Bellinger. The New York Central Railroad. bridges on the creek. In my opinion, the passage of the creek and valley by the railroad called for the exercise of engineering skill and judgment of a high order. The character of the creek and its habits (if that expression may be used) should have been investigated, and especially its liability to be broken up by a thaw in the winter, when covered with thick ice. It is possible that any embankment across the valley, even when furnished with the full amount of openings which could be left consistently with laying a rail track, would modify, to some extent, the action of the water upon the ice in the case of a winter flood. While I have been engaged in examining the case, the streams in the vicinity of this road have been opened by a spring flood, and the track has been covered for a considerable distance by ice and debris, so that the trains have been stopped for a considerable time. Whether it was practically possible to have fixed the grade so that this would not have happened, can only be determined by the judgment of men skilled in such matters. The defendants, as the judge at the trial very properly said, were not insurers. But they were authorized to build the railroad at the place where they did build it; and if, necessarily and in spite of all reasonable safeguards and precautions in constructing the work, occasional disturbance to adjoining lands would arise from a winter freshet, it was the misfortune of the plaintiff that he had lands exposed to such occurrences. There are two other cases mentioned in the opinion of the general term, namely, Fletcher v. The Auburn and Syracuse Railroad Company (25 Wend., 462), and Brown v. The Cayuga, &c., Railroad Company (2 Kern., 486). The first of these cases is substantially overruled in the one referred to in 4 Comstock, 195. In the other case the only question presented was, whether a party continuing a nuisance was liable if he had not had notice to remove it. The concluding sentence in the last opinion given in that case, was written when the writer had not in his mind the case in which Fletcher v. The Auburn Company was reconsidered; but no part of that opinion was adopted by the court. The case itself raised no question material to the The People v. Smith. present inquiry; and it cannot therefore be considered a precedent in the case under consideration. I am of opinion that the judgment should be reversed, on account of the erroneous ruling upon the question of evidence. HOYT, J., dissented; COMSTOCK, Ch. J., and LOTT, J., did not sit in the case. Judgment reversed, and new trial ordered. THE PEOPLE, ex rel. PRICE, v. SMITH. A member of the first division of the militia of this State, who removes outside of its bounds into a county adjacent, although not forfeiting by such removal any military office then held by him, ceases to be eligible to election to any new office. The privileges reserved to him, notwithstanding his removal, are such as may be claimed of right; and not those, like promotion, which are dependent on the favor of others. APPEAL from the Supreme Court. Action in the nature of quo warranto to oust the defendant from the office of colonel of the first regiment of the militia of this State. The trial was before Mr. Justice JAMES, a jury having been waived; and he found these facts: The defendant, Spencer H. Smith, was formerly a resident of the city of New York, and continued to reside therein till some time in the month of April, 1857, when he removed to the county of Queens, in this State (a county adjacent), where he has ever since resided. In 1853 he was duly appointed and commissioned a staff officer of the first regiment in the first division of the New York State militia, and continued such officer up to March 17, 1859. On that day an election was held to fill a vacancy in the office of colonel in that regiment, at which he received twenty-one out of twenty-eight legal votes cast. He was thereupon declared to be duly elected, and The People v. Smith. received his commission: he entered upon the duties of that office, and was discharging the same when this action was com menced. At the time of such election, the county of New York and the county of Richmond comprised the first division district; the county of Richmond and the first, second, third, fourth, fifth, sixth, seventh and eighth wards of the city of New York the first brigade district; and the first and second wards of the city of New York the first regimental district. The judge held that the defendant was ineligible, and his election void. Judgment of ouster was accordingly entered, which having been affirmed at general term in the first district, the defendant appealed to this court. The cause was submitted on printed arguments. Charles W. Sandford and Lucius Pitkin, for the appellant. William F. Howe, for the respondent. LOTT, J. For the proper determination of the question, whether the defendant's election to the office of colonel is legal and valid, it is necessary to refer particularly to certain provisions of the general law providing for the enrollment of the militia and the organization of uniform corps and the discipline of the military forces of the State, passed April 17, 1854 (ch. 398); the act in relation to the first division and fifth brigade of the New York State militia, passed April 14, 1855 (ch. 536); and the act to improve the discipline and promote the efficiency of the military forces of this State, passed April 8, 1858 (ch. 129). By the general law of 1854 (§ 1, tit. 9), the commander-inchief was authorized to establish and prescribe such rules, regulations, forms and precedents as he should deem proper for the use and government of the military forces of this State, and to carry into full effect the provisions of that act. Such rules, regulations, forms and precedents were to be published in orders by the Adjutant-General, and from time to time dis The People v. Smith. tributed to the commissioned officers of the State. The commander-in-chief, in pursuance of the authority so conferred on him, established and prescribed certain rules and regulations, which, on the 6th of April, 1858, were promulgated and published by the Adjutant-General, in a general order of that date, and were subsequently, by the 14th section of said act of April 8, 1858, made "part of the acts for the government of the military forces." It is provided by section 693 of those rules and regulations, that, "to be eligible to election or appointment to office in the military forces of this State, the person must be a white male citizen of the United States, of the age of eighteen years or upwards, and a resident of the proper military district, city or village, agreeably to law;" and by the previous section (§ 692), it is declared that "the election or appointment of an ineligible person is entirely void, and he is not entitled to be commissioned." These provisions were in full force at the time of the defendant's election. It then becomes material to inquire whether he was "a resident of the proper military district, city or village, agreeably to law." By the general law (tit. 4, §3), it was enacted that the division, brigade, regimental and company districts, as then organized, should continue to be and remain as the military districts of the State, subject, however, to such alterations or consolidations as the commander-in-chief should, from time to time, see fit to make; and, by section 20 of the same title, it is provided that “all commissioned officers, residing in any city or incorporated village in this State, shall be deemed to be within the bounds of their respective commands, providing any part of the military district to which they properly belong shall be located within such city or village." It is a conceded fact, in this case, that the first regimental district, at the time of the defendant's election to the office of colonel, comprised the first and second wards of the city of New York, and that he, at that time, was not a resident within either of those wards. Such non-residence, however, would not have made him ineligible if he had resided in any part of that city, inasmuch as that military district was located therein, and he would then have been a resi The People v. Smith. dent of the proper military bounds or territory prescribed by section 693 of the regulations referred to. The residence required, as a compliance with that regulation, must be either within a military district as specifically defined and designated, for which an election is to be held, or within a city or village in which the district, or a part thereof, is situated, although such residence is not within the territorial bounds of the district itself. This construction is in harmony with, and gives effect to, the provision of section 20 above cited, to which, in my opinion, reference was had in framing and prescribing that regulation. The defendant, however, was not a resident of the city of New York, and, consequently, was not eligible to the office to which he was chosen, unless the provisions to which I shall now refer have made him so. It is provided by those regulations (702), that "commissioned officers will be considered as having removed out of the bounds of their commands and vacated their offices (unless otherwise provided by law), under the following circumstances, viz.: major-generals and their staffs, on removing beyond the bounds of their respective divisions; brigadier-generals and their staffs, on removing beyond the bounds of their brigades; field-officers and regimental staff, on removing beyond the bounds of their regiment; company officers, on removing beyond the bounds. of their company, except when the company is made up from the different districts, and then, upon removing from the regi mental district;" and it is declared, by section 65 of the act in relation to the first division and fifth brigade of the New York State militia, passed April 14, 1855, before referred to, that "any officer, non-commissioned officer, musician, or uniformed private, who may change his residence, from within the bounds of said division into any adjacent county, or from within any county adjacent into the said division district, shall not thereby vacate his office or post; but he shall be held to duty in the division, brigade, regiment, troop, or company to which he was attached at the time of such change of residence, and he shall be subject to duty therein, and shall be entitled to all privileges, immunities and exemptions allowed by law, and shall be |