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that a starting signal was not required from Appeal from Supreme Court, Appellate the conductor in the case of such a car move- Division, First Department. ment as this.

Proceedings in the judicial settlement of [2] Moreover, if we should assume that it the account of the Union Trust Company of did dispense with the standing rule for such New York, as substituted trustee under the signal in this case, that would not relieve will of Christian E. Detmold, deceased, for the motorman from taking some precaution Wilhelmina Emille (Countess Gaston) l'Arto warn intestate, if he could be charged, as schot. From an order of the Appellate Diwe think he could, with knowledge that the vision (170 App. Div. 953, 156 N. Y. Supp. intestate might be where he would be injur- 32), modifying a decree of the Surrogate's ed by the movement of the car.

Court judicially settling the account, Eugene [3] And, lastly, all of this evidence of the Lentilhon and others appeal. Order modified motorman, so far as it tended to establish and affirmed. affirmative facts which would relieve him See, also, 218 N. Y. 693, 113 N. E. 1067. from the charge of negligence, presented

Robert Thorne, of New York City, for apquestion of credibility for the jury. If in- pellants. James R. Deering, of New York testate's death was caused by negligence, City, for respondent Edward D. Lentilhon. the motorman was the person who was gull- Egerton L. Winthrop, Jr., of New York City, ty of that negligence. He was, of course, for respondent special guardians. deeply interested as a matter of common humanity in proving that responsibility for the death of a fellow employé did not lie at his

WILLARD BARTLETT, C. J. On a pro door, and it was for the jury to say whether ceeding in the Surrogate's Court of the countestimony which he gave under such induce-ty of New York instituted by the Union ment and for such purpose should be accept- Trust Company as a substituted trustee uned as truthful or rejected. Saranac & L. P. der the will of Christian E. Detmold, de R. R. Co. v. Arnold, 167 N. Y. 368, 60 N. E. ceased, it became necessary for the court to 647; Volkmar v. Manhattan Ry. Co., 134 N. direct the proper distribution of the trust Y. 418, 31 N. E. 870, 30 Am. St. Rep. 678.

fund created by the third paragraph of the We think that the judgment of both testator's will, the trust having terminated courts should be reversed, and a new trial by reason of the death of the life tenant. granted, with costs to abide event.

The surrogate made a decree, directing that

the fund should be divided into 20 parts and CHASE, COLLIN, CUDDEBACK, HO distributed among all the descendants of the GAN, CARDOZO, and POUND, JJ., concur. testator who were living at the time of the

death of the life tenant. On that date there Judgment reversed, etc.

were 20 of such descendants living, 8 of them (219 N. Y. 537)

being the children of Zella Trelawney LenIn re UNION TRUST CO. OF NEW YORK. tilhon, the testator's daughter, and 12 of (Court of Appeals of New York. Dec. 28, 1916.) them being children of her children; that 1. EXECUTORS ADMINISTRATORS

is to say, grandchildren of the testator. 314(12) DISTRIBUTION-MODIFICATION-AP- From this decree only 1 of the 8 children of PEAL BY COPARTY.

Zella Trelawney Lentilhon appealed to the Where only one child appealed from the surrogate's order apportioning property of a

Appellate Division. Upon that appeal the testator's estate equally among 8 children and Appellate Division decided that the trust 12 grandchildren, and the Appellate Division fund should be divided into only 8 equal held that the entire estate passed to the 8 chilo shares instead of 20 and should be distributdren, an order, modifying the surrogate's order

as to give the appealing child one-eighth ed only among the children of Zella Trelawand the other children and grandchildren equal ney Lentilhon, excluding from any share in shares, was erroneous, since the benefit of the the trust fund the 12 great-grandchildren modification should have extended to those not of Mr. Detmold. appealing. [Ed. Note.-For other cases, see Executors

Inasmuch, however, as only one of the 8 and Administrators, Cent. Dig. $8 1293-1295; grandchildren had appealed, the order of the Dec, Dig. Om314(12).]

Appellate Division was drawn so as to bene2. EXECUTORS

ADMINISTRATORS fit that appellant alone; and, accordingly, 314(12)-DISTRIBUTION-RIGHT APPEAL it directed that one-eighth of the fund should FROM INTERMEDIATE COURT - PERSONS Not be paid to him, and that the balance of the APPEALING FROM TRIAL COURT.

Though only one child appealed from the fund should be divided and distributed in surrogate's order apportioning property of the equal shares among all the other descendants testator's estate equally among 8 children and of the testator at the rate of 7/152 to each. 12 grandchildren, those children not appealing Five of the 8 grandchildren who did not apcould appeal from the order of the Appellate Division so modifying the surrogate's order as peal to the Appellate Division have now apto give the appealing child one-eighth of the es- pealed to this court from so much of the tate and the other children and grandchildren Appellate Division's order as directs that equal shares.

[EJ. Note. For other cases, see Executors and they shall receive only 7/152 of the trust Administrators, Cent. Dig. $8 1293–1295; Dec. fund, and they ask this court to modify the Dig. 314(12).]

order so as to provide that each of them,

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as well as Edward Detmold Lentilhon, shall

(219 N. Y. 533) receive one-eighth of the trust fund in con

SPREEN v. ERIĘ R. CO. troversy. Although they were not parties (Court of Appeals of New York. Dec. 28, 1916.) to the appeal to the Appellate Division the 1. DEATH Cm 67-DAMAGES-EVIDENCE-PROFeffect of the order made upon that appeal ITS FROM BUSINESS. was to reduce the amount of money which The rule that evidence of profits of business each should receive out of the trust fund sible to prove loss sustained

by reason of person

that are uncertain and fluctuating is not admisbelow that which they would have received al injuries applies to death cases, as well as under the decree of the surrogate; and con to cases of injury not resulting in death. sequently they contend that this reduction [Ed. Note.-For other cases, see Death, Cent. not only gives them the right to appeal to Dig. 8 88; Dec. Dig. Om67.)

ACTION FOR this court, but entitles them to a modifica- 2. DAMAGES 67 – EVIDENCE

DEATH-AMOUNT RECEIVED FROM DECEDENT. tion of the order of the Appellate Division so

In an action for the death of an expressas to place them on the same footing with man who had been carrying on a private express their brother who did appeal to the court be business for himself, a small part of the profits low.

being derived from his capital invested in horses

and wagons, but the most of it from his own [1, 2] In opposing the desired modification, personal efforts, testimony by the widow that he the respondents rely upon the case of St. gave her $35 a week is not inadmissible under John v. Andrews Institute, 192 N. Y. 382, the rule that evidence of protits of business is 386, 85 N. E. 143, in which this court held not admissible to prove loss sustained by per

sonal injuries. after very careful consideration that next of

[Ed. Note.-For other cases, see Death, Cent. kin who did not appeal from a judgment Dig. & 88; Dec, Dig. Om 67.] construing a will could not take advantage Hiscock, Chase, and Collin, JJ., dissenting. of the reversal of that judgment upon an appeal by others. This, however, was be

Appeal from Supreme Court, Appellate cause the interests of the next of kin were

Division, First Department. not joint, but several, and therefore the ac

Action by Sophie Spreen, as administratrix tion or litigation of one could not conclude of Carl Spreen, deceased, against the Erie or affect the rights of others. In so holding, Railroad Company. Judgment for the plainChief Judge Cullen, who wrote the prevailing tiff was aflirmed by Appellate Division by diopinion, quoted with approval the general vided court (164 App. Div. 941, 149 N. Y. rule on this subject as stated by Mr. Free. Supp. 1112) and defendant appeals. Affirmed. man in his treatise on Judgments, thus: William C. Cannon, of New York City, for

“Where a judgment is against two or more appellant. Sydney A. Syme, of Mt. Vernon, persons, one only of whom appeals, its reversal, for respondent. if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties

WILLARD BARTLETT, C. J. The only who did not appeal to the same extent as those question which we deem it necessary to diswho did.” 2 Freeman on Judgments, $ 481.

cuss in disposing of this appeal relates to In the present case it is manifest that all the admission of certain evidence introduced the brothers and sisters of Edward D. Len- to show the pecuniary injuries resulting from tilhon, who alone appealed to the Appellate the decedent's death to the person or persons Division, must co-operate in complying with for whose benefit the action was brought. the judgment of that court by suffering a Code Civ. Proc. $ 1904. reduction of the amount which otherwise

After having testified that she received they would have received under the decree of money from her husband, the widow was the surrogate. Therefore they constitute asked what she received and how much. The a class, all of whom are necessarily affect- question was objected to as irrelevant and ed in the same way and to the same ex- / immaterial, counsel adding to his objection tent by the order of the Appellate Division. the statement that the decedent was in busiIt follows that the benefit of that order may

ness for himself, and that the estate was

The court not be confined to Edward D. Lentilhon alone, still carrying on the business. but must be awarded to the present appel- responded: lants.

"The estate, as you call it could go on in

business whether he was living or dead-the The order of the Appellate Division should same people might-I overrule the objection" be modified by directing a distribution of the and counsel for the defendant duly excepttrust fund among the eight children of the ed. The witness answered that her husband testator's daughter, Zella Trelawney Lentil

gave her all the money he made, $35 a week hon, and, as thus modified, should be affirm- when they were in business. ed, with costs to the appellants and to the

By previous and subsequent testimony of special guardians payable out of the estate.

the same witness, all taken without objec

tion or exception, it appeared that the deCHASE, COLLIN, CUDDEBACK, HOGAN, cedent had carried on an express business CARDOZO, and POUND, JJ., concur.

between Hackensack and New York with

wagons and horses driven by himself and Ordered accordingly.

sometimes by a driver whom he employed. Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

concur.

At first he gave his wife $25 a week, and some extent, derived from the amount he had later she got more, as the business increased. invested in his horses and wagons, his earnShe could not keep it up after his death, as ings were chiefly personal, as is apparent the expenses were too high, and she seems to from the fact that there ceased to be any net have abandoned it altogether about 18 months income from the business after his death. after he was killed.

The case falls within the doctrine of KronCounsel for the appellant invokes the rule old v. City of New York, 186 N. Y. 40, 78 that evidence of profits of business which are N. E. 572, where the element of personal uncertain and fluctuating in character and earnings was held to predominate over a amount is not admissible to prove loss sus comparatively small and incidental investtained by reason of personal injuries (Walsh ment of capital. v. N. Y, C. & H. R. R. R. Co., 204 N. Y. 58, On the whole we conclude that no error 68, 97 N. E. 408, 37 L. R. A. (N. S.) 1137), was committed by the learned trial judge in and asks us to reverse the judgment for the the ruling which has been considered, and violation of this rule. Individually I doubt therefore that the judgment should be af. whether the point was distinctly presented firmed, with costs. to the mind of the trial judge, but as a majority of the court think otherwise we

CUDDEBACK, HOGAN, and POUND, JJ., must pass upon it.

HISCOCK, CHASE, and COLLIN, '[1] The first question is whether the rule JJ., dissent. applies to death cases as well as to cases of

Judgment affirmed. personal injury not resulting in death. It bas been held that it does in Pennsylvania (McCracken v. Traction Co., 201 Pa. 384, 50

(220 N. Y. 1) Atl. 832), and in Read v. Brooklyn Heights PEOPLE ex rel. TOWN OF SCARSDALE .

PUBLIC R. R. Co., 32 App. Div. 503, 53 N. Y. Supp.

OF

SERVICE COMMISSION 209, a death case decided by the Appellate

NEW YORK, SECOND DIST., et al. Division in the Second Department, when (Court of Appeals of New York. Jan. 9, 1917.) Chief Judge Cullen and I were members of

1. RAILROADS 99(2) CONSTRUCTION AND that court, one of the grounds for reversing OPERATION-HIGHWAY CROSSINGS-ELEVAthe judgment was the erroneous admission TION—LIABILITY-STATUTES-CONSTRUCTION. of proof of the profits realized by the plain Laws 1913, c. 744, $ 91, provides that the tiff's intestate as member of a partnership town board of any town within which a highway which was engaged in performing contracts crosses or is crossed by a steam railroad at

grade may petition the railroad commissioners with the city of Brooklyn for cleaning out to order changes of grade. Section 94 provides

The reasons for the rule excluding that whenever under section 91 a change is proof of profits are just as cogent in a made as to an existing crossing, 50 per cent. death case as in an action for personal in- of the expense shall be borne by the railroad, 25

per cent. by the municipal corporation, and 25 juries not resulting in death, and we think per cent. by the state. Å highway crossing over it applies to both classes of actions alike. à railroad was elevated, and all save a part of

[2] But was the rule really violated in the one approach was located in one town, part of case at bar? I think not. Not a word was town wherein the major portion was located, be

one approach being another. Held, that the said about profits, in questioning the widowing the only one which could have petitioned for or in her responses. After she had stated the crossing and having jurisdiction of the road, that her husband was in the express busi- was liable for 25 per cent. of the cost. ness, she was asked how much money she

[Ed. Note.-For_other cases, see Railroads, received from him.

Cent. Dig. $ 294; Dec. Dig. Om99(2).) I have found no New York case in which such a question has been 2. RAILROADS Ow99(2) CONSTRUCTION AND

OPERATION-HIGHWAY CROSSINGS-ELEVAheld to be objectionable. The amount cus

TION-LIABILITY-STATUTES-CONSTRUCTION. tomarily received by a wife from her deceas

Laws 1913, c. 744, $ 92, authorizing a mued husband plainly has some bearing on the nicipal corporation in which a highway crossing question what constitutes a fair and just a railroad is to be raised, to acquire land for the compensation for the pecuniary injuries re- purpose, is a valid exercise of the legislative sulting from the decedent's death to the ture's representative to acquire land for a public

power to create the municipality the Legislaperson or persons for whom the action is highway. brought, the wife being one of those persons. [Ed. Note.-For_other cases, see Railroads, Code Civ. Proc. 88 1903, 1904. The widow's Cent. Dig. § 294; Dec. Dig. Om99(2).] description of her husband's express business 3. RAILROADS Own 99(2) CONSTRUCTION AND shows that it was really an individual en OPERATION-HIGHWAY CROSSINGS-ELEVA: terprise, conducted chiefly by himself, with

TiON-LIABILITY-STATUTES-CONSTRUCTION. the occasional assistance of other drivers, in devise and adopt within the Constitution a sys.

It is within the power of the Legislature to which the horses and wagons corresponded tem for elimination of grade railroad crossings to a mechanic's tools of trade. There is a and impose the cost as it might choose, and manifest difference between an individual therefore Laws 1913, c. 744, $ 94, imposing one

fourth the cost on the town having jurisdiction express business such as this was and the of the highway, is valid. business carried on by a great express com

[Ed. Note.--For other cases, see Railroads, pany. While the decedent's income was, to Cent. Dig. $ 294; Dec. Dig. On99(2).]

sewers.

Appeal from Supreme Court, Appellate Di-tracks of the railroad is in the town of Scarsvision, Third Department.

dale. The statute by which exclusively the Certiorari by the People, on the relation of town of Scarsdale can be charged is constithe Town of Scarsdale, against the Public tuted of the sections of the railroad law Service Commission of the State of New York which related to the crossings of highways by for the Second District, and others. From railroads at grade. Those sections were. an order of the Appellate Division (173 App. originally, 60 to 69, inclusive, of the railroad Div. 164, 159 N. Y. Supp. 48), afirming or- law and were enacted by chapter 754 of the ders of the Commission, the relator appeals. Laws of 1897. Section 60 related to crossings Reversed and orders of the Commission an- of highways by new railroads, and became nulled.

section 89 of the consolidated railroad law. William Cravath White, of New York (Laws of 1910, c. 481 ; Cons. Laws, c. 49). City, for appellant. Frank D. Briggs, of Section 61 related to the crossings of railTarrytown, and Joseph B. Thompson, of roads by new highways, and became section

90 of the consolidated law. Section 62 relatWhite Plains, for respondents.

ed to the alteration of existing grade cross

ings and contained the authority for the presCOLLIN, J. The facts essential to the

ent proceedings. Among other things it prostatement and consideration of the questions

vided : presented are: In July, 1910, the Public Service Commission for the Second District, un the president and trustees of any village, the

“The mayor and common council of any city, der the provisions of section 62 of the Rail-town board of any town within which a street, road Law (Consol. Laws, c. 49) as then ex avenue or highway crosses or is crossed by a isting, upon a petition of the New York Cent- steam surface railroad at grade, or any steam ral & Hudson River Railroad Company filed is crossed by a street, avenue or highway at

surface railroad company, whose road crosses or in June, 1905, with its predecessor, the board grade" of railroad commissioners, ordered that a -might petition the board of railroad comgrade crossing of a highway by the petition- missioners to order alterations or changes ing railroad company, located in the town of

relative to the crossing; the commissioners Greenburgh, Westchester county, should be

should thereupon take the action of, among discontinued and the highway carried over

other things, giving personal notice “to said the grade of the railroad in accordance with

petitioner, the railroad company, the mudesignated plans and specifications. The rail

nicipality in which such crossing is situated," road company, in compliance with a provision and to designated

landowners of the hearing of section 65, completed the work and paid to be had, and after notice and hearing the expenses of the construction before April should determine what alterations or chang18, 1914. It submitted to the town of Green

es, if any, should be made, and communicate burgh a statement of the expenditures, charg- the determination “to all parties to whom ing the town with 25 per centum of them. notice of the hearing in said proceeding was The town ereupon presented to the Com-given, or who appeared at said hearing by mission its petition, which alleged that the counsel or in person.” The section has been easterly approach to the bridge carrying the subjected to amendments, the last of which highway above and over the tracks of the became a law April 16, 1914 (chapter 378). railroad was wholly within the town of No amendment except that substituting the Scarsdale, which should pay the 25 per cen- Public Service Commission for the Board of tum of the cost of the work done in it, and Railroad Commissioners (Laws of 1909, c. requested that the Commission hear and de- 153) is material in the present consideration. termine the question. In August, 1914, the A scrutiny of the section makes indubitable Commission, by its order, charged the town the conclusion that the municipality "within of Scarsdale with 25 per centum of the cost which” the grade crossing to be altered or of the approach within it, and subsequently eliminated “is situated," in the instant case, denied a rehearing and affirmed the original the town of Greenburgh, is the only municorder. The Appellate Division, under a writ ipality which may petition for the alteration, of certiorari, affirmed the orders, and from the only one to be personally notified of the the order of affirmance the town of Scarsdale hearing and of the decision of the Commispresents this appeal.

sion, in fine and in fact is constituted the [1, 2] We will determine, primarily, wheth- only municipality interested as a party in er or not the town of Scarsdale is under any instituting and participating in the proceedliability on account of the alteration of the ing, or interested in or affected by the result crossing. The highway was crossed by the and sequent order. railroad at grade within the town of Green Section 63 provided that “the municipal burgh, or, as stated by the brief of the re- corporation in which the highway crossing spondents, the grade crossing "was wholly in is located, may, with the approval of the the town of Greenburgh and was about 135 railroad company," acquire by purchase if feet west of the Bronx river, which is there it could, otherwise by condemnation, lands, the dividing line between the two towns." rights, or easements required for the purpose The easterly approach to the bridge carrying of carrying out the provisions of sections the highway as altered over and above the 60, 61, and 62. It became section 92 of the

*

consolidated law. It also was subjected to In respect of the question here under conamendments. Laws of 1899, c. 226; Laws sideration, the changes in the remaining part of 1909, c. 153; Laws of 1913, c. 744. In so of the quoted language are immaterial. ID far as it was applicable to section 62 or a 1915 (Laws of 1915, c. 240), the words “such proceeding under it, the words, “the munici- municipal corporation,” in the provision relatpal corporation,” manifestly, could designate ing to a change in an existing crossing, were the municipality only, which under section rechanged to the words “the municipal cor62 was a party to the proceeding. The Leg- poration." The sections following section islature lawfully could create such munici- 94, former section 65, are irrelevant here. pality its representative to acquire land for The meaning and effect of the statute, in a public highway. Section 64, which became its application to this case, is plain. The section 93 of the consolidated law, has not town of Greenburgh must bear 25 per centum any bearing upon the present question. Sec. of the expense of the change as to the existing tion 65 contained the provision:

crossing. The words "having jurisdiction “Whenever under the provisions of section six- over the (or such) street, avenue, highway or ty-one of this act a new street, avenue or high-road,” following the words "the municipal way is constructed across an existing railroad, the railroad corporation shall pay one-half and corporation,” do not give rise to an uncertainthe municipal corporation wherein such street, ty or ambiguity. In the original enactment avenue or highway is located, shall pay the re- of section 60, they were used and have not maining one-half of the expense of making such in their substance been changed therein. crossing above or below grade; and whenever a change is made in an existing crossing in accord- They are apt and exact in a proceeding auance with the provisions of section sixty-two of thorized by section 89 or 60 or by 90 or 61, this act, fifty per centum of the expense theru- which does not relate to an existing crossing of shall be borne by the railroad corporation, or an existing location of a crossing. They twenty-five per centum by the municipal corpo- had no relation to a proceeding authorized by ration, and twenty-five per centum by the state.

And in all cases, except where the en- section 62 until May 26, 1913, the time of tire expense is paid by the railroad corporation, the taking effect of chapter 744 of the laws of the expense of construction shall be paid pri- that year. That chapter substituted them in marily by the railroad company, and the expense of acquiring additional lands, rights or ease- section 92 or 63 for the words "in which the ments, shall be paid primarily by the municipal highway crossing is located” and in section corporation wherein such highway crossings are 94 or 65 for the words “wherein such street, located.

Upon the completion of the work and its approval by the board of railroad avenue or highway is located” and for the commissioners, an accounting shall be had be- words “wherein such highway crossings are tween the railroad corporation and the municipal located.” It was the legislative thought that corporation, of the amounts expended by each the substituted words would fulfill the purwith interest, and if it shall appear that the railroad corporation or the municipal corpora- pose of those omitted and the needs of each tion have expended more than their proportion of the sections 89, 90, and 91. They were of the expense of the crossing as herein provided, intended to be, in their application, referable a settlement shall be forth with made in accord- and subservient to the language of the secance with the provisions of this section."

tion which defined the jurisdiction for and This became section 94 of the consolidated authorized the particular proceeding in which law. Amendments to it have been enacted, they were invoked. Likewise the words of which some are recent. Laws of 1913, "such municipal corporation" or "the municic. 744; Laws of 1914, c. 378; Laws of 1915, pal corporation," as used in the provision of C. 240.

In 1913 (Laws of 1913, c. 744), the section 94 apportioning the expenses of a language just quoted, as changed by prior change to an existing crossing, are referable amendments, was, in part, changed. It be- to section 91 and designate the municipal

corporation which that section constitutes "Whenever under the provisions of section the representative of the people of the state ninety (61) of this chapter a new

and a party to and participant in the prohighway or road is constructed across an existing railroad, the railroad corporation shall pay ceeding from its inception. one-half and the municipal corporation having [3] The Legislature was wholly free to de jurisdiction over such

highway vise and adopt, within the Constitution, a shall pay the remaining one-half of the expense of making such crossing above or below system for the elimination of grade crossings grade; and whenever a change is made as to an and impose the costs as it chose. In imposing existing crossing in accordance with the provi- the costs of altering an existing crossing sions of section ninety-one of this chapter, fifty upon the town in which it is, no rule of law per centum of the expense thereof shall be borne by the railroad corporation, twenty-five per cen

or equity was violated, no unreasonable thing tum by such municipal corporation and twenty- done. The courts should accept the statute five per centum by the state,

and in all as enacted. cases, except where the entire expense is paid by the railroad corporation, the expense of con

Our reasoning and conclusion as stated struction shall be paid primarily by the railroad make unnecessary the consideration of the company, and the expense of acquiring addition- other question argued. al lands, rights or easements shall be paid primarily by the municipal corporation having ju- be reversed, and the orders of August 4, 1914,

The order of the Appellate Division should risdiction the

highway.

came:

over

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