App. Div.] Second Department, May, 1908. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant. Second Department, May 1, 1908. Forest, Fish and Game Law. - section 228 construed - railroad removal of inflammable material. The provisions of section 228 of the Forest, Fish and Game Law, requiring every railroad company on such part of its road as passes through forest lands to cut and remove all grass, brush and other inflammable materials from its right of way, applies to all forest lands in the State, within as well as outside the forest preserve. HOOKER, J., dissented. APPEAL by the defendant, The Long Island Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of November, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant's demurrer to the complaint in an action brought to recover penalties in consequence of defendant's alleged violation of various provisions of section 228 of the Forest, Fish and Game Law (Laws of 1900, chap. 20, as amd. by Laws of 1904, chap. 590). James W. Treadwell [Joseph F. Keany with him on the brief], for the appellant. Charles M. Stafford, for the respondent. RICH, J.: Plaintiff alleges that the defendant is a domestic corporation, and that its line of railroad passes through forest lands and lands subject to fires in the town of Smithtown, Suffolk county, N. Y. Six causes of action are alleged, each of which is based upon an alleged violation of a separate clause of that section of the statute. The defendant's demurrer is to each cause of action upon the grounds, among others, that the complaint does not state facts sufficient to constitute a cause of action, and that it appears upon the face of the complaint that the plaintiff has not the legal capacity to sue. It claims that the lands through which its road passes in the county of Second Department, May, 1908. [Vol. 126. Suffolk are not within the jurisdiction of the Forest, Fish and Game Commissioner; and this presents the only real question involved, for it is conceded that this forms no part of the forest preserve. The question is whether the regulation in section 228 has reference to any forest lands not contained within the forest preserve. It seems to me that it was the obvious intention of the Legislature to include within its provision all forest lands within as well as outside the forest preserve. A forest is defined as being "A tract of land covered with trees; a wood, usually one of considerable extent; a tract of woodland with or without inclosed intervals of open and uncultivated ground."* Chapter 94 of the Laws of 1901 provides for the appointment of a Forest, Fish and Game Commissioner, whot shall have the care, control, and supervision of the forest preserve and make rules for the use, care and administration thereof, and also make rules for the prevention of forest fires, and cause the same to be posted in all proper places throughout the State, and that he may from time to time appoint a fire warden in every town having lands which are a part of the forest preserve, and "in every other town the supervisor shall be fire warden by virtue of his office. If the supervisor be absent when fire occurs, or fails to act, any justice of the peace in the town may act as fire warden." If in a town situated in a county containing lands of the forest preserve the Commissioner is unable to find a suitable person who will accept the position of fire warden, then the supervisor of that town shall act as fire warden and discharge all the duties devolving on that office by law, and shall promptly make to the chief fire warden a report of each forest fire that occurs in his town. (Forest, Fish & Game Law, § 225, as amd. by Laws of 1904, chap. 590, § 3.) This section relates to the entire State. In towns having lands of the forest preserve the Commissioner may appoint the fire warden, and in other towns of the State the supervisor thereof shall be the fire warden. Section 228 of the act (as amd. supra) under which this action is brought provides, among other things, that "Every railroad company shall on such part of its road as passes through forest lands or lands subject *See Century Dict.— [REP. + See Laws of 1901, chap. 94; Laws of 1900, chap. 20, §§ 220, 225, as amd. by Laws of 1903, chap. 442, and Laws of 1904, chap. 590.—[REP. App. Div.] Third Department, May, 1908. to fires from any cause, cut and remove from its right of way along such lands at least twice a year, all grass, brush and other inflammable materials; then follow regulations pertaining to forest lands included, as well as not included, in the forest preserve. The Legislature intended to make these regulations applicable to forest lands wherever situated in this State, and if its provisions have been violated by the defendant as alleged, the cause of action is properly pleaded. The interlocutory judgment must be affirmed, with costs. WOODWARD, JENKS and GAYNOR, JJ., concurred; HOOKER, J., dissented. Interlocutory judgment affirmed, with costs. GEORGE K. HORTON, Respondent, v. ALBERT TERRY, Appellant. Third Department, May 6, 1908. Trial — summing up— statements not justified by evidence. Statements made by plaintiff's counsel in summing up in a close case, which are wholly immaterial, not justified by the evidence, but designed only to preju dice the jury, call for a reversal. APPEAL by the defendant, Albert Terry, from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of May, 1907, denying the defendant's motion for a new trial made upon the minutes. Howard Chipp, for the appellant. James Jenkins, for the respondent. PER CURIAM: The action was to recover a balance alleged to be due the plaintiff from the defendant on an exchange of horses. The defendant pleaded a general denial and payment. The evidence on the trial was conflicting. The case was closely contested, and on some of the issues the evidence was quite evenly balanced. In his summing up to the jury the plaintiff's counsel said "that Mr. Terry (the Third Department, May, 1908. [Vol. 126. defendant) is a wealthy brick man that has put the price of brick up, and that he is an importer of negro labor." There was nothing in the evidence justifying any of these statements, and if there had been, they were wholly immaterial upon any question being litigated. The only possible purpose of making these remarks was to excite the prejudices of the jury against the defendant, and, as the case was a very close one under some of the issues presented for trial, it is reasonable to assume that the verdict in favor of the plaintiff was influenced thereby. We think in a close case such as this was, we cannot under the authorities overlook the exception interposed by the defendant's counsel, at the time, to these remarks, and that a new trial should be granted. (Bagully v. Morning Journal Association, 38 App. Div. 522; Stewart v. Met. St. R. Co., 72 id. 459; Strickland v. N. Y. C. & H. R. R. R. Co., 88 id. 367; Benoit v. N. Y. C. & H. R. R. R. Co., 94 id. 24.) So long as counsel in their addresses to juries keep fairly within the issues and the evidence, large liberty of discussion should be afforded them, but when they depart entirely from the evidence in their arguments, and make remarks intended solely to excite the passions or prejudices of a jury, there is every reason, especially in a close case, why the court should intervene and protect a party from a verdict rendered against him which may have been influenced by such remarks rather than by the evidence in the case. The case of Dimon v. N. Y. C. & H. R. R. R. Co. (173 N. Y. 356), cited by the respondent, contains nothing against this view. There the Court of Appeals failed to find in the record any proper exception which permitted it to pass upon the character and tendency of the closing address of plaintiff's counsel to the jury, and it pointed out a method by which such an exception could properly be procured, but here the defendant's counsel promptly called attention to the improper remarks and the court allowed him an exception thereto. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event. AUITO VINCENZO, Appellant, v. THE DELAWARE AND HUDSON COMPANY, Respondent. Third Department, May 6, 1908. Master and servant — negligence - Employers' Liability Act direction of verdict. erroneous Where, in an action to recover for injuries sustained in loading rails on a car, the evidence tends to show that the usual method of doing the work was not followed and that the foreman, who at the time was doing acts of superin tendence within the Employers' Liability Act, knew that the rail which caused the injury was likely to fall and that it would be dangerous to load the rail in that way, it is error to direct a verdict for defendant "on the ground that a reasonable man would not have anticipated that such an accident as this would have happened." APPEAL by the plaintiff, Auito Vincenzo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 24th day of October, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Clinton Trial Term. Ralph G. Barclay and Robert Stewart, for the appellant. Lewis E. Carr, for the respondent. PER CURIAM: This action is brought by plaintiff to recover damages for personal injuries. The action is under the provisions of the Employers' Liability Act (Laws of 1902, chap. 600). At the close of all of the evidence defendant's counsel moved for a direction of a verdict, and the motion was granted "on the ground that a reasonable man would not have anticipated that such an accident as this would have happened." The plaintiff, a boy of seventeen years, was employed by the defendant, and was one of a gang of men engaged in loading rails upon flat cars under the direction of a foreman. The rails were thirty feet long, and each weighed about eight hundred pounds. At the time of the accident three cars had been APP. DIV.- VOL. CXXVI. 31 |