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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 perform 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, with 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. Div.]

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 for a new trial made upon the minutes.

I. R. Oeland [Charles M. Sheafe, Jr., with him on the brief], 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. Dangerous," 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 rougher. There is also evidence that persons crossed this path to get to and from the cars, alighting from 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

Second Department, March, 1910.

[Vol. 137. conduct, unless by failure to use compulsion to stop it, nor that the company's servants ever opened the gates on the north side, and in the present instance there is not sufficient evidence that decedent found the gate open, although a person who alighted from the other end of the same car stated that he saw him turn and take the first step down on the platform and thought that he did not have time to open the gate, and Mrs. Higgins, called by defendant, saw him step down but did not see him open the gate. I think that the plaintiff's evidence shows strongly that the path was the usually traveled way for persons crossing the defendant's switching yard, and that persons going to or from the cars or depot made principal use of it, and that the crossing at other places to the eastward was exceptional and by stragglers.

The decedent's contributory negligence clearly appears by undisputed evidence. He was in a switching yard, often in busy use, going to his house in the neighborhood. He had all knowledge and made no use of it. He passed near the warning sign and remained unwarned. Three witnesses stated that they did not bother to look at it, and the decedent seemed in like manner disposed. It was not the privilege of the defendant to force persons to look at it, nor its duty to place pickets on the grounds to expel strollers. The land was not appropriated to passengers, it was not suitable for passage, it was given over to a known dangerous but legitimate use, and yet the decedent assumed the liberty to cross where he would without looking for the very dangers that a switching yard suggests, with the added warning of the signboard. He was probably preoccupied, but is not excused, as the defendant did not cause his diversion. The defendant was not negligent and the decedent was.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

HIRSCHBERG, P. J., WOODWARD, RICH and CARR, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

App. Div.]

Second Department, March, 1910.

ADA H. MITCHELL, Respondent, v. CHARLES L. MITCHELL and Others, Appellants, Impleaded with WILLIAM E. MITCHELL and JAMAICA SAVINGS BANK, Defendants.

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Where testamentary trustees are directed to sell lands and divide the proceeds among persons named on the death of the life beneficiary, and to deduct a certain sum from the share of one of the remaindermen, the remaindermen cannot elect to extinguish the power of sale and to take the property in its unconverted form. This because they do not own the entire interest, because of the sum to be deducted from the share of one of them.

Under such circumstances, the power of sale must be exercised in order to make the distribution as commanded by the will.

Moreover, where a testator has directed trustees to sell lands and divide the proceeds, the beneficiaries cannot elect to extinguish the power of sale and take the property in its unconverted form where any of them object to the reconversion. Hence, the assignee of one of the remaindermen entitled to share in the proceeds of such sale cannot maintain an action to partition the land.

APPEAL by the defendants, Charles L. Mitchell and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of November, 1909, upon the decision of the court rendered after a trial at the Queens County Special Term overruling the said defendants' demurrer to the complaint.

George S. Ingraham, for the appellants.

Nelson S. Spencer, for the respondent.

THOMAS, J.:

The testator gave to his executors all his property, including real estate, to be held in trust by them, invested and reinvested, and the rents, income and profits thereof collected by his said executors and paid over by them to his wife, Rebecca Mitchell, during her life, and he directed that after her death his executors sell all his real estate and personal property remaining in their hands and divide the proceeds thereof equally among his three sons, William E. Mit

Second Department, March, 1910.

[Vol. 137.

chell, Frank F. Mitchell and Charles L. Mitchell, deducting from the share of William E. Mitchell the sum of $1,000, and he constituted the three sons executors of his will. This action is for the partition of real estate so given and is brought by Ada H. Mitchell succeeding by grant to the interest of William E. Mitchell. The power of sale has not been exercised. The Long Island Loan and Trust Company was substituted as trustee to administer the estate pending the death of Rebecca Mitchell on the 12th of April, 1909. The defendants Charles L. Mitchell, Frank F. Mitchell and the Long Island Loan and Trust Company demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. These defendants object that partition cannot be had, as there is an imperative power of sale which has not been exercised. Plaintiff contends that the devisees and the donees of the power of sale are the same, and that the devisees may elect to take the land and extinguish the power of sale. It is fatal to that contention that the devisees do not take nor own the entire interest, for $1,000 is to be deducted from the share of William E. Mitchell, hence it would be deducted from the share that plaintiff is entitled to take. Therefore, it is necessary that the power of sale be exer cised for the purpose of making the distribution to the persons entitled in the proportions and in the degree declared in the will. But in addition the power of sale cannot be extinguished by the devisees taking the land, inasmuch as two of the devisees object to the election and to the attempted reconversion.

Plaintiff is not helped by the authorities cited by her. In. Hetzel v. Barber (69 N. Y. 1) all taking interest in the land subject to the power elected to take the land and manifested their election by alienation. In the present case William has so manifested his election by conveying to the plaintiff, but the other two do not join. In Prentice v. Janssen (79 N. Y. 478), on which the plaintiff also relies, it was stated in the opinion that the "owner of the remaining one-fourth had assented to the reconversion by exercising acts of ownership," etc. Therefore, such person was precluded from objecting to the partition. In Ilenderson v. Henderson (113 N. Y. 1, 13) it was stated that one or more persons taking interest could not maintain compulsory partition proceedings pending the existence of the right in the executor to exercise his powers of partition and

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