In view of these decisions, we are constrained to hold that the city of Buffalo is not estopped from recovering the balance of bank tax moneys paid to the county treasurer. These moneys may be recovered in an action at law such as here brought. Bridges v. Board of Supervisors, 92 N. Y. 570; Strough v. Supervisors, 119 N. Y. 212, 23 N. E. 552; Woods v. Board of Supervisors, 136 N. Y. 403, 32 N. E. 1011.

[4] There remains for consideration the defense of the statute of limitations as to a portion of the taxes sought to be recovered. That clause of the answer pleading the statute is in the following form, to wit:

"For a sixth, further, and separate answer and defense the defendant alleges: That the several causes of action set forth in the complaint are barred by the statute of limitations in such cases made and provided."

[5] The answer does not appear sufficient in form to make the defense available to the defendant without amendment. A motion to so amend was made by counsel for the county. The court has concluded to permit the amendment asked, in order to save the defendant's rights, especially as such amendment will not cause surprise to the plaintiff, and in our opinion does not set up a new defense, but is by way of amplification of a pleading imperfectly drawn. With the amendment allowed, we are of the opinion that a case has been made out for the application for the statute of limitations. In the case of Strough v. Board of Supervisors, 119 N. Y. 212, 23 N. E. 552, it was held that, where a county treasurer had misappropriated money received for railroad taxes belonging to town, the statute of limitations began to run when the misappropriation is made, and an action. brought more than six years thereafter was barred. The city authorities must have known that, when the county retained a portion of the bank taxes, they were withheld under the claim of right to share in them and to devote the portion retained to its own purposes.

[6] By the twenty-fourth section of the Tax Law it is made the duty of the board of supervisors to issue their warrant or order to the county treasurer on or before the 15th day of December in each year, setting forth the tax rate, etc., "commanding him to collect the same" (i. e., the bank taxes) "and to pay to the proper officer in each of such districts the proportion of such tax to which it is entitled under the provisions of this chapter." The neglect or refusal of the board of supervisors to follow the mandate of the statute and direct the county treasurer to pay over to the city the entire bank tax collected was a violation of duty imposed by law, and gave the city a complete cause of action to recover the full amount. The statute of limitations began to run as soon as it became the duty of the county treasurer to pay to the city the taxes received, to wit, on or before the 1st day of January succeeding their payment, and any action to recover the annual amount paid is barred unless commenced within six years.

Application of this rule to the case in hand precludes a recovery for the years 1902, 1903, and 1904. As to the amounts retained from the bank taxes of 1905, 1906, 1907, 1908, 1909, and 1910, we think

the plaintiff has made out a case. Judgment is ordered accordingly, with interest on the amounts of the sums retained for each year from the 1st day of January of the succeeding year.

Let findings be prepared in accordance with these views. So ordered.

(165 App. Div. 723)

HOTALING v. JAMES STEWART & CO., Inc.

(Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. MASTER AND SERVANT (§ 182*)-INJURIES TO SERVANT-STATUTE.

To recover under Labor Law (Consol. Laws, c. 31) § 200, making a master liable for injuries resulting from the negligence of one acting as a superintendent, it must appear that the negligent act was committed while the person was acting as superintendent.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 371, 372; Dec. Dig. § 182.*]

2. MASTER AND SERVANT (§ 198*)-INJURIES TO SERVANT-FELLOW SERVANTS -WHO ARE.

A locomotive engineer, though having the right to direct a brakeman in some particulars, is a fellow servant of the brakeman, where he did not hire him, could not discharge him, and had no general supervisory power over the brakeman's conduct.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 493– 514; Dec. Dig. § 198.*]

3. MASTER AND SERVANT (§§ 278, 281*)—INJURIES TO SERVANT-ACTIONS-EVI

In a suit by a brakeman, who asserted that he was injured when a locomotive on which he was riding was suddenly stopped, evidence held to show no negligence of the engineer, and to show the contributory negligence of the brakeman.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977, 987-996; Dec. Dig. §§ 278, 281.*]

Appeal from Trial Term, Saratoga County.

Action by John Hotaling against James Stewart & Co., Incorporated. From a judgment for plaintiff, and an order denying new trial, defendant appeals. Reversed and remanded.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

R. A. Mansfield Hobbs, of New York City (William P. Butler, of Saratoga Springs, of counsel), for appellant.

Leary & Fullerton, of Saratoga Springs (Walter A. Fullerton, of Saratoga Springs, of counsel), for respondent.

JOHN M. KELLOGG, J. The defendant is a contractor upon the barge canal, and in its work uses a locomotive in hauling dump cars. from its steam shovel to the dump. Bissonette was the engineer upon the engine; the plaintiff, the brakeman. As they were approaching the dump, a quick signal was given to the engineer to stop. He applied the brake in the usual way and stopped within 30 or 40 feet. He was going 8 or 10 miles an hour. The brakeman was standing on an iron plate, the apron which covers the space between the locomotive and the tender. As the brake was applied, the engineer saw the plaintiff

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

slip upon the iron apron and lunge forward; but he did not fall. The plaintiff claims he fell forward and was hurt; his hands being loosened from the braces by which he was steadying himself. He swears that the locomotive stopped within 8 feet after the air was applied. The locomotive was a proper locomotive, with proper equipment for this kind of work. The brake upon it is what is known as straight air, and not as triple valve equipment, and an emergency application cannot be made. The locomotive stops gradually after the air is applied.

[1] The plaintiff has exaggerated his injuries, and we find his testimony unreliable, where he and the engineer come in conflict as to material points. The complaint is of the omnibus type, alleging all kinds of negligence. Upon the trial the plaintiff elected to rest entirely upon subdivision 2 of section 200 of the Labor Law. The question, therefore, is whether he received an injury by reason of the negligence of a person in the defendant's service who was intrusted with superintendence. To come within this provision it must appear that the negligent act was done by the person while exercising acts of superintendence. Larson v. Brooklyn Heights Railroad Co., 134 App. Div. 679, 119 N. Y. Supp. 545.

[2] The only negligent act of the engineer attempted to be shown is his act in applying the air brake upon a signal from another. It was therefore the ordinary act which the engineer was employed to perform, namely, to run his locomotive. He was required to stop it on signal, and he did stop it in the ordinary way. The plaintiff and the engineer were fellow workmen; the engineer having the right to direct the plaintiff in some respects, and in some respects the engineer being required to follow the signals and directions of the plaintiff. Plaintiff was not employed by the engineer, and could not have been discharged by him. The engineer had no supervisory power over him, except so far as he was required from time to time to do certain acts upon the locomotive or train. The plaintiff's duties did not require him to be at the place where he was. The engineer did not direct him to be there. He selected the place for himself. The act of the engineer causing the engine to stop was that of a fellow servant, and was not the act of one exercising superintendence over the plaintiff. The case, therefore, is not within the statute.

[3] We are satisfied that the locomotive stopped in the usual way, and there was nothing in his act unexpected or unusual, and defendant was not guilty of any negligence. If the plaintiff was injured, it was because the place upon which he was riding necessarily carried with it a certain amount of danger, from which he has suffered.

The judgment should therefore be reversed upon the law and the facts, and a new trial granted, with costs to the appellant to abide the

event.

The court disapproves of the finding that the defendant was guilty of negligence, causing the plaintiff's injury, and that the plaintiff was free from negligence; and the court finds that the defendant was not guilty of negligence, and that the plaintiff was guilty of contributory negligence. All concur.

RAYNOR v. NEW YORK & L. I. TRACTION CO.

(Supreme Court, Appellate Division, Second Department. January 15, 1915.)

1. CARRIERS (§ 12*)-CONNECTING CARRIERS-FARES.

Where defendant street railroad company owned and operated several lines under separate grants, it cannot be considered as a connecting carrier when transporting passengers from one of its lines to another.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]

2. CARRIERS (§ 12*)-FARES-CONNECTING CARRIER.

The prohibition against charging more than five cents for five miles or less, contained in one of the grants of the New York & Long Island Traction Company, which operated three different lines, is limited to the services of the defendant as a connecting carrier, and does not apply to the carriage of passengers over its several lines.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]

3. CARRIERS (§ 12*)—FARES-AMOUNT OF Fares.

Where the defendant street railroad company as a connecting carrier could charge 10 cents between two points, it may charge that amount for transportation originating on another of its own lines, though it be considered as operating connecting lines.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]

Appeal from Nassau County Court.

Action by Lucy Raynor, an infant, by John J. Carman, her guardian ad litem, against the New York & Long Island Traction Company. From a judgment for plaintiff (149 N. Y. Supp. 151), defendant appeals. Reversed and remanded.

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

Henry J. Smith, of New York City (Arthur G. Peacock, of New York City, on the brief), for appellant.

Elvin N. Edwards, of Freeport, for respondent.

THOMAS, J. Each grant is limited to a line of railway unmistakenly defined. The three grants for a railway north of the village of Freeport are associated, inasmuch as they relate to a line between Mineola and Freeport, and the provisions concerning fare that may be charged are not inconsistent. The grant of July 6, 1901, by the board of supervisors, while conditioned upon the construction and operation of the railway between Mineola and Freeport, made no provision for fares other than to prohibit a charge in excess of 10 cents for carriage on Franklin street. But the defendant was already under a disability to charge 10 cents for that service by acceptance of the grant of June 6, 1901, for a railway from Freeport to the village of Hempstead, and thence, omitting that village, to Mineola, and to charge but 10 cents for the whole route and 5 cents for five miles or less. This has been construed to include the village of Hempstead. Edwards v. N. Y. & L. I. T. Co., 1 P. S. C. Rep. (2d Dist.) 127.

[1, 2] When the defendant accepted the grant substituting Franklin

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 151 N.Y.S.-27

street for Washington street north of Hempstead village, the limitation of fares in the earlier grant remained, as decided by the Public Service Commission in Whitehouse v. N. Y. & L. I. T. Co., 3 P. S. C. Rep. (2d Dist.) 410. But the present suggestion of extending such grants to the line west of Freeport, granted in 1903 by two of the same highway commissioners, fully apprised of their earlier action and the needs of the community, does violence to each grant, which with clearness and precision defines what it gives and limits the conditions to the exact thing given. The Public Service Commission, in Steding v. N. Y. & L. I. T. Co., 3 P. S. C. Rep. (2d Dist.) 368, correctly refused to extend any of the provisions of the grants to defendant's line from Hempstead village to Belmont, near the New York City Line, or to consider the defendant in the dual capacities of connecting carriers, when transporting passengers from one line to another. The language used in the grants is singularly inappropriate for such purpose, and the provision is unnecessary where a carrier is operating over several lines obtained by separate grants. The provision for a fare of 5 cents for five miles or less, in the grant of the line west of Freeport, is clearly limited to connecting carriers (Wright v. N. Y. & L. I. T. Co. and Ankers v. Same, 3 P. S. C. [2d Dist.] 418), and unless defendant be severable into two carriers, each connecting with the other, the provision has no application beyond the line granted.

[3] Even if the fiction of the defendant multiplied into connecting carriers obtain, the plaintiff is not aided. As operator on the line west of Freeport, defendant would receive 5 cents for carriage between. Milburn avenue and Freeport, and 10 cents for carriage to Doubleday, Page & Co.'s place, as the distance is nearly eight miles. Assume that at Milburn avenue defendant had received plaintiff from a connecting carrier for transportation to Doubleday, Page & Co.'s location, it could have made the above charge. Why, then, should it be constrained to make a smaller charge when regarded as operating connecting lines? The question of whether the defendant used excessive force in removing the plaintiff, is not present.

The judgment of the County Court of Nassau County should be reversed, and a new trial ordered; costs to abide the event. All concur.

MARSOFF v. FAST.

(Supreme Court, Special Term, Bronx County. December, 1914.) VENUE (4*)-TRANSITORY ACTIONS-CHANGE OF PLACE OF TRIAL.

A transitory action should be tried in the county where the transaction involved occurred, unless a large preponderance of the witnesses live in another county; and plaintiff, bringing an action in another county, cannot prevent a change to the proper county, where he fails to show that the majority of the witnesses live in or near the other county.

[Ed. Note. For other cases, see Venue, Cent. Dig. § 3; Dec. Dig. § 4.*] Action by Mattie Marsoff against Edward Fast. On motion tc change place of trial. Granted.

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