tor's will, and that the testamentary provis- tate through an increase of his power and auion in his favor failed by reason of his not thority over it. I think the judgment should having survived testator's son, Dietrich. In be affirmed, with costs to the respondent this view he seems to find support in the pres- against the appellant Duffy. All concur. ence in the will of a general power to the executor, as trustee, to dispose of the estate itsclf in the beneficiary's life-time; and hence, I suppose, he reasons that such a provision is inconsistent with a vesting of the future estate (Court of Appeals of New York. Nov 26, 1889.) BROWN v. KLOCK. (117 N. Y. 340) EXECUTORS-ACTIONS BY-EVIDENCE. fourth department. C. Carskadden, for appellant. J. Frank Rogers, (James Coupe, of counsel,) for respondent. EARL, J. This action was brought to recover of the defendant the sum of $1,429.10, with interest, for money alleged to have been received by him, for or from the plaintiff's testatrix, in her life-time, and which at her death was due from him to her. The defendant by his answer put in issue the alleged indebtedness, and the action was referred to a referee, who found in favor of the plaintiff. The evidence to establish the defendant's liability appears in the record to have been very uncertain and unsatisfactory, and we are not convinced that the referee reached the right conclusion upon the merits. Taking the most favorable view of the evidence for the in the remainder-man named. I am unable to see that any difficulty is presented by this will, or that the testator's purpose fails of its accomplishment, to vest the possession of what might remain, at his son's death, as principal of the estate, in his brother John, or his successors in interest at that time. The statute operated to vest in the brother the future estate, which was limited to commence at the termination of the precedent estate created for the life of the testator's son. 1 Rev. St. p. 723, §§ 10, 13. The requisite of the statute for the vesting of such an estate was met by the fact that the remainder-man was in being, and had the intermediate estate ceased, at any time before the death of the testator's brother, he would have had an immediate right to the possession of the estate which the executor held in trust. The discretionary power of disposition of the estate which the executor possessed could not affect the vesting of the estate in the remainderman. He took his interest simply subject to the exercise of that power. The vesting had clearly taken place, and all that might happen would be a loss or divesting of so much of the estate as had been disposed of by the trustee under the power conferred. When the will went into effect by testator's death, plaintiff, the case was a very close one, and there was no contingency, either as to the therefore any improper evidence received for person entitled in remainder, or as to the the plaintiff may have materially influenced event by which the intermediate estate was the decision and prejudiced the defendant. to be determined. The person then entitled The testatrix gave by her will, in legacies to in remainder might be divested of the pos- various legatees, the sum of $2,750. Upon session of the estate by reason of failing to the trial the plaintiff, as a witness, was asked survive the termination of the intermediate these questions, which were objected to, and estate, but his issue would take in succession answered as follows: "Question. Were all to their parent under the statutory rules. the claims that were presented to you as adThe mention of the brother by name, with- ministrator paid? Answer. All the claims out allusion to his heirs, is not material. that have been presented have been paid. The fee would pass without them. Hen-Q. Has the time for the presenting of these nessy v. Patterson, 85 N. Y. 101. A discre- claims against the estate passed? A. It has. tionary power in the executor to appropriate Q. Independent of the claims in suit, what the estate itself to the support of the objects was the amount of the estate of Elizabeth K. of the trust was considered by Judge COM- Petrie, deceased, after the payment of her STOCK in Gilman v. Reddington, 24 N. Y. 9, debts? A. About $1.800." This evidence to be no objection to the trust. Nor could it was incompetent for any legitimate purpose. logically be an objection to the vesting in in- As the testatrix had given in legacies $2,750, terest of the right to the corpus of the estate and her estate, after the payment of debts, upon the cessation of the trust. The extent amounted to only $1,800, the counsel for the of the power and authority in the trustee to defendant claims that this evidence was givuse the estate, beyond its income, might op-en to show that in the mind of the testatrix erate to diminish it; but that furnishes no she had an estate sufficiently large to pay all reason for supposing the necessary vesting her legacies, and therefore that the claim in under the statute to be thereby interfered suit really belonged, and was owing, to her with. The residuary estate of the testator estate. Unless the evidence was introduced vested in interest in his brother John, as the for some such purpose, it is not perceived for remainder-man named, and the general pow-what purpose it was intended. In weighing er in trust, which the executor possessed, op erated only as an enlargement of his legal es 1Reversing 5 N. Y. Supp. 245. the doubtful and uncertain evidence in the ] erty. When the plaintiff obtained permiscase, the referee may have given the argu- sion of the city authorities to connect his ment which could be drawn from the actual premises with the drain, he stood in the same amount of the estate, as compared with the position to the city as he would have stood to amount of the legacies given by her, some in- Mrs. Ottendorfer, if she had remained the fluence. We think this evidence was entitled owner of the bridge premises, and the perto no weight, and was wholly immaterial and mission had been obtained from her. She improper; and we are unable to say, in such would not have been bound to limit the use a case as this, that it did not prejudice the of the drain to the water and material then defendant. If the plaintiff's case had been discharged into it from her premises, nor to reasonably clear of doubt, or fairly sustained remove any obstruction therein for the proby satisfactory evidence, it would have been tection of the plaintiff; nor would she be possible to hold that this evidence was not bound to stop using it on notice that the damaging to the defendant. But, upon the plaintiff's premises were flooded. The city, case as presented to us, we ought not to dis-on acquiring title to the bridge property, regard it, as harmless. We have purposely omitted to comment particularly upon the evidence bearing upon the defendant's liability, so that upon the new trial neither party may be prejudiced by our views thereof. For the error mentioned the judgment of the general term, and that entered upon the report of the referee, should be reversed, and the order of reference vacated, and a new trial ordered; costs to abide event, All concur. (117 N. Y. 361) KOSMAK v. MAYOR, ETC., OF NEW YORK.1 (Court of Appeals of New York. Nov. 26, 1889.) MUNICIPAL CORPORATIONS-SEWERS-PRIVATE DRAINS. 1. The acquisition by a city of property on which is located a private drain does not make the drain a public sewer, nor impose upon the city the duty to remove obstructions for the benefit of a licensee. 2. The administrative officers of a city have no authority to convert a private drain into a public sewer, nor to bind the city by any promise or admission in relation thereto. EARL and PECKHAM, JJ., dissenting. Appeal from supreme court, general term, irst department. Action by Emil Kosmak against the mayor, aldermen, and commonalty of the city of New York, to recover damages resulting from a defective drain or sewer. On a verdict and judgment for defendant, plaintiff appealed to the supreme court, general term. The judgment having been affirmed, plaintiff again appeals. David Leventritt, for appellant. D. J. Dean, for respondents. ANDREWS, J. We think the judgment in this case is clearly right, and little can be added to the satisfactory opinion of the general term. The "sewer," so called, from the Ottendorfer house was constructed by the owner of the premises, with the consent of the city, as a private drain. It never changed its character. When the Ottendorfer premises were purchased for the Brooklyn bridge, the title vested in the city, or for the benefit of the city, and was taken with the same rights which the grantor had in the drain. It did not become a public sewer because the municipality became the owner of the prop 1Affirming 6 N. Y. Supp. 453. v.22N.E.no.23-60 stood in her shoes, and subject to no greater obligation to the plaintiff than would have rested on Mrs. Ottendorfer in the case supposed. Neither she nor the city could willfully or maliciously injure the plaintiff. But the plaintiff, under the permit, was a mere licensee, and when he found that the water flooded his premises it was for him to take the necessary measures for their protection. He could not cast the duty upon the city. There was no evidence that the city adopted the drain as a public sewer; and the evidence on this point would not have been strengthened if the plaintiff had been permitted formally to introduce the deed to the bridge company in evidence, or to show more explicitly that the water discharged into the drain was greater than before the bridge was completed. It was not claimed that any more was discharged into it at any time than it obstructed. The $10 paid for a permit was was capable of carrying off, if it had not been paid for a license to use the private drain. It imposed no duty on the city to keep it in repair, or free from obstruction. The city officers, on being notified, said they would attend to the matter. It seems they did examine, and found that the Frankfort-Street sewer, at the point where the drain entered it, was free. But, if they did not perform their promise to the plaintiff, this gave him no cause of action. The administrative officers of the city could not by their act convert a private drain into a public sewer, nor impose upon the city an obligation founded upon their promise to repair, and remedy the difficulty. The point that the plaintiff was excluded from testifying to what was stated by him in his deposition presented to the comptroller is not ground of reversal. It is claimed that the part of his statements bearing upon the correctness of his claim as to items of damage, as made before the jury, tended to impeach his credibility, and therefore may have influenced the jury in determining the credit given to the evidence as to the obstruction being in the Frankfort-Street sewer, and not in the drain. The alleged impeachment of the plaintiff's credibility by the statements in the deposition proved by the defendant was, at most, very slight. The exclusion of the plaintiff's evidence in explanation could have had, we think, no material influence on the case. The evidence as to the location of the |ing coal, and had boxes from 18 to 24 inches obstructions very greatly preponderates that high. They were not regular lumber-cars, it was in the drain, and not in the sewer, but were very much used upon all the roads, and the jury could not well have found oth-running in and out of Buffalo, for carrying erwise; and as, if this was the fact, the plain- lumber. Regular lumber-cars are flat-cars, tiff was not entitled to damages, any error in with iron brackets on the sides, into which the evidence on that subject was immaterial. are placed stakes for the purpose of holding We think there is no error requiring a re- the lumber in place. These cars had no versal of the judgment, and it should there- brackets on the sides for stakes, and there fore be affirmed. All concur, except EARL was nothing but the boxes to hold the lumand PECKHAM, JJ., dissenting. ber. On some of the cars the ends of the boxes dropped down, and on others they were, like the sides, fixed and stationary. The lumber was placed inside these boxes, and where the timbers were longer than the cars, and the ends dropped down, it was (117 N. Y. 638) FORD . LAKE SHORE & M. S. R. Co.1 (Court of Appeals of New York. Nov. 26, 1889.) INJURIES TO SERVANTS-NEGLIGENCE OF FELLOW-loaded flat; and on the cars where the ends SERVANTS-RAILROAD EMPLOYES. of the boxes were fixed and stationary one In an action against a railroad company for the alleged negligent killing of a switchman in its end of the timber was laid down on the botemploy, by lumber falling on him from a car, it ap- tom of the car, and the other end projected peared that the car was strong, and capable of over the end of the box, in cases where the holding the timbers loaded on it; that such cars timber was longer than the box. The lumwere in general use for that purpose; that defendant furnished suitable stakes for securing the lumber was piled after it reached the top of the ber, and competent inspectors to superintend the box so that one piece overlapped another, the loading; and that the cause of the accident was pile thus constantly growing narrower tothe manner in which the car was loaded by dece-wards the top. On some of the cars the lumdent's co-employes, the lumber being piled higher than boxes around the edge of the car, and the stakes not being used. Held, that a verdict should have been directed for defendant, though the car was not a regular lumber-car. RUGER, C. J., and DANFORTH and ANDREWS, JJ., dissenting. Appeal from superior court of Buffalo, general term. Action by Emily Ford, administratrix of the estate of George Ford, deceased, against the Lake Shore & Michigan Southern Railroad Company. Verdict for plaintiff. Defendant's motion for new trial was heard on case and exceptions at the general term in the first instance, and denied, and defendant appeals. ber was piled a foot and a half higher than the boxes. The car from which the lumber fell upon the intestate was one upon which the ends of the boxes were fixed and stationary, and the timbers projected over one end. Thin strips of board had been nailed to the sides of the box, as it is claimed by the plaintiff, to hold the timbers on the car; but as claimed by the defendant, and proved upon the trial, they were simply guides in piling the lumber, and were placed there for that purpose; and the lapping of the timber, one piece upon another, receding from the sides, was relied upon to keep the pieces in place. The nine cars were loaded by the employes of the defendant in charge of and under the direction of a foreman of great experience, who had been engaged in loading and handling cars for eight or nine years. This lumEARL, J. This action was brought by the ber was to be drawn about a mile, simply plaintiff to recover damages for the negligent from one part of the city to another. The killing by the defendant of her intestate, a cars, all loaded in the same way, at the same switchman in its employ. In her complaint time, all went safely, except the one from she bases her charge of negligence mainly which the lumber fell upon the plaintiff's inupon the following grounds: The running testate. After the cars were loaded they of an unsafe and unsuitable car; the careless were carefully inspected by two foremen, and negligent loading of the car without and they considered them safely and properfastening the timbers securely thereon; fail-ly loaded. Gondola cars, like the ones in ure to properly inspect the car by proper and question, were very generally used for the competent inspectors; and failure to provide transportation of lumber for short distances, proper and suitable rules for the government, control, and instruction of its employes. James Fraser Gluck, for appellant. Tracy C. Becker, for respondent. The material facts, as they appeared upon the trial, are as follows: On the 29th day of May, 1887, the Buffalo Car Manufacturing Company sent to the defendant's docks, on the Hamburg canal, nine cars, to be loaded with heavy timber and car-sills taken from canal-boats. The cars were what are known as "gondola cars," generally used for carry 1Reversing 2 N. Y. Supp. 1. and these cars were loaded as such cars usually were for that purpose. The court charged the jury that there was no evidence that the defendant was called upon to establish any system of rules which should provide for any different or safer method in the loading of the lumber than the method described by the witness Davis, defendant's foreman, as in use by it. We think that charge was correct, but, whether it was or not, the plaintiff is not in a position to complain of it, and the question of suitable rules is therefore out of the case. FINCH, PECKHAM, and GRAY, JJ., concur. DANFORTH, J., (dissenting.) At the close of the evidence the defendant's counsel asked the court to direct a verdict, upon the grounds the case numerous exceptions were taken to the charge as made, and to the refusal of the learned judge to charge as requested by the defendant's counsel. The plaintiff had a verdict, and the exceptions were ordered to be heard at the general term in the first instance. They were there overruled. The opinion then rendered seems to be abundantly sufficient to sustain that result, and I am unable to find in the argument submitted to us in the interest of the railroad company any reasons sufficient in law for the reversal of the judgment which the supreme court ordered. There is no question, upon the evidence, that the two foremen who inspected and superintended the loading of these cars were perfectly competent men, and therefore it cannot be said that the defendant failed to provide competent and proper inspectors. "First. There is no evidence whatever of The only ground of negligence, therefore, re- the defendant's negligence. Second. On the maining to be considered is whether the de- ground of the plaintiff's contributory neglifendant furnished suitable cars and appli- gence. Third. That, even assuming that ances. There can be no question that this the duty in this case was one to be performed was a suitable car. It did not break. It was by the master, there is no evidence that, unstrong and capable of holding timbers, and der the circumstances in this case, the ordisuch cars were generally used for that pur-nary care required of the master had not been pose. It is entirely plain that the sole cause exercised on this occasion." At the close of of the accident was the negligent and improper loading. The defendants having furnished the cars, the employes should have placed the long timbers on those cars which had movable ends to the boxes, so that the timbers could be laid down flat, and when they placed the long timbers in the particular car from which the accident came they should not have piled them up so high as to make the pile dangerous. There was no emergency or necessity for putting a high pile of timbers upon any one car to be drawn the short distance. But, if the employes desired to put a high pile of lumber upon any one of these cars, it is undisputed that suitable stakes The first point made by the appellant is had been furnished by the defendant to put that the trial court erred in refusing to diinside the boxes, where they could have been rect a verdict for the defendant. The plainproperly fastened, and thus have held the tiff's intestate was a switchman. While perlumber as securely as if piled upon platform forming his duties as such several sticks of cars with iron brackets upon the sides and timber from 26 to 30 feet in length, and from stakes placed therein. It is too obvious for 5 to 12 inches thick, part of the load of a dispute that the sole cause of this accident passing car, fell from it and upon him, crushwas the improper loading of the car, and that ing him so that he died. This car was for if the employes of the defendant had proper- all legal purposes the car of the defendant, ly loaded it, and made proper use of the employed by it in its business, and for its stakes and materials the company had fur- management the defendant is to some extent nished, the accident would not have hap- responsible. The law casts upon it a certain pened. These employes were the co-employes duty, and it is for the interest and safety of of the intestate, and for their carelessness the community that the defendant be held to the defendant is not responsible. In the case its performance. Was there evidence of negof Bushby v. Railroad Co., 107 N. Y. 374, 14 ligence on its part? It was held in Bushby N. E. Rep. 407, the plaintiff, a brakeman on v. Railroad Co., 107 N. Y. 374, 14 N. E. a car loaded with lumber, was thrown off Rep. 407, not by way of formulating any new from the car because an imperfect stake rule, but by application of a very old one, broke while the car was in motion, and he that it was the duty of the company as was thus injured; and it was held that the de- master to fit or prepare its car for the use fendant was liable on the ground that it had for which it was designed. There the comnot furnished any stakes for holding the lum-pany had furnished a platform car without ber in place after it was put upon the car. stakes or sides, and through the imperfection The main features of that case are therefore of the stakes finally provided its servant's unlike those which exist here. This case death was caused, and for that the defendant bears some resemblance to the case of Byrnes was required to make compensation. v. Railroad Co., 113 N. Y. 251, 21 N. E. same rule applies here. It was within the Rep. 50, where a brakeman upon a lumber- province of the master to furnish a suitable car was injured because it was improperly car for the carriage of lumber; and the proploaded; and it was held that the defendant, osition may be more specific,-it was the duty having provided a safe car, and a safe sys- of the master to furnish a car suitable for the tem, and competent men to inspect it, was carriage or transportation of that particular not responsible for the negligence of co-em- load of lumber. The concession of the deployes in the performance of their work. We fendant is that the "car was not what is are therefore of opinion that upon the de- known as a regular lumber-car."" It was in fendant's motion the court should have di- fact a gondola or coal car. It is also a staterected a verdict in its favor, and the judgment of the defendant that "a regular lumment should therefore be reversed, and a new ber-car is a flat-car, having brackets upon trial granted, costs to abide event. its sides, into which stakes from three to six The inches thick are driven, and inside of those | (2) The learned counsel for the defendant the lumber is laid." It is, of course, obvious asked the judge to charge: "If the jury bethat the height of the stake or other protec-lieve that these cars were carefully inspected, tion is an important consideration, and must before they started and prior to the accident, govern the height of the load. The car in by competent inspectors, and the method in question also had brackets on the side, but which they were loaded and the load secured, they were not empty, nor were they designed was by them adjudged to be a safe and propfor stakes. They were to receive the post or er one, then the defendant cannot be held bar to the box frame, which was from 18 guilty of negligence," and he declined to inches to 2 feet high. Above that, of course, charge differently than he had already the sides of the car furnished no protection. charged. The court had properly referred to It appeared, however, that this frame went the grounds on which the defendant's liabiliround the car, at the end as well as at the ty depended, and was not bound to accept sides, and that, owing to the greater length the measure proposed by counsel. It omitted of the timber, one end of some of the pieces elements of the greatest importance, and, if was necessarily put in the car, and the other adopted, would have tended to exclude from projected over the end of the car slanting. It the consideration of the jury the corporate also appears that the load was higher than the negligence of the defendant in omitting, sides of the car and was not staked. It could among other things, to furnish proper cars, not be staked, because no brackets were pro-and would have turned their attention from vided, and the only way the timber was se- the master's acts to those of his servants. cured from outward force was by nailing some sticks on the inside of the car-box, neither fastening them to each other nor overhead. They were not intended as protection, but as guides, and the defendant's foreman testified that the security relied upon was from the different widths of the timber, and so from "one piece overlapping the other." We have, then, a case precisely within the principle of the Bushby Case, supra. Here the car above the sides of the box was unprotected, and no means of protection afforded, -no brackets within which stakes could be placed; but, more than that, the car was an unusual one for the purpose to which it was applied, and for which the company furnished it. If it was so managed as to give equivalent security to the employe, it was for the jury to find that out. From the face of the record it might appear that the dangerous machine was sent upon the track without a thought or care for the safety of those whose duty as employes might bring them to it, or of the traveler whose journey would lead him near its course. The trouble was not in the manner of loading, but in the construction of the car, which made any other manner impossible. As the load rose above the box, every timber had at once leaned towards the ground, and by its own gravity gave effect to each jar or concussion. It was not from the omission of stakes, but from the absence of brackets to receive them. The defect was structural, and the omission corporate. It is enough for us to say that if there was any question it was one for the jury, and that the court committed no error in refusing to take it from them. (3) The next point involves a like defective proposition. The defendant asked the learned trial judge to charge the jury: "If the defendant furnished suitable appliances for the loading and unloading of lumber, and employed competent and proper persons to load the cars, and the injury resulted from the neglect or failure of persons so employed to use such appliances or properly load the car, then the plaintiff cannot recover;" and the court responded in the same manner. The proposition is confined to the loading and unloading of the car either by appliance or laborers, and excluded entirely the construction of the car and its capacity to receive loads of this nature. Every fact suggested by the defendant's proposition might be true, and yet the plaintiff recover because the defendant had not furnished "a safe, suitable, and proper car" for such a load, or the application and use of such appliances and workmen. A trial judge must be left to the exercise of some discretion as to the considerations suggested by the evidence and the language in which he will communicate them to the jury. He cannot be called upon to turn the case one way or the other upon isolated points of inquiry, and he fails in no duty when he submits in a fair and impartial manner the whole matter in controversy to the jury as the constitutional and final judge of the facts. This was done in the case before us. I think the general term properly disposed of the exceptions. The judgment appealed from should therefore be affrmed. RUGER, C. J., and ANDREWS, J., concur. |