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right as an existing company to open or grade, or delay in openhad, though it was an inchoate ing or grading any street or averight and subject to the perform- pue, or any part or parts thereof, ance of further conditions.

such time shall not be deemed a Also held, As no power, author- part of any period of time within ity, or franchise was conferred di- which construction and complerectly by the legislature on the tion is required to be made. petitioner, but the act of 1875 only Held, That the provisions of the prescribes the proceedings by act had been substantially comwhich such rights can be acquired, plied with. a substantial compliance with the The articles of association material requirements of the act framed by the mayor's commisis a condition precedent, without sioners do not conform with the performance of which the peti- requirements of $ 7 of the Rapid tioner could never become legally Transit Act, which explicitly proincorporated or acquire any rights vides that the articles of associaunder the act.

tion shall set forth and embody the It was the intent of the Rapid determination of the commissionTransit Act that companies formed ers, pursuant to SS 4, 5, and 6 of under it should be limited in re- the act, and “further shall provide spect only to time during which it for the release and forfeiture to was possible for them to prose- the supervisors of the county of all cute the work, and that time, rights and franchises acquired by when legal barriers existed to such corporation in case such railtheir so doing, should not be way or railways shall not be comcounted.

pleted within

the time and The commissioners appointed by upon

the conditions therein the mayor required separately, as to provided. The commissioners each of the twenty-nine routes here provided that in case the they had located, that it should be several portions of such railways constructed and ready to be oper- were not completed each within ated within a specified number of the time and within the conditions months or years from the date of provided, the rights and franchises obtaining the requisite consents of acquired by the petitioner for and the property owners and of the as to any portion of such railways local authorities, or in case the not so completed shall be released consent of such property owners

and forfeited to the supervisors of could not be obtained, from the the county of N. Y. date of the confirmation of the Held, That this was a material report of

the commissioners. departure from the requirements They also provided that if any of the act; that the articles should time was unavoidably consumed have provided for the forfeiture by the pendency of legal proceed and release to the supervisors of all ings or by the interference of the the rights and franchises and that public authorities, or by omission the provision contained in them

was an attempt to override the mined and relegated to the discreaction of the legislature in refusing tion of the directors of the comto make the amendment of 1882, pany to be formed would be a deChap. 393, § 2, applicable to the parture from the act and a failure city of N. Y., by incorporating to comply with one of the condithe substance of the amendment tions precedent to the acquisition in the articles of the association. of corporate power. By the arti

Also held, That as the only leg- cles of association which embody islative enactment on the subject the determination of the mayor's of forfeiture is the requirement of commissioners it is provided § 7 of the Rapid Transit Act, that that the railways to be constructed requirement is positive and un- by the company shall be laid upon equivocal and cannot be disre- the surface of the streets, except garded.

certain routes which it is provided It was claimed that the require- may be constructed on elevated ment of the act of 1875, as to the structures, with a double track, forfeiture to the supervisors, is not authority being given to add such applicable, because the board of other tracks as may from time to supervisors of the county of New time be needed to accommodate York was abolished prior to the increasing traffic, and to make such passage of the Rapid Transit Act, additions to the structures as may viz.: in 1870. Laws of 1870, Chap. be needed for that purpose. It is 190.

also provided that the plan of conHeld, Untenable, as by $ 1 of structing the elevated tracks shall said act the mayor and the recor- be, at the election of the company, der of the city of New York, to either with a row of columns on gether with the aldermen to be the line of each curb and a superelected under the act to reorganize structure carrying one or more the local government of said city, tracks upon transverse girders Laws of 1870, Chap. 177, were de spanning the street, or with a row clared on and after the first Mon- of columns upon a line with each day of July, 1870, to compose the curb and a single track over each board of supervisors of the county row of columns, authority being of N. Y.

granted to add to the structure It is essential to the formation when an additional track or tracks of a corporation under the Rapid was needed. The power to erect Transit Act that the commission stations and platforms was not reers appointed by the mayor should stricted or defined, it being left to decide upon some plan for the con- the company to decide where they struction of the railways located are necessary, and to erect them by them. They must decide over the cross streets, and to ocwhether each contemplated road cupy so much of the sidewalks of shall be an underground, or a sur- the street for stairways and apface, or an elevated road. To leave proaches “as may be necessary.” either of these questions undeter- The company was also authorized



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to construct “such supports, turn- and legacies. No administrator was ever outs, switches, sidings, connec

appointed. Plaintiff, assignee of the

legatee, began this action to enforce a tions, landing places, stations,

lien for the legacy in 1883. Held, That buildings,

and such

it was not barred by the statute of limitaother requisite appliances as shall tions. be proper for the purpose of such This action was begun in Feb., railway, and as shall be necessary 1883, to foreclose a lien, for a legfor the convenient use of the acy, upon certain real estate. same.

Adam Quackenbush died in March, Held, That the commissioners 1866, and left

1866, and left a will in which he have undertaken to enable the pe- left to his widow her support and titioner to exercise powers far right to occupy part of the homemore expansive and unrestricted stead and made it a lien on all his than those the Rapid Transit Act property real and personal. He intended to confer; that a substan- then gave his daughter Betsey, tial compliance with the require- plaintiff's assignor, a legacy of ments of said act was essential to $200 payable one year after his dethe petitioner's valid organiza

He then left a legacy to tion.

his son Sandford. Then followed Order of General Term, denying this clause: “All the rest, residue motion of the petitioner, affirmed. and remainder of my estate not

Opinion by Rapallo, J.; Ruger, herein otherwise disposed of, and Ch. J., Miller, Danforth and after the payment of my debts and Finch, JJ., concur. Andrews, J., legacies aforesaid, I give, devise does not vote on 1st and 2d and bequeath to my three sons, grounds but concurs on 3d, 4th and named John, Henry and Sandford, 5th grounds. Earl, J., dissents on and to their heirs and assigns for1st and 2d grounds, and concurs ever, share and share alike, after on 3d, 4th and 5th grounds. the payment of the legacies above

mentioned, and which legacies I

hereby make a lien on all my real LIMITATION.

and personal estate until paid and

satisfied." The three sons were N. Y. SUPREME COURT. GENERAL made executors.

made executors. The widow died TERM. THIRD DEPT.

in nine months after her husband. John Quackenbush, applt.,

The personal property was suffiv.

cient to pay the debts and legacies. Henry Quackenbush et al., respts.

None of the sons ever qualified and Decided Nov., 1886.

no administrator has ever been apA. Q. died in 1866, leaving a will by which pointed. The legacy to Betsey is

a legacy given was made a lien on all his unpaid, and this action is brought real and personal estate. His sons were for it. Plaintiff is assignee of Betmade executors. They did not qualify,

sey and is one of the sons, but now but took possession of the real estate and converted to their own use the personal;

has no interest in the land. The this latter was sufficient to pay the debts will was duly proved. The referee

held the action was barred by the because the statute bars the action statute of limitations.

should an administrator be apH. Link, for applt.

pointed. Therefore he can foreclose Wendell & Van Deusen and B. his lien. This is an equitable remeA. Ransom, for respts.

dy, and if (which wedoubt) the statHeld, Error. The referee's de

The referee's de- ute has begun to run, it did not becision seems to rest upon the idea gin until the legal remedy, through that defendants by accepting the administration, became unavaildevise became personally liable to ing—that is twelve years after the pay the legacy. This is not so. death of the testator and it continThe legacy is made a lien on all ues ten years longer, Code, $ 388, or, the real and personal estate. It is in this case, twenty-two years from not made payable by the devisees his death. Hence, the action can as a condition of the gift, nor is it be maintained. in any way to proceed from the Judgment reversed and new residuary estate. The primary trial granted, costs to abide event, fund for its payment was the per- and referee discharged. sonal property, and that portion Opinion by Landon, J.; Bockes, of it necessary to pay the legacy J., concurs; Learned, P.J., diswas not devised to the residuary sents. legatees. These legatees took this personal property and wrongfully

MASTER AND SERVANT. converted it to their own use.

NEGLIGENCE. Plaintiff's assignor might have had an administrator appointed who

N. Y. SUPREME COURT. GENERAL could have recovered it. 2 R. S.,

TERM. FOURTH DEPT. m. p., 81, § 60; id., 449, § 17; 3

Charles Coppins, respt., v. The Barb. Ch., 477; 1 id., 195; 14 Barb., N. Y. C. & H. R. RR. Co., applt. 376. But if an administrator were

Decided Jan., 1887. sought to be appointed now, the Code, $ 392, would date his ap

It cannot be left to the jury to say what

switches or patented contrivanoes shall be pointment within six years from

used by a railroad company in order to the death of testator, and his ac

escape liability for injury to an employee tion if now brought would be caused by the negligence of a barred in six more years. Code,

employee. SS 382, 3343, subd. 10. Plaintiff's Appeal from judgment in favor assignor is in this position. His of plaintiff, entered on verdict, and right of action against the admin- from order denying motion for istrator is not barred. The lien of a new trial on the minutes. the legacy exists as long as the Action to recover forinjuries susright to enforce its payment. She tained by plaintiff, who was in the can enforce that lien against the employ of defendant as brakeman. real estate when her remedy The train on which he was emagainst the personal becomes una- ployed was approaching St. Johnsvailing. It has become unavailing ville on the day of the accident




and was not expected to stop, jured party is an employee, who, but the engineer failed to look and by his contract, takes upon himdiscover by the signal given by self the risks caused by the neglithe target that there was an open gence of his co-employees and the switch near the station and to usual risks incident to the hazardapply his brakes and stop the ous employment in which he entrain. The train passed the switch gages. . upon a direct cross-over, was de- The pivotal question upon this railed and plaintiff injured. The branch of the case turns upon the switch which was left open by S., solution of the question as to the switchman, had been in use for whether defendant was negligent the purpose of passing trains from in not providing a safety switch, one track to the other, and had a trailing switch, or such a conserved that purpose and safely trivance, in addition to the carried trains across.

ordinary cross-over, would The court charged that plaintiff guard against the exigency which could not recover, as he was a came about by reason of the neglect coservant, if the negligence of the of the engineer and S., the switchengineer and S. solely caused the

That question seems to be injury, but left it to the jury to determined adverse to plaintiff by say whether the switch was a the case of Salters v. The D. & H. proper and suitable instrumen- C. Co., 3 Hun, 338. It was said tality and whether it was not the in that case that “a railroad comduty of the company to have a pany is not bound to employ different one; one that would serve mechanical appliances to prevent the purpose of meeting all exigen- one servant from injury liable to cies brought about by the negli- result from the negligence of angence of said employees who were other.” Apparently the court in coservants.

the case before us went beyond William G. Tracy, for applt.

the rules laid down in that and Louis Marshall, for respt. other adjudged cases in the charge

Held, Error. Primarily, the as given and the refusals made. negligence of the engineer, and Smith v. N. Y. & H. RR. Co., proximately the negligence of S., 19 N. Y., 133 ; Kirkpatrick v. RR. the switchman, in leaving the Co., 79 id., 240; 99 id.,

368 ; switch open, carried the train off Stringham v. Stewart, 100 id., of track No. 2 and produced the 516 ; Probst v. Delamater, 100 id., derailment which injured plaintiff. 266; Ellis v. The N. Y. & E. RR. If the stringent exactions of the Co., 95 id., 546, distinguished. In rule which defendant is under in most of these cases the machinery regard to passengers were ap- was defective. plicable the theory of plaintiff Employers are not bound to inmight be proper. 19 N. Y., 127; sure against accidents; "in the 16 Barb., 353; 3 Kern., 9. But a case of employees they are only different rule obtains when the in-obliged to provide appliances

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