Clark, applt., v. Andrew F. Shel- and upwards are taxes other don, Treas., respt. Decided Oct., 1884. The county treasurer has no authority to determine what sum is applicable for investment as a sinking fund under § 4, Ch. 907, Laws of 1869, as amended by Ch. 283, Laws of 1871. That sum must be fixed before the money is paid over to the treas urer. A petition asking that the treasurer be required to invest for a sinking fund under said act a sum less than the amount of all taxes paid over and above school and road taxes will not be granted. Appeal from order of County Judge, dismissing appellant's petition asking for an order directing respondent to invest as a sinking fund, under § 4, Ch. 907, Laws of 1869, as amended by Ch. 283, Laws of 1871, a portion of the taxes raised in the town of Sodus in 1881. The town of Sodus was bonded in 1869, in aid of the L. O. S. railroad, under Ch. 811, Laws of 1868, as amended by Ch. 241, Laws of 1869, and in November, 1881, there was unpaid on said bonds out standing, $102,400 principal, besides interest for upward of three years, amounting to over $23,000. In 1870 said town was bonded in aid of the O. S. railroad, under Ch. 907, Laws of 1869, and in November, 1881, there was outstand ing of those bonds $74,600. Taxes amounting to $2,602.09 were levied upon said roads in said town in 1881, of which $370.71, collected of the O. S. road, was paid to the collector of the town, and the rest to respondent. The petition alleges that, of the sum so levied, "427 and 69-100 dollars than school and road taxes, and it prays that respondent be required to set apart that sum as a sinking fund according to the provisions of § 4 of said act of 1869, as amended. The sum of $427.69 is far less than the amount of taxes paid by the railroads over and above school and road taxes. J. Welling. for applt. Held, That the act evidently contemplates that the sum applicable for investment for a sinking fund shall be definitely fixed before it is paid over to the treasurer, and he is not authorized to determine that question or the amount of taxes paid over and above school and road taxes. And until those questions are determined by some one clothed with proper authority this proceeding is premature. The fact that the petition asks for the investment of less than the amount of taxes paid, over and above school and road taxes, is fatal to the proceeding. One taxpayer cannot maintain a proceed. ing to compel investment of a part of the fund, and another proceed for the remainder, nor can any one taxpayer, by proceeding for a part only, deprive the town of its rights in the remainder. S$ 4 to 8. scheme of the act of 1869, as amended, appropriated taxes for 30 years, the term for which bonds issued under it might run, while bonds under the act of 1868 were required to be made payable in 25 Moreover, the funding years. All the taxes paid by the railroads were ostensibly raised for specific purposes, to which they were appropriated by other statutes than that invoked by petitioner, and which the treasurer is bound to obey so long as they are in force. If they are repealed by the act of 1869, as amended, it is by implication only. It is not necessary to decide that question. The Board of Supervisors of Wayne County expressly refused, as the record shows, to appropriate the taxes of 1881 to the purposes as prayed for by the petition, and it can hardly be said that the money was paid over to defendant to be invested for the purpose of a sinking fund. Order affirmed, with costs. Opinion by Smith, P. J.; Bar ker, Haight and Bradley, JJ., concur. EXCISE. OFFICE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. The People ex rel. Daniel H. Cowles, respt., v. George Ferguson, appl. Decided Sept., 1884. Defendant had been elected in 1881 excise commissioner of a town for three years, ut failed to file his bond. He was after ward, in 1882, appointed such commissioner, until the next election, by the justices of the peace, in an instrument which recited that a vacancy existed, and defendant gave a bond thereupon, which recited that his appointment was to fill a vacancy. At the next election, in 1883, defendant and relator were candidates for the office and relator was elected. Defendant now claims to hold under his election in 1881. Held, That if defendant's failure to file a bond did not create a vacancy it was still ground for this action by the people in the nature of a quo warranto and to oust defendant. The fine fixed by Sec. 1956 of the Code to be imposed on one who usurps an office can only be imposed by the court, a referee has no power. Appeal from judgment ousting defendant from his office as excise commissioner of the town of Queensbury. Defendant was elected as such for three years, in He filed no bond April, 1881. then, but acted as such until 1882, when the justices of the peace, by an instrument reciting his failure to qualify and that the office was vacant, appointed him to fill the vacancy until the next election. Defendant then took an oath as an appointed officer and executed a bond which recited the fact that he was appointed. In April, 1883, there was an election at which relator and defendant were candidates, and defendant was defeated. Defendant then fell back on his election for three years, in 1881, and claimed the office under that election, and claimed that his failure to file a bond then did not create a vacancy. U. G. & C. R. Paris, for applt. D. O' Brien, for the People. Held, That if the failure to file a bond did not create a vacancy it was at least ground for this action by the people, in the nature of a quo warranto and for the ousting of defendant. By his acts defendant has conclusively admitted the fact of the vacancy, and especially by accepting an appointment based upon a vacancy. Cantwell, Paddock & Cantwell, for respt. Held, That the cause of action survived against the estate of Bartlett. By 2 R. S., m. p. 447, § 1, an action may be maintained against the executor or administrator of a wrongdoer for wrongs done to the property, rights or interests. of another. We think this case comes within the word "property." The cases upon this statute, 74 N. Y., 526; 87 id., 493, seem to indicate that the in The referee has also reported that defendant be fined $100. Code, §1956. Such a fine is a punishment like imprisonment, and can only be inflicted by the court. Judgment affirmed, except as to jured party is considered to have the fine, which is reversed. a certain ownership in the means. Opinion by Learned, P. J.; of support of which the party is Landon, J., concurs. CIVIL DAMAGE ACT. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Polly Moriarty, respt., v. Caroline L. Bartlett, exrx., applt. Decided Nov., 1884. Plaintiff brought an action, under the Civil Damage Act, against defendant's testator, a hotel-keeper, to recover for the death of her husband while under the influence of liquor sold by said hotel-keeper. After answer the testator died. Held, That the cause of action survived against his estate. This action was against defendant's testator, a hotel-keeper, for selling liquor to plaintiff's husband, under the influence of which he fell into the water and was drowned. Pending the action defendant died. The Special Term continued the action against the executrix. Hobbs & Kilburn, and Leslie W. Russell, for applt. deprived by the death or injury. We may say that this cause of action is different from any others. It does not arise on contract and need not necessarily arise in tort, for the sale of liquor may have been under a license and so lawful. But the statute makes the seller liable, and his estate should be liable. Plaintiff's means of support have been diminished; something of pecuniary value has been taken from her. Order affirmed, with $10 costs. Opinion by Learned, P. J.; Landon and Fish, JJ., concur. NEGLIGENCE. EVIDENGE. N. Y. SUPREME COURT. GENERAL Louis C. Wagner, respt., v. The Decided Oct., 1884. Plaintiff, with his team, approached defendant's tracks, in the evening, and stopped, but saw or heard no train, and a person stand ing where defendant usually kept a flag- | adverted to was properly received man waved his lantern and called to plaintiff to cross the tracks, and plaintiff, in crossing, was injured by defendant's engine, Held, That evidence as to the actions of the person with the lantern was proper, although plaintiff could not identify him as an employee of defendant. Appeal from judgment on verdict at Circuit. Action for injuries alleged to have been caused by negligence of defendant's employees. At about dusk plaintiff drove up to a street crossing of defendant's road, where there were five or six tracks, the view of which was obstructed by a building. The evidence tends to show that plaintiff stopped about three rods from the track and looked and listened, but saw no train and heard no signal, and a person standing on the opposite side of the tracks waved his lantern and hallooed " All right, come on." Thereupon plaintiff drove upon the track and an engine came along rapidly without ringing bell or blowing whistle, and frightened plaintiff's horses, causing the injuries complained of. The evidence tended to show that for several as bearing on the question of negligence on the part of defendant and of care on plaintiff's part. It also went to the question whether the person with the lantern was an employee of defendant. The court charged the jury that if plaintiff stopped at a point three and a half rods from the track, and his companion got out of the buggy and looked, the jury had a right to say at least that it was the exercise of certainly ordinary care on plaintiff's part. A few sentences further on in the charge the judge said that it was the duty of a person crossing or about to cross a railroad to look and listen to discover whether a train is approaching. Held, That the whole charge on this point, taken together, pre sents no error. Judgment affirmed. Opinion by Smith, P. J.; Barker and Corlett, JJ., concur; Bradley, J., not sitting. NEGLIGENCE. years before the accident defend N. Y. SUPREME COURT. GENERAL ant had kept a flagman at the crossing, generally standing where the person with the lantern stood on this occasion, and warning people of danger and whether it was safe to cross. In the flagman's absence the switchman commonly flagged people across. Plaintiff could not identify the person who signalled him to cross. E. F. Babcock, for applt. TERM. THIRD DEPT. Henry Newcomb, respt., v. Oscar E. Van Zile et al., applts. Decided Nov., 1884. A loaded coal-wagon of defendant's was going up a steep, icy street in the daytime, wher a horse cast a shoe. The driver drew the wagon out to the side of the street, blocked its wheels, went to a blacksmith shop with the team and was gone 15 minutes. Plaintiff in the meantime drove up the street, saw the coal-wagon and also a wagon loaded with iron coming down. Seeing that he could not reach the coal-wagon before the iron-works wagon did he turned out and stopped about 40 feet directly behind the coal-wagon. The iron-works wagon, on reaching the coal-wagon, slid over and struck it; the coal-wagon slid down upon plaintiff's coach and team and damaged them. Held, That defendants were justified in leaving their wagon properly blocked in the street, under the circumstances, and that plaintiff could not recover. It was overtaken by an accident. not their wish to stop their wagon in the street. A horse had lost a shoe, and to go farther upon an icy hill would probably have been great negligence. Their duty was to remove the wagon to the side of the street and secure it there, so that it should not roll down the hill. hill. In all the cases cited by defendant the act of the defendants therein in leaving wagons, &c., in the street was a matter of choice. The driver choice. Here it was a matter of necessity. A coal-wagon of defendant's, loaded and weighing 5,200 pounds, was going up an icy street in Troy, having a grade of 10 in 100, when a horse cast a shoe. The driver then drew out to the south side of the street; he and a co-employee blocked the wheels of the wagon. The driver took the team to a blacksmith shop and was gone 15 minutes; meanwhile the coemployee remained with the wagon. Plaintiff was driving up the hill. He saw the coal-wagon standing, and beyond it, higher up the hill, about 100 feet, and coming down was a heavily-loaded wagon of an iron works, with one wheel chained. Plaintiff saw he could not pass the coal-wagon before the iron works wagon reached it, and he therefore stopped on the south side of the street about 40 feet behind the coal-wagon. As the iron works wagon was passing the coal-wagon it slid sidewise and struck the coal-wagon, which in turn started, came rapidly down the hill and damaged plaintiff's horses and coach. Plaintiff recovered. We think that negligence is not shown as to blocking the wheel. Probably no blocking would resist every possible force which might be brought against the wagon. One of defendant's witnesses says that there was one block six inches long or so on the nigh hind-wheel. The other says he put a block of wood three or four inches thick at one wheel and three large lumps of coal at the three other wheels. There is no evidence that the wagon moved until it was struck. The judge properly charged that if the wagon would not have moved from the position in which it was first placed but for circumstances over which defendants had no control and for which they were not responsible defendants must have a verdict. On this charge the verdict cannot stand. We also think that no inference unfavorable to defendants could Seymour Van Santvoord, for properly be drawn from the fact applt. that the coal-wagon was not pro J. F. Getty and Henry A. King, vided with a stop-bar. Blocking for respt. is and was effectual in this case. Held, Error. Defendants were Judgment and order reversed |