Section 40 provides that:

"If any judgment or determination made by the Court of Special Sessions shall be adverse to the defendant he may appeal therefrom in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon an appeal in like manner; and if the judgment of the Supreme Court upon such an appeal shall be adverse to the defendant, he may appeal therefrom to the Court of Appeals."

Therefore an appeal from the Children's Court (a part of the Court of Special Sessions) must be taken to this court, unless there is force in the contention of the respondents that, because at the time of the commitment the justice of the Court of Special Sessions was sitting in the case in his capacity as a City Magistrate, an appeal from his determination must be taken to the County Court. It is quite true that section 30 provides that all justices of the Court of Special Sessions are magistrates, and have and may exercise all the jurisdiction and powers, not inconsistent with the act, which are conferred by law upon magistrates. But section 38 provides that one of said justices in attendance on a Children's Court shall possess and exercise, as to all matters arising in the court, all the powers and jurisdiction of the Court of Special Sessions, unless objection shall be interposed before the time of pleading, in which event the trial must be adjourned to a future day, when it shall be had before three justices. It then continues:

"Any order, determination or judgment of one of said justices when sitting alone, pursuant to the foregoing provisions, or any two of said justices when three are sitting, shall be the order, determination or judgment of the Court of Special Sessions."

This seems to be conclusive against the argument of the respond ents. Since the determination of the justice sitting in the Children's Court became the determination of the Court of Special Sessions, and since under section 40 an appeal from such determination must be taken to this court, the County Court was without jurisdiction to entertain it, and its judgment must be reversed. The opinion in the case of People v. O'Neill, 117 App. Div. 826, 102 N. Y. Supp. 988, is no longer controlling, because it was based upon considerations arising from the language of the statutes then in existence, and which have either since been repealed or have had no application since the passage of the Inferior Criminal Courts Act. The amendment to the act made by chapter 691, Laws of 1913, by which a new section (39a) was added thereto in relation to the examination and commitment of mentally defective and feeble-minded children, puts such new provision in its proper place before the section regulating appeals, and leaves the whole policy of administration of the law regarding the Children's Court harmonious to date in providing for appeals from all its determinations, as well as from all judgments of the Special Sessions Court whereof it is a part, directly to this court.

The order appealed from will therefore be reversed, upon the ground that the County Court was without jurisdiction to make the same, but without passing upon the merits of the original judgment of commitment, which is not now before us; no appeal having been taken to this court by the defendant. All concur.

PEOPLE ex rel. NEW YORK, O. & W. RY. CO. v. STATE BOARD OF TAX COM'RS. (No. 48/20.)

(Supreme Court, Appellate Division, Fourth Department. March 3, 1915.) 1. TAXATION 376-TANGIBLE PROPERTY OF RAILROAD COMPANY-OVERHEAD BRIDGES-SPECIAL FRANCHISE.

Where public highways passed over relator railroad on overhead bridges, in the absence of evidence the presumption was that under section 93 of the Railroad Law (Consol. Laws, c. 49) the railroad is under duty to repair the framework and abutments of such bridges, so that prima facie they were tangible property for the purpose of determining the value of the special franchises, though its interest in them arises from its obligation to repair and replace them, even though not strictly part of its real property, as by resting on its land.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 625, 629–631; Dec. Dig. 376.]

2. TAXATION -376-TANGIBLE PROPERTY OF RAILROAD CompanY-HIGHWAY

SUBWAY-SPECIAL FRANCHISE

Where a highway passed at right angles beneath a railroad occupying part of another public highway, such part of the subway as was immediately beneath the tracks of the railroad, supporting them, was tangible property, to be included in valuing the special franchise; the railroad company being required, by Railroad Law, § 93, to keep the same in repair.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 625, 629-631; Dec. Dig. 376.]

Appeal from Special Term, Oswego County.

Action by the People, on the relation of the New York, Ontario & Western Railway Company, against the State Board of Tax Commissioners. From a final order entered, incorporating findings of a referee only in part, relator appeals. Modified and affirmed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

C. L. Andrus, of Stamford, for appellant.

Edwin J. Mizen, of Oswego, for respondent.

FOOTE, J. Relator was assessed for the taxable value of its special franchise in the city of Oswego for the year 1909 at $73,900, after a hearing upon relator's objections to the same as being erroneous and excessive. Relator sued out a writ of certiorari to review the same, and the issues raised by respondent's return to the writ were sent to a referee to hear and determine. Included in said assessment as the value of the tangible property of the relator were two bridges over relator's railroad at Albany street and Mexico road, by means of which these streets are carried over relator's railroad; also the cost to relator of a subway constructed in 1908, by order of the board of railroad commissioners made in 1905, under Schuyler street, aiong which relator's railroad runs, whereby East Seventh street, which previously ended with its junction with Schuyler street, was carried under Schuyler street and into the grounds of the United States military reservation For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

1

known as Ft. Ontario, on the opposite side and adjoining Schuyler street. The cost of this subway was upwards of $40,000, including the approaches, and of the part under Schuyler street $19,779.54. Of the total expense of the subway, the state paid 25 per cent., the city of Oswego 25 per cent., relator 42.5 per cent., and the New York Central & Hudson River Railroad Company, 7.5 per cent.; the latter company having a single track running along Schuyler street parallel to relator's two tracks. The total cost of the subway to relator for its share was $17,317.01.

The referee found and decided that no part of this subway construction under Schuyler street was a part of relator's tangible property in Schuyler street, and that said two highway bridges at Albany street and Mexico road were not tangible property of relator in those streets, and reduced the assessment accordingly. Relator moved at Special Term to confirm the referee's report, where an order was made modifying the referee's decision by adjudging that the two bridges were assessable as tangible property of relator, as well as that portion of the subway under Schuyler street and within the confines thereof, to the extent of the cost to relator of that part of the subway, to wit, $8,406. Otherwise, the report of the referee was confirmed. The appellant now challenges the correctness of these modifications to the referee's decision, and contends that neither the highway bridges nor any part of the subway are owned by relator, and that relator has no such interest therein as its tangible property in, over, or under said streets used in connection with special franchises therein.

[1] As to the highway bridges, it does not appear when they were built or who built them. They have been in use for some 20 years. In the absence of evidence to the contrary, we must assume that under section 93 of the Railroad Law relator is required to maintain and keep in repair the framework and abutments of these bridges. If the abutments rest upon relator's land, then they are part of its real prop

If not, relator still has an interest therein, arising from its obligation to maintain, repair, or replace the bridges and abutments in case of their destruction. The presumption of law is that the assessment was properly made. This presumption must prevail, until relator makes it to appear affirmatively that it does not own the bridges or have any tangible property therein. People ex rel. Jamaica Water Supply Co. v. State Board of Tax Com'rs, 196 N. Y. 39, 89 N. E. 581; People ex rel. Niagara Falls Hydraulic Power & Mfg. Co. v. State Board of Tax Com'rs, 202 N. Y. 426, 95 N. E. 754.

[2] As to the East Seventh street subway under Schuyler street, relator contends that, as this subway was built long after it received its franchise to operate its railroad along Schuyler street, it is not taxable therefor, because, in effect, the subway carried East Seventh street across Schuyler street and made a new crossing of relator's railroad, which did not exist before, and that hence the case is the same, in principle, as that in People v. Woodbury, 203 N. Y. 167, 96 N. E. 431, where it is held that, when a new street is carried across an existing railroad, no special franchise is thereby created which is taxable. It is said in that case:

"The object of the Special Franchise Tax Act is to tax railroad corporations for privileges granted them in the streets which they occupy on their lines of railway, and if, after they have their rights of way secured over private land, a public highway is laid across the tracks, while there is a crossing, it is not a crossing made by the railroad or through public favor, so far as the railroad is concerned."

We think the principle so enunciated does not apply here. Relator's railroad runs lengthwise in Schuyler street; hence it has a special franchise in that street. In connection with such special franchise, all its tangible property in, over, or under that street is taxable by the express terms of the act. If it adds new property to its railroad in, over, or under the street, the value of its tangible property is thereby increased. The question, therefore, is: Is this subway construction, or any part of it, tangible property of relator within the intent and meaning of the act?

It appears that Schuyler street is 100 feet in width. Adjoining Schuyler street on the north is the military reservation owned by the United States government, and opposite East Seventh street and for a considerable distance, east and west, there are no buildings upon the government property. Both relator's two railroad tracks and the single track of the New York Central & Hudson River Railroad Company lie on the north side of the roadway of Schuyler street immediately adjoining the government grounds, leaving south of all these tracks a considerable part of Schuyler street in width free from tracks used as a public street. While the expense of this subway was paid in part by the state, in part by the city, and in part by the railroads, we think that part of the subway consisting of its approach in East Seventh street and under that part of Schuyler street used as a street and not occupied by the railroad tracks belongs to the city of Oswego, or the adjoining owners of private property, and that relator has no interest therein, and that it has no obligation to maintain or repair the same; but as to that part of the subway immediately below the tracks of relator's railroad we think the abutments and the girders which support relator's railroad are its property, which, under section 93 of the Railroad Law, it is required to maintain and keep in repair, while, by the same section, the city of Oswego is required to maintain and keep in repair and is given jurisdiction over the approaches. It appears from the evidence and is found by the referee that the expense of constructing that part of the subway which is immediately under the tracks and railroad of relator was $6,151.06. This sum, we think, represents the tangible value of relator's interest in this subway, to be assessed in connection with its special franchise at that point.

The order appealed from should be modified, so as to reduce the tangible value of relator's interest in this subway from the sum of $8,406, stated in the order of the Special Term, to the sum of $6,151.06, and, as so modified, affirmed, without costs of this appeal to either party. All concur.

DOBLER v. CONRON BROS. CO. (No. 6895.)

(Supreme Court, Appellate Division, First Department. March 19, 1915.) 1. PLEADING 127-INJURY TO SERVANT-ANSWER-ADMISSIONS.

An allegation in an answer, in an action for injuries to an employé, that the accident was caused by the negligence of the employé or by the negligence of a fellow servant "in the service" of the employer "with" the plaintiff, is an admission of the employment.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 264-268; Dec. Dig.127.]

2. MASTER AND SERVANT 277-INJURY TO SERVANT-EXISTENCE OF RELATION EVIDENCE.

Evidence held to sustain a finding that an employé, suing for a personal injury, was in the employ of defendant.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. 277.]

3. Master and Servant 296-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.

In an action for injuries to an employé by a fall into an elevator shaft, instructions that the employé could not recover, unless the accident happened as testified to by him, and which stated the law of contributory negligence, and in so doing alluded to the question of light by saying, "Was the light sufficient to enable the plaintiff, in the exercise of reasonable care, to see that the elevator had moved and that the gates were open, if such was the case?" and that to hold the employer guilty of negligence it was necessary to find that it neglected to do some act which in the exercise of reasonable care it should have done, submitted the question of light as bearing only on the employé's guilt of contributory negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. 296.]

4. MASTER AND SERVANT 289-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.

An employé moved a freight elevator so as to enter it. From the time he brought the elevator to the floor until he stepped into the shaft, thinking the elevator was still there, only about ten seconds elapsed. The gates rose and closed automatically as the elevator ascended or descended. When he stepped into the shaft he could not see whether the elevator was there. After the accident, the elevator was found at the top floor, but it was not shown who pulled the cable to send it there. Held, that the employé was not, as a matter of law, guilty of contributory negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. 289.]

5. MASTER AND SERVANT 141-INJURY TO SERVANT-NEGLIGENCE.

Failure of an employer to make any rule as to the use of an elevator, so that it was left with his knowledge and acquiescence to be used in a dangerous manner, justified a finding of actionable negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. ~141.]

6. APPEAL AND ERROR

930-VERDICT-INSTRUCTIONS-PRESUMPTIONS.

It must be presumed that the jury followed the instructions.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 37553761; Dec. Dig. 930.]

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