cey S. Stevens, deceased. Objections were made to the accounts of one of the administrators, Nathaniel Niles, and it was referred by the surrogate to a referee to hear and determine. After a protracted hearing the referee made his report, which was confirmed by the surrogate. Before a formal decree was signed the administrator Niles made an application to open the decree, upon proof that he had omitted to credit himself with a large sum which had been paid to one of the relators, Mrs. Miller. The surrogate permitted Niles, the administrator, to file "a supplemental account thereof" with vouchers, and the same was referred back to the referee to hear and determine the question arising upon the account and to report back the testimony. The relators then applied to the Supreme Court for a mandamus directing the surrogate to make a decree presented by them settling said accounts. The motion for a mandamus was denied at Special Term, and from that order this appeal is taken.

Charles Lyons, Jr., for applts. Charles G. Patterson, for respt. Held, That there is no case made for a writ of mandamus. This order was within the statute power of the surrogate. By § 2481, subd. 6, the surrogate has power to open, vacate, modify and set aside a decree or to grant new trials. order in such a case is appealable and if erroneous can be corrected by force of the same section. Mandamus is not a remedy by means

His

A surrogate may allow costs to a contestant who is successful before him, and if the executor pay the costs before an appeal is taken, or if there is no appeal from that part of his decree awarding costs, the executor is protected in their payment.

The part of a surrogate's decree not appealed from stands as the judgment of the court, even though the appellate court reverses the Surrogate's in the matter from which the appeal was taken.

Decedent left a will and two codicils. In one codicil the accounting executor was appointed one of the executors; in the other his appointment was revoked, and another person nominated in his place.

The will and first codicil was offered by the accounting executor for probate, but he contested the second codicil. The surrogate on the 14th of July made a decree admitting the will and first codicil to probate, but rejected the second codicil, reserving the question of costs for a further hearing.

On the fifteenth of July the proponent of the second codicil appealed from that part of the decree rejecting the second codicil.

On the 23d of July both sides appeared before the surrogate on the question of costs, who then made a decree awarding $250 costs to the contestant.

No appeal was taken from that decree, and the executor paid the costs thus awarded.

The appellate court reversed the

protected in paying it. And again, if there is no appeal from that part of the decree awarding costs, then. as to that part, the decree is a final judgment, which the executor is not only justified in satisfying, but he is bound to do so. The objection must be overruled. Opinion by Weller, S.

MASTER AND SERVANT. NEGLIGENCE.

second codicil, and that instrument was finally admitted to probate, and the contestant was ultimately defeated.

The successful party on the appeal now objects to the item of costs paid to the contestant, on the ground that he was not a successful party.

Lewis H. Fosdick, for objector.
Garret J. Garretson, for execu-

tor.

Held, That the objection cannot be sustained.

The 3d subdivision of § 2558 of the Code gives the surrogate power to award costs to the successful contestant, which must necessarily mean the one who is successful before him. The moment he renders judgment in favor of a contestant the surrogate has jurisdiction to award costs to him. If an appeal is taken from the whole decree before the costs are paid the executor is stayed under 8 2584, and if the surrogate's decree is reversed on appeal the costs fall with the judgment; but if the executor pays the costs before the appeal is perfected the executor is

TERM. FOURTH DEPT.

Louis Weiler, respt., v. John A. Isley, applt.

Decided Jan., 1887.

Plaintiff was injured by the fall of a scaffold on which he was at work for defendant as a helper. Defendant did not construct the scaffold, but it was done by his foreman. Held, That whether the scaffold was unsafe for the use to which it was put was a question of fact for the jury, and that defendant was liable for a failure to exercise proper care and prudence in regard to it before requiring plaintiff to use it.

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

Action for damages sustained by plaintiff in falling from a scaffold, caused by the negligence of defendant. Defendant was a contractor and hired plaintiff as a helper to carry timber and shingles. After plaintiff had worked four week he was told to go on this scaffold to shingle a house. He had worked about two minutes when the scaffold gave way. He testified that he did not know about building scaffolds in this

country. Defendant testified he did not construct the scaffold. His foreman superintended the building and testified that defendant sent him and a boy to build it, and explained how it was built.

Defendant moved for a nonsuit, which was denied and the case submitted to the jury under a charge by which they were directed to find plaintiff was free from contributory negligence before he could recover.

Hoyt, Beach, & Hine, for applt. H. E. & G. W. Driscoll, for respt.

Held, No error. Defendant was under obligation to plaintiff to furnish safe tools, machinery, appliances and structures for his use. To furnish a scaffold that was reasonably safe before directing plaintiff to occupy it. 101 N. Y., 400. The verdict has passed, and we must assume that the jury found plaintiff received the injuries in question without any fault on his part. Whether or not the scaffold was unsafe and unfit for the use which defendant directed plaintiff to make of it was a question of fact for the jury. 101 N. Y., 552.

Malone v. Hathaway, 64 N. Y., 5, and Crispin v. Babbitt, 81 id., 510, distinguished as cases of negligence by co-employees.

In the case before us, upon evidence legitimately bearing upon the question, the jury have found that defendant did not exercise

N. Y. COURT OF APPEALS. The People, respts., v. The N. Y., L. E. &. W. RR. Co., applt.

Decided Jan. 18, 1887.

A railroad company is under no obligation to provide warehouses or depots, and they cannot be compelled to do so by mandamus.

The proceedings and determinations of the board of railroad commissioners amount to nothing more than an inquest for information, and a railroad company, disregarding the judgment of the commissioners, may continue the management of its business in its own way and may determine in its own discretion to what extent and in what manner it is required to subserve the convenience of the public. Reversing S. C., 24 W. Dig., 183.

This was an appeal from an order

of the General Term, affirming an order of Special Term directing a peremptory writ of mandamus to be issued compelling defendant to erect a station house at H., a village on the line of its road. It appeared that defendant's present accommodations at H. for passengers and freight was entirely inadequate and the want of sufficient accommodations has been and continues to be a matter of serious damage to large numbers of persons doing business at that station. It also appeared that upon complaint made to the railroad commissioners, on notice to defendant, that body adjudged and recommended that defendant should construct a suitable building at that station within a time specified, and although informed of this defendant failed to comply or take any steps toward complying with it, not for want of means or ability to do so, but because its directors decided that the interest of defendant required it to postpone for the present the erection or enlargement of the station house or depot at that station.

modation and use of their passengers and business." Laws of 1850, Chap. 140, § 28, subd. 8. The legislature has control over a corporation organized under said act of 1850, and may compel the exercise of its functions, and direct the management of its business and use of its road as in their judgment will best subserve the public interest.

The Board of Railroad Commissioners created by Chap. 353, Laws of 1882, is clothed with judicial powers to hear and determine upon notice questions arising between the public and a railroad corporation. Its proceedings and determinations amount to nothing more than an inquest for information. The act gives the Attorney General no new power, and a railroad corporation disregarding the judgment of the railroad commissioners may continue the management of its business in its own way and may determine in its own discre

Held, That at common law defendant is under no obligation to provide warehouses for freight or depots for passengers waiting transportation, nor does the General Railroad Act of 1850, Chap. 140, or the acts amendatory thereof, impose any such obligation upon the companies organized thereunder; such an obligation cannot be inferred from the fact

manner the exercise of a public trust requires it to subserve the "security, convenience and accommodation of the public."

State v. RR. Co., 37 Conn., 153, distinguished.

The courts may by mandamus interfere with a corporation only where the duty concerned is specific and plainly imposed upon it. 58 N. Y., 152; 70 id., 569; 76 id., 294.

Order of General Term, affirming order granting mandamus, reversed, and motion denied.

Opinion by Danforth, J. All concur; Rapallo, J., in result.

MUNICIPAL CORPORATION.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Charles Huggins, applt., v. The Village of Salamanca, respt.

Decided Jan., 1887.

Under all the circumstances of the case Held, That it was a proper one to be submitted to the jury, and an order of nonsuit was error.

Appeal from judgment on nonsuit ordered at circuit.

Action for personal injury alleged to have resulted from defendant's negligence in not repair ing or keeping its sidewalk in a safe and proper condition. Defendant is a village under the General Act, Laws of 1870, Chap. 291. The injury happened in the evening while plaintiff was traveling along a sidewalk in said village. The walk, which was of plank, had been displaced by F., the adjoining owner, and the nonsuit was ordered on the sole ground that there was no proof of notice to defendant of the defective condition of the walk before the injury happened. The sidewalk was laid by F. the summer before the accident, and he placed it inside of certain shade trees then growing in front of his premises, which trees were to be moved when it could be done without hurting them. In February

Vol. 25-No. 17b.

following F. set about moving the trees, four in number. Excavations some two feet deep were made by digging around the trees, and also by digging new holes to place the trees in, and the earth taken out was thrown up in piles. To do the work, a section of the sidewalk was thrown around out of place, leaving a space through to the ground. There plaintiff fell, there being no guards or light there. The work was done by Z., who was employed by F. F. testified that P., one of the village. trustees, directed him about moving the walk and showed him the stakes, the street line, the distance to move the walk, and where to put the trees. He also testified that H., the village president, gave similar directions, and was there at different times and during the first two days that the work was going on. F. testified that the work was going on for about a week. Z. said it continued four or five days, and that when he heard of the accident the job was within a day or two of being finished; it was past the middle of the job. H. lived on the same street on which the work was done, ten or twenty rods from the place, and there was nothing to prevent his seeing the piles of dirt from his house. P.'s place of business was in sight of the work. S., another village trustee, in going from his residence to his place of business passed in view of the work.

Ansley & Davie, for applt.
O. S. Vreeland, for respt.
Held, It cannot be said that