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(182 N.Y.S.) William M. Cameron, of Glens Falls, for claimant. E. M. Brown, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above-named claimant, during the month of June, 1913, was in the employ of the state of New York as a fire warden. On the 9th day of June, 1913, in the town of Luzerne, Warren county, N. Y., a forest fire broke out, and claimant assisted in extinguishing the fire. On the day following the fire claimant drove his horse and wagon in the vicinity of said fire, hitching the horse near an old barn, some distance away from the place where the fire had burned on the previous day. Claimant, upon investigation, discovered that the fire had broken out anew, and immediately started for the place where his horse was tied, in order to drive to one of the city reservoirs of the city of Glens Falls, N. Y., where a large number of men were then employed at work on said reservoir, for the purpose of getting help to extinguish the fire.

In his efforts to get to the horse he fell over an obstruction which was in the old wood road, and before he could reach the same the fire, because of a sudden wind, spread so rapidly as to overtake the claimant, who attempted to escape by running back to the place from where he started. In his efforts to do so he was severely burned upon his knees, his clothes got afire, his hands were severely burned, his face was severely burned and blistered, and his right eye injured. An assistant who followed saw his danger, and ran in and helped him out, and then ran around a somewhat longer distance to untie the horse. While the horse was being untied, the fire had gotten to where the horse was, and scorched the lower part of the horse's. body. The assistant then drove around to where the claimant was, and then went down to the reservoir to obtain assistance. He was then taken home, a doctor obtained, and the claimant remained ill for considerable time.

The Legislature thereafter, by chapter 568 of the Laws of 1919, passed an enabling act, which reads as follows:

"Section 1. Jurisdiction is hereby conferred upon the Court of Claims to hear, audit and determine the alleged claim of William L. Van Deusen against the state for personal injuries alleged to have been sustained by him while fighting fire in the vicinity of West Mountain, in the town of Luzerne, on the 10th day of June, 1913, by reason of being surrounded by fire and severely burned and permanently injured, while in the employ of the state as a fire warden, and in the course of said employment; and if the court finds that such injuries were so sustained while said claimant was in the employ of the state in the performance of his duties as fire warden and that said claimant at the time was using reasonable care under the circumstances to prevent injury, damages therefore shall constitute a legal and valid claim against the state, and the court may award to and render judgment for the claimant against the state as compensation for such injuries, in such sum as it shall deem just and equitable, provided the claim herein is filed with the Court of Claims within six months after this act takes effect.

“Sec. 2. This act shall take effect immediately."

The case was tried at Glens Falls on March 19, 1920, and the testimony showed that the claimant has not only been disfigured for life, but has been made lame; that the right eye has been injured to

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a considerable extent and the sight weakened. The testimony also showed that at that time claimant's left eye was substantially useless, and had been for a long time, so that the claimant is unable to do much work. Prior to the time of the injury he was a farmer, operating apparently successfully his farm, and doing considerable work in the winter, such as hauling logs, etc. Since then he has been only able to drive a team and do light work, and his earning capacity has been greatly diminished,

[1, 2] The state's defense is that the claimant has been guilty of contributory negligence. The proof does not justify any such inference. The fire was spreading rapidly, the claimant's horse was in danger, and it was important to the claimant to have the use of his horse for the purpose of going to a place rapidly to summon help. This, the claimant testified, was the purpose of going after his horse. There was no apparent danger to him, as there was no fire in the wood road at the time, and had he not met with the accident by falling he would probably have reached his horse in safety. A sudden wind caused the fire to reach him, and he was placed in an emergency that required him to act quickly. The rule of law is that, where a person is placed in an emergency, an error of judgment is not contributory negligence. Roll v. Northern Central Ry. Co., 15 Hun, 496, affirmed 80 N. Y. 647; Bucher v. New York Central, etc., Ry. Co., 98 N. Y. 128; Geibel v. Elwell, 19 App. Div. 285, 46 N. Y. Supp. 76; Wynn v. Central Park & N. E. River Railroad, 133 N. Y. 575, 30 N. É. 721; Rush v. Joseph H, Bauland Co., 82 App. Div. 506, 81 N. Y. Supp. 830; Fay v. Metropolitan St. Ry. Co., 62 App. Div. 51, 70 N. Y. Supp. 763.

[3] The claimant was a man of 50 years of age, evidently a hardworking, capable farmer. His ability to work has been greatly diminished, his eyesight has been seriously affected, and the back of his hands and his face are disfigured and scarred. He was in the employ of the state at the time of his injury, and in an effort to protect the property of the state, and under chapter 568 of the Laws of 1919, if he was not guilty of any contributory negligence, he is entitled to have an award made as compensation for the injuries received in such sum as this court shall deem just and equitable. The claimant, in addition to being made lame and having partly lost his sight, has incurred a bill for physician's services in the sum of $200 and for nurse's services in the sum of $252.

We think, in view of all the circumstances, the age of the claimant, his circumstances in life, his earning capacity, his earning power before the injury, and the diminution of the same after the injury, that the sum of $4,000 would be a fair award.

ACKERSON, P. J., concurs.

(182 N.Y.S.)

THAXTER et al. v. STATE.

(Court of Claims of New York. June 4, 1920.) Canals 18—State held liable for injuries to lands due to the seeping of

water.

Where water seeped from the Erie Canal and injured lands, the state is liable to respondent in damages for the injuries sustained.

Claims by Roy Thaxter, by Herman Pronath, and by Samuel J. Hood and another against the State. Judgments for claimants.

L'Hommedieu & Wheadou, of Medina, for claimants.
George L. Meade, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above claimants owned farms along the Erie Canal in the town of Ridgeway, Orleans county, all located on the northerly side of the canal level known as the 60-mile level between Lockport and Brockport. The land of the claimants all sloped towards the north, the canal running east and west at this point, and the evidence tended to show that water leaked through the canal bank and oozed out of the ground and did more or less damage to the crops of each of the claimants. The claimants testified themselves in their own cases, and called the other claimants herein as witnesses. With one exception, no witnesses were called, except the claimants, who testified for themselves or their neighbors.

Upon the trial the claimant Thaxter admitted that when he realized that he was being damaged he made no note as to the extent of the damage, and kept no track of the salvage, and did not realize that he had any claim until he was a witness in the case of another claimant against the state. The claimant Hood testified that the area of his injury was about 10 acres, giving the detals as to the number of acres of barley, oats, etc., injured. This he did upon cross-examination; and upon redirect, after his attorney attempted by many questions to get him to make an explanation, he still adhered to the fact that he had about 10 acres in area that was damaged. When the attorney for the claimant had finished his redirect, the noon recess was reached, and after the noon recess Hood was again put upon the stand, and then, without making any satisfactory explanation to the court, claimed that the area of damages was something like 15 acres. And each of the claimants impressed me as greatly exaggerating his damage, and as filing a claim for much more in damages than they actually sustained.

The state called three witnesses, who testified to the fact that they visited the claimants' farms and testified to the extent of the damages which they observed. But the difficulty with the testimony of the state's witnesses was that they visited the claimants' farms at a time when they could not have seen all the damage that existed.

[1] There is no doubt but what the crops of the claimants were injured, and injured because of the leakage of waters from the canal,

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

and under the circumstances the state is liable to respond in damages for the injuries sustained. There is also no doubt but what the claimants have greatly exaggerated their claims, and not only filed claims for much more damage than they actually sustained, but in their testimony have attempted to greatly enhance and enlarge upon the amount of damages which they claim they actually sustained, and therefore it becomes somewhat difficult for the court to get at the actual amount of the damage sustained by each of the claimants.

I have carefully considered all of the testimony given upon the trials, and find that the damage sustained by the claimant Pronath is $320, and an award of that amount is made to him; the damage sustained by the claimant Hood is $475, and an award of that amount to them is made; and the damage sustained by the claimant Thaxter is $200, and an award of that amount is made to him; and we direct that judgments be entered in the amounts of the above-named awards in favor of the respective claimants.

ACKERSON, P. J., concurs.

FISHER v. RABINOWITZ.

ALBERTI v. FERRADO. (Municipal Court of City of New York, Borough of Manhattan, Sixth District.

May 26, 1920.) 1. Landlord and tenant en 303 (1)-Amendment to summary dispossess stat(182 N.Y.S.) of termination, notifying tenant rent has been increased, and asking him to move if he does not desire to pay, or that summary proceedings will be commenced if the increased rent is not paid, not being compliance with statute.

ute permits alternative allegations.

Under Laws 1920, c. 139, amending, by adding a new subdivision, Code Civ. Proc. § 2231, relative to summary dispossess proceedings, petitions of landlord, alleging rent of demised premises had not been increased more than 25 per cent. over rent as it existed one year prior to time of presentation of petitions, following language of chapter 139, held sufficient, though not also alleging rent was no greater than amount paid by tenants for month preceding alleged default for which proceedings were brought, an alternative allegation, in view of the word "or" in chapter 139; such construction not depriving tenant of any right, privilege, or

defense given him by chapter 136. 2. Landlord and tenant w116 (5)— Without 30 days' notice to quit monthly

tenant is not holding over.

Where monthly tenant never agreed to increased rental, so as to make new hiring under different terms, but retained possession without paying or surrendering possession on demand, his possession must be deemed that of a holdover under original terms of lease; conventional relation of landlord and tenant still existing, and, not having received from landlord 30 days' notice of termination in form required by Laws 1920, c. 209,

he is not holding over after expiration of his term. 3. Landlord and tenant Ow116 (5)—Monthly tenancy not terminable by giv

ing notice of increase in rent.

Monthly tenant has right to rely on law fixing his rights and liabilities for remaining in possession after expiration of his month, and only way his tenancy can be terminated and landlord regain possession, in absence of agreement to pay more rent, is a default in payment for month he holds over of same amount of rent for month preceding his holding over, or compliance by landlord with Laws 1920, c. 209, by giving 30 days' notice For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Iudexes

Summary dispossess proceedings by Minnie Fisher, landlord, against John Rabinowitz, tenant, and against other tenants, and by Conchetti Alberti, landlord,' against John Ferrado, tenant, and against other tenants. Judgments for tenants, and proceedings dismissed. In the Fisher Case:

Rippe & Michael, of New York City, for landlord.

S. A. Fried, of New York City, for tenants.
In the Alberti Case:

J. A. Boccia, of New York City, for landlord.
Samuel J. Albert, of New York City for tenants.

MARKS, J. The facts in these cases are substantially the same as in hundreds of others presented in this court during this term, where landlords, more than 30 days prior to May 1st, notified their tenants that their rents after May 1st would be increased, in some cases more and in some less than 25 per cent. of the amounts paid during the preceding year or preceding month. The tenants are monthly tenants, and have been such for many months prior to May; their terms commencing on the 1st of the month.

In the Fisher Case, the tenant prior to May 1st paid $23 a month, and more than 30 days prior to May 1st the landlord notified him in writing that on May 1st his rent would be increased to $28; and in the Alberti Case, the landlord in writing notified the tenant that his rent would be increased from $16 to $20 a month, and if the tenant did not pay the increased rent he would be dispossessed. The tenants never agreed to pay the increased rental, and failed to comply with the demand for payment of the increased rent made before the proceeding was instituted. The claim is made in behalf of the landlords that by remaining in possession after notice that their rent from May 1st would be increased, and a demand therefor, they may be dispossessed as for a holding over for nonpayment of the increased rent. In the petitions it is alleged:

"That the rent of the demised premises has not been increased more than 25 per cent. over the rent as it existed one year prior to the time of the presentation of the petition"—following the language of chapter 139 of the Laws of 1920.

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The tenant claims that the proceeding should be dismissed, for the reason that the act also provides that the petition should also state, in words or substance, that the rent is no greater than the amount paid by the tenant for the month preceding the alleged default for which the proceeding is brought, and, as this allegation is not set out, the proceeding cannot be maintained.

While chapter 139 provides that the petitioner must allege, as well as prove, “that the rent of the premises *

is no greater than

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