App. Div.] Third Department, May, 1908. death of either father or mother the surviving parent may dispose of the custody of an unmarried infant child during its minority or for any less time. It has been held under a like statute (Laws of 1893, chap. 175, amdg. 2 R. S. 150, § 1) that the right of a surviving parent to the custody of his child is absolute provided such parent be a fit person. (People ex rel. Byrne v. Brugman, 3 App. Div. 155.) In the face of the statute alluded to there is no force in the contention of the respondents that, before his death, the father of Robert gave him to them, for this could not lawfully be done without the consent of his mother. She not only denies ever giving such consent, but also denies that her husband gave the child to them. According to her claim she consented that he should remain with them only until the spring of 1905. There is no claim of any legal adoption, so the matter must be considered without regard to the question how the respondents first obtained possession of the child. There is no doubt that the Supreme Court under its equity powers may, in a proper case, having regard for the welfare of an infant, take its custody from the one legally entitled thereto and give it to another. But we are of the opinion that this is not such a case and that the learned court at Special Term was in error in not awarding the child to its mother. Nothing is alleged against her character nor against that of her father and brothers with whom she lives. It appears too that they are people in fairly good circumstances and are willing to aid her in maintaining and educating her children. She is possessed of some property in her own right and is self-supporting, being in receipt of fifteen dollars per week as housekeeper for her father and brothers. She has four other living children, three boys and one girl, living with her, the oldest of whom is now seventeen and the youngest three, who are the brothers and sister of Robert. Nothing appears against her fitness to have the care and custody of all her children, and it affirmatively appears that she is a woman of good character and reputation and a good mother. She has cared for her other children during the period in their lives when a mother's care is the most essential, and she shows her willingness and ability with the aid of her father and brothers to properly provide for and educate Third Department, May, 1908. [Vol. 126. Robert also. It is claimed that he is a nervous and delicate child, and this fact seems to have had some influence in the mind of the court at Special Term in awarding his custody to his grandmother. But the other children appear to have been well cared for in the custody of their mother, and no reason is apparent why Robert would not have just as affectionate and tender care with her as where he is at present. The care which the respondents have given to him during the time he has lived with them, and their affectionate regard for him are commendable, but the fact that they are somewhat more well to do from a financial point of view than the mother, is not alone a sufficient reason to sever the sacred bonds of kinship and maternity which naturally bind this mother to her child, nor to deprive him of the nurture and care of a mother and the society of his brothers and sister. The court should not compel this child to be brought up a comparative stranger to his nearest kin except for adequate reasons looking to his welfare, and we think no such reasons have here been shown. The order should be reversed, with costs and disbursements, and the custody of the child awarded to the relator, without costs. All concurred. Final order reversed on law and facts, with costs, and the custody of the child awarded to relator, without costs. GILBERT WARD, Appellant, v. ANNA MAY BRONSON and Others, Respondents. Third Department, May 6, 1908. Pleading - foreclosure — when plaintiff's title sufficiently alleged evidence - powers of referee to hear and determine — appeal. A complaint seeking to foreclose a mortgage on lands which alleges that the mortgagee died at a specified date leaving one H. her only heir at law and next of kin, who became the owner of said mortgage "by inheritance," and that the said H. died leaving a will duly admitted to probate, by which he bequeathed said mortgage to a person named as executrix, who assigned the same to the plaintiff, sufficiently states the plaintiff's title although the use of the word "inheritance" be inartificial, App. Div.] Third Department, May, 1908. Under such complaint proof that letters of administration on the mortgagee's estate were issued to the plaintiff's predecessor is admissible. Where the referee in such action is appointed to "hear, try and determine," he has the same power as the Special Term, which cannot review, reverse or set aside his decision. Such review must be had by appeal from the judgment. APPEAL by the plaintiff, Gilbert Ward, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 25th day of October, 1907, denying the plaintiff's motion for leave to amend the complaint, and also from an order entered in said clerk's office. on the 29th day of February, 1908, denying the plaintiff's motion for judgment upon the report of a referee appointed in an action for the foreclosure of a mortgage. Walter E. Ward, for the appellant. A. D. Lent and Andrew Wright Lent, for the respondents. KELLOGG, J.: The referee's report contained the necessary findings upon which to base the judgment asked. Judgment was refused apparently upon the ground that the referee erroneously received evidence over defendants' objection and exception. The complaint alleged the execution of the bond and mortgage and default, and asked a sale of the property for the payment of the mortgage debt and for general relief. It alleged that Betsy Ann Gibbons, the mortgagee, died in March, 1893, leaving George Holly her only heir at law and next of kin and who became the owner of said mortgage by inheritance, and that the said George Holly died leaving a last will and testament, duly admitted to probate, by which he bequeathed said mortgage to Sally M. Holly, who was named executrix of said will, and that she assigned the mortgage to the plaintiff. Upon the trial objection was raised that no assignment of the bond or title to the bond was alleged, and that the plaintiff had no title, as the said George Holly could not transfer title to said mortgage. The action was commenced in December, 1906, and interest was unpaid from April 1, 1906. It was proved under like objection and exception that letters of administration were duly issued to George Holly upon Betsy Ann Gibbons' estate March 27, 1893. The allegation that George Holly was the only next of kin and Third Department, May, 1908. [Vol. 126. became the owner of the mortgage by inheritance, I think is a sufficient allegation of title in him. The word "inheritance" more properly applies to a succession to the title to real estate by the death of the former holder, but in this place in the complaint it could have but one meaning, and can only be understood as alleging that upon the death of the mortgagee he succeeded to this mortgage as her only next of kin; in order to gain full title to it he must bear that relation to her, and the personal representative of the estate must assent to, or acquiesce in, his taking this particular property. I think, therefore, the proof of the letters of administration was properly received. It is true the bond is the principal obligation and the mortgage would pass witlr it, but I think this complaint, alleging that he acquired the title to the mortgage in this way, is only consistent with the idea that he acquired the bond and mortgage. The reference was to hear, try and determine. The referee, therefore, had the same power as the Special Term, and it cannot review and reverse or set aside his decision. (Code Civ. Proc. §§ 1018, 1228; Albany Brass & Iron Co. v. Hoffman, 30 App. Div. 76.) An application to the Special Term was necessary to make the formal parts of the judgment and to appoint a referee, but it could not review or disregard the decision of the referee. Such review could only be had by an appeal from the judgment to the Appellate Division. We have seen that it was unnecessary to amend the complaint. If the trial court had received evidence over the defendants' objec tion and exception which was not warranted by the complaint, the error could not be cured after decision by an amendment to the complaint. The motion to amend the complaint was, therefore, properly denied. The order denying the plaintiff's motion for a judgment should be reversed and the matter remitted to the Special Term for judgment. The order denying the motion to amend the complaint should be affirmed. No costs should be allowed. All concurred. Order denying motion for judgment reversed and the matter remitted to Special Term for judgment. Order denying motion to amend complaint affirmed, without costs. App. Div.] Third Department, May, 1908. HARLEY S. BATEMAN, Appellant, v. THE RUTLAND RAILROAD COMPANY, Respondent. Third Department, May 6, 1908. Railroad - negligence-injury to estrays - statutes construed. At common law a railroad company is not liable for injury to estrays which go upon its lands, unless caused by its reckless, wanton, or malicious acts. Although the common-law rule was changed on the enactment of section 8 of chapter 282 of the Laws of 1854, imposing a liability on railroads for negligence in failing to keep cattle guards in repair, the common law was again made operative on the enactment of chapter 676 of the Laws of 1892, amending section 32 of the Railroad Law, for said amendment only charged railroads with liability for negligence in maintaining fences and omitted the former provision making it negligence to fail to keep cattle guards in repair. APPEAL by the plaintiff, Harley S. Bateman, from an order of the Supreme Court, made at the Clinton Trial Term and entered in the office of the clerk of the county of Clinton on the 24th day of May, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial. Wilmer H. Dunn, for the appellant. John P. Badger, for the respondent. KELLOGG, J.: The plaintiff's colts and cattle were estrays upon the highway and entered upon the defendant's track over an alleged defective cattle guard and were injured by a passing train, and the plaintiff had a verdict for the damages thus sustained, which verdict was set aside by the trial judge. At the common law, where estrays upon the highway go upon the railroad land and are injured, the company is not responsible for their injury unless it occurred through its reckless, wanton or malicious acts. (Tonawanda R. R. Co. v. Munger, 5 Den. 255; Boyle v. New York, Lake Erie & Western R. R. Co., 115 N. Y. 636; S. C., 39 Hun, 171.) Section 8 of chapter 222 of the Laws of 1854 required railroad companies to fence their track and maintain sufficient cattle guards, and provided that "so long as such fences and cattle guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done |