SMITH, Respondent, v. DAVEGA, Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by George F. Smith against Isaac Davega, Jr. D. Tim, for appellant. J. C. Weschler, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed.

SOOP, Appellant, v. BURHANS, Respondent. (Supreme Court, Appellate Division, Third Department. March 7, 1906.) In the Matter of the petition of Henry C. Soop, as agent and attorney of the estate of Thomas Cornell, against Webster H. Burhans.

PER CURIAM. Order affirmed with costs. CHESTER and KELLOGG, JJ., dissent.

TAYLOR, Respondent, v. BROWN et al., Appellants (two cases). (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by James E. Taylor against W. David Brown and others. J. Delahunty, for appellants. C. Goldzier, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order fi,led.

THOMAS V. GEORGE G. FUESSELA SONS. (Supreme Court, Appellate Division, First Department. April 25, 1906.) Action by May E. Thomas against George G. Fuessela Sons. No opinion. Motion denied, on payment of $10 costs. Leave given to apply to the court below to open default. Order filed.

TOCCI V. GIANVECCHIO. (Supreme Court, Appellate Division, First Department. April 25, 1906.) Action by Felice Tocci against Gaetano Gianvecchio. No opinion. Application denied, with $10 costs. Order signed.

out costs.

STEINFELD et al., Appellants, v. LINCOLN et al., Respondents. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Samuel Steinfeld and another against George D. Lincoln and others. L. J. Vorhaus, for appellants. E. G. Moody, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

STONE, Respondent, v. ROCHESTER HERALD CO., Appellant. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Junius H. Stone against the Rochester Herald Company. J. S. Haven's, for appellant. C. E. Thornall, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

STURMDORF v. SAUNDERS. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by William Sturmdorf against Franklin E. Saunders and others. No opinion. Motion granted.

SWING, Appellant, v. MOHAWK VALLEY LUMBER CO., Respondent. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by James B. Swing, as trustee for the creditors, etc., of the Union Mutual Fire Insurance Company of Cincinnati, Ohio (dissolved), against the Mohawk Valley Lumber Company. No opinion. Judgment modified, by striking therefrom the words "on the merits," and, as thus modified, judgment and order unanimously affirmed, with costs.

SYKES, Respondent, v. J. WALTER THOMPSON CO., Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Thomas F. Sykes against the J. Walter Thompson Company. D. Edwards, for appellant. W. D. Reed, for respondent. No

TOWN OF NORTH HEMPSTEAD, AppelCourt, Appellate Division, Second Department. March 22, 1906.) Action by the town of North Hempstead against Louise U. Eldridge. No opinion. Order resettled by inserting a recital that the appeal was argued before five justices of this court, and the decision concurred in by four; the remaining justice having, prior to the decision, been appointed a member of the Court of Appeals. See 98 N. Y. Supp. 157.

TRALL, Respondent, v. SCOTT et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by Weld G. Trall against James Scott and another. No opinion. Motion denied, with $10 costs.

TREFFINGER v. M. GROH'S SONS. (Supreme Court, Appellate Division, First DepartTreffinger against M. Groh's Sons. No opinion. ment. April 25, 1906.) Action by Gottlieb Motion granted. Order filed.

TROTT, Appellant, v. SCHMITT, Respondent. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Action by liam Trott, deceased, against Valentin Schmitt. Verene Trott, as executrix of the estate of WilNo opinion. Judgment reversed on argument, and new trial granted, costs to abide the event, on the ground that the complaint sufficiently states a cause of action for money loaned.

pellate Division, First Department. April 25, In re VENABLES. (Supreme Court, Ap1906.) In the matter of George W. Venables. No opinion. Motion denied, with $10 costs. Order filed.

VON DER HEIDE, Respondent, v. SCHUTTE et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Margaret M. Von Der Heide

WARD, Respondent, v. HAWKINS IRON CONST. CO., Appellant. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Patrick J. Ward against the Hawkins Iron Construction Company. A. E. Smith, for appellant. J. N. Tuttle, for respondent. No opinion. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including costs, etc., to $648.54, in which event judgment, as modified, and order, affirmed, without costs. Settle order on notice.

WATERS, Appellant, v. HORACE WATERS & CO. et al., Respondents. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Fanny L. Waters against the Horace Waters & Co. and others. E. W. Hatch, for appellant. N. B. Sanborn, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

WEBER v. MERENESS et al. (Supreme Court, Appellate Division, Fourth Department. March 14, 1906.) Action by Henry F. Weber against Charles S. Mereness, Jr., as trustee, etc., and others. No opinion. Order affirmed, with $10 costs and disbursements.

WEBER, Appellant, v. WALLERSTEIN et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by Henry Weber against Edward Wallerstein and others. No opinion. Motion for leave to appeal to the Court of Appeals denied, with $10 costs.

In re WEBSTER. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) In the matter of the application of John B. Webster for the resubmission of local option questions to the electors of the town of Hanover. No opinion. Order affirmed, with $10 costs and disbursements.

WEEKS v. COE. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of judgment moneys recovered in action of Count W. Weeks against E. Holloway Coe, as executor, etc. No opinion. Motion for leave to appeal to the Court of Appeals denied.

WEINSTEIN, Appellant, v. SHAPIRO et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Joseph Weinstein against Sam Shapíro and Abe Goodman. No opinion. Judgment of the Municipal Court affirmed, with costs.

WEIZINGER, Appellant, v. ERIE R. CO., Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Paul Weizinger against the Erie Railroad Company. I. L. Bamberger, for appel

WELLS, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Henry E. Wells against the Metropolitan Street Railway Company. No opinion. Motion for reargument denied. See 97 N. Y. Supp. 1150.

WELLS, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Sarah Ann Wells against the Metropolitan Street Railway Company. No opinion. Motion for reargument denied.

WHALEN et al. v. FONDA, J. & G. R. CO. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Appeal from Trial Term. Action by John W. Whalen and others against the Fonda, Johnstown & Gloversville Railroad Company. From a judgment and orders in favor of the defendant, plaintiffs appeal. Affirmed.

PER CURIAM. Judgment and orders affirmed, without costs on the appeal of either party.

SMITH, J. (dissenting). The jury has found both plaintiff and defendant negligent. Their conclusion warrants the judgment entered, provided they were guided to that conclusion by proper rules of law stated by the trial judge in his charge. In stating what duty was required of the plaintiff the trial judge said: "If they had the duty to look when they entered on the track, did they not have a duty to continue to look? I so charge you; that their duty was not fully performed by looking to see a car when they entered upon the track, but they should continue the observation so long as they were on the track." Further: "I charge you as a matter of law that this car, run in the manner that they knew it was, had the preference, and they should have been ready to have made the track clear when the car came, and whether they should do it by having a man look is not for us to speculate." In Atlantic Coast Elec Law, 773, 42 Atl. 1041, the Court of Errors tric Railroad Company v. Wilson, 62 N. J. and Appeals of New Jersey has stated the rule that, as between an electric trolley car and a traveler upon the highway upon a country crossing, "neither party at such a crossing has a paramount right of way." In Solomon v. Buffalo Railway Company, 96 App. Div. 487, 89 N. Y. Supp. 99, the rule is recognized that at street intersections a trolley company has no paramount right over a traveler who is crossing the street, and it is further held: "A refusal to charge in such a case that the rights of the street car and of the vehicle at the point in ques tion were equal is not cured by a charge that it was incumbent upon the street railway company 'to use all reasonable care and caution to avoid injury to the plaintiff (an occupant of the vehicle) or to any one else."'" A part of the charge quoted would seem to state the duty of the plaintiff to have been to keep off from the

track at their peril. While this may be deemed to have been modified by other parts of the charge, which stated that they had the right to be upon the track in the performance of their work and that it was their duty to exercise reasonable care, this broad statement could not but have been prejudicial to the interests of the plaintiff in the determination by the jury as to whether they had exercised reasonable care. If, however, this statement may be deemed so far to have been modified by other parts of the charge as to state fairly the rule of law, nevertheless the statement is clearly made that the defendant railroad company had a preference at this crossing. Within the authorities cited a trolley company has no preference over a traveler. I can see no reason why this plaintiff has not an equal right with a traveler. He is lawfully upon the highway at that crossing, and necessarily there in the performance of his work in the repair of the highway. I know of no reason, therefore, why the defendant should have any preference there which would compel the plaintiff to keep clear of the track at its peril. I dissent, therefore, from an affirmance of the judgment so far as the judgment dismisses the plaintiff's complaint.

In re WILLIS AVE. BRIDGE. (Supreme Court, Appellate Division, First Department. April 6, 1906.) In the matter of Willis Avenue Bridge. No opinion. Motion for reargument denied. Leave to go to Court of Appeals granted. Settle order on notice.

WILSON v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. April 20, 1906.) Appeal from Trial Term, New York County. Action by Catherine A. Wilson against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. Edward D. O'Brien, for appellant. Abel Crook, for respond

ent.

PER CURIAM. Judgment affirmed, with costs.

INGRAHAM, J. (dissenting). I do not concur in the affirmance of this judgment, as I think the charge, made at the request of the plaintiff, that, "it being proved that the plaintiff, a passenger in one of the defendant's cars, was thrown down by reason of the car in which

she was riding coming in collision with another in front upon the same track, operated by the same defendant, the negligence of the defendant is presumed," was error which requires a reversal of the judgment. In the main charge the learned trial judge, after stating the general proposition that if the injury was sustained in consequence of the negligence of the defendant, without any fault or negligence on her part, the plaintiff was entitled to recover, and that the burden of proof was upon the plaintiff to establish by a preponderance of evidence that the injury, if any, which she received was due to the negligence of the defendant in the operation and management of the road controlled by it, said: "There are some other charges upon this phase of the case which will be taken up when I consider the requests from both sides, but I will not enlarge upon them now." The court, then charged, at the request of the defendant, that "no verdict can be rendered for plaintiff unless she has proved by a preponderance of credible testimony two things: (1) That the injury was received through the negligence of the defendant; (2) and that no negligence of plaintiff herself contributed in the slightest degree to her injury;" and that "if the motorman of the car in which the plaintiff was a passenger used reasonable care to bring his car to a stop instantly, and the accident was due to a mere error of judgment, without negligence, the verdict must be for the defendant;" and also, "if any presumption of neglithe cars has been rebutted by the evidence of gence arising from the mere fact of collision of the defendant, the burden of proving negligence of defendant causing her injury rests upon the plaintiff. If upon the whole evidence the conclusion of negligence or absence of negligence can be drawn with equal fairness, that burden is not discharged, and the verdict must be for the defendant." Then follows the charge at the request of the plaintiff to which attention has been called. The application of the maxim "res ipsa loquitur" which applies in this case is not a presumption, but a rule of evidence; to recover for personal injuries is a rule of eviand the application of the maxim to an action dence. There is imposed upon a common carrier the obligation to use care and prudence in operating its road for the protection of its passengers, and where an injury results to a passenger, caused in the operation of the road in cident is evidence from which a jury can find the control of its employés, the fact of the acthat it was caused by negligence. It is not a presumption of negligence, but a question of the sufficiency of the evidence of negligence. The question of negligence is always one of fact to be determined from the evidence, and a verdict the defendant was negligent. The proper rule cannot be based upon a presumption of law that is stated in Cosulich v. S. O. Co., 122 N. Y. 127, 25 N. E. 261, 19 Am. St. Rep. 475: "But when the thing causing the injury is shown to be under the control of the defendant, and the accident is such as in the ordinary course of business does not happen if reasonable care is used, it does, in absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part." The whole subject of the application of the maxim "res

ipsa loqitur" was considered by the court of Appeals in Griffen v Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630. In that case it is said by way of illustration: "If it be shown, however, that he was precipitated against the seat by reason of the train coming in collision with another train, or in consequence of the car being derailed, the presumption of negligence arises. The 'res,' therefore, includes the attending circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue- the defendant's negligence. The maxim is also in part based on the consideration that, where the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present." The use of this language, "the presumption of negligence," if standing by itself, might indicate a legal presumption which the jury were bound to apply. What follows, however, I think, clearly illustrates the meaning of the learned Chief Judge and expressly, negatives such a construction. He speaks of the presumption of negligence, but immediately afterwards he says that "the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant's negligence," and that the res includes the attending circumstances, and was evidence to be considered by the jury in determining whether the accident was caused by the defendant's negligence. The question of the defendant's negligence was to be determined upon the evidence, including the inferences to be drawn from the attending circumstances, with the explanation offered by the defendant; but the general rule still applied that the burden was upon the plaintiff to show negligence, and the jury could only find a verdict for the plaintiff when they were satisfied by a preponderance of evidence that the accident was caused by the negligence of the defendant. This charge of the learned trial court, standing by itself, instructed the jury that from the happening of the accident negligence was presumed, and I do not understand that the jury were justified in presuming negligence, but were only to determine from the evidence whether or not negligence as a fact existed.

WILSON et al., Respondents, v. RAYMOND, Appellant. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Action by Joseph G. Wilson and William H. Griffin against Harry Raymond.

PER CURIAM. Judgment of the Municipal Court affirmed, with costs. RICH, J., dissents.

WIMMER, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Mary Wimmer against the

re

Metropolitan Street Railway Company. J. F. Daly, for appellant. L. Skidmore, for respondent. No opinion. Judgment and order versed, and new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including interest, costs, etc., to $15,338.63, in which event judgment, as so modified, and order, affirmed, without costs. Settle order on notice.

WINTER Respondent, v. CITY OF NIAGARA FALLS, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 1+, 1906.) Action by Albert J. Winter against the city of Niagara Falls. No opinion. Order reversed, without costs, and motion granted, upon payment of $10 costs to the plaintiff, together with the costs of the action after service of answer, with leave to the plaintiff to discontinue the action, if so advised, without costs.

WOHLERS, Respondent, v. MANHATTAN RY. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Henry Wohlers against the Manhattan Railway Company and another. J. T. Davies, for appellants. V. P. Donihee, for respondent. No opinion. Judgment affirmed, with costs. Order filed.

ZAPFE v. JOHN MULLINS & SONS, Appellant. (Supreme Court. Appellate Division, Second Department. April 20, 1906.) Appeal from Trial Term, Kings County. Action by Albert Zapfe, as executor, etc., substituted in place of Franz Zapfe, deceased, against John Mullins & Sons. From an order denying defendants' motion for a new trial, they appeal. Affirmed. Frederick Hulse, for appellants. Isaac M. Kapper (Thomas E. Pearsall, on the brief), for respondent.

Was

PER CURIAM. Order affirmed, with costs. GAYNOR, J. (dissenting). I do not see how we can avoid reversing this order. As the deceased was crossing the street afoot he struck by the end of the pole of the defendant's wagon drawn by a team of horses, and hurt. The team was coming along the left side of the street, and toward the plaintiff's left. He testified that he did not look that way in crossing, for the reason that wagons on that side had to come from the other direction. This erroneous notion runs through the case. The learned trial judge charged as follows: "As between a pedes

trian in the act of crossing a street and the driver of a team of horses, there is no law that absolutely requires the teamster with his horses to proceed upon the right hand side of the street. Whether he shall do so or not, and whether negligence on his part may be predicated upon the fact that he failed to do so, depends upon the circumstances of each case as it arises, and it depends upon the circumstances of this case as you find them to be. So that one of the facts that seems to me important for you to consider and determine is, was the street torn up at that place, was there an excavation being made; and if so, was that a sufficient explanation for the driver being in the position in which he was when the collision occurred. If there was no excavation being made there, then it is for you to say whether the evidence affords any reason why this driver should have been in the position in which he claims he was, instead of on the other side of the street. If, on the other hand, the street was being excavated, then it is for you to say to be where he says he was, or where the plain; tiff says he was, when this collision occurred." The substance of this is that if there was a good reason for the driver being on the left side it was not negligence for him to be there, but if there was not, then the jury could find that he

whether that was a sufficient reason for him

was negligently there; if he had to come there to avoid an excavation on the other side, he was excusable for being there, but if this was not so, the fact of his being there was not excused. This was prejudicial error. Negligence could not be predicated on the mere fact of driving along the left side of the road, in the absence of any ordinance or statute forbidding it. The custom or common law of the road in respect of passing to the right relates only to vehicles; it has nothing to do with the duty of drivers to pedestrians. Wright v. Fleischman, 41 Misc. Rep. 533, 85 N. Y. Supp. 62. The order should be reversed.

ASSUR. SOC. OF UNITED STATES, AppelLORD, Respondent, v. EQUITABLE LIFE lant, et al. (Supreme Court, Appellate Division, by Franklin B. Lord against the Equitable Life Second Department. November, 1905.) Action Assurance Society of the United States, impleaded with Alfonso De Navarro and others. junction affirmed, with $10 costs and disburseNo opinion. Order granting preliminary inments, on the opinion upon the appeal from the interlocutory judgment. 109 App. Div. 252, 96 N. Y. Supp. 10.

HOOKER, J., dissents.