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it upon the step, and stepped be- awarded much less than the value of the yond the edge of the next step and property taken, according to the testimony fell. She testified that she put her

of every witness put upon the stand. Held,

An arbitrary exercise of power not justified foot out, thinking she was surely

by the law. at the bottom, and did not feel with her foot as she had before Appeal by one of the claimants when she was higher on the stair- from the appraisal and report of way.

commissioners and from the order R. E. Deyo, for applt.

confirming said report, in proceed. W. P. Prentice, for respt. ings to take and acquire land for

Held, That the argument has no railroad purposes. force, as it was a question for the J. D. & F. F. Wendell, for jury as to whether or not plaintiff respt. used ordinary prudence in believ. F. Fish, for applt. ing that she was about to step Held, We have repeatedly held from the last step. She felt for that we would not interfere with the next step as long as she an award of damages justifiable thought she was not at the bottom. in any view of the evidence, since There is nothing to indicate that the commissioners by reason of persons of ordinary

ordinary prudence their personal inspection of the would not, under the circumstan- premises could weigh, apply and ces, especially considering the give credit to the evidence in a number of steps she had already mode impossible to us. But in taken, believe that the last step the present case the majority of had been reached. What ordinary the commissioners have wholly prudence would have dictated was disregarded the oral testimony a question for the jury.

and awarded much less than the Judgment affirmed, with costs, value of the property taken acand order appealed from affirmed, cording to the testimony of every with $10 costs.

witness put upon the stand. This Opinion by Sedgwick, Ch. J. ; was an arbitrary exercise of power, Ingraham, J., concurred.

not so far as we can see justified by the law or the facts.

If the

property was not worth the sum EMINENT DOMAIN. DAM.

stated by the witnesses for the AGES.

land-owner, the railroad compa y N. Y. SUPREME COURT. GENERAL should have shown that fact by TERM. THIRD DEPT.

evidence. It has not done so.

Under such facts the company In re The N. Y., W. S. & B.

must be held to concede the lowest RR. Co., respt., v. Sidney Yates,

valuation placed upon the propapplt.

erty, with the power, in the Decided Nov., 1883.

judgment of the commissioners, to Commissioners appointed to award damages

add to such lowest sum if a perfor the taking of land for railroad purposes sonal inspection shall seen to

them to render it proper.

For | burned, and the plaintiff thereby this reason a new appraisal must suffered, and still suffers, &c.” be made.

The complaint contained no deAward and order of confirma- mand of damages to property, and tion set aside, with costs, and pro- on the trial counsel for plaintiff, ceedings sent back for the ap- in opening the case, stated that pointment of new commissioners the claim was founded upon the

Opinion by Boardman, J.; injury to plaintiff's hand. The Learned, P. J., concurs ; Bockes. complaint was thereupon dismissJ., not voting.

ed, on the ground that the damage was too remote, and plaintiff's ex

ception to this ruling was directed NEGLIGENCE.

to be heard in first instance at N. Y. SUPERIOR COURT. GENERAL General Term. TERM

Smith, Allan & Smith, for plff. Dennis Hinchey, applt., v. The Deyo, Duer & Bauerdorf, for Manhattan Railway Co., respt. deft. Decided Dec. 3, 1883.

Held, That the complaint was The complaint alleged that defendant negli properly dismissed. The rule that The complaint alleged that defendant negli the allegations of a pleading are to gently allowed sparks of fire to escape from one of its locomotives, which sparks enter- be taken as stating the most favored plaintiff's house, setting fire to his cur- able possible case for the pleader tains, furniture, &c., and that in his efforts should be applied. There is no to extinguish the fire plaintiff's hand was burnt, without any negligence on his part, allegation that at the time plain&c. In an action for the personal injury,

tiff made the effort to extinguish Held, That upon the complaint, as framed, the fire it was spreading to other there could be no recovery, the damage property, or that there was an apbeing too remote.

pearance of the fire endangering Exceptions ordered to be heard life or other property; or that the at General Term.

effort was made for the purpose The complaint alleged that while of preventing the tire imperiling a train of cars and a locomotive life or other property or causing belonging to defendant were pass- further damages. ing, the defendant carelessly From the pleading it is to be inand negligently allowed sparks of ferred that the facts would not fire to escape from its said locomo- justify such an allegation, and in tive, which sparks entered the such a case the party guilty of the dwelling house occupied by the negligence is not deemed to be replaintiff, thereby setting fire to the sponsible, because it is deemed curtains, furniture and property the negligent act was not the proxof the plaintiff ; that in his efforts imate cause of the effort to extinto extinguish said fire the plain- guish. tiff's left hand, without any neg.

The allegation that the effort to ligence on his part, was severely extinguish was without negligence

Vol. 18.-No. 12a.

on plaintiff's part does not in posed. Schools may also he estab. crease the scope of the pleading. lished and maintained by the cor:

Plaintiff's exceptions overruled, poration. defendant to enter judgment, with In pursuance of its charter plaincosts.

tiff has become the owner in fee of Opinion per curiam.

about fifty acres of land in the town of Eastchester, Westchester

County, on which are buildings TAXATION. EXEMPTION.

and structures suitable for its N. Y. SUPREME COURT. GENERAL purposes, and all the property is TERM. SECOND DEPT.

devoted to the benevolent and re

formatory objects of the instituThe N.Y. Infant Asylum,appll., tion. v. The Board of Supervisors of

The assessors of the town of Westchester Co. et al., respts.

Eastchester have assessed the Decided Dec., 1883.

property for the year 1882 on a

valuation of $25,000, and the Board Where real property, belonging to a benevo

of Supervisors of the county of lent corporation, is all lawfully devoted to

Westchester levied a tax thereon the care, custody, education and maintenance of destitute mothers and children, it and delivered a warrant for its is exempt by law from taxation, and an collection to the Receiver of Taxes equitable action will lie to set aside a tax

of the town. imposed thereon.

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

motion. Action to restrain the collection Clark Bell, for applt. of an alleged illegal tax.

Geo. W. Hunt, for respts. Plaintiff is a charitable corpora- Held, Error. The statement tion organized under a special act made shows that all the property of passed in 1865 and subsequently plaintiff included in the assessment amended. Chap. 106, Laws of is lawfully devoted to the care, 1865; Chap. 263, Laws of 1872 ; custody, education and mainteand Chap. 90, Laws of 1877. The nance of destitute mothers and object of the corporation is to take children, and which are the same charge of foundlings and other general purposes for which poorinfants, and provide for their sup- houses and alms-houses are insti. port and moral, physical, intel- tuted, and they are exempt by law lectual and industrial education ; from taxation. 1 R. S., 388, $ 4. also to provide such lying-in-wards The incorporation and organizaand methods of care and guidance tion of this asylum was for the as shall tend to prevent the ma- same object intended to be fosternal abandonment of homeless tered by this exemption of almsinfants and diminish the moral houses and poor-houses, and the dangers and personal sufferings to same immunity should be secured which homeless nothers are ex. I to it as to them. 11 Hun, 116.

If, therefore, this property of the terms of the charter party, the charplaintiff was exempt from taxa

terers were to approve the ventilation of

the ship," and that they did not so approve, tion, it was beyond the jurisdiction

but demanded that increased facilities for of the assessing officers, and the ventilation be provided, and, on the refusal action of the defendants in making

of the captain to make such provision,

refused to furnish the freight, it is error to the assessment and levying the

submit to the jury the question whether, tax is void and null. The result

upon the evidence, the demand for inis that the tax is illegal. 77 N.Y., creased ventilation was a reasonable one, 342.

with instructions that if it was unreasonIf, therefore, the tax in question

able the refusal to comply with it would be

no justification of the refusal to furnish be illegal, there is power and all

the freight. thority in the courts to protect | The defendant, having secured the right by plaintiff against its enforcement. the charter party to approve of the ventila53 N. Y., 49.

tion of the ship, was entitled to all the benefit

and advantage of that element of the conIf the position of plaintiff be

tract. He was made the sole arbiter on finally sustained, then these de

that subject, and when such a provision is fendants have no tax and no claim inserted in a contract the party against against the property. Then their

whom it operates must take the conse

quences. action is a nullity, and their attempt to charge the property is a Appeal from judgment in favor wrong and an oppression entirely of plaintiffs entered on verdict, without authority or justification, and from order denying motion and a plain case is presented for for a new trial. the interposition of a court of In 1878 plaintiffs, as sub owners equity.

of a steamship, entered into a The

preliminary injunction charter party with defendant should be continued pending the whereby it was agreed that such litigation.

steamer should proceed to PhilaOrder reversed, with costs and delphia and run regularly for a disbursements, and motion denied, certain time with cargoes of live with ten dollars costs.

cattle furnished by defendant. The Opinion by Dykman, J.; Bar- charter party also contained the nard, P. J., and Pratt, J., concur. following provision, "charterers to

approve the ventilation.” On the

arrival of the steamer at PhiladelCHARTER PARTY.

phia defendant, after inspection of N. Y. SUPREME COURT. GENERAL her ventilation, refused to approve TERM. FIRST DEPT.

of it, and demanded that blowers be put on the ship.

The captain Charles T. Russell et al., respts.. refused to provide such blowers, v. Sam’l W. Allerton, applt.

and thereupon defendant refused Decided Dec. 21, 1883.

to load the ship, and this action was

brought to recover damages for a lo an action on a charter party to recover

breach of contract of freight. On damages for a breach of a contract of freiglit, when it appears that, according to

the trial, evidence having been

received as to the condition of the When, upon the call of a case for trial, devessel and the means of ventila

fendant objects to its proceeding upon the tion she had at the time, the court,

ground that all proceedings upon the part

of plaintiff are stayed, and the trial judge in charging the jury, said: “You

decides that no stay exists and orders the will determine from the evidence trial to proceed, the remedy of defendant is whether the demand of the char- either by a motion for a new trial, under terers for blowers was a reason

$ 1002 of the Code of Civ. Pro., before the

same judge who presided at the trial, or by able or unreasonable one. If it

an appeal from the decision whereby plainwas an unreasonable demand, the tiff was allowed to proceed, and he cannot fact that there were no blowers move, at a Special Term held by another upon the ship, or that they were

judge, to vacate and set aside the verdict

on the ground that it is null and void on withheld by plaintiffs, would be

account of the existence of such stay. no justification of a refusal to put the cattle on her."

Appeal from order denying deIra D. Warren, for applt. fendant's motion to vacate and set Joseph H. Choate, for respts. aside, as null and void, a verdict

Held, Error; that defendant, rendered in the action. having secured the right by the Upon the call of this case for charter party to approve of the trial it was claimed by defendant's ventilation of the ship, was en- counsel that all proceedings on titled to all the benefit and advan- the part of plaintiff were stayed tage of that element of the con by reason of the non-payment of tract; that he was made the sole certain interlocutory costs awarded arbiter of that subject, and, if such against him and by operation of a provision is inserted in a con- an order of the Court of Appeals. tract, the party against whom it The trial judge decided that there operates must take the conse- was no stay, and ordered the trial quences. 7 Gray, 139 ; 113 Mass., to proceed. The trial resulted in 136 ; 11 Abb., N. S., 378; 24 a verdict for plaintiff, and defend Wend., 447; 21 Hun, 117; 26 ant's counsel subsequently moved, N. Y., 26, 33 ; 20 N. Y., 463, 464 ; at a Special Term held by another 63 N. Y., 336 ; 4 Hun, 652.

judge, to vacate and set aside the Judgment reversed and new verdict as null and void for the trial ordered.

reason that plaintiff's proceedings Opinion bv Brady, J.; Davis, had been stayed previous to the P. J., and Daniels, J., concur.

time of the trial. This motion was
denied, and defendant appealed.

B. F. Sawyer, for applt.
PRACTICE.

E. P. Wilder, for respt.
N. Y. SUPREME COURT. GENERAL Held, That the motion to set
TERM. FIRST DEPT.

aside the verdict was substantially

an application for a new trial, and Stephen Tunstall, respt., v. Wal

was einbraced within $ 1002 of the ter H. Winton, applt.

Code of Civ. Pro., and defendant's Decided Dec. 21, 1883.

remedy, therefore, was either by a

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