SECOND DEPARTMENT, DECEMBER TERM, 1887. 46 525 IN THE MATTER OF THE APPLICATION OF THE NEW ROCHELLE Power of eminent domain may be conferred upon corporations created under chapter 737 of 1873, providing for the formation of water-works companies in towns and villages. Chapter 737 of 1873, providing for the creation and formation of water-works companies in the towns and villages of the State, as amended by chapter 415 of 1876, and chapter 321 of 1881, confers upon such companies the power to take lands by condemnation, upon making compensation as is in such amendatory acts provided for; and is constitutional and valid. Matter of Middletown (82 N. Y., 196) followed APPEAL from an order made at the Westchester Special Term and entered in Kings county, appointing commissioners to appraise damages for lands to be taken by the New Rochelle Water Company. The petitioning corporation was formed under the act of the legislature of this State, entitled "An act in relation to the formation of water works companies in towns and villages in the State of New York," known as chapter 737 of the Laws of 1873, and the amendatory and supplemental acts (Laws 1876, chap. 415, and 1881, chap. 321), to supply the village of New Rochelle with water. At the hearing on the motion for the appointment of the commissioners, testimony was given in support and in contravention of the allegations contained therein; and the counsel for Cook and Seacor, property owners, who refused to sell their lands and opposed the application, moved to dismiss the petition and proceedings, on the ground that such acts were unconstitutional, so far as they authorized the taking of land without the consent of the owners. The court denied the motion and decided that the applicant was entitled to the appointment of commissioners. Joseph D. Fay, for Seacor and Cook, land owners, appellants. Martin J. Keogh, for the petitioner respondent. BARNARD, P. J.: The legislature by a general act authorized the formation of a company to furnish pure and wholesome water to the towns and 130a 259 SECOND DEPARTMENT, DECEMBER TERM, 1887. villages of the State. (Chap. 737, Laws of 1873, p. 1100.) This act did not contemplate that lands and water rights for this purpose should be acquired, except by purchase from the owners. By chapter 415, Laws of 1876, the right is given to acquire lands by condemnation, for the purposes of the public use. The same right is again given by chapter 321, Laws of 1881, and the purposes for which water might be furnished were increased. The legislative power under which these proceedings are taken is ample. The laws are constitutional Water may be taken for the public use, and even in a case where a legislative act authorized the taking of water by a village for public and private use, it was held by the Court of Appeals that it must be so construed as to mean that the private use was only incidental to the public use and involved in it. (Chap. 347, Laws of 1866; Matter of Middletown, 82 N. Y., 196.) When the use is a public one it is within the constitutional power of the legislature to authorize by general law the formation of an indefinite number of corporations with power to take by condemnation the lands necessary for the public use on compensation being made (Buffalo, etc., R. R. v. Brainard, 9 N. Y., 100.) The order should be affirmed, with costs. PRATT, J., concurred; DYKMAN, J., not sitting. Order affirmed, with costs and disbursements. JOHN R. HINZ, AS ADMINISTRATOR, ETC., OF OSCAR C. HINZ, RESPONDENT, v. JOHN H. STARIN, APPELLANT. Action for negligence - — no recovery can be had when the party is injured by his own act, done with knowledge of what the result will be. Upon the trial of this action, brought by the plaintiff to recover damages for the death of his intestate, which was alleged to have been caused by the negligence of the defendant, it appeared that the plaintiff's intestate went to a pleasure resort and bathing ground kept by the defendant, and dived from the top of a structure erected by the defendant, to which ropes to be used as a swing for bathers were fastened, from an elevation of seventeen feet into water three and one-half feet deep, and that the injuries which caused his death were occasioned by his head coming in contact with the hard bottom. SECOND DEPARTMENT, DECEMBER TERM, 1887. Held, that as the deceased could have had no misunderstanding as to the depth of the water, as there were from twenty-five to fifty men standing in the water which came up to their waists, he was guilty of such negligence as to require the court to grant a motion for a nonsuit. APPEAL from a judgment, entered upon a verdict at the Westchester Circuit in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. On July 26, 1885, Oscar Hinz, the plaintiff's intestate, while bathing at Glen Island, was killed while diving from the top of a trapeze structure. The appellant claims that the structure was not designed to be used as a place to dive from, and that the deceased was killed by reason of his own negligence. When the defendant Starin opened Glen Island, in 1881, he carefully prepared this bathing place by cleaning off the sedge and mud and filling it up with sea sand to the depth of ten or twelve inches, carefully covering all the rock. The trapeze structure was a structure similar to a mason's "horse," and from the top beam depended five ropes, three with rings and two with a bar, all designed to be used as swings by the bathers. The horse was about nine feet high from the surface of the water at high tide and sixteen at low. It was buried in the sand about ten inches, so as to rest on the rock. The accident occurred between 2 and 3 P. M. At this time the tide was more than half low, which would make the depth of water about three and one-half feet, as the place is bare at low water. At the time of the accident there were about twenty-five bathers, some of whom were standing in the water about the trapeze. W. W. Goodrich, for the appellant. Martin J. Keogh, for the respondent. PRATT, J.: The plaintiff's intestate made a dive from an elevation of seventeen feet above the hard bottom into water three and one-half feet deep, and his head coming in contact with the hard bottom he sustained injuries which caused his death. He could have had no misunderstanding as to the depth of water, for twenty-five or fifty men were there, some of them standing in water at the depth of the waist. SECOND DEPARTMENT, DECEMBER TERM, 1887. Upon these undisputable facts the question arises whether the recovery in favor of plaintiff can be sustained. The danger of such a plunge would seem to be apparent. If there had been no water there, probably a child would have known better than to have made that headlong plunge from an elevation of seventeen feet. How any man in his senses could imagine that three and one-half feet of water could make the performance safe is difficult to understand. We are clearly of opinion that the facts show such negligence that a nonsuit should have been granted upon that ground. We are also of opinion that no sufficient evidence of defendant's negligence was shown to warrant the submission of that question to the jury. The structure from which the intestate plunged, was clearly not designed to be used in such a manner. Only an athlete of considerable ability would be able to climb to its top. Had it been designed as a platform for divers, some ready means of access would have been provided, and it would not have been so narrow at the top that only a person of pronounced ability in that direction could keep his balance while upon it. The fact that defendant held out the place as proper for bathers, does not show that he guaranteed it safe for people to dive from that structure. We find no evidence that any defect in the bottom caused the injury. One witness testifies that some days after the accident he found a stone that projected above the sand five inches, but we find no evidence to show that the stone was exposed at the time of the accident. It does not appear that the action of the tide would wash the sand, and it may well be that the sand was worn away so as to expose the stone after the accident. Even if the stone was at that time bare of sand, we do not find evidence that the injury was caused by contact with the stone. It is matter of common knowledge that sand washed by the sea is sufficiently solid to account for the accident in this case. We find no evidence that defendant failed in any duty that he owed to the bathers, and for this reason, as well as for the reason that intestate was himself guilty of negligence, the judgment must be reversed, new trial ordered, costs to abide event. BARNARD, P. J., concurred; DYKMAN, J., not sitting. Judgment and order denying new trial reversed, and new trial granted, costs to abide event. SECOND DEPARTMENT, DECEMBER TERM, 1887. IN THE MATTER OF THE ESTATE OF ZALMON BONNET. Lapsed and void legacies pass to the residuary legatee. After giving and bequeathing several sums of money to persons named in his will, the testator gave and bequeathed all the rest, residue and remainder of his estate, after the payment of his just debts, funeral and testamentary expenses, to the wardens and vestrymen of a church named in the will. Held, that certain of the legacies which had lapsed, and a legacy which had been declared void, passed to the residuary legatee. Matter of Benson (96 N. Y., 499) followed; Kerr v. Dougherty (79 id., 346) distinguished; Stephenson v. Orphan Asylum (27 Hun, 383); Iseman v. Myres (26 id., 651) and Goodwin v. Ingraham (29 id., 221) not followed. APPEAL by a legatee and one of the heirs-at-law of Zalmon Bonnet from a decree of the Surrogate's Court of Westchester county, so far as the same adjudges that the legacies given in the will of the deceased, which have lapsed by the death of the legatees without issue before the death of the testator, and the legacy declared to be void which was given to the wardens and vestrymen of St. John's Protestant Episcopal Church at Wilmot, in trust, are payable to the wardens and vestrymen of St. John's Church, Wilmot, in the town of New Rochelle, absolutely. Thomas Nelson, for Dyckman Odell, appellant. William H. Sage, proponent, respondent. PRATT, J.: This is an appeal from so much of a decree of the surrogate of Westchester county as adjudged that certain lapsed legacies and a legacy declared void, passed to the residuary legatee. The general rule as to personalty is (though. the law as to realty is otherwise), "that residuary bequests carry not only everything not attempted to be disposed of, but also everything not effectually disposed of, such as void legacies.and lapsed legacies." (2 Redf. on Wills, 442; 1 Jar., 645.) It has been supposed that this rule was overthrown by the decision in Kerr v. Dougherty (79 N. Y., 346), but in that case the court held that the residuary clause was limited, not general, and, hence, that void legacies did not pass under it, but went to the next of kin. The prevailing opinion did not question the authority of the general HUN-VOL. XLVI 67 |