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it upon the step, and stepped be-] yond the edge of the next step and fell. She testified that she put her foot out, thinking she was surely at the bottom, and did not feel with her foot as she had before when she was higher on the stair

way.

R. E. Deyo, for applt.

W. P. Prentice, for respt. Held, That the argument has no force, as it was a question for the jury as to whether or not plaintiff used ordinary prudence in believing that she was about to step from the last step. She felt for the next step as long as she as long as she thought she was not at the bottom. There is nothing to indicate that persons of ordinary prudence would not, under the circumstances, especially considering the number of steps she had already taken, believe that the last step had been reached. What ordinary prudence would have dictated was a question for the jury.

Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs.

Opinion by Sedgwick, Ch. J.; Ingraham, J., concurred.

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awarded much less than the value of the property taken, according to the testimony of every witness put upon the stand. Held, An arbitrary exercise of power not justified by the law.

Appeal by one of the claimants from the appraisal and report of commissioners and from the order confirming said report, in proceed. ings to take and acquire land for railroad purposes.

J. D. & F. F. Wendell, for respt.

F. Fish, for applt.

Held, We have repeatedly held that we would not interfere with an award of damages justifiable in any view of the evidence, since the commissioners by reason of their personal inspection of the premises could weigh, apply and give credit to the evidence in a mode impossible to us. But in the present case the majority of the commissioners have wholly disregarded the oral testimony and awarded much less than the value of the property taken according to the testimony of every witness put upon the stand. This was an arbitrary exercise of power, not so far as we can see justified by the law or the facts. If the property was not worth the sum stated by the witnesses for the land-owner, the railroad compa y

N. Y. SUPREME COURT. GENERAL should have shown that fact by

TERM. THIRD DEPT.

In re The N. Y., W. S. & B. RR. Co., respt., v. Sidney Yates, applt.

Decided Nov., 1883. Commissioners appointed to award damages for the taking of land for railroad purposes

evidence. It has not done so. Under such facts the company must be held to concede the lowest valuation placed upon the property, with the power, in the judgment of the commissioners, to add to such lowest sum if a personal inspection shall seem to

them to render it proper. For this reason a new appraisal must be made.

Award and order of confirmation set aside, with costs, and proceedings sent back for the appointment of new commissioners Opinion by Boardman, J.; Learned, P. J., concurs; Bockes, J., not voting.

NEGLIGENCE.

burned, and the plaintiff thereby suffered, and still suffers, &c."

The complaint contained no demand of damages to property, and on the trial counsel for plaintiff, in opening the case, stated that the claim was founded upon the injury to plaintiff's hand. The complaint was thereupon dismissed, on the ground that the damage was too remote, and plaintiff's ex ception to this ruling was directed to be heard in first instance at

N. Y. SUPERIOR COURT. GENERAL General Term.

TERM.

Dennis Hinchey, applt., v. The Manhattan Railway Co., respt.

Decided Dec. 3, 1883.

The complaint alleged that defendant negli

gently allowed sparks of fire to escape from one of its locomotives, which sparks entered plaintiff's house, setting fire to his curtains, furniture, &c., and that in his efforts to extinguish the fire plaintiff's hand was

Smith, Allan & Smith, for plff. Deyo, Duer & Bauerdorf, for deft.

Held, That the complaint was properly dismissed. The rule that the allegations of a pleading are to be taken as stating the most favorable possible case for the pleader should be applied. There is no allegation that at the time plaintiff made the effort to extinguish the fire it was spreading to other property, or that there was an appearance of the fire endangering

burnt, without any negligence on his part, &c. In an action for the personal injury, Held, That upon the complaint, as framed, there could be no recovery, the damage being too remote. Exceptions ordered to be heard life or other property; or that the at General Term.

The complaint alleged that while a train of cars and a locomotive belonging to defendant were passing, the defendant carelessly and negligently allowed sparks of fire to escape from its said locomotive, which sparks entered the dwelling house occupied by the plaintiff, thereby setting fire to the curtains, furniture and property of the plaintiff; that in his efforts to extinguish said fire the plaintiff's left hand, without any neg ligence on his part, was severely

Vol. 18.-No. 12a.

effort was made for the purpose of preventing the fire imperiling life or other property or causing further damages.

From the pleading it is to be inferred that the facts would not justify such an allegation, and in such a case the party guilty of the negligence is not deemed to be responsible, because it is deemed the negligent act was not the proximate cause of the effort to extinguish.

The allegation that the effort to extinguish was without negligence

on plaintiff's part does not in- | posed. Schools may also be estabcrease the scope of the pleading. lished and maintained by the cor poration.

Plaintiff's exceptions overruled, defendant to enter judgment, with costs.

Opinion per curiam.

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Where real property, belonging to a benevolent corporation, is all lawfully devoted to the care, custody, education and maintenance of destitute mothers and children, it is exempt by law from taxation, and an equitable action will lie to set aside a tax imposed thereon.

In pursuance of its charter plaintiff has become the owner in fee of about fifty acres of land in the town of Eastchester, Westchester County, on which are buildings and structures suitable for its purposes, and all the property is devoted to the benevolent and reformatory objects of the institution.

The assessors of the town of Eastchester have assessed the property for the year 1882 on a valuation of $25,000, and the Board of Supervisors of the county of Westchester levied a tax thereon and delivered a warrant for its collection to the Receiver of Taxes of the town.

A preliminary injunction was Appeal from order vacating a obtained, which was vacated on temporary injunction.

Action to restrain the collection of an alleged illegal tax.

Plaintiff is a charitable corporation organized under a special act passed in 1865 and subsequently amended. Chap. 106, Laws of 1865; Chap. 263, Laws of 1872; and Chap. 90, Laws of 1877. The object of the corporation is to take charge of foundlings and other infants, and provide for their support and moral, physical, intellectual and industrial education; also to provide such lying-in-wards and methods of care and guidance as shall tend to prevent the maternal abandonment of homeless infants and diminish the moral dangers and personal sufferings to which homeless mothers are ex

motion.

Clark Bell, for applt.

Geo. W. Hunt, for respts.

Held, Error. The statement made shows that all the property of plaintiff included in the assessment is lawfully devoted to the care, custody, education and maintenance of destitute mothers and children, and which are the same general purposes for which poorhouses and alms-houses are instituted, and they are exempt by law from taxation. 1 R. S., 388, § 4. The incorporation and organization of this asylum was for the same object intended to be fostered by this exemption of almshouses and poor-houses, and the same immunity should be secured to it as to them. 11 Hun, 116.

If, therefore, this property of plaintiff was exempt from taxation, it was beyond the jurisdiction of the assessing officers, and the action of the defendants in making the assessment and levying the tax is void and null. The result

is that the tax is illegal. 77 N. Y., 342.

If, therefore, the tax in question be illegal, there is power and authority in the courts to protect plaintiff against its enforcement. 53 N. Y., 49.

If the position of plaintiff be finally sustained, then these defendants have no tax and no claim against the property. Then their action is a nullity, and their attempt to charge the property is a wrong and an oppression entirely without authority or justification, and a plain case is presented for the interposition of a court of equity.

The preliminary injunction should be continued pending the litigation.

Order reversed, with costs and disbursements, and motion denied, with ten dollars costs.

Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur.

CHARTER PARTY.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Charles T. Russell et al., respts.. v. Sam'l W. Allerton, applt.

Decided Dec. 21, 1883.

In an action on a charter party to recover damages for a breach of a contract of freight, when it appears that, according to

the terms of the charter party, the "charterers were to approve the ventilation of the ship," and that they did not so approve, but demanded that increased facilities for ventilation be provided, and, on the refusal of the captain to make such provision, refused to furnish the freight, it is error to submit to the jury the question whether, upon the evidence, the demand for increased ventilation was a reasonable one, with instructions that if it was unreasonable the refusal to comply with it would be no justification of the refusal to furnish the freight.

The defendant, having secured the right by

the charter party to approve of the ventilation of the ship, was entitled to all the benefit and advantage of that element of the contract. He was made the sole arbiter on that subject, and when such a provision is inserted in a contract the party against whom it operates must take the consequences.

Appeal from judgment in favor of plaintiffs entered on verdict, and from order denying motion for a new trial.

In 1878 plaintiffs, as sub owners of a steamship, entered into a charter party with defendant whereby it was agreed that such steamer should proceed to Philadelphia and run regularly for a certain time with cargoes of live cattle furnished by defendant. The charter party also contained the following provision, "charterers to approve the ventilation." On the arrival of the steamer at Philadelphia defendant, after inspection of her ventilation, refused to approve of it, and demanded that blowers be put on the ship. The captain refused to provide such blowers, and thereupon defendant refused to load the ship, and this action was brought to recover damages for a breach of contract of freight. On the trial, evidence having been

received as to the condition of the vessel and the means of ventilation she had at the time, the court, in charging the jury, said: "You will determine from the evidence whether the demand of the charterers for blowers was a reasonable or unreasonable one. If it was an unreasonable demand, the fact that there were no blowers upon the ship, or that they were withheld by plaintiffs, would be no justification of a refusal to put the cattle on her."

Ira D. Warren, for applt. Joseph H. Choate, for respts. Held, Error; that defendant, having secured the right by the charter party to approve of the ventilation of the ship, was entitled to all the benefit and advantage of that element of the contract; that he was made the sole arbiter of that subject, and, if such a provision is inserted in a contract, the party against whom it operates must take the consequences. 7 Gray, 139; 113 Mass., 136; 11 Abb., N. S., 378; 24 Wend., 447; 21 Hun, 117; 26 N. Y., 26, 33; 20 N. Y., 463, 464; 63 N. Y., 336; 4 Hun, 652.

Judgment reversed and new trial ordered.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

PRACTICE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Stephen Tunstall, respt., v. Walter H. Winton, applt.

Decided Dec. 21, 1883.

When, upon the call of a case for trial, defendant objects to its proceeding upon the ground that all proceedings upon the part of plaintiff are stayed, and the trial judge decides that no stay exists and orders the trial to proceed, the remedy of defendant is either by a motion for a new trial, under

1002 of the Code of Civ. Pro., before the same judge who presided at the trial, or by an appeal from the decision whereby plaintiff was allowed to proceed, and he cannot move, at a Special Term held by another judge, to vacate and set aside the verdict on the ground that it is null and void on account of the existence of such stay.

Appeal from order denying defendant's motion to vacate and set aside, as null and void, a verdict. rendered in the action.

Upon the call of this case for trial it was claimed by defendant's counsel that all proceedings on the part of plaintiff were stayed by reason of the non-payment of certain interlocutory costs awarded against him and by operation of an order of the Court of Appeals. The trial judge decided that there was no stay, and ordered the trial to proceed. The trial resulted in a verdict for plaintiff, and defendant's counsel subsequently moved, at a Special Term held by another judge. to vacate and set aside the verdict as null and void for the reason that plaintiff's proceedings had been stayed previous to the time of the trial. This motion was denied, and defendant appealed. B. F. Sawyer, for applt. E. P. Wilder, for respt.

Held, That the motion to set aside the verdict was substantially an application for a new trial, and was embraced within § 1002 of the Code of Civ. Pro., and defendant's remedy, therefore, was either by a

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