$274.69 in 1877 to $198.23 in 1881, while it would cost $1,500 to maintain the road bed for full passenger travel. The station at Jamaica, where all trains stop, is about two miles from Locust avenue and relator can take trains there by going about a mile and a half. Besides all this, who shall say what accommodations are reasonable. Railroad companies are expected to transport passengers especially with great speed, and it is not practicable to stop all their trains at all places or to establish stations to accommodate all persons. Many persons are compelled to travel longer distances than this relator to take the cars, and it would be a great hardship to compel the railroad companies to establish and maintain stations and stop their trains to save travel for all in taking their trains. Judgment reversed, with costs. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. RAILROADS. NUISANCE. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Briesen, applt., v. The L. I. RR. Co., respt. Held, That this was not a case where the Court should interfere to compel defendant to impart further facilities at the station in question. It will be seen that defendant has not abandoned its road via Locust avenue station. While it is quite true that by the railroad laws of the State all railroads constructed under it are maintained for the public use, and the duty is imposed on them to furnish accommodation for the transportation of all persons and property on payment of fare, yet the law does not prescribe the times or manner of the performance of that obligation. On the contrary the railraoad corporations have themselves the power to regulate the times and manner in which passengers and property shall be transported. Laws 1880, Chap. 133, § 2, sub. 9. This provision of law vests these corporations with discretion respecting the mode of exercising their franchise, and as long as their operations are not suspended and their duties are not unperformed the courts should not interfere, especially on the application of a Plaintiff owns a house and lot private individual, to regulate the in Brooklyn and defendant owns exercise of their discretion. With the interior of the block in the out refusal or neglect to perform the duties of carrier the courts should not so interfere. Decided Dec., 1883. A railroad cannot be termed a nuisance when managed without negligence or wilful misconduct. So long as the operation of a railroad is kept within the scope of the powers granted to it it is protected from all legal proceedings, provided the resulting injury arises as a natural result of the exercise of the statutory authority. Appeal from judgment in favor of defendant. rear of said premises and uses the same as a drilling yard in such a way as to annoy plaintiff in the use of his property and depreciate its value. This action is brought to recover damages for the injury and to restrain defendant from operating its trains on its lot. fied when done without negligence or fault. 4 Com., 195. In no proper or strict sense can this railroad be termed a nuisance when managed without negligence or wilful misconduct. Its construction was authorized by sov lic utility and its operation is lawful because it is in pursuance of a statutory license. So long as it is kept within the scope of the powers granted to it it is protected from all legal proceedings. This remark, however, is subject to the qualification that the resulting injury arises as a natural result of the exercise of the statutory authority It is found that such use interferes with the beneficial use of plaintiff's premises and is a dis-ereign power for purposes of pubturbance and injury thereto, but it is also found that such use is confined to the ordinary operation and maintenance of a depot for passenger and freight trains and such drilling operations as are absolutely necessary to the proper transaction of such business; that such use and occupation of the premises is confined to what is necessary in the due, ordinary and skillful management of the railroad business and the proper accommodation of the public; that defendant has used and is using all due skill and care with a proper regard for the neighboring property and is using all appliances and machinery required by law, B. & O. RR. v. Fifth Baptist Ch., 27 Alb. L. J., 488, not followed. Judgment affirmed, with costs. Opinion by Dykman, J.; Bar nard, P. J., concurs. LIBEL. DAMAGES. and that it has lawful right and N. Y. SUPERIOR COURT. GENERAL authority to do all it has done. TERM. Marie Prescott, respt., v. Sinclair Tousey, as Prest., applt. Decided Jan. 7, 1884. F. B. Jennings, for applt. Hinsdale & Sprague, for respt. Held, That the action could not be maintained. Defendant is a railroad corporation invested by law with power to own and operate a railroad and to do all necessary acts and things necessary and proper to that end, and is exempt from liability for injuries necessarily resulting from such legitimate and proper use. It may be stated as a general rule of law in this state that what is done by the Evidence of social position and standing is sanction of the state under legislative authority is completely justi In an action against a company formed for the purpose of distributing newspapers, etc., for damages for the publication of a libel, plaintiff must prove that some one other than herself has read the libel in some of the papers so published, and it is not sufficient to show that defendant sold several hundred copies, presumably to dealers, there being no presumption that every newspaper, and every part thereof, is read. not admissible to increase damages in an action for libel in imputing unchastity to a woman. A charge in such a case that in arriving at the amount of damages the jury might bring the question home to themselves, and say for what sum they would, with their knowledge of the world and of mankind, and of the result of a defamation, be so libeled, is erroneous. Evidence that plaintiff's reputation for chastity is good is not admissible to rebut defendant's evidence in justification of the libel; but it may be made relevant by the introduction by defendant of evidence that plaintiff's reputation for chastity is bad. Appeal by defendant from judgment and from order denying motion for new trial. Action for libel. Defendant denied that the words complained of were libelous, and were libelous, and pleaded in mitigation of damages that it was a company formed for the purpose of distributing newspapers, etc., and that while so engaged, without knowledge of the contents of the newspaper that contained the libel, it distributed a few copies thereof. Defendant also pleaded as a defense, and in mitigation of damages, that "the plaintiff was at the time of the publication and for a long time prior thereto had been a woman of bad character as to chastity, and was an unchaste woman, etc." Plaintiff sought only to hold defendant for publishing the libel after it was printed, and for that purpose offered to show that one Bird (employed in the office of plaintiff's attorney) purchased from defendant three copies of the paper containing the libel, at the request of said attorney, and forthwith delivered them to said attorney. It nowhere appeared that he read them. The only other evidence of publication was that of the manager of defendant, to the effect that defendant distributed and sold 240 copies of the paper, presumably to dealers. There is no evidence that any one ever read or ever saw the libel in any paper that defendant distributed. The witness Kilday read the libel, but it does not appear from whom he got the paper containing it. At the close of plaintiff's case defendant moved to dismiss the complaint, on the ground that plaintiff had failed to prove a publication. The motion was denied and defendant excepted. E. H. Spooner and Wm. Fullerton, for applt. Marshall P. Stafford, for respt. Held, Error; that a libel is pub- · lished when it is communicated to some person, other than the plaintiff, who understands it, and not until then. There is no presumption of law that every newspaper and every part thereof is read. Plaintiff must show by evidence that some one read the libel in some of the papers that defendant "published." Exceptions were taken by the defendant to the admission of evidence tending to show that plaintiff's reputation for chastity was good. Held, That in an action of this kind plaintiff cannot introduce such evidence for the purpose of rebutting evidence introduced by defendant for the purpose of justifying the libel. 2 Barb., 149, aff'd 1 N. Y., 530. But this evidence was made relevant by the fact that defendant offered evi dence that tended to prove that plaintiff's reputation for chastity was bad. 4 N. Y., 493; 8 Wend., 602. ham, J., concurs as to error in charge of the Court; Sedgwick, Ch. J., dissents. WILLS. Evidence of plaintiff's social position and standing in society was received against defendant's ob- N.Y. SUPREME COURT. jection and exception, to increase the damages. Held, Error; that if defendant cannot prove plaintiff's bad reputation for the purpose of decreasing the damages, plaintiff should not be allowed to show her good reputation for the purpose of increasing them? And if she cannot show her good reputation, she should not be allowed to show her standing in society, especially since the laws of this State do not recognize different ranks in society? The Court charged the jury that, in arriving at the amount of damages to be awarded to plaintiff, a good way for them to do was to bring the question home to themselves and say for what sum would they, with their knowledge of the world and of mankind, and of the result of a defamation, be willing to be libeled as plaintiff was libeled. To this charge defendant excepted. It Held, That this was error. took from the jury the real question that they were to determine, viz., how much had the plaintiff been injured by the defendant's acts? Such a rule would be a dangerous one to adopt in the administration of the law. 46 Super. Ct., 130. Judgment reversed. GENERAL TERM. SECOND DEPT. Robert Rogers, exr., respt., v. Augustus L. Case et al., applts. Decided Dec., 1883. 66 Testator bequeated legacies out of the remainder of my estate not herein before disposed of and to which I am or shall be entitled by the will of my uncle, R., and the residue to my nephews and nieces." He left property derived from the estate of his father after the making of the will. Held, That this clause disposed of all the property of the testator. Appeal from judgment construing a will. Action to obtain a judicial construction of the will of Henry B. Rogers, deceased. The clause in question is as follows: "And finally, out of the remainder of my estate not hereinbefore mentioned and disposed of and to which I am or shall be entitled by the will of my uncle Robert Rogers, deceased, I give and bequeath $500 to the Home of the Friendless in the city of Newburgh; $5,000 to St. Luke's Hospital in the city of New York, and the residue to my nephews and nieces in manner aforesaid." Testator was unmarried; his will was executed in August, 1874, and he died in November, 1882. Most of his property was derived from the estate of his uncle, who died in 1870, and from the estate Opinion by Truax, J.; Ingra- of his father, who died in 1880. All the property testator had at the time of making his will came from the estate of his uncle. The question presented is, does the residuary clause dispose of all the residue of testator's property, or only that portion of it derived from his uncle. The court below adopted the latter construction. W. H. Harrison, for applts. G. H. Clark, for respt. Held, Error; that if that construction be adopted testator died intestate as to his other property, for it is disposed of in no other place. This construction will not be adopted unless positively forced The fact that testator made a will raises a very strong presump. tion against any intention or expectation on his part of leaving any portion of his property beyond its operation. on us. That the expression "and to which I am or shall be entitled by the will of my uncle" is not repugnant to the general residuary words before employed. These two expressions are connected to does not militate against this construction. Testator clearly designated the two portions and connected them together. It is as if he had said, "out of the remainder of my estate not hereinbefore disposed of, including that, or with that to which I shall be entitled under the will of my uncle." This will speaks as of the time of testator's death and all the property he then had may pass under it if an intention to that end be gathered from its provisions. The fact that it was after acquired property is quite immaterial. Judgment reversed and will construed so as to include all the residue of testator's property in residuary clause, costs payable from estate. Opinion by Dykman, J.; Bar nard, P. J., and Pratt, J., concur. TENANTS IN COMMON. REDEMPTION. gether by the copulative conjunc- N. Y. SUPREME COURT. GENERAL tion and full force will be allowed to both if we consider the latter clause so connected a clause of enlargement. This construction makes the residuary clause dispose of all testator's property and gives full force and effect to the language employed and to each portion of the will a just and full operation. The fact that some of his property came from his father and some from his uncle and that only that portion which came from his uncle had been realized at the time of the execution of his will TERM. THIRD DEPT. William L. Ford et al., respts., v. Charles J. Knapp et al., applts. Decided Jan., 1884. A tenant in common in possession is not entitled to compensation for his improvements from his co-tenants who have not assented to his making them. A holder of a sheriff's certificate is not au thorized to make repairs or improvements as against or at the expense of judgment creditors having a right to redeem. Appeal from judgment in par tition. disallowing defendants' claim for money expended in im |