was instituted provides for the appointment | duced the people in 1874 to amend the Conof a referee "to hear, examine into, and re-stitution by adding §§ 10 and 11 to article port" the amount of reasonable counsel fees 8. Section 11 was amended in 1884 by addand expenses paid or incurred by a city or ing further provisions, and the substance of county officer in successfully defending him- both sections appears in the revised Conself in any trial or proceeding "to remove stitution of 1894 (art. 8, §§ 9, 10). Section him from office or to convict him 9 is not now important, as it relates to the of any crime" alleged to have been commit- giving or lending of the credit or money of ted “in the performance of or in connection the state; but § 10 makes it a part of our with his official duty," and that the amount fundamental law that "no county, city, town, allowed by the referee, when confirmed by or village shall hereafter give any money or the court, be paid by the issue of revenue property, or loan its money or credit to bonds, to be included in the taxes levied for or in aid of any individual, association, or the following year in the city or county af- corporation, nor shall any such fected. Laws 1899, chap. 700. Another county, city, town, or village be allowed to part of the act provides for the payment of incur any indebtedness except for county. similar claims by the state, but, as the va- city, town, or village purposes." It has been lidity of that part is not involved in this held that this provision does not prevent appeal, no further allusion need be made to the legislature from authorizing the payit. While other questions have been dis- ment by a municipal corporation of a claim cussed before us, the main question is which, although it could not be enforced by whether the legislature had power, under the courts, is founded in justice, supported the Constitution of our state, to pass this by a moral obligation, and could have been statute. That question has been passed up- legally created if the proceedings of the lo on several times by the supreme court, and cal authorities had been regular. Wrought the conclusion reached by every judge who Iron Bridge Co. v. Attica, 119 N. Y. 204considered it is that the statute is uncon- 211, 23 N. E. 542. So it may be argued stitutional. Re Straus, 44 App. Div. 425, that payment of a claim otherwise valid, 61 N. Y. Supp. 37; Re Jensen, 28 Misc. 379, but against which the statute of limitations 59 N. Y. Supp. 653, Affirmed in 44 App. had run in favor of a municipal corporation, Div. 509, 60 N. Y. Supp. 933; Chapman v. or of one for money expended or services New York, 57 App. Div. 583, 68 N. Y. Supp. performed for the benefit of a city without 1135; Re Fallon, 28 Misc. 748, 59 N. Y. lawful authority, might be authorized or reSupp. 849; Re Labrake, 29 Misc. 87, 60 N. quired by the legislature. New Orleans v. Y. Supp. 571. Our examination has led us Clark, 95 U. S. 644, 24 L. ed. 521; Friend to the same result, and, as the discussion v. Gilbert, 108 Mass. 408; Brewster v. Syraof the subject has been so thorough and able cuse, 19 N. Y. 116; Brown v. New York, 63 in the courts below, it is necessary for us N. Y. 239; New York v. Tenth Nat. Bank, to do little more than announce our conclu- 111 N. Y. 446, 18 N. E. 618. If a legal liasion. In a case which arose under the Con- bility to pay once existed, but has been susstitution of 1846 before it was amended, ex- pended or barred in some technical way pressions were used by learned judges of short of substantial satisfaction, a moral this court which went beyond the require- obligation to pay still exists, which is recogments of the decision they made. Guilford nized both by statute and common law. v. Chenango County, 13 N. Y. 143. All that Code Civ. Proc. § 395; Tebbetts v. Dowd, was actually decided was that the legisla-23 Wend. 379-382; Buswell, Limitations, § ture had power to require a board of super- 36. In the case before us, however, no benevisors to assess upon the taxable property of a town the amount which highway com missioners had been compelled to pay for costs in an action commenced by them pursuant to the direction of the voters of the town. The payment of such a claim was not an act of charity, as it rested on a strong moral obligation. It was, however, declared in one of the opinions that "the legislature has the right to appropriate the public moneys for local or private purposes, and to impose a tax upon the property of the whole state, or any portion of the state, or any particular or specified kind of prop erty." In another opinion it was said: The legislature is not confined, in its appropriation of the public moneys or of the Sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity." Subsequent cases, following the dicta, rather than the decision, led to results which, as it is said, in

it was conferred upon the city, and there was never a legal or moral obligation on the part of the city to pay the claim in question. For time out of mind, in all gov ernments where the common law prevails, a person prosecuted for crime has been compelled to pay his own expenses when he had the means of doing so. People ex rel. Brown v. Onondaga County, 4 N. Y. Cr. R. 102, Affirmed in 102 N. Y. 691. If without means, the counsel assigned by the court served without pay, except under a recent statute a moderate allowance may be made in a capital case. Laws 1897, chap. 427; Code Crim. Proc. § 308. This exception is founded on the theory that a fair trial can not be had without the aid of counsel, and that money paid from public funds to counsel appointed by the court for a prisoner without means is paid for a publie purpose. The proceeding instituted against the ap pellant was not a prosecution for crime, but to discipline or remove him for misconduct as a public officer. There was no authority. statutory or otherwise, to appoint counsel

to defend him, and no attempt was made to | State, 160 N. Y. 217, 54 N. E. 678, no defido so. It was necessary for him to employ nition was attempted, but the doubt exand pay his own counsel, as has always pressed on page 224, 160 N. Y. and page been the case with others similarly situat-679, 54 N. E., is not without significance. ed. Payment of his expenses by the public As a city purpose is of necessity a public would be a mere gratuity, and without the purpose, limited or applied to a city, the sanction of custom or precedent. There definition of a public purpose by the Suwas no moral obligation on the part of the preme Court of the United States in an imrespondent to discharge such a claim, for it portant case is worthy of careful attention. had no foundation in natural or legal right. That learned court declared that "there car It is not the duty of the public to defend be no lawful tax which is not laid for a pubor aid in the defense of one charged with lic purpose. It may not be easy to draw official misconduct. The history of morals the line in all cases so as to decide what is or jurisprudence recognizes no such obliga a public purpose in this sense and what is tion. When a citizen accepts a public of not. It is undoubtedly the duty of the legfice, he assumes the risk of defending him- islature, which imposes or authorizes self against unfounded accusations at his municipalities to impose a tax, to see that own expense. Whoever lives in a country it is not to be used for purposes of private governed by law assumes the risk of having interest, instead of a public use; and the to defend himself without aid from the pub-courts can only be justified in interposing lic against even unjust attempts to enforce when a violation of this principle is clear, the law, the same as he assumes the bur-and the reason for interference cogent. And den of taxation. As was said in Re Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933, it is "a part of the price he pays for the protective influence of our institutions of government." Asking for aid to pay the expenses of a defense already made from one's own resources is like asking for aid in the payment of taxes or the discharge of any public burden. It is not a city or county purpose, but a mere gift.

The courts have found it difficult to define a county, city, town, or village purpose, and have, as a rule, proceeded by the process of exclusion. People ex rel. Murphy v. Kelly, 76 N. Y. 475-487; Re New York, 99 N. Y. 569-585, 2 N. E. 642; Re Niagara Falls & W. R. Co. 108 N. Y. 375-385, 15 N. E. 429. In Sun Printing & Pub. Asso. v. New York, 152 N. Y. 257-265, 37 L. R. A. 791, 46 N. E. 499, the following general definition was laid down: "The purpose must be necessary for the common good and general welfare of the people of the municipality, sanctioned by its citizens, public in character, and authorized by the legislature." In Bush v. Orange County, 159 N. Y. 212217, 53 N. E. 1121, 45 L. R. A. 559, it was declared, in substance, that the payment of a claim “which there was no legal or moral obligation on the part of" a town to pay is not a town purpose, and "is in conflict with the provision of the Constitution

which forbids the town from giving any money to or in aid of an individual.” In Re Greene, 166 N. Y. 485-494, 60 N. E. 183, the court alluded to "the distinction between the gratuity which the Constitution now forbids and the meritorious claim which it permits municipal bodies to satisfy." In Cayuga County v. State, 153 N. Y. 279-293, 47 N. E. 288, which involved the validity of an act providing for the reimbursement of a county by the state for the expenses of trials for crimes committed in a state prison, it was held that such provision "was not a gift of money of the state, but was intended as a discharge of an equitable obligation, although unenforceable, which, in the judgment of the legislature, rested upon the state." In Roberts v.

in deciding whether, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to a public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation." Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655-664, 22 L. ed. 455461. See also Dill. Mun. Corp. 4th ed. §§ 75, 76; Cooley, Const. Lim. 5th ed. 283, 286; People ex rel. Rodgers v. Coler, 166 N. Y. 1– 44, 52 L. R. A. 814, 59 N. E. 716. Tested by these definitions, and we find none more liberal,-payment of the appellant's claim, which arose nearly three years before the statute in question was passed, is not a city or county purpose. His defense was for his own benefit, not for the benefit of the city. It was a private matter of his own, the same as if he had been sued by the city in an action at law, and had succeeded in his defense. As we have seen, there was no legal liability or moral obligation on the part of the city to pay his expenses, which were not necessary for the common good and general welfare of the municipality, nor public in character, nor, so far as appears, sanctioned by its citizens. It was in no sense a meritorious claim from the standpoint of public interest or good gov ernment, nor one the payment of which is sanctioned by the history of legislation or the acquiescence of the people. He made an unprecedented demand, and its novelty, when the numerous opportunities for the presentation of such claims for time out of mind are considered, is almost a demonstration that it was not incurred for a public purpose. While vast numbers of people during the history of the state have had

claims similar in principle, seldom, if ever before, has one been bold enough to ask for legislation such as that under consideration. While we are always reluctant to interfere with an act of the legislature, the command of the Constitution is supreme, and we are compelled to obey it by adjudging that the statute in question, in so far as it authorizes the payment of the appellant's claim from the funds of the respondent, is unconstitutional and void. Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep.

586.

The order appealed from should be affirmed, with costs.

Parker, Ch. J., Bartlett, Haight, Landon, Cullen, and Werner, JJ., con

cur.

Henry H. SIAS et al., Admrs., etc., of
Charles H. McKee, Deceased, Appts.,

ROCHESTER

v.

RAILWAY
Respt.

(169 N. Y. 118.)

COMPANY,

A street railway company which per-
mits cars of another company to be
run over its tracks under a mere traffic
arrangement is not liable for the death of a
passenger of the latter company caused by
collision with
a tree beside the track, al-
though it laid its tracks so close to a line of
standing trees that faulty construction of a
car or negligent management might bring a
passenger into collision with them, if, by the
exercise of care, they could be passed in
safety.

(O'Brien, J., dissents.)

(December 20, 1901.)

Dec. 502; Benthin v. New York C. & H. R. R. Co. 24 App. Div. 303, 48 N. Y. Supp. 503; Tucker v. Buffalo R. Co. 53 App. Div. 571, 65 N. Y. Supp. 989; Brown v. New York C. & H. R. R. Co. 42 App. Div. 548, 59 N. Y. Supp. 672; Mohr v. Lehigh Valley R. Co. 55 App. Div. 176, 66 N. Y. Supp. 899.

In operating its cars under the circumstances the rate of speed, in violation of the city ordinance, constituted sufficient evidence to justify the jury in finding that it also was a negligent act and a proximate cause of the accident, in that (1) it may have prevented a discovery of his peril by the decedent; (2) it may have prevented a timely warning to the conductor, who knew of the danger.

Baker v. New York, N. H. & H. R. Co. 28 App. Div. 316, 50 N. Y. Supp. 999.

The later negligence of the defendant subjects it to liability in a case where, after an opportunity to discover the peril created or contributed to by the prior negligence of the plaintiffs' intestate, the defendant could nevertheless have prevented the accident by the exercise of proper care.

Wheeler v. Watertown Street R. Co. 77 Hun, 611, 28 N. Y. Supp. 1124: 7 Am. & Eng. Enc. Law, 2d ed. p. 437; Costello v. Third Ave. R. Co. 161 N. Y. 317, 55 N. E. 897; Distler v. Long Island R. Co. 151 N. y. 424, 35 L. R. A. 762, 45 N. E. 937; Button v. Hudson River R. Co. 18 N. Y. 248; Austin v. New Jersey S. B. Co. 43 N. Y. 75, 3 Am. Rep. 663; Barker v. Savage, 45 N. Y. 194, 6 Am. Rep. 66; Weitzman v. Nassau Electric R. Co. 33 App. Div. 585, 53 N. Y. Supp. 905.

Even if contributory negligence is as sumed, for the argument's sake, the question remains whether the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the in

APPEAL by plaintiffs from a judgment of jured party's negligence.

a

the Appellate Division of the Supreme Court, Fourth Department, affirming judgment of a Trial Term for Jefferson County in favor of defendant in an action brought to recover damages for the alleged negligent killing of plaintiffs' intestate. Affirmed.

The facts are stated in the opinions. Messrs. Purcell, Walker, & Burns, for appellants:

The question of the defendant's negli gence should have been submitted to the jury.

Francis v. New York Steam Co. 114 N. Y. 384, 21 N. E. 988; Stierle v. Union R. Co. 156 N. Y. 70, 50 N. E. 419; Gray v. Rochester City & B. R. Co. 61 Hun, 212, 15 N. Y. Supp. 927; Herdt v. Rochester City & B. R. Co. 142 N. Y. 626, 37 N. E. 565, 65 Hun, 625, 20 N. Y. Supp. 346; Holbrook v. Utica & S. R. Co. 12 N. Y. 236, 64 Am.

NOTE. As to the liability of the lessor of a railroad for injuries caused by negligence of another company using the road under a lease, license, or other contract, see Caruthers v. Kansas City. Ft. S. & M. R. Co. (Kan.) 44 L. R. A. 737, and note.

Kenyon v. New York C. & H. R. R. Co. 5 Hun, 479, Affirmed in 76 N. Y. 607: Green V. Erie R. Co. 11 Hun, 333; Melhado v. Poughkeepsie Transp. Co. 27 Hun, 99; Daties v. Mann, 10 Mees. & W. 546; Wharton, Neg. § 300; Shearm. & Redf. Neg. § 99: Thomp. Neg. p. 1157; Beach, Contrib. Neg. § 67: Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 55, 35 L. ed. 67, 11 Sup. Ct. Rep. 478; Gleeson v. Virginia Midand R. Co. 140 U. S. 435, 443, 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Grand Trunk R. Co. v. Ives, 144 U. S. 409, 429, 36 L. ed. 486, 493, 12 Sup. Ct. Rep. 679; Texas & P. R. Co. v. Cox, 145 U. S. 595, 608, 36 L. ed. 830. 12 Sup. Ct. Rep. 905.

The question of the contributory negli gence of the decedent in standing upon the platform and protruding his head outside the line of the car should have been submitted to the jury. It was not contributory negligence, as matter of law, for the dece dent to ride upon the platform of the defendant's street car.

Nolan v. Brooklyn City & N. R. Co. 87 N. Y. 63. 41 Am. Rep. 345: Vail v. Broadway R. Co. 147 N. Y. 377, 30 L. R. A. 626,

42 N. E. 4; Wood v. Brooklyn City R. Co. | from negligence of both companies, the rail5 App. Div. 492, 38 N. Y. Supp. 1077; road company with whom he contracts is Bradley v. Second Ave. R. Co. 34 App. Div. alone liable for the consequences of such in284, 54 N. Y. Supp. 256; Hastings v. Cen- jury. tral Crosstown R. Co. 7 App. Div. 312, 40 N. Y. Supp. 93; Graham v. Manhattan R. Co. 149 N. Y. 336, 43 N. E. 917; Goodrich v. Pennsylvania & N. Y. Canal & R. Co. 29 Hun, 50.

852

NEW YORK COURT OF APPEALS.

form and projecting his person beyond the
side of the car, he was struck upon the head
by a tree growing in close proximity to the
track, and received the injuries which were
alleged to have subsequently caused his
death. The tree stood within 1 foot and
7 inches of the rail. Notwithstanding that
the contract of the deceased for his carriage
was with the Rochester Electric Railway
Company, it is sought to make the defend-
ant liable for the results of the accident,
and the negligence relied upon to create the
liability consists in the construction of its
railway in such close proximity to a tree.
It sustained no contractual relations to the
deceased, and none such could be predicated
upon a mere traffic arrangement between
the two companies, which permitted the car-
rier of the deceased, for a compensation, to
run its cars over the defendant's tracks.
The defendant had the right to construct its
tracks as and where it did, and what duty
of care and precaution it was under for the
safe operation of its cars it owed to its pas-
sengers. How it performed its duty we are
not informed, and it is immaterial here.
We know that cars could pass the tree. If
there was any negligence, from which the
plaintiffs' intestate suffered, it could only
have been in the manner in which the Roch-
ester Electric Railway Company operated
If the construc-
its cars upon such a track.
tion of its cars was defective, or if their
operation and management were such as
not to furnish adequate security for passen-
gers, then that company would be at fault.
We do not think that the defendant is
chargeable, upon the proofs, with the neg-
lect of any duty owing to the plaintiff's in-
testate, and for that reason the dismissal
of the complaint was proper.

The judgment appealed from should be affirmed, with costs.

cide, originating in doctrines peculiar to the
feudal system; and it has nc application to
the case at bar, which is brought upon a
statute which in itself was a wide depart-
ure from the rules of the common law. The
street in which the defendant's railroad is
operated is 100 feet wide. About 40 feet or
more of the center of this street is occupied
by an asphalt driveway fringed with parks
and lawns. The defendants' double track is
therefore placed near the curb on both sides
of the street, and one of the tracks was
placed so close to a tree that a notch had
to be cut into it in order to permit the roof
of the car to pass. The tree was about 4
inches from the side or body of the car.
The deceased was traveling in the night,
and it was announced in the car that there
was a fire in the vicinity. The deceased, in
order to see or locate the fire, got up from
his seat in the car, and, standing upon the
platform, protruded his head about 4 inches
outside of the body of the car, when his
head came in collision with the tree. It
was this collision that resulted in his sub-
sequent insanity and death, and the sole
question is whether the case was one of law
for the court or of fact for the jury.
There has been much discussion and conflict
of opinion with respect to this case in the
courts below, and it all centers in this sin-
gle proposition. But on the argument in
this court the learned counsel for the de-
fendant did not rest his case upon that
proposition, since he argued and submitted
another question, which will now be briefly
referred to.

It appears that the car in which the deceased was a passenger was not owned by the defendant, but by another railroad company that had a traffic agreement with the defendant to run its cars over the road under the defendant's rules and regulations, dividing the fares with the defendant. The the car in

Parker, Ch. J., and Haight, Landon, conductor and motorman on and Cullen, JJ., concur.

O'Brien, J., dissenting:

The plaintiffs' intestate, while a passen-
ger in a car over the defendant's railroad,
received an injury on the 4th day of Sep-
tember, 1892, which resulted in his death
in an insane asylum on the 14th day of De-
On the third trial of the ac-
cember, 1894.
tion the plaintiff was nonsuited, and the
nonsuit was sustained at the appellate
division, although on a previous appeal the
same court decided that the case was one
for the jury. 92 Hun, 140, 36 N. Y. Supp.
378, 18 App. Div. 506, 46 N. Y. Supp. 582,
51 App. Div. 618, 64 N. Y. Supp. 1148. The
question presented by this appeal is whether
there was any evidence on the last trial for
the consideration of the jury, since, if there
was, it must be admitted that the nonsuit
was improper.

The learned counsel for the defendant
contends that, inasmuch as the death did
not occur within a year and a day from
the date of the accident, there can be no re-
a rule of the ancient
covery. This was
common law, applicable to cases of homi-

question were employed by the other railroad, but the defendant furnished and controlled the power that operated the cars on the road. On this state of facts it is earnestly contended in behalf of the defendant that the action has been brought against the wrong railroad, and that it should have been prosecuted against the railroad that owned the car and that controlled the servants operating it. I do not think there is anything of substance in this contention. The statute under which this action is brought permits a recovery only against the party whose wrongful act or neglect caused the injury resulting in the passenger's death. The plaintiff could maintain this action against the railroad that owned the road and the track for the plain reason that it was guilty of the wrongful act or neglect resulting in the injury, or at least there was evidence for the jury on that question. If that railroad was properly sued, it is of no consequence that some other road was liable also; either or both may be liable, but it is enough that the defendant is. If the defendant is free from negligence as matter of law, it is difficult to see how the other