over the crossing, so that she left the north flagstone of the cross walk and stepped to the south one, passing to the rear of the car toward the west or down track. Just as she stepped toward it she was struck by the dummy drawing a train coming from Brooklyn, and which she could not see until she stepped from behind the other train. An ordinance of the city was put in evidence which provided that "cars stopping at a street intersection shall stop at the further walk thereof, so that

use ordinary care, but if in running or managing its cars it omitted precautions which in the use of ordinary care it should have adopted to prevent this accident, then it was liable.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Peckham, J. All concur, except Rapallo and Earl, JJ., not voting.

NEGLIGENCE.

interfere with the travel on the cross streets." The train from the north made no noise by either bell or whistle and was moving very slowly in order to stop at the 39th street crossing, which was very much used.

Nathaniel C. Moak, for applt.
B. F. Tracy, for respt.

Held, That the evidence warranted a submission of the question of defendant's negligence to the jury.

It appeared that plaintiff at the time of the accident was but five years of age, and it was proved that her mother was unable to hire a servant or person to aid her in looking after the child.

Held, That this proof was immaterial upon the question of the mother's negligence if the child herself was guilty of none.

It was not for the jury to say in a general way what precautions should have been adopted by defendant to prevent injury to the people on the street, 40 N. Y., 9; 71 id., 228; 92 id., 219; it need only

TERM. SECOND DEPT.

James Linton Morris, admr., respt., v. Walston H. Brown et al., applts.

Decided Dec., 1886.

Where contractors stipulate to furnish facilities for inspection of the work while in progress and acquiesce in the use of certain machinery for that purpose by the other party, they are bound to exercise diligence and care in the management thereof, and are liable for a failure to do so.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion. for new trial on the minutes.

Action for damages for causing the death of plaintiff's intestate. Defendants are contractors with the aqueduct commissioners to construct the northerly portion of the new croton aqueduct, and in their contract stipulated to furnish all facilities for the visitation and inspection of the work while in progress. Such inspection was made by engineers in the employ of the city, of whom deceased was

one, and it was his duty in that position to inspect the work and see that it was performed in accordance with the contract.

Defendants were engaged in engaged in excavating a shaft from the north, and the material as loosened was removed by cars attached to a cable, and drawn out by power furnished by a stationary engine, and the engineers who inspected, including deceased, descended by these cars, which were managed by employees of defendants. On the day of the accident, as the car was about to commence its descent into the cavern, deceased and another engineer stepped upon the rear portion of the car and the person in charge shoved it off and got upon the front car without stopping the train, and they discovered nothing wrong until they had commenced running on a steep incline, when they found by the increase of speed that the cable had not been attached. The man in charge attempted to apply the brake, but without effect. The car continued to move rapidly until it collided with other cars, when deceased was precipitated from the car and sustained the shock which caused his death. A motion for nonsuit was denied and the case submitted to the jury, who found a verdict for plaintiff.

Defendants claim that they owed deceased no duty, and were guilty of no negligence, and that deceased contributed to and brought about the injury.

K. & M. Morris, for applts.
W. Foster, for respt.

Held, That the nonsuit was

properly denied; that defendants were under an obligation resulting from their contract to furnish facilities for the inspection of their work, and if they acquiesced in the utilization of these cars by the engineers for that purpose that was a sufficient adoption or provision of a mode for the fulfillment of that portion of their contract which would require diligence and care in its execution. So all the questions involved were questions of fact for the solution and determination of the jury, and they were all submitted to that body and were all solved against defendants.

The jury were charged distinctly that defendants had the option to select their own facilities for the inspection of their work, but if they allowed the engineers to use these cars to go down to the work, and that was a method permitted by these defendants, then the engineers had the right to be upon the car and it was the duty of defendants to exercise proper diligence in sending it into the tunnel. And then the case on this point went to the jury on the question of negligence in the management of the car in its descent on the occasion in question, and the jury were instructed that the negligence of the servant would be imputed to the master if any were found.

Held, That these instructions. seem to embody the sensible rule and we find no error in their diffusion.

On the question of contributory negligence the jury was fully and fairly instructed.

Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt, J., concurs; Barnard, P.J., not sitting.

INSOLVENT INSURANCE

COMPANIES.

Virginia, and its assets in that State had been appropriated under the laws thereof to the payment of its debts in said State. Appellants were Virginia policyholders and had received a dividend of .0951 per cent. of their policies in the proceedings instituted in that State. Subsequently they ap

TERM. FIRST DEPT.

The People v. The Universal Life Insurance Co. In re claim of Barbee et al., applts.

Decided Dec. 31, 1886.

The Universal Life Insurance Co. was declared insolvent in 1878 in 1878 in a suit brought against it in Virginia and its assets in that State were appropriated to the payment of its debts, including a dividend upon the policies of Virginia policyholders. Subsequently and in 1881 in an action in this State, said company was declared insolvent and its assets placed in the hands of a receiver, and thereafter B., a Virginia policyholder, who had received a dividend upon his policy in the Virginia proceedings, applied to the N. Y. receiver for an additional dividend thereon. Held, That B. was entitled to the same dividend on the balance of his claim against the company as was paid by the receiver upon all other policies upon which nothing had been paid, and that the payment of B.'s dividend could not

be postponed until all other policy

holders had received the same proportion of their claims as that received by B. upon his policy in the Virginia proceedings.

On Nov. 5, 1881, defendant in this action was adjudged insolvent, its charter annulled and a receiver of its assets appointed. Previous to that time, and in 1878, said company had been declared insolvent in a suit instituted in

this action for a further dividend upon their policies, and the referee to whom their claims were referred reported that such claims were valid and subsisting against the assets in the hands of the receiver for the amounts remaining unpaid thereon and that they were entitled to share in the distribution of said assets after all other claims based upon policies of insurance of the same character had received a dividend of .0951 per cent.

From the order confirming the report of the referee this appeal was taken.

Raphael J. Moses, Jr., for applts.

Charles J. Everett, for respt.

Held, That after appellants had received the amounts paid upon their policies in the Virginia proceedings the policies still remained demands against the company for the residue, and they were in that condition when the receiver was appointed and the assets of the company passed into his hands, and, in the distribution of such assets, there should be paid upon appellants' policies the same proportionate amounts as were payable upon all other debts of the same character existing against

the corporation at the time of the receiver's appointment. Section 1793, Code Civ. Pro.; R. S., 7th ed., 79, § 2401, subd. 3.

That the provisions of the statute are such as to place the assets of the company in the charge of the receiver for distribution in the manner specified by its directions, and no authority has been given to him, or to the courts regulating his proceedings, by which one class of creditors shall be wholly or partially excluded from their proportionate parts of the assets of the company by reason of previous payments made upon their debts before the appointment of the receiver.

That what the receiver obtained was the property of the company subject to its debts as they were when he was appointed, and not as they were by transposing preceding dealings down to or subsequent to the time of his appointment; and that, as the policies of appellants' were legal demands against the company for their balances remaining unpaid and unadjusted when the receiver was appointed, those balances were the demands against the company and it was upon such demands that the law has provided payments should be made in proportion to their respective amounts.

People v. Knickerbocker Ins. Co., 101 U. S., 636, distinguished.

Order reversed and order entered providing for payment of dividends upon appellants' policies as above suggested.

Opinion by Daniels, J.; Davis, P.J., and Brady, J., concur.

ΤΑΧΑΤΙΟΝ.

N. Y. COURT OF APPEALS.

The People ex rel. The Panama RR. Co., applt., v. The Comrs. of Taxes of N. Y., respts.

Decided Feb. 1, 1887.

Corporate franchises are not real property. Where a corporation liable to taxation under the law of 1857 has real estate in another State or country the deduction is to be measured by the actual value of the real estate, and the price paid for it, in the absence of other and better evidence, may be taken as representing such value.

This was an appeal from an order of the General Term affirming an order of the Special Term dismissing a writ of certiorari to review an assessment by defendant of the relator's capital stock for the year 1882. Relator is a corporation organized under the laws of this State, and operates a railroad across the Isthmus of Panama, under its charter and as assignee of a grant of an exclusive right to construct and operate a railroad across said isthmus. It has its principal office and place of business in the city of New York. Defendant fixed the value of relator's real estate on the isthmus at the amount it paid for it added to the amount expended in constructing its road. Relator proved its net income for the years 1882, 1881, 1880, and that such average income capitalized would produce a sum much larger than the value as fixed by defendant, and the relator claimed that by deducting from this sum the actual value of its personalty the remainder