Hahn & Myers, (Emanuel J. Myers and Arthur A. Alexander, of counsel,) for appellant. William T. Gilbert, (William H. Ford, of counsel,) for respondent. PRATT, J. The appearance of a duly-admitted attorney of the court is prima facie good. Where it is shown that he was not authorized to appear, and it is shown that injustice will be done by allowing the appearance to stand, the court, upon the application of a party whose rights are imperiled, will take adequate measures for their protection. That is not this case. Kahn has no rights in the premises, and no interest in the litigation. If the facts which are shown in this application appeared upon the real property records, he would not have been made a party to the litigation. The appearance for him of the attorney does him no injury, and the motion to strike it from the record was properly denied. firmed, with $10 costs and disbursements. Order af (76 Hun, 44.) PIPER v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Second Department. February 12, 1894.) CARRIERS-INJURY TO PASSENGER-CONTRIBUTORY NEGLIGENCE. A passenger in a sleeping car went into the dressing room at night, and, while looking for the water-closet, the dressing room not being lighted, opened the rear door of the car, and fell out. Held, that he was not, as a matter of law, negligent in not calling the porter and waiting for a light. Appeal from circuit court, Kings county. Action by Elwin S. Piper against the New York Central & Hudson River Railroad Company to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. From a judgment entered on a verdict directed in favor of defendant, plaintiff appeals. Reversed. Argued before DYKMAN, PRATT, and CULLEN, JJ. Jackson & Burr, (Jos. A. Burr, Jr., of counsel,) for appellant. Saunders, Webb & Worcester, (Thorndike Saunders and Edwin D. Worcester, Jr., of counsel,) for respondent. CULLEN, J. This is an appeal from a judgment for the defendant upon a verdict at circuit, directed by the court. The plaintiff, on an evening in January, took a sleeping car at Albany, bound for New York, where the train was to arrive at 6:30 in the morning. His testimony was to the effect that on the approach of the train to the city, about 6 o'clock, he was awakened by the porter; that, partially dressed, he started for the washroom, which he found wholly dark; that, to comply with a call of nature, he felt for the water-closet, the location of which he knew, having been there the night before; that he grasped for the knob, and found one which he supposed to be that of the closet, but which proved to have been that of the rear door of the car, which had been left 7.27N.Y.s.no.5-38 open; and that he was immediately precipitated through it from the train upon the ground, and was seriously injured. That the plaintiff fell from the car was not disputed; but the absence of light, and that the door was open, were disputed. There was no such conclusiveness of the evidence in favor of the defendant as justified a direction in its favor on the disputed questions of fact. It is therefore to be determined whether, in the most favorable aspect of the evidence, the plaintiff failed, as a matter of law, to show any liability on the part of the defendant. The plaintiff, being a passenger on the sleeping car, had the right to expect those conveniences which are furnished by such cars, and for which he had paid. Carpenter v. Railroad Co., 124 N. Y. 58, 26 N. E. 277. It is a matter of common knowledge that on such cars passengers are expected to use the conveniences of the car during the night, and also are awakened in time that they may both dress and make their toilets before arriving at their destination. When the plaintiff reached the toilet room he found it dark. He had a call of nature, which it was reasonable for him to discharge, provided he did not place himself in danger. We think that it cannot be said as a matter of law that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury. The defendant's negligence was also for the jury. We think no negligence can be predicated on the character of the car itself. But the absence of light might be found to be negligence, for the duty of the defendant was not only to light the lamps, but also to use reasonable diligence to maintain the light in the toilet room. Negligence possibly might also be predicated from the door being left open. The rules of the company provided that it should be kept closed between the stations. As this was the last car of the train, it was not necessary to open the door for communication between different cars. It is not entirely clear how this door was required by the rules to be fastened, and it may appear on another trial that it might have been opened by a passenger for any pur pose, such as air, or to go out on the platform. But we think, in any aspect of the case, the question of negligence, based on the absence of light, should have been submitted to the jury. The judgment should be reversed, and a new trial ordered, costs to abide event. (75 Hun, 605.) GERBIG v. NEW YORK, L. E. & W. R. CO. (Supreme Court, General Term, Second Department. February 12, 1894.) EVIDENCE-MATTER OF OPINION OR FACT-CHARACTER OF LUMBER. Whether a certain kind of wood is strong or weak is a matter of fact, though it requires knowledge of, and experience with, such wood, and the exercise of judgment on such experience, to become aware of the fact. Appeal from circuit court, Rockland county. Action by George Gerbig against the New York, Lake Erie & Western Railroad Company to recover damages for injuries received by plaintiff while in defendant's employ. From a judgment entered on a verdict in favor of plaintiff for $5,750, and from an order denying a motion for a new trial, defendant appeals. Affirmed. For decision on former appeal see 22 N. Y. Supp. 21. Lewis E. Carr, for appellant. Arthur S. Tompkins, for respondent. CULLEN, J. This is an appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury. The plaintiff, an employe of defendant, was injured by the collapse of a coal bin, where he had been put to work shoveling coal. The bin was full, while the adjoining bin was empty. There was evidence tending to show that before the accident the side towards the empty bin had partially given way or been displaced by the pressure of the coal, and that the defendant had notice of that fact. Negligence was claimed in three respects: the character of the lumber used, the insufficiency of the anchoring strips, and the failure to strengthen the bin after it had shown signs of weakness. The evidence was ample to warrant the verdict, and the judgment should stand if no legal errors were permitted on the trial. The first error claimed is the admission of testimony as to the character of the wood used for the partition, to the testimony that the anchors, to sustain any horizontal pressure, would have to extend into the coal, beyond the natural line or rest. No objection is made to the competency of the witnesses giving this evidence. The first was a carpenter; the second, a civil engineer and builder. But it is claimed that such testimony related to matters of opinion, and was, therefore, incompetent, under Van Wycklen v. City of Brooklyn, 118 N. Y. 429, 24 N. E. 179, and Davis v. Railroad Co., 69 Hun, 174, 177, 23 N. Y. Supp. 358. The testimony of the witnesses was, in one sense, as to matters of opinion, but it was also as to matters of fact. Whether a certain wood is strong or weak, brittle or tough, is a matter of fact, and is a matter of opinion only in the sense that it requires knowledge of and experience with lumber, and the exercise of judgment on such experience, to become aware of the fact. The same is true of the statement of the holding power of the anchors. It was a mechanical or physical fact. But, whether considered matters of fact or matters of opinion, the testimony was admissible. It is competent for experts to testify to opinions concerning matters justly the subject of expert knowledge, or to matters of fact which are not matters of common knowledge. The testimony admitted comes exactly within the rule approved in the Van Wycklen Case, "that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons rather than descriptive facts." Surely the majority of people do not know the respective merits and demerits of hemlock lumber, and fewer know the law of mechanics governing the holding of an anchor any more than the thrust of an arm. Nor does the ruling of the trial court conflict with our previous decisions in the cases arising from this accident. Indeed, we are inclined to the belief that in those decisions the principle of excluding testimony as to opinion was pushed too far. The evidence offered by the defendant that the Hillside Coal & Iron Company had built the partition and stored the coal in the adjoining bin was properly excluded. The answer (paragraph 3) admitted defendant's construction of the bin. It alleged that defendant furnished suitable material in character and in quantity, and intrusted the work to competent persons, and that the negligence, if any, was that of plaintiff's fellow servants in performing the work. This is a plain statement that the defendant did construct the bin; otherwise, how could the persons who constructed it have been plaintiff's fellow servants? The judgment and order denying motion for a new trial should be affirmed, with costs. All concur. (76 Hun, 39.) FORBES v. KENNEDY. (Supreme Court, General Term, Second Department. February 12, 1894) ASSUMPSIT-WEIGHT OF EVIDENCE. In an action for services, a judgment for plaintiff will not be disturbed as excessive where plaintiff's witnesses had testified, without contradiction, that the amount recovered was the value of the services rendered. Appeal from special term, Kings county. Reference of claim of Robert S. Forbes against Rachel L. Kennedy, as executrix of Robert L. Kennedy, deceased. From an order confirming the report of the referee, and denying a motion to set aside such report, and giving plaintiff judgment for $7,160.60, defendant appeals. Reversed. Argued before DYKMAN, PRATT, and CULLEN, JJ. Edwards & Odell, (Walter Edwards, of counsel,) for appellant. Martin & Smith, (Geo. A. Strong, of counsel,) for respondent. CULLEN, J. This is an appeal from a judgment entered upon the report of a referee on a disputed claim against the estate of a deceased person. The report was confirmed at special term. When this case was before the court on a prior appeal we were of opinion that there was no evidence sufficient to make out the plaintiff's case. Our judgment was reversed by the court of appeals, (125 N. Y. 769, 26 N. E. 914,) where it was held that the evidence was sufficient to require a court or jury to pass upon the question of fact. Accepting this decision that the question of fact as to the claimant's employment as a physician by the deceased was fairly presented by the evidence, we cannot say that the referee erred in deciding that question in favor of the claimant. The case had to be proven by circumstantial evidence, and our prior decision was not based on our disbelief of any employment, but on what we deem the insuffi ciency of the evidence legally to establish that fact. The referee found that there was no specific agreement as to compensation. The claimant, therefore, must recover on a quantum meruit. The referee has found that the claimant's services were rendered on the implied promise by the deceased to bear all the expenses, and to pay what the services were fairly and reasonably worth. The value was found to be $5,000. This sum seems to us large, consid-. ering the plaintiff's ordinary professional income; but, as it was the value testified to by the witnesses for the plaintiff, and no evidence was given to controvert it, the finding in this respect must stand. But we can find no evidence in the case that the services were worth this sum over and above the expenses of the plaintiff, and no proof of any usage or custom that the patient should pay the physician's expenses. There is no proof of what the expenses of the plaintiff were. Certainly the expenditures made by the plaintiff and his wife in traveling apart from the deceased should not fairly be termed expenses of the plaintiff's employment. It is conceded that the deceased gave plaintiff £200 by a letter of credit. We cannot see why, in any aspect of the case, the defendant should not have credit for this sum. We think the judgment must be reversed, and a new trial had, unless the plaintiff stipulates to reduce the judgment by the equivalent of £200, with interest, in which case the judgment is affirmed, without costs of this appeal to either party. PRATT, J., concurs. DYKMAN, J. I am in favor of a new trial unconditionally. (75 Hun, 558.) In re NEW YORK & BROOKLYN BRIDGE. In re LEARY et al. (Supreme Court, General Term, Second Department. February 12, 1894.) DOWER INCHOATE RIGHT AWARD IN CONDEMNATION PROCEEDINGS. In proceedings to condemn real estate, the inchoate right of dower of the owner's wife will be recognized and protected in the proceeds as against her husband. Appeal from special term, Kings county. Petition by the trustees of the New York & Brooklyn Bridge to acquire title to land. From an order directing the entire sum awarded to be paid to the owner of the land his wife, Jessie Leary, appeals. Reversed. Argued before PRATT, DYKMAN, and CULLEN, JJ. Gaynor, Grout & De Fere, (Edward M. Grout, of counsel,) for appellant. Fromme Bros., for respondents. DYKMAN, J. This is a proceeding for the acquisition of real property by the exercise of the right of eminent domain. The fee of the property was in Thomas J. Leary, and his wife, Jessie Leary, was made a party to the proceeding. A judgment entered |