John F. Dillon, David B. Hill, Julien T. Davies, and Brainard Tolles, for the motion. John Whalen, Corp. Counsel (William L. Turner and James M. Ward, of counsel), opposed.

HAIGHT, J. It is now claimed that the relator is entitled to a deduction of $2,992,520 from the amount of its assessable assets, as approved by this court, on account of its surplus profits. This question was not considered by us in our review of the case, and we therefore think the question should now be determined. Section 3 of chapter 456 of the Laws of 1857 provides that "the capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent. of its capital, * * * shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county." As we understand this statute, the surplus profits or reserved funds mean the accumulations of the company of moneys or property in excess of the par value of the stock issued by it; that its real estate and personal property is to be assessed at its actual value in the same manner as the other personal and real estate of the county is assessed up to the amount of the par value of the stock issued, and then the surplus profits or reserved funds that have been accumulated in addition which exceed 10 per cent. of its capital stock shall also be assessed at its actual value, and in the same manner. If, however, there are no surplus profits, or if the surplus does not exceed 10 per cent. of the capital stock, there is nothing to assess as surplus, and nothing from which the 10 per cent. of the capital can be deducted. People v. Neff, 26 App. Div. 542, 50 N. Y. Supp. 680. In this case the relator's capital stock issued amounts to $29,925,200. The amount of its assessable assets, as determined by us in our modification of the order of the appellate division, is, real estate $7,323,200, personal estate $9,492,306.62; thus showing an impairment of the capital of the relator of upwards of $13,000,000. There consequently could be no surplus from which a 10 per cent. deduction could be made. It is true that the books of the corporation show a surplus of $5,326.433 of earnings over and above interest and dividends paid, but it was claimed by the relator that the greater portion of this had been paid out in repairs and in the ordinary expenses of the company, and that the fund no longer was in existence as a surplus; and the findings of the referee, as adopted by the special term, support this contention, thus leaving no basis upon which a deduction for surplus can be made. When this case was up for a review in this court upon a former assessment (146 N. Y. 304, 40 N. E. 996), the contention was that the assessors had adopt

ed an improper basis in determining the assessable value of the relator's property. This contention we sustained, and a reassessment was ordered. In sending the case back we made some suggestions upon the assumption that the capital stock remained unimpaired, and that there was a surplus, and stated that there should be a deduction of 10 per cent. of the capital. At the time it did not occur to us that the apparent surplus did not equal the 10 per cent. of the capital, and this oversight makes the statement then made erroneous in that particular. We have carefully examined the brief of the relator's counsel upon the other questions involved in the case which have already been considered by us in the prevailing opinion. We are, however, of the opinion that there is no question of law involved which has not already been considered. The motion for a reargument should be denied, without costs.

PARKER, C. J., and O'BRIEN, BARTLETT, MARTIN, VANN, and LANDON, JJ.,

concur.

Motion denied.

PEOPLE v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO. (Court of Appeals of New York. Jan. 22, 1901.)

RAILROADS BOARD OF COMMISSIONERS FREIGHT DEPOTS-PERSONAL INSPECTION. Under Laws 1890, c. 565, § 161, which, in regulating the powers and duties of the railroad commissioners, provides that if, in the judgment of the board, "after a careful personal examination of the same," it appears that additional terminal facilities should be afforded, the board shall give notice, etc., the board could avail itself of a personal inspection by its inspector, and need not make an actual examination of physical objects to support its recommendation that the erection of a freight depot by defendant railroad was necessary.

Parker, C. J., and Vann and Werner, JJ., dissenting.

Appeal from supreme court, appellate division, Third department.

Mandamus by the people against the President, Managers, and Company of the Delaware & Hudson Canal Company to compel the erection of a freight station. From a judgment of the appellate division (52 N. Y. Supp. 850) in favor of plaintiff, defendant appeals. Affirmed.

Lewis E. Carr, for appellant. Edward P. Coyne, for the People.

BARTLETT, J. We should be content to affirm this judgment on the opinion of the learned appellate division were it not for the fact that a point was argued at our bar which was not considered below. As we approve and adopt the opinion of the appellate division, we shall confine our discussion to this one point. The counsel for the

appellant insists that the recommendation of the railroad commissioners cannot be upheld and enforced by the courts, because it appears upon its face that they did not, in making it, act or proceed in obedience to the provisions of the statute. The railroad law (Laws 1890, c. 565) provides (section 161), in regulating the powers and duties of the railroad commissioners, as follows: "If in

the judgment of the board; after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, the board shall give notice," etc. The contention of the appellant is that the commissioners failed to make the personal examination of the premises required by the statute, and that this omission goes to the jurisdiction of the board to act. It is further urged that this defect appears upon the face of the papers, and could not be cured by oral proof, or by any action on behalf of the people at any stage of the proceedings. In support of this last suggestion reference is made to the report of the railroad commissioners where it states as follows: "That prior to such hearing the board caused a personal inspection of the premises to be made through its inspector, the report of which is on file." It is also argued that, while it is doubtful if the report advises the erection of a freight depot, but, if so, it was not at the place fixed by the commission. This narrow and technical construction of the statute ought not to prevail. It was the obvious intention of the legislature to impose upon the railroad commissioners the duty of a careful personal examination of the subject of repairs or changes upon which they were to act, and it would be unreasonable to hold that the commissioners could not avail themselves of the expert or general knowledge of inspectors they may employ. If repairs of the roadbed were under consideration, the judgment of a disinterested track master might be given weight, as the opinion of one unfamiliar with the practical operation of a railroad would be of little or no value. If curves were alleged to be dangerous, or bridges insecure, the commissioners would naturally call in the civil engineer and the bridge builder. If additional rolling stock or depots were deemed necessary to secure the convenience and accommodation of the public, the commissioners would avail themselves of the knowledge and experience of unbiased and practical railroad men as calculated to aid them in reaching a just con

clusion. In the case before us neither the formal nor informal report of the inspector was adopted, thus showing that the commissioners did not delegate to the inspector any portion of their official duty, but reserved to themselves the power of independent action in the premises. We do not mean to intimate that there may not be presented to the railroad commissioners a case where the statutory command of personal examination of the subject may not require them to visit and inspect the locus in quo, but in the case at bar no personal examination of the location of the freight depot was necessary.

The litigated question was whether the freight depot of the defendant at Green Island was so situated as to meet the demands of freight shippers doing business in West Troy, and, if not, was the volume of freight shipments to and from West Troy over the railroad of the defendant sufficient to justify the commissioners in recommending that the defendant erect a freight depot in West Troy? This question, under the alternative writ of mandamus, was tried before a learned referee, who decided that the recommendation of the commissioners that a freight depot should be erected by the defendant in West Troy was just and reasonable. The location of this freight depot, if it was to be built, was not a matter of dispute. The learned counsel for the defendant states in his brief as follows: "It was conceded by the defendant that when the matter of a freight station at West Troy was first agitated the officers of the company expressed a willingness to build, and bought some land on the south side of Nineteenth street with the view of making use of it for that purpose; but, when the matter was looked into more carefully, it was found that the business that would be likely to go through a freight house would not justify the expense of building and maintaining it." This fairly states the situation,-the true issue. The trial court has decided that the freight business will justify the building and maintaining of a freight house, and the railroad commissioners have recommended its erection upon the land already purchased for that purpose by the defendant. The judgment and order appealed from should be affirmed, with costs, on the above opinion and the opinion below.

CULLEN, J. I concur in the affirmance of the judgment appealed from. I concede that the action of the board of railroad commissioners preliminary to the notice given to the railroad company must be in substantial compliance with the requirements of the statute, or the recommendation of the board cannot be enforced. In my opinion, the statute does not require that there shall be a personal inspection by the members of the board of any physical objects. The statute (Laws 1890, c. 565) reads: "Sec. 161. Recommendations of Board, When Re

pairs or Other Changes are Necessary.-If in the judgment of the board, after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public," etc. Now, what is "the same," a personal examination of which on the part of the commissioners is required by the statute? Plainly, it is the subjects which are subsequently enumerated,-whether repairs are necessary, additions to the rolling stock, additions or changes in the station houses, changes in the rates of fare for freight or passengers, or in the mode of operating the road or conducting its business. Certainly some of these subjects-such as the rates of fare-are not the subject of inspection or perception through the senses. In the case at bar a view of the premises would throw but little, if any, light upon the question presented to the commissioners for determination. The propriety of requiring the defendant to erect a freight station would depend principally on the amount of freight offered to it at the particular point for transportation, not on a single day, or at the particular time the commissioners might visit the premises, but during the season or year. Information as to these dominant facts could not be obtained by any inspection of the railroad. The same is true as to the question of the adequacy of the rolling stock. Looking at the engines and cars would throw no light on the question whether the company had provided sufficient rolling stock for its business. In my opinion, the personal examination required by the statute is not to be construed as meaning a personal inspection of physical objects, but a personal consideration by the commissioners of the subject-matter on which action is sought.

VANN, J. (dissenting). I dissent, because the railroad commissioners failed to make a personal examination of the locus in quo, as required by section 161 of the railroad law, which is as follows: "Sec. 161. Recommendations of Board, When Repairs or Other Changes are Necessary.-If in the judgment of the board, after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating

the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, the board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper, and shall give such corporation an opportunity for a full hearing thereof, and if the corporation refuses or neglects to make such repairs, improvements and changes, within a reasonable time after such information and hearing, and fails to satisfy the board that no action is required to be taken by it, the board shall fix the time within which the same shall be made, which time it may extend. It shall be the duty of the corporation, person or persons owning or operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the attorney-general for his consideration and action, and shall also report them in its annual or in a special report to the legislature." Laws 1890, c. 565, § 161. The power of the board to decide and recommend that the change in question should be made is derived wholly from the section quoted, and the supreme court has power to compel compliance, as authorized by the next section, only in case the board has proceeded according to the positive requirements of the statute in making the decision and recommendation. Id. § 162. The supreme court cannot act without a recommendation, and, if the recommendation presented was made in violation of law,-which is apparent from an inspection thereof,-it is void, and the court has no jurisdiction to issue its writ of mandamus to compel the railroad company to make the change. The decision and recommendation in question, as presented to the supreme court, showed upon its face that the inspection of the premises was made, not by the commissioners in person, but through an agent employed by them. The subject was not left to presumption, but the commissioners fairly stated in their decision that "the board caused a personal inspection of the premises to be made through its inspector, the report of which is on file." No other inspection is mentioned either in the decision or in the evidence, although the return to the alternative writ presented the issue, and cast upon the people the burden of showing that a personal examination was made, if such were the fact. The command of the statute with reference to a personal examination is not directory, but mandatory. Two investigations are required before the court can compel the railroad company to make the proposed change. The first is wholly ex parte, while the second is after notice and an opportunity to be heard. The first, however, unless wholly negative in result, is the basis of an important decision; for, as the statute directs, "if, in the judgment of the board, after a careful personal examination of the

same, it shall appear" that a change is necessary, "the board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper." The decision thus made on the basis of a personal examination stands as the final decision of the board, and, if it is just and reasonable, the company must comply therewith, unless at the hearing which may be had it is able to "satisfy the board that no action is required to be taken by it." No further decision is required unless the board changes its mind, except to simply "fix the time within which" the improvement must be made. The company is thus required to comply or contest, and, if it fails to do either, the supreme court can compel compliance to the extent that the recommendation is just and reasonable. Upon the application for this purpose "the findings of the board shall be presumptive evidence of the facts therein stated, and the recommendations of the board shall be deemed prima facie to be just and reasonable." Section 162. If the compauy contests the matter, it has to meet a prima facie case already established by the ex parte investigation, and it has the burden of satisfying the board that its pre liminary decision was wrong. As the first investigation may lead to such important results, the method of investigation, so far as provided by statute, should be strictly complied with. The only method mentioned is "a careful personal examination." While other sources of information may be, this source must be, resorted to. When the statute says "personal examination" it means an examination made by the commissioners, or some of them, in propria persona, of the place where the proposed improvement is to be made. The power exercised by them was delegated by the legislature, whose province it is, in the first instance, to require railroad companies to erect freight depots when deemed proper. This power was delegated with the express command that it should be exercised after a personal examination by the board. It thus became the duty of the commissioners, or a majority of them, to personally examine the locus. In the absence of express authority, they could not delegate that power to another. "Delegatus non potest delegare." When a power belonging exclusively to the state is delegated by the legislature to a board, the statute must be strictly construed, and the method of procedure provided must be strictly followed. 23 Am. & Eng. Enc. Law, p. 391. In all jurisdictions this is so held of the power to condemn land or levy assessments, and the power under consideration is of the same summary character. The personal examination required by statutes of condemnation or by statutes authorizing local assessments cannot be delegated; and the board of railroad commissioners, as deputies of the state, could not assign to a deputy of their own the power of making the examination which the statute com

manded them to make in person. In making the decision or recommendation the commissioners acted as judges. People v. Board of Railroad Com'rs, 158 N. Y. 421, 53 N. E. 163. The personal examination was the evidence upon which they were commanded to act in making the decision, and no report of an agent, however skillful, could take the place of a personal view of the premises. They were to pass judgment upon what they saw. not upon what they heard from an inspector. Courts have repeatedly recognized the fact that it is impossible for one human being to so describe a locality or situation as to place in the mind of another as perfect a picture as can be derived from personal observation. Therefore the power delegated by the board to its agent could not be as well exercised by him as by them, and the reason for the positive requirement of the statute thus becomes manifest. The omission to comply with the statute appeared upon the face of the decision, without which the supreme court has no jurisdiction. The commissioners had no jurisdiction to make their decision, and their want of jurisdiction permeated the entire proceeding, and deprived the special term of the power to issue the writ of mandamus. While this defect was substantially raised by the return to the alternative writ, as it went to the jurisdiction of both tribunals it could be raised at any stage of the litigation. Bank v. Judson, 8 N. Y. 254. I think it was the duty of the commissioners to make the examination in person; that their decision, made without complying with this requirement, was void upon its face; and that it conferred no power upon the supreme court to act. I therefore vote for reversal.

DI VITO v. CRAGE et al.

(Court of Appeals of New York. Jan. 22, 1901.) MASTER AND SERVANT-INJURY TO SERVANT -DELEGATION OF WORK-SUPERINTENDENT -NEGLIGENCE-FELLOW SERVANT.

1. Where, in an action by an employé against his employer for injuries resulting from his being knocked off a bench or path on the face of a cliff where he was at work, and falling 75 feet to the bank below, it is claimed that he was guilty of contributory negligence in not following the instructions of the foreman to have a rope tied around him to prevent falling, and he denies that such instructions were given him, the question of his contributory negli gence should be submitted to the jury.

2. Plaintiff, while in defendants' employ, engaged in blasting away a portion of the face of a rocky cliff, was directed by defendants' foreman to remove any loose pieces of rock that should be found along the bank or cut, and while so engaged he was struck by a piece of rock, which, in the process of defendants' work

in which plaintiff was employed, had been thrown and lodged on the top of the cliff, until it fell, knocking plaintiff from the bench or path where he was at work, and causing him to fall to the bank, 75 feet below. Held, that the removal of the rock from the edge of the cliff, as well as from the side, was a mere detail of the work, which defendants were not required to perform personally, but was properly confided to their foreman, who was a fellow servant of the plaintiff, and for whose negligence defendants were not responsible.

Appeal from supreme court, appellate division, Fourth department.

Action by Frank Di Vito against Donato A. Crage and others. From a judgment of the appellate division (55 N. Y. Supp. 64), affirming a judgment for plaintiff, and affirming an order denying defendants' motion for a new trial, they appeal. Reversed.

Frank A. Abbott, for appellants. D. E. Brong, for respondent.

MARTIN, J. This action was to recover for personal injuries sustained by the plaintiff, which he alleged were caused by the de fendants' negligence. The relation between the parties was that of master and servant. The plaintiff was in the employ of the defendants, who were engaged in cutting down or blasting away a portion of the face of a rocky cliff upon the eastern shore of the Niagara river, for the purpose of building an electric railroad at its base. The plaintiff entered the defendants' employment in May, 1895, and continued until the 18th of the following August, when he received the injuries complained of. On the night preceding the accident the defendants' foreman required the plaintiff to work upon the following day, which was Sunday, in removing any loose pieces of rock that should be found along the bank or cut, so as to render the place where the blasting was to be continued safe for those employed in that occupation. While he was engaged in removing the loose stone from the side of the bank, a large stone or piece of rock fell from the top of the cliff, struck a stone upon the side, bounded to the path where the plaintiff was at work, and knocked him off, he falling a distance of about 75 feet, to the bank below. He was thereby severely injured. The proof tended to show that the defendants had in blasting the rock previously used unnecessarily large quantities of powder or dynamite, causing explosions of such force as to throw fragments of rock across the Niagara river into Canada, through buildings, into yards in the surrounding locality, and into the air, so that some of them landed upon the surface of the ground immediately above the place where the plaintiff was at work. The evidence was sufficient to justify the jury in finding that the stone or piece of rock which caused the plaintiff's injury came from the top of the cliff. The defendants knew that the pieces of rock thrown there by blasts were lying upon or near the edge. One of the defendants testified that he in

structed their foreman to have them removed, but they were not.

At the conclusion of the plaintiff's evidence, the defendants moved for a nonsuit upon the grounds that there was not sufficient evidence to go to the jury upon the question of the defendants' negligence; that it had been shown that the plaintiff was guilty of contributory negligence; that whatever danger there was in and about the work was a risk which the plaintiff assumed when he entered the defendants' employ: that, if there was any negligence, it was the negligence of a co-employé, for which the defendants were not liable; and that, if negligence had been shown, it was not shown to be the negligence of the defendants.

At the close of all the proof in the case, the motion for a nonsuit was renewed, and the defendants moved for the direction of a verdict in their favor upon all the grounds stated in their motion for a nonsuit, and upon the further ground that there was no evidence that they had any knowledge of the stone in question, nor were they in any way connected with it. These motions were denied, and the defendants excepted.

to

The trial judge charged the jury that, unless the stone which struck the plaintiff came from the edge or surface of the cliff, he could not recover. He then submitted them the question whether the defendants should have inspected or removed the stones lying upon the surface of the ground at the edge of the cliff which were liable to fall and injure the workmen employed below, and instructed them that if the stone came from the side of the cliff, or if, in the exercise of reasonable care, it was not the duty of the defendants to remove such stones, the plaintiff could not recover. On the otlier hand, he charged that if the stone came from that point, and the defendants were negligent in not removing it, they might find for the plaintiff on the question of the defendants' negligence. He then submitted to the jury the question of the plaintiff's contributory negligence, instructing them that, if he did not take every reasonable precaution necessary for his safety, he could not recover.

The contention of the defendants is that the injury sustained by the plaintiff resulted from one of the risks which he assumed when he entered their employment, and that, as all the dangers thereof were open and apparent, they were voluntarily assumed. They also claim that the plaintiff was guilty of contributory negligence in working upon the side of the embankment or cut, without following the instructions of the defendants' foreman to have a rope tied around him to prevent falling. That any such instructions were given by the defendants' foreman was denied by the plaintiff, so that there was a conflict in the evidence upon that subject. The proof tended to show that the bench or path where the plaintiff stood at the time of his injury was about two feet in width, and