FIFTII DEPARTMENT, DECEMBER TERM, 1889. comptroller's deed and the proceedings upon which it was founded were valid. That case, Colman v. Shattuck, as determined in the Court of Appeals, is reported in 62 New York, 348. On the former trial of this action judgment was rendered in the plaintiff's favor, which was affirmed by this court, on the ground that by the proofs, it appeared that the tax deed and the proceedings upon which it was founded were valid, supposing that those questions were considered and determined in the action of Colman v. Edwin R. Shattuck. The judgment of this court was reversed on appeal, by the Court of Appeals, on the ground that the proofs disclosed a fatal defect in the tax proceedings, and for that reason the plaintiff failed to establish a title to the premises from which the bark was taken; and the case is reported in 105 New York, 39. (Shattuck v. Bascom.) The plaintiff now relies upon the judgment in the action of Colman v. Shattuck as conclusive evidence against the defendant that the comptroller's deed is valid and conveyed all the interest which Coleman had in the premises to the grantee therein named, and that the defendant is estopped from questioning the correctness of that judgment, as he claims title under Coleman, the party who prosecuted the transaction to a final judgment; and this position is entirely sound, if the deed from the defendant was, as it purports to be, an absolute and unconditional conveyance of the fee. If, however, the deed was intended to be in the nature of a mortgage to secure a debt, as the defendant now contends, then he was not estopped from questioning the plaintiff's title and was free to show that the tax proceedings were irregular and illegal and the comptroller's deed void. On the trial the court ruled that, from the proofs as presented, the tax proceedings and the comptroller's deed based thereon were, as matter of law, void, and that the defendant was entitled to a verdict if the jury found that the deed from the defendant to Coleman was intended as a mortgage as between those parties; but if they found that the deed was intended to be an absolute conveyance of the fee of the premises, as it purported upon its face to be, then the plaintiff was entitled to recover. In the former appeal it was held by this court and by the Court of Appeals that if the deed was intended only as a mortgage, that the judgment in the action of Colman v. Shattuck was not binding on the defendant, as Coleman's deed reconveying the premises to him was, in legal FIFTH DEPARTMENT, DECEMBER TERM, 1889. effect, a satisfaction of the mortgage, and nothing more, and was to be regarded in disposing of the questions now presented. By this statement of the history of the case it will appear that it was held by the trial court that the tax proceedings and the comptroller's deed were void as a matter of law and conveyed no title to the grantee named in the comptroller's deed under whom they claim. It was not disputed by the defendant as a legal proposition, and the court so ruled, that if the deed to Coleman was absolute, then the judgment in the suit of Coleman v. Shattuck was binding on him, and he could not question the validity of the plaintiff's title as set up by them, and upon which they relied. The question of fact was submitted to the jury in a clear and intelligent charge, to which the defendant took no exception. On the appeal from the order denying the defendant's motion for a new trial, he contends that the verdict was against the weight of evidence. But in view of all the facts and circumstances of the case as disclosed by the record, we cannot concur in that contention; and we think that there is ample evidence to sustain the verdict in view of the well-settled rule which applies in all instances where the grantor of a deed, absolute in terms, seeks to convert it into a mere security for the payment of a debt. The burden of proof rested upon the defendant to overcome the strong presumption arising from the terms of a written instrument. The rule is that if the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A deliberate deed or writing is of too much solemnity to be brushed away by loose or inconclusive proofs. (Howland v. Blake, 97 U. S., 626.) It is true that it is a strong circumstance in the defendant's favor that, in the deed by Coleman reconveying these premises, the consideration expressed was only one dollar; but he is compelled, in making out this part of his case, to rely largely upon his own evidence, and gives the only direct evidence on that question, and being a party in interest his evidence was subject to criticism, and clearly made a case for the jury. In verifying his petition in the bankruptcy proceedings he substantially stated upon oath that HUN- VOL. LV 3 FIFTH DEPARTMENT, DECEMBER TERM, 1889. he was not the owner of, and did not have any interest in these lands. Many of the cases hold that, upon the unsupported evidence of an interested witness, a decree changing a deed, absolute in terms, to be only an instrument for the security of a debt cannot be sustained. In other cases it is held that where the evidence of a party rests chiefly in the evidence of one witness, and that is disputed by a witness equally credible, a case for relief is not made out. The appellant also contends that at the time the timber was cut and the bark removed from the premises he was in the possession of the same, and for that reason this action cannot be maintained, although it be held that the plaintiffs established a good title against the defendant. The rule is well settled that replevin in the cepit only lies where trespass might have been brought. As a general rule an action for an injury to real estate can only be maintained by a party in possession or by the owner of lands which are unoccupied. (Rich v. Baker, 3 Denio, 79; Stockwell v. Phelps, 34 N. Y., 363.) The premises were not inclosed and the tract consisted of 150 acres of land. The defendant testified that in 1882, he caused a shanty to be built on the south-west corner of the lot, and that afterwards it was occupied by men whom he had engaged as choppers to remove some of the timber, and that afterwards he rented the shanty to a third person, who had some lands, near by and did at the same time some work for the defendant. It is doubtful whether this evidence would support a finding that at the time the bark was removed that the defendant was in the actual possession of the entire premises. On the former appeal this court, on evidence of the same general import, held that it was insufficient to permit the conclusion that the defendant was in the actual possession of the premises, of the entire parcel, when the bark was removed. On this trial, the attention of the jury was not called to the question nor was the court asked to submit it to the jury, and it was allowed to be passed without notice being taken of the same; and it is quite evident that both parties were conscious that the question of title to the premises was alone to be litigated, and that, in effect, the rulings of the court were limited to the question whether the deed from the defendant to Coleman was intended to be in the nature of a mortgage. Some exceptions were taken by the defendant to the rulings of FIFTH DEPARTMENT, DECEMBER TERM, 1889. the court in receiving and rejecting evidence, which have been DWIGHT and MACOMBER, JJ., concurred. Judgment and order appealed from affirmed. ALLEN W. SELLECK, RESPONDENT, v. J. LANGDON & CO., APPELLANTS. Negligence in constructing a trestle work · - when a question for the jury- the injury must be a usual consequence of the manner of construction in question. In an action brought to recover damages by an employee, who was engaged in unloading coal-cars standing on a trestle some eight feet high, it appeared that on the afternoon of the accident, and just prior, thereto, a wagon, which was being driven along a plank-roadway by the side of the trestle, struck a slanting brace and displaced the support upon which a plank rested along side of which a car was run upon the tracks; that the plaintiff alighted from the car, got on to the platform the usual way, and as he stepped upon the plank, the outer end of which had been supported by the displaced trestle, it tipped and he fell to the ground, breaking his leg. Held, that unless the damage was a usual consequence, in the ordinary course of events, from the manner in which the premises were used, an action to recover such damage could not be sustained. That if, in view of the business to be carried on at the trestle, of delivering coal from the cars into the wagons by means of the chute, near to the supports of the platform, it was to be expected that the teams and wagons used in receiving the coal would, without negligence or wrong on the part of the persons in charge FIFTH DEPARTMENT, DECEMBER TERM, 1889. of the same, come in contact with the supports, then a case was made for the decision of a jury whether the defendant was guilty of negligence in constructing the platform in the manner adopted, or in not so guarding the structure as to prevent wagons from coming in contact with it. APPEAL by the defendants from a judgment, entered upon the verdict of a jury for $6,000 in favor of the plaintiff, in the office of the clerk of the county of Erie on the 23d day of April, 1889; and also from an order denying a motion for a new trial, which was entered in said clerk's office on the 26th day of April, 1889. The action was brought to recover for damages sustained by the plaintiff in falling from a trestle-work on the premises of the defendant. The defendant was a foreign corporation dealing in coal and having a coal-yard and an office in the city of Buffalo. The plaintiff was the defendant's servant, employed as a laborer in and about the yard; and at the time he received the injuries of which he complains, he was engaged in unloading coal-cars standing on a trestle which was eight or nine feet high, constructed by the erection of bents set eight feet apart, fastened together by stringers, upon which the railroad track was laid. The coal-cars were drawn or pushed up the trestle, which was built on an incline, by a locomotive engine. The bents consisted of a ground sill, twelve by twelve, the upright posts and cap being of the same size. It is unnecessary to give any further description of the trestle. It had been erected eighteen or twenty years, and the proof tended to show that some of the timbers were decayed and punky. The plaintiff was injured in December, 1885. During the preceding summer, the defendant constructed on one side of the trestle a plank-walk, which was of the same height from the ground as the top of the caps of the bents, for the use of the men engaged in unloading coal, to walk upon in passing from one car to another, and as a rest for a portable wooden horse used as a support for the screen into which the coal in the car was shoveled and carried over the plank-walk or platform, and dumped into wagons stationed under the lower end of the screen, which served as a chute between the car and the wagon. The platform was supported by spiking a plank two by twelve and twelve feet long on each side of the cap of each bent, which extended beyond the end of the cap three feet, and by the use of another |