(182 N.Y.S.)

The defendants answered the petition, and on the day upon which the issue was on for trial their counsel moved for a dismissal of the proceedings. The grounds of the motion, as we gather them from a rather confused discussion, are:

[2] First, that the words "illegal business," as used in section 2231 of the Code of Civil Procedure, have application only where the business complained of is illegal by general statute, no matter where conducted; that is, that the business itself is an illegal one, frowned upon by the law wherever it may appear. We see no force to such contention. Section 2231 has to do solely with the occupation of an illegal business. The defendants, if the facts alleged in the petition can be established, were occupying a tenement house for lodging house purposes. That is an illegal business when conducted in a tenement house, and is an illegal business as defined in section 2231, subdivision 5, of the Code, supra. To adopt the respondent's construction, we think, would make the owner helpless, subject to response to continued civil penalties for violation thereof by the municipal authorities, and the law well-nigh useless to prevent the occupation of premises for an illegal business.

[3] The second' ground urged upon the trial judge for dismissal of the proceedings was that the summary proceedings did not lie because of the Tenement House Law, which makes the occupation of a tenement house for lodging house purposes a crime, does not expressly authorize the proceedings. We think sufficient authorization is found in the section of the Code above adverted to. Conforti v. Romano, 50 Misc. Rep. 148, 98 N. Y. Supp. 194.

The trial judge dismissed the proceedings and awarded a final order to the tenants. This was error which requires a reversal.

The final order is reversed, with $30 costs, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(111 Misc. Rep. 617)

BLUM et al. v. GERARDI.

(Supreme Court, Appellate Term, First Department. May 13, 1920.) 1. Negligence 136 (26)-Contributory negligence question of fact.

To justify a finding of contributory negligence as a matter of law, the evidence must be such as to justify absolutely no other inference than that plaintiff failed to exercise reasonable care; the question otherwise being for the jury.

2. Municipal corporations ~706 (7) —Contributory negligence of taxicab driver in crossing street intersection held for jury.

Taxicab driver, who proceeded to cross street intersection at the rate of from 8 to 10 miles an hour, without decreasing or increasing such speed on discovery of truck approaching on intersecting street at a distance of 100 feet, traveling at the rate of 18 to 20 miles an hour, held not contributorily negligent as a matter of law.

3. Municipal corporations 705 (4) —Truck driver held not to have right of way over taxicab under circumstances.

The mere fact that automobile truck driver was proceeding northerly on Seventh avenue, approaching Thirty-First street, did not give him the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

right of way over taxicab driver approaching Seventh avenue on ThirtyFirst street, under New York City Ordinance; the question of whether taxicab driver was bound to yield to truck driver depending on the imminency of collision.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Harry Blum and another against Paul Gerardi. From an order setting aside a verdict for plaintiffs and granting a new trial, plaintiffs appeal. Reversed, verdict reinstated, and judgment ordered thereon.

Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Cohen, Haas & Schimmel, of New York City (Isidore Cohen, of New York City, of counsel), for appellants.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for respondent.

WAGNER, J. The action was brought to recover damages sustained to plaintiffs' taxicab, resulting from a collision with defendant's automobile truck, by reason of the defendant's alleged negligence. It appeared that on July 3, 1919, while the taxicab operated by one of the plaintiffs in person, after proceeding west on ThirtyFirst street, between Sixth and Seventh avenues, had reached the curb line of the latter avenue, the driver looked north and south, and saw defendant's truck proceeding north on Seventh avenue on the car tracks. At that time the truck was about 100 feet south of ThirtyFirst street, traveling at the rate of 18 to 20 miles per hour. The plaintiff then proceeded to cross Seventh avenue going about 8 to 10 miles an hour, and had almost cleared the north-bound car tracks, on which the defendant's truck was proceeding, when its left rear wheel was struck by defendant.

The nearest car track from a point where the plaintiff looked and saw the truck, when 100 feet distant, was about 15 or 18 feet from the position in which the plaintiff then was. It therefore appeared that while traveling at'a rate of 8 to 10 miles per hour, the taxicab had to traverse a distance of a little more than 15 or 18 feet, while the defendant's motor truck was traveling at 100 feet distance at an 18 or 20 mile rate, in order to cross the intersection with safety. The plaintiff's testimony was corroborated in the above respects by the chauffeur of another taxicab, who was driving along Seventh avenue parallel to the defendant's truck, and who witnessed the collision. No proof was offered by defendant. The case was submitted to the jury by the learned trial justice in a comprehensive and clear charge, dwelling fully upon the facts, and correctly stating the law applicable thereto, who rendered a verdict for the plaintiffs. The decision of the defendant's motion to set aside the verdict was reserved, and subsequently granted, by the trial justice, on the ground that the plaintiff was guilty of contributory negligence as a matter of law.

[1] To justify a finding of contributory negligence as matter of law, it must be conclusively established that the plaintiff was negligent, to be determined in the light of all the facts of the case.

In

(182 N.Y.S.)

other words, before warrant may be given to such a conclusion, the evidence must be such as to justify absolutely no other inference than that the plaintiff has failed to exercise reasonable care. In the event that other inferences are reasonably deducible from the evidence, the court has no power to deal with this question, but must remit it for determination to the triers of fact.

[2] The learned trial justice's decision in setting aside the verdict, as disclosed by his opinion, was equivalent to a holding that the law imposed upon the plaintiff under the circumstances at bar the obligation and duty of either slowing up or going faster than 8 or 10 miles an hour, when he saw the truck 100 feet away from him. We do not think that such obligation or duty was cast upon him as matter of law. Under the circumstances of the case, the question of his negligence was for the jury. Whether his assumption that a safe passage could be effected was the act of a reasonably prudent and careful driver in the situation presented was an issue of fact upon which the minds of men might differ. Feigin v. Malbin, 171 N. Y. Supp. 245.

[3] The fact that the defendant was proceeding northerly did not ipso facto afford to him the right of way. That depended, as the ordinance provides, upon the imminency of a collision, where neither vehicle altered its speed in approaching a common crossing. It is only when, in the exercise of reasonable care and foresight, it becomes apparent that a collision is likely to occur that one must give way. Even then, as said by Shearn, J., in Boston Insurance Co. v. Brooklyn Heights Railroad Co., 182 App. Div. 9, 169 N. Y. Supp. 251:

"The rule is not arbitrary and confers no absolute rights. It takes into account the exercise of reasonable judgment, the obligation of drivers of vehicles to have their vehicles under reasonable control at street crossings, and the obligation to avoid inflicting injury upon another, where it may be avoided in the exercise of reasonable care."

We think the evidence permits an inference, as the jury found, that the plaintiff was not guilty of contributory negligence, and we see no valid reason for the trial court's disturbing or overriding their ultimate judgment in that respect.

The order must be reversed, with $30 costs to appellants, the verdict reinstated, and judgment entered thereon, with appropriate costs to the appellants in the court below. All concur.

(192 App. Div. 62)

HARKINS v. SIZER FORGE CO.

(Supreme Court, Appellate Division, Fourth Department. May 21, 1920.) 1. New trial 119-Motion made more than eight months after knowledge of new evidence too late.

Applicant for a new trial, who waited from November 20, 1918, until August 5, 1919, before making the motion on the ground of newly discovered evidence, was guilty of laches, where his attorney must have known of the alleged newly discovered evidence prior to November 20, 1918.

2. New trial 108 (4) -Newly discovered evidence held not sufficient to warrant grant.

Where a number of witnesses for plaintiff in an action for death testified on the trial that deceased got on a girder by means of a ladder, new evidence of one witness to the effect that deceased reached his work by way of a cage on top of a crane held not such as would strengthen plaintiff's case, and was not sufficient ground for granting a motion for a new trial.

Appeal from Special Term, Erie County.

Action by Eva Bell Harkins, as administratrix of the estate of Ira D. Harkins, deceased, against the Sizer Forge Company. From an order granting plaintiff's motion for a new trial on the ground of newly discovered evidence, after a judgment in her favor was reversed on appeal and cause dismissed (186 App. Div. 937, 172 N. Y. Supp. 895), defendant appeals. Order reversed, and motion denied. Argued before KRUSË, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Love & Keating, of Buffalo, for appellant.

Hamilton Ward, of Buffalo, for respondent.

CLARK, J. Plaintiff's intestate was killed while engaged as a lineman, fastening a telephone wire at the top of a steel column in the building belonging to the defendant. He was not an employé of defendant, but of the Bell Telephone Company. This action was originally tried in October, 1917, and resulted in a verdict in favor of the plaintiff. On appeal to the Appellate Division, the judgment and order were reversed, and the complaint was dismissed, on the ground that no actionable negligence had been established. Harkins v. Sizer Forge Co., 186 App. Div. 937, 172 N. Y. Supp. 895. Plaintiff carried the case to the Court of Appeals, and that appeal is still pending.

This newly discovered evidence upon which the order appealed from was granted is pointed out in an affidavit of a witness named Robert Bruce, and in his affidavit he claims that he saw decedent, on the day he was killed, climb out of the crane operator's cage on top of the crane, from which he went over a crosspiece to the iron girder upon which he was to fasten a telephone wire; that he saw him walk across the top of the crane to the crane tracks, and along the tracks about 25 feet, until he reached an upright girder, when he sat down, partly over the track, and hooked his leg around one of the upright

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

girders, and was boring a hole through it, when he was killed by the crane running him down; and that at no time after he climbed upon the girder had he gone to the ground previous to the accident.

In the immediate vicinity of where intestate was killed there were two parallel girders, one known as the inside and one the outside girder, and they were at least 22 inches apart. The crane at the time of the accident was being operated exclusively on the inside girder. The wires that were to be fastened by intestate were to be placed upon a plate over the outside girder, and there was no occasion for decedent to be on the inside girder at any time.

Several witnesses for the plaintiff testified on the trial that decedent went to his work by way of a ladder from the ground to the outside girder, that was clear; no track being on that girder. Not a witness on the trial testified that decedent reached the place of the accident by way of the crane operator's basket. Decedent had been notified. to go up to his work on a ladder, which was placed against the outside girder. His work required him to be on this outside girder. He had no work to do on the inside girder, where he met with the accident. If he had remained on the outside girder, where his work required him to be, he would have been in no danger. For some reason, undisclosed by the evidence, he got over on the inside girder, which ran parallel to the outside one, and this seems to have been a most unfortunate mistake.

The theory upon which plaintiff asks for a new trial is that the evidence of the witness Bruce would tend to show that Harkins went to the place where he was killed through the crane operator's cage, and that the operator knew of his presence on the track, and should not have negligently run him down. But so many of plaintiff's witnesses on the trial testified quite the other way as to how decedent reached his work, all testifying that he went.up by way of a ladder, and not by way of the crane cage, that it is hard to see how this so-called newly discovered evidence is of such a character that it would probably strengthen plaintiff's case.

After plaintiff was defeated on the ground that no actionable negligence was shown against defendant, it is sought by the testimony of . this witness Bruce to show that decedent went an entirely different route, to wit, through the crane operator's cage, and that the latter saw him and knew 'that he was out in front on the track where he was operating his crane, and that he negligently ran him down, and defendant is responsible for its employé's act.

In the answering affidavits the crane operator denies that he saw decedent go through the cage, or that he had any knowledge that he was on the track in front of the crane. Take that testimony, with the testimony of plaintiff's witnesses on the trial, to the effect that decedent went to his work by a ladder, instead of through the crane operator's cage, it is hardly to be expected that this new evidence would help plaintiff's case, for it would be advancing a theory unsupported by any other evidence in the case.

[1, 2] Moreover, plaintiff was guilty of laches in making the application for a new trial. Her attorney visited the scene of this