This was an action on the case to recover compensation for certain property destroyed by fire, caused as was alleged by the negligence of the defendants. The plaintiffs were the occupiers of a piece of land situate within the limits of Oil City, on the western bank of Oil Creek. The railroad of defendants is constructed along said creek, over the land of the plaintiffs and at the base of a high hill. On the afternoon of April 5th, 1873, during a rain-storm, there was a small slide of earth and rock from the hillside down to and upon the railroad. About ten minutes prior to the accident one of the defendants' engines had passed over the road in safety. At that time no slide had occurred. This engine was followed in a few minutes by another engine drawing a train of cars loaded with crude oil in bulk. The latter engine ran into the slide, was thrown off the track, ran on about 100 or 150 feet, when the tender, which was in front of the engine, was overturned into Oil Creek; the engine itself was partly overturned; two or three oil cars became piled up on the track and burst. The oil took fire, was carried down the creek, then swollen by the rain, for several hundred feet; set fire to the property of the plaintiffs and partly consumed it. The Court was asked to say: "That if the jury believe from the evidence that the accident complained of was the result of negligence on the part of the defendants, and that by reason of such negligence the oil ignited by the engine attached to the train ran immediately down to Oil Creek, where it was carried by the current, in the space of a few minutes, to the property of the plaintiffs, when it set fire to and destroyed said property, the plaintiffs are entitled to recover, provided they did not in any manner contribute to said accident." The Court answered this point in the negative, and then instructed the jury that as a matter of law upon the facts of the case the plaintiffs were not entitled to recover. Hell, no error; a man's responsibility for his negligence and that of his servants must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum so far as it applies to the practical business of life. It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the Judgment affirmed. CONSTITUTIONAL LAW. Decided September 18, 1877. Chapter 606, Laws of 1875, is not violative of the provisions of the constitutional amend. ment which took effect January 1, 1875. Where a corporation had a right to lay its tracks in the streets of a city prior to January 1, 1875, such right was not affected by the constitutional amendment which then took effect. A statute will not be declared invalid unless there has been a clear and substantial departure from the provisions of the fundamental law. This was an appeal from an order appointing commissioners to appraise damages on proceedings under chapter 606, Laws of 1875, § 36, to condemn lands for the purpose of operating the plaintiffs' road. The proposed route runs through a public street in New York City, the fee of which belongs to the property owners on either side. Prior to the passage of the act of 1875, plaintiff had, under its charter, the right to lay down tracks upon the elevated plan through certain streets in New York City. The act of 1875 restricted and regulated the manner of building the road. It was claimed that the act of 1875 violated the provision of the State constitution, which went into effect January 1, 1875, providing that no local or private bill should be passed by the legislature granting to any corporation, association, or individual the right to lay down railroad tracks, or any exclusive privilege, immunity, or franchise whatever, and requiring the legislature to pass general laws in these cases, and prohibiting the passage of any law authorizing the construction or operation of a street railroad without the consent of one-half in value cate of commissioners appointed by of the property owners, or the certifithe Supreme Court. E. E. Anderson and Wm. M. Held, That the plaintiff having the right to lay its tracks prior to January 1, 1875, this right was not affected by the constitutional provisions which then took effect; that the act of 1875 under which the plaintiff instituted these proceedings was not violative of said constitutional provisions, although said act restricted plaintiff in the manner of building its road. An adverse doubtful construction of an act is not sufficient to condemn it. It is only where there is a clear and substantial departure from the provisions of the fundamental law that Courts will declare acts of the legislature invalid. 55 N. Y., 54; 50 Id., 553; 14 Mass., 340; 17 N. Y., 235; 23 Wend., 166. The exercise of a legislative power by the State legislature will be sumed constitutional under the pre gen eral grant of power from the federal constitution, and will be sustained unless brought clearly under some of the exceptions of the federal constitution; while a similar exercise of power by Congress can only be justified by an affirmative grant embracing the specific power exercised. Order appointing commissioners affirmed. Opinion by Church, Ch. J. All Folger, Rapallo and Andrews, JJ., on authority of N. Y. El. concur. business and structures which would depreciate their value as private residences, is valid and creates a negative easement which will pass as appurtenant to the premises, although there was no privity of estate between the parties. The mutual and reciprocal covenants in such a contract constitute a good consideration for both. This action was brought for the specific performance of an agreement entered into between plaintiffs and one B., who owned adjoining tracts of lands in the city of New York, which provided that these lots should be reserved for first-class dwellings, to the exclusion of trades and all business and structures that would derogate from their value for private residences, and these restrictions were imposed for the common benefit of both owners in perpetuity, and to bind the heirs and assigns of the parties thereto. Defendant, L., acquired title to a lot of the land by sundry mesne conveyances from B., each of which expressed that it was subject to said agreement. L. erected a building which had an entrance and offices for business, and, when this action was brought, one room of which was used as a real estate office, another as a shop where orders for painting were received and business signs were displayed. It was not alleged in the answer or proved upon the hearing that there had been any change in the character of the locality, the sur roundings of the premises, or the occupation of contiguous property, has rendered it inexpedient to observe or the business of the vicinage which the covenant, or a disregard of it indispensable for the practical and profitable use and occupation of the premises, so that a specific perform ance of the agreement would be in- 6 Al., 341; L. R., 4 Ch. App., 654; equitable. S. P. Nash, for applts. Held, That it was competent for plaintiffs and B. by mutual covenants to regulate the use and enjoyment of their respective properties with a view to the permanent benefit and advancement in value of each; that their mutual and reciprocal covenants constituted a good consideration for the covenants and agreements of both; that it is not material here to inquire whether the plaintiffs' covenant was the perfect equivalent of B.'s; that the agreement itself was not void as in restraint of trade, or as imposing undue restrictions upon the use of the property; that although there was no privity of estate or community of interest between the parties, yet each could by grant create an easement in his own lands for the benefit of the lands of the other; that there was a grant by each to the other in fee of a negative easement in the lands. owned by the covenantors; that such an easement could be created and the right to the enjoyment of it will pass as appurtenant to the premises, 47 N. Y., 73; 26 Id., 105; 38 Id., 165; Washb. on Eas., 5, and will exist in favor of any third person irrespective of any privity of estate or community of interest between the parties, 3 Lev., 905; Washb. on Eas., 22, 28, Note 1; that it is of no importance whether an action at law could be maintained against the grantees of B. as upon a covenant running with the land and binding them; that the grantees of B., having taken title subject to said agreement, are bound by it, 2 Phil., 774; Story's Eq. Jur., §§ 395, 397; 18 Wend., 593; 4 Sand. Ch., 72; 11 Gray, 359; 7 R. I., 1; 23 Barb., 153; that defendants' lands are equitably chargeable with the easement created by B., and the objection that it is not obligatory on them as a contract cannot avail as a defence to a suit in equity to restrain them by injunction from its violation and a destruction of the easement. Also held, That plaintiffs were not bound to foresee before the completion of the building of defendant, L., that it could or would be applied to any purpose prohibited by the agree ment between plaintiffs and B. Judgment of General Term, affirming judgment dismissing complaint, reversed, and new trial ordered. Opinion by Allen, J. All concur, except Rapallo and Miller, JJ., absent. FALSE REPRESENTATIONS. Decided October 9, 1877. another in exchange for worthless checks by sentations will lie. Where one person conspires with others to defraud a party and induces him to part with his property on the credit of one who is insolvent, he is liable for the damages sustained by the party defrauded. This was an action for a conspiracy to defraud the plaintiffs by imposing upon them worthless checks of S., in exchange for their property, and for false and fraudulent representations as to the pecuniary responsibility of S., by which plaintiffs parted with their property on his credit. The jury was in effect charged, that if S. was irresponsible and his checks worthless, and defendant falsely represented him to be solvent, knowing or having reason to believe that this was untrue, and with intent to defraud, the action would lie for the fraudulent representations; that if defendant conspired with others to defraud plaintiffs, and induced them to part with their property upon the credit of S., he being insolvent, plaintiffs were entitled to a verdict. At the close of the charge plaintiffs' right of action was distinctly placed by the judge upon the question of bad faith and fraudulent intent on the part of defendant, and this whether the action. was for the false representations or for the conspiracy. B. M. Stilwell, for applt. Wm. R. Baldwin, for respts. Held, That the charge of the judge was not erroneous. 63 N. Y., Judgment of General Term, affirming judgment on verdict for plaintiffs, affirmed. 427. Opinion by Allen, J. All concur, except Church, Ch. J., not voting; and Folger and Miller, JJ., absent. CIVIL DAMAGE ACT. DAM maintained, although the liquor was sold under a valid license. Compensation for the pain endured may be included in the assessment of damage. Appeal from judgment in favor of plaintiff. Action to recover damages for an injury to plaintiff, alleged to have been caused by the sale of intoxicating liquors to her husband by defendant. The defendant sold to the plaintiff's husband liquors causing his intoxication, and by reason of such intoxication he upset the wagon seat on which she was seated, thus throwing her to the ground and causing serious injury to her. Schoonmaker & Linson, for applt. too remote. Held, That the damages were not That the intoxication was the direct and proximate cause of the injury and damage; and that the plaintiff could maintain an action for damages, under the Civil Damage Act, notwithstanding the liquor was sold by the defendant under a valid license to sell. The judge charged that compensation might be given for the pain being a part of the actual injury. which the plaintiff endured; that Held, That there was no error in this ruling; the enduring of pain. AGES FOR PAIN ENDURED. being a subject of compensatory damages, and an allowance for it in no respect punitive or exemplary. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEFT. Relyea, respt., v. Norris, applt. Decided November, 1877. Where a husband became intoxicated, and by reason thereof upset a wagon seat on which his wife was seated, thereby throwing her to the ground and injuring her, Held, That the intoxication was the proximate cause of the injury. An action unde: the Civil Damage Act may be Held also, That there was no error in ruling that the plaintiff might recover what the damage was to her in dollars and cents, resulting from the injury to her arm. Judgment affirmed with costs. man, |