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the appropriate book. Such an order can be made in favor of the trustee appointed only where an additional bond has been given by him or upon proof that the estate or fund has been so reduced by payments or otherwise that the penalty of the bond originally given will be sufficient in amount to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund.”

Pursuant to this provision, the note was deposited with the trust company, which was alone entitled to "receive or collect” any of the property or interest secured thereby; and we have been unable to find any warrant for the step taken by the plaintiff, while it thus remained in the custody of the trust company, in suing upon a note which was not in her possession, and to which she had not obtained the title.

It may be suggested that, in analogy to limited letters of administration which are issued to collect death claims based upon negligence, a distinction is to be observed between the right to sue and the right to collect. By reference, however, to the statute under which such limited letters are issued (section 2664, Code Civ. Proc.), it will be noticed that, while the right to collect is withheld, the right to sue is expressly given. Under section 2595 of the Code, no such right to sue is given; and although the surrogate might, by subsequent order, have conferred such right—which we do not decide, because unnecessary—it is not contended that any such order in the present instance was granted. Even if there were a doubt upon this subject-which we do not entertain, holding, as we do, that the plaintiff could not, without the permission of the surrogate, sue upon the note while it remained in the custody of the trust company—there cannot be the slightest doubt upon the further proposition that the plaintiff had no right to issue an execution upon the judgment, because that is expressly forbidden by the section.

Although the letters of administration granted to the plaintiff were general in form, they were necessarily limited by section 2595 of the Code, which deprived the plaintiff of the custody and control of the note, and to that extent, therefore, they were, by the very language of the section, limited so as to exclude from the administration of the plaintiff the particular security which had thus been impounded, and which, as directed, was deposited with the trust company. By the grant of letters of administration, therefore, no right or authority was conferred upon the plaintiff to sue upon this particular note, because by order of the surrogate it had been deposited with the trust company; and we fail to see by what right the plaintiff could proceed to do so without first obtaining the consent of the surrogate. That the statutory requirements must be complied with, and that the conditions precedent must appear before a judginent creditors' action can be maintained, has been so frequently decided that the citation of authority would seem to be unnecessary; but as illustrative of the principle involved, two cases, among others to which we may refer, are Prentiss v. Bowden, 145 N. Y. 342, 40 N. E. 13, and Dittmar v. Gould, 60 App. Div. 94, 69 N. Y. Supp. 708.

We do not think, moreover, that a payment to the plaintiff, if made after the deposit of the note with the trust company, would have discharged the obligation of John Y. McKane upon it, particularly without his having obtained repossession of the note. This, however, the and 120 New York State Reporter plaintiff could not give him, and, as long as she had no power or authority to get the note for the purpose of surrendering it, she was not in a position to ask, demand, or receive payment. As she could not, therefore, legally receive payment from the debtor and discharge him, it is difficult to see upon what theory she could sue for and obtain a judgment against him, and thereafter issue execution to collect it.

It is suggested that, even though we reach the conclusion that the plaintiff, as administratrix, had no right to obtain the judgment and issue the execution, still, for the purpose of maintaining this judgment creditors' action, there is another view upon which it can be supported, namely, that she subsequently obtained, as an individual, all right, title, and interest in and to the note. In this connection our attention is called to the fact that upon the trial (and against the opposition of the defendants) an amendment was allowed to include Abigail Ditmas individually as a plaintiff, she having originally brought this action as administratrix. It appears that after the judgment was obtained upon the note, and the execution returned unsatisfied, and the estate of Henry C. Ditmas was collected and ready for distribution, a decree of the surrogate was entered in the matter of that estate, which directed distribution of the assets and discharged the administratrix, and which turned over the note in question to her as her individual property. The obvious answer is that all these things occurred after the obtaining of the judgment and the issuing of the execution upon which this judgment creditors' action is based; and it would be a curious process of reasoning which would render a judgment in favor of the plaintiff as administratrix, which was invalid when obtained, and upon which she had no right to issue execution, perfectly valid and effectual for the purpose of supporting the execution, upon the ground that she had at a much later date got possession of and title to the note as an individual. We do not think that the plaintiff, because of the subsequent transfer of the note to her as an individual, could obtain any rights in a judgment which, as administratrix, she had improperly obtained.

We do not deem it necessary to discuss the merits as to the validity of the transfers made by John Y. McKane in his lifetime, nor the numerous other questions which have been presented by the appellants, thinking, as we do, that the objection which we have been considering, and which lies at the very foundation of the plaintiff's right to maintain this judgment creditors' action, is fatal to such right. The appeal of the defendant Fanny McKane from the two orders denying motions to postpone trial must be dismissed. The order amending summons and aniended complaint must be affirmed. The proceeding to bring up for review, upon the appeals from the judgment, the order amending the summons and amended complaint, and the two orders denying motions to postpone trial, must be dismissed.

The judgment must be reversed, and a new trial ordered, with one bill of costs to appellants to abide the event. All concur.

SMITH V. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. CARRIERS-STREET RAILWAY PASSENGER-COLLISION WITH VEHICLE-NEGLI

GENCE OF MOTORMAN.

Evidence in an action by a street car passenger for injuries received in a collision between the car and a vehicle considered, and held to sustain a

verdict for plaintiff, founded on the negligence of the motorman. 2. SAME-EXCESSIVE VERDICT.

A street car passenger was severely injured on July 26, 1899, in a collision between the car and a vehicle, by being struck by a shaft of the vehicle in the breast. He was taken to a hospital, where he remained until September, when he was sent to Maine with a trained nurse. In November he returned to the hospital, remaining there until the 29th, and was not able to return to his regular business until May, 1902. peared that he would never fully recover from his injuries, though he was not permanently disabled. Held, that a verdict of $25,000 was excessive, and should be reduced to $20,000.

It ap

Appeal from Trial Term, New York County.

Action by Philip L. Smith against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Modified.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Charles F. Brown, for appellant.
William N. Cohen, for respondent.

INGRAHAM, J. On the 26th day of July, 1899, the plaintiff boarded one of the defendant's open cars at the corner of Rector street and Trinity Place. He occupied a seat on the fourth bench from the front, on the west side of the car. The car proceeded up West Broadway, and between Grand and Broome streets the plaintiff was severely injured by the shaft of a truck striking him in the breast. He testified that when the car was near Broonie street he noticed a one-horse truck coming down upon the east track, upon which the car he occupied was proceeding; that the driver of the truck did not turn off the track, and the motorman did not stop the car; that as the car approached the truck the horse attached to the truck turned to get off the track; that after the horse left the track there was a crash, and inmediately afterwards he found himself sitting on the seat upon the east side of the car, one or two benches behind the one he had been occupying, and discovered that he had been severely injured in his right breast; that he was taken to a hospital, where he remained until some time in September, when he was sent to Maine with a trained nurse; that in November he returned to the hospital, remaining there until November 29th, and was not able to return to his regular business until May, 1902. Upon cross-examination he testified that the collision occurred when the car was about midway between Grand and Broome streets ; that the driver of the truck did not turn off the north-bound track until the car and the truck were 20 or 25 feet apart; that then the horse turned sharply to the west; that the horse was clear of the track

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and 120 New York State Reporter before the collision, and at the time of the collision the horse was facing in a southwesterly direction. The plaintiff's testimony was corroborated, and there was evidence that after the collision the car went for about 75 feet, and that the truck was on the west of the railroad track near the gutter.

Upon the part of the defendant there was testimony tending to show that this truck with which the car collided was going down town upon the west track, and not upon the east track, upon which the car on which the plaintiff was a passenger was proceeding; that, after the front of the car had passed the truck, one of the cases upon the truck fell and struck the roof of the car, and then fell down between the car and the truck, and immediately afterwards something struck the plaintiff. The motorman testified that the truck was upon the west track; that he passed the truck in safety, and that there was room for his car to pass the truck without a collision; that as he approached the truck he slowed down until he was within 10 or 15 feet of the truck, then noticed that there was room enough for his car to pass, and he continued on; that when the front of his car reached the middle of the truck between the front and back wheels he heard a commotion behind him, when he stopped his car; that when he stopped the front end of the car was parallel with the rear end of the truck. The mechanic who repaired the car testified that there was no injury or mark on the front of the car; that one of the stanchions that supported the roof was broken, and two were damaged, and four pillar bars were bent; that the back of one seat was also broken.

There would seem to be no doubt but that the plaintiff was injured by the shaft of this truck striking him while seated upon the west or left-hand side of the car. The man who repaired the car testified that there was no damage to the roof of the car; but it is apparent that this accident could not have been caused by the fall of a case from the truck, unless the car had come in collision with the truck. If there had been such a collision, it is quite probable that it would have caused a case to fall. Whether or not the truck was upon the track upon which the car was proceeding, or partly upon the westerly track, does not seem to be material. If the situation was such that the car could not pass the truck without a collision, it was the duty of the motorman to stop the car in time to avoid the truck; and for the negligent performance of that duty, from which resulted an injury to a passenger, the defendant was responsible. That there was such a collision, and that, as the result thereof, the shaft of the truck was thrown over upon the car, is the necessary conclusion to be drawn from the evidence. It was, then, a question for the jury to say whether that collision was caused by the negligence of the motorman in attempting to pass the truck. That the plaintiff was severely injured as a result of the collision between the car and the truck in the street, and that that collision could have been avoided by the motorman stopping the car when he saw the truck approaching, is evident. Whether that collision was the result of the negligence of the motorman in attempting to pass this truck, as he did, without stopping, was a question for the jury; and with its verdict that there was negligence I do not think we would be justified in interfering.

The only other question presented relates to the damages. The jury fixed the amount at $25,000. While it is true that the injuries to the plaintiff were very severe, and that he will never fully recover, the plaintiff is not permanently disabled. At the time of the trial he was able to attend to his business. This condition having been caused, as found by the jury, by the negligence of the defendant's employés, the damages should be sufficient to compensate him so far as possible for the injury; and the amount that would be sufficient to compensate him was for the jury to determine, subject to a review by this court if it should appear that the amount awarded was beyond what is a fair compensation. We think, however, that $25,000 was excessive, as such a sum is only awarded where by the loss of a limb, or an accident which has caused a total disability, a person is permanently disabled. We have come to the conclusion, therefore, that this verdict should not, under the circumstances, exceed the sum of $20,000, and the judgment and order must for that reason be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered, including costs and allowance, to the sum of $20,549.35; in which event the judgment as so modified and the order appealed from are affirmed, without costs of this appeal. All concur.

COYLE v. DAVIDSON. (Supreme Court, Appellate Division, First Department. Marcu 11, 1904.) 1. PLICADING--AMENDMENT OF COMPLAINT-CHANGE OF CAUSE OF ACTION-IN

JORY FROM DRAINAGE.

An original complaint alleged $1,500 damages to plaintiff's premises from water flowing from defendant's adjacent premises by reason of his negligence. An amended complaint alleged damages amounting to $5,000 from water percolating through the soil from defendant's premises, caused by his negligence in failing to keep a waste pipe and wash basin in proper repair, and in negligently allowing a water pipe to freeze and burst. It was further alleged that during four months defendant neglected to repair these defects "and abate the nuisance maintained upon his said premises,” though repeatedly requested so to do, and that during this period water kept constantly flowing into plaintiff's cellar, rotting the foundation walls, and depriving plaintiff's tenants of the use thereof, in consequence of which her tenants left, and plaintiff suffered great loss of rents. Held, that the amended complaint did not state a new cause of action, and should have

been allowed. Appeal from Special Term, New York County.

Action by Nellie M. Coyle against Solomon Davidson. From an order denying plaintiff's motion to serve an amended complaint, she appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

William F. Burrough, for appellant.
John E. Ruston, for respondent.

LAUGHLIN, J. The original complaint was for $1,500 damages to plaintiff's dwelling and premises No. 396 Third avenue, in the city

86 N.Y.S.-69

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