Appeal from Surrogate's Court, Tompkins County. In the matter of the appraisal of the estate of John H. Fisher, deceased, under the acts in relation to taxable transfers. From a decree of the Surrogate's Court affirming a transfer tax theretofore fixed, and adjudging that shares passing to certain persons were exempt from taxation under the transfer tax law, Otto Kelsey, Comptroller of the state of New York, appeals. Reversed. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. E. H. Bostwick, for appellant. PARKER, P. J. The facts of this case present substantially the same situation as is found in the Corbett Case, 55 App. Div. 124, 67 N. Y. Supp. 46. John H. Fisher died intestate on October 25, 1903. He left as his next of kin, and to whom his estate was distributed, one sister, two brothers, and five nephews and niece, children of a deceased sister. The whole estate left by him, real and personal, after paying disbursements and necessary expenses of administration, was of the value of $10,122.46, of which one-fourth was distributed to each of the brothers and sister, and one-fourth thereof to the five nephews and niece. The surrogate assessed a tax of 5 per cent. upon the share distributed to each of the nephews and the niece, and determined that no tax was due upon the shares going to the brothers and sister. The determination as to the tax on the shares going to the nephews and niece is acquiesced in as correct, but, from the decree adjudging that no tax is chargeable against the shares going to the brothers and sister, the Comptroller brings this appeal. Had John H. Fisher died prior to March 16, 1903, the decision in the Corbett Case, above cited, and affirmed in 171 N. Y. 516, 64 N. E. 209, would have been conclusive. Under the statute as it then stood, the shares of the brothers and sister would have been liable to a tax of 1 per cent. But on March 16, 1903, section 221 of the tax law was amended (Laws 1903, p. 165, c. 41), and it is by reason of the amendment then made that the surrogate made the decision appealed from. In my opinion, however, such amendment works no such change in the meaning of the statute as requires the interpretation that the surrogate has given it. Under the preceding act of 1892 (Laws 1892, p. 814, c. 399), it was settled that if the whole personal estate that passed from the deceased to his legatees and next of kin, except such as passed to persons "specifically exempted" by the act from its provisions, exceeded $10,000, then any legacy or bequest to a father, mother, brother, sister, etc., was subject to a tax of 1 per cent., even though it fell far short of $10,000. Such was the construction given to section 2 of that act (now section 221 of the tax law) by the Hoffman Case, 143 N. Y. 327, 38 N. E. 311, and the Corbett Case above cited. And this conclusion was reached by holding that the word "property," as used in such section 221, was controlled by the definition given in section 22 of that act. But the surrogate now claims and 123 New York State Reporter that under the act of 1903 the language of that section is so clear and explicit to the contrary that such definition is not applicable, and that hence, under the reasoning in the Hoffman Case itself, there being no ambiguity in such amended section, the definition in section 242, p. 881, does not control. But the trouble is that under the grammatical construction of section 221 there is no more ambiguity in that section than there is in the section as amended in 1903. There is the same necessity for resorting to the definition of "property" given in section 242 in the one case as in the other. I can discover no actual change in the meaning or provisions of the section as amended, save that, in estimating the value of the property passing, real estate as well as personal property is to be now included. In my judgment, the cases above cited are still authority requiring us to construe the word "property" in section 221 as it is defined in section 242; and, if given that meaning, clearly the legacy to each brother and sister was subject to a tax of 1 per cent. The decree of the surrogate must therefore be reversed, with costs. So much of the order and decree of the surrogate as is appealed from reversed, with costs, and the decree is modified, so that it shall provide that a tax of 1 per cent. be levied upon the share distributed to Charles F. Fisher, Daniel D. Fisher, and Hester M. Nye, brothers and sister of the decedent. All concur. (96 App. Div. 58.) In re MCFADDEN. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. HIGHWAYS-LAYING OUT AND DISCONTINUANCE-APPOINTMENT OF COMMISSIONERS-DUTY OF COUNTY COURT. Under the Highway Law, §§ 82-84 (Laws 1890, p. 1193, c. 568), providing that any person assessable for highway labor may apply to the commissioners of highways to alter or discontinue a highway or to lay out a new highway, and that when the land is not dedicated for highway purposes the applicant shall, after presenting the application to the commissioners of highways by verified petition showing his right to so present the same, and that such application has been presented in good faith, apply to the County Court for the appointment of commissioners to determine upon the necessity of the highway proposed to be laid out or altered, or to the uselessness of the highway proposed to be discontinued, upon the presentation of which petition the County Court shall appoint three disinterested freeholders as commissioners to determine such questions, it is the duty of the county court to appoint the commissioners where the application has been presented in good faith. 2. SAME. Under the Highway Law, §§ 82, 83 (Laws 1890, p. 1193, c. 568), providing that any person assessable for highway labor may make application to the commissioners of highways to discontinue a highway, and that, where the land is not dedicated for highway purposes, the applicant shall apply to the County Court for the appointment of commissioners to determine the uselessness of the highway proposed to be discontinued, application may be made to discontinue a highway which is useless, although such highway has never been opened or worked. 3. SAME GOOD FAITH-SUFFICIENCY OF SHOWING. Under the Highway Law, § 83 (Laws 1890, p. 1193, c. 568), providing for application to the County Court for the appointment of commissioners to 12. See Highways, vol. 25, Cent. Dig. § 259. determine the uselessness of a highway proposed to be discontinued, where it was shown that while proceedings relative to the highway proposed to be discontinued, and which had never been opened, were pending, an old highway in the same locality had been graded so as to make a better grade than that provided for in the road proposed to be discontinued, so that it would be useless, and to open it would be a needless expense, it sufficiently appeared that the application for the commission was made in good faith, and the County Court should have granted it. Appeal from Washington County Court. In the matter of the application of James R. McFadden to discontinue a highway in the town of Ft. Edward, Washington county, and the assessment of damages therefor. From an order of the County Court denying petitioner's application for the appointment of commissioners, petitioner appeals. Reversed. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. Willard Robinson, for appellant. John B. Conway (Fred A. Bratt, of counsel), for respondents. PARKER, P. J. In March, 1899, upon the application of certain citizens, three commissioners were appointed by the County Court of Washington county to lay out a highway in the town of Ft. Edward, in that county, and to discontinue an old one. On the 21st of September of that year they filed a written decision laying out the proposed highway, but not discontinuing the old one. Such decision was confirmed by the County Court. An appeal was taken therefrom to this court, where such order was affirmed. Matter of Baker, 59 App. Div. 625, 69 N. Y. Supp. 1128. From such order of affirmance an appeal was taken to the Court of Appeals, where it was again affirmed. 173 N. Y. 249, 65 N. E. 1100. Such order of affirmance was duly remitted to the County Court, and on October 20, 1903, it became final. It is claimed by the petitioner herein that the principal object of laying out such new road was to avoid the steep grade of what is known as "McFadden Hill." That the supervisor of the town, the highway commissioners, and a large number of citizens of the town were of the opinion that the grade of such hill could be cut down at a much less expense than the new road could be laid out, and that a petition of 175 citizens was addressed to the commissioners so appointed, to that effect; that such commissioners thought otherwise, however, and ultimately concluded to lay out the new road. Such road has, of course, been fully defined and laid out by the decision of the commissioners, but it has never, as yet, been opened, fenced out, or worked, nor have the damages been paid for the same. Action in opening it has been delayed by the appeals above referred to. The proceeding now before us arises upon a petition presented by McFadden to the County Court of said county, under section 83 of the highway law, praying for the appointment of three commissioners to determine as to the "uselessness" of the new highway laid out as above stated; it being his purpose and that of the highway commissioners of the town and of its supervisor to abandon and discontinue such new road, without going to the expense of opening, grad and 123 New York State Reporter ing, and paying for the same. The County Court refused to appoint such commissioners, and from such order of refusal this appeal is taken. If the petition in this matter, which is presented under the provisions of section 83 of the highway law (Laws 1890, p. 1193, c. 568), has been presented in good faith, it would seem that it is the plain duty of the County Court to appoint the commissioners as asked for. The provisions of section 84 seem to be explicit in that respect. From the opinion of the court below, however, it seems that it refused the application on two grounds-one, that an application to discontinue a road cannot be made until it has been opened and worked; and, next, that the application was not made in good faith. There is no intrinsic difficulty in discontinuing a road that has never been opened and worked. Such a one might become useless, and, if so, clearly liable to be discontinued. Even under the Revised Statutes, where the roads to be discontinued were designated as "old roads," the inquiry really was, had it become useless? and very clearly now, under the present phrase of sections 82, 83, Laws 1890, p. 1193, c. 568, that is the sole and only consideration. Any change of conditions rendering them "useless" is as effective as if they had become so by age and use. And this principle is recognized through all the cases cited by the respondents on this appeal. See People ex rel. Miller v. Griswold, 67 N. Y. 59; Matter of Fox St., 54 App. Div. 479, 67 N. Y. Supp. 57; People ex rel. Clark v. Commissioners of Highways of Town of Reading, 1 Thomp. & C. 193. The only question, therefore, is whether the County Court was justified in refusing the commission asked for on the ground that the petitioner is not applying in good faith. It appears that during the four years while this proceeding was pending before the other commissioners or on appeal the town board of the town of Ft. Edward authorized the highway commissioners to grade down the old highway over McFadden hill. That was done so thoroughly and to such an extent that the grade is now a better one than that provided for in the new road. The rock formation which the commissioners anticipated was not found, and the old road, as it now stands, is a better and more useful one than the new one. The petitioner and the town authorities now claim that for such reason the new road has become useless. In view of the improved old road, the new one is not now needed, and, instead of expending several thousand dollars upon it, they now ask for a commission to determine whether it shall not at once be discontinued, and this useless expense be saved to the town. If their claim is correct, I see no reason why the new road may not be discontinued, and I have been unable to discover in this record any reason why an opportunity should not be given to them to establish the truth of their claim. I am of the opinion that they are in earnest in such claim, and that it is by no means so clear that they are incorrect as to warrant the court in deciding such question itself, rather than giving them a commission to determine it. The order of the County Court should be reversed, with costs, and the prayer of the petitioner should be granted. All concur. (96 App. Div. 465.) LOWRY v. ANDERSON CO. (Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) 1. MASTER AND SERVANT-MINORS-ELEVATORS OPERATION-INSTRUCTION. Where a boy 141⁄2 years of age, who had been employed in a mercantile establishment as a cashboy, was thereafter promoted to do routine office work, which involved the operation of an elevator at the close of each day to remove the books of the concern from the office to the vault, it was the duty of his employer to instruct him in the proper management of such elevator. 2. SAME CONTRIBUTORY NEGLIGENCE-PROOF. Where a boy 141⁄2 years of age was killed while operating an elevator in a mercantile establishment in the performance of his duties, he being sui juris, no recovery could be had for his death in the absence of some evidence tending to show absence of contributory negligence. 3. SAME-EMPLOYMENT CERTIFICATE. Labor Law (Laws 1897, p. 494) c. 415, § 162, prohibits the employment of a child under 16 years of age in a mercantile establishment, unless such child shall produce a certificate by the executive officer of the board of health, which is required to be filed in the office of the establishment in which he is employed. Held, that the part of the statute requiring the filing of the certificate was directory only, and hence, where a certificate for the employment of a boy had been regularly obtained by his father, the latter's failure to file the same with his son's employer did not enlarge the latter's liability for injuries resulting in his death. 4. SAME-DANGEROUS MACHINERY-OPERATION OF Elevator. Laws 1897, p. 480, c. 415, § 79, prohibiting the employment of any child under 15 years of age to operate an elevator in a factory, and section 81, Laws 1899, p. 353, c. 192, prohibiting any child under 16 years of age from operating or assisting in operating dangerous machinery of any kind, apply to factories only, as distinguished from mercantile establishments. Appeal from Trial Term, Erie County. Action by R. J. Lowry, as administrator of the estate of Percival E. Lowry, deceased, against the Anderson Company. From a From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ. J. H. Metcalf, for appellant. Hamilton Ward, Jr., for respondent. SPRING, J. The appellant is a mercantile establishment in the city of Buffalo with nearly 200 employés. Percival E. Lowry, then a lad of 14 years and 6 months, was employed by it as a cashboy in June, 1903, and continued in its employ until September 11th following, when he met his death by falling down an elevator shaft in its store. The elevator was in the rear of the building, and was used principally in the carriage of freight, and ran in a shaft extending from the basement up eight stories. The power used in running it was hydraulic, and it was operated by a rope or cable running up and down the shaft. This cable was from 12 to 2 feet from the elevator door, and there was a space in the guard or fence extending its entire length, through which the one operating the elevator took |