App. Div.] Second Department, March, 1910. JOHN H. MAY, as Administrator, etc., of CHARLES NELSON MAY, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Second Department, March 11, 1910. Railroad negligence collision at grade crossing - contributory negligence. Action to recover for the death of one who was killed by a train while driving a vehicle across a railroad track. Although on approaching the track the view was obstructed at various places, there were intervals where an approaching train could have been seen. There was testimony that the driver looked for a train at one of these places, and it appeared on all the evidence that he did discover the train but attempted to cross in front of it. Held, that a judgment for the plaintiff should be reversed. The fact that the gates guarding the crossing were up did not excuse lack of care in crossing the track. HIRSCHBERG, P. J, dissented. REARGUMENT of an appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 21st day of April, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk's office on the 13th day of May, 1909, denying the defendant's motion for a new trial made upon the minutes. John F. Brennan, for the appellant. Albert A. Wray [Stephen Callaghan and Edward Frank Glover with him on the brief], for the respondent. THOMAS, J.: The plaintiff's intestate, eighteen years old and experienced, was driving a wagonette westward across defendant's tracks at twelvethirty-seven o'clock A. M. on February twenty-third, when the wagon aft of the whiffletrees was struck by a south-bound train, the horses with harness released escaped uninjured, the driver and two persons sitting with him, and two of the three persons on each of the side seats in rear of the driver were killed, while two persons who were sitting, one, Palmer, in the last seat on the south side, and one, Miss Second Department, March, 1910. [Vol. 137. Bird, who was sitting in the last seat on the north side, escaped alive, but injured. The same accident was before this court in Singer v. N. Y. C. & H R. R. R. Co. (132 App. Div. 890) which related to the death of one of the passengers. In that case the question of defendant's negligence must have been similar to that now presented, and need not be discussed, although in the present instance it was properly submitted to the jury. But the question of the driver's negligence is presented at this time, and differs from that arising in the case of the passenger. The care required of the driver is not lessened by the fact of his death, but on account of the absence of his evidence the jury is permitted to use presumptions and inferences and to permit evidence adduced to have probative force, whereon a verdict may be found for the plaintiff and sustained. There is evidence that for some distance before reaching the easterly rail of the north-bound track there were intermitting obstructions. The available seeing spaces varied in the length of view permitted. The driver, when he was at considerable distances from the track, could, had he made fortunate selection of places therefor or had he looked with continued search, have seen the train, and he could have followed it appearing and disappearing, but always approaching. But he might have looked somewhat frequently without discovering it on account of the varieties of obstruc tion. The evidence of the survivor Palmer is: "He bent forward this way, and turned his head this way, looking up and down the track. The horses kept going just the same, so far as I know, I don't remember any change in the gait. There was no change in the speed of the horses, they were going just the same, with the driver with his head out and looking up and down the track. At that time I was about hitting the first rail, that it is the rail of the up track, I don't know. The first rail I hit, that is the first rail of the up track. Up to that time the driver had not, so far as I could observe, either looked or listened for the approach of a train before we went on the crossing. He looked at that time, that is all. He looked that once. He didn't whip his horses up." When the driver looked at that point the train was right before his face. If there was not evidence of his looking at a place where to look was to see the train, an argument in vindication of his care might be attempted on account of the obstructions that attended his earlier App. Div.] Second Department, March, 1910. progress towards the track and the evidence that the gate was up. But what can be said for him looking as he is shown to have looked, with the headlight of the engine glowing in full view? Assuming that he looked and saw the train, which seems a necessary presumption, what can justify his driving in front of the locomotive ? Can it be said that he looked and discovered the train when it was too late to stop or to turn aside? It must be supposed that he looked at a point where, if he saw the train, he could avoid it. He seems to have judged that it was useful to look when he did, and that he had his horses under such control that he could have arrested their progress. He must have judged that by looking as he did he could have avoided the train by stopping or turning aside his horses. Palmer states that he saw him "as he came towards the railroad crossing, or the track," and later says, "at that time I was about hitting the first rail." If this means that the wagon was at the east rail, the horses could not have reached the south-bound track. There is no evidence that he hurried or delayed after looking. The horses were not injured. The wagon was struck, so he must have driven his wagon in front of the locomotive knowing that it was very near to him. I cannot discover that his driving in front of the locomotive was a constraining alternative, nor that it was a mere error of judgment. He had eight people in his care, and the result of the accident shows the necessity for caution. There is sufficient evidence that the gates were up. But that did not excuse lack of care on his part. But even if their condition invited his passage, even if it could be said that such condition tended to lessen his care, the fact remains that he was not lulled into security, but disregarding the suggestion of a safe passage he sought to ascertain for himself. The learned counsel for the plaintiff justifies him as follows: "The evidence which was submitted to the jury on this branch of the case was to the effect that at the time in question, the driver was sober, and was a temperate, competent driver, of years of experience; that as he approached the crossing he looked to the right and the left for coming trains, notwithstanding the fact that the crossing gates were up, and he was relieved from the necessity of using as great care as would have been required of him in going upon a railroad track at a crossing not protected by gates, and a flagman; yet, the positive evi Second Department, March, 1910. dence is that he did look both ways at least once. [Vol. 137. This shows that the possibility of danger was in his mind as he approached the track, and that he was alert to discover the presence of danger. He was driving at a jog trot, about five miles per hour, a pair of good, strong, docile livery horses, with a heavy load of nine persons, including himself, in the wagon. There was no noise in the wagon to prevent his hearing a train. As he looked once, it is reasonable to suppose, that, the matter being on his mind, he looked more than once, although neither of the two survivors of the accident saw him but once." This argument may exculpate him for not earlier discovering the train, but it confirms my conclusion that when he did look he was conscious of possible danger, was "alert to discover" it, and that he did discover it, and chanced passing before the locomotive. The judgment and order should be reversed and a new trial granted, costs to abide the event. WOODWARD, JENKS and CARR, JJ., concurred; HIRSCHBERG, P. J., dissented. Judgment and order reversed on reargument, and new trial granted, costs to abide the event. N. WILLARD CURTIS, Respondent, v. RAY GOLDBERG and Others, Defendants. ANNIE CHURCHICK, Appellant. Second Department, March 11, 1910. Party-motion to intervene as defendant-conditions of granting motion-failure to serve order when defendant not in default. Where one holding title to lands under foreclosure was brought in on her own motion as a party defendant, and thereafter on motion of the plaintiff the order was modified so as to require her to answer within three days after service of a copy of the order with notice of entry, otherwise her motion to be brought in denied, it was necessary for the plaintiff to serve a copy of the latter order with notice of entry before he could put the defendant in default. Hence, a subsequent order vacating the prior order because of a failure of the defendant to answer within three days should be set aside and she should be allowed to appear and answer within twenty days. App. Div.] Second Department, March, 1910. APPEAL by the petitioner, Annie Churchick, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of January, 1909, also from an order bearing date the 21st day of January, 1909, and entered in said clerk's office, and an order entered on the 29th day of January, 1909, and also from an order entered in said clerk's office on the 19th day of April, 1909, vacating the first above-mentioned order. Jerome H. Buck [Meyer D. Siegel with him on the brief], for the appellant. Alfred A. Schlickermann, for the respondent. THOMAS, J.: Pursuant to section 452 of the Code of Civil Procedure, Churchick, who had the title to the land, made an application to be brought in as a party defendant in an action to foreclose a mortgage. It was her right to be so brought in. (Johnston v. Donvan, 106 N. Y. 269; Uhlfelder v. Tamsen, 15 App. Div. 436; Earle v. Hart, 20 Hun, 75.) Having been made a party she was entitled to such usual service of papers as her notice of appearance demanded. The order of January twenty-first, making her a party, contained the condition that she appear generally and serve her answer within three days of the date of the order, and proceed with the trial when reached. The order of January twenty-ninth contained the condition that she appear and answer "within three days after service of a copy of this order and notice of entry thereof, otherwise this motion is denied." Churchick had scant opportunity for presenting her defense if such she had, and as the order was entered "on motion of Alfred A. Schlickermann, attorney for the plaintiff," the duty fell on him to make "service of a copy of this order and notice of entry thereof." He made no service, not even of the summons and complaint so far as appears, but on April sixteenth he obtained an order "that the order made and entered herein January 29, 1909, resettling the order dated January 15, 1909, and filed January 18, 1909, which was vacated by order made January 21, 1909, be and the same is hereby vacated and set aside; and said Annie Churchick having failed to comply with the conditions upon which the motion |