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[Vol. 86. coverture, and the defendants' claim for damages against her as her husband's devisee does not arise out of nor is it connected in a legal sense with the subject of her action.

The judgment, however, is irregular in that it purports to be final and not interlocutory, and in that it permits the collection of the costs before a trial of the whole issue. Section 1221 of the Code of Civil Procedure provides for final judgment on the whole issue only after all the issues have been tried, where one or more issues of law and one or more issues of fact arise in the same action. In Biershenk v. Stokes (46 N. Y. St. Repr. 179) it was held that the proper judgment upon a demurrer to a counterclaim set up in an answer containing other issues, should be interlocutory, and that a final judgment cannot be entered until the case is ready for final judgment upon all the issues. And in Armstrong v. Cummings (22 Hun, 570) it was held that the costs granted upon sustaining a demurrer to part of an answer could neither be recovered nor assigned until judgment should be rendered on the issues generally. The judgment should be modified in the particulars indicated, and as modified affirmed, without costs of this appeal.

GOODRICH, P. J., BARTLETT, WOODWARD and HOOKER, JJ., concurred.

Judgment modified in accordance with the opinion of HIRSCHBERG, J., and as modified affirmed, without costs of this appeal.

WILLIAM J. BELFORD, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Appellant.

Contributory negligence-driving upon a street railway track without looking back or listening for a car approaching from the rear.

In an action brought to recover damages for injuries done to the plaintiff's horse, wagon and harness, in consequence of one of the defendant's cars having run into the wagon from the rear while the plaintiff's servant was driving it along the defendant's street car tracks, the evidence tended to show that the accident took place late at night when it was very dark; that the plaintiff's servant had driven on the track for a distance of about 850 feet and that he did not look back, or, so far as appeared, listen for approaching cars, although he

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was familiar with the locality and knew that cars were likely to approach from the rear.

Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, on the ground that the plaintiff had not affirmatively proven that his servant was free from contributory negligence.

APPEAL by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of December, 1902, upon the verdict of a jury for $235, and also from an order entered in said clerk's office on the 12th day of January, 1903, denying the defendant's motion for a new trial made upon the minutes.

I. R. Oeland and George D. Yeomans, for the appellant.

Charles F. Brandt, for the respondent.

HIRSCHBERG, J.:

The judgment recovered by the plaintiff is for injuries to a horse, wagon and harness belonging to him, occasioned by a rear-end collision with one of the defendant's cars, in the borough of Brooklyn. The plaintiff is a contractor, and the property in question was at the time in the charge of a driver in his employ engaged at the time in carrying mail. The driver drove upon the north-bound track on Third avenue at Sixty fifth street, and continued driving north, or toward the City Hall, until he reached a point between Sixty-second and Sixty-first streets, when he was run into and the damages complained of occasioned. He estimates the distance he so drove at about 850 feet. It was late at night and very dark. He neither looked back at any time before the collision, nor, so far as his evidence shows, did he listen for an approaching car. He was familiar with the locality and knew that cars were likely to come on the track behind him, and also knew the speed at which they were customarily run. While there was sufficient evidence to sustain the conclusion that the car was run on this occasion at a high rate of speed and under circumstances indicative of negligence, it is evident from the statement of the driver's conduct that the plaintiff has failed to prove afirmatively the freedom from contributory negligence which the law requires as a condition precedent to recovery in this class of cases.

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[Vol. 86.

The rule was clearly stated by Presiding Justice GOODRICH in Bossert v. Nassau Electric R. R. Co. (40 App. Div. 144, 145) as follows: "This court is committed to the doctrine that while it is not negligence, as matter of law, for one driving a wagon at night on the track of a surface railroad to fail to look backward to see an approaching car, yet he may not rely wholly upon the supposition that the railroad's servants will see him in time to give warning, and that he must be on the alert to discover in some manner and by some exercise of his senses the approach of a car from the rear. (Devine v. Brooklyn Heights R. R. Co., 34 App. Div. 248; Johnson v. Brooklyn Heights R. R. Co., Id. 271; Quinn v. Brooklyn City R. R. Co., post.)"

In Quinn v. Brooklyn City R. R. Co. (40 App. Div. 608) the rule is repeated with the additional statement in reference to the necessity of exercising some of the senses that "for a failure to prove the exercise of such caution we have reversed judgments obtained by the plaintiffs in actions for negligence." The rule has been frequently applied in this court, a recent instance being in the case of Reynolds v. Larchmont Horse R. Co. (83 App. Div. 189).

The plaintiff's driver testified that his hearing was good, but that nevertheless he did not hear the car until his wagon was actually struck by it. There is no inference to be drawn from this circumstance that he was on the alert and listening for it, but rather in view of the well-known fact that trolley cars cannot be run at a high rate of speed in the silence of the night without making some noise that the reason he did not hear was because he was not listening. At all events the burden of proving affirmatively that the driver did exercise his senses rests upon the plaintiff ; a total failure to make any proof whatever upon that subject is a violation of the ruie referred to, and a recovery under such circumstances would be based upon the theory unknown to our law that one who drives upon a railroad track until negligently run into and injured may obtain damages upon the mere proof of the happening of the casualty.

The point was raised by an exception to the denial of the defendant's motion for a nonsuit, and it was also raised and emphasized by the defendant's exception to the court's refusal to charge that if the plaintiff (meaning of course through his driver) "drove 800 feet or

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more upon the track, knowing the dangers of the situation and being familiar with them, without making an effort to ascertain whether a car was approaching behind him, and that contributed to the accident, he cannot recover." This refusal was equivalent to an instruction in effect that the driver was under no obligation to make any effort to ascertain the approach of a car, either by looking or listening, and was error notwithstanding the fact that the law on the subject of looking had been carefully presented to the jury in the main charge.

It follows that the judgment and order should be reversed.

BARTLETT, WOODWARD, JENKS and HOOKER, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

MARY BUTCHER, as Administratrix, etc., of THOMAS BRADY, Deceased, Respondent, v. JOHN QUINN and the EMIGRANT INDUSTRIAL SAVINGS BANK, Appellants.

Judgment not vacated, on the ground that it was prosecuted by an attorney without authority, where the client has acquiesced in its prosecution what notice is insufficient to show want of authority in an attorney.

An administratrix, by a writing dated July 27, 1901, authorized an attorney to commence an action for the purpose of determining the title, as between the estate represented by her and one Quinn, to a savings bank deposit. The attorney commenced the action against Quinn and the savings bank on the afternoon of August 21, 1901, but on the evening of the same day he was dis charged by the administratrix. Notwithstanding his discharge, the attorney proceeded with the action which was tried December 20, 1901, resulting in a judgment awarding the fund to Quinn. The bank promptly paid the fund in controversy to Quinn.

The administratrix, although she had full knowledge that the action had been commenced, deliberately elected to permit it to proceed to judgment without notifying either of the defendants that she had discharged her attorney or that he was prosecuting the action against her will. It appeared, however, that, after discharging the attorney of record, the administratrix retained another attorney, and that on August 26, 1901, there was served on the bank a notice signed by such other attorney, on behalf of the administratrix, notifying it not to pay the money in controversy to any one other than the adminis tratrix. It was not claimed that the action was not fully and fairly tried or properly decided, or that a different result would be reached on a new trial.

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. Held, that a motion made by the administratrix to vacate the judgment, on the ground that the attorney of record was not authorized to conduct the action, should be denied;

That the receipt by the bank of the notice not to pay the fund to any one other than the administratrix, although signed by a different attorney than the attorney of record, was not, in itself, calculated to excite suspicion as to the authority of the attorney of record.

APPEAL by the defendants, John Quinn and the Emigrant Industrial Savings Bank, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of August, 1902, as resettled and amended by an order entered in said clerk's office on the 9th day of August, 1902, and also from an order entered in said clerk's office on the 13th day of August, 1902, vacating and setting aside a judgment in favor of the defendant John Quinn entered in said clerk's office on the 8th day of January, 1902.

The above appeals are as stated in the notices thereof, but the record on appeal does not contain the orders, other than the order entered on August 13, 1902. No brief was filed or argument made at the Appellate Division on behalf of the appellant John Quinn.

Richard O'Gorman, for the appellant Emigrant Industrial Savings Bank.

Bernard J. Douras, for the respondent.

HIRSCHBERG, J.:

This action was commenced on August 21, 1901, for the purpose of determining the title as between the plaintiff in her representative capacity and the defendant John Quinn to a deposit in the bank of the appellant. The case was tried at Brooklyn on December 20, 1901, and resulted in a judgment entered January 8, 1902, decreeing the ownership in Quinn, to whom the bank duly paid the fund in accordance with the requirements of the judgment on January 11, 1902. The order appealed from, granted on the plaintiff's motion, vacates this judgment on the ground that the attorney who represented her, viz., Mr. Edwin B. Fiske, began and continued the action without authority. After a careful examination of the very voluminous testimony taken before a referee upon the hearing of the motion I have reached the conclusion that the order is unjust to the