No question is raised in this proceeding as to the surrogate's term of office. But the Constitution (article 10, § 1) provides that: "Sheriffs, clerks of counties, district attorneys and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen, except in the counties of New York and Kings, and in counties whose boundaries are the same as those of a city, where such officers shall be chosen by the electors once in every two or four years as the Legislature shall direct." Unless Bronx county comes within one of the exceptions specified in the Constitution, it is obvious that the tenure of office of the officials in question followed the general rule laid down therein, and was limited to 3 years, and the board of elections were therefore correct in taking steps to enable the electors to vote for their successors at the coming general election. It is contended that, although Bronx county had no existence at the time of the adoption of the new Constitution and its future existence. could not have been in the minds of those who framed it, still, as the territory embraced in the present Bronx county formed a part of the then existent county of New York, it is included within the exception, and the Legislature had power to fix the terms of office of the county officials in question at either two or four years. So to hold would be a distortion and extension of the plain language of the Constitution, which would, in effect, be judicial legislation. No particular rights were conferred upon territory embraced in the excepted counties of New York and Kings. The only effect of the provision was to empower the Legislature to fix terms of office for the county officials in question in those counties which would bring about their election in those years when the city election in the city of New York was to take place, for these county officials performed acts which were intimately connected with the general administration of city affairs. But this practice was not followed for the whole city, for the counties of Richmond and Queens, which also form a part of the city, still elect their county officials for three-year terms and are not claimed to be within the exception. So that Bronx county will not be the only county embraced in the city limits whose county officials are elected for a 3-year term, but with Richmond and Queens will constitute a majority of the counties embraced within the city limits which follow that rule. The argument as to the advisability of having such elections at the same time as the city elections is one that may appeal to the lawmaking power, but is without force when addressed to those who are enforcing the law as it stands. As instancing the anomalous situation in which the Bronx County Act placed the county officials, it may be pointed out that the act made the term of the surrogate of Bronx county 6 years, although, if the arguments of the relator herein are sound, the surrogate, being elected in territory which, was a part originally of the county of New York, would be entitled to a 14-year term of office under the provisions of article 6, § 15, heretofore quoted. The conclusion seems to be justified that the exemption of the counties of New York and Kings was and is intended solely for the political divisions of the state bearing that title, and cannot be extended so as to carry the exemption to portions of the territory originally embraced in such counties and thereafter transferred to other counties or created into new counties. Nor does Bronx county come within the second exception, for its boundaries are not the same as those of the City of New York. It follows, therefore, that under the Constitution the county officials of Bronx county in question were elected for terms which could not exceed 3 years, and the board of elections properly prepared the necessary facilities for the election of their successors at the coming general election. The order appealed from will therefore be reversed, and the motion for a peremptory writ of mandamus in all respects denied, with costs. to the appellants against the respondent. Order reversed, with $10 costs and disbursements, and motion denied. All concur, except SCOTT, J. (dissenting). The sole question involved in this appeal is whether or not the territory now embraced within the county of Bronx and formerly embraced in the county of New York is exempted from the general provisions of article 10, § 1, of the state Constitution, which prescribes that: "Sheriffs, clerks of counties, district attorneys and registers in counties, having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen." The exception is applied to "the counties of New York and Kings, and in counties whose boundaries are the same as those of a city," in which it is provided that "such county officers shall be chosen by the electors once in every two or four years as the Legislature shall direct." When this constitutional provision was enacted (1894) the county of New York, as then established, comprised all, or very nearly all, of the territory now embraced in the county of Bronx, which was set apart from the county of New York and erected into a new county by chapter 548, Laws of 1912. The question, as it seems to me, is as to what the exception in the section of the Constitution above quoted was intended to apply to, whether it was intended to apply to the territory which in 1894 was designated by the term "county of New York," or merely to such territory as might at any time thereafter be known as the county of New York. If the latter view is the correct one, the Legislature might, at any time, have defeated the intent of the Constitution by changing the name of the county of New York, even as it stood in 1894. Obviously the exception was inserted in the section because of the conditions which prevailed in the counties of New York and Kings, and not merely because of the names which those counties then bore. Those conditions applied in 1894, and still apply to the territory comprised within those counties, and it seems to me to be reasonably clear that it was the view of the framers of the Constitution of 1894 that a different rule as to the tenure of county officers should apply in the thickly populated, urban territory then comprised in the counties of New York and Kings, from that which applied in other parts of the state. The framers of the Constitution were dealing with conditions as they existed when the Constitution was made, and no construction should be given to that document which would defeat its apparent purpose, if any other construction is permissible. I think that it was the intention of the Constitution that as to the territory then known as the counties of New York and Kings the county officers enumerated in article 10, § 1, should thereafter be elected for 2 or 4 years, and not, as in other parts of the state, for 3 years, and that the Legislature could not, if it would, have defeated that intention by changing the names of the excepted counties, or by subdividing them and erecting new counties out of parts of them. That this is the view taken by the Legislature is made apparent by section 3 of the Bronx County Act. I therefore think that the order appealed from was right, and should be affirmed. (Supreme Court, Appellate Division, Second Department. October 6, 1916.) INSANE PERSONS 39COMMITTEE. Where a widow, with her brother's concurrence, petitioned for the appointment of a certain person as a substitute committee of the person and estate of their sister, an incompetent, and where the proposed committee had acted as legal adviser of the former committee, and might be exposed to the embarrassment of representing conflicting interests on an accounting by the former committee's estate, the appointment of a stranger was not an abuse of the court's discretion, though ordinarily the committee of an incompetent is one of the kin or family, or one upon whom they agree, and not a stranger not proposed by any relative. [Ed. Note.-For other cases, see Insane Persons, Dec. Dig. 39.] Appeal from Special Term, Kings County. Application by Mary G. Quinby and John M. Sneden, for the appointment of a committee of the person and estate of Julia T. Sneden, an incompetent person. From an order resettling the prior order, denying petitioner's application for the appointment of Alfred Opdyke, as successor committee, and appointing John T. McGovern, Mary G. Quinby and John M. Sneden, appeal. Order affirmed. Argued before JENKS, P. J., and CARR, MILLS, RICH, and PUTNAM, JJ. George W. Wingate, of New York City (John E. Miller, of New York City, on the brief), for appellants. Meier Steinbrink, of Brooklyn, for respondent McGovern. PER CURIAM. Ordinarily the committee of an incompetent is one of the kin or family of the lunatic, or one upon whom they agree, and such committee of the person is not intrusted to a stranger not proposed by any relative. On Mr. Quinby's decease the widow (sister of the incompetent), with her brother's concurrence, petitioned for Mr. Opdyke's appointment as substitute committee of the person and of the estate. This recommendation was in view of Mr. Opdyke's having acted as legal adviser of the committee in this trust. His character For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and capacity stand unquestioned. Under his wise management the estate has grown to about $819,000. However, as Mr. Quinby's estate has to account as such committee in respect to matters largely in Mr. Opdyke's hands, the learned Justice at Special Term apparently thought that to appoint Mr. Opdyke might expose him to the embarrassment of representing conflicting interests on such accounting. We cannot say that this conclusion followed by naming Mr. McGovern was an abuse of discretion. The order appealed from is affirmed, without costs. (96 Misc. Rep. 1) KNOLL v. NEW YORK, O. & W. R. CO. (Supreme Court, Trial Term, Sullivan County. June, 1916.) 1. RAILROADS REQUIRED. 276(1)—OPERATION-INJURIES TO PERSONS ON TRAIN-CARE The servants of a railroad owe a trespasser on a train no duty other than not to injure him wantonly or willfully, [Ed. Note. For other cases, see Railroads, Cent. Dig. § 878; Dec. Dig. 276(1).] 2. RAILROADS 276(2)—OPERATION-INJURIES TO PERSONS ON TRAIN-Care REQUIRED. If plaintiff was not a trespasser in climbing over a railroad car, the railroad's servants were charged with reasonable and ordinary care in the operation of the train so as not to injure him. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 879; Dec. Dig. 276(2).] 3. RAILROADS 276(2)—OPERATION-INJURIES TO PERSONS ON TRAIN-CARE REQUIRED. Where a railroad's servants did not know that plaintiff was upon a train, they were under no obligation to give him any signal or warning before starting the train, though it was in violation of a rule of the company to start the train without any signal. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 879; Dec. Dig. 276(2).] 4. RAILROADS 278(2)-OPERATION-INJURIES TO PERSONS ON TRAIN-CONTRIBUTORY NEGLIGENCE. Plaintiff could not place himself in a situation of danger by climbing over a railroad car, simply to protect his team, which he had left inadequately sheltered, on a cold night, without being guilty of such negligence as to preclude a recovery for personal injury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 895, 896; Dec. Dig. 278(2).] Action by Philip R. Knoll against the New York, Ontario & Western Railroad Company. Complaint dismissed. Bruce Winner, of Liberty (Ellsworth Baker, of Hurleyville, of counsel), for plaintiff. Carpenter & Rosch, of Liberty, for defendant. CHESTER, J. There is no allegation in this complaint that any of the employés of the defendant knew that the plaintiff was upon the defendant's train at the time he alleges he was hurt by being thrown For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes therefrom. The train was blocking the plaintiff's farm crossing, and had been standing there nearly an hour. On the day when the plaintiff was injured he was returning to his farm buildings located upon one side of the defendant's tracks with his team, and as he approached the crossing he discovered a freight train of the defendant, completely blocking it. It was on a bitter cold night, his horses and their blankets were wet, and the plaintiff was unable to reach his barn, and after the train crew had failed to move the train, on the plaintiff's request, he placed his horses in an old barn for temporary shelter. He then climbed over the train, with the knowledge of the train crew, to reach his farm buildings. After waiting nearly an hour he returned to get his team, which was inadequately sheltered, in order to save it from further exposure and danger from the cold. When the plaintiff approached the train on that occasion he was unable to discover any one about in charge of it. He alleges that he was unable to pass around the end of the train, and was in the act of climbing over the same, when the train was suddenly started without any signal or warning, and he received the injuries of which he complains. [1-4] If the plaintiff was a trespasser on the train, the servants of the defendant owed him no duty other than not to injure him wantonly or willfully. If he was not a trespasser, the servants of the defendant were charged with reasonable and ordinary care in the operation. of the train so as not to injure him. In either event, if the servants of the defendant operating the train did not know that he was upon it, they were under no obligation to him of giving any signal or warning before starting the train. The fact that the train was started without any signal, in violation of a rule of the company, is of no consequence if none of the employés knew of the presence of the plaintiff upon it, and there is no allegation of such knowledge contained in this complaint. Nor had the plaintiff any right to place himself in a situation of danger simply for the protection of his property, without being guilty of such negligence as will preclude a recovery for a personal injury received in so doing. Morris v. Lake Shore & M. S. R. Co., 148 N. Y. 182, 42 N. E. 579. The complaint should be dismissed with costs. (174 App. Div. 928) VAN CLEAVE v. DEMOREST et al. (Supreme Court, Appellate Division, Second Department. September 29, 1916.) CORPORATIONS 202-ACTIONS-RIGHT TO MAINTAIN. One owning the entire capital stock, or practically the entire stock, of a corporation cannot maintain in his own name a suit to enforce the right of the corporation to land, title to which was in it. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 777-780, 822; Dec. Dig. 202.] Appeal from Special Term, Kings County. Action by Robert A. Van Cleave against William C. Demorest and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |