burden clean the snow from his own premises; | way were very blind if they did not foresee the and the authorities may justly and lawfully require that to be done, under the jurisdiction conferred by their charters.

But although the municipality makes the necessary regulation it is not thereby relieved from responsibility. The duty remains, and it must therefore see to it that its ordinance is obeyed. It is entitled, however, to a reasonable time within which to perform the duty in the manner permitted, and is not guilty of negligence if, observing that the work is being generally done, it awaits for a reasonable period the action of the citizens. But when such reasonable time has been given, the corporation must compel the adjoining owners or occupants to act, or do the work itself; and if it suffers the obstruction to remain thereafter with notice, actual or constructive, of its existence, it may become responsible for injuries resulting. Another and different emergency sometimes occurs and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold which covers everything with a film or layer of ice and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like, as a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice (which it cannot reasonably remove) such foreign material than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.

Both of these emergencies are shown to have existed in the present case, and as to both the learned trial judge gave to the defendant the full benefit of the rule as we have stated it. But there were further facts: the sidewalk along Buena Vista Avenue, where it passed an unoccupied lot, was bounded on its inner line by an unprotected bank of earth. For two years the action of rain and frost had thrown upon the walk sand, gravel and stones from the bank, until the flagging was entirely covered by it, and a new and sloping grade substituted for the one adopted. The sand on the inner line was about eight inches in depth, growing less toward the curb, where it was about one inch. Mixed in with this were stones, some of which were as large as apples, When the winter came this walk was covered with snow which was never removed. Before the accident the snow fall had been heavy, but it was evidently not recent, for upon this walk it had been trampled down by travel, and by freezing and thawing converted into ice.

These facts tended to establish negligence on the part of the City. If the slope of the walk was not dangerous in the summer weather, it might become so when coated with ice in the winter; and those having the care of the high

possible danger. No one, however, appears to have been injured by it when simply in this condition, for the reason probably that sand was continually washed upon it from the adjoining bank. But this protection disappeared before the plaintiff was injured. On the night preceding, rain fell which washed the sand from the ice, and then froze, covering everything with a new surface, and making the whole city slippery and dangerous for travelers. That was just as true of walks cleaned as of those not cleaned; and it may even be the fact that the latter, when paved, became by reason of their smoothness, the most dangerous of all. That such was the situation was very strongly shown by the conduct of plaintiff himself. He boarded in a house adjoining the vacant lot of which we have spoken, and standing so far above the grade of the street that ten steps led down to the sidewalk in front. On coming out in the morning with a companion, and observing the situation, he hesitated to come down his own steps to the sidewalk although clear of snow as we may fairly assume; and chose rather as a measure of safety to take another route. He went through the picket fence at the side, and on to the vacant lot which was covered with snow, and thence down to the sidewalk, which he essayed to cross, intending to go to his work through the middle of the street and on the roadway.

His conduct pictures the situation perfectly, He stepped on the new ice surface, just formed, and for the existence of which the City was in no respect responsible. Had that been the whole of the case, a recovery would have been impossible. But this new ice formed on a slope, having a fall toward the curb of six or seven inches in ten feet, which the City had negligently suffered to remain. If that slope was one concurring cause of the fall, without which the accident would not have happened, the City is liable.

We have stated the rule to be that" When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in à highway and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect." Ring v. Cohoes, 77 N. Y. 88.

Now the jury were plainly charged that the new ice recently formed furnished no ground of negligence on the part of the city; and it necessarily followed that the jury found the slope of the walk to have been a concurrent cause without which the accident would not have happened.

The only remaining inquiry is whether there were any facts which permitted that inference or whether there were none; and the conclusion was mere guess and speculation. The fact proved was that the plaintiff slipped on the ice İying on a slope. The inference, it is claimed, is natural and logical and sustained by common observation and experience-that both of the conditions entered into the accident as proximate causes. But no one can say that if the new ice had spread over a level the plaintiff would not have fallen; and there is nothing in the case pointing to the slope as a concurrent cause,

beyond the bare fact that it existed, and so nothing to redeem the inference sought from the domain of mere guess and speculation. The question involved has been quite earnestly debated in other States, where it arose under statutes requiring towns to keep the streets safe and convenient.

In Maine and Massachusetts it is held that if besides the defect in the way there is also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. Moore v. Abbott, 32 Maine, 46; Moulton v. Sanjord, 51 Maine, 127; Marble v. Worcester, 4 Gray, 395; Billings v. Worcester, 102 Mass. 329.

These rulings are based largely upon two grounds: that the town is liable for the defect alone, and that the proportion of injury due to that cause is impossible to be ascertained. A contrary rule is held in Vermont and New Hampshire. Hunt v. Pownal, 9 Vt. 411; Winship v. Enfield, 42 N. H. 197.

We have already stated the rule to be in this State that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury there is no difficulty; but where there is also another for which no one is responsible we have held that "The plaintiff must fail if his evidence does not show that the damage was produced by the former cause;" Searles v. Manhattan R. Co. (N. Y.) 2 Cent. Rep. 442, 101 N. Y. 661; and we added that he must fail also if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by a preponderance of evidence; and the jury must not be left to a mere conjecture or to act upon a bare possibility.

In this case that rule was violated. The plaintiff slipped upon the ice. That by itself was a sufficient, certain and operating cause of the fall. No other explanation is needed to account for what happened. It is possible that the slope of the walk had something to do with it. It is equally possible that it did not. There is not a particle of proof that it did. To affirm it is a pure guess and an absolute speculation. Are we to send it to a jury for them to imagine what might have been? The great balance of probability is that the ice was the efficient cause; there is no probability not wholly speculative that the slope was also such. Its descent was slight, not quite an inch in a foot, and not more than constantly occurs in the streets of a city. No knowledge or intelligence can determine or ascertain that such a slope had any part or share in the injury, and to send the question to the jury is simply to let them guess at it and then upon that guess to sustain a verdict for damages. I am quite willing to hold cities and villages to a reasonable performance of duties; but I am not willing to make them practically insurers by founding their liability upon mere possibilities.

For these reasons I think the plaintiff should fail and the motion for a nonsuit should have been granted.

Judgment reversed; new trial granted; costs to abide event.

All concur, except Andrews, J., not vot

ing.

Re Petition of KINGS COUNTY ELEVATED R. CO. to Acquire Title to Lands of Ernest Nathan.*

1.

2.

Same, Re Lands of John O'Brien.

Same, Re Lands of Mary Duane. The application for the appointment of commissioners to determine the routes of a contemplated railway, under the Rapid Transit Act (Laws 1875, chap. 606), need not be verified by all the subscribers thereto; the requirements of the statute are satisfied if the application is proved by a single witness upon oath to have been signed by the persons whose names are thereto appended.

Held, upon the facts, that, upon filing the certificate and articles of association required by said Act of 1875, on January 6, 1879, the petitioner, the Kings County Elevated R. Co. then became, and that it now is, a corporation.

3.Held, that a condition affixed by the common council of Brooklyn to its consent to the construction of petitioner's proposed roads, to the effect that the company should enter into a bond to pay into the city treasury semi-annually, for the benefit of the city, 2 per cent of its gross receipts, was (even if the common council had power to affix any conditions to its consent), a condition which could not be performed until after the road should be constructed, and did not prevent the consent of the common council (in connection with that of property owners) being effective to give the company power to appropriate interests in land for the construction of its roads.

4.

5.

Other conditions, affixed to such consent by the common council, requiring the company to consent that the city assessors should arbitrate all damages caused to property owners by the construction of the road, and that portions of the road should be completed at certain dates specified (being different from the dates fixed by the commissioners) held, to be beyond the power of the common council and in conflict with the statute.

The articles of association prepared by the commissioners provided that the time unavoidably consumed by legal proceedings, etc., "or otherwise," should not be deemed a part of the period limited for the completion of the road. Held, that the time intervening between the date of the resolution of the commissioners limiting the time for the completion of the road and the date of the incorporation of the company should not be counted against the company; nor should the time unavoidably consumed by the impossibility of obtaining the consent of property owners, or

*See N. Y. Cable R. Co. v. Mayor of New York, 6 Cent. Rep. 56.

its equivalent, or the consent of the local | ing with all the means and power at its comauthorities, be counted. mand to remove the legal obstacles placed in its way.

6. The forfeiture to the county supervisors of the corporate rights of a company organized under the Act of 1875, prescribed by that Act in case the railway shall not be completed within the time fixed by the articles of association, is not worked by the mere default, without the intervention of the courts or action on the part of the State or of the county.

7. The commissioners having located fifteen different routes, fixed (in the articles of association under which the petitioner was organized) the time within which five only of such routes should be completed, and omitted to determine any period within which the remaining ten should be finished. Held, that this omission was not fatal to the

whole scheme; that the different routes being distinct and the provisions in respect to them being severable, the right of the petitioner to the routes, the time for the completion of which had been properly limited, was not affected by such omissions in respect to other routes; but such other routes, for which no time was fixed, were for that reason not legally designated for any railway, and the streets included in them are open to occupation by another company.

(Decided March 22, 1887.)

APPEAL by the Kings County Elevated Rail

Atlanta v. Gate City Gas Light Co. 71 Ga. 106, 125; White v. State, 69 Ind. 273, 279; Angell & Ames Corp. § 70.

The conditions imposed by the common council, as qualifying their consent of 1879, were conditions subsequent.

Finlay v. King, 3 Pet. 346 (28 U. S. bk. 7,
L. ed.701); Martin v. Ballou, 13 Barb. 119,133; 2
Bl. Com. old ed. 156; Nicoll v. New York etc.
R. R. Co. 12 N. Y. 121; Davis v. Gray, 16 Wall.
203 (83 U. S. bk. 21, L. ed. 447).
The charter is a contract.

23 Wend. 540, 576; 12 N. Y. 121; 13 Barb. 33; 20 Barb. 455; 33 Barb. 79, 87; 46 Barb. 109. Mr. Leslie W. Russell, also for appellant:

Equity abhors forfeiture. It exacts no penalties where good conscience justifies delay.

Jackson v. Topping, 1 Wend. 388; Hasbrook v. Paddock, 1 Barb. 635; Linden v. Hepburn, 3 Sandf. Ch. 668.

provide that a corporation may lose its life Conceding the power of the Legislature to without the intervention of the courts, each case depends upon the construction of the language used. Two cases are found where this court has held that the forfeiture became complete per se on the happening of the thing provided against.

Re Brooklyn R. R. Co. 72 N. Y. 245; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524.

corporate existence and powers cease.

In the former case the provision was: "Its In the way Company from an order of the Supreme latter case it was: "This Act and all the powCourt at General Term in the Second Departers, rights and franchises herein and hereby ment, affirming an order of the Kings Special granted shall be deemed forfeited and termiTerm denying a petition for the appointment nated." Both these cases recognize the general of commissioners of appraisal. Reversed. doctrine that the omission to perform a duty imposed on a corporation does not ipso facto destroy the corporate character or existence. It was only by a peculiar and pointed wording of the statute in those cases that the result obtained.

The facts and questions raised appear from the opinion.

Messrs. George F. Comstock and George Shea, for appellant:

A clause of forfeiture upon nonperformance of a condition, does not per se disturb the right which is the subject of the grant of gift but is, in judgment of law, merely the justification for an entry and taking of possession, or for a judicial proceeding to ascertain and enforce such forfeiture.

N. Y. Elevated R. R. Co. 70 N. Y. 327-337; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 529; Mickles v. Rochester City Bank, 11 Paige, 124; Sercalls Falls Bridge v. Fisk, 23 Fost. (N. H.) 177; Willamet Falls Co. v. Kittridge, 5 Sawyer, C. C. 44-47; Frost v. Frostburg Coal Co. 24 How. 283 (65 U. S. bk. 16, L. ed. 639); Chesapeake etc. Canal Co. v. Baltimore & Ohio R. R. Co. 4 Gill & J. 1, 127; Irvine v. Lumbermen's Bank, 2 Watts & S. 190; Connecticut etc. R. R. Co. v. Bailey, 24 Vt. 465, 475; Atchafalaya Bank v. Dawson, 13 La. 497; Regents of the University v. Williams, 9 Gill & J. 365, 426.

This court will not go back six years and find the extinction then of this corporation and all its rights, while both the State and the County of Kings have been dormant and acquiescent during all that period, and while during all of the same period, this Company has been work

Re N. Y. Elevated R. R. Co. 70 N. Y. 327; Denike v. N. Y. etc. Cement Co. 80 N. Y. 599; Bank of Niagara v. Johnson, 8 Wend. 645; People v. Manhattan Co. 9 Wend. 351; Mickles v. Rochester City Bank, 11 Paige, 118.

But further; the statute provides that on default the rights acquired by the company shall be transferred to the Supervisors of Kings County. Under that language the corporate character and powers of the company not only are not lost ipso facto on default, but the cause of forfeiture, if any, exists only in favor of the supervisors; and until they assert their rights and make an entry the title of the company is not devested, and cannot be questioned by a third person.

Welch v. Silliman, 2 Hill, 491; Fonda v. Sage, 46 Barb. 110; Thompson v. N. Y. & Harlem R. R. Co. 3 Sandf. Ch. 625; Nicoll v. New York etc. R. R. Co. 12 N. Y. 121; Patten v. N. Y. Elexated R. R. Co. 3 Abb. N. C. 306; Towle v. Remsen, 70 N. Y. 303, 312; Serall's Falls Bridge Co. v. Fisk, 23 N. H. 171; Schulenberg v. Harriman, 21 Wall. 45, 63 (88 U. S. bk. 22, L. ed. 551, 555); Chesapeake etc. Canal Co. v. Baltimore & O. R. R. Co. 4 Gill & J. 121.

|

The rule which prevents the existence of a corporation being questioned collaterally does not apply where a corporation is attempting to condemn land under the power of eminent domain. In such a case the owner can attack its

existence.

Re Brooklyn etc. R. R. Co. 72 N. Y. 245; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 531.

The property of individuals cannot be condemned for a right of way, after the time limited in the charter for the completion of a railroad, even although its dissolution has not been decreed.

Atlantic etc. R. R. Co. v. St. Louis, 66 Mo. 226, 250; Peavey v. Calais R. R. Co. 30 Maine, 499; Morris etc. R. R. Co. v. Central R. R. Co. 31 N. J. Law, 207; Regina v. London etc. R. R. C. 6 Eng. Law & E. 220.

Danforth, J., delivered the opinion of the

court:

The appellant by proceedings instituted April 8, 1886, sought to have an easement or interest appurtenant to certain lands abutting on Fulton Street, in the City of Booklyn, appropriated to its use for railway purposes; and to that end applied by petition to the court at special term for the appointment of commissioners of appraisal. It was there denied, not in the exercise of discretion, but upon the ground as stated in the order, "that the petitioner had never obtained the consent of the local authorities of the City of Brooklyn to the construction of its road in Fulton Street."

Upon appeal to the general term, the order appears to have been affirmed upon the further ground that by reason of certain defaults on its part, or noncompliance with conditions imposed by its articles of association, the petitioner had lost its corporate powers, including the right to take proceedings for the condemnation of private property for public use.

So we have before us three material propositions: 1, that the company never acquired a corporate existence; 2, that it never performed the conditions imposed by the Act of 1875 (supra), and therefore lost its franchises; 3, that it never obtained the consent of the local authorities having control of that portion of Fulton Street upon which it was proposed to construct the railway.

First. The Act relating to the formation of these corporations (Laws of 1875, supra) prescribes that whenever it shall be made to appear to the supervisors of the county or the mayor of the city as the case may be, by the application of fifty reputable householders and taxpayers, verified upon oath before a justice of the supreme court, that there is need in their county of a steam railway, commissioners shall be appointed who, if they find such railway necessary, shall fix and determine its route or routes, "Provided, That the consent of the owners of one half the property bounded on (or in lieu thereof, the consent of commissioners appointed by the supreme court), and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railway, be first obtained." Secs. 1, 5.

In this case the application on which commissioners were appointed to determine the necessity of the proposed road is conceded to have been signed by the requisite number of qualified persons and to have been sufficient in form. But it was verified by one of the subscribers only; and therefore it is contended by the learned counsel for the respondents that it was insufficient to give jurisdiction to the mayor to entertain and pass upon the application, his claim being that each subscriber should have made oath.

We think the statute was satisfied. It requires only that the application shall be verified upon oath, before a supreme court judge, that is by a witness upon oath before him to have been really signed by the persons whose names are thereto appended. Sixty names appear upon the application. One affiant stated that he knew each of the persons represented by those names, save five, and saw them sign it; another said the same as to four of these five; and a supreme court judge certified that these

The petitioner was organized as a railway company under chapter 606 of the Laws of 1875, which provides for the construction and operation of a steam railway or railways in the counties of this State, and on the performance of certain conditions imposed by that Act, is permitted to exercise the power of eminent domain over lands, or any interest therein necessary for the construction or operation of its road, in the manner or by the special proceed-statements were sworn to before him. ings prescribed thereby. Sec. 17.

For that purpose there must be a company duly incorporated, and which, having complied with the conditions named in the Act, has the power and the intention in good faith to construct and finish a railroad to and from the places named in its articles of association; § 18; and unless these facts are alleged, and upon hearing found to exist, the petition cannot be maintained.

The application was therefore duly verified, and the order appointing the commissioners justified. It was made on the 23d of March, 1878, and it is conceded that the persons thus appointed, duly qualified as required by law (4), and entered upon and executed their duties. They, thereupon, by public notice, invited plans for construction and operation of such railway "upon the route or routes, and in the locations theretofore determined by them" It is not denied that the petition at the bot-(§ 5), and many other things relating to the tom of these proceedings was in the form, and set out all the facts, made essential by statute; but the question raised by the answer to the petition in each case, and now relied upon by the learned counsel for the respondent, includes not only those on which the special and general terms of the court below put their decision, but one going to the very existence of the petitioner.

running of the road and the amount of capital stock of "the company to be formed for the purpose of constructing, maintaining and operating such railway." Sec. 6.

It is by the Act (supra) made the duty of the commissioners to prepare articles of association for a company to be formed, and to set forth therein the particulars, requirements and conditions imposed by the commissioners, pursu