PLEADING. TENANTS IN COMMON. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Joseph D. Muldowney, respt., v. The Morris & Essex RR. Co., applt. Decided Dec., 1886. Where the complaint states the facts and an answer has been interposed plaintiff may take any judgment consistent with the case made by the complaint and embraced within the issue; he cannot be turned out of court because he has prayed for too much or too little, or for wrong relief. Plaintiff was tenant by curtesy of half of certain premises which were sold by the other owners, without his consent, to defendant's grantor. Defendant covered them with its station buildings and refused to pay plaintiff his share of the rental value. Held, That an action could be maintained for such share of the rental value, defendant having excluded plaintiff and by use and enjoyment received the entire rent. Appeal from judgment of Special Term in favor of plaintiff. Action to determine the respective rights of the parties to certain premises in Madison, N. J., to determine plaintiff's just proportion of the rents, issues and profits thereof, an accounting and judgment for his proportion thereof. The answer denies, on information and belief, that plaintiff has any rights in the premises. One D. died in 1857 intestate, owning the premises in question, and leaving a widow and two children, a son and daughter. Under the law of New Jersey the land descended to the son and daughter as tenants in common, subject to Vol. 25-No. 11b. The the dower of the widow. daughter afterward married plaintiff and had a child, which died, and she also died in 1876 intestate. In 1878 the widow and son conveyed the premises without the knowledge or consent of plaintiff, and in 1879 defendant received a conveyance and remained in quiet possession until 1884. It covered the land with its station and buildings. In 1884, plaintiff discovered that he had an estate in the premises as tenant by curtesy, and demanded that defendant pay him the rental value of his interest from the date of the conveyance in 1879, which was refused. The court below found title in plaintiff as alleged and that the land is in the exclusive possession of defendant; that defendant has at all times and does refuse to allow plaintiff to use and enjoy his interest in the premises, to let him into possession or to pay him any sum for use and occupation; that defendant occupies the whole in such manner that plaintiff can have no beneficial use; that no one, as it is now situated, can use it except for railroad purposes; that no part can be set off and no joint occupation had, and that defendant has received the total rental value since 1879, and more than its share. Defendant claims that the form of action is improper, and that it cannot be required to respond in rent or for an accounting under the facts stated. Hamilton Odell, for applt. Held, Untenable. It is plain that if plaintiff can have no relief in this action he is without remedy, for he has stated all the facts constituting his cause of action, and answer has been interposed and the issues tried. To so state his facts was all the law required of him, and an answer having been filed and case tried, it was competent for the court to permit plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. Under the present system of Code pleading plaintiff must state the facts and pray for such relief as he supposes himself entitled to, but he is not to be turned out of court because he prays for too much or too little or wrong relief. tiff prayed for enough, but if he prayed for too much it is of no consequence. In this case plain- It must be conceded that the court had jurisdiction of the parties and the subject matter involved. The answer admits by not denying that defendant has never allowed and will not allow plaintiff to occupy any part of said premises, and has never paid him any rent for the use of said premises. Whatever may be the technical relation of the parties, plaintiff has made out a case entitling him to relief. It is not fatal to his claim that no precise authority can be found in this State authorizing such a judgment. Plaintiff is properly before the court, its jurisdiction is not questioned, and no technical rule of practice for bids its doing justice between the parties. It is a clear wrong to deprive plaintiff of the enjoyment of his property without compensation, and to defy the power of the court to give plaintiff relief is to challenge its power to do justice. But we think this case can be relieved of all embarrassment by holding that plaintiff and defendant are tenants in common, and that the action can be maintained under § 1666 of the Code. They (tenants in common) are accountable to each other for the profits of the estate, and if one turns another out of possession an action of ejectment will lie against him. They may also have reciprocal actions for waste against each other. 2 Black. Com., 191. The action of account now lies when one tenant has received more than his just proportion" of the rents. Code, § 1666. 66 to that of McCabe v. McCabe, 18 Hun, 153. That was an action of partition between tenants in common. Defendants in their answer asked that plaintiff account for his sole possession of the premises, and for stone quarried therefrom. With regard to quarrying stone the court says: "it is a different act from the occupation of the land or from its cultivation." The judge further says: "it may be necessary to adhere to the rule that for mere occupancy the cotenant is not liable to account; but there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common." In the case 'at bar defendant has appropriated the whole of plaintiff's to its own use. That the findings of fact are abundantly sustained by the proofs, and that the facts do not bring the case strictly within the principle laid down in 18 Barb., 265, and that the judgment is right unless the rents should have been computed from the summer of 1884, when the demand was made by plaintiff to be let into possession, instead of the date of Jan. 7, 1879. It is evident that a demand would have been futile, and that a failure to make it has not misled defendant or put it in any worse condition in respect to the premises. Judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., concurs; Barnard, P.J., not sitting. TAXATION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The People ex rel. Jose Ferrer, ancillary exr., applt., v. Commissioners of Taxes, respts. Decided Dec. 31, 1886. M., a resident of Cuba, had on deposit with bankers in N. Y. during his lifetime the sum of $106.224, which he had transmitted to his bankers for the purpose of having it invested. Before investments had been found for said sum M. died, leaving a will by which F., also a resident of Cuba, was appointed his executor and by which directions were given for the investment of $70,000 of his estate in U. S. bonds. After qualifying as executor in Cuba, F. came to N. Y. and was appointed ancillary executor of M.'s estate for the purpose of getting possession of the funds of said estate. Held, That F. was not subject to taxation as such ancillary executor upon the fund belonging to the estate on deposit with said bankers. One M., a resident of Cuba, died in Aug., 1884, having, at the time of his death, on deposit with M. T. & Co., bankers, of the city of N. Y., the sum of $106,224, which had been placed by him in their custody for the purpose of having it invested. Said M. left a will appointing relator his executor, and containing directions that at least $70,000 of his estate should be invested in U. S. bonds. After qualifying as such executor in Cuba, relator came to N. Y. and was there appointed ancillary executor of M.'s estate. Before relator got possession of the funds in the hands of M. T. & Co., respondents assessed him, as executor, for the sum mentioned as taxable personable property. Thereupon these proceedings | plaintiff testified to an interview were instituted by him to review A. B. Cruikshank, for applt. with her at her house from which it could be inferred that she was the person for whom the work was to be performed; but on the other hand it appeared from cor Held, That under 1 R. S., m. p., 389-419, 3 and 5; Laws of 1851, respondence which §§ Chap. 176, the fund, the taxation of which was complained of, was exempt from taxation, 78 N. Y., 561, for there could be no doubt under all the facts and circumstances of the case but that it was sent here for investment, was left here for that purpose, and was awaiting investment when it was taxed; and that the death of the depositor made no change in its status. Order reversed and assessment cancelled. Opinion by Brady, J.; Davis, P.J., and Daniels, J., concur. PRACTICE. NONSUIT. N. Y. SUPREME COURT. GENERAL had taken place between plaintiff and defendant's husband, from the title given to the plans drawn in plaintiff's own office, from the estimates which plaintiff obtained purporting to be for work to be done for defendant's husband, and from other circumstances, that the work was not only done for defendant's husband but that it was so understood by plaintiff himself. The court dismissed the complaint, and from the judgment embodying that result plaintiff appealed. John Henry Hull, for applt. Charles E. Coddington, for respt. Held, That the evidence conclusively established the lack of liability on the part of defendant, Manly N. Cutter, applt., v. Cora and, as the proof appeared, the Morris, respt. Decided Oct. 15, 1886. It is the duty of the court to dismiss the complaint when if the jury should find a verdict in favor of plaintiff it would be justified in setting aside such verdict as clearly against the weight of evidence. This action was brought to recover compensation for services as an architect in and about the construction of an addition to defendant's house designed to be used as a room for defendant's husband. To prove defendant's liability, court was right in withdrawing the case from the consideration of the jury; for where the court would be justified in setting aside a verdict for plaintiff, if one should be found by the jury, as clearly against the weight of evidence, it is its duty to nonsuit plaintiff. 24 N. Y., 430; 34 id., 9; 2 Hun, 428; 94 U. S., 278. Colt v. Sixth Ave. RR. Co., 49 N. Y., 671, distinguished. Judgment affirmed. Opinion by Daniels, J.; Brady, J., concurs. N. Y. SUPREME COURT. GENERAL Margaret Shiner, admrx., respt., v. Horace Russell et al., recrs., applts. Decided Dec., 1886. Facts tending to show absence of contribu 'fuw-tory negligence. 656 It is the duty of a railroad company not only to provide proper rules for the manmenagement of its trains, but to take every reasonable precaution to bring such rules and orders to the knowledge of all employees to be affected thereby. In giving such orders the superintendent is to be regarded as occupying the place of the corporation. If orders are so blind that it requires an expert to tell their meaning, it is no defense to show how an employee ought to have understood them at the time. Appeal from judgment in favor of plaintiff for $5,000 entered on verdict. Action to recover for the death of plaintiff's intestate, alleged to have been caused by defendants' negligence. Deceased was an engineer on the N. Y., W. S. & B. RR. Co., of which defendants are receivers. Feb. 21, 1885, he was in charge of the first of three engines running a west bound train, the air-brakes being operated by the engineer of the third engine. The night was dark and a heavy snow storm was prevailing. The train was an hour and a half late at Fultonville, where it met an obstruction. It reached there about 2 A. M., and received a telegraph order to cross to the east bound track and run to Canajoharie regardless of all east bound trains, and obeyed the order. About 1 P. M. the previous day an east bound freight arrived at Canajoharie and received orders not to pass that station until further orders. No further orders were received. It remained there, moving from one track to the other to allow trains to pass, and finally rested about 1,500 feet east of the station, but within the yard limits, upon the east bound track. Deceased's train on rounding a curve came suddenly upon this other train about 3 A. M. Deceased blew his whistle, and the shock came immediately, killing him. Defendants moved for a nonsuit, which was denied. It is claimed that it should have been granted on the ground that absence of contributory negligence was not shown. Ashbel Green, for applts. T. J. & J. W. Lyon, for respt. Held, Untenable. The circumstances surrounding the accident were minutely detailed and were such that the jury might well find that there was a preponderance of evidence against any negligence on the part of deceased. The darkness and storm that prevailed on that night rendered it difficult for deceased to see far ahead of his engine. The orders and rules under which he was running, the fact that he had no control of the speed of the train, were all material circumstances calculated to aid the jury upon this issue. The order to deceased to run his train "regardless of all east bound trains" might well have caused him to relax somewhat his vigil |