*1] *GIBNEY v. STATE OF NEW YORK. | kers, 105 d. 209; Willetts v. B. & A. R. R

Co., 14 Barb. 585; Mangam v. B. R. R. Co., 38 N. Y. 455; Whart. on Negligence, § 311;

Proximate cause-unsafe bridge-drowning. Doran v. City of Troy, 104 N. Y. 684: McGarry

An unsafe bridge is in a legal and judicial sense the cause of the drowning of father as well as child, where the father was drowned while trying to save the child, which had fallen into the water in consequence of the defect in the bridge.

v. Loomis, 63 id. 106; Wendall v. R. R. Co., 91 id. 423.

The law imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such a care and the infant is thereby brought into danger and the result is injury from the negligent act of another, the negligence of parents or guardians is deemed Williams V.

APPEAL from judgment in favor of the Guardinger, 66 Hun, 611 on 58 511; 1lonegsberger v. S.

claimant entered upon an award made A. R. R. Co., 1 Keyes, 570; Thurber v. H. R. R.

by the Board of Claims April 13, 1892.

The nature of the claim and the facts, so far as material, are stated in the opinion.

S. W. Rosendale, Attorney General, for appellant:

The liability of the State to be determined in this claim must be based upon the same rules and principles as though this were an action against an individual or a corporation. Laws

2) 1870, chap. 321, § 1; Laws 1883, chap. 203. § 13; Sipple v. State, 99 N. Y. 284; Bowen v. State, 108 id. 166; Splittorf v. State, Id. 213.

The claimant failed to prove negligence on the part of the State. Dugan v. C. T. Co., 56 N. Y. 1; Hart v. H. R. B. Co., 84 id. 62; Loftus v. U. F. Co., id. 455; Hubbell v. City of Yonkers, 104 id. 434; Taylor v. City of Yonkers, 105 id. 209: Laflin v. B. & S. R. R. Co., 106 id. 139 Hunt v. Mayor, etc., 109 id. 134; Glasler v. Hebron, 131 id. 452; Egan v. B. A. Assn., 16 Daly, 218.

Co.. 60 N. Y. 333; Wendall v. N. Y. C. & II.
R. R. R. Co., 9i id. 426; Powers v. Harlan, 53
Mich. 507; Hally v. B. G. L. Co., 8 Gray, 123;
Madden v. M. & M. R. Co., 4 Allen, 283; Calla-
han *v. Bean, 9 id. 401.

[3

The cause of the death of the child was not the proximate cause of the death of John F. Gibney. M. R. Co. v. Kellogg, 94 U. S. 469; Hoag v. L. S. R. R. Co., 85 Penn. St. 293; Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210; P. R. R. Co. v. Kerr, 62 Penn. St. 353; Read v. Nichols, 118 N. Y. 224.

Edwin C. Angle, for respondent:

The notice of appeal raises no question for review by this court. Greany v. L. I. R. R. Co., 101 N. Y. 419; Feeney v. L. I. R. R. Co., 116 id. 375; Massoth v. D. & H. C. Co., 64 Id. 524; Laws 1883, chap. 205, § 10: Bowen v. State, 108 N. Y. 166; McDonald v. State, 127 id. 18; Code Civ. Pro. §§ 1337, 1338; Flack v. Vil, of Green Island, 122 N. Y. 107; People ex rel. v. French, 123 id. 636; Holcome v. Town of Champion, 36 N. Y. S. R. 759.

The facts proved made out a case against the State, the same as if such action were against an individual or a corporation. Code Civ. Pro.

§ 1902: Sipple v. State, 99 N. Y. 284; Beck v. Carter, 68 id. 283; Nims v. Mayor, etc., 59 N. Y. 500 S. & R. on Neg. §§ 147, 148.

The claimant failed to prove that her Intestate was free from negligence causing or contributing to his death. Johnson v. H. R. R. R. Co., 20 N. Y. 73; Wilds v. H. R. R. R. Co., 24 id. 430; Warner v. N. Y. C. R. R. Co., 44 id. 465 Davis v. N. Y. C. R. R. Co., 47 id. 400; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 Id. 248: McDonald v. L. I. R. R. Co., 116 id. 546; The third and fourth findings of the Board Dobbins v. Brown, 119 Id. 188; Steves v. S. R. of Claims of the State was negligent in leav R. Co., 18 id. 425: Ilonegsberger v. S. Ave. R. R. ing a dangerous hole or opening in the footway Co., 1 Keyes. 570; Cordell v. N. Y. C. & H. of the bridge unguarded and unprotected. and R. R. R. Co., 75 id. 330: Hoag v. N. Y. C. & H. that such negligence was the direct cause of R. R. R. Co., 111 id. 199: Bond v. Smith, 113 the accident is abundantly sustained by the eviId 378: Wiwirowski v. 1. S. & M. S. R. Co., dence. Nolan v. King. 97 N. Y. 565; Bowen 124 id. 425: Hale v Smith 78 id. 483: Powell v. State, 108 id. 166: Ahern v. Steele. 48 Hun, Powell, 71 id. 73, Taylor v. City of Yon-517; Woodman v. State. 127 N. Y. 397; Bridge

V

Gibney v. State of New York.

Co. v. Williams, 5 Dana, 403; S. & R. on Neg. tion, while it may have been the cause of the 251; Orcutt v. K. B. Co., 53 Maine, 500; State death of the boy, cannot be regarded as the V. Z., etc., Co., 16 Ohio St. 308; Bidwell v. Town of Murray, 40 Hun, 192; Bostwick v. cause of the death of the father, although it Barlow, 14 id. 177; Todd v. City of Troy, 61 occurred in an attempt to save the life of the N. Y. 500; McCarthy v. City of Syracuse, 46 child. It is doubtless true that except for id. 194; O'Reilly v. Vil. of Sing Sing, 15 N. Y. S. R. 905; Bond v. Smith, 44 Hun, 219; Lyons the peril of the child, occasioned by his fallv. Rosenthal, 11 id. 48; Kearney v. L. R. R. ing through the bridge into the canal, there Co., L. R. (5 Q. B.) 411; Mullen v. St. John, would have been no connection between the 57 N. Y. 567; Edgerton v. N. Y. C. & H. R. R. R. Co., 39 id. 227 Hune v. Mayor, etc., 74 id. negligence of the State and the drowning of 264; Smith v. B. & N. Co., 86 id. 408; the father. But the peril to which the child *4] Wooster v. 42d St. R. R. Co., 50 id. 203. was exposed was, as has been found, the reClaimant's intestate was not guilty of consult of the negligence of the State, and the tributory negligence in jumping Into the canal to rescue his son. It is only where contributory negligence is conclusively established by evidence which leaves nothing either of inference or of fact in doubt, that the court can rule, as a matter of law, that such negligence exists. Gill v. City of Rochester, etc., R. R. Co., 37 Hun, 107; Johnson v. H. R. R. R. Co., 20 N. Y. 65; Newson v. N. Y. C. R. R. Co., 29 Id. 383; Philips v. N. C. R. R. Co., 127 id. 657; Galvin v. Mayor, etc., 112 id. 223.

The amount of damages awarded is not excessive. Drew v. 6th Ave. R. R. Co., 26 N. Y. 49; McGovern v. N. Y. C. R. R. Co., 67 id. 418; Casey v. N. Y. C. & H. R. R. R. Co., 78 Id. 518 State v. Burgess, 47 id. 521; Boles v. R., W. & O. R. R. Co., 46 Hun, 324; Houghkirk v. D. & H. C. Co., 92 N. Y. 219; Walters v. C. & C. R. R. Co., 41 Iowa, 71; Terry v. Jewett, 78 N. Y. 338; Johnson v. N. Y. C. R. R. Co., 20 id. 65; Mangam v. B. R. R. Co., 38 id. 455 Newson v. N. Y. C. R. R. Co., 28 id. 383; Stalbing v. Marshall, 2 Civ. Pro. Rep. 78; P. R. R. Co. v. Bauten, 54 Penn. 495: Murphy v. N. Y. C. R. R. Co., 88 N. Y. 445; Morrell v. Peck, id. 398 Thomas v. U., etc., R. R. Co., 34 Hun, 626; Lockwood v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 523; Pineo v. N. Y. C. R. R. Co., 34 id. 80, 99 Id. 644; Carpenter v. B., etc., R. R. Co., 38 Hun, 116 Birkett v. K. 1. Co.. 41 d. 404; James v. N. Y. C. R. R. Co., 28 id. 364.

peril to which the father exposed himself was the natural consequence of the situa tion. It would have been in contradiction of the most common facts in human experience if the father had not plunged into the canal to save his child. But while the immediate cause of the peril to which the father exposed himself was the peril of the child, for the purpose of administering legal remedies the cause of the peril in both cases may be attributed to the culpable negligence of the State in leaving the bridge in a dangerous condition. There is great difficulty in many cases in fixing the responsible cause of an injury. When there is a break in the chain of causes by the intervention of a new agency, and then an injury happens, is it to be attributed to the new element, and is this to be treated as the originating cause to the exclusion of the antecedent one, without which no occasion would have arisen for the introduction of a new element? It is [*6 impossible to formulate a rule on the subject capable of definite and easy application.

Andrews, Ch. J. We have decided on and proximate results of a wrong are those The general rule is that only the natural the appeal brought from the award of dam- of which the law can take notice. But ages for the death of the infant son of the where a consequence is to be deemed proxiplaintiff, that the evidence authorized a find- mate within the rule is the point of difficuling of negligence on the part of the State ty. In this case these elements are present: authorities in permitting the opening in the Culpable negligence on the part of the State; bridge, through which the boy fell into the the falling of the child into the canal canal, to remain unguarded, and also the through the opening which the State neglifurther finding that there was no contribu- gently left in the bridge; the natural and tory negligence on the part of the parents instinctive act of the father in plunging into of the child, and we therefore affirmed the the canal to rescue the child; the drowning award. The present appeal is from an of both; the fact that such an accident as award made for damages sustained by the that which befell the child might reasonably widow and next of kin, arising from the have been anticipated as the result of the *5] drowning of the plaintiff's husband and condition of the bridge; and the further conthe father of the child, in an attempt to res-sideration that a parent or other person seecue the child from the canal, into which the

child had fallen.

The material facts are undisputed. The plaintiff, with her husband and child, in an evening in August, while crossing the bridge,

met an acquaintance, and the parents stopped to talk with him. The child remained within a few feet of them, and suddenly fell through the opening in the railing of the bridge into the canal below. The father, as soon as he discovered that the boy was gone, plunged into the canal to recover the child, and both father and son were drowned.

It is contended by the attorney-general that the negligence of the State in permitting the bridge to remain in an unsafe condi

ing the child in the water would incur every reasonable hazard for its rescue. We think it may be justly said that the death both of the negligence of the State, and that the unthe child and parent was the consequence of safe bridge was in a legal and juridical sense the cause of the drowning of both.

We can perceive no sound distinction between this case and the Eckert Case, 43 N. Y. 502, 3 Am. Rep. 721. In that case the railroad train was being propelled at a dangerous speed. The negligence was active. In this case it consisted of an omission, that is, in the failure to originally construct the bridge properly, or permitting it to become dangerous. We do not perceive how the

Gibney v. State of New York-United Lines Telegraph Co. v. Grant.

difference in the circumstances of the negli-
gence affects the question of proximateness
between the cause and the result, so as to
distinguish in this respect the two cases.
The Balloon Case, 19 Jo. 381, 10 Am. Dec.
234, and the case of Thomas v. Winchester,
6 N. Y. 397, 57 Am. Dec. 455, give support to
our conclusion.

The judgment should be affirmed.

All concur, except Maynard, J., not sit- a platform erected for convenience in handling ting.

A Term of the Supreme Court in the first cannot be said to have been the proximate cause of the injury, in the absence of evidence that the judicial department, entered upon an order injuries would not have been sustained had he made March 7, 1892, which affirmed a judg not been so moved. Laidlaw v. Sage, 158 N. Y.ment in favor of defendant, entered upon a decision of the court on trial at Special Term.

United Lines Telegraph Co. v. Grant.

Andrew Wesley Kent, for appellant:

The acts of 1885 and 1886, so far as they attempt to authorize the imposition and apportionment of assessments, are void. They vio8] late the constitutional provision that no person shall be deprived of property without due process of law. Stuart v. Palmer, 74 N. Y. 183; Remsen v. Wheeler, 105 id. 573; McLoughlin v. Miller, 124 id. 517; Lennon v. Mayor, etc., 55 id. 361; People v. Turner, 117 id. 237; N. Bank v. Kimball, 103 U. S. 732; L. W. Co. v. Clark,

143 id. 1.

or want of authority on the part of the comptroller in making the assessment. Livingston v. Hollenbeck, 4 Barb. 9; Hyatt v. Bates, 40 N. Y. 164, 167; Mayor, etc., v. Davenport, 92 id. 613; Louisiana v. Jumel, 107 U. S. 711.

Finch, J. This action was brought in equity to obtain an injunction restraining the sheriff of the city and county of New York from executing a warrant of collection issued by the comptroller of the State to enforce the payment of an assessment imposed upon the plaintiff under and by virtue of the act of 1884 (chap. 534), and that of 1885 (chap. 499), amended in 1886 (chap. 503). The assessment was for the plaintiff's share of the expenses incurred in building a subway under the streets of the city, and placwires ing therein the electric Peowhich

The comptroller illegally exercised the powers conferred upon him by the acts. Elwood v. City of Rochester, 122 N. Y. 229.

Plaintiff had no adequate remedy at law. Wheeler v. Bedford, 54 Conn. 244; Trimmer v. City of Rochester, 130 N. Y. 405 Woolsey v. Morris, 96 id. 315; Livingston v. Hollenbeck, 4 Barb. 9; Hyatt v. Bates, 40 N. Y. 167; Mayor, etc., v. Davenport, 92 1d. 613.

7.

The writ of certiorari is inapplicable.
ple v. Parker, 117 N. Y. 86; U. S. Co. v. City of
Buffalo, 82 id. 351; People v. Dunkirk, 38 Ilun,
The writ of certiorari is inadequate. 102
N. Y. 631; Bank v. City of Elmira, 53 id. 59;
A. Bank v. Mahler, 9 Fed. Rep. 884.

The proper remedy is an action to restrain the collecting officer. Osborn v. U. S. Bank, 9 Wheat. 738; Foote v. Linck, 5 McL. 616; Lennon v. Mayor, etc., 55 N. Y. 361; Bristol v. Johnson, 34 Mich. 123; Gage v. Graham, 57 Ill. 144; Allwood v. Cowen, 111 id. 481.

overhang such streets and imperil the [*10 safety of the people. The complaint has two aspects. It alleges, first, that the statutes whose authority was invoked are unconstitutional; and second, that if not, their directions have been materially disregarded in the action taken under them, and the grounds on which equitable relief is sought are that there is no adequate remedy at law, that a collection of the warrant, as threatened, will produce an irreparable injury to

S. W. Rosendale, Attorney General, for the plaintiff's business, and that the money, respondent:

As adequate remedies are provided by law, an action for an injunction will not lie. Code Crim. Pro. § 2140; D. & H. C. Co., v. Atkins, 121 N. Y. 246; People v. Zoll, 97 id. 208; Mur.ray v. Graham, 6 Paige, 622; M. B. Ins. Co. v. New York, 3 Keyes. 182; Guest v. City of Brooklyn, 69 N. Y. 506.

The plaintiff has not brought this action within any acknowledged head of equity jurisdiction. W. R. R. Co. v. Nolan, 48 N. Y. 513; W. R. R. Co. v. Smith, 101 id. 684; D. & H. C. Co. v. Atkins, 121 Id. 246; Milwaukee v. Koef

fler, 116 U. S. 219.

The statutes, chapter 499 of the Laws of 1885, as amended by chapter 503 of the Laws of 1886, and chapter 330 of the Laws of 1886, are not unconstitutional. People ex rel. v. Squire, 107 N. Y. 593. 145 U. S. 175: A. *9] R. T. Co. v. Hess, 125 Id. 641; R. R. Co. v.

Gibbs, 142 U. S. 386.

when collected and paid into the treasury of the State, cannot be recovered back. The complaint was dismissed, and that judgment has been affirmed by the General Term.

I think the decision was right. There was an adequate remedy at law, and no sufficient ground for the demand of equitable relief. If the subway statutes are unconstitutional, they are null and void for every purpose, and simply do not exist as authority for any act, and the plaintiff may resist, in the ordinary way, any trespasser who intereferes with its property. There is no such authority in a State officer as to protect him from the fate of a trespasser when he directs the seizure of the citizen's property without the shadow of a legal right, and he is no more safe when

he acts under a void statute than when he

acts without any. Where he has an authority, but deviates from it erroneously, and when acting judicially, he has protection; but he cannot act judicially where he has no authority to act at all. In Merritt v. Read,

The comptroller had authority, and it was his duty, to make the assessment Immediately after the passage of chapter 330 of the Laws of 1886. There is no merit in the contention of the plaintiff that the statutes of 1885 and 1886 were unconstitutional because, in effect, they deprived plaintiff of property without due proc ess of law. Cooley on Taxation (2d ed.), chap. 19: In re De Peyster. 80 N. Y. 565: In re Low-5 Denio, 352, the liability of an officer issuden, 89 d. 548 McMahon v. Palmer, 102 id. 176: People v. McCarthy. Id. 643: Sturges v Carter. 114 U. S. 511: Hager v. Reclamation

Dist., 111 U. S. 701-710: Davidson v. City of New Orleans, 96 id. 102: Wallston v. Nevin, 128 id. 578. 582: Happeld v. City of Buffalo. 130 N. Y. 387; Palmer v. McMahon, 133 U. S. 669.

138.

ing process absolutely void was explicitly and fully recognized, and in Bellinger v. Gray, 51 N. Y. 610, we held a supervisor liable as a trespasser for issuing an illegal and unauthorized tax warrant.

Not only the comptroller issuing the void The assessment was not illegal or erroneous process, but the sheriff also, would have been because the wires of the corporation of the city liable for a seizure of the plaintiff's properof New York were not considered by the comptroller in determining or apportioning the as-ty. The protection given to the collecting sessment. M. Bank v. New York, 121 U. S. officer is where his process emanates from a competent judicial authority and is regular He is not bound to look beyond on its face. it, and may assume its validity. But the comptroller has no general judicial authority SO аз to bring his warrant *within the rule of Hallock v. Dominy, [*11

The comptroller properly apportions the moneys to be raised by cities. Genet v. City of Brooklyn, 99 N. Y. 306: Spencer v. Merchant, 100 id. 585, 125 U. S. 345: State v. County of Kings, 125 N. Y. 320; In re Lowden, 89 id. 548.

The plaintiff cannot maintain an action against the sheriff because of any alleged error

United Lines Telegraph Co. v. Grant-Birmingham v. Rochester City & Brighton R. Co.

the assessment, it is sufficient to say that the plaintiff had an ample and sufficient remedy by certiorari. Code, § 2140; Mayor, etc., v. Davenport, 92 N. Y. 604; D. & H. Canal Co. v. Atkins, 121 N. Y. 246. It is no answer to urge that the allowance of the writ is discretionary. That discretion is not arbitrary, and it must be assumed that the writ will always issue where there is a proper subject for review.

There was no sufficient ground for a suit in equity, and the complaint was properly dismissed.

The judgment should be affirmed, with

costs.

All concur, except Maynard, J., not sit-
Judgment affirmed.

ting.

As to injunction to restrain the collection of 22 L. R. A. 699. illegal taxes, see Odlin v. Woodruff (31 Fla. 160)

It is a rule of public policy that courts will not interfere by injunction to restrain the collection of a tax, unless upon some equitable ground. Western R. Co. v. Nolan, 48 N. Y. 513; Cheatham v. United States, 92 U. S. 85, 23 L. ed. 561; Delaware & H. Canal Co. v. Atkins, 121 N. Y. 246: Kilbourne v. St. John, 59 N. Y. 21, 17 Am. Rep. 291.

Collection of a tax will not be enjoined on the ground that Its assessment is illegal. Susquehanna Bank v. Broome County Supers. 25 N. Y. 312: Comins v. Jefferson County Supers. 64 N. Y. 626; Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65.

69 N. Y. 239, where the officer was protected under process regular on its face, although the law under which it was issued was unconstitutional, because the magistrate had a general judicial authority. Here the warrant was void on its face if plaintiff's theory is correct. It recites in terms the authority upon which it was founded, as being the act in question, and the comptroller had no general judicial power under which to pronounce it constitutional. No law made him the judge of that question. In Patrick v. Solinger, 9 Daly, 151, the rule was correctly stated that, when it appears on the face of the process that the court or officer issuing it had not jurisdiction of the subject-matter of the suit and of the person of the party, it is void, not only as against the court or magistrate and party suing it out, but affords no protection to the officer. In Woolsey v. Morris, 96 N. Y. 311, the officer was protected because some of his process was valid, and he could justify a mere levy under that. Here the process issued to the sheriff was void on its face, if the authority which it recited was merely an unconstitutional law; and where the process is so void it gives no protection to the officer. Van Rensselaer v. Witbeck, 7 N. Y. 517. Beyond that, if the plaintiff's property should be sold on the warrant the purchaser would get no title unless he could show constitutional authority for the issue of the warrant, and the plaintiff by replevin or action of trespass could retain his property or recover its value, and the action would bring up the precise question of the constitutionality of the acts assailed. Lennon v. Mayor, etc. 55 N. Y. 361. There was thus a complete and adequate remedy at law. Nothing in the complaint or in the facts shows that the mere collection of the warrant would be an irreparable injury to the plaintiff's business. To hold that would be to expose every execution to an injunction. Nor is it of any consequence if Street railway-injury to passenger neglithe State could not be sued for a restoration of the money collected. The cases in the Federal Circuit Court, of which Woolsey v. Dodge, 6 McLean, 142, is an example, in which injunctions were issued to restrain the *12] collection of a tax *imposed by an unconstitutional law. went distinctly upon the ground that the levy would be an annually occurring grievance until the State law should be repealed, and involve a multitude of suits at law. Nothing of the kind exists here. The assessment is not a tax, nor is there any collision between State and Federal adjudication to complicate the situation. Assuming, therefore, what we are very far from admitting (People ex rel. v. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 145 U. S. 175, 36 L. ed. 666), that the acts assailed were unconstitutional and void, no case was made for equitable relief.

As it respects the second ground of the action, which concedes the constitutional validity of the statutes, but urges that the officer disobeyed and varied from their terms, and did not lawfully and regularly make

for the collection of statutory penalties be mainNor can an action to restrain a prosecution tained unless the invalidity of the statute has been previously decided. Wallack v. Society for Reformation of Juvenile Delinquents, 67 N. Y.

23.

*BIRMINGHAM v. ROCHESTER [*13 CITY & BRIGHTON RAILROAD COMPANY.

(Rev'g 45 N. Y. S. R. 724.)

gence-highway.

A street-rallway company is not liable for In

Jury to a passengar, caused by Iron falling from
a canal bridge belonging to the State and over
which the railroad company has no control, but
which it is necessary to cross on Its route, If
the company has not been guilty of negligence
in falling to discover the defect.
The failure of a street-rallway company to
discover a defective welding in an iron on a
canal bridge belonging to the State, which the
street railway was obliged to cross, is not evi-
dence of negligence sufficient to go to the jury,
where there was nothing to suggest to the gen-
eral traveler or to the company the presence of
any such defect, and it was not discoverable by
one using the bridge merely for the purpose of
crossing.

Intersects a highway, while under the care, cus-
A bridge over a canal of the State, where it
tody, and control of the State, is to be regarded
as part of the highway.

APPEAL from judgment of the General

Term of the Supreme Court in the fifth judicial department, entered upon an order made March 29, 1892, which affirmed a judg ment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.