machinery, and skilled and competent fellow-workmen, and the plaintiff's injuries were due to the carelessness of a co-servant who at the time was acting as his foreman and boss. The principles laid down in Crispin v. Babbitt, 81 N. Y. 516, control the decision of this case, and require the affirmance of this judgment. Judgment affirmed, with costs. (All concur.) It was held in Copper v. Louisville, E. & St. L. R. Co., (Ind.) 2 N. E. Rep. 749, that, for the negligence of a foreman or other like agent, the master is not liable to a fellow-servant engaged in the same general service, except where the duties of the master have been delegated to the foreman. It is a general rule that an employer is not liable to a servant for any injury resulting from the negligence of a fellow-servant in the same line or department of employment, provided the employer exercised due care in the selection or retention of the negligent employe. Buckley v. Gould & Curry Silver Min. Co., 14 Fed. Rep. 833; Gravelle v. Minneapolis & St. L. Ry. Co., 10 Fed. Rep. 711; Crew v. St. Louis, K. & N. W. Ry. Co., 20 Fed. Rep. 87; Johnson v. Armour, 18 Fed. Rep. 490; Gilmore v. Northern Pac. Ry. Co., Id. 866; The Harold, 21 Fed. Rep. 428; Hart v. Peters, (Wis.) 13 N. W. Rep. 219; Herbert v. Northern Pac. R. Co., (Dak.) Id. 349; Heine v. Chicago & N. W. Ry. Co., (Wis.) 17 N. W. Rep. 420; Neilson v. Gilbert, (Iowa,) 23 N. W. Rep. 666; Willis v. Oregon Ry. & Nav. Co., (Or.) 4 Pac. Rep. 121; Stafford v. Chicago. B. & Q. R. Co., (Ill.) 2 N. E. Rep. 185. This is one of the risks assumed. Quincy Min. Co. v. Kitts, (Mich.) 3 N. W. Rep. 240; Brown v. Winona & St. P. R. Co., (Minn.) 6 N. W. Rep. 484; Benn v. Null, (Iowa,) 21 N. W. Rep. 700; Foley v. Chicago, R. I. & P. R. Co., (Iowa,) Id. 124; Malone v. Burlington, C. R. & N. Ry. Co., (Iowa,) Id. 756; Luce v. Chicago, St. P., M. & O. R. Co., (Iowa,) 24 N. W. Rep. 600. If an employe knows that a co-employe is incompetent or habitually negligent, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be presumed to have assumed the risk of such incompetence or negligence, and cannot recover for an injury resulting therefrom. Kansas Pac. Ry. Co. v. Peavey, (Kan.) 8 Pac. Rep. 781. It has been held by a number of well-considered cases that where an employe is injured by the negligence of a co-servant and himself, if such injury could have been avoided by the exercise of ordinary care on the part of the co-servant, the common master will be liable. Louisville & N. R. Co. v. Robinson, 4 Bush, 507; Toledo, etc., Ry. Co. v. O'Connor, 77 Ill. 391. But the current of decisions and the weight of authority is to the effect that where the employer uses due diligence in selecting competent and trustworthy servants, and furnishes them with suitable tools and means with which to perform the services for which they were employed, he is not answerable in damages to one of them for injuries resulting from or caused by the negligence of a fellowservant in the same service. Farwell v. Boston, etc., R. Corp., 4 Metc. 49; Hubgh v. New Orleans & C. R. Co., 6 La. Ann. 495; Beaulieu v. Portland Co., 48 Me. 291; McDermott v. Pacific R. Co., 30 Mo. 115; Anderson v. New Jersey Steam-boat Co., 7 Robt. 611; Ponton v. Wilmington & W. R. Co., 6 Jones, 245; Illinois Cent. R. Co. v. Cox, 21 Ill. 20; Columbus, etc., R. Co. v. Webb, 12 Ohio St. 475; Michigan Cent. R. Co. v. Leahey, 10 Mich. 193; Sullivan v. Mississippi & M. R. Co., 11 Iowa, 421; Caldwell v. Brown, 53 Pa. St. 453; Fox v. Sanford, 4 Sneed, 36; Michigan Cent. R. Co. v. Dolan, 32 Mich. 510; Dillon v. Union Pac. R. Co., 3 Dill. 319; Howd v. Mississippi Cent. R. Co., 50 Miss. 178; Lee v. Detroit Bridge & Iron Co., 62 Mo. 565; Kielley v. Belcher Silver Min. Co., 3 Sawy. 500; Memphis & C. R. Co. v. Thomas, 51 Miss. 637; Sullivan v. Toledo, etc., Ry. Co., 58 Ind. 26; Smith v. Lowell Manuf'g Co., 124 Mass. 114; Walker v. Bolling, 22 Ala. 294; Shields v. Yonge, 15 Ga. 349; Honner v. Illinois Cent. R. Co., 15 Ill. 550; Madison, etc., R. Co. v. Bacon, 6 Ind. 205; Ohio, etc., R. Co. v. Tindall, 13 Ind. 366; Slattery v. Toledo, etc., Ry. Co., 23 Ind. 81; Carle v. Bangor, etc., R. Co., 43 Me. 269; Hayes v. Western R. Corp., 3 Cush. 270; King v. Boston, etc., R. Corp., 9 Cush. 112; Brown v. Maxwell, 6 Hill, 592; Coon v. Syracuse, etc., R. Co., 5 N. Y. 492; Karl v. Maillard, 3 Bosw. 591; Weger v. Pennsylvania R. Co., 55 Pa. St. 460; Strange v. McCormick, 1 Phila. 156; Moseley v. Chamberlain, 18 Wis. 700; Whaalan v. Mad River & L. E. R. Co., 8 Ohio St. 249; Pittsburg, etc., Ry. Co. v. Devinney, 17 Ohio St. 197; Chamberlain ▼. Milwaukee, etc., R. Co., 11 Wis. 238; Columbus, etc., Ry. Co. v. Arnold, 31 Ind. 174; Foster v. Minnesota Cent. Ry. Co., 14 Minn. 360, (Gil. 277;) Cooper v. Milwaukee, etc., Ry. Co., 23 Wis. 668; Lalor v. Chicago, etc., R. Co., 52 Ill. 401; Chicago, etc., Ry. Co. v. Murphy, 53 Ill. 336; Brothers v. Cartter, 52 Mo. 372; Hogan v. Central Pac. R. Co., 49 Cal. 129; Warner v. Erie Ry. Co., 39 N. Y. 468; Laning v. New York Cent. R. Co., 49 N. Y. 521; Flike v. Boston, etc., Ry. Co., 53 N. Y. 549; Wright v. New York Cent. R. Co., 25 N. Y. 562; Coulter v. Board of Education, 4 Hun, 569; Summerhays v. Kansas Pac. Ry. Co., 2 Colo. 484. Some of the cases go even to the extreme, and hold that the employe assumes all the risks growing out of the negligence of his fellow-servants in positions of greater authority and responsibility, or in a different line of employment, so long as both are in the same general business, and the negligence of the one may contribute to the danger of the other. Quincy Min. Co. v. Kitts, (Mich.) 3 N. W. Rep. 240. See Laning v. New York Cent. R. Co., 49 N. Y. 521; Chicago & A. R. Co. v. Murphy, 53 Ill. 336. And a wellknown law writer in a recent volume maintains the same general doctrine. Browne, Dom. Rel. 121-131. This, however, is an unsettled question; but the weight of authority and reason, it seems to the writer, is to the effect that the employer is liable for the negligence of a superior servant in charge of the injured servant, when such negligence caused the injury. When the servants are in different departments of the general employment, which are essentially foreign to each other, the master is liable for the negligence of a fellow-servant producing injury. King v. Ohio, etc., R. Co., 14 Fed. Rep. 277. So is he, when he has been notified of the negligence or inefficiency of such servant. Ross v. Chicago, M. & St. P. Ry. Co., 8 Fed. Rep. 544; affirmed (by a divided court) in the supreme court of the United States in the case of Chicago, M. & St. P. Ry. Co. v. Ross, 5 Sup. Ct. Rep. 184. (101 N. Y. 322) PEOPLE ex rel. NEW YORK & H. R. Co. v. COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY AND COUNTY OF NEW YORK. TAXATION TATE. Filed January 19, 1886. RAILROAD Tunnels and CUTTINGS IN CITY TAXABLE AS REAL ESThe tunnels, cuttings, substructures, and superstructures of a railroad passing through a city, including retaining walls, guards, stations, bridges, etc., are properly assessable to such railroad as real estate, where they are for the exclusive use of the railroad, and are not the property of the city in any sense; and the fact that such structures improve the streets does not change the rule. The commissioners of taxes and assessments in the city of New York assessed as real estate "the tunnels, tracks, substructures, superstructures, stations, viaducts, and masonry of the New York & Harlem Railroad, which are situated on and under Fourth avenue, between Eighty-sixth (86th) street and the Harlem river, in the Twelfth ward of the city of New York, in the sum of one million five hundred thousand dollars; and also as real estate the tunnels,, tracks, substructures, superstructures, and masonry of the said New York & Harlem Railroad, which are situated on and under Fourth avenue, between Forty-fifth (45th) street and Eighty-sixth (86th) street, in the Nineteenth ward, in the further sum of one million five hundred thousand dollars, and entered the same in the books called the 'Annual Record of Assessed Valuations of Real and Personal Estate,' as follows: RAILROADS. OWNER OR Occupant. NINETEENTH WARD. 1879. New York and Harlem Rail- Tunnels, tracks, superstructure, road Company. road-bed, and masonry on and un- In due time the relator applied to the commissioners to have the assessed value corrected, but were denied. A review of the proceedings was had upon certiorari issued out of the supreme court, when at special term they were affirmed, and the writ dismissed. On appeal to the general term, the order of the special term was reversed, as was also the proceedings of the commissioners, and they were remanded for further proceedings. From this decision an appeal is taken to this court. Mr. Dean, for appellants, Commissioners of Taxes and Assessments of the City and County of New York. Mr. Anderson, for the People. DANFORTH, J. We think the order appealable. Although by its terms the matter is remanded to the tax commissioners, we are referred to no statute under which we can proceed by virtue of it. Both parties agree that the proceeding is a special one, and we find no aspect in which the order can be regarded as other than a final one. In this respect it differs from the Moore Case, 67 N. Y. 555, where a rehearing was ordered before the special term; and In re Harlem Railroad, 98 N. Y. 12, where the appeal was dismissed because for aught that appeared the order was made in the exercise of discretionary power conferred by statute; and from the other cases cited for one or the other of these reasons. Upon the merits, we think the appeal well taken. That the things in question form an essential and necessary part of the relator's railroad, as now conducted within the city of New York, cannot be doubted; that of themselves they constitute land, within the definition of that term given in the statute relating to property liable to taxation, (1 R. S. p. 1, c. 13, art. 1, § 2,) is, I think, equally clear, (People v. Commissioners, etc., 82 N. Y. 459;) and if so, they are liable to assessment to whomsoever has that interest in the real estate which will protect the erection or affixing thereon of these structures and their possession. Smith v. Mayor, 68 N. Y. 552. As to the tracks, rails, sleepers, switches, and sidings forming the superstructure upon which the relator's cars run, it is necessarily conceded that, under the law as interpreted in this state, they are to be regarded as real estate belonging to the corporation, and assessable as such, but as to the other subjects which have been treated by the commissioners as equally liable, the contention of the learned counsel for the relator is that they form part of a public work, erected for the accommodation of the public, as part of the improvement known as "Fourth Avenue Improvement," and that they belong, not to the railroad company, but to the city; and in its support is cited the statute entitled "An act to improve and regulate the use of the Fourth avenue, in the city of New York." Laws 1872, c. 702. We find in none of its provisions warrant for such exemption, nor any intention on the part of the legislature to release the defendant from any obligation or liability previously existing, or to which it was bound by the general law. A corporation can construct or operate a railroad only for public use. It cannot exercise its necessarily great powers except in furtherance of the objects of its incorporation. It may, without special permission, and in carrying out its own plans, cross a railroad or highway, not only upon a level, but by means of bridges, viaducts, culverts, under or over passages, and in one way more than another conduct its operations with greater concern for the public safety; but it has never yet been held that the bridge or tunnel by which this safety was promoted did not partake of the incidents of its other property. It may go through a cutting, or upon an embankment, and in either case by walls provide against danger from the slipping of the earth. The whole line. might be executed in tunnel, but one as much as the other would be, within the meaning of the law, land, and each equally in possession of the company. Now, when we look at the statute (1872, supra) upon which reliance is placed for a different rule, we find an authority conferred upon the relator, under certain conditions, to regulate the grade of its railroad in the Fourth avenue, and to construct viaducts, foot and road bridges over, and such excavations and tunnels under, it as will make the same safe and convenient to persons crossing, and railroad trains and passengers traveling, thereon. It prescribes, at certain streets, crossings, stone arches, and iron bridges,―some for foot passengers, others for foot passengers and carriages; and, in those places, iron railings or brick walls outside the railroad tracks, to prevent crossing at a level; and, where there is an open cut, retaining walls; and, when all is done, the same law declares that the "said tunnel and railways shall be exclusively for the uses and purposes of said railroad company;" and it is made unlawful for any person, other than a public officer in the execution of his duty as such, "to enter or pass upon or through the same, or any portion thereof, on foot or in any other way than in the proper cars of this corporation provided for that purpose." The premises, therefore, upon which these various structures are placed, are in the exclusive use of the relator, and they are for the accommodation of the public in no other sense than is the railroad itself for public use. The act of the legislature permitted that appropriation; and its effect is not impaired because the city of New York is compelled by the same. act to pay a portion of the expense of construction. The power to make the improvement was conferred solely upon the relator. The city was forbidden to obstruct either the improvement or the use of the Fourth avenue above Forty-second street for that purpose. Thus, it neither controlled the improvement, nor can it be said in any sense to possess it. On the other hand, the relators not only controlled the improvement, but, when completed, could not only use it themselves, but, by lease or otherwise, and on their own terms, permit the trains of other railroads to run over it. The principles applied in the Elevated Railroad Case, 82 N. Y. 459, and in the cases there cited, apply here. It can make no difference, in respect to taxation, whether the rail is laid upon the surface of the road or placed on pillars, or carried through a covered way or tunnel. In either case, the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land; and for them, as described by the commissioners, the relators were liable to be v.4N.E.,no.2-9 taxed. There was therefore no error on the part of the commissioners, and it followed that the order of the general term should be reversed and the order of the special term affirmed. (All concur, except RAPALLO, J., not voting, and MILLER, J., absent.) PEOPLE ex rel. NEW YORK & H. R. Co. v. COMMISSIONERS OF TAXES, ETC., OF NEW PEOPLE ex rel. NEW YORK & H. R. Co. v. COMMISSIONERS OF TAXES, ETC., OF NEW YORK. Same order as in foregoing case. (101 N. Y. 618) PEOPLE v. KIERNAN.1 Filed January 19, 1886. 1. CRIMINAL LAW-JURY-CHALLENGE TO THE ARRAY-CODE CIVIL PROC. §§ 1035, 1051, 1058, 1059. A challenge to the array, on the ground that the names of additional jurors were not properly drawn, will not be sustained, if the jurors were drawn "in open court," and "from the box directed by the court," even though no directions were given by the court, except by the formal order entered, where that specified the box as the one "containing the names of the trial jurors for said court. The fact that the other two boxes were not in court is a mere formal irregularity. 2. SAME-MURDER-PREMEDITATION-EVIDENCE. Where the prisoner the night before fired one barrel of his revolver in his saloon, leaving three barrels loaded, and just before committing the crime said: "You or me going to die,”—it is sufficient to justify the jury in finding that the murder was deliberate and premeditated; and whether the previous firing was intended to empty the revolver or to test it is a question of fact for the jury Benj. Downing, for appellant, Patrick Kiernan. Jno. Fleming, for the People. FINCH, J The prisoner's challenge to the array was made in writing; issue taken by the district attorney upon its alleged facts; that issue tried by the court; and the challenge overruled. It averred, as the error in drawing the panel of additional jurors ordered by the court, "that the names of such jurors were not drawn from the box or boxes by the court directed, publicly, in open court, in the presence of the court, as by law provided." The broadest possible construction of this language would result in an averment of but two facts; one, that the names of additional jurors were not drawn from the box directed by the court; and the other, that they were not drawn in open court. The mode of drawing is prescribed in detail by the Code of Civil Procedure. Section 1035 et seq. There are three boxes provided for the ballots, in which are the names 1 Affirming 36 Hun, 642, mem. |