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fifteeri feet to the bed of the creek,

. N. Y SUPREME Court. GENERAL striking so as to fracture his leg.

Plaintiff testified that he unTERM. FOURTII DEPT.

derstood that the door of the privy John Kesley, respt., v. The San- was at the margin of the wall; he derson Bros. Steel Co., applt. knew the privy was standing over Decided Oct., 1884.

the creek; knew those things when

I fell down there." Plaintiff, who was employed by defendant,

Wm P. Goodell, for applt. started on a dark night with a lautern to go to a privy which projected over a stream

Chas. M. Platt, for respt. and which he was required to and was for

Held. That the verdict is not a long time accustomed to use. The lan- supported by the evidence. It has tern went out and in the darkness he missed been held that a servant who has the door and fell over the wall, breaking his leg. Held, That he could not recover

accepted service with knowledge without proof that he had no knowledge of of the character and position of the dangers and risks attending the use of structures from which he may be the privy.

liable to injuries, in cases of inAppeal from judgment in favor juries resulting therefrom, cannot of plaintiff, entered on verdict and maintain an action against his emfrom order denying motion on the ployer and that the servant asminutes for a new trial.

sumes the apparent risks. 63 N. Action to recover for injuries Y., 449 ; 12 Hun, 289 ; 19 id., 512; received by plaintiff while in the 83 N. Y., 268. The principle laid employ of plaintiff. About half down in those cases applies to the past nine in the evening of October case in hand. We think plaintiff 31, 1878, plaintiff started with a bad no right to call upon or expect lantern to go to the privy situated defendant to make alterations in about 125 feet from the room the premises in respect to the lowhere he was working. This privy cation and surroundings of the the employees were required to privy. Plaintiff, by continuing in use and it was built over a creek. the employ of defendant after he Plaintiff had been accustomed to had become familiar with the apuse this privy day and night dur- proaches to the privy, consented ing the eleven months he had to take upon himself the risks and worked for defendant, knew its dangers incident to its use. See location and had made no com 13 W. .1 , . plaint about it. No change had

, been made in its surroundings nor distinguished. had any promise to do so been We think the evidence gave rise made by defendant. The lantern to the presumption that plaintiff went out and he passed along in knew of the existence of the creek, the dark, and instead of entering the wall along it and of the situathe door of the privy, went two or tion of the approaches to the privy. three feet to the right and ran off the situation of the creek and the edge of the wall and fell about I wall was patent and an employee

who had been in and about the dying intestate and without descendants premises to the extent plaintiff

extends to the partial intestacy created by

the lapse of a legacy bequeathed by her in had for eleven months must be

her will although the husband has taken presumed to understand the dan

property by virtue of such will and has gers and risks incident to the use taken out letters testamentary thereunder of the privy. That he did not

and has never taken out letters of adminis.

tration upon the wife's estate. have such knowledge should be made clearly to appear before he Appeal from judgment of Special can claim to enforce a right of ac

Term. tion against the owner of the prem

In December, 1882, Caroline Mcises upon which he has consented Clure, wife of defendant, died, to serve.

leaving a will by which she devised We think the trial judge did not and bequeathed the major part of instruct the jury that it was to be her estate, both real and personal, presumed that plaintiff knew of to her husband and appointed him the situation of the premises and her executor. She also bequeathed that the burden was upon plaintiff a legacy to her brother, Wright to establish that he had no such Robins. Said will was admitted knowledge. Besides, we are not to probate and letters testamentary satisfied that the evidence would were issued to defendant, who duly warrant a finding that plaintiff did qualified thereunder. not know of the dangers incident The testatrix' brother died preto an attempt to approach the vious to her death, and the legacy privy on a dark night without a to him consequently lapsed, and lantern ; nor that plaintiff did not the personal property thus reknowingly and intentionally as- maining undisposed of defendant sume such risks. 19 Hun, 512. claimed under the common law by

Judgment and order reversed, virtue of his marital rights, while and new trial ordered, costs to an interest in it was also claimed abide event.

by plaintiff, a nephew of testaOpinion by Hardin, P. J.; Mer- trix, as one of her next of kin. It win, J., concurs; Follett, J., not was argued on behalf of the plainsitting

tiff that the husband could not avail himself of the provisions of

the will which were in his favor, HUSBAND AND WIFE.

and yet claim to be entitled as the N. Y. SUPREME COURT. GENERAL husband to that portion of the TERM. FIRST DEPT.

estate which would have gone to

the testatrix brother in case he Wright Robins, applt., v. John had survived his sister, and that S. McClure, in person and as exr.,

therefore her next of kin were enrespt.

titled to the same; and also that, Decided Oct. 8, 1884.

since the property of the testatrix, The common law right of the husband to

including that embraced in the take the entire personal estate of the wife lapsed legacy, came into the hands

Vol. 0.-No.

of the defendant as the executor That the common law right of of the will of his deceased wife, the husband to take the entire there could be acquired by him no personal estate of the wife dying right therein as her administrator, intestate and without descendants and that therefore he had taken extends to the partial intestacy the property as trustee for her created by the lapse of a legacy next of kin who were entitled to bequeathed by her in her will, receive it under the statute of dis- although the husband has taken tributions.

letters testamentary under such Edward C. James, for applt. will and has never taken out let. J. W. Peckett, for respt.

ters of administration upon the Held, That, since the legacy to wife's estate. 10 Abb. N. C., 224. the brother of the testatrix was 10 id., 274, distinguished. wholly personal property, and be Judgment affirmed. ing, by the lapsing of the legacy Opinion by Davis, P.J.; adoptby reason of the death of the ing that of Lawrence, J., at Special legatee prior to the death of the Term ; Brady and Daniels, JJ., testatrix, wholly undisposed of by concur. the will, it passed as in a case of entire intestacy. 37 N. Y., 549; 59 id., 434; 79 id., 327.

RAILROADS. EMINENT That the acts of 1848 and 1849.

DOMAIN. known as the married women's N.Y. SUPREME COURT. GENERAL acts, have not changed the common

TERM. FOURTH DEPT. law in respect to the title of a husband to the personal property and In re application of The N. Y., choses in action of a wife who dies L. & W. RR. Co., respl., to acwithout making any disposition quire lands of Solomon Scheu thereof and without leaving either et al., applts. ancestor or descendant. That he is entitled in such a case to reduce

Decided May, 1884. the same to possession after her

A general land agent having charge of the demise as well as by virtue of his subject of purchasing lands for all the purmarital rights as by right of ad

poses of a railroad corporation must be reministration in cases of intestacy.

garded as an officer of the corporation

having the right to verify petitions in pro22 N. Y., 110; 24 id., 110 ; 47

ceedings to acquire title to lands. id., 351; 12 Abb. N. C., 414. Notice of the proposed route need not be That it is not, therefore, necessary

given to owners of land required for other that there shall be actual adminis purposes than the construction of the em

bankment and the laying of the rails. tration to consummate title in the

Where the Common Council of a city in ausurviving husband, though where

thorizing the construction of a railroad such administration exists he may through its streets required the company to establish his title by virtue of his

construct a swing bridge across a canal, to

do which it became necessary to obtain administrative rights. 47 N. Y.,

land over which to swing the bridge when 351.

open, Held, That the company could acquire

title to such lands under the general stat "at such an elevation and of such ute.

construction as not to impair the On the trial before the commissioners the

land-owner has the right to open and close. navigation of said canal as now It is not error for the commissioners, after existing and not to infringe on the submission of the case, to view the vested private rights." The evi. premises a second time in the absence of

dence tended to show that by counsel.

taking the land in question and Appeal from order of Special building the kind of bridge proTerm, appointing commissioners posed petitioner would inflict the to ascertain the compensation for least damage on private rights. land sought to be condemned for The bridge proposed is four feet railroad purposes, and also from lower than the old bridge, that an order confirming the report of height being necessary to conform said commissioners.

to the grade of the street, and is to The petition was in the usual swing to the north over appellants' form, and alleged that the proposed land when open. road runs for several hundred feet The referee found that the within the boundaries of Water bridge at that height would not street in the city of Buffalo, and allow canal boats to pass under it within the limits of said street when closed ; that it could not be crosses the Evans ship canal; that built on the old site without interin order to restore said street toits fering with adjacent buildings and former state or to such state as not the use of docks, and that the land unnecessarily to impair its useful. in question was required for the ness it is necessary to construct a purposes of petitioner's incorposwing bridge over said canal and ration. that for the purpose of construct The Special Term found the ing and operating said bridge the other issues in petitioner's favor. land in question is required.

The petition was verified by H., The answer denied that peti- who was the general land agent of tioner had located its proposed the company, but not the presironte along the line of Water dent, secretary, treasurer street or that it had given the director. It is now claimed that notice of location require, by the verification was insufficient statute, and alleged that the land because not made by an officer of was not required by said railroad the company. company for the purposes of its Humphrey & Lockwood, for incorporation.

applts. The evidence before the referee Bowen, Rogers & Locke, for showed that the Common Council respt. authorized the construction of the Held, That a general land agent, road through Water street on con- having general charge of the subdition that the company should ject of purchasing lands for all the construct, maintain and operate purposes of a railroad corporation a swing bridge across said canal must be regarded as an officer of



the corporation having the right public use. The operation of the to verify petitions in proceedings road is as essential as its constructo acquire title to lands. The stat- tion. The land in question, thereute expressly authorizes the ap- fore, is needed for one of the legitpointment of other officers than imate purposes of the road, and those named therein. 2 R. S., when the necessity exists and a 1546, 7, SS 5, 6. The Code provides reasonable discretion is used the for the service of process upon a courts will not interfere, even if managing agent. $ 481. See also the exercise of the power to take 9 Abb., 104.

lands under the statute is attended Also held, That appellant was with extreme inconvenience and not entitled to notice of the pro- hardship to individuals.

77 N. posed route, because the statute Y., 248 ; 63 id., 326; 46 id., 546. provides for such notice only to Whether the company has comactual occupants of the land over plied or is intending to comply which the route is designated with the conditions imposed by $ 22. No provision is made for the city is immaterial. A breach notice to owners of land required of a condition subsequent is no for other purposes than the con defense to this proceeding. struction of the embankment and On the trial before the commisthe laying of the rails. The route sioners the counsel for the landdesignated by respondent does not owner insisted that petitioner had pass over any part of the land in the affirmative and should offer question, which lies wholly north his evidence first, and asked the of Water street, in which the commissioners to so hold This tracks are to be laid.

request was refused. Also held, That although

Held, No error. There was no part of the land in question is cov- question as to the right of the ered by the proposed route the landowner to damages. The only company can acquire title thereto question was as to the amount of under the provisions of the general such damages. Mr. Pierce in his statute. The city had power under work on railroads, 187, says that its charter to grant the right and the party claiming damages is impose the conditions. 1 Hilt., deemed the actor or plaintiff and 562; Pierce on RR., 247. In order has the right to open and close, to comply with it the company whether the petition for an assesswas compelled to obtain land over ment was filed by himself or by which to swing the bridge when the company.

We think this is open or it could not operate its the correct rule. See 1 Cush., 559; road. It was authorized by $ 13 17 Minn., 188; 30 Ind., 209; 12 of the railroad act to condemn any Rich., 634. real estate required for the pur The commissioners in company poses of its incorporation. The with the counsel for the respective purpose of its incorporation is to parties viewed the premises. After build and operate a railroad for the case was submitted the com

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