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Second DEPARTMENT, Marcu TERM, 1897. [Vol. 15.. as they accumulated, and the defendant continued to sell tickets and admit passengers to the platform. When the plaintiff entered upon the platform it was a safe place, and he had the right to assume that no part of it would be rendered unsafe by any act of the defendant. The obligation imposed upon the defendant was to take reasonable care in securing the safety of the passenger while upon its premises, and to see that he was exposed tu no unnecessary danger while there. The defendant must be assumed to have known the capacity of its platform and when it had admitted passengers to the extent of such capacity. If, when having done this, the passengers were not removed by its trains it became its duty to perinit no more to enter. It had no more right to accumulate a crowd at the rear, which, pressing forward, would precipitate those at the edge of the platform into the street, than it would have the right to go upon the platform and push them off by physical force. The jury were authorized to find that the defendant overcrowded the platform upon this occasion, and that such overcrowding was the cause of plaintiffs fall into the street. Upon the trial evidence was received to show that there was no guard rail at the edge of the platform similar to those placed at other stations upon the defendant's road. It is true that this evidence bore upon the character of the construction and whether sufficient or not, but it also bore directly upon the question of defendant's negligence in overcrowding the platform. If there was no guard then it is easy to see that persons at the extreme edge might be crowded off, when, if the rail was there, they could not be. The absence of a rail, therefore, had direct relation to the number of persons which might be safely admitted to the platform before removal.

The question of the plaintiff's negligence was also a question for the jury upon the evidence.

The charge of the court was temperate, fair and full, covering every question in the case and protecting every right to which the defendant was entitled.

The judgment should, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.

App. Div.1



SCHEUER, as Executors, etc., of SIMON SCHEUER, Deceased, Appellants.

Slight evidence of payment by a decedent, sufficient failure to move for a nonsuit

or for the direction of a verdict.

A claim for money received for the claimant's benefit, made against the execu

tors of a decedent, from whom, in his lifetime, payment thereof might have been enforced at any time for a number of years before his death, may upon slight proof of payment be presumed to have been extinguished — but in all

cases some proof to that effect must exist. Where, upon the trial of an action, no motion is made for a nonsuit or for the

direction of a verdict for the defendants, they thereby concede that a question of fact is presented for determination by the jury, and cannot upon appeal be heard to say that the verdict is without evidence to support it.

APPEAL by the defendants, Max Scheuer and another, as executors, etc., of Simon Scheuer, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 3d day of February, 1896, denying the defendants' motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

Rastus S. Ransom, for the appellants.

Otto Horwitz, for the respondent. Hatch, J.:

It is conceded that the plaintiff was a creditor of the firm of Steinan, Bros. & Co., in the sum of $5,000, at the date of the failure of said firm in September, 1882. This indebtedness was represented by certain promissory notes given for money advanced by the plaintiff to the firm. The firm was also indebted to Simon Schener, the father of the plaintiff, now deceased, in the sum of $1,500. By an arrangement between the firm, the plaintiff and her father, the latter was preferred in the assignment, made by the firm for the benefit of creditors, in the sum of $9,500, and the said notes were

Second DEPARTMENT, MARCH TERM, 1897. [Vol. 15. transferred to him. Subsequently Simon Schener received from the assignee of the firm the full amount of the sum for which he was preferred. Nothing was paid by Scheuer for the notes, and it was agreed that of the preference $5,000 should belong to the plaintiff, when received by her father. It is, therefore, conceded that Scheuer received for and on account of the plaintiff this sum of $5,000. The issue presented upon the trial, therefore, was whether he had ever paid over this money to the plaintiff. The plaintiff's husband was a member of the firm of Steinau, Bros. & Co. He testified that Scheuer stated to the plaintiff in his presence that he had received the plaintiff's money and would keep the same on deposit for her until she wanted it. Subsequently the wife formed a business copartnership with other parties, which the husband managed. In 1888 the husband testified that a conversation was had between the plaintiff and her father about investing more money in the business. The father advised against it until she found out whether or not the business was a success, and advised her to wait at least a year, to which the plaintiff assented. The subject again came up in 1889, when the husband testified that plaintiff asked her father for the $5,000 to enlarge her business, and he refused to give it to her upon the ground that the prior business transactions of the husband had failed, and he did not wish to see her lose the money. The money was not then paid over, but continued to be retained by the father. This testimony found corroboration to some extent in the testimony of Isadore Starck, a brother-in-law of the former witness, who said that Scheuer told him that he had obtained his daughter's money, and would take good care that she did not get it so that her husband would have a chance to lose it a second time. It is true that the husband, who was examined at great length, made many contradictory statements, and the jury undoubtedly possessed the power and had the right to disregard and reject entirely his statement as well as the testimony of Starck. They equally had the power and right to accept this testimony and make it the basis of their verdict. So far as the testimony was contradictory, it related to other transactions than were embraced in the conversations narrated. As to these there was no substantial contradiction; and the fact that there was variance of statement in other respects did not deprive the jury of the right to give force to the testiApp. Div.) SECOND DEPARTMENT, MARCH TERM, 1897. mony bearing upon the matter in dispute and of passing their verdict thereon. So far as Starck's testimony is concerned, it was only discredited by his relationship and perhaps from the circumstances and time when the statement was made by Scheuer and his memory of what was simply a casual conversation for so long a period. But these were matters which went to his credibility; they did not destroy his testimony nor the right of the jury to give it entire credence. Up to this point we have considered the effect which the jury might have given to plaintiff's testimony as establishing affirmatively not only that the money was received but that it was not paid over. But it was conceded that Scheuer became possessed of $5,000 of plaintiff's money, and when this fact appeared, it became incumbent upon defendants to establish that it had been paid. Of course, as the father is now dead, and the claim was not enforced during his lifetime, when it might have been, a finding of payment may be supported upon slight proof tending to establish it, and courts will be astute in many cases in their search for testimony upon which to rest such a finding. But in all cases there must be something to support it. In this case there was no direct proof to show that the money had ever been paid over during the lifetime of the father. It was claimed to have been established by showing that plaintiff inmediately embarked in business under the management of her husband with the goods sold at the assignee's sale, which were bid in for her by her father and at her request, and that she was permitted by the father to take all of the goods which were bid in by him at such sale without payment, and from this source received the whole of her money, either for her own benefit or for the benetit of her husband. This claim, however, was denied by the plaintiff and her husband, and while the evidence was conflicting and the contradictions of the husband many, yet we think the tribunal for the settlement of such fact was the jury, and that its finding thereon does not admit of disturbance by us, under well-settled principles. illopkins v. Clark, 7 App. Div. 215; Ilickinbottom v. D., L. & W. R. R. Co., 15 N. Y. St. Repr. 11.)

The defendants upon the trial made no motion for a nonsuit or for the direction of a verdict. They, therefore, conceded that a question of fact was presented for determination by the jury and by this concession they are bound, and cannot now be heard to say that

SECOND DEPARTMENT, March Term, 1897. [Vol. 15. the verdict is without evidence to support it (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Peake v. Bell, 7 Hun, 454; Clement v. Cong. Spr. Co., 91 id. 637), and the verdict is not so clearly against the weight of evidence as to call for a disturbance of it.

We find nothing in the case which calls for our interference with the judgment. It should, therefore, be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.


NEW JERSEY TELEPHONE COMPANY, Appellant and Respondent, v. BarzillAI G. NEFF and Others, Constituting the Board of Assessors of the City of Brooklyn, Respondents and Appellants.

City of Brooklyn assessors cannot, on objections being made to an assessment,

increase it - proper items of debit and credit in fixing the assessment of a corpora. tion value of patent rights deducted all objections must be first made to the assessors.

In view of the fact that chapter 908 of the Laws of 1896, the general “ Tax Law,”

left unrepealed sections 8 and 9 of title 10 of chapter 583 of the Laws of 1888, the charter of the city of Brooklyn, which provide for the review of an assessment of personal property by the city assessors, it is questionable whether the provisions of section 36 of said chapter 908, providing that assessors may, upon a review of an assessment, increase or diminish it, have any application to the

city of Brooklyn. Prior to the passage of the general “ Tax Law" of 1896, the assessors of the city

of Brooklyn unquestionably had no power, upon an application, made by a person or corporation aggrieved, for the review of an assessment, to increase the assessment; the provisions of the charter of the city of Brooklyn, relative to such reviews, were designed merely to redress the grievance of the “per

son aggrieved.” The action of the assessors in increasing an assessment does not make the whole

assessment void, but merely the increase. The reasonable intendment of the statute is that the books are closed to appli

cants for correction on the first day of July, and that the examination and review, founded upon applications made before that time and then undisposed of, may follow that date.

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