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the rule stated in People ex rel. Huber v. Feitner, 71 App. Div. at page 481, 75 N. Y. Supp. 738, citing authorities. See, too, Lewis v. Smith, 9 N. Y. at page 520, 61 Am. Dec. 706; People v. Elfenbein, 65 Hun, 434, 20 N. Y. Supp. 364. This is also evident from the history of the so-called fire clause in leases in this state. See Suydam v. Jackson, 54 N. Y. 450; Johnson v. Oppenheim, 55 N. Y. 280. Curiously enough, Earl, C., in describing the common-law liability of the tenant in the first case cited, uses the word "otherwise" as I think it is used in the said clause of the lease. 54 N. Y. 453.

[5] The lease, as between the lessor and lessee, was not destroyed “by fire or otherwise.” Of course, it was destroyed when the exercise of the power of eminent domain was made, but only then.

I recommend affirmance, with $10 costs and disbursements. All con

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cur.

(165 App. Div. 241)
HUSCIER v. NEW YORK & QUEENS ELECTRIC LIGHT & POWER CO.

(Supreme Court, Appellate Division, Second Department. December 31, 1914.)

1. APPEAL AND ERROR ($ 119.5*)-DECISION ON PRIOR APPEAL-LAW OF CASE.

Where, on a prior an eal in an action for death of plaintiff's decedent by coming in contact with an unlighted electric lamp, the court held that there was no proof of negligence proximately causing decedent's death, such determination was the law of the case on retrial.

[Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. $$ 4661

4605; Dec. Dig. $ 1195.*] 2. ELECTRICITY ( 19*)-DEATH-NEGLIGENCE-EVIDENCE.

In an action for death of plaintiff's decedent by coming in contact with an unlighted electric lamp owned and controlled by defendant, alleged at the time to be suspended not more than four feet above the highway, evidence held insuflicient to establish negligence; the proof being insufficient to show that the lamp was lowered longer than an hour and a half before the accident.

[Ed. Note.--For other cases, see Electricity, Cent. Dig. $ 11; Dec. Dig.
19.*]
Stapleton and Rich, JJ., dissenting.

Appeal from Trial Term, Queens County.

Action by Florence E. Huscher, as administratrix of William H. Huscher, deceased, against the New York & Queens Electric Light & Power Company. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Reversed, and new trial granted.

See, also, 158 App. Div. 422, 143 N. Y. Supp. 639.

Argued before JENKS, P. J., and BURR, THOMAS, RICH, and STAPLETON, JJ.

William Rasquin, Jr., of New York City (Almon G. Rasquin, of New York City, on the brief), for appellant.

Martin T. Manton, of New York City (Vine H. Smith, of New York City, on the brief), for respondent. *For other cases see samo topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

BURR, J. [1] If any force is to be given to the doctrine of stare decisis, this judgment should be reversed upon the authority of Huscher v. N. Y. & Queens Electric Lt. & Power Co., 158 App. Div. 422, 143 N. Y. Supp. 639. The evidence establishes that the death of William H. Huscher was caused by his coming in contact with an unlighted electric lamp, owned and controlled by defendant, and at that time suspended over the highway at an elevation of about four feet therefrom, which was charged with a current of electricity dangerous to human life. The evidence does not tend to establish any defect in the structure of the lamp, which was of a standard make and variety.

[2] Plaintiff's witness Roth testifies that the lamp produced in court was the same lamp, and was then of the same structure as at the date of the accident, and that, immediately after the accident, it was examined, and nothing was the matter with it, except that the inner globe was broken. This was replaced, and the lamp hoisted into position, and it was then lighted and continued to burn for six or seven nights. It also appears, more clearly than upon the former trial, that, in order to permit the lamp to descend, it had first to be lifted five or six inches out of the socket or collar in which it rested; and if the lamp was lowered, so that it came within four feet of the ground, the end of the rope would then be at the top of the pulley, where the clip strikes the pulley. The fact that, after the accident, this clip was found to be broken, establishes nothing as against the defendant, for that would not permit the lamp to descend. Under the previous decision, therefore, the only possible ground of liability would be defective maintenance, in that the lamp was allowed to remain close to the ground, and unlighted, for a period of time which would charge defendant with negligent inspection.

Upon this point the evidence varies somewhat from that given on the former trial. The witness employed by the Shults Baking Company, who testified on the first trial, was not called upon this trial. Three witnesses were examined by plaintiff upon this point. One of them, Bubany, testified that at half past 7 on the night of the accident the lamp was then down and unlighted. This was only about an hour and a half before the accident, and, under the authority of the previous decision, was not sufficient to charge defendant with negligence. Afterward this witness testified on his redirect examination with regard to seeing the lamp down on other occasions. At first he testified that it was after the accident. Then he said that he saw it down Friday and Saturday morning—the accident occurring on Tuesday. Then he said it was on Saturday. His testimony upon this point is so vague and indefinite that no reliance can be placed upon it. It is incredible that, in a busy thoroughfare such as the street where this accident happened, this lamp would be down within four feet of the ground, and unlighted, for four days and four nights, and no one residing in the neighborhood observe it or call attention to it. Pelkowske, another witness called for plaintiff, testified that it was up about 7 o'clock in the evening. The accident happened a little after 9. McCabe testifies it was up on the morning of the 7th. These witnesses testified on the previous trial.

The two additional witnesses who were not previously called were Alexander Pucci and Bertha Rose. Pucci first testified that it was

151 N.Y.S.-10

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downı on Sunday and Monday. He then testifies that it was down on Sunday or Monday. Finally he is a little uncertain about Sunday, but' says it was down all day on Monday. For the reason before suggested, this is incredible. Bertha Rose says that on Monday night, the accident being on Tuesday, about half past 7, the lamp was down and unlighted. Her cross-examination satisfies us that no reliance is to be placed on her statements. When we offset the testimony of these witnesses with the testimony of the other witnesses called by plaintiff, contradicting their statements, and the very strong evidence offered by defendant, we think there is no credible evidence that the lamp was down more than an hour and a half or two hours before the accident. While it may be that, under the McDonald Case, this presented a question of fact for the jury, a finding that the lamp was down or unlighted for any longer period of time is so clearly against the weight of the evidence that it should be set aside.

The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur, except STAPLETON and RICH, JJ., who dissent.

In re GRADE CROSSING COM'RS OF CITY OF BUFFALO.

In re BARBER ASPHALT PAVING CO. et al.

(No. 97.) (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) 1. RAILROADS ($ 99*)—CROSSING STREET-CHANGING GRADE-COMPENSATION.

Since a railroad company may elevate or depress its tracks without making compensation to abutting owners, such owners were not entitled to compensation for damages alleged to have been sustained by reason of a change of the grade of a railroad on its own right of way, in proceedings to eliminate a grade crossing.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. $8 293–295, 297–

304; Dec. Dig. $ 99.*] 2. COURTS ($ 93*)-RULES OF DECISION_PRECEDENTS—RULES OF PROPERTY.

Prior decisions, that damages might be allowed for injuries to abutting property from a change in the grade of a railroad on its private right of way, in connection with the elimination of grade crossings, were not a rule of property, and, being erroneous, the court could properly refuse to follow same.

[Ed. Note.--For other cases, see Courts, Cent. Dig. 88 336–339; Dec. Dig. $ 93.*]

Appeal from Special Term, Erie County.

Application of the Grade Crossing Commissioners of the City of Buffalo to ascertain compensation to be paid to landowners for the change in the grade of a street. From a report of commissioners, and from an order of the Special Term of the Supreme Court of Erie County confirming the same, awarding to the Barber Asphalt Paving Company, parcel No. 1, $60,000; to the International Railway Company, parcel No. 2, $19,000; to August Uihlein, parcel No. 3, $11,161; to the Lehigh Valley Coal Company, parcel No. 5, $19,500; to

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Conrad Weitz, parcel No. 6, $10,400; to the Lumen Bearing Company, parcel No. 7, $36,420; to the Henry P. Burgard Company, parcel No. 11, $48,172; and to Louis Wollenberg, parcel No. 12, $12,500 -the Grade Crossing Commissioners, the New York Central & Hudson River Railroad Company, and the City of Buffalo appeal. Reversed, and commissioners' report set aside, and new hearing ordered before new commissioners.

See, also, 149 N. Y. Supp. 1084.
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAM-
BERT, and MERRELL, JJ.

Jeremiah J. Hurley, of Buffalo, for appellant City of Buffalo.
De Witt Clinton, of Buffalo, for appellants Grade Crossing Com'rs.

Alfred L. Becker, of Buffalo, for appellant New York Cent. & H. R. R. Co.

Lyman M. Bass, of Euffalo, for respondent Lehigh Valley Coal Co.

Daniel V. Murphy, of Buffalo, for respondent Barber Asphalt Paving Co.

Norton, Penney, Spring & Moore, of Buffalo, for respondent International Ry. Co.

John J. Sullivan, of Buffalo, for respondent Uihlein.

Henry W. Killeen, of Buffalo, for respondents Weitz and Wollenberg.

Frederick Slee, of Buffalo, for respondent Lumen Bearing Co. Eugene L. Falk, of Buffalo, for respondent Henry P. Burgard Co.

PER CURIAM. The appeals in this proceeding challenge the correctness and legality of the awards of compensation to the several respondents whose real property is deemed to be affected by the change of grade of Sycamore street and Walden avenue, at or near the New York Central & Hudson River Railroad Belt Line in the city of Buffalo, which change of grade has been made by authority of chapter 345 of the Laws of 1888 and its several amendments.

[1] The commissioners received testimony as to the supposed damage to the lands of the respondents by reason of the change in the grade of the railroad upon its own right of way, and have included such damages in their awards, together with the consequent loss of branch or switch tracks. Since the report of the commissioners was made and confirmed, the Court of Appeals has held that damages cannot be awarded for such change in the grade of the railroad. In re Application of Grade Crossing Com’rs, 209 N. Y. 139, 102 N. E. 552. In view of this decision, it is manifest that it was error for the commissioners to receive the evidence as to the effect of the change of the railroad grade upon respondents' property and to award damages on that account.

[2] We are also of opinion that in the decision referred to it has been held that, although awards for damages due to change of the railroad grade had been previously sustained by that court in Matter of Grade Crossing Com'rs, 59 App. Div. 498, 69 N. Y. Supp. 152, affirmed without opinion 165 N. Y. 659, 61 N. E. 1129, still no rule of property was affected by the overruling of such former decision,

and that, following what we understand to be the later decision of that court above referred to, we must hold that no rule of property prevents the application in this case of the rule of damages so laid down.

For these reasons, the order confirming the commissioners' report must be reversed, and the report of the commissioners set aside, and a new hearing ordered before new commissioners to be appointed at Special Term.

In re GRADE CROSSING COM’RS OF CITY OF BUFFALO.

In re GEORGE URBAN MILLING CO. et al. (No. 101.) (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.)

Appeal from Special Term, Erie County.

Application of the Grade Crossing Cominissioners of the City of Buffalo for appointment of commissioners to ascertain compensation be paid to the owners of, etc., lands claimed to be injured by change of grade, etc., and claimed to be owned by the George Urban Milling Company and others. Order confirming commissioners' report, in so far as appealed from, reversed, and report to that extent set aside, and new hearing ordered before new commissioners, with costs to appellant to abide final award of costs, for the reasons stated in Re Grade Crossing Com’rs of City of Buffalo, 151 N. Y. Supp. 146.

See, also, 149 N. Y. Supp. 1085.

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

PER CURIAM. For the reasons stated in the per curiam memorandum in proceeding No. 97 (decided herewith) 151 N. Y. Supp. 146, the order confirming the commissioners' report is, so far as appealed from, reversed, and the report of the commissioners to that extent set aside, and a new hearing ordered before new commissioners, with costs to the appellant to abide the final award of costs.

(165 App. Div. 573)

LAMOUTTE v. TITLE GUARANTY & SURETY CO. (No. 356–89.) (Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. PRINCIPAL AND SURETY (8 81*)--LIABILITY OF SURETY-CONDITIONS OF LIA.

BILITY.

A separation agreement provided that the husband and wife shouid each haye exclusive care of the children during certain stated periods, and that neither should take them from the state for more than one week. Each gave a bond for the performance of the conditions of the contract, which provided that no waiver of any rights under the contract should operate thereafter to impeach any rights of the parties under the undertaking. The wife did not deliver the children' to the husband until some time after the date fixed, and thereupon a new agreement was made, whereby the husband waived the breach of the contract and allowed the wife to retain the custody of the children until he made demand for them. The wife's surety had no notice of the subsequent agreement. During the time that the children would have been in the husband's custody under the original agreement the wife took them abroad for a period of 15 weeks, and the husband brought this action on her bond to recover the amount thereof as liquidated damages for the breach of the contract.

Held that, by the terms of the bond, the surety did not guarantee per*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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