Fourth Department, May, 1908.

[Vol. 126.

County Court said judgment was reversed on the ground that the justice had no jurisdiction of the subject-matter.

Arthur Warren, for the appellant.

J. P. O'Connor, for the respondent.

SPRING, J.:

By section 51 of the Highway Law,* as amended by chapter 386 of the Laws of 1895 and chapter 25 of the Laws of 1900,† the electors of a town may change the system of taxation for work. ing the highways from the labor plan, long in vogue, to the money system. When this has been accomplished, the method of raising the tax is prescribed in section 53 of this law, and the assessors are required to place on the assessment roll the names of all persons liable to poll tax, and "the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated." (§ 53.‡)

By section 65 of this law, as amended by chapter 242 of the Laws of 1902, it is provided: "In those towns in which the money system of taxation has been adopted, any person who is taxed a poll tax for highway purposes as provided in section fifty-three of this chapter, and who does not pay such tax in the manner and at the time prescribed by law shall be liable to a penalty of five dollars." The penalties "may be recovered" by action by the overseer of the highways, or in towns where there is no such overseer by the commissioner of highways of the town, and the penalties recovered are to be expended "by the overseer or commissioner in the same manner as commutation moneys," and the action is probably also maintainable in the name of the town in pursuance of section 182 of the Town Law.S

It will be observed, that before the defendant can be made liable for the penalty in failing to pay the poll tax assessed against him, the town must have first changed to the money system. The record on

*Laws of 1890, chap. 568.- [REP.

See, also, Laws of 1905, chap. 108.- [REP.

Amd. by Laws of 1893, chap. 412; Laws of 1898, chap. 351; Laws of 1902, chap. 156; Laws of 1903, chap. 228, and Laws of 1904, chaps. 183, 478. Since amd. by Laws of 1907, chaps. 270, 716.- [REP.

§ Laws of 1890, chap. 569.- [REP.

App. Div.]

Fourth Department, May, 1908.

the present appeal does not show that any proof whatever was given upon that subject. This defect in the proof is distinctly raised by the defendant in the tenth ground of his motion for nonsuit, but the plaintiff even then omitted to supply the necessary proof, which it is fair to assume may have existed. I think this defect is fatal to the plaintiff's case. (Thompson v. Smith, 2 Den. 177; Baldwin v. McArthur, 17 Barb. 414.)

The action is to recover a penalty five times as large as the liability, if any existed, and the plaintiff must clearly establish a violation of the statute by the defendant. (People v. Braested, 30 App. Div. 401; People ex rel. Kane v. Sloane, 98 id. 450, 452.)

The statute is not operative until the change in the system of taxation referred to has been adopted, and that fact is one of the essential elements in the cause of action. No presumptions will be indulged to enable the plaintiff to recover. (Conly v. Clay, 90 Hun, 20.)

We do not pass upon the question of the jurisdiction of the justice of the peace, or the other questions discussed by the respective counsel.

The judgment should be affirmed, with costs.

All concurred, except MCLENNAN, P. J., who dissented upon the ground that the justice of the peace had jurisdiction and that all facts necessary to entitle the plaintiff to recover were proven.

Judgment affirmed, with costs.

L. J. MCDOWELL, Appellant, v. THE CITY OF AUBURN, Respondent.

Fourth Department, May 6, 1908.

Municipal corporation - negligence — injury by defective road- issues for jury-sufficiency of notice.

Where in an action against a city to recover for injuries received by the driver of a vehicle owing to the alleged defective condition of a highway, there is evidence that in the vicinity of the accident the street was in very bad condition, filled with mounds, stones, holes, depressions, manhole covers, etc., and had been allowed to remain in that condition for a long period, the negligence of the defendant is a question for the jury.

Fourth Department, May, 1908.

[Vol. 126. Although the plaintiff had driven a loaded vehicle over the street continuously for a year or two, and knew of its condition, he was not, as a matter of law, guilty of contributory negligence by continuing to use the same. Having testified that he was driving carefully at the time of the accident, his contribu tory negligence was for the jury.

A notice giving the place and cause of injury is sufficiently definite where it states that the accident occurred in a specified street north of the railroad crossing and between that and another specified street which was about 1,000 feet from the crossing, and that the accident resulted from driving over the defective roadbed in that street which extended from a point several rods north of the crossing for about ten rods northerly along said street. MCLENNAN, P. J., dissented.

APPEAL by the plaintiff, L. J. McDowell, from a judgment of the County Court of Cayuga county in favor of the defendant, entered in the office of the clerk of said county on the 25th day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case upon a trial at a Trial Term of said County Court, and also from an order entered in said clerk's office on the 25th day of January, 1907, denying the plaintiff's motion for a new trial made upon the minutes.

Charles A. Wright and Frank C. Cushing, for the appellant.

William S. Elder and J. Henry Kerr, for the respondent.

WILLIAMS, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action is one to recover damages for personal injuries alleged to have resulted from defendant's negligence. The appellant contends that the questions of negligence and contributory negligence were for the jury. There was evidence from which the jury might have found that South Division street, in the vicinity where the accident occurred, was in a very bad condition. There were in it mounds of earth, cinders, stones, holes and depressions, manhole covers, etc., and it was fairly a question for the jury whether it was in a reasonably safe condition for public travel with teams and vehicles. It had been allowed by the defendant to remain in such condition for a long time prior to the accident.

The plaintiff was driving a team hitched to a wagon, on which he had a cable of rope coiled up and weighing 4,100 pounds. It was

App. Div.]

Fourth Department, May, 1908.

about five feet high and four feet through. There were stakes on the wagon, between which the rope lay, and the rope was also tied and blocked. In passing along the street the wagon rocked back and forth as it went over the mounds and stones and through the holes and depressions in the roadbed, and finally the wagon was overturned and the plaintiff was injured. The question as to defendant's negligence, as the cause of the accident and injury, was clearly one of fact for the jury. If a city will allow a street to be in the condition the evidence showed this one to be, it must take the consequences so far as its negligence is concerned.

The plaintiff had driven teams with loads like the one in question over this street continuously for a year or two, and knew the condition of the roadbed. His wagon and load had never been overturned before. He had a right to use the street and could not, as matter of law, be held guilty of contributory negligence merely because he knew the condition of the roadbed, and yet drove over it. He testified that he was driving carefully at the time the accident occurred. Other drivers testified that in going over this roadbed their wagons rolled back and forth so that they could hardly keep their seats. The plaintiff's freedom from contributory negligence was a question of fact for the determination of the jury.

The complaint sufficiently alleged that the negligence of the defendant was the cause of the accident and injuries. All the evidence was taken, without objection by reason of any defect in the complaint, and this question was first suggested at the close of the evidence when the motion for a nonsuit was made. The objection to the complaint was not well taken. All the facts were alleged, from which the conclusion fairly followed that the defective condition of the roadbed caused the overturning of the wagon.

The notice served upon the defendant's attorney of the time, place and cause of the injury, etc., under section 124 of the defendant's charter (Laws of 1906, chap. 185), was sufficiently definite in describing the place where the accident occurred. The notice stated that the accident occurred in South Division street, north of the railroad crossing, and between that and Wright avenue, which was about 1,000 feet from the crossing. The notice further stated that the accident resulted from driving over the defective roadbed in that street, which extended from a point several rods north of

Fourth Department, May, 1908.

[Vol. 126. the crossing for about ten rods northerly along the street. This was sufficiently definite to enable the defendant to prepare for trial and to remedy the defect, and this is the real purpose of the act. It would be too narrow a rule to hold that the precise location of the mound or stone, hole or depression that overturned the wagon should be pointed out.

The roadbed for ten rods was described in the notice, and it was said that the accident occurred upon this roadbed, and by reason of the defects described in the notice. This was sufficient. (Beyer v. City of North Tonawanda, 183 N. Y. 338, and cases therein referred to.)

In the Beyer case the proof on the trial showed the accident occurred on a sidewalk 80 to 100 feet away from the place indicated in the notice, and the notice was nevertheless held sufficient.

In Werner v. City of Rochester (77 Hun, 33; affd., 149 N. Y. 563) the accident was for an injury on the roadbed, and the notice stated the place was about one-third of a mile east of a railroad crossing, and was held to be sufficiently definite.

All concurred, except MCLENNAN, P. J., who dissented upon the ground that the plaintiff was not shown to have been free from contributory negligence.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event upon questions of law and fact.

UTICA TRUST AND DEPOSIT COMPANY, Plaintiff, v. CHARLES C. KELLOGG & SONS COMPANY, Defendant.

Fourth Department, May 6, 1908.

Corporation - dividends on preferred stock.

Where a corporation having outstanding preferred stock bearing interest at six per cent 'payable semi-annually, cumulative," issues on October 1, 1906, new preferred stock with a similar provision as to interest, a dividend made January 11, 1907, properly makes the rate at three per cent on the former issue and but one and one-half per cent on the new issue.

A corporation and its stockholders may agree as they please as to the rights and privileges of preferred stockholders.