signee can be apprised of their arrival and a sufficient time has elapsed for him to remove them. Until 1865, that seems to have been the custom in Chicago, where there were four or five cattle yards near the principal railway stations. The record does not show whether the consignee came there and drove them away, or whether they were marketed and slaughtered there; but this is immaterial, so far as the duties of the railway company were concerned. So, it is usual in the stock-raising portions of the country, to provide cattle pens for the detention of cattle until they are laden on board the cars, and sometimes for their delivery by the railway company in those yards.

While I do not think railway companies would be bound to furnish terminal facilities of this kind for an occasional horse, or perhaps even for an occasional and wholly exceptional carload of live stock, yet, if cattle became a substantial part of the traffic, I have no doubt provision should be made for their reception.

In 1865, the Union Stock Yards were organized, a large area of lands purchased and separate tracks laid by the stock yards company, connecting with practically all the railways running to Chicago. From this time the demand for separate terminal facilities at each of these railways seems to have ceased and all cattle were consigned for delivery at the stock yards-not for the purpose of being claimed there by the consignee, but for the purpose of finding a market for them. Here all the cattle consigned to Chicago are deposited for slaughter or for further shipment, and great slaughtering houses have been erected in the vicinity of the yards for the disposition of the cattle. Providing a market for cattle is certainly no part of the business of the railway company; and, I think, therefore, any extra expense occasioned from the time the cars containing the cattle leave the tracks of the company, and until they arrive at the stock yards and the empty cars are returned, the company is entitled to make an additional terminal charge, equivalent to the expense occasioned to it by providing these extra facilities.

Prior to June 1, 1894, the railway companies seem to have assumed this burden themselves, but at this time a trackage was imposed by the stock yards of from forty to seventy-five cents each way upon every car going and returning from the tracks of the railway company to the stock yards. It is insisted that, as this is the only extra expense then occasioned, any charge beyond that was unreasonable and improper. I do not think that necessarily follows. While the imposition of this trackage charge by the Union Stock Yards was doubtless the immediate occasion for a reformation of its tariff, the railway companies were then at liberty to adopt a new schedule with relation to these terminal facilities, and charge what they actually cost them.

The evidence is that it costs some railways a trifle less than two dollars, and some considerably

more than that. The average seems to have been somewhat more than two dollars. But, we think, it was proper for the railway companies, whether the expense to the companies were a few cents more or less, to adopt this amount as an approximate charge, and that their action in so doing should be sustained.

DEATH CAUSED BY Wrongful ACT.

DISTRIBUTION OF MONEYS RECOVERED.

NEW YORK COURT OF APPEALS.
Decided October 2, 1900.

In the Matter of the Petition of THOMAS H.
SNEDEKER, Respondent, v. ADA MAY SNEDEker,
as Administratrix, Etc., of CHARLES SNEDEKER,
Deceased, Appellant.

Moneys recovered by the widow, as administratrix, for the negligent killing of her husband, are to be distributed, after deducting commissions and expenses, as if they were unbequeathed assets of the deceased.

Where, therefore, the deceased left no children, but left a widow and father surviving, the father is entitled to share with the widow in the moneys thus recovered as provided by the statute for the distribution of personal property.

Appeal from an order of the Appellate Division, Second Department, affirming an order of the Surrogate's Court of Kings county.

Charles M. Stafford, for appellant; A. T. Payne, for respondent.

BARTLETT, J.-The appellant in this proceeding brought an action under section 1902 of the Code of Civil Procedure against one George Malcolm to recover damages for the death of her husband, Charles Snedeker, caused by the negligent act of the defendant; she recovered a judgment, entered upon the verdict of a jury for $5,000, aggregating $5.771.95, damages and costs.

The deceased left no children.

The father of the deceased, Thomas H. Snedeker, instituted this proceeding in the Surrogate's Court of Kings county, by petition, to compel the widow, as administratrix, to render an account of her proceedings in respect to said judgment, and pay over to him the distributive share thereof to which he claimed to be entitled.

After hearing the parties an order was entered in the Surrogate's Court, granting the prayer of the petition, directing an accounting and a deduction of the expenses of the action in which the judgment was recovered, together with the commissions of the administratrix.

The Appellate Division affirmed the order, and appeal was taken to this court. The widow claims that the action in which the judgment was recovered is statutory and unknown to the common law, the recovery no part of decedent's estate, and she is

entitled to the entire amount realized. The father of the deceased insists that as his son left no children he is entitled to share with the widow the net proceeds of the judgment.

The adjustment of these conflicting claims depends on the construction to be given the sections of the Code of Civil Procedure governing the action instituted by the administratrix.

Section 1902 allows the action to be brought by "the executor or administrator of a decedent, who has left, him or her surviving, a husband, wife or next-of-kin."

Section 1903 reads as follows: "The damages recovered in an action brought as provided in the last section, are exclusively for the benefit of the decedent's husband, or wife, and next-of-kin; and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action and his commissions upon the residue, which must be allowed by the surrogate, upon notice given in such a manner and to such persons as the surrogate deems proper."

In Oldfield v. N. Y. & Harlem R. R. (14 N. Y. 310), in considering the law as then existing (Laws 1847, chap. 450), this court said (p. 316): “The statute does not, as has been supposed by some, only create a liability in those cases where the relations of the persons to be indemnified to the person killed were such that the former had a legal right to some pecuniary benefit which would result from a continuance of the life of the latter, and which was lost by the death. It is applicable to the case of any person, where death ensues, who could himself, if living, have maintained the action, and cannot justly be limited to the cases of a wife for the loss of a husband or children of parents."

It is then pointed out that the words "husband or wife" are used to designate persons who would not be included in the term “next-of-kin."

In Tilley v. Hudson River R. R. (24 N. Y. 474), this court again construed the act: "Next-of-kin are embraced in its language as parties who may be pecuniarily injured by the death of a person to whom they stand in that relation; and it is not required that the degree of kindred should be such as to create the duty of sustenance, support or education. It is well settled that the survivorship of a wife is not essential to the maintenance of the action."

In Murphy v. N. Y. C. & H. R. R. R. (88 N. Y. 447), this court further expressed itself, as follows: 'Under the statute of 1847, as amended, it matters not that some of the next-of-kin for whom the action is prosecuted may suffer greater pecuniary loss from the death than others. The sum to be recovered by the personal representative represents the entire pecuniary loss resulting from the death to each and all the relatives mentioned in the statute."

The provisions of law relating to the distribution of personal property as applicable to this case are found in section 2732 of the Code of Civil Procedure, subdivision 7. This subdivision, where there are no children, divides the surplus between the widow and the father.

The action thus provided for is purely statutory, has existed in this State for many years substantially as now found in the Code, and has been repeatedly considered by the courts.

The general scheme of the action may be briefly stated as follows: An executor or administrator can sue only where decedent leaves husband, wife or next-of-kin; when the action is brought it is for the exclusive benefit of husband, or wife, and next-ofkin; the proceeds of the recovery are to be distributed among the class named, as if they were unbequeathed assets remaining after payment of debts and expenses; the statute providing for the distribution of personal property is to govern.

In the case at bar the class consists of the widow and father.

It does not follow that the father has no pecuniary interest in the death of his son. It might have happened had the son survived thirty years that his wife would have died childless and he be left as the only support of an aged and penniless father; or, if no father was living, but several next-of-kin of the same degree, it is within the range of possibilities that the decedent might have accumulated within his added years of life a considerable estate and then died leaving it to them. The statute evidently deals with remote and uncertain damages not recoverable at common law.

We are not insensible to the peculiar hardship of this case where a widow, left without means of support, is compelled to divide the net amount of the judgment she has recovered, as administratrix, with

the law as it is written, regardless of the seeming injustice inflicted in particular cases by the existing rule.

remote.

The order of the Appellate Division should be

affirmed, with costs.

The facts established at the trial, upon which the complaint was dismissed, briefly stated, were these:

Order affirmed.

NEGLIGENCE.

PERSONAL INJURY SUSTAINED THROUGH FALLING OF BRICK FROM BUILDING IN COURSE ERECTION.

NEW YORK COURT OF APPEALS.

Decided October 2, 1900.

*

OF

CONRAD WOLF, Respondent, v. THE AMERICAN TRACT SOCIETY, JOHN DOWNEY et al., Appellants. A corporation, owning a lot, entered into a contract for the erection of a building thereon, by the terms of which one Downey agreed to "take entire charge of all the work * to make all contracts for the various departments of work required * to see that the contracts entered into are honestly and faithfully kept," to be "responsible for all loss or damage from accidents during the construction of the building," to take all proper precautions for the avoidance of such accidents. Through Downey the corporation thereafter made a contract, containing similar covenants of indemnity, with sub-contractors named Weber for the mason work and scaffolding, and with a large number of other contractors for all the other work upon the building.

Before the building had reached completion, and while more than 250 workmen employed by various contractors were working about the building, and while the scaffolding was still up on two stories, a truck driver, while unloading his truck in front of the building, was struck and injured by a brick, which fell from the building in a slanting direction, but from what part or from what cause was unknown.

building, twenty-three stories in height, was in progress of construction by the American Tract Society near the corner of Nassau and Spruce streets, in the city of New York. The society owned the building, and had contracted for its erection with various contractors who agreed to do each a special part of the work. It was shown that there were nineteen independent contractors, employing about 250 men in all. These contracts were made directly with the Tract Society, and bound the contractor in each case to do some particular part of the work, and in most, if not all of them, the contractors was bound to use due care and to indemnify the owner of the building against any loss resulting from injuries to others in the progress of the work.

The proof tended to show that on the day named the plaintiff was in the service of one of the contractors for furnishing the steamfitting for the building, and was sent there with a load of pipe upon a truck. The truck was stopped on the Spruce street side of the building, which is a narrow street. While the plaintiff was on the truck attending to his duties, and without any negligence on his part, a brick fell from the building, which had then reached the ninth story, and struck him upon the head inflicting a very serious injury. There were then in the building, it seems, not only masons and carpenters engaged in the work, but steamfitters and plumbers putting in pipes in recesses in the walls, elevator men, electric light people and various workers doing work around the building. There was no proof whatever to show from what part of the building the brick came, or who dropped it, or set it in motion. There was no proof to identify the person in or about the building as the immediate author of the wrong. Of all the numerous persons engaged in or about the work the jury could not have imputed the accident to any one of them more than another. In this state of the proof the trial judge dismissed the complaint. The learned Appellate Division sustained the trial judge so far as affected the Tract Society, the owner of the building; but since it appeared that the defend

and the defendants, the two Webers, had charge of the mason work, and that neither of them had

mained for forty-five days, engaged, in what proved to be fruitless negotiation with the insurgent leaders, for the peaceable surrender of the place.

Previously, and up to the 24th of December, the city of Iloilo had been in possession of the Spanish forces under command of Gen. Rios, who, by order of his government, evacuated the same on the date mentioned. Had the Americans reached Iloilo before its evacuation, a conflict would have been avoided, as Gen. Rios was ready to deliver the city to the Americans.

The attack was commenced by the navy, the gunboat Petrel, opening fire on the morning of December 10; such action on part of the navy was premature, it being several hours earlier than the time designated in a notice previously served on the people and vice-consuls by the commander of the American forces. This premature attack is specially relied on by the claimants as a ground of recovery. Ynchausti & Co., an Iloilo firm, present a claim against the government, illustrative of the nature of the claims and manner of pleading. After stating that they are a co-partnership, and giving the age, place of residence and nationality of each member of the firm, the petition proceeds to state that on the 11th of February, 1899, through the bombardment and capture of the city of Iloilo by the United States military and naval forces, and in consequence thereof, claimants suffered the loss and injury of the following-described personal property, setting forth the items of property and the value thereof. The aggregate value in this case being $114,202.55, less $9.872.88 goods saved in a damaged condition, leaving a net claim against the United States of $104,329.67, Mexican money, or one-half that sum in gold.

The petitioner then proceeds to state the grounds of his recovery as follows: In accordance with the circular letter No. 4, of the United States military governor in the Philippine Islands, dated at Manila, P. I., April 26, 1899, these claimants beg to state the facts and circumstances attending their loss and injury, out of which this claim arises, the principles and causes which lie at the foundation of the same, and from which the liability of the United States is to be deduced. The Spanish governor, General Rios, commander of the military forces occupying the city of Iloilo and suburbs, abandoned the city with his troops on the 24th of December, 1898, about at three o'clock in the afternoon; forty-eight hours after Gen. Rios had left, the natives took possession of the city of Iloilo. It is known that early in December, 1898, a circular letter was handed to Major-General Otis, the military governor of the Philippine Islands, signed by merchants of Manila who had branches in Iloilo of their firms, in which his attention was drawn to the danger that would inevitably result to life and property in Iloilo if the American government did not at once send an armed force to Iloilo to take possession of the city from the Spaniards before they left,

as it was well known that the Spanish governor, Gen. Rios, had orders from Spain, instructing him to evacuate the city with the least possible delay. "The American troops and naval forces did not arrive to that port until the morning of the 28th of December, 1898, four days after the Spaniards had left and the troops remained on board the transports at anchor in the Iloilo bay, without action, for forty-five days.

'At last the commanding general of the United States forces sent an ultimatum notice to the insurgent leaders that occupied the city of Iloilo, on the 10th of February, 1899, intimating them to peaceably give up the place, otherwise it would be taken by force. Almost at the same time notice was given to the various consuls in the city, stating that such would happen should the natives give a negative reply, and that the attack would commence at 5 o'clock on Sunday, 12th of February, 1899, in the morning.

"The bombardment commenced about at 8.30 A. M., on Saturday, some twenty hours before the expiration of the notice sent to the consuls in the city, and in consequence of such an unexpected attack, no steps whatever could be taken to save or protect property, it having been a very risky task for the Europeans and peaceful inhabitants, who fled in a desperate way to save their lives.

"We further beg to state that although the bombardment commenced at 8.30 A. M., and the Americans could not fail to see that the insurgents were engaged in firing the city, it being well-known to the American authorities that such would happen, as the natives had threatened to do so, as soon as the attack should commence. It was not till about II o'clock A. M. that the first small landing parties were disembarked from the U. S. S. Boston and Petrel, and about half an hour later ere the military forces were landed, although the men-of-war and military transports were anchored within about a mile from the shore.

"No opposition was made to landing the troops and the sea was perfectly calm; no attempt was made to send armed pinnaces into the river from any vessel, until late in the afternoon, the river not being defended in any way by the insurgents, and pinnaces could have reached the center of the city within half an hour from any vessel.

"We consider, therefore, that our property, which was amongst the last set on fire, and a large portion of the city could have been saved, had the troops been landed within a reasonable time, and, if they had been landed immediately after their arrival at Iloilo bay, it is almost certain that very little damage would have been caused, as the natives would not have had time to prepare themselves for firing the city.

"We might further state, that it was known to most people, that on the day of the bombardment, there were not over 300 to 400 imperfectly armed insurgents in the place, who could have hardly