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The Albany Law Journal.

A Weekly Record of the Law and the Lawyers. Published by
Contributions, items of news about courts, judges and lawyers'

THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y.

queries or comments, criticisms on various law questions

addresses on legal topics, or discussions on questions of timely

interest are solicited from members of the bar and those interested in legal proceedings.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

not be profitable at this time to inquire into. Certain it is that the estimate of the work of the commission during the ten years of its existence entertained generally by the profession, as attested by the action of State and city bar organizations, is not such as to warrant any great degree of confidence in the value of its future labors, or to give strength to any movement toward its indefinite continuance. The New York City Bar Association has recently sent out a summary of the work of the commission, from which it

Subscription price. Five Dollars per annum in advance. Single appears that while they have caused many

aamber Twenty-Five Conts.

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ALBANY, MARCH 24, 1900.

Current Topics.

general acts to be passed, in the ten years of their official existence, the work has been so carelessly or incompetently performed that the legislature has been obliged to pass no less than 687 acts in amendment and correction of the general laws; that last year these amendatory acts comprised 21 per cent. of all the laws passed that year, and 63 per cent. of the entire legislation of 1899, including private and local laws and code amendments. Elsewhere in this issue of the LAW JOURNAL will be found expressions by New York papers which throw additional light upon this matter, which is of vital interest and importance to every lawyer in the State.

SUBJECT which is greatly interesting the legal profession throughout the State at present is that of the continuance of the State Statutory Revision Commission. In line with the action of bar associations in the city of New York, the metropolitan papers have taken up the subject and are strongly urging the governor to follow up the recommendation contained in his annual message to the legislature that the commission be forthwith abolished. The bar association of the State also, through committees appointed for that purpose, is making active efforts in the same direction. There appears to be ample ground for the criticism made by Mr. Clarence F. Birdseye, in his interview with a New York Herald reporter, that the members of the commission, although drawing ample salaries, have trusted altogether too much to their understudies, who have not only usurped the duties and responsibilities of the commissioners themselves, but have also found time to turn out a lot of more or less valuable work for law publishers in Albany and elsewhere. To what extent the work of the commission might have been improved had the members of the com-judge of the Court of Appeals, Hon. Robert mission given the important work entrusted to them their whole personal attention, instead of entrusting it to too ambitious subordinates, is a question which perhaps it will VOL. 61-No. 12.

Since the above was written, committees from the New York City Bar Association and the State Bar Association have appeared before the Assembly Judiciary Committee, in support of Assemblyman Weekes' bill to abolish the commission forthwith. Messrs. Brainerd, Row, Young and Curtis, Among the speakers were Judge Howland, of the bar association committees, Hon. J. Newton Fiero, of Albany, representing the State Bar Association, and Mr. Clarence F. Birdseye, of New York. veighing against the statutory revision commission and its work all the speakers. favored a new commission and suggested the appointment on such new commission of Hon. Charles Andrews, formerly chief

But while in

Earl, of Herkimer, and Hon. Francis M.
Finch, of Ithaca, also former judge of the
Court of Appeals, as a commission that
would revise and classify the laws of the

State in a manner thoroughly satisfactory by common-law evidence the liability of that

to the lawyers of the State. Judge Howland suggested that the Hon. Charles Z. Lincoln be made by law, not by practice, the legal adviser to the governor at a salary of $5,000 a year, and that the proposed new commissioners be also paid $5,000 a year.

citizen. While we should keep control of the subject, so as to see that no discrimination is practiced against our citizens, or injustice done them either as to the substance of the liability or the method of procedure, when the same result is attained in practically the same way as, under similar circumstances, would be attained in the case of a domestic corporation, there is no reason for withholding that aid which is now afforded by the courts of almost all enlightened countries."

The New York Court of Appeals, in Leonard Howarth, as Receiver of the Traders' Bank of Tacoma, Respondent, v. Charles 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 repugnant to its policy, it would be a provincial and narrow view for our courts to refuse to extend the usual State comity. There is a close business connection between the citizens of the different States of the Union. Investments are freely made in other States by the citizens of this State, who need the aid of the courts of the jurisdiction where the investments are made. The comity which we expect to have extended to citizens of our State, we cannot, in justice, refuse to citizens of other States. State lines should not prevent justice from being done. Our courts should not close their doors to a receiver from another State, who comes here, armed with the title to a just claim against a citizen of this State, and offers to establish

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before the polls closed. J. B. Cover, the Republican candidate, asked the board of canvassers to issue him a certificate, as it was claimed that having received the next highest number of votes he was entitled to the office. The board refused, and on November 9 the county commissioners appointed Walker to fill the unexpired term. When the term for which Buvinger had been serving had expired the commissioners appointed Speidel for the full term of two years, beginning on the first Monday in January, 1900. Walker refused to vacate, and Cover's friends instituted a proceeding in quo warranto to oust them both. The Supreme Court ousts Speidel and seats Walker, upon the theory that no vacancy existed or could exist until Buvinger's term should have ex

pired and that Walker's successor must be elected at the next general election.

In view of the fact that Sir Alfred Milner recently issued a proclamation announcing that within southern Rhodesia the military authorities were authorized to impress wagons, horses, mules, oxen, gear, provisions, forage and other necessaries, to be paid for at a fair value by drafts upon the British South Africa Company, or if objected to by the owner, the question of value to be settled by arbitration, an English contemporary expresses doubts whether English or Roman-Dutch law has been applied to Rhodesia. It points out the fact that at common law the crown, under the name of "purveyence," possessed the right to impress vehicles and horses for the transportation of troops. It is added: "But this right was abolished in 1660, and the powers for this purpose have since that date been statutory, and have depended on the annual Mutiny Acts until 1881, since when they have rested on the Army Act and its annual renewals. Section 115 of the Army Act permits her majesty by order in a case of emergency to authorize any field officer in command in the United Kingdom to issue a requisition of emergency requiring justices in the United Kingdom to issue warrants for the impressment of transport.

the state of war. And there seems to have been no attempt to apply a similar proclamation to the Cape Colony or Natal."

We desire to call the attention of the members of the profession to a communication published elsewhere in this issue, with reference to the bill now pending before Congress, to provide for the further distribution of the reports of the Supreme Court. Our correspondent not only gives some timely information as to the nature of this peculiar bill, but adds some interesting suggestions as to the publication of these reports which seem to us worthy of careful attention on the part of Congress and the legal profession.

Notes of Cases.

Carriers Injury to Passengers. - In Bullock v. Houston, E. & W. T. R'y, decided by the Court of Civil Appeals of Texas in January, 1900, it was boarded another, at a meeting point, to converse held that where a passenger left her train and with another person, she cannot recover for injuries sustained through negligence of the company while she was leaving the latter train, in the absence of proof that the employes operating such latter train knew of her presence, and that it was train upon which she was actually a passenger only temporary, although the conductor of the consented to her boarding the other train. The court said in part:

defendant. Differences as to the

price to be paid are settled by a county court judge in the United Kingdom. These provisions extend to the United Kingdom, but not to the Channel Islands or the Isle of Man. By section 177 of the Army Act the provisions of that act may be applied to a colony, so far as the local law is silent, in cases where any local force is serving with part of the regular forces of the crown, subject to modifications made by the general officer commanding. But it is by no means clear that this provision is intended to do more than bring local levies under discipline, or to create a liability to impressment on the part of the civil proclamation. And probably the explanation of the high commissioner's proclamation will be found in some Rhodesian ordinance or in the necessities of

In this case the court directed a verdict for the The testimony shows, on behalf of plaintiff, that she, in company with her brotherin-law, was a passenger on defendant's soundbound train from Nacogdoches to Houston. After midnight her train arrived at Fant Station about fifteen minutes before the other. In order to see her sister, who was to be on the north-bound train that night, Whitehead, the conductor of her train, an obliging officer, escorted her and her brotherin-law to the engine, which she was allowed to board to keep warm, it being a cold night, until the other train arrived. When it did arrive, she was helped to the platform of the coach next to the baggage car by her brother-in-law, and she and her brother-in-law went through that coach, and, not seeing the sister as expected, returned to the platform, and while there, in the act of getting off, the train was moved with a sudden and severe jolt, and she was thrown off, and suffered a severe

sprain of the ankle. They were not on the tran any longer than to pass through it and return to the platform. For this injury the action was brought.

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The testimony claimed to exist, as showing that the conductor of the north-bound train (Conelly) knew she was on the train for the temporary purpose for which she was there, will be adverted to hereafter. The propositions of appellant are that plaintiff was a passenger on defendant's train, and that she was a licensee on defendant's train, and was injured through the failure of defendant to exercise proper care for her safety. Plaintiff was a passenger on the train upon which she was traveling, and remained such so long as she did not assume a relation or position inconsistent with that relation. It has been held that a passenger my alight at an intermediate station for a temporary purpose of business, exercise, or curiosity, without losing his status as a passenger (Railway Co. v. Overfield [Tex. Civ. App.], 47 S. W. 684). A person remains a passenger while going from one train to another in the prosecution of his journey. But here the plaintiff left her train altogether, and went upon another for a purpose that had no connection with her journey, and inconsistent with the relation of passenger which she sustained to defendant. Certainly she could not be regarded as a passenger of the north-bound train, and while she was upon said train she had for the time being ceased to be a passenger on her own. The fact that her conductor accompanied her and consented to her act in boarding the north-bound train cannot be treated as the act of the company; for the uncontradicted testimony is that his authority was limited to the conduct and operation of his own train, and this, we may say, was the extent of his ostensible authority (Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; Railway Co. v. Anderson, 82 Tex. 520, 17 S. W. 139; Railroad Co. v. Carper. 112 Ind. 26, 13 N. E. 122, and 14 N. E. 352; Shear & R. Neg., sec. 148). It is and was evident that, in accompanying her to the other train and placing her upon it, he was not serving the defendant, and, no special authority being shown, it cannot be treated as the act of defendant.

Not being a passenger when hurt, no duty devolved upon defendant's servants operating the train she was on, in the absence of notice to them of her presence and temporary purpose there, except to refrain from knowingly or wantonly injuring her. At stations where the journey begins and ends it is decided that one may accompany a pas senger to a seat on the train, and while so engaged is entitled to reasonable precaution for his safety in going upon and alighting from the train; but. even in such cases, this duty does not arise unless defendant's servants are in some manner informed of the presence of such person on the train and of his purpose (Railway Co. v. Satterwhite. 15 Tex. Civ. App. 103. 38 S. W. 401). Whether or not. when a person goes upon the train at an intermediate point of the journey to visit the passenger. the same duty is, under like circumstances, imposed upon the carrier, it is not necessary for us

to discuss in this case. It was, at all events, incumbent on plaintiff here to show that the conductor or some employe engaged in the operation of the north-bound train knew, not only that she was upon the train, but that she was there temporarily, and expected to alight. That the conductor of her train knew this was not sufficient. It was essential to plaintiff's case that she prove that some employe of the train upon which she was hurt knew, before her injury, that she had boarded it, intending not to travel therein, but to see her sister, and then alight. No case of intentional or wanton injury upon her was shown, and this is not claimed.

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NEW YORK COURT OF APPEALS. Decided February 27, 1900.

JOHN J. LEWIS, an Infant, by JEANETTE L. LEWIS, his Guardian ad litem, Respondent, v. THE LONG ISLAND RAILROAD, Appellant.

The failure of a locomotive engineer, when suddenly confronted with an emergency, to use the best possible judgment to bring his engine to a stop, does not establish lack of care or skill on his part which will render the company liable. It is, therefore, error for the court to charge in such a case that if the engineer omitted any act which might have prevented the collision the company is guilty of negligence.

A

driver approaching a railroad crossing is not required, as matter of law, to stop before attempting to cross the track, but his omission to do so is a fact for the consideration of the jury. The fact that a railroad company omitted to maintain a signboard, as required by section 33 of the Railroad Law, over the highway at its crossing, is admissible upon the question of its negligence. Such omission may constitute actionable negligence when injury is shown to have been caused thereby.

The degree of care which a traveler must observe in approaching a railroad crossing is only such as a prudent man would ordinarily exercise under the circumstances. The court may, therefore, properly refuse to charge that the traveler is bound to use extraordinary care. Where a number of persons engage a coach of a

liveryman for a pleasure trip, the latter to furnish the coach and teams and send them in charge of a competent driver. the relation of master and servant is not thereby created between the passengers and the driver. Appeal from a judgment entered upon an order of the Appellate Division in the Second Depart

ment, unanimously affirming a judgment entered upon the verdict of a jury, and from an order affirming an order denying the defendant's motion for a new trial. The appeal was allowed by the Appellate Division upon the ground that a question of law had arisen in this case which in its opinion ought to be reviewed by the Court of Appeals.

crossing, which was to some extent obscured by telegraph poles between it and the track. This board, instead of being maintained across the street, as required by the statute, was placed upon a single post at the side of and six feet from the edge of the macadamized road. The words painted upon the signboard were not those required 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

appellant; Albert A. Wray for respondent.

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MARTIN, J. The allowance of this appeal does not enable us to examine or determine whether there is any or sufficient evidence to sustain the verdict, inasmuch as the affirmance by the Appellate Division was unanimous (Reed v. McCord, 160 N. Y. 330). Therefore, the questions of the defendant's negligence and the plaintiff's freedom from contributory negligence cannot be reviewed by this court.

The only questions that can be passed upon by us are those raised by the defendant's exceptions to rulings of the court upon the admission or rejection of evidence, and to its charge or refusals to charge as requested by the defendant. To a proper understanding of these exceptions a brief statement of the facts seems necessary.

This action was for negligence. The plaintiff was injured in a collision which occurred at about 2 o'clock in the afternoon of the 31st day of May, 1897, at a grade crossing of the Merrick road over the defendant's track. The plaintiff, with a number of associates, engaged a tally-ho coach drawn by six horses to convey them from Brooklyn to Valley Stream and return, a distance of about thirty miles. The horses were gentle and the coach was in order. There were twenty-one persons upon and in it at the time of the accident. The trip was to be made in pursuance of a contract with one Hamilton, a liveryman, to transport the party the round trip for $30, he to furnish the coach and teams and send them in charge of a competent driver. The teams and coach were entirely under the control of Hamilton's employes, except that the plaintiff and his associates were, perhaps, authorized to determine where they would stop for lunch. The Merrick road, over which this excursion was to be made, is a smooth, maccadamized highway to the extent of eighteen feet in width, upon which there is a great amount of travel. The right of way is about fifty feet in width, and outside of the macadamized portion there are ditches and earth which are overgrown with grass and weeds, except about four feet on each side next to the macadamized portion.

At the place of the accident the crossing was planked, so that the spaces between the rails, the rails and the macadamized road on each side of the track presented a smooth, even appearance, the top of the rails being even with the roadbed and planking. There was a signboard beyond the

quires that such signboards shall be placed, well supported and constantly maintained, across each traveled public road or street, where the same is crossed by a railroad at grade; that they shall be so elevated as not to obstruct the travel, and so as to be easily seen by travelers, and that on each side shall be painted in capital letters, each at least nine inches in length and of suitable width, the words: "Railroad crossing; look out for the cars." The board which was erected at this place was upon a single post to which three boards were fastened, one at right angles with the post, the other two extending from the ends of the first to and beyond the post, crossing each other thereon. Upon these boards were painted the words:

Danger, railroad crossing." On the side of the road, back of and extending a considerable distance beyond the signboard, were trees and underbrush from twenty-five to thirty feet high. The proof, while in conflict as to the distance this board could be seen by travelers, tended to show that it could be seen by one who knew of its existence for a considerable distance, while by a stranger who was not aware of its presence it would not be readily seen or noticed. There were no gates or flagman at this crossing. Upon one of the telegraph poles, standing near the signboard, there was an electric signal bell about ten feet above the ground.

For some distance from the crossing and up to it there are trees, woods and underbrush on both sides of the highway, which upon the left side extend to within eighteen feet of the crossing, obscuring the view of the track from the highway. At a point in the center of the highway thirty-four feet from the track it could be seen for nearly 211 feet from the crossing, and a clear and unobstructed view could be obtained twenty-four and one-half feet from the nearest rail. It was seventy feet from the rear of the coach to the heads of the leaders in the team. While previously there had been considerable jollity among the young people upon the coach, including the blowing of horns and the sounding of a bugle, at the time of the accident no unusual noise was being made and the team was going slowly, some of the horses upon a walk and the others upon a slow trot.

The plaintiff was seated upon the top of the coach, where he could observe what came within the line of his vision. He had never been over the road before, and knew nothing of the location of the railroad or its crossings. As the coach ap

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