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(182 N.Y.S.)

mission in its main charge of the propriety of the plan, did by an instruction seem to exclude to a degree that feature, I am not clear that the general verdict of the jury did not rest, at least in part, upon the testimony as to the improper plan. But the defendant was protected from such attack by civil action against the plan (authorities, supra) unless the plaintiff established that the plan as made and executed was not adopted or approved by the authorities of the defendant; moreover, in any event no evidence was adduced by the plaintiff to show such failure of adoption or approval, and the presumption was against him. Owen v. City of New York, 141 App. Div. 217-221, 126 N. Y. Supp. 38, cited in Stern v. International Ry. Co., 220 N. Y. 294; 115 N. E. 759, 2 A. L. R. 487.

[2, 3] The objection to the testimony as to the improper plan, although made upon the ground that the specific question addressed to the expert was one of fact for the jury, nevertheless was effective, if the evidence was in no aspect of the case competent, or could not be made so. Tooley v. Bacon, 70 N. Y. 34-37. The evidence was not within the pleading, and could not be made competent, either by amendment at trial or upon argument of the appeal. Fisher v. Rankin, 27 N. Y. St. Rep. 582, 7 N. Y. Supp. 837, and authorities cited.

[4, 5] Let us now consider the question of the failure in the ministerial duty of maintenance. If we regard this flagstone, in its use by the plaintiff and others, as within the category of a city street or way (Requa v. City of Rochester, 45 N. Y. 129, 6 Am. Rep. 52; Saulsbury v. Village of Ithaca, 94 N. Y. 30, 46 Am. Rep. 122; Schafer v. Mayor, 154 N. Y. 466, 48 N. E. 749), nevertheless the defendant was not an insurer (Osborne v. Village of North Tarrytown, 180 App. Div. 224, 167 N. Y. Supp. 681). Notice, or its legal equivalent, sometimes called constructive or implied notice, was essential to the plaintiff's case. Dillon on Municipal Corporations (5th Ed.) § 1742. Upon the evidence adduced, the plaintiff's case must have rested upon the contention that the defendant was culpable in permitting the flagstone to remain as a way after its condition should have warned the defendant of its instability. It is true that actual notice was not essential, for the defendant was bound to exercise a reasonable degree of watchfulness under the circumstance. McCarthy v. City of Syracuse, 46 N. Y. 194; Pitman v. City of New York, 141 App. Div. at page 672, 125 N. Y. Supp. 941, and cases cited.

But there was no direct proof that the flagstone at any time showed sign of break or of impairment. On the contrary, the plaintiff himself testified that he had never seen any break, and he did not testify to any sign of impairment, save as it is involved in his theory hereafter considered. He also testified that, at 5:35 p. m. of the July day before the casualty of 8 a. m. of the next day, he passed over the flagstone safely, and that when he approached the flagstone on the latter day it appeared in good condition. He did not testify that he saw any sign of break or of impairment before, at, or after the casualty.

[6] I now come to consideration of the condition of the flagstone upon which the proposition of defendant's liability rested. If I do

not misread the bill of particulars and mistake the plaintiff's testimony, his proposition rests upon the disturbance of the "molecular cohesion. of the constituent parts of the flagstone." He testified that theretofore he had seen wagons pass over the end of the flagstone that projected into the roadway, not only where the end was level with the surface, but where the stone, as it was raised from that end to span the gutter, made an obstacle, and he even spoke of occasions when a wagon moved its wheels up onto the flagstone. He testified that he had seen marks on the flagstone made by the metal of the wheel or wheels, when the load was heavy enough to make the impress. He testified that these marks proved that the cohesive qualities of the stone were not equal to the cohesive qualities of the metal tires.

Let us concede that conclusion. The proposition, then, is that such marks constituted notice, and if, thereafter, the defendant permitted the flagstone to remain as a way, the defendant might be found negligent, or that, if the defendant continued to permit wagons thus to mark the flagstone, and suffered the flagstone to remain a way, the defendant was negligent. But it does not follow that, because the cohesive quality of the flagstone was inferior to that of the metal tires, the cohesive quality of the stone was not sufficient to sustain a wayfarer like the plaintiff at the time he attempted his passage.

The plaintiff went no further with testimony. There was no proof that such tire marks would indicate to any observer in the exercise of reasonable care, or any inspector of like prudence, that the flagstone was, or would become by the time the plaintiff used it, unsafe for passage. On the other hand, there is testimony by the defendant's engineer, neither challenged nor contradicted, that he knew of no indication that could be seen by any one that indicated that such a stone was about to break before it did break. The theory is too conjectural, and too far-fetched, to establish negligence. Its speculation and remoteness is accentuated by the fact that the plaintiff himself, when asked on cross-examination how danger could have been foreseen, took refuge in the sole statement that the city officers could have "selected a proper stone in the first instance." And when he thereupon was asked what objection he had to this stone-what fault --he answered: "As a general proposition, I have none." There was no testimony that this flagstone was not proper, or that any kind of flagstone could have been used that would remain unmarked by the metal tires of such wagons.

[7] It is possible that in the period that intervened between 5:35 p. m. of one July day and 8 a. m. of the next day some force may have broken, cracked, or impaired this flagstone. But, if conjecture were fact, the defendant could not, in the absence of actual notice, be cast in liability for negligence. The language of Finch, J., for the court in Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, 59 Am. Rep. 492, is apt:

"I am quite willing to hold cities and villages to a reasonable performance of duty; but I am not willing to make them practically insurers, by founding their liability upon mere possibilities."

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(182 N.Y.S.)

The rule of evidence known as res ipsa loquitur was not invoked and did not apply. Cunningham v. Dady, 191 N. Y. 152, 83-N. E. 689; Schmidt v. City of New York, 179 App. Div. 667, 167 N. Y. Supp. 23. The defendant did not control the "causative force" as presented by the evidence. Shearman and Redfield on Negligence (6th Ed., Street) § 58b.

I advise reversal of the judgment and order, and the grant of a new trial, with costs to abide the event. All concur.

SCHIFF v. AMERICAN RY. EXPRESS CO.

(Supreme Court, Appellate Term, First Department. June 9, 1920.) Stipulations 19-Stipulation as to use of affidavit held binding, though entered into prior to a previous trial.

Where, in stipulation that affidavit of certain witness might be read in evidence, there was nothing limiting the use of such affidavit to any particular trial, the affidavit was admissible, though the stipulation was made prior to a previous trial of the issues.

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

Action by Harry N. Schiff against the American Railway Express Company. From a judgment dismissing the complaint after trial by judge without a jury, plaintiff appeals. Reversed, and new trial granted.

See, also, 180 N. Y. Supp. 480.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

David Haar, of New York City, for appellant.

Edgar R. Kraetzer, of New York City (Walter L. Bryant, of New York City, of counsel), for respondent.

BIJUR, J. The only question involved on this appeal is as to the right of plaintiff to read an affidavit of a witness pursuant to a stipulation made prior to a previous trial of the issues. The stipulation recited:

That the action had been set down for August 22, 1919, to meet the convenience of the witness, "and the attorneys for the respective parties hereto having consented to adjourn the trial further, it is hereby sipulated that the condition of said adjournment is that the affidavit of said Spiro may be read in evidence upon the trial of the issues with the same force and effect as if the said Spiro testified in person."

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There being nothing in this stipulation which limited the use of the affidavit in place of the testimony of the witness to any particular trial, it was binding upon both parties until for adequate reason one or the other might have been relieved therefrom upon appropriate application. Clason v. Baldwin, 152 N. Y. 204, 211, 46 N. E. 322; Hine v. N. Y. L. R. R. Co., 149 N. Y. 154, 43 N. E. 414; Fortunato v. Mayor, 74 App. Div. 441, 443, 77 N. Y. Supp. 575, affirmed 173

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

N. Y. 608, 66 N. E. 1109; Converse v. Sickles, 16 App. Div. 49, 44 N. Y. Supp. 1080.

Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.

KUENZLI v. STONE.

(Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Constitutional law 170-Landlord and tenant 295-Tenant's relief. act held not unconstitutional.

Laws 1920, c. 137, relating to discretionary stay in landlord's summary proceedings, held not unconstitutional, as impairing the obligation of preexisting contracts.

2. Constitutional law 106-Remedy given by Legislature repealable. Ordinarily, a remedy created by the Legislature may be repealed by the Legislature.

3. Constitutional law

to enable it to act.

48-Legislature presumed to have sufficient evidence

It must be presumed that the Legislature, in enacting police legislation, had before it any evidence required to enable it to act; and, if any special finding of fact be needed to warrant the passage of a particular act, the passage of the act itself should be treated as equivalent to such finding.

4. Constitutional law 70 (3)-Courts will not investigate whether facts warrant legislation.

The courts will not make a separate investigation of the facts, or attempt to decide whether the Legislature has reached a correct conclusion with respect to them.

5. Constitutional law ~117—Obligation of contracts clause does not restrict police power of state.

The prohibition in the federal Constitution that no state Legislature shall pass any law impairing the obligation of contracts does not restrict the power of the state to protect the public health, public morals, or the public safety, in so far as the one or the other may be involved in the execution of such contracts.

& Constitutional law 117-Legislature not estopped by private contracts. Parties, by entering into contracts, may not estop the Legislature from enacting laws intended for the public good.

7. Constitutional law 106-No vested right to particular remedy.

There is no vested right to a particular remedy, and a statute is not unconstitutional merely because it changes, abolishes, or impairs an existing remedy, or a cause of action that has accrued prior to the passage of the statute.

8. Courts 190 (2)—Order of Municipal Court granting stay of landlord's summary proceeding not appealable.

In landlord's summary proceedings, an order under Laws 1920, c. 137, granting a stay of the issuance of the warrant until a certain date, is not directly appealable from the Municipal Court to the Appellate Term of the Supreme Court, under Municipal Court Code, § 154, but is reviewable only under section 155, by appeal from the final order in the summary proceedings, specifying in the notice of appeal that appellant desires a review of the stay order.

Appeal from Municipal Court, Borough of Queens, Fourth District.

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

(182 N.Y.S.)

Summary proceedings by Amelia Kuenzli, landlord, against William Stone, tenant. From an order granting a stay of the issuance of a warrant in the proceedings, the landlord appeals. Appeal dismissed.

Argued May term, 1920, before KELBY, CLARK, and CROPSEY, JJ.

Adolph Herzog, Jr., of Jamaica, for appellant.

Paul M. Pelletreau, of New York City, for respondent.

KELBY, J. The trial court found that the defendant was a monthly tenant, and that he held over his term after service of due and timely notice to quit the premises. The order appealed from bears date the 19th day of April, 1920, and contains the following recitals:

"After a hearing, it appearing to the court that the premises are used for dwelling purposes and that the applicant cannot secure suitable premises for himself and family within the neighborhood similar to those occupied and that he has used due and reasonable effort to secure such other premises and sufficient facts having been shown to warrant the granting of a stay, and the said tenant having stipulated that he will abide by and comply with the terms and provisions to be prescribed by the court.

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These recitals are followed by an order directing that the issuance of the warrant be stayed until October 31, 1920, upon condition that the tenant deposit with the clerk, within 12 days from the date of the order, and on the 1st day of each month during the continuance of the stay, the sum of $41.50, said sum being the aggregate of $35.00, the rent for which the tenant was liable for the month immediately prior to the expiration of his term, and of $6.50, being the additional sum determined by the court to be reasonable. The order then contains a provision that, upon failure of the tenant to comply with any of the conditions, the stay shall terminate, and that either party may, on 2 days' notice, apply to the court for a modification of the order. The testimony recited in the order does not appear in the return to this court. There does appear in the return the minutes taken on the trial of the special proceeding itself. From this last-mentioned testimony it appears that the plaintiff, the owner of the property, had contracted to sell the property in question, agreeing to give title on the 1st day of April. The court below properly held that the tenant's term expired on the 1st day of April, and that he was holding over the said term without the permission of the landlord. It further appears from the record that the plaintiff's agent had told the tenant that plaintiff had purchased the property in February, and had sold it in the same month of February, and that the owner desired the tenant to remove from the premises because a sale could be more readily effected without there being any tenants in possession; and it further appeared that the plaintiff had bought the property as a speculative enterprise.

[1] The appellant urges two points for the reversal of the order: First, that chapter 137 of the Laws of 1920, under which the stay was granted, is unconstitutional, in that it impaired the obligation of

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