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App. Div.] Second Department, October, 1911. was tried and submitted upon the first negligence assigned. Incident to construction through a tunnel, it appeared that some two or three years before the casualty the tracks in the tunnel had been put down nearer together than was usual on those parts of the road where there was not the complication of tunnel construction, and that it was a mile and a quarter beyond the tunnel before the tracks were laid apart normally. The casualty occurred within this territory, so that at the point of this passing of these trains the space between the tracks was about 6 feet 1 or 2 inches, instead of 7 feet, and in consequence the clearance of the cabs of passing locomotive engines at that point was 2 feet 312 inches, instead of the “standard clearance” of from 3 feet and 3 inches to 3 feet and 6 inches. There is no proof that permits the inference that the intestate would have been injured if his head had been less than 2 feet 31 inches outside of the cab window, so we must conclude that he was injured because he had thrust out his head beyond that distance. The obligation of the master was due care for the safety of the servant when about his master's work. (Shearman and Redfield on Vegligence [5th ed.], SS 189, 195, and cases cited.) The mere fact that it had laid down its tracks at this point so that the space between passing trains was scanter than usual on that road, would not sustain a charge of negligence unless the master foresaw or in the exercise of due care should have foreseen that a servant when about its business, and in the exercise of due care on his part, might thrust out his head from the cab window beyond this space allowed for passing trains, to his peril. There is not sufficient proof in this case, either that there existed any duty for the intestate which required his attitude, or that in the reasonable discharge of any duty the intestate might place himself in such jeopardy. Of course he might have put out his head for some purpose entirely foreign to any duty cast upon him. This case is not complicated by the conditions of the darkness of night or of the sudden sweep into sight of an oncoming train, for the evidence is that the casualty occurred in the daytime; that there was a clear view to the intestate for 200 yards, and that the said brakeman saw the intestate with his head projected outside the cab window when the trains were 100 yards apart. The plain

Second Department, October, 1911.

[Vol. 146. tiff's contention that the servant was watching the injector is surmise, which would locate him in an act of service from the fact that he had his head outside of the window looking down. But the very great preponderance of the evidence is that the intestate could have discharged his full duty as to the injector without thrusting out his head at all. The learned court charged the jury without exception that the construction of the engine and of all its appliances, including the injector and the overflow pipe, were in good order. Even if there was evidence for the conclusion that the intestate was in inspection of the injector, there is no testimony that he would have been justified in thrusting out his head so far as to be in peril of a passing train. I think, then, that the plaintiff failed to make out a case of negligence and that there must be a new trial granted.

THOMAS, CARR, WOODWARD and RICH, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

LUCIA MINING COMPANY, Appellant, v. GUILLERMO I. EVANS

and HARRY B. EVANS, Respondents.

Second Department, October 6, 1911.

Trust - constructive trust - conveyance of lands purchased with funds

of corporation to officer thereof-equity - suit to compel conveyance -evidence – oral admissions of persons since deceased - courtjurisdiction to compel conveyance of lands in foreign country - evidence — foreign law – presumption — when our law will be applied — principal and agent-corporation owning stock of other corporation.

Although the title to mines was conveyed to the president of a mining App. Div.] Second Department, October, 1911. Such suit may be maintained in the courts of this State although the mines are situate in a foreign country, if the court obtains jurisdiction of the person of the defendant. Evidence of oral admissions made by persons since deceased are admissible

corporation in his individual name and he intended to transfer them to a new corp oration to be formed by him and another, he holds, nevertheless, under a constructive trust for the benefit of his corporation where the purchase price was paid from the funds of another corporation owning all the stock of the mining corporation. Under such circumstances the corporation may maintain a suit to compel a conveyance to it, if the rights of bona fide purchasers for value from the grantee have not intervened.

though regarded as dangerous and unreliable evidence. The fact that the unwritten or common law obtains in the foreign country

may be proved by oral evidence.
There is no presumption that the common law is in force in the State of

Mexico.
Where in such suit the law of succession in the foreign country is not

proved our own law prevails.
As the corporation of which the funds were used to buy the mines owned

all the stock of the mining company, it may be said to represent it. THOMAS, J., dissented, with opinion.

APPEAL by the plaintiff, the Lucia Mining Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 22d day of September, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint.

Charles M. Demond [Marshall Snyder with him on the brief], for the appellant.

Paul E. Mead, for the respondents. JENKS, P. J.:

In 1901 Andy Evans took the title to the Castellano mines in the Republic of Mexico from Hartmann. He then resided in Mexico and was the president, general manager and legal representative of the plaintiff, a corporation of West Virginia, authorized to acquire mines and to carry on business in that country. He also appears as an investor in mining properties in Mexico and as the owner of several mines there. The plaintiff complains that the Castellano mines were thus purchased by it from Hartmann, and that the title was taken by Evans in trust for its sole benefit. In January, 1902, Evans conveyed an undivided half interest in the Castellano mines to Logan, who in November, 1902, conveyed that interest to the plaintiff. Evans died in the city of New York in March, 1903, intestate, leaving a widow and these two infant defendants as his only heirs at law and next to kin. In March, 1910, the widow,

APP. Div.- VOL. CXLVI. 27

Second Department, October, 1911.

[Vol. 146.

recognizing the plaintiff's title ” (according to the complaint), conveyed an undivided fourth part of the Castellano mines to the plaintiff, who now seeks a decree that that property is that of the plaintiff, that Evans took title thereto and held it only in trust, that upon his death an undivided fourth part vested in the defendants, and that they execute a deed of conveyance thereof to the plaintiff. At the close of the evidence the learned Special Term dismissed the plaintiff, who now appeals from the judgment thereupon entered.

Logan was a lawyer residing in the city of New York, was a director and counsel for the plaintiff, and was president of the San Luis Mining Company, also a corporation created under the laws of West Virginia. The principal actors in the transaction of purchase were Evans and Logan. Logan is dead. The plaintiff read in evidence much correspondence between Logan and Evans on the subject of this purchase. The learned Special Term was moved to dismissal largely by its conclusion that the “ letters are equally consistent with the claim of the defendants that the mines in question were purchased not for the company, but for account of Mr. Evans and Mr. Logan, one-half each.” I think that the learned court correctly judged the correspondence as to the intention of Evans and of Logan in making the purchase. It is true that some weeks thereafter Logan suggested as a policy, not as right, that the mine should be turned into the corporations, but, although Evans acceded, he insisted that there must be compensation to him and Logan. I do not find that Logan then protested, as if the plaintiff or the San Luis Company had been the real purchaser, but on the contrary he treated the contention of Evans as natural, just to themselves and essential to any scheme of absorption.

But I think that what Evans or Evans and Logan intended to do, or what they did in formal way, or what they thought they had done about this purchase or attempted to do thereafter, is of little moment and quite aside from a controlling feature of this case. For Logan's relation to the plaintiff was fiduciary in its character. (Hoyle v. Plattsburgh & Montreal R. R. Co., 54 N. Y. 314, 328. See, too, Reeves Real Prop. 363; Perry Trusts [6th ed.), SS 202, 207; Story Eq. Juris. [13th ed.] 310, 311.) And the evidence indicates a case of a App. Div.] Second Department, October , 1911. constructive trust in favor of the plaintiff. In his first letter to Logan relative to this mine, Evans informs him that the price is $20,000 — $5,000 cash, $5,000 in 30 days and $10,000 in 60 days, both from September 26, 1901. And he also wrote that for the first $5,000 he had time until Logan, after the receipt of that letter, could telegraph that Evans might draw on him for that sum; and he added: “The 2 drafts I give one for five thousand and thirty days and the other for ten thousand and sixty days, signed Andy Evans, Mgr. San L. M. Co. This I had to do but with the agreement that should you object the drafts will be destroyed. You understand I do not want this property (The Castellano) for the San Luis Co. I bought it for you and me to put into our new company or as we may agree on later on. But if you should want nothing to do with this, can you help me out? Let me draw on you for the first five thousand and afterwards endorse the two drafts. You can take my San Luis stock as security.” Logan's answer, so far as it appears, was a telegram: “Approve your purchase, but make first draft ten days.” A sight draft, dated October 8, 1901, for $5,000, drawn by Evans on Logan, 27 William street, New York city, was accepted by Logan on October 14, 1901, and paid on October 24, 1901, by check drawn by Logan, attorney. A draft for $5,000, drawn on September 26, 1901, by Hartmann, the seller of the mine, on Andy Evans, manager of the San Luis Mining Company, to be paid at 27 William street, New York, was accepted by Evans, was accepted on October 28, 1901, by the San Luis Mining Company, by Logan, president, and was paid on that day by check drawn by Logan, attorney. A draft for $10,000, drawn on September 26, 1901, by the said Hartmann on Andy Evans, manager of the San Luis mine, to be paid at 27 William street, New York city, was accepted by Evans, was accepted on October 21, 1901, by the San Luis Mining Company, by Logan, president, and was paid on November 25, 1901, by check drawn by Logan, attorney. The testimony of Martin, secretary and treasurer, and a director of plaintiff, who was entirely familiar with its affairs, is that the San Luis Mining Company owned all the stock of the plaintiff; that when the plaintiff wished moneys in 1901 it drew upon the treasurer of the San Luis Company; that

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