First Department, January, 1921.

[Vol. 194. under the common law where the burden of proof was on the plaintiff (Sackheim v. Pigueron, 215 N. Y. 62; Irish v. Union Bag & Paper Co., 103 App. Div. 45; affd., 183 N. Y. 508; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199), but by virtue of the provisions of section 841-b of the Code of Civil Procedure (as added by Laws of 1913, chap. 228) the defendant had the burden of proof on that issue. There can be no doubt but that the evidence warranted the jury in finding that the decedent was free from contributory negligence. Since the relation of passenger and carrier existed between the decedent and defendant, I am also of opinion that the jury were warranted in finding that the defendant failed to perform his duty with respect to maintaining the planking in the gangway in a reasonably safe condition. (Schonleben v. Interborough Rapid Transit Co., 160 App. Div. 790.) Although there is no express evidence as to how long the plank had been loose, the jury might have found that a proper inspection would have disclosed that it was loose or was becoming loose, and that the defendant was chargeable with notice thereof a sufficient length of time before the accident to impose upon him the duty of having it repaired. The evidence, however, I think, fails to show any causal connection between the loose condition of the plank and the precipitation of the decedent from his seat onto the surface of the gangway. Although in death cases inferences with respect to the conduct of the defendant may be drawn in favor of the plaintiff on the issue with respect to contributory negligence, that rule extends no further and does not aid the plaintiff on the issue as to whether the defendant was guilty of negligence which was the proximate cause of the death. The learned counsel for the respondent attacks the veracity of the defendant's witness who testified that the first noise he heard was like the snap or crack of a whip. He realizes that if that is what frightened and caused the horses to stumble or start up suddenly, the recovery could not be sustained. The authorities in this jurisdiction nearest in point in favor of the plaintiff on the facts are Sackheim v. Pigueron (supra) and Fordham v. Gouverneur Village (160 N. Y. 541). In the former of those cases, negligence on the part of the defendant in failing to provide a proper appliance

App. Div.]

First Department, January, 1921.

for the fastening of a door of an elevator was clearly shown, and it was assumed that such negligence was a proximate cause of the death to recover for which the action was brought. The evidence tended to show that the decedent on approaching an elevator on the sixteenth floor of an office building, called, "Down, sixteen," and walked into the elevator shaft, the door of which had been left open because it rebounded when closed by the elevator operator, and thus met her death. The point of law decided by the Court of Appeals was that her contributory negligence was for the jury. In the latter case there was a plank sidewalk, forming a smooth surface on a bridge over a stream dividing the village. Part of the sidewalk was torn up by the village authorities in laying water pipes,. and the openings were closed at night by laying planks from one to two inches in thickness over them and extending over the surface of the adjacent walk, and there was no light or barrier or warning for the protection of pedestrians. Plaintiff's intestate left home in the evening to go to the post office and her route was across the bridge. She was found on the sidewalk in the vicinity of one of these covered openings, on her hands and knees, endeavoring to get up, and stated that she had hurt herself, and after being helped up she got down again on her hands and knees and she and the person who assisted her felt about and found one of these planks. There was no ice or snow or other obstruction to account for the accident. The Court of Appeals in the opinion stressed the fact that the decedent herself thus endeavored to ascertain the cause of her fall, and that when she found the plank she ceased further efforts, indicating that she was satisfied that she stumbled on the plank. The court expressed the opinion that the reasonable inference was that she had received her injury in that place and upon the plank, and that the nature of her injuries presented a question for the jury as to whether or not she had not stumbled over the plank. The court had no doubt with respect to the negligence of the defendant, for it appeared that several others had stumbled on the plank the same evening. In the case at bar, however, the decedent died or was killed instantly, and we have no expression or act on his part to show the cause of his falling from his seat. The learned counsel for the appellant insists that it may be

First Department, January, 1921.

[Vol. 194.

reasonably inferred from the evidence that one of the horses stumbled on this plank and that one or all of the horses became frightened and started suddenly and pulled or jerked the decedent from his seat. The accident may have occurred from that cause; but horses sometimes stumble without meeting with an obstruction and there is no evidence that any of the horses stumbled at that point, and they may have been startled by the decedent cracking the whip, or he may have lost his balance and have fallen, coming in contact with one of them, or they may have been frightened by something else or in some other manner. In White v. Lehigh Valley R. R. Co. (220 N. Y. 131) it was held that where the cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, the plaintiff is not entitled to go to the jury; and that although the defendant may be guilty of negligence, unless the evidence fairly tends to establish that this negligence was the proximate cause of the death, such an action cannot be maintained. I think it cannot be said that this evidence reasonably points to the negligent condition of the plank as the cause of the fall of the decedent from his seat. It is pure speculation and conjecture.

I am of opinion, therefore, that the judgment and order should be reversed, with costs, and the complaint dismissed, with costs on the defendant's motion at the close of the evidence.

CLARKE, P. J., SMITH, PAGE and MERRELL, JJ., concur.

Judgment and order reversed, with costs, and complaint dismissed, with costs.

App. Div.]

First Department, January, 1921.

In the Matter of the Voluntary Second Intermediate Judicial Settlement of the Account of Proceedings of RICHARD W. NAYLOR and Others, as Trustees under the Will of JOSEPH NAYLOR, Deceased.

RICHARD W. NAYLOR and Others, as Trustees, and GRACE A. N. OXENFORD and Others, Appellants; JOSEPH NAYLOR, Respondent.

Wills

First Department, January 14, 1921.

construction of trust provisions of will as to disposition of remainder after termination of life estate provision for distribution of remainder on death of one of several life tenants special provision for distribution of remainder after determination of particular life estate to children of second marriage of said life tenant not applicable on death of any other life tenant commissions of trustees.

The testator provided for the division of his residuary estate into seven equal parts to be held in trust for his seven nephews and nieces, and on the death of any one of the nephews and nieces leaving him issue surviving, with the exception of one named nephew, the fund held in trust for the deceased nephew or niece should be paid to the surviving children of said nephew or niece, and that in case any nephew or niece die without issue, then the principal fund should be divided among the said survivors of the said nephews and nieces and the then surviving lawful issue or descendants of any of them. With respect to the fund held in trust for the nephew excepted from the general clause of the will, it was provided that on his death the principal fund should be divided among the surviving children of the second marriage of said nephew, and that in case he should die without leaving lawful descendants by his second marriage, then the fund should be distributed among the then survivors of the said seven nephews and nieces.

Held, that the children of both the first and second marriages of the nephew excepted from the general provision were entitled to share in the division of the principal sum on the death of any other nephew or niece without issue or descendants, as provided in said general provision. The trustees had received all the commissions to which, upon the facts, they were lawfully. entitled.

APPEALS by Richard W. Naylor and others from parts of a decree of the Surrogate's Court of the county of New York, entered in the office of the clerk of said court on the 21st day

First Department, January, 1921.

[Vol. 194. of July, 1920, construing the will of Joseph Naylor, deceased, and denying commissions on a part of the principal of a trust fund, being the increase on the sale of certain property over the amount for which the trustees took said property.

George W. Carr, for appellants Richard W. Naylor and others, as trustees, etc.

Hugh Gordon Miller, for appellants Grace A. N. Oxenford and others.

Charles F. Bliss, attorney [Wilmer J. McAllister of counsel], for the respondent Joseph Naylor.

DOWLING, J.:

The first question presented by these appeals is the construction of certain provisions in the will of Joseph Naylor, deceased.

Joseph Naylor died in the borough of Manhattan, city of New York, leaving a last will and testament which was duly admitted to probate in the Surrogate's Court, New York county, on October 20, 1897, and letters testamentary were issued thereunder to his widow, Eliza Naylor, on October 20, 1897. She died on December 7, 1901, and pursuant to the terms of the will, letters testamentary were thereafter issued to Nicholas W. Day, Lyman N. Jones and John Naylor.

John Naylor, a nephew of testator, died on March 7, 1914. He had been married twice. By his first wife he had one child who survived him, viz., Grace A. N. Oxenford, and also one child of a deceased daughter, viz., Grace A. Boyer. By his second wife he had one child who survived him, viz., Joseph Naylor.

Lyman N. Jones, an executor, died on March 2, 1916, and Nicholas W. Day, another executor, died on March 6, 1916. On July 12, 1916, Richard W. Naylor, Lyman N. Jones and Walter R. Mason were duly appointed by the Surrogate's Court of New York county successors and substituted trustees under said will. Such trustees thereafter presented to the Surrogate's Court a first account, verified November 26, 1917,