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the money, and the plaintiff could challenge its jurisdiction at any time. The plaintiff, as administratrix, rendered her account in the surrogate's court. Schedule A contains the "amount received by administratrix from bank, including interest after grant of letters, April 19, 1895, $1,535," which is stated to be "the property of the estate.' Schedule C contains a statement showing various payments for personal and other expenses. Schedule E reads: "The heirs at law of decedent having made and signified their love and affection for administratrix in giving her their entire estate as a gift, I have applied the same for the purposes mentioned in Schedule C." In Schedule G the administratrix states that her former attorney told her that her brothers and sisters had "all signed off to me, and that the whole money was mine, and that I could do with it as I pleased"; and that, "the rights of my brothers and sisters having become vested in me by their having given me the same as appears herein, and now, after the lapse of three years, for some unknown reason to me, want to repudiate their gift to me, never having from the time of doing so up to the time of asking for this accounting pretended or claimed any interest, but, on the contrary, they always asserting that the estate belonged to me." She then states that she made a claim of $So for nursing the deceased, and that she does "submit to the court the disposition of all matters mentioned in this accounting," and closes with the statement: "Administratrix was a school teacher for a long time, and placed all her earnings in the hands of decedent for safe-keeping, and these earnings constitute the estate. herein, all of which belongs to administratrix." The next of kin filed objections, which, inter alia, denied the allegations contained in. Schedule D, evidently meaning G, inasmuch as they are described in specified terms. Thereupon the learned surrogate ordered that the account be sent to a referee to examine the same, and to determine all questions arising upon the settlement which the surrogate has power to determine. The referee heard all parties, and reported that, after due consideration of the proof on both sides, and after disallowing certain items of the account, the said money in the bank was the property of the deceased, and that no gift thereof to the administratrix was made by the contestants, but that such money was the estate of the deceased, and should be so administered. The administratrix excepted, but the report was confirmed.

I think that the error of the learned special term consisted in wholly disregarding the force of the proceeding in the surrogate's court. It appears that the plaintiff, as administratrix, collected this money, returned it as the estate of the testatrix, and then sought to establish a claim against it as her personal property; and, second, that her father, brothers, and sisters made gift of their interest therein to her, and she necessarily sought a decree of the surrogate on the. accounting accordingly. She did not appear in the surrogate's court as a claimant to equitable relief, but as administratrix, claiming the right to retain as her own the money she had collected and returned as an asset of her mother's estate. The same question was presented in Boughton v. Flint, 74 N. Y. 476, where the court said:

and 106 New York State Reporter

"On this question of jurisdiction the appellant makes the further point that the claim of the executrix for $800, held on deposit for her by the testator, was one cognizable only in equity, and that, conceding that a surrogate has jurisdiction to decide upon disputed claims of an executrix, such jurisdiction extends only to such claims as are enforceable in courts of law, and not to such as require the interposition of a court of equity, a surrogate having none of the powers of a court of chancery. If the claim of the executrix were to equitable relief of any kind, there would be force in this objection; but where she claims only the right to retain out of the assets of the estate a sum of money as belonging or due to her, it can make little difference whether her right to it depends upon legal or equitable principles."

Express power is conferred upon the surrogate to determine upon the judicial settlement of the account of an executor or administrator, a contest between the accounting party and any of the other parties respecting property alleged to belong to the estate, but to which the accounting party lays claim either individually or as the representative of the estate. Code, Civ. Proc. § 2739. This section. substantially embodies the rule under the Revised Statutes. 2 Rev. St. p. 88, § 33; Id. p. 95, § 71; Id. p. 220, § 1, subds. 3-6. Under the general powers granted to the surrogate in these sections to direct and control the conduct and settle the account of executors and administrators, to decree distribution, and to settle and determine all questions concerning any claim or distributive share, it was held in many cases that a surrogate hear and determine all claims against the estate in which the executor or administrator is interested, whether legal or equitable, and that the statute made it his duty to settle and determine all questions concerning any claim or distributive share. Hyland v. Baxter, 98 N. Y. 610; Riggs v. Cragg, 89 N. Y. 479, 489; Shakespeare v. Markham, 72 N. Y. 400; Kyle v. Kyle, 67 N. Y. 400; Jumel v. Jumel, 7 Paige, 591. In the case first cited the court said:

"The fact that the question is an equitable one, and depends upon equitable principles, is not a ground of objection to the jurisdiction. The surrogate's court is a court of limited powers and jurisdiction, but it has jurisdiction to determine questions, either legal or equitable, arising in the course of proceedings in the execution of powers expressly conferred, and which must be decided therein."

The surrogate's court is the proper tribunal to pass upon and try the validity of the respondent's claim. It first obtained jurisdiction of all the parties interested in this particular estate, and, although the supreme court has concurrent jurisdiction in the premises (Sanders v. Soutter, 126 N. Y. 193, 27 N. E. 263), the pending of the proceeding for an accounting before the surrogate is a valid objection, and must be held to be a bar to this action.

The judgment should be reversed, with costs. All concur.

(64 App. Div. 360.)

BUCKBEE v. THIRD AVE. R. CO.

(Supreme Court, Appellate Division, Second Department. October 4, 1901.) 1. CARRIERS-STREET CAR COMPANY-PASSENGER-CAUSE OF INJURY-EVIDENCE -QUESTION FOR JURY.

Plaintiff, a passenger on a street car, claimed to have been injured by an electric shock from the door sill while escaping from the car, the electric machinery of which was deranged. She was previously in perfect health, and had no previous disease which would account for her subsequent symptoms. The appearance of flames under the car was preceded by a loud report. The flames extended backward beneath the car for its entire length. Plaintiff testified to sensations indicating a shock of electricity. Experts testified that an electric shock would have caused plaintiff's injuries, and one physician testified that, while a blow on the back might also have caused them, he found on examination no evidence of such blow, and that under the circumstances he could not tell how plaintiff's condition arose unless it came from an electric shock. Held, that the evidence was sufficient to go to the jury on the question as to whether plaintiff's injury arose from a shock of electricity. 2 SAME-ELECTRIC SHOCK-PERSONAL ASSAULT-MENTAL CONSEQUENCES-LIABILITY.

An electric shock received by a passenger on a trolley car is a direct physical and personal assault, for the mental consequences of which the company, if negligent, may be held liable.

& SAME-NEGLIGENCE-EVIDENCE-QUESTION FOR JURY.

In an action by a passenger against a street car company for injury from an electric shock, it appeared that flames broke from the controller box and extended beneath the car for its entire length, being preceded by a loud report. Plaintiff, in escaping from the car, stepped on the door sill and received a shock. It was proved that the phenomenon could not have existed if the electrical appliances of the car were in proper shape. After the accident the car was used the same day on four other trips without further harm. There was no evidence of any subsequent inspection, and no direct evidence that the car was out of order. Held, that defendant's negligence was a question for the jury. 4. SAME-SPECIAL DamageS-ALLEGATION-AMENDMENT at Trial.

In a complaint against a street car company for injuries, plaintiff, a married woman, alleged that she could not in future properly attend to her household and other duties "and business." On the trial, the court permitted an amendment by adding, after the word "business," "of dressmaking, and the loss of income therefrom by reason," etc. Held, that the amendment was proper; the original allegation being sufficient to apprise defendant of a claim for special damages by reason of incapacity to attend to business.

SAME-MARRIED WOMAN-SOLE TRADER-ABSENCE OF ALLEGATION-PRESENTATION IN LOWER COURT.

Where, in an action by a married woman for personal injuries, an element of damages claimed was incapacity for carrying on plaintiff's business, the absence of an allegation that she was carrying on business on her own account cannot be taken advantage of on appeal; plaintiff having been allowed to prove her occupation without objection in the court below, and no instruction having been asked excluding a loss of earnings from her recovery.

Appeal from trial term, Westchester county.

Action for injuries by Mary A. Buckbee against the Third Avenue Railroad Company. From a judgment in favor of plaintiff, and an order denying a motion for a new trial on the minutes, the defendant appeals. Affirmed.

and 106 New York State Reporter

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Eugene Treadwell (Henry L. Scheuerman, on the brief), for appellant.

S. S. Whitehouse, for respondent.

HIRSCHBERG, J. The plaintiff's judgment was recovered for damages alleged to have been sustained while she was a passenger on defendant's road. She was on a south-bound car on Third avenue, and as it approached 121st street she became alarmed at the sight of flames shooting from the controller box, and left the car. In stepping on or over the metal door sill at the rear of the car, she claims to have received an electric shock, resulting in the condition of injury of which she complains. The learned counsel for the appellant earnestly insist that there is no evidence in the case that she received an electric shock. There is evidence from which the jury might legitimately draw that inference. She was in perfect health and vigor at the time. She had no previous accident, and no previous disease occasioning any of the symptoms which appeared immediately after the occurrence, and which have since continued. The car was operated by electricity communicated from underground, and one witness testified that the flames extended beneath the car its entire length. The appearance of the flames was preceded by a loud report or explosion. Another witness testified that the flames started in front, and went underneath the car, burning a long while. The plaintiff testified that, as she was stepping through the doorway, she felt a "shock" in her feet, and, to quote her words, “a numbness and a stinging sensation in my feet, as I was about to go out of the door of the car. I felt that sensation in the soles of my feet. It extended up my legs up above the knee. It was a stinging prickly sensation in the feet, and numbness in the limbs; and I experienced severe pain in the back, the lower region of the spine." A physician who examined her within two hours of the occurrence testified in detail to her condition at the time, and further testified that an electric shock received under the circumstances narrated by the plaintiff was adequate to cause it. On cross-examination, he testified that, while a blow or any injury in the lumbar region might also be an adequate cause, he found no marks or evidence of such a blow or injury, and that in his opinion, "if the lady received no electric shock whatever, she probably would not have been in the condition that she is." On redirect examination he stated that, assuming the plaintiff to have been strong and healthy on the day of the accident, having received no previous injury, and having then experienced the sensations described, he could not tell how the condition in which he found her was occasioned, unless it came from the electric current. Two other physicians who examined the plaintiff gave evidence of the existence of permanent injury, which they said an electric shock, received at the time, under the circumstances, and accompanied by the sensations described by her, would be sufficient to produce. There was no medical or other expert evidence to the con

trary. This was abundantly sufficient to establish a prima facie case of injury resulting from electric shock. The plaintiff's statement that she experienced a shock, accompanied by the sensations which she described, is certainly some evidence that it was an electric shock, especially in view of the fact that at the time there were palpable manifestations that in some manner the electrical equipment of the car had become deranged, and the electrical current was obviously escaping. The symptoms immediately developed in the plaintiff, and the resultant permanent physical impairment being of such a character as an electrical shock would or could create, and being ascribable under the circumstances to no other known agency, furnish additional proof to the same effect. Whether the resulting condition. would of itself be sufficient proof of the suspected cause is not the question. It has often been held that an ascertained condition of suffering or disease may be ascribed to a known previous injury on proof that the latter was sufficient to produce the former; and the logic of such decisions would probably warrant the conclusion that the existence of the condition might well be regarded as some proof of the necessary prior injury, especially where the circumstances of the case exclude every other origin. As was said by the court in Matteson v. Railroad Co., 35 N. Y. 487, 490, 91 Am. Dec. 67:

"Assuming that the witnesses were truthful, and that their testimony established the fact that Mrs. Matteson was suffering from an affection of the spinal column which tended to paralysis, it was impossible to prove, by direct evidence and with absolute certainty, from what cause the affection proceeded. Something was necessarily left to inference,-not a merely speculative, but a rational, inference, based upon all the circumstances of the case. The testimony, including that of the physicians, authorized the jury to find that, previous to the accident, Mrs. Matteson was free from a disease of the spine tending to paralysis; that immediately thereafter a disease of that nature began to be exhibited, and was subsequently manifested in increased force until the time of the trial; that on the occasion of the accident she received a jar or blow that was sufficient to produce such disease; and that no other cause was shown to which it could be reasonably ascribed. If the jury were satisfied of the truth of these positions, they were fully authorized, if not required, to find that the plaintiff's hypothesis respecting the nature and effects of the injury produced by the accident was correct."

See, also, Turner v. City of Newburgh, 109 N. Y. 301, 308, 16 N. E. 344, 4 Am. Rep. 453, Štouter v. Railway Co., 127 N. Y. 661, 665, 27 N. E. 805; Keane v. Village of Waterford, 130 N. Y. 188, 29 N. E. 130; Quinn v. O'Keefe, 9 App. Div. 68, 41 N. Y. Supp. 116. What has been said disposes of most of the objections raised in opposition to the hypothetical questions permitted by the court to be asked the medical witnesses. Other objections have been examined, and found not well taken, or not applicable to any inaccuracy which may have been exhibited in the framing of the questions. It also serves to distinguish the case from Mitchell v. Railway Co., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604, wherein it was held that there can be no mental shock unconnected with a direct physical attack. Assuming that the doctrine of that case is applicable to a common carrier engaged in the actual transportation of a passenger for hire, the shock occasioned by contact with an

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