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property, with their contents, were destroyed. The value of the property was conceded, so the jury was not troubled with the question of damages, but the questions of defendant's negligence, the contributory negligence of plaintiff Snook, and the question of whether or not defendant's negligence, if any, was the proximate cause of this conflagration, were submitted to the jury, and on all the propositions the jury found for the plaintiffs, and they recovered a verdict for the damages, the value of the property as stipulated; the plaintiffs being the owner of the property destroyed and several insurance companies who had paid losses under their policies held by Snook at the time of the fire, and they being subrogated to the amounts paid.

Defendant moved for a new trial on the minutes, alleging that its negligence was not established, and that, even if it was, its negligence was not the proximate cause of the fire. Moreover, defendant urged that, even though it was negligent, and its negligence was the proximate cause of setting fire to the lime shed, the damages should be limited to those resulting from the destruction of that building, and could not, under any circumstances, be extended to the damages resulting from the destruction of the other buildings and contents.

As to the question of the contributory negligence of the plaintiff Snook, it was clearly a question of fact for the jury, and the finding on that question is supported by sufficient evidence.

[1] As to the proposition urged by the learned counsel for defendant, that even though it was negligent, and its negligence was the proximate cause of the fire, the damages should be limited to those occasioned by the destruction of the first building, I do not think such a conclusion would be justifiable under the evidence in this case. The buildings of plaintiff Snook were on one parcel of land adjoining the railroad right of way, and if the evidence was sufficient to justify the finding that defendant was negligent in not keeping its ditch and culvert in proper condition, and that such negligence was the natural, direct, and proximate cause of the fire which resulted in the destruction of Mr. Snook's property, then defendant would be liable for all the damages which were the direct, natural, and proximate result of its negligence, and they would not be limited to damages resulting from the destruction of the first building. Jamieson v. N. Y. & R. B. R. Co., 11 App. Div. 50, 42 N. Y. Supp. 915; Jacobs v. N. Y. C. & H. R. R. Co., 107 App. Div. 134, 94 N. Y. Supp. 954; Id., 186 N. Y. 586, 79 N. E. 1108; Branson v. N. Y. C. & H. R. R. Co., 111 App. Div. 737, 97 X. Y. Supp. 788; Hinds v. Barton, 25 N. Y. 544; Collins v. N. Y. C. & H. R. R. Co., 132 N. Y. 603, 30 N. E. 1152; People v. N. Y. C. & H. R. R. Co., 155 App. Div. 699, 140 N. Y. Supp. 902; 13 Am. & Eng. Enc. of Law (20 Ed.) page 452.

[2, 3] There was evidence which would justify the finding that the culvert in question was structurally defective, but it was not shown that it had not been sufficient for all ordinary purposes; that is, it was shown that it had always been a sufficient culvert to convey to the north side of defendant's tracks all the waters which had been collected in its ditch under ordinary conditions. In fact, as I recall the evidence, it nowhere appeared that the culvert had ever failed to convey to the

north side of the track all waters which had been collected in defendant's ditch, whether these waters came from defendant's right of way or from lands of adjoining owners, and there was no proof that defendant had previous knowledge or notice of any defect in the culvert.

At the time Mr. Snook's buildings were destroyed, conditions were unusual and exceptional. A heavy rainfall had occurred, the heaviest storm of its kind that had been known in this vicinity in upwards of 40 years, the rain was heavy and continuous for many hours, and this culvert, which had been sufficient under ordinary conditions to convey to the north side of defendant's tracks all waters which had been collected in its ditch, proved inadequate to take care of the tremendous volume of water which resulted from this unusual rainfall. Primarily defendant owed no duty to the plaintiff Snook, or any other adjoining owner, with reference to the surface waters from their lands. Sabetto v. N. Y. C. & H. R. R. Co., 127 App. Div. 832, 112 N. Y. Supp. 118. It having constructed a ditch along its right of way, if it actively collected these surface waters, it was obliged to exercise ordinary care to see to it that this ditch and culvert were kept in proper condition, so that waters it had collected would not be dammed up and set back on lands of adjoining owners to their damage. It was not obliged to exercise active vigilance in this regard, and it was not the insurer of the safety of the property of adjoining owners. Its duty was simply that of ordinary care and to guard against accidents which might reasonably be expected or anticipated.

Now, was this fire, which undoubtedly resulted from water coming in contact with lime stored in Mr. Snook's lime shed, an injury of such a nature that a reasonably prudent man would expect or anticipate it? I think not. If there had ever been any prior difficulty with this culvert, which had been brought to the knowledge of defendant, or its employés, it would present a very different situation; but here, where the culvert in question had always been sufficient to convey the waters collected in defendant's ditch to the north side of its tracks under ordinary conditions, to hold that the injury resulted from this choking up of the culvert when the rainfall was exceptional and unusual was something that might have been expected or anticipated would be holding the defendant responsible as an insurer of the property of adjoining owners, and I do not understand that that is the rule or the law. In Lowery v. Western Union Telegraph Co., 60 N. Y. 198, 19 Am. Rep. 154, the court said:

"The law does not undertake to hold a person who is chargeable with a breach of duty toward another with all the possible consequences of his wrong. ful act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of."

And again, in Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 L. R. A. 672, 73 Am. St. Rep. 715, the court said:

“The damage must be the proximate result of the negligent act It mnst be such as the ordinary mind would reasonably expect as a probable result of the act; otherwise, no liability exists."

In view of the fact that the culvert in question, the negligent maintenance of which, on the part of defendant, plaintiffs allege was the

cause of the fire in question, had always been sufficient to take care of the surface waters collected by defendant in its ditch, and that there had never previously been any difficulty, but that the waters which were set back on plaintiffs' lands at the time of this fire resulted from a sudden, unexpected, and very unusual rainfall, I do not think it can be said under all the evidence in this case that a reasonably prudent man would have expected or anticipated the fire and damages in question; that is, the injury suffered by plaintiff Snook could not have been anticipated or expected by reasonably prudent men, and the finding of the jury that defendant was negligent under the circumstances, and that its negligence was the proximate cause of this fire, without which it would not have occurred, was contrary to and against the weight of the evidence. It was in the highest degree speculative for the jury to say, in view of the tremendous volume of water which fell at that time as the result of that storm, that waters actively collected by defendant in its ditch were the direct and proximate cause of this fire.

It impresses me that if defendant was negligent, and its negligence was the proximate cause of plaintiff's misfortune, defendant would be responsible for all the damages which resulted directly from its negligence; but, under all the evidence in this case, the finding that defendant was negligent and that the damages complained of were the direct and proximate result of such negligence, without which they would not have occurred, was not justified by the evidence. To hold defendant responsible for the result of this unusual, unexpected, and unprecedented rainfall would be to make it the insurer of the safety of property of adjoining landowners. That obligation defendant did not assume, and could not, under the law, be made to assume.

The motion for a new trial must be granted, with costs to abide the event.

PEOPLE ex rel. SPANG v. CAREY, Special Deputy Excise Com'r, et al.

(No. 68/155.) (Supreme Court, Appellate Division, Fourth Department. March 10, 1915.) 1. INTOXICATING LIQUORS CW103-LIQUOR TAX CERTIFICATE-TRANSFER OF TI.

TLE-CONSTRUCTION OF AGREEJENT.

Where an agreement between a liquor dealer and a brewing company was clearly not an assignment of the dealer's liquor tax certificate as collateral security," within •Liquor Tax Law (Consol. Laws, c. 34) § 12a, as added by Laws 1912, c. 263, or a sale of the certificate, within section 26, and its purpose was to leave the title in the dealer, but to give the brewing company all the surrender, abandonment, transfer, and renewal rights, it did not vest the brewing company with title to the certificate.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. 88

108-112; Dec. Dig. Omw 103.) 2. INTOXICATING LIQUORS (ww103-LIQUOR Tax CERTIFICATE-ASSIGNMENT

VALIDITY.

An attempted assignment of a liquor tax certificate prior to its issuance is ineffective.

[Ed. Note.--For other cases, see Intoxicating Liquors, Cent. Dig. 88

108-112; Dec. Dig. 103.) Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. INTOXICATING LIQUORS Cw103—LIQUOR Tax CERTIFICATE-TRANSFERS

VALIDITY.

An attempted transfer of a liquor tax certificate is ineffective, unless the certificate is presented to the deputy commissioner of excise and his consent to the transfer is indorsed thereon, as provided by Liquor Tar Law, & 26.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. $

108-112; Dec. Dig. m103.) 4. INTOXICATING LIQUORS m103-LIQUOR Tax CERTIFICATE-ABANDONNENT

AND TRANSFER-NOTICE-CONSENT OF ASSIGNEE.

Where an alleged assignment of a liquor tax certificate to a brewing company did not purport to assign the certificate as collateral security, it was not necessary that the brewing company's consent accompany the notice of abandonment and petition for transfer subsequently filed by the liquor dealer under Liquor Tax Law (Consol. Laws, c. 34) $ 8, subd. 9, as added by Laws 1910, c. 494.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. 8

108–112; Dec. Dig. Om 103.)
5. INTOXICATING LIQUORS 103LIQUOR Tax CERTIFICATE-TRANSFER.

On an order of the deputy commissioner of excise permitting a liquor dealer to abandon the premises for which a liquor tax certificate was issued and to transfer the certificate to other premises and to an assignee. pursuant to Liquor Tax Law, $$ 25, 26, was proper, regardless of contentions made relative to equitable or contract rights in the certificate, not affecting the legal title; the determination of such controversy not being within the deputy commissioner's jurisdiction.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. fi 108–112; Dec. Dig. Om 103.)

Appeal from Special Term, Monroe County. Certiorari by the People, on the relation of Peter Spang against William J. Carey, Special Deputy Commissioner of Excise for the County of Monroe, and another. From an order directing the defendant named to issue a liquor tax certificate to relator, defendants appeal. Reversed, and writ of certiorari dismissed.

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

A. M. Sperry, of Albany (Louis M. King, of Schenectady, of counsel), for appellants.

Thomas H. Ward, of Syracuse (Jos. P. Hogan, of Rochester, of counsel), for respondent.

PER CURIAM. [1] The agreement of September 11, 1913, did not vest in the brewing company title to the liquor tax certificate thereafter on September 17th issued to Schiano. It was not an assignment of the certificate "as collateral security for moneys loaned or any other obligation incurred,” within section 12a of the Liquor Tax Law; nor was it a sale of the certificate within section 26. Its intent and purpose seems to have been to leave the title in Schiano, but to give the brewing company all the surrender, abandonment, transfer, and renewal rights.

[2] If intended as an assignment, it did not pass title, as the certificate was not then in existence. Anchor Brewing Co. v. Burns, 32 App. Div. 272, 52 N. Y. Supp. 1005; Rochester Distilling Co. v. Rasey,

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

142 N. Y. 570, 37 N. E. 632, 40 Am. St. Rep. 635. The agreement of September 16, 1914, executed by the brewing company in the name of Schiano, by virtue of the power of attorney contained in the prior agreement, is in the same form, and for the same reasons did not vest in the brewing company title to the new liquor tax certificate issued to Schiano on his application September 15, 1914, for the ensuing year.

[3] The certificate was then in existence, but the instrument did not transfer the title. If it can be construed as intending to pass the title, that intent could be effectuated only by presenting the certificate to the deputy commissioner of excise and having his consent to the transfer indorsed thereon, as provided in section 26 of the Liquor Tax Law.

[4] As this agreement did not purport to assign the certificate as collateral security, no consent of the brewing company was necessary to accompany the notice of abandonment and petition to transfer filed by Schiano on October 1, 1914, under subdivision 9 of section 8 of the act.

[5] The deputy commissioner of excise having no authority or jurisdiction to determine cquitable or contract rights in reference to the certificate not affecting the legal title, we think he properly allowed Schiano to abandon the premises for which said certificate was issued and to transfer the certificate to other premises and to the assignee, Martono, pursuant to sections 25 and 26 of the act. Traffic in liquors having thus been abandoned at said premises, the deputy commissioner of excise was prohibited by the express terms of subdivision 9 of section 8 of the statute from issuing to relator another certificate for the same premises, and hence he was right in refusing to grant relator's application.

The order appealed from is reversed, and the writ of certiorari dismissed, with costs.

Order entered nunc pro tunc as of the date of argument and submission of the appeal, viz., January 22, 1915. Motion to substitute executors in place of relator, deceased, denied, without prejudice to an application for substitution in the court below, if so advised.

(89 Misc. Rep. 538)

BROWN V. JONES et al.

(Supreme Court, Trial Term, Saratoga County. March, 1915.) 1. Usury Omw 12–ELEMENTS-KNOWLEDGE OF LENDER.

Usury can be predicated only of a contract whereby one party agrees to pay, and the other agrees to take, an unlawful premium upon a loan, and not where the lender was ignorant of the usurious agreement.

[Ed. Note.-For other cases, see Usury, Cent. Dig. 88 23, 24, 146; Dec.

Dig. Om 12.] 2. USURY 117-DEGREE OF PROOF.

Usury involves crime and forfeiture, and must be strictly proved by the party alleging it. [Ed. Note.-For other cases, see Usury, Cent. Dig. 88 328–340; Dec. Dig.

117.) OwFor other cases see same topic & KEY-NUMBER in all Key-Numiered Digests & Indexes

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