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App. Div.]

Second Department, March, 1910. progress towards the track and the evidence that the gate was up. But what can be said for hiin 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 seerns 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 seeins to have judged that it was useful to look when he did, and that he had his horses under such control that he conld have arrested their progress. IIe 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 caine 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 locoinotive knowing that it was very near to hiin. 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 hiin 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 himn in going upon a railroad track at a crossing not protected by gates, and a flagman; yet, the positive eviSecond Department, March, 1910.

(Vol. 137. dence is that he did look both ways at least once. 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 hiinself, in the wagon. There was no noise in the wagon to prevent his hearing a train. As he looked once, it is reasonavle 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 App). Div.]

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.

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 Jannary 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 npon which the motion Second Department, March, 1910.

[Vol. 137. to amend the summons and complaint by making her a party defendant was granted, contained in said order made January 21, 1909, and having failed to appear in the action or serve her answer within three days from January 21, 1909, it is further ordered that the motion to amend the summons and complaint by making her a party defendant be and the same is hereby denied.” The petitioner Churchick was not in default, but the plaintiff's attorney had failed to perforin the conditions of his own order. Nevertheless he obtained the order of April sixteenth as if he were right and she were wrong.

The appeal from the earlier orders was not duly taken, and so far the appeal should be dismissed; but the order of April sixteenth should be reversed and Churchick be brought in as a party defendant upon the condition that she appear in the action and plead within twenty days after the entry of this order and service of a copy thereof, withi notice of entry by the plaintiff upon defendant's attorney, without costs of this appeal to either party and without prejudice to any proceeding already had in the action pending the determination of the issue raised by Churchick by answer or otherwise.

HIRSCHBERG, P.J., JENKS, Burr and Carr, JJ., concurred.

Appeal from orders dismissed, except as to the order of April sixteenth; that order reversed, without costs, and motion determined in accordance with opinion. Order to be settled before THOMAS, J.

GEORGE RELYEA, as Administrator, etc., of ARMINE RELYEA,

Deceased, Respondent, v. CENTRAL New ENGLAND RAILWAY COMPANY, Appellant.

Second Department, March 11, 1910. Railroad — negligence — death of passenger crossing railroad yard –

contributory negligence.

Action to recover for the death of one who was killed by a switch engine after

alighting from the wrong side of a train and attempting to cross the railroad yard in the face of a sign stating that it was not a public way and was dangerous. Evidence examined, and held, that no negligence of the defendant was shown, while the contributory negligence of the decedent was established.

App. Dir.)

Second Department, March, 1910. APPEAL by the defendant, the Central New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 20th day of May, 1909, upon the verdict of a jury for $3,000, and also from an order entered in said clerk's office on the 17th day of April, 1909, denying the defendant's motion für a new trial made upon the minutes.

on the brief],

I. R. Oeland [Charles M. Sheafe, Jr., with him for the appellant.

Charles Morschauser, for the respondent. Thomas, J.:

Plaintiff's intestate alighted from defendant's train from the east on the north side thereof and away from the depot with ample facilities, walked over rough untrodden ground a distance of eighteen feet with a sharp descent of four feet seven inches, crossed a switch track, walked twelve feet farther on descending grade to another switch track, without looking either way entered thereon at a point about five feet from a sign “Railroad Property. Not a public way. Dangerons,” was struck by a backing shifting engine with one empty and two loaded cars, coming on an up grade and starting near the beerhouse, some one hundred and seventy-three feet away from the accident. The engineer testified that he blew.four blasts for the switch, and upon starting the bell was rung by the fireman until the latter called to him to stop the engine, which the engineer did as soon as possible. There were witnesses who testified that they did not hear bell or signal. The engineer was on the north side of his engine, and with the tender in front could not see a person entering the track from the south side. Near the beerhouse was a way beaten by use. People used this way in some instances as it saved walking two blocks further, and while the evidence shows that it was the apparent and used way, persons did at times depart from it, or cross easterly of it when there was no path, and the land steeper and rongher. There is also evidence that persons crossed this path to get to and from the cars, alighting froin the north side, and there is evidence of a woman entering the rear car from the north side. There is no evidence that the defendant ever invited such

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