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and 120 New York State Reporter Savage v. Third Avenue R. R. Co., 29 App. Div. 556, 51 N. Y. Supp. 1066; Wallace v. Third Avenue R. R. Co., 36 App. Div. 57, 55 N. Y. Supp. 132; Sexton v. Metropolitan Street R. Co., 40 App. Div. 26, 57 N. Y. Supp. 577; Kimber v. Metropolitan Street R. Co., 69 App. Div. 353, 74 N. Y. Supp. 966; Lobsenz v. Metropolitan Street R. Co., 72 App. Div. 181, 76 N. Y. Supp. 411. The appellant insists, however, that the case presented no evidence of negligence on the part of the defendant, and relies in support of the proposition on the case of Monroe v. Metropolitan Street R. Co., 79 App. Div. 587, 80 N. Y. Supp

. 177. I cannot see why the decision in that case should control the disposition of this one. There the passenger attempted to board the car in the middle of it, and before the rear of the car had reached the place where he was standing. It was held that no negligence could be imputed to the motorman merely because he accelerated the speed of the car before it actually stopped, unless he saw that the intending passenger was at that time attempting to board it. The trial court submitted that case to the jury upon the theory that they might find, under the circumstances stated, that the conductor was negligent. The Appellate Court said (page 589, 79 App. Div., and page 179, 80 N. Y. Supp.): "But, assuming that there was a question for the jury as to the negligence of the motorman, there was certainly no evidence to justify a finding that the conductor was negligent." What the court said in that case to the effect tliat the motorman (page 590, 79 App. Div., and page 179, 80 N. Y. Supp.) "could not assume that the plaintiff would attempt to board the car until it had actually stopped" must be applied to the facts as therein presented. In this case the charge on the subject of the defendant's negligence was certainly as favorable to the defendant as the facts warranted, and the verdict must be deemed to have been based on a finding which included the hypothesis suggested by the court which would sustain the claim of negligence. The trial judge charged the jury on that subject as follows:

“The plaintiff says that the negligence was that the car slowed down. He claims that it did, but it is for you to say whether the evidence bears that out. The plaintiff says that it slowed down almost to a stop, and then started off, and threw him when he was getting on. If that be the fact, it is for you to say whether or not the motorman saw him, and slowed down in response to his signal, and then started off without giving him a reasonable time to get safely on the car. If he did see that the plaintiff was getting on, and be started off under these circumstances, that would be negligence. If the motorman did not see him getting on, and did not see his signal, and had no reason to apprehend that he was going to get on, although he had slowed down and started off again, that would not be negligence, and you cannot find for the plaintiff.”

The defendant's counsel thereafter asked the court to charge that, "even if the motorman saw this plaintiff signal, and in response thereto slowed his car, unless the motorman actually saw the plaintiff in the act of boarding the car it was not negligence for him to increase the speed of the car before the rear of the car had passed the plain

The court refused to charge this except as already charged, viz., in effect that, if the motorman had reason to believe that the plaintiff was getting on the car, it would be equivalent to seeing him,

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and would equally enjoin the exercise of care in refraining at that time from suddenly starting the car into violent motion.

No other point raised seems to require discussion. The judgment and order should be affirmed.

Judgment and order affirmed, with costs.

All concur.

FOR

BRADNER V. VILLAGE OF WARWICK. (Supreme Court, Appellate Division, Second Department. March 4, 1904.) 1. MUNICIPAL CORPORATIONS-STREETS-DANGEROUS OBSTRUCTIONS.

The presence in a village street of an open ditch about 300 feet long. from 3 to 4 feet wide, and from 18 to 30 inches deep, and which contained

water, tended to make travel along the highway unsafe.
2. SAME-ANTICIPATION OF PERIL-ABSENCE OF PREVIOUS ACCIDENT.

Where a ditch was within the limits of travel officially fixed in laying out a village street, and existed in the very body of the street itself, the fact that the same conditions had existed for 40 years, and that there had been no previous accidents, did not show, as a matter of law, that no peril

was reasonably to be expected therefrom.
3. SAME-INJURIES TO HORSE-CONTRIBUTORY NEGLIGENCE-QUESTION
JURY.

In an action for injuries to a horse, caused by the fright of his running
mate, who pushed the injured borse into a ditch, whether plaintiff was
guilty of contributory negligence, because of the fact that the horse which
became frightened was a colt, and had not been thoroughly broken, was
properly submitted to the jury, where there was also testimony to the effect
that such horse had previously been driven to the village, in the street of
which the accident occurred, many times, with safety.
Appeal from Trial Term, Orange County.

Action by William A. Bradner against the village of Warwick. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS,
WOODWARD, and HOOKER, JJ.

M. N. Kane, for appellant.
John J. Beattie, for respondent.

WILLARD BARTLETT, J. The plaintiff's cause of action is based upon the alleged negligence of the authorities of the defendant village in permitting the existence of an open ditch, about 300 feet long, between 3 and 4 feet wide, and from 18 to 30 inches deep, within the limits of one of the village streets. The plaintiff was driving in this street, when one of his horses became frightened, and pushed the other into the ditch, causing injuries from which the animal died. For the damage thus sustained, the jury awarded the plaintiff $150, as the value of the horse.

The first question presented by the appeal is whether the evidence was sufficient to sustain a finding of negligence on the part of the village. I think it was. The duty of the village to exercise ordinary and reasonable care and diligence to see that its streets are kept in a

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and 120 New York State Reporter. reasonably safe condition for public travel is not questioned. Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. 473. The presence of a ditch of the dimensions indicated, and which appears to have contained water, as it is frequently characterized in the testimony as a brook, certainly had a tendency to make travel along that portion of the highway unsafe. It is argued that the village authorities had no reason to apprehend the occurrence of such an accident as befell the plaintiff's horse, inasmuch as the same conditions had existed in the street for 40 years, and there was no proof of previous accidents of a similar character. It seems to me, however, that they cannot thus be absolved from responsibility, as matter of law, in view of the fact that the danger existed in the very body of the street itself

. Here the excavation, being within the limits of travel officially fixed in laying out the street, was so situated that I do not think it can be held, as a legal proposition, that no peril was reasonably to be anticipated, because no previous accident had happened.

The cases relied upon by the appellant are readily distinguishable from the case at bar. Most of them relate to conditions existing, not in the highway itself, but outside its boundaries. In Lane v. Town of Hancock, 142 N. Y. 510, 37 N. E. 473, the alleged defect was the absence of a guard or fender on the edge of the road. In Hubbell v. City of Yonkers, 104 N. Y. 434, 10 N. E. 858, 58 Am. Rep. 522, the accident was attributed to the failure to guard an embankment outside the street. In Smith v. Village of Henderson, 54 App. Div. 26, 66 N. Y. Supp. 347, the embankment down which the plaintiff fell with her bicycle was outside the roadway, and her complaint was that the plank walk along which she was riding was not guarded by a sufficient barrier. In Patchen v. Town of Walton, 17 App. Div. 158, 45 N. Y. Supp. 145, the road itself is described as having been in excellent condition, and the alleged negligence was merely the omission to protect its outer edge; and an unguarded opening in a piece of woodland by the side of the road was the cause of the accident in Glasier v. Town of Hebron, 131 N. Y. 447, 30 N. E. 239, which it was held did not create a cause of action in behalf of the plaintiff against the town. There is a manifest difference between these cases and one in which the obstruction is a permanent excavation within the boundaries of the highway itself.

It was contended that the plaintiff was guilty of contributory neg. ligence, by reason of the fact that the horse which became frightened was a colt which had not been thoroughly broken; but there was testimony to the effect that he had previously been driven to the village many times with safety, and the learned trial judge properly submitted this branch of the case, as well as the question of the defendant's negligence, to the jury. I think that the judgment and order should be affirmed.

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Judgment and order unanimously affirmed, with costs. All concur.

FRIEDLAND V. UNION SURETY & GUARANTY CO.

(Supreme Court, Appellate Term. February 23, 1904.) 1. MUNICIPAL COURT-JURISDICTION-FOREIGN CORPORATION.

Under the Municipal Court act (Laws 1902, pp. 1488, 1489, c. 580, $ 1), specifying as the subject of jurisdiction of that court the bond of a marshal of the city of New York as prescribed in the act (subdivision 5), and as persons subject to its jurisdiction foreign corporations having an office in the city of New York, where the amount claimed does not exceed $500 (subdivision 18), it has no jurisdiction of an action against such foreign corporation as surety on the bond of a marshal of the city of New York, where the amount involved is over $500, though there is no limit as to amount specified in subdivision 5. Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Abraham Friedland against the Union Surety and Guaranty Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

S. Sutton, for appellant.
Van Schaick & Norton, for respondent.

GILDERSLEEVE, J. The sole question raised by this appeal, is whether the Municipal Court has jurisdiction to render judgment against a foreign corporation having an office in the city of New York, and being the surety in a bond given by one of the marshals of the city of New York for a greater sum than $500. The Municipal Court held in this case that it had not, and, as the plaintiff claimed to recover upwards of $600, dismissed the complaint on that ground alone; hence this appeal.

The plaintiff's assignors recovered judgment against one Gunn, a marshal appointed for the borough of Brooklyn, and having, pursuant to sections 295 and 296 of the Municipal Court Act (Laws 1902, pp. 1574, 1575, C. 580), applied to a justice of the Supreme Court in the Second Department for leave to prosecute the marshal's bond in their own names, leave was granted, and it was ordered to be prosecuted in the Municipal Court of the city of New York, and this action was then brought by the plaintiff, as assignee of the judgment creditors. The order granting leave to prosecute the bond in question, as originally made, designated the County Court of Kings county as the court in which the action might be brought. But on the application of the attorney for the moving parties, plaintiff's assignors, it was resettled and modified by substituting the Municipal Court of the city of New York in place of the County Court of Kings county.

The determination of the question thus presented seems to rest on the construction of subdivisions 5 and 18 of section 1 (pages 1488, 1489) and of section 296 (page 1575) of the act. Subdivision 5 specifies, as a subject of jurisdiction of the Municipal Court, "the bond of a marshal of the city of New York as prescribed in this act,” and subdivision 18 specifies as persons subject to its jurisdiction ("persons" and 120 New York State Reporter being defined in section 360 (p. 1593) as including both corporations and natural persons); among others, a foreign corporation having an office in the city of New York, where the amount claimed does not exceed $500. Section 295 of the act prescribes the conditions and procedure for obtaining leave to prosecute a marshal's bond by a person aggrieved by the marshal's official misconduct, and section 206 declares that the justice of the Supreme Court to whom the application for leave is made may order the bond to be prosecuted in the Municipal Court of the city of New York, or in the City Court of the city of New York if the borough for which the marshal was appointed be within the county of New York, or in the County Court of the county wherein such borough is situated if in any other county. That section further provides that “either of said courts shall have jurisdiction in actions brought on such bond upon such leave being granted.” Thus, by the terms of this section, as construed by us in Fohs v. Rain, 39 Misc. Rep. 319, 79 N. Y. Supp. 872, the justice could have ordered the bond prosecuted in the Municipal Court or in the County Court of Kings county. As already noted, the parties first chose the County Court and afterwards the Municipal Court. In support of his position that the jurisdiction of the Municipal Court in this case was not limited to $500 the counsel for the appellant argues that subdivision 5 of the act confers jurisdiction in an action on the bond of a marshal without limit to the amount of damages it may award, and that subdivision 18, although seemingly limited to actions where the amount claimed does not exceed $500, is to be construed as applying that limit exclusively to actions against an administrator or an executor as such; and that it was intended as an increase of the amount to which the District Courts had by the act of 1895 been limited in suits against an executor or an adininistrator.

The obvious sources of the jurisdiction of the Municipal Court in a case like this are subdivisions 5 and 18, above cited. "The former designates the subject matter of the cognizance; the latter the persons over which it may exercise jurisdiction. One of those persons is a foreign corporation having an office in the city of New York, to which description the defendant here answers. There is no limit in amount specified in subdivision 5, but subdivision 18 contains the limitation of $500. These two subdivisions must be read together, and, so read, by the simplest rules of syntax, the limitation of $500 in subdivision 18 applies to each and every of the persons therein designated. The intention of the Legislature to this effect could hardly be more plainly expressed. It follows from this view that the court below was right in holding that it had no jurisdiction to entertain this action, unless section 296 conferred jurisdiction on that court. Recurring to the terms of that section, it will be observed that the Legislature attempted to clothe a justice of the Supreme Court sitting at Special Term with the power and authority to confer upon the Municipal Court, the City Court of the city of New York, and the County Court jurisdiction of actions on marshal's bonds without limit as to amount; and in one case—that of the County Court—in the face of the express prohibition of the Constitution and the statute against the County Court taking jurisdiction in actions in which the amount claimed exceeds $2,000, or

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