is for his fees in those cases. He presented his account in due

form to the board of auditors of the town of Hamden at their annual meeting in November, 1889, but the board rejected it, and refused to audit and allow the same, or any part thereof. The present proceeding was commenced about January 1, 1890. There was no dispute at the special term about the facts. Nor is the correctness of the bill of plaintiff disputed, assuming that it is a proper one to be allowed. By section 26 of chapter 180 of the Laws of 1845, as amended by chapter 455 of the Laws of 1847, it is provided as follows:

"And whenever any criminal warrant or process shall be issued by any magistrate residing out of the town or city wherein the offense shall have been committed, it shall authorize the officer executing the same, to carry the person charged with an offense under this act, before any magistrate resident and being in the town or city wherein such offense shall have been committed, to be proceeded against according to the provisions of the fifteenth section of this act; but the magistrate issuing such warrant or process, shall not lose any jurisdiction over the trial and proceedings against such persons by reason of anything herein contained, nor shall such magistrate be allowed any compensation for any further proceedings in any such case beyond issuing such warrant or process."

The claim of the appellant is that this statute is still in force, and that under it the relator had no legal claim against the town, at least for any fees for services beyond the issuing of the warrants. This precise question was fully considered by Justice Parker in the case of People ex rel. Fraser v. Board of Auditors, (Sup.) 2 N. Y. Supp. 609, and it was there held that the authority and requirement in the act of 1845 to make the warrant returnable before a magistrate of the town where the offense was committed were in effect repealed by the provisions of the Code of Criminal Procedure, and that with such repeal the prohibition as to fees became inoperative. For the reasons stated in the opinion in that case we are inclined to concur in the view that the right given by the act of 1845 to make the warrant returnable before a justice of the town where the offense was committed was taken away by the provisions of the Code of Criminal Procedure. The prohibition as to fees applies only to the cases within the scope and under the control of the quoted provision of the act. The phrase "any such case" refers only to cases where the power is given to transfer to a justice of the town where the offense was committed. That was an essential element to the prohibition, and, that element being absent, the main reason and ground for the prohibition fail. We think that the prohibition is not applicable to the present case. It is not necessary to consider the effect of section 165 of "the town law," as that was not in force when the account of plaintiff accrued.

The appellant further claims that the motion of the relator should have been denied because he had another legal remedy, in that he had a right to appeal to the board of supervisors, under the provisions of chapter 832 of the Laws of 1866. This objection does not appear to have been taken at the special term. If not,

it should not be available here. Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. Rep. 541. In People v. Town Auditors of Shawangunk, 1 How. Pr. (N. S.) 224, it was held in a case like the present one that the remedy by mandamus was proper, although the relator had the right of appeal to the board of supervisors. In People v. Town Auditors of Westford, 53 Barb. 555, a writ of mandamus was allowed, although the statute of 1866 was then in force. So it has been held that as to corporations and minis terial officers the existence of another and an adequate remedy is no objection to awarding the writ. People v. Steele, 2 Barb. 418; Buck v. Lockport, 6 Lans. 251. The relator had no remedy by action, and the fact that he might have appealed to another board is not, under the circumstances of this case, a good ground for reversal. It follows that the order should be affirmed. Order affirmed, with $10 costs and disbursements.

MERRIS v. HUNT.

(Supreme Court, General Term, Fourth Department. September, 1893.) JUSTICE OF THE PEACE-ADMISSION OF EVIDENCE HARMLESS ERROR.

Where, in an action in justice's court for damages for breach of warranty of a horse, the judgment of the justice for plaintiff is sustained by the evidence, and is fair to defendant, it is error to reverse it because evidence was admitted of the cost of the use of another horse to favor the one purchased, when no special damage for such cost was claimed, and it was not offered or received on the question of damages, but by way of explanation of what had been drawn out by cross-examination of the witness.

Appeal from Onondaga county court.

Action by George Merris against Charles Hunt for damages for breach of warranty in the sale of a horse, commenced before a justice of the peace, and taken on appeal by defendant to the county court. From a judgment reversing the judgment of the justice, plaintiff appeals. Reversed.

Argued before HARDIN, P. J., and MERWIN, J.

M. H. Kiley, for appellant.

Waters, McLennan & Waters, for respondent.

MERWIN, J. The action in this case was to recover damages for breach of warranty in sale of a horse. The plaintiff recovered in the justice's court to the extent of $38.75 damages, but the county court reversed the judgment, upon the ground that evidence of the plaintiff himself as to the cost of the use of another horse to favor the one in question was improperly received on the question of damages. No claim, however, was made by the plaintiff for any special damages of this character, nor was the objection taken that it was not proper on the question of damages. Both parties appeared by counsel, and it is quite clear that both sides understood what the correct rule of damages was. From the whole

case the fair inference is that this evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out by defendant's counsel in the cross-examination of the plaintiff. It may be for this purpose it was not strictly proper, but it was not of such importance as to call for a reversal in the light of the other evidence in the case. There was no doubt about the right of the plaintiff to recover some amount. The evidence of the defendant himself called for the recovery of damages to the extent of at least $25, and, as appears by the amended return, he does not seem to be willing to say that that amount will make the horse as good as warranted. One witness called by the defendant on the subject of damages, and apparently reliable, places the damages at $45. The evidence on the part of plaintiff showed damages to the extent of $50. The finding of the justice that plaintiff sustained damages to the extent of $38.75 is abundantly sustained by the evidence, and, as well said by the county judge, "seems to be eminently fair towards the defendant."

The counsel for defendant suggests that errors sufficient to call for a reversal were made by the justice in other rulings on the subject of value. We think not. We think that substantial justice was done in the justice's court, and that no errors were made that were sufficient to call for a reversal. Code, § 3063; Davison v. Luckman, (Sup.) 18 N. Y. Supp. 663; Jackson v. Collins, (Sup.) 16 N. Y. Supp. 651; Lockwood v. Lockwood, (Sup.) 14 N. Y. Supp. 831.

Judgment of the county court reversed, and that of the justice affirmed, with costs to the appellaut.

TINKER v. NEW YORK, O. & W. R. CO.

(Supreme Court, General Term, Fourth Department. September, 1893.) 1. MASTER AND SERVANT-LIABILITY FOR ACTS OF SERVANT.

Where refuse timber was, by direction or assent of defendant railroad company's section foreman, left on defendant's right of way, by the side of a highway, so as to frighten plaintiff's team in passing, defendant is responsible for such acts of the sectionmen.

2. NEGLIGENCE-QUESTION FOR JURY.

In an action for personal injuries resulting from plaintiff's team be coming frightened at refuse timber left by defendant railroad company on its right of way, by the side of the highway, the question whether the timber thus situated was calculated to frighten horses of ordinary gentleness is for the jury.

3. SAME.

The sectionmen of defendant railroad company, in repairing a cattle guard, deposited on the side of the highway refuse timber, which frightened plaintiff's horses, thus causing personal injuries to plaintiff. Held, that the question whether it was reasonably necessary, in the regular course of their employment, for defendant's servants to thus deposit the timber by the roadside, was one of fact, for the jury.

Appeal from circuit court, Chenango county. v.24N.Y.s.no.11-62

Action by Mary A. Tinker against the New York, Ontario & Western Railroad Company for personal injuries. From a judg ment dismissing the complaint on a nonsuit directed by the court, plaintiff appeals. Reversed.

Argued before HARDIN, P. J., and MERWIN, J.

George W. Ray and George P. Pudney, for appellant.

Edward B. Thomas and Howard D. Newton, for respondent.

MERWIN, J. On the morning of September 6, 1890, the plaintiff, with her husband and two daughters, was riding in a two-horse carriage along a highway that ran nearly east and west, and that the railroad of the defendant intersected at about right angles at a point called "Nearing Crossing," about one mile south of the station at Smyrna. As they proceeded westerly across the railroad track at this crossing, and just after they crossed it, the team became frightened, and suddenly turned to the left, running one wheel of the carriage upon the bank at that point, and operating to raise one side of the carriage to such an extent that the plaintiff was thrown out onto the road. By the fall she received a somewhat serious injury, and this action is brought to recover damages arising from such injury. Her claim is that the horses were frightened by two sticks of timber that lay in the ditch on the right-hand or northerly side of the street, and that the sticks were placed there by the defendant wrongfully and negligently, and were of such a character as likely to frighten horses of ordinary gentleness. The defendant claims that the timbers were not placed there by it, or by its servants in the course of its business, and that, if they were, still the defendant was the owner of the land where they lay, and the act was not a negligent one, and therefore the defendant was not liable.

In reviewing a judgment entered upon a nonsuit, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference warranted by the proofs. McNally v. Insurance Co., 137 N. Y. 389, 33 N. E. Rep. 475. The timbers were each about 10 feet long and 12 inches square, and were about 20 feet westerly of the railroad track, and lay side by side in a ditch on the northerly side of the highway, and about 10 feet from the center of the traveled part, and about 15 or 20 feet from the fence on the northerly side of the highway. The ditch where they lay was from 1 to 2 feet deep. They were weather-beaten and dark-colored, one wit ness saying: "Not necessarily black, not any more than ordinary weather-beaten sticks of timber would be. There might have been some oil and engine grease on them." And another witness says: "They were dark-colored; pretty nearly black, with oil and stuff on them; nearly black." The place where they lay was within the 80 feet taken by the defendant for the uses of its road, and at that point the defendant owned the fee of the 80 feet, subject, of course, to the highway. The timbers were placed where they were during the afternoon of September 4th, by the employes of the

*

defendant. Upon that day the sectionmen of the defendant, who had charge of the section that included this crossing, took out the cattle guards upon each side of the crossing, and put in new ones. The timbers taken out on the north side were put on the company's side of the fence; that is, outside of the highway. The timbers on the south side of the crossing were taken out onto the highway, at first being laid on the south side of the highway, one on each side of the railroad track, and near to it,and then, after the cattle guard was fixed so that trains could pass over, they were removed by the sectionmen to the place where they were at the time of the plaintiff's injury. This removal was by the direction of one of the sectionmen, a brother of the foreman, who said he wanted them for wood. They remained there until the second day after the accident, when they were thrown over the fence onto the company's land by the same sectionmen, including the foreman, and there they remained until the summer following.

The first question that naturally arises is whether the defendant is responsible for the timbers being placed at the point where they were at the time of the accident. They were there on the company's land, and so, in a measure, at least, in its custody. They were placed there by its employes, whose business it was, apparently, not only to properly fix the cattle guard, but to see that the refuse was properly disposed of. In Railroad Co. v. Derby, 14 How. 482, 486, it is said:

"The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission; whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of, the servant's act or neglect, or even if he disapproved or forbade it. He is equally liable, if the act be done in the course of his servant's employment."

In Quinn v. Power, 87 N. Y. 537, the rule is said to be that the master is liable for the negligence or misfeasance of the servant while the latter is acting in the master's business, and within the scope of the servant's employment, and a violation of the master's instructions, or a departure from the strict line of duty to him, by the servant, does not necessarily make the latter alone liable. Page 540. In Dwinelle v. Railroad Co., 120 N. Y. 117, 124, 24 N. E. Rep. 319, which was an action to recover damages for the tortious act of the porter of the sleeping car, it is said that the question in such cases, whether the servant was engaged in the performance of his duties as a servant of the company, is for the determination of the jury. The case of Mulligan v. Railroad Co., 129 N. Y. 506, 29 N. E. Rep. 952, cited by defendant's counsel, is materially different from the case in hand. In Railway Co. v. Maurer, 21 Ohio St. 421, the question whether the servant was in the course of his employment was left to the jury. In Dells v. Stollen werk, 78 Wis. 339, 47 N. W. Rep. 431, the acts of the servants were after they had quit work for the day. In the present case it should not, we think, be said, as matter of law, that the employes of the company were