3. FERRIES 32-DUTY OF FERRYMAN¬AU- | Weehawken to West Forty-Second street. A TOMOBILES.

A ferryman, as part of his general duty to portion of the boat called the "horse runway"

exercise reasonable care, is under duty to recognize that automobiles, while not inherently dangerous, may, from conditions of place and circumstances, become dangerous instrumentali

ties.

[Ed. Note.-For other cases, see Ferries, Cent. Dig. 88 79-87; Dec. Dig. 32.]

4. FERRIES 32-FERRYMAN AS INSURER.

Strict diligence and a due regard for the value of human life, required of a ferryman by the rule of reasonable care, do not make him an insurer of the safety of his passengers.

[Ed. Note. For other cases, see Ferries, Cent. Dig. 88 79-87; Dec. Dig. 32.]

5. FERRIES 32-DUTY OF FERRYMAN IN RE

LATION TO AUTOMOBILES.

It was the duty of a ferryman transporting automobiles to provide a practical barrier against the cars running forward and injuring a passenger, and to exercise reasonable supervision over the automobiles while on the ferryboat.

[Ed. Note. For other cases, see Ferries, Cent. Dig. 88 79-87; Dec. Dig. 32.]

6. FERRIES 33-NEGLIGENCE OF FERRYMAN-QUESTION FOR JURY.

In an administratrix's action against a railroad operating a steam ferryboat for death of her intestate by drowning when an automobile on the boat ran forward and knocked decedent into the river, defendant having interposed no obstacle to the progress of the car once it was started, question of defendant's negligence held for the jury.

was set apart for vehicles, the foremost of which were placed about 70 feet from the bow. Passengers used the forward part of the boat in front of the vehicles. At each end of the boat were gates, 3 feet high, made of iron bars bolted together. Back of these were two chains to be stretched across the

width of the ferryboat and hooked to posts. When properly in place they swung 15 inches above the deck. The purpose for which these chains were so placed was, according to the testimony of plaintiff's witnesses, to check careless drivers from running their teams or machines past the lines thus indicated. Chocks were also provided to be used by the deck hands in blocking vehicles.

Edward Barry drove his automobile onto the ferryboat at Weehawken and stopped it about 10 feet back of the chain nearest the gates at the forward end of the boat. The occupants of the car then left it. Only one chain was in use at the time, which was lying on the deck of the ferryboat for its entire length. Plaintiff's intestate was standing in the bow of the ferryboat back of the gates and in front of the automobile. When the ferry boat reached a point about 60 feet from the New York dock, one of the occupants of the car cranked it, starting the engine. Immediately the automobile started forward, ran over the chain which was ly7. APPEAL AND ERROR 1177(7)-DISPOSI-ing on the deck of the boat, struck plaintiff's TION-REVERSAL FOR NEW TRIAL-STATUTE. intestate, and forced him through the gates Under Code Civ. Proc. § 1346, providing that with it into the river, causing his death by an appeal may be taken to the Appellate Division on questions of law or on the facts or on both from a judgment on a verdict, or on trial by the referee or court without a jury, on appeal to the Court of Appeals from a judgment of the Appellate Division reversing a judgment for plaintiff entered upon a verdict and dismissing the complaint, where it appears that the Appellate Division has reviewed the facts and is not satisfied therewith, the Court of Appeals, reversing, should grant new trial.

[Ed. Note. For other cases, see Ferries, Cent. Dig. 88 88-93; Dec. Dig. 33.]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4609; Dec. Dig. 1177(7).]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Nellie Meisle, as administratrix, etc., of Frank Meisle, deceased, against the New York Central & Hudson River Railroad Company. From a judgment of the Appellate Division (168 App. Div. 939, 153 N. Y. Supp. 1128), reversing a judgment entered on verdict for plaintiff and dismissing the complaint, plaintiff appeals. Judgment reversed, and new trial granted.

Frank X. Sullivan, of New York City, for appellant. Robert A. Kutschbach, of New York City, for respondent.

POUND, J. On November 26, 1911, plaintiff's intestate, Frank Meisle, was a passenger on defendant's steam ferryboat from

drowning. Plaintiff recovered a verdict in the trial court against the defendant for causing the death of the intestate by its negligence. The Appellate Division held that there was no evidence to justify a finding that the defendant was negligent, or that it could have anticipated the accident, reversed the judgment of the court below and dismissed the complaint. We think that this

was error.

[1] That no ordinarily prudent eye would see that an automóbile on a ferryboat might be carelessly or accidentally started, and that an accident might occur to a passenger if no safeguards were maintained against it, cannot be asserted without running counter to human experience. In the hands of a nervous or unskilled chauffeur an automobile might be awkwardly stopped or started and thus driven off the boat if no proper barriers were interposed. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye." Munsey v. Webb, 231 U. S. 150, 156, 34 Sup. Ct. 44, 45 [58 L. Ed. 162]; Condran v. Park & Tilford, 213 N. Y. 341, 107 N. E. 567. Automobiles, like horses, do run off ferryboats, and runaway horses and motor cars do not choose

their course with regard to the safety of by- Whitridge, 213 N. Y. 499, 108 N. E. 192, Ann. standers. Cas. 1916C, 856.

[2, 3] The defendant urges that it exercised reasonable care, and that no more is required. Its contention as to the rule is correct, but

"ferrymen, by reason of the nature of the franchise they exercise, and the character of the services they render to the public, are held to extreme diligence and care, and to a stringent liability for any neglect or omission of duty. Wyckoff v. Queens Co. Ferry Co., 52 N. Y. 32, 34, 11 Am. Rep. 650.

"

[4-7] Reasonable care is a relative term, and such is the rule of reasonable care for ferrymen. If we add to that general duty the further duty of recognizing that automobiles, while not inherently dangerous, may from conditions of place and circumstance become dangerous instrumentalities, the meaning of reasonable care in this connection is readily suggested. Strict diligence and a due regard for the value of human life do not constitute the ferryman an insurer of the safety of his passengers. Even unreasonable expense and trouble are not insisted upon as against all possible accident and misadventure. But as Andrews, J., said in Loftus v. Union Ferry Co. of Brooklyn, 84 N. Y. 455, 460, 38 Am. Rep. 533, the line which separates accidents for which the defendant is not liable and accidents creating responsibility by reason of negligence is "often narrow and difficult to be drawn," and it is well not to draw the line dogmatically. This is not a case of sufficient barriers and safeguards and proper supervision unavailing against unforeseen calamity. The chain which properly swung 15 inches above the deck lay flat on the deck. The chocks were not placed under the wheels of the automobile. Nothing was done to prevent the starting of the engine. Not the slightest obstacle was interposed to the progress of the car when once started. Perhaps no practical appliances and no ordinary watchfulness on the part of the defendant's employé would have been availing, but we cannot say this as matter of law. We do not sufficiently understand the operation of ferryboats to know how careful it may be in this regard. In any

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 732, 733, 738; Dec. Dig. ~152.] 4. GUARANTY →35 — CONSTRUCTION "ULTIMATE"-"FULL AND PROMPT PAYMENT." An agreement guaranteeing the "full, prompt, and ultimate payment" of notes and of "any and all renewals thereof or either of them," etc., as the words "full and prompt payment" would be inapt if all that the parties intended was a guaranty of collection, the word "ultimate" was intended to include renewal notes and not to limit the guaranty to loans unpaid after diligent effort to collect, and the intention of the parties and effect of the agreement was an unconditional guaranty of the payment of the notes or renewals according to the terms thereof. Cent. Dig. § 37; Dec. Dig. 35, [Ed. Note.-For other cases, see Guaranty,

First and Second Series, Ultimate; Prompt PayFor other definitions, see Words and Phrases, ment.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the First National Bank of Litchfield, Connecticut, against Mary E. Jones

and Charles H. Jones, executrix and execu

event, the automobile did not break down suitable barriers, for no barriers were interposed. The case is therefore unlike McGrell v. Buffalo O. B. Co., 153 N. Y. 265, 47 N. E. 305, and cases cited. The duty of the defendant was to provide a practical barrier and exercise reasonable supervision over the automobiles while they were on the ferryboat. Wyckoff v. Queens Co. Ferry Co., su-tor of the last will and testament of Oliver L. pra. The question of defendant's negligence should therefore be submitted to the jury. As the judgment appealed from was rendered after September 1, 1914, and it appears that the Appellate Division has reviewed the facts and is not satisfied therewith, this court should reverse the judgment and grant a new trial. Code Civ. Proc. § 1346; Middleton v.

Jones, deceased. From a judgment of the Appellate Division (168 App. Div. 950, 153 N. Y. Supp. 1114), affirming a judgment directed by the court for plaintiff, defendants appeal. Affirmed.

The nature of the action and the facts, so far as material, are stated in the opinion.

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

John Burlinson Coleman, of New York | not alone for the specific notes mentioned in City, for appellants. Dickinson W. Richards, the agreement, but for "any and all renewals of New York City, for respondent.

CHASE, J. The defendants' intestate at his special instance and request, in 1906 procured from the plaintiff a loan to the Mine Hill Quarry Company of which he was a stockholder, upon its promissory notes in various amounts aggregating $10,000, and also at his special instance and request, a loan to one Eckerson upon the promissory notes of said Eckerson, indorsed by said company, in various amounts aggregating $10,000, and he gave to the plaintiff a contract in writing reciting said loans, the material part of which contract is as follows:

thereof or either of them when the same shall become due and payable until all of said loans and notes and any and all renewals thereof are fully paid and discharged." The use of the words "full and prompt payment" would be inapt if all that the parties intended was a guaranty of collection.

Upon examination of all the words in the agreement it would seem to have been the intention of the parties in the use of the word "ultimate" to make sure of including the notes finally given in renewal, and that the word "ultimate" was not used to limit the guaranty to loans unpaid after diligent effort to collect them had been made.

We are of the opinion that the word "ulti

"Now, therefore, I hereby covenant and agree with said bank to guarantee, and I do hereby guarantee the full, prompt, and ultimate pay-mate" was used to cover notes ultimately givment of all of said notes, aggregating twenty thousand dollars ($20,000) and of any and all renewals thereof or of either of them when the same shall become due and payable, until all of said loans and notes and any and all renewals thereof are fully paid and discharged."

Al

en in whole or in part in renewal of the notes given at the time of the guaranty and thus to clearly continue the obligation of guaranty so long as the loans were extended. though the guaranty was made in New York state, it relates to loans by a Connecticut bank to a corporation and an individual each doing business in the state of Connecticut and upon notes made and payable in that

state.

The notes were renewed from time to time until August 9, 1913, when the defendants' intestate, the guarantor, died. At that time there remained unpaid of said loans one note of the Mine Hill Quarry Company of $10,000, and one of said Eckerson indorsed by said The case of National Exchange Bank v. company of $6,500. Both were payable at the Gay, 57 Conn. 224, 17 Atl. 555, 4 L. R. A. 343, plaintiff's bank and were there duly present- is so similar in the material part of the form ed for payment when they respectively became due, but there was no money at the of guaranty under consideration that it has bank to pay them or either of them. This been suggested that it may have been specialaction was then commenced. The only ques-when the contract of guaranty was prepared. ly considered and followed by the parties tion involved herein is whether under the agreement the plaintiff was required to make diligent effort to collect the notes of said Eckerson and said company before insisting upon payment thereof from the defendants. [1] If the agreement was an unconditional guaranty of payment, then the plaintiff's right of action on the guaranty was complete

when the makers of the notes failed to pay according to the terms thereof. Brown v. Curtiss, 2 N. Y. 225, 227; Stein v. Whitman,

209 N. Y. 576, 103 N. E. 1133.

[2] The meaning of the guaranty depends upon the intention of the parties. Hamilton v. Van Rensselaer, 43 N. Y. 244; Melick v. Knox, 44 N. Y. 676; Catskill Nat. Bank V. Dumary, 206 N. Y. 550, 100 N. E. 422.

[3, 4] The intention of the parties to the agreement under consideration to make an absolute and unconditional guaranty would be entirely clear were it not for the use of the word "ultimate." While every word of an agreement should be presumed to have been used with some purpose, the meaning of each word must be determined and its effect considered in connection with the other words of the agreement. The words "full, prompt payment" have a very important part in the phrase "full, prompt, and ultimate payment." In construing the phrase it is

In that case the language of the guaranty is
for "full, prompt, and ultimate payment of
all promissory notes, drafts, bills of ex-
change, or other evidences of indebtedness
discounted or may hereafter discount for the
which the said National Exchange Bank has

$15,000 in all at any one time."
said" company referred to, "not to exceed

The court in that case held that:

would meet the case of a note, on usual bank "To guarantee 'full and prompt' payment time, actually to be paid in full at maturity. To guarantee in addition to 'full and prompt' payment, the 'ultimate' payment can have no other meaning than that the obligor should continue beyond to the end of all substitutions, renewals, and extensions."

In the case of Hermandez v. Stillwell, 7 Daly, 360, there was a guaranty of "the ultimate payment of the sum named herein, together with interest and all lawful charges, or so much thereof as shall be due and owing," and in Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498, there was a guaranty to a merchant that if he "can sell Mr. C. any groceries I [the guarantor] am willing to guarantee the ultimate payment of any bill he may make with you, to the amount of $500," both of which cases are cited by the appellants as authority for their contention-the intention

in substance that a guaranty of collection | construction of a will, is proper under Code Civ. was intended. The decisions so called to Proc. § 3253, subd. 2.

The judgment should be affirmed, with ed, defendants Florence Skillin Cloyd and costs.

[1, 2] The principles to be applied in determining whether a legacy is charged by imLegacies to one and her three children, designated by name, with direction that they be divid-plication upon the real estate of a testator ed among the four equally, with provision for have been frequented stated, and were recentsubstitution of descendants, are to them individ-ly considered in this court in Ely v. Megie, 219 ually, and not as a class. N. Y. 112, 113 N. E. 800. The intention of the

[Ed. Note. For other cases, see Wills, Cent. testator is the guide. It is determined from Dig. § 1115; Dec. Dig. 523.] the language of the will, read in the light of extrinsic circumstances. We are not to lose sight of the rules which discriminate beAllowance in the discretion of the court of tween wills of real and personal property. additional costs to defendants, in a suit involving We are not to "act upon a conjecture, how

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

and to die intestate as to his real estate. The fund here is not so inadequate as to carry that suggestion. Testatrix owed no debts. She may have expected to increase her estate. The personal property is not disposed of in such fashion that unless the legacies are charged on the real estate, the

ever plausible." Denio, C. J., in Lynes v. Townsend, 33 N. Y. 558, 569. If the intent is not expressed, it must be fairly and satisfactorily inferred. Lupton v. Lupton, 2 Johns. Ch. 614. The relation of the beneficiaries of the will to the testator is not to be overlooked, and the presumption favors children rather than strangers. Scott v. Steb-natural objects of testatrix's bounty receive bins, 91 N. Y. 605. The condition of testator's estate as he knew or believed it to be at the time he made his will may reveal a deficiency of personal property so great and so obvious as to preclude any possible Inference other than that he intended to charge the legacies upon the real estate (Briggs v. Carroll, 117 N. Y. 288, 292, 22 N. E. 1054), but an intention to charge the land will not be inferred from such disparity, even though serious, if the testator might have been unconscious of its existence, mistaken in judgment as to the value of his personal property, or in reasonable expectation of increasing his personal estate before his death. Briggs v. Carroll, supra. The presence of a power of sale of real estate otherwise unnecessary may help the legatees (Kalbfleisch v. Kalbfleisch, 67 N. Y. 354; Dunham v. Deraismes, 165 N. Y. 65, 58 N. E. 789), as may the blending of real and personal property in the residuary clause (Scott v. Stebbins, 91 N. Y. 605, 613; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Brill v. Wright, 112 N. Y. 129, 19 N. E. 628, 8 Am. St. Rep. 717; 2 Jarman on Wills, 1413). The direction to the executors to pay the transfer tax on the legacies from the residue is a circumstance suggesting that the legacies should be paid in full. Subsequent reduction of personal property and increase of real estate has a bearing on the question. Scott v. Stebbins, supra. But these are circumstances merely, and each will is to be considered as a harmonious whole, and not as a combination of ill-fitting fragments (Crumpe v. Crumpe, [1900] A. C. 127, 130, 132), and if the will is drawn by a competent lawyer, the failure expressly to charge the legacies upon the real estate should be, but perhaps is not, as significant a circumstance as any.

In the case before us we have, as evidence of intention of the testatrix at the time of making the will, many legacies to relatives and strangers, aggregating $132,200, to be paid, together with debts and expenses of administration, out of a fund which was about $35,000 less than the amount of the legacies. We have also the incidents of a power of sale, a mingling of real and personal property in a residuary clause, and a direction for the payment of the transfer tax out of the residue, all of which harmonize with an intention to charge the real estate.

In the Ely Case Judge Hogan says the suggestion is incredible that testator should, at the end of his days, with full knowledge of his affairs, intend to leave a wholly inadequate fund from which to pay his legatees

nothing, or less than equity suggests as their share. It would not be “a mockery and an absurdity" to impute to testatrix an intention that the legacies should not be paid if the personal estate was insufficient. Miller, J., in Scott v. Stebbins, supra. At the same time we cannot give effect to the entire plan and purpose of the will without charging the legacies upon the real estate not specifically devised. Whether or not when she executed it she expected that such real estate would be sold to pay legacies we cannot say, but we can say that everything in the will is consistent with such an intention, and that the pow. er of sale and the blending of real and personal property in the residuary clause compel the conclusion that she intended to mingle the personal and the real, not specifically devised, in a common fund. While we should not vex established rules to sustain mere conjectures, the artificial distinctions be tween wills of real and personal property should not be magnified when the circumstances surrounding the execution of the will permit the conclusion from the language thereof that the testatrix intended that the legacies should be paid (Bevan v. Cooper, 72 N. Y. 317), and that they were not meant to be nugatory or unavailing (Taylor v. Dodd, 58 N. Y. 335). The language of this will, construed by the aid of the surrending circumstances, reveals such intention juristically, and justifies a finding that the legacies are a charge upon the real estate.

[3] The next question has to do with the proper construction of the residuary clause. In July, 1900, when the testatrix made her will, she owned an undivided one-half of premises called parcel C, an undivided one-half of the premises at Hempstead on which she resided (which clearly enough included parcels A, B, and D), the whole of parcel F on Washington street, and an undivided half of parcel E. She devised to her sister, Julia A. Harper, "all my right, title and interest" in parcel C and in parcels A, B, and D, and "the whole of" parcel F. By the residuary clause she gave one half of the rest, residue, and remainder of her property to her said sister, and the other half to Sarah E. Skillin and her children. Three years thereafter she acquired the other one-half interest in parcels A, B, and D from her sister Julia. Her interest in parcel E was disposed of before her death. The question is whether the subsequently acquired interest in parcels A, B, and D passed under the devise to her sister or under the residuary clause. The will passed all the real estate which testatrix owned at