and 120 New York State Reporter

end of the wagon after the horses and forward end of the wagon had passed over the track. The crash of the collision was so loud that it was heard by a person in the corner drug store, over 20 feet from the front of the store; and witnesses say that the force of the collision threw the truck over against the elevated pillar in the middle of the street, to the west of the track. Evidence was given on the part of the defendant tending to show that the horses were proceeding very rapidly, and on a gallop. We are not concerned with the question whether the driver of the truck was negligent, for it does not appear that the plaintiff was in any manner responsible for the conduct of the driver, and the negligence of the latter could not be imputed to him, and would not defeat a recovery. Morris v. Met. St. Ry. Co., 63 App. Div. 78, 71 N. Y. Supp. 321; Brennan v. Met. St. Ry. Co., 60 App. Div. 264, 69 N. Y. Supp. 1025. Nor can it be said that the plaintiff was guilty of contributory negligence, as matter of law. He was only nine years of age, and the standard for judging his conduct is not the care that would be exercised by an adult, but only that of one of his age, of courage, intelligence, and ordinary prudence. Lafferty v. Met. St. Ry. Co., 85 App. Div. 592, 83 N. Y. Supp. 405, affirmed in 177 N. Y. —, 68 N. E. 1118. It does not appear that he said anything to the driver, or drew his attention to the car. Whether he should have done so, or should have attempted to jump from the high seat, which would have been perilous in these circumstances, was a question for the jury. Hoag v. N. Y. C. & H. R. R. Co., III N. Y. 199, 18 N. E. 648; Kettle v. Turl, 162 N. Y. 258, 56 N. E. 626. Moreover, there was evidence from which it might fairly be inferred that at this crossing, where the rights of the truck and of the street car were equal, the truck reached the track in time to pass in safety if the motorman had had the car under control, as was his duty; and in such circumstances it cannot be said, as matter of law, that the plaintiff, in view of his age, was not justified in assuming either that the driver was aware of the approach of the car, or that the truck would pass in safety.

We have examined the evidence concerning the injuries sustained by the plaintiff, and are of opinion that the verdict is not excessive. The other exceptions to which our attention has been drawn have been considered, but we are of opinion that they present no error prejudicial to the defendant.

It follows that the judgment and order should be affirmed, with

costs.

VAN BRUNT, P. J., and O'BRIEN and MCLAUGHLIN, JJ., con

cur.

INGRAHAM, J. (dissenting). I do not concur in the affirmance of this judgment, as I do not think that the evidence is sufficient to justify a finding that the defendant was negligent. So far as appears, the truck upon which the plaintiff was riding drove in front of the car when the car was but a short distance from the truck, and there is nothing to show that the motorman could have stopped the car in time to avoid the collision. I think it is quite apparent that there is nothing to show that the motorman did not, as soon as it was apparent

that the truck would cross in front of the car, do all that he could to avoid the accident, and nothing to show that the collision was not solely caused by the action of the driver, without fault of the defendant. The fact that the truck was at the easterly curb line at Second avenue when the car had reached a point about 100 feet north of the street would not justify a finding of negligence, as there was nothing then to indicate that the driver of the truck intended to cross in front of the car, instead of waiting, as he should have done, until the car had passed. I think the judgment should be reversed.

(90 App. Div. 555)

PEOPLE ex rel. VAN NORDER v. SEWER, WATER, AND STREET COMMISSION OF VILLAGE OF SARATOGA SPRINGS et al. (Supreme Court, Appellate Division, Third Department. January 6, 1904.) 1. HIGHWAYS-HACKMEN-LICENSE-REVOCATION-CONSTITUTIONAL LAW.

Laws 1902, p. 1216, c. 503, § 40, prohibiting any hackman from permitting his horse or vehicle to stand in any public street of the village of Saratoga Springs for hire, or to walk or drive through the streets soliciting patronage, was not unconstitutional, as depriving a hackman of his property without due process of law, since such hackman had no legal right to conduct his business in a public street, except as licensed so to do. 2. SAME-LICENSES-ISSUANCE-REVOCATION.

Under Laws 1902, p. 1202, c. 506, § 9, subd. 23, and section 41, p. 1217, as amended by Laws 1903, p. 465, c. 192, authorizing the village of Saratoga Springs to pass reasonable ordinances, by-laws, and regulations regulating, restraining, and licensing hackmen, to fix the amount to be paid for a license, and to prohibit any hackman from carrying on such business in the village without a license, and to issue the same, the village street commission authorized to issue such licenses had power to revoke a license so issued, for the licensee's breach of a regulation governing his business.

3. SAME EVIDENCE.

Where a licensed hackman drove his vehicle up and down one of the principal streets of the village, going slowly, looking from side to side as he drove, and while so driving a man on the sidewalk beckoned to him, whereupon he was taken as a passenger for hire to a certain place, and on returning the hackman again continued to drive up and down the street from side to side, passing the leading hotels of the village, such facts justified a finding that he thereby violated Laws 1902, p. 1216, c. 506, § 40, prohibiting any hackman from driving through the streets of a village soliciting patronage, and authorized the revocation of his license.

Certiorari by the people, on the relation of George A. Van Norder, to review proceedings of the sewer, water, and street commission of the village of Saratoga Springs revoking relator's license as a hackman in said village. Determination affirmed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

T. F. Hamilton, for relator.

Joseph P. Brennan, for respondents.

CHESTER, J. The relator was a licensed hackman in the village of Saratoga Springs. By section 40 of chapter 506, p. 1216, of the

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Laws of 1902, it is made unlawful for any hackman to "permit any horse or vehicle to stand in any public street of said village for hire, or to walk or drive through the streets soliciting patronage." The relator was charged before the president of the sewer, water, and street commission of the village with a violation of this law, and with a violation of the condition on which his license was issued. After a hearing the charges were sustained, and the relator's license revoked. The purpose of this writ is to review that determination.

It is urged by the relator that the law under which he was licensed, and pursuant to which his license was revoked, is counter to section 6 of article I of the state Constitution; the claim being that he has been deprived of his property without due process of law. It seems to me a complete answer to this contention is that the relator has no legal right to conduct his business in a public street, except he does so under a lawful license authorizing him so to do. The law in question does not prohibit the relator from engaging in the occupation of a hackman, but simply lays down salutary rules, prohibiting his soliciting patronage as such hackman in the public streets. The Legislature has the supreme control of the streets and public highways, and has the right to regulate and restrict their use. People v. Kerr, 27 N. Y. 188, 192. In Cohen v. The Mayor, etc., of New York, 113 N. Y. 537, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506, which was a case involving the question of the right of a municipality to permit the storage of a wagon in a public street, Judge Peckham, writing for the court, said:

"The primary use of the highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose. It is no answer to the charge of nuisance, that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture. If it be permanently or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking Ito the convenience of the greater number, prohibits any such use of the public streets. The old cases said the king's highway is not to be used as a stable yard, and a party cannot eke out the inconvenience of his own premises by taking in the public highway.”

The law in question here was clearly one for the protection of the public, and to secure to them the uninterrupted use of the streets of the village, free from interference by hackmen, either in obstructing the streets with their unemployed vehicles, or by their importunities or solicitations for patronage.

When the Legislature gave to the municipality the right to license hackmen under certain restrictions and conditions, the act was a lawful exercise of legislative power. In order to enjoy the benefits of the license so authorized, the licensee is bound to comply with the lawful restrictions imposed as a condition of issuing the license. The license to this relator was issued by the commission, as the authorized agents of the village of Saratoga Springs, and was accepted by the relator subject to all the laws of the state, and the ordinances of the commission and of the village regulating the use of the streets, and contained a proviso that a violation of any of its conditions would result in its for

feiture. One of such ordinances provided for two hack stands, which were maintained by the village pursuant to the ordinance, where licensed vehicles might stand while waiting for employment; and one of the conditions fully set forth in the license was that the relator should not "permit any horse or vehicle to stand in any public street in the village for hire, or to walk or drive through the streets soliciting patronage." He was charged with violating that condition. If that charge was true, it was a breach of the contract under which he received his license, and, under the terms thereof, it was forfeited. So, also, if it was true, there has been no interference with any of the rights of the relator, constitutional or otherwise, except such as he expressly agreed might be interfered with in case he violated any of the conditions under which his license was issued to him. It is urged, however, that the relator had an absolute right to a license, upon his paying the stipulated charge therefor, and that the commission had not discretion in the matter of issuing it, and therefore they had no right to impose the condition named in the statute, or to revoke the license for its violation; but that is evidently not so, as this commission are given the power, under the law, to establish such ordinances, by-laws, and regulations as they shall deem proper and reasonable to regulate, restrain, and license all hackmen engaged in carrying passengers for hire, to fix the amount to be paid for a license in each case, and to prohibit any hackman from carrying on any such business in the village without having previously obtained a license (Laws 1902, p. 1202, c. 506, § 9, subd. 23), and to issue such license (Laws 1902, p. 1217, § 41, as amended by Laws 1903, p. 465, c. 192). Under similar statutes, it has been held that the person or board authorized to issue the license was clothed with a discretion to grant or refuse it. People ex rel. Schwabb v. Grant, 126 N. Y. 473. 27 N. E. 964; Matter of Armstrong v. Murphy, 65 App. Div. 126, 72 N. Y. Supp. 475; People ex rel. Houston v. Mayor of New York, 7 How. Prac. 81. The case of People ex rel. Osterhout v. Perry, 13 Barb. 206, is cited in support of the contrary doctrine; but, as has been said, that case "is deemed quite doubtful as an authority, in view of the later cases on the subject." People ex rel. Cumisky v. Wurster, 14 App. Div. 556, 43 N. Y. Supp. IOS8. I think, therefore, that the relator had no property right which gave him the privilege to carry on business as a hackman in the streets of the village of Saratoga Springs without a license, and, having accepted a license upon a condition that he should not solicit patronage in the public streets, a violation of that condition properly resulted in a forfeiture of his license in accordance with its terms.

Upon the question as to whether or not he violated the condition, there was presented a clear question of fact for the determination of the president of the commission. It was shown that the relator on the 4th day of September, 1903, from about 2 o'clock to about 3:05 o'clock in the afternoon, with two horses hitched to a surrey, drove up and down Broadway, in the village of Saratoga Springs, going slowly, looking to the right and to the left as he drove; that at five minutes after 3, while he was thus driving, a man on the sidewalk beckoned to him, and he turned into the curb, took him into his surrey, and drove away with him; that he returned with such person in about 10 minutes,

and 120 New York State Reporter

and received 50 cents fare from him; and that from that time until 5:30 o'clock he again continued to drive slowly and continuously up and down Broadway, looking on either side as he drove. The place where he drove was in the heart of the village, passing in front of the leading hotels. The act of soliciting patronage may be evidenced quite as well by conduct as by word of mouth. The mere fact that he was driving during so long a period upon a busy thoroughfare, looking along as he went, to the sidewalks and the hotels, with his licensed surrey, and taking up a passenger whom he found upon the street, was quite sufficient evidence to justify the conclusion on the part of the president of the commission that he was engaged in soliciting patronage in violation of the statute and of his license. We think, therefore, we should not disturb the conclusion of the president of the commission as being against the evidence or the weight of evidence.

The determination should be confirmed, without costs. All concur.

(90 App. Div. 564.)

In re SPEAR'S WILL.

(Supreme Court, Appellate Division, Third Department. January 6, 1904.) 1. WILL-PROVISION IN LIEU OF DOWER-CONSTRUCTION.

In a will which disposes of the whole of the testator's estate, a bequest of a sum to his wife, to be accepted "in lieu of dower and of all rights statutory and otherwise," does not give her by implication, in case she rejects the provision of the will, the right to a legacy equal to her distributive share of his personalty if he had died intestate, in addition to dower.

2. SAME-DEBTS TO WIFE.

Where a testator by his will provides that after his debts are paid he gives his wife a sum in lieu of dower and other rights, statutory and otherwise, if she accepts the provision, she is entitled to the payment of any debt due her in addition to the legacy.

Appeal from Surrogate's Court, Washington County.

Proceedings in the matter of proving the last will and testament of John Spear, deceased. From so much of a decree as construes a provision of the will made for her benefit, Sarah Spear appeals. Modified and affirmed.

The will in question contained the following provision: "First. After all my lawful debts are paid and discharged I give, devise and bequeath to my wife Sarah Spear, the sum of six hundred dollars ($600) this sum is given to and to be accepted and received by her, in lieu of dower and of all rights statutory and otherwise on her part against my estate." The will, after giving several bequests of small amounts to children and grandchildren, contains the following residuary clause: "Sixth. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my three sons, William Spear, Samuel Spear and George Spear, to be divided between them share and share alike." It then contains a clause directing the executors to sell all the testator's real estate and personal property, and "with the proceeds thereof to pay my debts and funeral expenses and all the above legacies." The surrogate decided that the true construction and legal effect of the first paragraph of the will was that "in case the said widow accepts said bequest of $600 she thereby cuts off her right of dower, her statutory rights under section 2713 of the Code of Civil Procedure, and any debt that may exist in her favor against the estate; and that, in the event of her failure or refusal to