have led to the exclusion of all of the mate- | steps, on the south side of the tower, and rial evidence given by it, and would have then a section or flight of seven steps, on the left the plaintiff's claim to the amount of the east side of the tower. The stairs were to be whole decrease in rental value practically un- of iron, except the treads or steps, which were disputed by evidence. We are of the opin- to be of slate. At the time of the accident these ion that no error occurred on the trial re-stairs were nearly completed throughout the quiring a reversal of the judgment, and it should therefore be affirmed. All concur, except EARL, J., dissenting.

(116 N. Y. 660)

BARKER V. POULSON et al.1

ion. Nov. 26, 1889.)

NEGLIGENCE-EVIDENCE-INSTRUCTIONS.

tower, which was at least four stories high. At and just before the happening of the accident the building was nearly completed. The frame-work of the stairs was placed; and, for want of the slate treads, which were to be laid on the stair frames, wooden or board treads were used, temporarily. The

(Court of Appeals of New York, Second Divis- plaintiff's principal was the mason who had the contract for doing the mason-work of the In an action for personal injuries caused by building. The negligence complained of cona fall on defendant's stairway, the complaint al-sisted in the taking off, or leaving off, some of leged that the accident was occasioned by defend- these wooden treads, which had been removed, ants' negligent removal of treads from the stairs probably, for the purpose of putting slate between two certain floors, but did not specify at what particular place on such stairs the treads had treads, on the stair-frames, and the falling of been removed. The stairs between the two stories the plaintiff in consequence of the removal were divided into two flights, both of which had and absence of two or three of the board treads. been used for some days, and the testimony was conflicting as to which flight the fall occurred upon. Held, that it was error to confine the jury to a consideration of one of such flights as the place where the fall occurred.

The plaintiff had ascended these stairs to that portion of the building in which the masonwork was going on but a few minutes before the happening of the accident, having ascendAction by Vincent Barker against Neils ed for the purpose of looking after the maPoulson and Michael Eger. Plaintiff son-work which was being done above the peals. story where the accident happened, and at the Isaac N. Mills, for appellant. John H. time of the accident was returning by these Bird, for respondents.

ap

two flights, or half-flights, of stairs between the "museum floor," as it was called, and the basement floor. The allegation of negligence made by the plaintiff against the defendant is that one or two or three treads had been removed, and not replaced, and were out of place when he was descending the stairs; that it was quite dark, and when he reached that point, in coming down the stairs, he fell, and was more or less injured. The trial occupied several days, and required the testimony of a large number of witnesses; and it is claimed that errors were committed in the reception and rejection of testimony, and in the charge, and the refusals to charge as requested by plaintiff's counsel.

POTTER, J. This is an appeal taken by the plaintiff from a judgment entered upon the decision rendered by the general term of the superior court of the city of New York, which affirmed a judgment entered upon a verdict of a jury in favor of the defendants, and also affirming an order denying motion upon the minutes for a new trial. The action is to recover damages for personal injuries claimed to have been sustained by the plaintiff through the negligence of the defendants or their servants, and without any negligence upon plaintiff's part contributing to the injury. The plaintiff was the foreman, and engaged by the mason who had the contract There are numerous exceptions to the refor doing the mason-work upon the building ception and rejection of testimony, and also known as the "School of Mines," belong several exceptions to the charge of the court ing to Columbia College, on Fourth avenue and refusals to charge. We have deemed it and between Forty-Ninth and Fiftieth necessary to examine but one of the numerstreets, in the city of New York. The de-ous questions raised by these exceptions, and fendants were stair-builders, and were the contractors to put into this building the requisite stairs for its accommodation and use. The building was a new building, or one in the process of improvement or rebuilding, and was to be used for the department of the college known as the "School of Mines." The accident of which complaint is made occurred on the 11th of October, 1883. It arose in this wise: Between the first and second stories of the building, the stairs, which were inclosed in a tower, were broken by a platform into two short sections or flights; for instance, between the basement and first floor the story consisted of a lower section of nine

1Reversing 21 Jones & S. 542, mem.

are satisfied that the judge was in error, and that a new trial must be awarded on account of the ruling which withheld from the consideration of the jury the evidence tending to show that the accident occurred upon the lower flight of stairs. There was a dispute or difference between the testimony on the part of the plaintiff and on the part of the defendants as to the place on the stairs between the basement and the museum stories, where the accident occurred, some of the witnesses locating it on the upper part of the second half-flight, and others on the upper part of the lower half-flight. The complaint charged that the negligence consisted in the removal of the treads from the stairs between the museum floor and the basement floor, and

court refused to charge as above requested, and to his refusal to so charge the plaintiff. duly excepted.

The substance of the charge given and excepted to, and of the two requests to charge, and the refusal of the court to charge, amount to this: that the plaintiff was not allowed to go to the jury upon the question whether the accident occurred in any other place, or under any other circumstances, than those detailed by the defendants and his witness, Cook. We think, under the complaint, which does not charge at what particular place in the stairs the accident occurred, and upon all the proof in the case, in relation to the occurrence of the accident, and the circumstances under which it occurred, the plaintiff was entitled to go to the jury, and to claim a verdict from the jury in favor of the plaintiff, whether the accident occurred upon the upper or lower flight, or whether it occurred in the manner described by Cook, and others of the defendants' witnesses, or whether it occurred at the time and place, and in the manner, detailed by the plaintiff's witnesses. The effect of this ruling of the court, and its refusal to charge the request, was to confine the jury to the finding that the accident occurred just in the manner claimed by the defendants, and not in the manner claimed by the plaintiff,-in short, to exclude from their consideration the evidence which tended to prove that the accident occurred upon the lower flight, and confine the jury to the consideration of the upper flight, as the scene of the accident. We do not intend to hold or indicate what the weight of evidence was in respect to the two places assigned for the accident, nor to indicate that there was not a preponderance in favor of the theory of the defendants' witnesses, but merely to indicate that there was evidence in the case, and the pleadings were broad enough to warrant the jury in finding that the accident occurred where the plaintiff and his witnesses located it. For this error, we think the judgment should be reversed, and a new trial granted, with costs to abide event. All concur.

that, in consequence of the removal at the time when the plaintiff was descending, the accident was occasioned. These stairs had been used, the lower half, by the mechanics, for some days, in going to and from portions of the building where the work was being done. The upper part of this flight had been used for some days by the professors and students, and there was evidence tending to show that all the people who had occasion to go about in the building, or from one story to another, used both parts of the stairs between the museum and basement stories. The complaint did not specify at what particular part of the stairs the accident occurred, or the treads had been removed and remained off the stair-frames. The court said to the jury, in his charge: "It all comes down to this: that if, upon a consideration of all the facts and circumstances, and all the probabilities, that bear upon this branch of the case, you should not believe the testimony of the plaintiff and of the witness Mantz as to the stairs upon which they claim the plaintiff fell, but believe that given on the part of the defense, to the effect that he fell in attempting to go down the basement stairs, you may stop right here, and render a verdict for the defendants." To that portion of the charge the plaintiff duly excepted. The plaintiff also, in writing, requested the court to charge the jury that "if the jury find from the evidence that the plaintiff is honestly mistaken as to the place where he fell, and that in fact he fell on the basement flight of stairs, and that such fall was occasioned by the negligence of the defendants' foreman, Cook, in failing to notify the plaintiff, or warn him that the steps on the upper part of said flight had been removed, or to warn him not to attempt to descend said stairs; and, further, if the jury find that at that time people generally having business in the building were suffered and permitted by the defendants, or their servant or servants having charge there for them, to pass over said flight of stairs, and the plaintiff, having business in said building, was then attempting to go down said stairs, and so fell, without any contributory negligence on his part, and solely through the negligence of the defendants' foreman, Cook, as above stated, and by such fall was injured,-the plaintiff is entitled to (Court of Appeals of New York, Second Divisrecover, and the jury should find a verdict in his favor." The plaintiff also requested the court to charge that "if the jury find from the evidence that the plaintiff fell on any part of the stairs leading from the basement to the first floor, and was thereby injured; and that such fall was caused, without any fault or negligence of his own, solely by the negligence of the defendants' servant or foreman, while acting in their employment, and in the ordinary discharge of his duty as such,-he, the plaintiff, is entitled to recover, whether he so fell on that part of said stairs known as the lower,' first,' or basement' flight, or upon the other part thereof, known as the upper,' or 'second,' flight." The

(116 N. Y. 471)

HOLDEN v. STRONG et al.1

ion. Nov. 26, 1889.) WILLS-CONSTRUCTION-APPEAL-REVIEW.

1. Under a will giving the residue of testator's property to his executor in trust, with directions to invest it, and use so much as the trustee maintenance of testator's son during his life, the shall deem necessary for the proper care and son is entitled to support according to his condition in life, though he is able to support himself, and the trustee is to exercise his discretion as to whether he shall deliver money to the son, or provide necessaries for him.

2. Where there is some evidence to support each finding of the trial court, and those findings have been affirmed by the general term of the supreme court, the court of appeals will affirm the judg

1 Affirming 34 Hun, 635, mem.

Appeal from supreme court, general term, | conclusions of law, the court found that it fourth department. was the duty of the defendant Strong, as Action by John Holden against Charles D. such trustee, to exercise a fair and proper Strong and others. A judgment dismissing discretion in administering the trust, and to the complaint was affirmed by the general support the plaintiff in a proper and comfortterm of the supreme court, and plaintiff ap-able manner for one in his condition of life, peals.

John J. Van Alien, for appellant. W. L. Norton, for respondents.

improper or unreasonable action in the administration of the trust. And judgment was ordered for the defendant, with costs to be paid out of the trust fund.

provided the plaintiff will allow him to do so, although the plaintiff may be able to support himself by his own exertions; but that the determination of the question whether such HAIGHT, J. This action was brought to support should be furnished by paying the procure a judicial construction of the will of plaintiff a sum equal to the value of such Heman Holden, deceased, the father of the support, or by furnishing him proper board, plaintiff, and to procure a decree giving clothing, and a reasonable sum for such other directions to Charles D. Strong, the executor expenses as would be properly incurred by and trustee, as to the amount that he should supporting him, rests in the sound discretion pay over to the plaintiff annually, and to re- and judgment of the trustee, and will not be cover from him a sum sufficient to compen-interfered with by the court, unless it shall sate the plaintiff for his past support and be unreasonably exercised or abused. That maintenance. The trial court has found as the trustee is not shown to be guilty of any facts that Heman Holden died on or about the 17th day of May, 1874, leaving a last will and testament, which has been duly proved and admitted to probate, and by which he appointed the defendant Strong his executor Exceptions were taken to these findings, and trustee, and gave to him, as such trustee, and we have carefully examined the evidence, the residue and remainder of his estate, in for the purpose of seeing whether they are trust, for the benefit of the plaintiff, during sustained by it. The general term has the his natural life, and directed that the estate power to review findings, for the purpose of should be converted into money, and invested seeing whether they are against the weight in good, interest-bearing securities, and gave of evidence; but this court only reviews exto such trustee full power and authority to ceptions taken, and only examines the eviuse so much of the trust fund, either interest dence for the purpose of determining whether or principal, as shall, in his judgment and there is any evidence that sustains the finddiscretion, be necessary for the proper care, ings. In the examination we have made, we comfort, and maintenance of the plaintiff so find some evidence which supports each proplong as he shall live; and after his death, and osition found by the trial court, and, consethe payment of his funeral expenses, he quently, inasmuch as the findings have been directed that the trust fund be distributed affirmed by the general term, we must now among the heirs at law of the testator. The consider them final, and affirm the judgment; residuary estate thus coming into the hands but, in doing so, we wish to state, for the of the trustee was the sum of $9,353.05, which future guidance and conduct of the trustee, was invested by the trustee so as to draw in- that we are not entirely satisfied with the terest. That the amount paid by the trustee manner in which he had discharged the duup to the time this action was brought, in ties of his trust to the plaintiff up to the time 1881, for the support and maintenance of the that this action was commenced. Only $672 plaintiff, was the sum of $672.05, $350 of had been used for the support and maintewhich was paid under an order of the surro-nance of the plaintiff, being less than $100 gate. It was further found as facts that the per year, and over half of that had been complaintiff was about 47 years of age, unmar-pelled by an order of the surrogate. We ried, engaged in repairing clocks and sewing- fully agree with the trial court in its conmachines, and in sewing in families, when- struction of the will, that the plaintiff is enever he could obtain such employment; that titled to his support and maintenance ache possesses many eccentricities and vagaries; cording to his condition in life, even though has been insane, and was at one time an in- he may be able to support himself by his own mate of an asylum; that he possesses neither exertions. We do not understand that, in a vigorous and healthy body nor a very well order to receive the benefit of the provisions balanced mind; that it would require about of the will, it is necessary for him to remain the sum of $400 per year to properly support idle, and refrain from all personal exertion; and maintain him, when in the enjoyment of neither does the fact that he is frugal and usual health; that the defendant has never saving, and has accumulated a fund which refused or neglected to support and maintain he has deposited in the bank, deprive him of the plaintiff, but has always, since the trust the right to the support provided for him. fund came into his hands, been ready and The trial court properly held that the trustee willing to pay for and supply the plaintiff was to exercise a sound judgment and discrewith proper board, clothing, and care, and tion as to whether the money necessary for pay all other necessary expenses for his proper the support and maintenance of the plaintiff support, but that the plaintiff has in a great should be delivered to him, and he allowed to measure refused to allow him to do so. As procure it, or whether the board, clothing, v22N.E.no.23-61

etc., should be purchased and provided for the proposition involved was so thoroughly him by the trustee. The testator, in making considered as to require but little discussion this provision, undoubtedly had fears that in this court. It is not questioned but that the plaintiff's insanity might again return, prior to the passage of chapter 310 of the although 25 years have elapsed since he was Laws of 1879 the local authorities possessed so afflicted. Should such or similar condi- the power of making an assessment for gradtions again recur, it certainly would be the ing and paving adjoining plaintiff's premduty of the trustee to attend to the expendi-ises. It was so determined by this court in tures of the money himself; but as long as the case of Cemetery v. City of Buffalo, 46 the plaintiff remains rational, prudent, in- N. Y. 506. But the act referred to is a gendustrious, and saving, there can be no abuse eral act, and declares that no land actually of discretion in allowing him to take the an- used for cemetery purposes shall be sold unnual or semi-annual appropriations, to ex-der execution for any tax or assessment. If pend for his own comfort and maintenance, in his own way, and in the gratification of his own choice.

BUFFALO CEMETERY ASS'N v. CITY OF BUF-of Greenbush, 66 N. Y. 1; Whipple v. Chris

(Court of Appeals of New York, Second Divis- statutes discloses that, at the time of the pasion. Dec. 10, 1889.)

(117 N. Y. 637)

CHASE et al. v. BELDEN.1

(Court of Appeals of New York. Nov. 26, 1889.)

COLLISION-UNUSUAL LIGHTS.

In an action for damages caused by a collision of vessels, where the evidence shows that defendant's vessel displayed unusual lights, which misled the pilot on plaintiffs' boat, and the testimony on either side regarding the occurrences immediately before the collision is in direct conflict upon material matters, the verdict of the jury, whose determination rested upon a consideration of the conduct of the vessels at and before the collision, will not be disturbed. GRAY, J., dissenting.

Appeal from supreme court, general term, third department.

Everett P. Wheeler, for appellant. Hallock, Jennings & Chase, (Peter Cantine and Emory O. Chase, of counsel,) for respond

This

presumed to have intended their repeal by | negligence of the plaintiffs, I think, was the enactment of chapter 310 of the Laws of shown by the evidence of their own witness1879, unless such intention is manifest. es. This collision occurred on the Hudson Our attention is called to but one feature of river, below Rhinebeck. Plaintiff's steamthe enactment from which it is claimed an boat, the Vanderbilt, was steaming down the inference of an intention to repeal the local river at the rate of about nine miles an hour. act can be drawn. It is claimed that such Her pilot, Whitaker, says it was a dark, intent is inferable from the fact that the cloudy night, and blowing hard. Ahead of city of Rochester is expressly excluded from him, down the river, he saw three bright, its provisions. We think McKenna v. Ed-white lights,-two low ones and one high mundstone, 91 N. Y. 231, is authority for de- one,-which he though were on a tow going nying that the exemption affords an infer- south, and about a mile distant. When the ence of such intention. The judgment lights got out of range, he used his operashould be affirmed. All concur, except glasses, but he could not make out what the BRADLEY and HAIGHT, JJ., not sitting. high light was. He saw no colored lights near the high light, and the object was off to the westward or right of him. He made up his mind that it was a tow, and he laid his course to pass it to the left, or eastward. He next heard one whistle given by the distant vessel, which signified to him that it was an approaching steamer, and for each to go to the right. To this course he assented by one answering blast of the whistle. vessel was the defendant's steam-yacht Yosemite, and at that time he thought the vessels were 500 yards, or 1,500 feet, apart. A few seconds after answering the yacht's whistle, the Vanderbilt's pilot blew two the left; and they were quickly answered by whistles, signifying that each should go to bilt's pilot, when he heard them, hove his two whistles from the yacht. The Vanderwheel hard a-starboard, and sheered his boat hard a-port, or to the left. The collision occurred almost immediately; or, as he said, "from the time the yacht gave the two whistles, I don't think we made three times our length before she struck us." he saw the yacht's red light about the time GRAY, J., (dissenting.) I think that upon he heard her returning his two whistles. the case as made the court should have dis- That light, being carried on the vessel's port missed the complaint. It is true that there side, disclosed to him the positions of the When he saw a was proof of the negligence of the defendant. vessels towards each other. Indeed, it is not disputed by his counsel but collision to be imminent, he rang four bells that the jury would have been warranted in to slow, stop, and back. They were then, he finding that his vessel was in fault. When thought, not a great ways apart, "it may this case was here before (104 N. Y. 86, 9 N. have been two hundred or one hundred feet." E. Rep. 852) it was held that the defend- He assigned as his reason for giving two ant's yacht was a coasting steam-vessel, and whistles, after having replied with one whisbound, as such, to carry what are known as tle to the yacht's one whistle, that he thought "central range lights." Her failure to do so was an act of omission which charges her owner with a liability as for negligence. But it was not enough that she should be proved to have been in fault. It was incumbent upon the plaintiffs to establish their own freedom from charges of negligent acts, and, if the proof upon which they rested their It is quite evident that the vessels were right to recover disclosed any act clearly con- approaching each other in an oblique directributing to the result, they should have been tion; for, according to plaintiffs' evidence, nonsuited. The question of concurrent neg- the Vanderbilt, when her pilot thought he ligence is generally one for the jury to pass saw a tow ahead of him, going south, ported upon; but where facts are undisputed the his vessel to pass to the eastward or left of it, question of the plaintiff's contributory negligence may become a question of law, for the court. Now, in this case, the contributory

ents.

Judgment affirmed, with costs. (No opinion.) All concur, except GRAY, J., who

reads for reversal.

1 Affirming 1 N. Y. Supp. 48.

He says

he could not have thrown his boat to the westward and passed on the yacht's west side without colliding. The yacht struck the Vanderbilt forward of her starboard or righthand gangway, and cut clean through her bow, to about the middle of the port or lefthand gangway.

and he kept on going to the eastward. The yacht laid her course to go to the east or right of the Vanderbilt, and so signified by her whistle; and, as evidence of that course, the pilot of the Vanderbilt says he saw her