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that a starting signal was not required from the conductor in the case of such a car movement as this.

Appeal from Supreme Court, Appellate Division, First Department.

Proceedings in the judicial settlement of the account of the Union Trust Company of New York, as substituted trustee under the will of Christian E. Detmold, deceased, for Wilhelmina Emilie (Countess Gaston) J'Arschot. From an order of the Appellate Division (170 App. Div. 953, 156 N. Y. Supp.

[2] Moreover, if we should assume that it did dispense with the standing rule for such signal in this case, that would not relieve the motorman from taking some precaution to warn intestate, if he could be charged, as we think he could, with knowledge that the intestate might be where he would be injur-32), modifying a decree of the Surrogate's

ed by the movement of the car.

[3] And, lastly, all of this evidence of the motorman, so far as it tended to establish affirmative facts which would relieve him from the charge of negligence, presented a question of credibility for the jury. If intestate's death was caused by negligence, the motorman was the person who was guilty of that negligence. He was, of course, deeply interested as a matter of common humanity in proving that responsibility for the death of a fellow employé did not lie at his door, and it was for the jury to say whether testimony which he gave under such inducement and for such purpose should be accepted as truthful or rejected. Saranac & L. P. R. R. Co. v. Arnold, 167 N. Y. 368, 60 N. E. 647; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. Rep. 678.

We think that the judgment of both courts should be reversed, and a new trial granted, with costs to abide event.

Court judicially settling the account, Eugene Lentilhon and others appeal. Order modified and affirmed.

See, also, 218 N. Y. 693, 113 N. E. 1067.

Robert Thorne, of New York City, for appellants. James R. Deering, of New York City, for respondent Edward D. Lentilhon. Egerton L. Winthrop, Jr., of New York City, for respondent special guardians.

WILLARD BARTLETT, C. J. On a proceeding in the Surrogate's Court of the county of New York instituted by the Union Trust Company as a substituted trustee under the will of Christian E. Detmold, deceased, it became necessary for the court to direct the proper distribution of the trust fund created by the third paragraph of the testator's will, the trust having terminated by reason of the death of the life tenant. The surrogate made a decree, directing that the fund should be divided into 20 parts and distributed among all the descendants of the testator who were living at the time of the death of the life tenant. On that date there were 20 of such descendants living, 8 of them being the children of Zella Trelawney Lentilhon, the testator's daughter, and 12 of them being children of her children; that is to say, grandchildren of the testator. 314(12)-DISTRIBUTION-MODIFICATION-AP- From this decree only 1 of the 8 children of

CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

Judgment reversed, etc.

(219 N. Y. 537)

In re UNION TRUST CO. OF NEW YORK. (Court of Appeals of New York. Dec. 28, 1916.) 1. EXECUTORS AND ADMINISTRATORS

PEAL BY COPARTY. Where only one child appealed from the surrogate's order apportioning property of a testator's estate equally among 8 children and 12 grandchildren, and the Appellate Division held that the entire estate passed to the 8 children, an order, modifying the surrogate's order so as to give the appealing child one-eighth and the other children and grandchildren equal shares, was erroneous, since the benefit of the modification should have extended to those not appealing.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1293-1295; Dec. Dig. 314(12).]

2. EXECUTORS AND ADMINISTRATORS
314(12)-DISTRIBUTION-RIGHT TO APPEAL
FROM INTERMEDIATE COURT PERSONS NOT
APPEALING FROM TRIAL COURT.

Though only one child appealed from the surrogate's order apportioning property of the testator's estate equally among 8 children and 12 grandchildren, those children not appealing could appeal from the order of the Appellate Division so modifying the surrogate's order as to give the appealing child one-eighth of the estate and the other children and grandchildren equal shares.

[Ed. Note.-For other cases. see Executors and Administrators, Cent. Dig. §§ 1293-1295; Dec. Dig. 314(12).]

Zella Trelawney Lentilhon appealed to the Appellate Division. Upon that appeal the Appellate Division decided that the trust fund should be divided into only 8 equal shares instead of 20 and should be distributed only among the children of Zella Trelawney Lentilhon, excluding from any share in the trust fund the 12 great-grandchildren of Mr. Detmold.

Inasmuch, however, as only one of the 8 grandchildren had appealed, the order of the Appellate Division was drawn so as to benefit that appellant alone; and, accordingly, it directed that one-eighth of the fund should be paid to him, and that the balance of the fund should be divided and distributed in equal shares among all the other descendants of the testator at the rate of 7/152 to each. Five of the 8 grandchildren who did not appeal to the Appellate Division have now appealed to this court from so much of the Appellate Division's order as directs that they shall receive only 7/152 of the trust fund, and they ask this court to modify the order so as to provide that each of them,

as well as Edward Detmold Lentilhon, shall receive one-eighth of the trust fund in controversy. Although they were not parties to the appeal to the Appellate Division the effect of the order made upon that appeal was to reduce the amount of money which each should receive out of the trust fund below that which they would have received under the decree of the surrogate; and consequently they contend that this reduction not only gives them the right to appeal to this court, but entitles them to a modification of the order of the Appellate Division so as to place them on the same footing with their brother who did appeal to the court be low.

[1, 2] In opposing the desired modification, the respondents rely upon the case of St. John v. Andrews Institute, 192 N. Y. 382, 386, 85 N. E. 143, in which this court held after very careful consideration that next of kin who did not appeal from a judgment construing a will could not take advantage of the reversal of that judgment upon an appeal by others. This, however, was because the interests of the next of kin were not joint, but several, and therefore the action or litigation of one could not conclude or affect the rights of others. In so holding, Chief Judge Cullen, who wrote the prevailing opinion, quoted with approval the general rule on this subject as stated by Mr. Freeman in his treatise on Judgments, thus:

"Where a judgment is against two or more persons, one only of whom appeals, its reversal, if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties who did not appeal to the same extent as those who did." 2 Freeman on Judgments, § 481.

In the present case it is manifest that all the brothers and sisters of Edward D. Lentilhon, who alone appealed to the Appellate Division, must co-operate in complying with the judgment of that court by suffering a

reduction of the amount which otherwise they would have received under the decree of the surrogate. Therefore they constitute a class, all of whom are necessarily affected in the same way and to the same extent by the order of the Appellate Division. It follows that the benefit of that order may not be confined to Edward D. Lentilhon alone, but must be awarded to the present appel

lants.

The order of the Appellate Division should be modified by directing a distribution of the trust fund among the eight children of the testator's daughter, Zella Trelawney Lentilhon, and, as thus modified, should be affirmed, with costs to the appellants and to the special guardians payable out of the estate.

CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

Ordered accordingly.

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The rule that evidence of profits of business that are uncertain and fluctuating is not admissible to prove loss sustained by reason of personal injuries applies to death cases, as well as to cases of injury not resulting in death. [Ed. Note.-For other cases, see Death, Cent. Dig. § 88; Dec. Dig. 67.]

2. DAMAGES 67 - EVIDENCE-ACTION FOR DEATH-AMOUNT RECEIVED FROM DECEDENT.

In an action for the death of an expressman who had been carrying on a private express business for himself, a small part of the profits being derived from his capital invested in horses and wagons, but the most of it from his own personal efforts, testimony by the widow that he gave her $35 a week is not inadmissible under the rule that evidence of profits of business is not admissible to prove loss sustained by personal injuries.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 88; Dec. Dig. 67.]

Hiscock, Chase, and Collin, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Sophie Spreen, as administratrix of Carl Spreen, deceased, against the Erie tiff was affirmed by Appellate Division by diRailroad Company. Judgment for the plainvided court (164 App. Div. 941, 149 N. Y. Supp. 1112) and defendant appeals. Affirmed.

William C. Cannon, of New York City, for appellant. Sydney A. Syme, of Mt. Vernon, for respondent.

WILLARD BARTLETT, C. J. The only question which we deem it necessary to discuss in disposing of this appeal relates to the admission of certain evidence introduced to show the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action was brought. Code Civ. Proc. § 1904.

After having testified that she received money from her husband, the widow was asked what she received and how much. The question was objected to as irrelevant and immaterial, counsel adding to his objection the statement that the decedent was in business for himself, and that the estate was The court still carrying on the business. responded:

"The estate, as you call it, could go on in business whether he was living or dead-the same people might-I overrule the objection"

and counsel for the defendant duly excepted. The witness answered that her husband gave her all the money he made, $35 a week when they were in business.

By previous and subsequent testimony of the same witness, all taken without objec tion or exception, it appeared that the decedent had carried on an express business between Hackensack and New York with wagons and horses driven by himself and sometimes by a driver whom he employed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

At first he gave his wife $25 a week, and later she got more, as the business increased. She could not keep it up after his death, as the expenses were too high, and she seems to have abandoned it altogether about 18 months after he was killed.

Counsel for the appellant invokes the rule that evidence of profits of business which are uncertain and fluctuating in character and amount is not admissible to prove loss sustained by reason of personal injuries (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58, 68, 97 N. E. 408, 37 L. R. A. [N. S.] 1137), and asks us to reverse the judgment for the violation of this rule. Individually I doubt whether the point was distinctly presented to the mind of the trial judge, but as a majority of the court think otherwise we must pass upon it.

some extent, derived from the amount he had invested in his horses and wagons, his earnings were chiefly personal, as is apparent from the fact that there ceased to be any net income from the business after his death. The case falls within the doctrine of Kronold v. City of New York, 186 N. Y. 40, 78 N. E. 572, where the element of personal earnings was held to predominate over a comparatively small and incidental investment of capital.

On the whole we conclude that no error was committed by the learned trial judge in the ruling which has been considered, and therefore that the judgment should be affirmed, with costs.

CUDDEBACK, HOGAN, and POUND, JJ.,
HISCOCK, CHASE, and COLLIN,

concur.

JJ., dissent.

Judgment affirmed.

[1] The first question is whether the rule applies to death cases as well as to cases of personal injury not resulting in death. It has been held that it does in Pennsylvania (McCracken v. Traction Co., 201 Pa. 384, 50 Atl. 832), and in Read v. Brooklyn Heights PEOPLE ex rel. TOWN OF SCARSDALE v.

(220 N. Y. 1)

PUBLIC SERVICE COMMISSION OF NEW YORK, SECOND DIST., et al. (Court of Appeals of New York. Jan. 9, 1917.) 1. RAILROADS 99(2) - CONSTRUCTION AND OPERATION-HIGHWAY CROSSINGS-ELEVA

R. R. Co., 32 App. Div. 503, 53 N. Y. Supp. 209, a death case decided by the Appellate Division in the Second Department, when Chief Judge Cullen and I were members of that court, one of the grounds for reversing the judgment was the erroneous admission of proof of the profits realized by the plaintiff's intestate as member of a partnership which was engaged in performing contracts with the city of Brooklyn for cleaning out sewers. The reasons for the rule excluding proof of profits are just as cogent in a death case as in an action for personal injuries not resulting in death, and we think it applies to both classes of actions alike. [2] But was the rule really violated in the case at bar? I think not. Not a word was said about profits, in questioning the widowing the only one which could have petitioned for or in her responses. After she had stated that her husband was in the express business, she was asked how much money she

TION-LIABILITY—STATUTES-CONSTRUCTION. Laws 1913, c. 744, § 91, provides that the town board of any town within which a highway crosses or is crossed by a steam railroad at grade may petition the railroad commissioners to order changes of grade. Section 94 provides that whenever under section 91 a change is made as to an existing crossing, 50 per cent. of the expense shall be borne by the railroad, 25 per cent. by the municipal corporation, and 25 per cent. by the state. A highway crossing over a railroad was elevated, and all save a part of one approach was located in one town, part of town wherein the major portion was located, beone approach being in another. Held, that the

the crossing and having jurisdiction of the road,
was liable for 25 per cent. of the cost.
Cent. Dig. § 294; Dec. Dig. 99(2).]
[Ed. Note. For other cases, see Railroads,

2. RAILROADS 99(2) CONSTRUCTION AND
CROSSINGS-ELEVA-

OPERATION-HIGHWAY

received from him. I have found no New York case in which such a question has been held to be objectionable. The amount customarily received by a wife from her deceased husband plainly has some bearing on the question what constitutes a fair and just compensation for the pecuniary injuries resulting from the decedent's death to the person or persons for whom the action is brought, the wife being one of those persons. Code Civ. Proc. §§ 1903, 1904. The widow's description of her husband's express business shows that it was really an individual enterprise, conducted chiefly by himself, with the occasional assistance of other drivers, in which the horses and wagons corresponded to a mechanic's tools of trade. There is a manifest difference between an individual express business such as this was and the business carried on by a great express company. While the decedent's income was, to

TION-LIABILITY-STATUTES-CONSTRUCTION. Laws 1913, c. 744, § 92, authorizing a municipal corporation in which a highway crossing a railroad is to be raised, to acquire land for the purpose, is a valid exercise of the legislative power to create the municipality the Legislature's representative to acquire land for a public highway.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 294; Dec. Dig. 99(2).]

3. RAILROADS 99(2) CONSTRUCTION AND OPERATION-HIGHWAY CROSSINGS-ELEVATION-LIABILITY-STATUTES CONSTRUCTION. It is within the power of the Legislature to devise and adopt within the Constitution a system for elimination of grade railroad crossings and impose the cost as it might choose, and therefore Laws 1913, c. 744, § 94, imposing onefourth the cost on the town having jurisdiction of the highway, is valid.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 294; Dec. Dig. 99(2).]

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

Certiorari by the People, on the relation of the Town of Scarsdale, against the Public Service Commission of the State of New York for the Second District, and others. From an order of the Appellate Division (173 App. Div. 164, 159 N. Y. Supp. 48), affirming orders of the Commission, the relator appeals. Reversed and orders of the Commission annulled.

William Cravath White, of New York City, for appellant. Frank D. Briggs, of Tarrytown, and Joseph B. Thompson, of White Plains, for respondents.

dale. The statute by which exclusively the town of Scarsdale can be charged is constituted of the sections of the railroad law which related to the crossings of highways by railroads at grade. Those sections were. originally, 60 to 69, inclusive, of the railroad law and were enacted by chapter 754 of the Laws of 1897. Section 60 related to crossings of highways by new railroads, and became section 89 of the consolidated railroad law.

(Laws of 1910, c. 481; Cons. Laws, c. 49). Section 61 related to the crossings of railroads by new highways, and became section

90 of the consolidated law. Section 62 related to the alteration of existing grade crossings and contained the authority for the present proceedings. Among other things it provided:

COLLIN, J. The facts essential to the statement and consideration of the questions 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 18, 1914. It submitted to the town of Greenburgh a statement of the expenditures, charging the town with 25 per centum of them. The town thereupon presented to the Commission its petition, which alleged that the easterly approach to the bridge carrying the highway above and over the tracks of the railroad was wholly within the town of Scarsdale, which should pay the 25 per centum of the cost of the work done in it, and requested that the Commission hear and determine the question. In August, 1914, the Commission, by its order, charged the town of Scarsdale with 25 per centum of the cost of the approach within it, and subsequently denied a rehearing and affirmed the original order. The Appellate Division, under a writ of certiorari, affirmed the orders, and from the order of affirmance the town of Scarsdale presents this appeal.

should determine what alterations or changes, if any, should be made, and communicate the determination "to all parties to whom notice of the hearing in said proceeding was given, or who appeared at said hearing by counsel or in person." The section has been subjected to amendments, the last of which became a law April 16, 1914 (chapter 378). No amendment except that substituting the Public Service Commission for the Board of Railroad Commissioners (Laws of 1909, c. 153) is material in the present consideration. A scrutiny of the section makes indubitable the conclusion that the municipality "within which" the grade crossing to be altered or eliminated "is situated," in the instant case, the town of Greenburgh, is the only municipality which may petition for the alteration, the only one to be personally notified of the hearing and of the decision of the Commission, in fine and in fact is constituted the

instituting and participating in the proceeding, or interested in or affected by the result and sequent order.

[1, 2] We will determine, primarily, wheth-only municipality interested as a party in er or not the town of Scarsdale is under any liability on account of the alteration of the crossing. The highway was crossed by the 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. In 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 there 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 corporation, and twenty-five per centum by the state. had no relation to a proceeding authorized by 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, * 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 forthwith made in accordance with the provisions of this section."

located.

This became section 94 of the consolidated law. Amendments to it have been enacted, of which some are recent. Laws of 1913, c. 744; Laws of 1914, c. 378; Laws of 1915, c. 240. In 1913 (Laws of 1913, c. 744), the language just quoted, as changed by prior amendments, was, in part, changed. It be

came:

*

* *

*

"Whenever under the provisions of section ninety (61) of this chapter a new highway or road is constructed across an existing railroad, the railroad corporation shall pay one-half and the municipal corporation having such jurisdiction over highway shall pay the remaining one-half of the expense of making such crossing above or below grade; and whenever a change is made as to an existing crossing in accordance with the provisions of section ninety-one of this chapter, fifty per centum of the expense thereof shall be borne by the railroad corporation, twenty-five per centum by such municipal corporation and twentyfive per centum by the state, * and in all cases, except where the entire expense is paid by the railroad corporation, the expense of construction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements shall be paid primarily by the municipal corporation having juhighway.

risdiction over the

and subservient to the language of the section which defined the jurisdiction for and authorized the particular proceeding in which they were invoked. Likewise the words "such municipal corporation" or "the municipal corporation," as used in the provision of section 94 apportioning the expenses of a change to an existing crossing, are referable to section 91 and designate the municipal corporation which that section constitutes the representative of the people of the state and a party to and participant in the proceeding from its inception.

[3] The Legislature was wholly free to devise and adopt, within the Constitution, a system for the elimination of grade crossings and impose the costs as it chose. In imposing the costs of altering an existing crossing upon the town in which it is, no rule of law or equity was violated, no unreasonable thing done. The courts should accept the statute as enacted.

Our reasoning and conclusion as stated make unnecessary the consideration of the other question argued.

be reversed, and the orders of August 4, 1914, The order of the Appellate Division should

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