erly on Niagara street. The load made by the window frames was about 13 or 14 feet in length, 10 feet in width, and high enough so that the plaintiff could not see the railroad tracks behind the wagon without standing. Both vehicles were moving northerly. At a point about the middle of the block northerly from Albany street a stake wagon loaded with lumber was standing between the easterly track. and the easterly curb, the team of horses attached to which wagon were headed northerly. In order to pass this stake wagon plaintiff drove onto the easterly track and while his wagon was in the pathway of the car, the car collided with the rear of the plaintiff's wagon, he was thrown upon the pavement, his horse ran away, his feet got tangled in the reins, and he was dragged some distance.

The plaintiff's proof tended to show that he arose from his seat and looked to the south (where the view along the tracks was unobstructed for a distance of 1,000 feet) before he turned onto the easterly track, and he saw no car approaching. Some of the witnesses called by the plaintiff testified that when he turned upon the railroad track the car was approaching him rapidly some 300 or 400 feet away. Plaintiff's testimony further tended to show that his horse was passing from the railroad track when the collision occurred.

The defendant's proof tended to show that the plaintiff did not look for the approaching car, drove in front of the approaching car when it was so close to him that the motorman, although he did his best, could not stop the car in time to prevent a collision, and the motorman's affidavit, introduced by the defendant by consent, was to the effect that the plaintiff drove onto the track in the pathway of the car when the car was only 30 feet away from him.

This being the state of the case, the court in the body of the charge said:

"It is the duty of any person coming upon such a track to use reasonable care to see that it is safe for him to do so, and reasonable care is such care that a person of ordinary prudence, the everyday man who uses ordinary care for himself, would use for his own safety. He cannot go on blindly, and take the chance, and lose, and then complain successfully in a court. If he looks, he is held responsible for knowing what was within the field of vision when he looked, because there is no impairment of eyesight, no claim here but what his eyes were normal and of average strength and accuracy. Therefore it becomes important in this case to know at what point he did look, if he looked at all, and if he did not look at all he was negligent, because he is chargeable if he looked with what was in sight. What is the distance, then, within which this car would have been visible? Was there an obstacle, as shown by the evidence here, between the wagon and the approaching car? There is no evidence here that there was. Therefore, if he looked, you must find he saw the car where it was at the time he looked. Then the question should arise whether it was reasonably prudent under such conditions to attempt to approach the track, so as to be within striking distance of the car as it came on. If it was not, he would be negligent. If he is negligent, and that negligence contributed or helped bring upon him the injury, under the law in the state of New York he has no cause of action, and the defendant is entitled to a verdict as a matter of right."

The counsel for the plaintiff took an exception to the charge as follows:

"I except to that portion of your honor's charge in which you said the plaintiff was guilty of contributory negligence unless he looked. I think that is a matter of fact."

The court thereupon said:

"I leave it to the jury to say whether a person of reasonable prudence could go on a track, with notice from the tracks being there, without looking, and be free from negligence. I will leave that to the jury."

The counsel for the defendant took an exception to this ruling. [1, 2] We think the ruling of the learned trial judge was fatal to the verdict. He should have said that, before driving into the fixed pathway of the street cars (especially in the middle of the block, where the right of way of the street cars is paramount to that of other vehicles), it was the duty of the plaintiff to look for approaching cars unless the evidence was such as to show that looking would be of no avail. Knapp v. Barrett, 216 N. Y. 226, 230, 110 N. E. 428. It was not necessary that the counsel for the defendant should have gone further, and asked for a ruling on a definite request to charge upon the subject. Freund v. Paten, 10 Abb. N. C. 311, 316.

[3] It is true that the learned trial judge charged later, at the request of the counsel for the defendant, that if the jury found that the plaintiff started to turn his horse from the path of safety outside the street car track into the path of danger when the street car was approaching within 50 feet of him, the verdict must be "No cause of action." But we do not think this was any modification of the ruling complained of, as we shall now attempt to show. Assuming that the car was running at the rate of 15 miles an hour, which perhaps is less than its actual speed, it ran 22 feet in a second. The plaintiff states that his horse was going at a slow walk, say 3 miles an hour, or 6 feet a second. In such case the car would run 50 feet in about 214 seconds, and the horse would take over 8 seconds to cover that distance. The proposition of the court was that, if the plaintiff turned his horse onto the track when the car was 50 feet away (whether the plaintiff looked for the approaching car or not), he would have been negligent. Whether that was a correct exposition of the law or not, the defendant had the benefit of it and cannot complain. Still the jury might have found that the car was 60 feet away when the plaintiff turned upon the track, and in that case the court's instruction left the jury to say that, if they found that the plaintiff did not look for the approaching car, they might find as a fact, nevertheless, that he was free from negligence. Just where the court would have drawn the line is problematical. As was said in the Knapp Case:

*

容

"A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. The law does not say how often he must look, or precisely how far, or when, or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that, because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him, and whether he is negligent in going forward will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault. * * But it is a very different thing to say that he is not bound to look at all."

It must be remembered that the court was dealing with the situation where the rights of the plaintiff, a pedestrian, and those of the owner of the wagon, were equal, while in the case under consideration the

car had the paramount right of way. Certainly if the plaintiff started to drive onto the track when the car was 60 feet away, it could not be said that his looking would have been of no avail, and therefore the court would have been compelled to charge that, if he failed to look. for the approaching car, he would have been guilty of negligence as a matter of law.

We think that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(96 Misc. Rep. 42)

In re NEWPORT AVE. IN CITY OF NEW YORK.

(Supreme Court, Special Term, Kings County. June, 1916.)

COSTS 91-PERSONS ENTITLED-JOINT DEFENDANTS "WITH COSTS." Under Code Civ. Proc. § 3240, providing that costs in a special proceeding may be awarded to any party in the discretion of the court, in a condemnation proceeding opposed by six respondents, the only issue being the right of the city to condemnation, where the Court of Appeals affirmed an order dismissing the city's petition for the appointment of commissioners, "with costs," the provision "with costs" means that but one bill of costs was to be allowed.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 356-368; Dec. Dig. 91.

For other definitions, see Words and Phrases, First and Second Series, With Costs.]

In the matter of the application of the City of New York, relative to acquiring title, etc., to Newport Avenue, etc. On motion for a review of the taxation of costs. Motion to retax costs granted.

Lamar Hardy, Corp. Counsel, of New York City (Joel J. Squier and John J. Kearney, both of New York City, of counsel), for motion. Lynn C. Norris, of Brooklyn, for Neponsit Realty Co. and Neponsit Building Co.

H. Gordon Pierce, of Rochester, for West Rockaway Land Co. Joseph F. Keany, of New York City, for Ocean Electric Ry. Co. Charles T. Russell, of New York City, for New York & N. J. Telephone Co.

Lord, Day & Lord, of New York City, for Queens County Water Co.

Davison & Underhill, of Brooklyn, for Queens Borough Gas & Electric Co.

CROPSEY, J. The city moves for a review of the taxation of costs. as made by the county clerk of Queens county. The question is whether each of the six respondents was entitled to tax a separate bill of costs upon the decision of the Court of Appeals. The proceeding was the usual one brought by the city to acquire title for the opening of certain streets. It was opposed by all of the respondents, who contended that the petition of the city for the appointment of commissioners should be dismissed. Upon the hearing at Special Term the court did dismiss the petition, and this action was affirmed by the

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

Appellate Division and by the Court of Appeals; the latter decision affirming the order of the Appellate Division "with costs." There was no direction by that court that each respondent was entitled to a full bill of costs. The county clerk, over the protest of the corporation counsel, taxed a full bill of costs for each of the respondents. It seems to be conceded by all of the respondents that, if this were an action at law and the Court of Appeals had affirmed the judgment of the lower court, "with costs," only one bill of costs could have been taxed. Smyth v. City of N. Y., 203 N. Y. 584, 96 N. E. 1130. See also Fischer v. Langbein, 31 Hun, 272. It also seems to be conceded that, had the action been one in equity and a similar decision made, but one bill of costs could have been taxed. Van Gelder v. Van Gelder, 84 N. Y. 658. But it is contended that in a condemnation proceeding the same effect should not be given to a similar decision of the Court of Appeals. Just why that should be so may not be clear. The question arising, as this does, is not what costs might, or even should, have been allowed. The sole question is what costs actually were allowed. Costs in a special proceeding "may be awarded to any party, in the discretion of the court" (section 3240, Civil Code), so whether any costs would be allowed in this proceeding upon the affirmance by the Court of Appeals was discretionary with that court. It could have affirmed the order, without costs, or could have granted costs to one or more of the parties. What it did do was to affirm the order, "with costs." Such a provision, the Court of Appeals itself seems to have said, means that but one bill of costs was allowed. Van Gelder v. Van Gelder, 84 N. Y. 658; Smyth v. City of N. Y., 203 N. Y. 584, 96 N. E. 1130.

It is urged, however, that such a meaning should not be given where the proceeding is one for the condemnation of property, because in such proceedings there is no identity of respondents' interests; their interests being separate. Even if this were so, while it might be a sufficient reason why the court, having the power to award costs, might grant them to each respondent, it would seem to be no reason for construing the decision of a court, which affirmed an order "with costs," to read "with costs to each respondent." Especially would this seem to be so when we find, as we do, the Court of Appeals in a number of cases specifically awarding costs to "each of the appellants filing a separate brief," "to each defendant appearing separately in this court and filing brief," "to all parties appearing in this court and filing briefs," "to each of the appellants," thus showing that, when they intend more than one bill of costs to be allowed, they say so. Matter of Grade Crossing Com'rs of Buffalo, 207 N. Y. 52, 100 N. E. 714, Ann. Cas. 1914C, 271; Warth v. Moore Blind Stitcher Co., et al., 207 N. Y. 673, 100 N. E. 1135; Emmet et al. v. Runyon et al., 208 N. Y. 626, 102 N. E. 1102; Rasquin et al. v. Hamersley et al., 208 N. Y. 630, 102 N. E. 1112; Bloodgood v. Lewis, 209 N. Y. 95, 102 N. E. 610; Matter of Grade Crossing Com'rs of Buffalo, 209 N. Y. 139, 102 N. E. 552. It will be noticed that some of these cases were proceedings similar to the present one.

But the main question seems to have been decided adversely to these

views, and the decision, having been affirmed by the Appellate Division, is of course controlling here. Matter of City of N. Y., 62 Misc. Rep. 61, 114 N. Y. Supp. 681, affirmed 129 App. Div. 929, 114 N. Y. Supp. 681. So, if this proceeding comes within the provisions of that decision, the clerk's allowance of the separate bills of costs was correct. But does it come within the authority cited?

In the opinion in question (62 Misc. Rep. 63, 114 N. Y. Supp. 681) it was said that the decisions which held that but one bill of costs could be taxed upon an affirmance "with costs" did not apply to the condemnation proceeding in question, because the interests of each property owner were separate, "and a distinct question arises between the party seeking condemnation and the owners of each separate parcel." That evidently was the basis of the decision, although the opinion, on page 64 of 62 Misc. Rep., on page 682 of 114 N. Y. Supp., seems to indicate that the justice construing the view of the taxation of costs thought that costs should have been allowed to each respondent. The question, however, as has been stated, is not, and in the cases cited was not, what costs should have been allowed, but merely what costs were in fact awarded. In the case cited, the decision in New York, West Shore & Buffalo R. Co., 28 Hun, 505, was held not to be controlling. That was a condemnation proceeding in which the owner and tenant of the property appeared and disputed the right of the city to maintain the proceeding. In the Court of Appeals the owner and tenant were successful, and the proceeding was dismissed, "with costs." The question then arose whether the owner and the tenant were each entitled to a bill of costs. The General Term held that they were not; that the affirmance by the Court of Appeals, "with costs," meant one bill of costs.

That case is distinguished in Matter of City of N. Y., 62 Misc. Rep. at page 64, 114 N. Y. Supp. 681, on the ground that the interests of the owner and the tenant were "identical." If that was a sufficient ground for failing to follow the General Term decision, then surely the decision in Matter of City of New York cannot be followed here, for concededly the interests of all the respondents were "identical" in the only issue raised or litigated in this proceeding. The only question was the right of the city to condemnation. This right each of the respondents challenged, and from the inception of the proceeding the respondents were successful; the Special Term, Appellate Division, and finally the Court of Appeals all deciding in their favor. There never was any question raised of the value of the property so to be taken, nor was there any conflict of interest among the respondents. As the case of N. Y., West Shore, etc., R. R., 28 Hun, 505, was not overruled by Matter of City of New York, 129 App. Div. 929, 114 N. Y. Supp. 681, but was merely distinguished in the only opinion written in that case (62 Misc. Rep. 61, 114 N. Y. Supp. 681), and as this question clearly comes within the decision in the former case, and not within that in the latter, the former authority must be held to be_controlling.

The motion to retax the costs must be granted, and the clerk is directed to retax them by allowing only one bill of costs. Settle order on notice.