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accounting in the estate of Chaun- of which such an order can be cey S. Stevens, deceased. Objec- disregarded. The supplemental tions were made to the accounts of account involved the opening of one of the administrators, Nathan- | the decree so far, and the duty of iel Niles, and it was referred by the the surrogate was not a ministerial surrogate to a referee to hear and one to sign the decree as it would determine. After a protracted have been if no supplemental achearing the referee made his report, count was permitted. which was confirmed by the surro- Order affirmed. gate. Before a formal decree was Opinion by Barnard, P.J.; Dyksigned the administrator Niles

man, J., concurs. made an application to open the decree, upon proof that he had omitted to credit himself with a

SURROGATES. COSTS. large sum which had been paid to SURROGATES COURT. QUEENS one of the relators, Mrs. Miller.

COUNTY. The surrogate permitted Niles, the

In re accounting of Henry M. administrator, to file "a supple-W. Eastman. mental account thereof” with

Decided vouchers, and the same was referred back to the referee to hear A surrogate may allow costs to a contestant and determine the question arising

who is successful before him, and if the

executor pay the costs before an appeal upon the account and to report

is taken, or if there is no appeal from back the testimony. The relators that part of his decree awarding costs, then applied to the Supreme the executor is protected in their payCourt for a mandamus directing

ment.

The part of a surrogate's decree not apthe surrogate to make a decree

pealed from stands as the judgment of presented by them settling said

the court, even though the appellate accounts. The motion for a man- court reverses the Surrogate's in the matdamus was denied at Special Term,

ter from which the appeal was taken. and from that order this appeal is Decedent left a will and two codi

a taken.

cils. In one codicil the accounting Charles Lyons, Jr., for applts. | executor was appointed one of the Charles G. Patterson, for respt. executors; in the other his appointHeld, That there is no case made ment was revoked, and another

, for a writ of mandamus. This person nominated in his place. order was within the statute power

The will and first codicil was of the surrogate. By $ 2481, subd. offered by the accounting executor 6, the surrogate has power to open, for probate, but he contested the vacate, modify and set aside a de- second codicil. The surrogate on cree or to grant new trials. His the 14th of July made a decree adorder in such a case is appealable mitting the will and first codicil to and iť erroneous can be corrected probate, but rejected the second by force of the same section. Man-codicil, reserving the question of damus is not a remedy by means costs for a further hearing.

On the fifteenth of July the pro- protected in paying it. And again, ponent of the second codicil ap- | if there is no appeal from that part pealed from that part of the decree of the decree awarding costs, then. rejecting the second codicil.

as to that part, the decree is a final On the 23d of July both sides judgment, which the executor is appeared before the surrogate on not only justified in satisfying, but the question of costs, who then he is bound to do so. The objecmade a decree awarding $250 costs tion must be overruled. to the contestant.

Opinion by Weller, S. No appeal was taken from that decree, and the executor paid the

MASTER AND SERVANT. costs thus awarded.

NEGLIGENCE. The appellate court reversed the surrogate's decree rejecting the N. Y. SUPREME COURT. GENERAL second codicil, and that instru

TERM. FOURTH DEPT. ment was finally admitted to pro- Louis Weiler, respt., v. John A. bate, and the contestant was ulti- Isley, applt. mately defeated.

Decided Jan., 1887. The successful party on the ap

Plaintiff was injured by the fall of a peal now objects to the item of

scaffold on which he was at work for decosts paid to the contestant, on

fendant as a helper. Defendant did not the ground that he was not a suc- construct the scaffold, but it was done cessful party.

by his foreman. Held, That whether Lewis H. Fosdick, for objector.

the scaffold was unsafe for the use to

which it was put was a question of fact Garret J. Garretson, for execu

for the jury, and that defendant was tor.

liable for a failure to exercise proper Held, That the objection cannot care and prudence in regard to it before be sustained.

requiring plaintiff to use it. The 3d subdivision of $ 2558 of Appeal from judgment in favor the Code gives the surrogate power of plaintiff, entered on verdict, to award costs to the successful and from order denying motion contestant, which must necessa- for new trial on the minutes. rily mean the one who is success- Action for damages sustained ful before him. The moment he by plaintiff in falling from a renders judgment in favor of a scaffold, caused by the negligence contestant the surrogate has juris- of defendant. Defendant was a diction to award costs to him. If contractor and hired plaintiff as a an appeal is taken from the whole helper to carry timber and shindecree before the costs are paid gles. After plaintiff had worked the executor is stayed under $ four week he was told to go on 2584, and if the surrogate's decree this scaffold to shingle a house. is reversed on appeal the costs fall He had worked about two minutes with the judgment; but if the ex- when the scaffold gave way. He ecutor pays the costs before the testified that he did not know appeal is perfected the executor is about building scaffolds in this

seen

country. Defendant testified he If defendant, like a prudent, did not construct the scaffold. cautious builder, had himself gone His foreman superintended the over the scaffold, and made a suitbuilding and testified that defend-able and careful inspection of it, ant sent him and a boy to build it, he might have, and probably and explained how it was built. would have discovered the defect Defendant moved for a nonsuit, in its construction,

the which was denied and the case dangerous condition in which his submitted to the jury under a foreman had left it, and made

fo charge by which they were dir- such additions and changes as ected to find plaintiff was free would have rendered it safe and from contributory negligence be- secure. fore he could recover.

Plaintiff was young in experHoyt, Beach, & Hine, for applt. ience, immature, and under the

H. E. & G. W. Driscoll, for direction of defendant, who had respt.

better experience and judgment, Held, No error. Defendant was

entered upon the weak and inunder obligation to plaintiff to secure, as well as inadequate furnish safe tools, machinery, ap- structure, and received injuries. pliances and structures for his use. Judgment and order affirmed, To furnish a scaffold that was with costs. reasonably safe before directing

Opinion by Hardin, P.J.; plaintiff to occupy it. 101 N. Y., Boardman, J., concurs; Follett, 400. The verdict has passed, and we J., dissents. must assume that the jury found plaintiff received the injuries in

RAILROADS. MANDAMUS. question without any fault on his

N. Y. COURT OF APPEALS. part. Whether or not the scaffold was unsafe and upfit for the use The People, respts., v. The N. which defendant directed plaintiff Y., L. E. &. W. RR. Co., applt. to make of it was a question of Decided Jan. 18, 1887. fact for the jury. 101 N. Y., 552.

A railroad company is under no obligation Malone v. Hathaway, 64 N. Y.,

to provide warehouses or depots, and 5, and Crispin v. Babbitt, 81 id., they cannot be compelled to do so by 510, distinguished as cases of mandamus. negligence by co-employees.

The proceedings and determinations of the

board of railroad commissioners amount In the case before us, upon evi

to nothing more than an inquest for indence legitimately bearing upon formation, and a railroad company, disthe question, the jury have found regarding the judgment of the commisthat defendant did not exercise

sioners, may continue the management

of its business in its own way and may "proper care and prudence” in

determine in its own discretion to what regard to the scaffold before he

extent and in what manner it is required directed plaintiff to enter upon its to subserve the convenience of the public. use. Hence defendant's liability. Reversing S. C., 24 W. Dig., 183. 99 N. Y., 368; 100 id., 266.

This was an appeal from an order

*

of the General Term, affirming an that such a corporation is exercisorder of Special Term directing a ing a public trust and is empowperemptory writ of mandamus to ered to erect and maintain "all necbe issued compelling defendant to essary and convenient buildings, erect a station house at H., a vil stations

for the accomlage on the line of its road. It ap-modation and use of their passenpeared that defendant's present gers and business.” Laws of 1850, accommodations at H. for passen- Chap. 140, $ 28, subd. 8. The legisgers and freight was entirely in- | lature has control over a corporaadequate and the want of sufficient tion organized under said act of accommodations has been and con- 1850, and may compel the exercise tinues to be a matter of serious of its functions, and direct the damage to large numbers of per-management of its business and sons doing business at that sta- use of its road as in their judgtion. It also appeared that upon ment will best subserve the public complaint made to the railroad interest. commissioners, on notice to defend- The Board of Railroad Commisant, that body adjudged and rec- sioners created by Chap. 353, Laws ommended that defendant should of 1882, is clothed with judicial construct a suitable building at powers to hear and determine upon that station within a time speci- notice questions arising between fied, and although informed of the public and a railroad corporathis defendant failed to comply or tion. Its proceedings and detertake any steps toward complying minations amount to nothing more with it, not for want of means or than an inquest for information. ability to do so, but because its di- | The act gives the Attorney Genrectors decided that the interest of eral no new power, and a railroad defendant required it to postpone corporation disregarding the judgfor the present the erection or en- ment of the railroad commissionlargement of the station house or ers may continue the management depot at that station.

of its business in its own way and E. C. Sprague, for applt. may determine in its own discre

D. O'Brien, Atty. Genl., for tion to what extent and in what respts.

manner the exercise of a public Held, That at common law de- trust requires it to subserve the fendant is under no obligation to “security, convenience and accomprovide warehouses for freight or modation of the public.” depots for passengers waiting State v. RR. Co., 37 Conn., 153, transportation, nor does the Gen- distinguished. eral Railroad Act of 1850, Chap. The courts may by mandamus 140, or the acts amendatory there- interfere with a corporation only of, impose any such obligation where the duty concerned is speupon the companies organized cific and plainly imposed upon it. thereunder; such an obligation 58 N. Y., 152; 70 id., 569; 76 id., cannot be inferred from the fact 294.

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Ordı of General Term, affirm following F. set about moving

| ing order granting mandamus, le- the trees, four in number. Exversed, and motion denied.

cavations some two feet deep were Opinion by Danforth, J. All made by digging around the trees, concur; Rapallo, J., in result. and also by digging new holes to

place the trees in, and the earth MUNICIPAL CORPORATION. taken out was thrown up in piles. NEGLIGENCE.

To do the work, a section of the

sidewalk was thrown around out N. Y. SUPREME COURT. GENERAL

of place, leaving a space through TERM. FIFTH DEPT.

to the ground. There plaintiff Charles Huggins, applt., v. The fell, there being no guards or light Village of Salamanca, respt. there. The work was done by Z., Decided Jan., 1987.

who was employed by F. F. tesUnder all the circumstances of the case

tified that P., one of the village Held, That it was a proper one to be sub- trustees, directed him about movmitted to the jury, and an order of non- ing the walk and showed him the suit was error.

stakes, the street line, the disAppeal from judgment on non- tance to move the walk, and where suit ordered at circuit.

to put the trees. He also testified Action for personal injury al. that H., the village president, leged to have resulted from de- gave similar directions, and was fendant's negligence in not repair- there at different times and during or keeping its sidewalk in a ing the first two days that the safe and proper condition. De- work was going on. F. testified fendant is a village under the that the work was going on for General Act, Laws of 1870, Chap. about a week. Z. said it con291. The injury happened in the tinued four or five days, and that evening while plaintiff was travel- when he heard of the accident ing along a sidewalk in said vil the job was within a day or two lage. The walk, which was of of being finished ; it was past the plank, had been displaced by F., middle of the job. H. lived on the adjoining owner, and the non- the same street on which the work suit was

on the sole was done, ten or twenty rods from ground that there was no proof of the place, and there was nothing notice to defendant of the defec- to prevent his seeing the piles of tive condition of the walk before dirt from his house. P.'s place of the injury happened. The side- | business was in sight of the work. walk was laid by F. the summer S., another village trustee, in gobefore the accident, and he placed ing from his residence to his place it inside of certain shade trees of business passed in view of the then growing in front of his prem- work. ises, which trees were to be moved Ansley & Davie, for applt. when it could be done without 0. S. Vreeland, for respt. hurting them. In February Held, It cannot be said that

ordered

Vol. 25-No. 17b.

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