words opinion ought to be reviewed by the Court of painted upon the signboard were not those reAppeals.
quired by the statute, nor were they of the size Benjamin F. Tracy and William J. Kelly for prescribed. Section 33 of the Railroad Law re
quires that such signboards shall be placed, well appellant; Albert A. Wray for respondent.
supported and constantly maintained, across each MARTIN, J. -- The allowance of this appeal does traveled public road or street, where the same is not enable us to examine or determine whether crossed by a railroad at grade; that they shall be there is any or sufficient evidence to sustain the so elevated as not to obstruct the travel, and so as verdict, inasmuch as the affirmance by the Appel- tu be easily seen by travelers, and that on each late Division was unanimous (Reed v. McCord, side shall be painted in capital letters, each at 100 N. Y. 330). Therefore, the questions of the least nine inches in length and oi suitable width, defendant's negligence and the plaintiff's freedom the words: “ Railroad crossing; look out for the from contributory negligence cannot be reviewed cars.” The board which was erected at this place by this court.
was upon a single post to which three boards were The only questions that can be passed upon by iastened, one at right angles with the post, the us are those raised by the defendant's exceptions other two extending from the ends of the first to to rulings of the court upon the admission or re- arid beyond the post, crossing each other thereon. • jection of evidence, and to its charge or refusals Cpon these boards were painted the words: to charge as requested by the defendant. To a Danger, railroad crossing." On the side of the proper understanding of these exceptions a brief road, back of and extending a considerable disstateinent of the facts seems necessary.
tarice beyond the signboard, were trees and underThis action was for negligence. The plaintiff brush from twenty-five to thirty feet high. The was injured in a collision which occurred at about proof, while in conflict as to the distance this 2 o'clock in the afternoon of the 31st day of May, board could be seen by travelers, tended to show 1897, at a grade crossing of the Merrick road over that it could be seen by one who knew of its the defendant's track. The plaintiff, with a num- existence for a considerable distance, while by a ber of associates, engaged a tally-ho coach drawn stranger who was not aware of its presence it by six horses to convey them from Brooklyn to would not be readily seen or noticed. There were Valley Stream and return, a distance of about no gates or flagman at this crossing. Upon one thirty miles. The horses were gentle and the of the telegraph poles, standing near the signcoach was in order. There were twenty-one per- | board, there was an electric signal bell about ten sons upon and in it at the time of the accident. feet above the ground. The trip was to be made in pursuance of a con- For some distance from the crossing and up to tract with one Hamilton, a liveryman, to transport it there are trees, woods and underbrush on both the party the round trip for $30, he to furnish the sides of the highway, which upon the left side coach and teams and send them in charge of a extend to within eighteen feet of the crossing, competent driver. The teams and coach were obscuring the view of the track from the highway. entirely under the control of Hamilton's em- At a point in the center of the highway thirty-four ployes, except that the plaintiff and his associates | feet from the track it could be seen for nearly 211 were, perhaps, authorized to determine where they feet from the crossing, and a clear and unobwould stop for lunch. The Merrick road, over structed view could be obtained twenty-four and which this excursion was to be made, is a smooth, one-half feet from the nearest rail. It was seventy maccadamized highway to the extent of eighteen feet from the rear of the coach to the heads of feet in width, upon which there is a great amount the leaders in the team. While previously there of travel. The right of way is about fifty feet in had been considerable jollity among the young width, and outside of the macadamized portion people upon the coach, including the blowing of there are ditches and earth which are overgrown horns and the sounding of a bugle, at the time of with grass and weeds, except about four feet on the accident no unusual noise was being made and each side next to the macadamized portion. the team was going slowly, some of the horses
At the place of the accident the crossing was upon a walk and the others upon a slow trot. planked, so that the spaces between the rails, the The plaintiff was seated upon the top of the rails and the macadamized road on each side of the coach, where he could observe what came within track presented a smooth, even appearance, the the line of his vision. He had never been over the top of the rails being even with the roadbed and road before, and knew nothing of the location of planking. There was
a signboard beyond the the railroad or its crossings. As the coach ap