(133 App. Div. 456.) PEOPLE v. COREY. (Supreme Court, Appellate Division, Third Department. June 24, 1909.) 1. INTOXICATING LIQUORS (§ 131*)-OFFENSES-INTENT. It is no defense to a charge of an unlawful sale of intoxicating liquor that there was no criminal intent, as accused had been advised that he was authorized to continue the sale of liquor under his hotel license, notwithstanding the burning of the hotel; the offense being malum prohibitum, in the commission of which the intent is immaterial. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 161; Dec. Dig. § 131.*] 2. INTOXICATING LIQUORS ( 104*)-OFFENSES-SALE IN CONNECTION WITH HOTEL BUSINESS. A license under Liquor Tax Law (Laws 1896, p. 57, c. 112) § 16, question No. 4, as amended by Laws 1897, p. 216, c. 312, § 9, to sell intoxicating liquor in connection with the business of keeping a hotel, is no protection to a sale in another building on the hotel premises and where the liquor had been previously sold, after the hotel has burned. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. § 104.*] Appeal from Criminal Term, Franklin County. Charles J. Corey was convicted of unlawfully selling intoxicating liquor, and he appeals. Affirmed. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. R. M. Moore, for appellant. John W. Genaway, for the People. SMITH, P. J. The defendant has been convicted of selling liquor in the village of Santa Clara without authority of law. In May, 1906, he was the proprietor of a hotel in Santa Clara known as the "Mountain View Villa." About 62 rods from the hotel, but upon the hotel property and upon the side street, was a small building in which he sold liquor. By stipulation in open court it appears that the voters of the town had voted against the selling of liquor except under question 4 that liquor might be sold by hotel keepers only. See section. 16, c. 112, p. 57, Laws of 1896, as amended by Laws 1897, p. 216, c. 312, § 9. Upon the 5th day of June the hotel burned down. It was never thereafter rebuilt by the defendant, and upon the 22d of December thereafter the offense was committed for which the defendant stands convicted. His first defense is that he was authorized to sell liquor under the hotel license which he held. He claims, fürther, that, even if unauthorized, there was no criminal intent, because he was advised that he was authorized to continue the sale after the burning of this hotel. As to the latter claim little need be said, because the offense is malum prohibitum, in the commission. of which the intent is immaterial. People v. Werner, 174 N. Y. 132, 66 N. E. 667. Nor can the defendant claim protection from his hotel license. Under section 16 of the liquor tax law question No. 4 which is submitted to the people reads as follows: For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes "Shall any person be authorized to traffic in liquors under subdivision 1 of section 11 of the liquor tax law, but only in connection with the business of keeping a hotel? It is clear that after the hotel burned, and was not rebuilt, the selling of liquor in this café could not be "in connection with the business of keeping a hotel." The defendant might have surrendered his license and have procured the proper rebate; but he could not continue selling liquor except in connection with the business of keeping a hotel. The judgment of conviction was right, and should be affirmed. ROUNDS v. SYRACUSE & S. R. CO. (Supreme Court, Appellate Division, Fourth Department. July 6, 1909.) STREET RAILROADS (§ 117*)-PERSONAL INJURIES IN COLLISION-NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE AS QUESTIONS FOR JURY. In an action against a street railroad company for personal injuries from a collision with a car, evidence as to negligence and contributory negligence held to present questions for the jury. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 117.*] Appeal from Trial Term, Onondaga County. Action by Royal D. Rounds against the Syracuse & Suburban Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Joseph B. Murphy, for appellant. Charles E. Spencer, for respondent. KRUSE, J. The plaintiff seeks to recover for personal injuries received in a collision with defendant's trolley car, contending that the defendant was negligent in operating the car and that he himself was free from fault. The accident occurred about a mile east of the city of Syracuse, on the Genesee street road. The track upon which the collision occurred runs along the north side of the road. The plaintiff was driving a baker's wagon. He had delivered some goods at a private residence, situate on the north side of the road, and was driving out of a private driveway, and while crossing the track was run into by an east-bound car and injured. At the close of the plaintiff's case, the plaintiff was nonsuited upon the ground that the defendant's negligence was not shown, and also that the evidence failed to show want of contributory negligence upon the part of the plaintiff. The exception of the plaintiff to that disposition of the case presents the only question for review here. We think the case should have been sub nitted to the jury. The evidence tends to show that the car approached the place where the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes driveway intersects the railroad, going at the rate of 50 miles an hour, without giving any warning of its approach. On the west side of the driveway, the view of an approaching east-bound car is obstructed by shrubbery and trees. The plaintiff drove to within 6 or 8 feet of the railroad track and stopped. He looked to the west (from which direction the car came), and listened; but he did not see or hear the car. He could see about 50 feet up the track to the west. He was just beyond a tree, which was 10 feet from the rail of the track nearest to him, so that his horses' heads were close to the track, and so much nearer the track that I think the inference is permissible that the motorman could have seen the horses in time to have had the car under control as he approached the place of collision, since the track to the west is practically straight for 300 to 500 yards, although the plaintiff, seated in the front part of the wagon, could see only about 50 feet to the west, as before stated, because of the trees and shrubbery. There were two cars going in the same direction. The first car was going at the rate of about 25 miles an hour, and was followed by another going at the rate of about 50 miles an hour. The plaintiff was struck by the second car. He testified that he brought his horses to a standstill just back of the north track, just as the first car went by; that he started to cross, pulled up, and looked to see if he could see a car; that the horses' heads were then going across the track, and had not quite gone over the first rail, just about ready to step on the rail; and just as they were reaching to cross the south rail, the car struck the wagon. The defendant was required to use reasonable care in operating its cars along the highway, and whether it did so in approaching the private crossing at so great a rate of speed, without warning, was, we think, under the circumstances a question of fact. Nor do we think the plaintiff guilty of contributory negligence as a matter of law. That question, as well as whether the defendant was negligent, was for the jury. The judgment entered upon the nonsuit should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except MCLENNAN, P. J., and ROBSON, J., who dissent. (133 App. Div. 459.) THOMAS v. NOONAN et al. (Supreme Court, Appellate Division, Third Department. June 24, 1909.) 1. SET-OFF AND COUNTERCLAim (§ 44*)—PERSONS ENTITLED TO PLEAD-One of JOINT DEFENDANTS. In an action against two joint obligors to foreclose a mechanic's lien, a counterclaim cannot be pleaded in behalf of one of them. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 85; Dec. Dig. § 44.*] 2. PLEADING (§ 182*)-WAIVER OF OBJECTIONS-FAILURE TO REPLY. A counterclaim pleaded against one of defendants in an action against two joint obligors was not admitted by plaintiff's failure to reply thereto, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes as plaintiff can urge the impropriety of pleading the counterclaim without a reply. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 388; Dec. Dig. § 182.*] 3. EVIDENCE (§ 601*)-WEIGHT AND SUFFICIENCY-VALUE. Evidence on the part of the seller that lumber was worth from $18 to $20 per thousand was not sufficient proof of any value greater than $18. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 601.*] Appeal from Trial Term, Warren County. Action by Ernst K. Thomas against John Noonan and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. L. M. Pulver (George R. Salisbury, of counsel), for appellant. S. M. Richards, for respondents. SMITH, P. J. The action is brought to foreclose a mechanic's lien. The plaintiff was employed by the defendants to make some improvements upon the real property owned by Azilda Noonan. He claimed the sum of $241. The defendants claimed that the repairs were to be made for $200, which was found as a fact by the referee. There was a claim for extras to the amount of $9.26, about which there was no dispute, so that upon the findings of the referee the plaintiff had a lien for $209.26, less the amount of any counterclaim that the defendants held against the plaintiff. The defendants pleaded two counterclaims; one a counterclaim for groceries and provisions furnished by the defendant John Noonan. Of this, however, no evidence was given. It is claimed that there was no reply to this counterclaim, and, therefore, that the claim was admitted. The action is brought against two joint obligors. The counterclaim is in behalf of one of them only, and is not properly pleaded in the action; and this objection may be urged by the plaintiff, even without a reply. Lipman v. Jackson Architectural Iron Works, 128 N. Y. 58, 27 N. E. 975. The other counterclaim of the defendants was for lumber furnished. Upon the defendants' computation there was some 14,313 feet of lumber originally piled, from which 3,500 feet had been sold before the sale was made to the plaintiff. This leaves 10,813 feet, which was sold to the plaintiff. Of this 548 feet was found to be worth $10 per thousand. This would amount to $5.48. The remaining amount, to wit, 10,265 feet, was sworn to have been worth from $18 to $20 per thousand. But the evidence of a witness that lumber is worth from $18 to $20 is no legal proof of a value greater than $18, and at $18 the value of this lumber was $184.77. This, added to the $5.48, makes $190.25, the extent of the defendants' counterclaim against the plaintiff. This leaves the plaintiff with a valid lien for $19.01. The referee has apparently made an error in computation, as well as in allowing the defendants the sum of $20 per thou *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes sand for lumber upon the testimony stated. He found for the defendants in the sum of about $5, and charged the plaintiff with the costs of the action. If the conclusion which I have indicated be right, this judgment was erroneous, and should be reversed, and a new trial granted, with costs to appellant to abide the event. Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event. All concur. BALCH v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. July 6, 1909.) RAILROADS (§ 350*) — COLLISIONS AT CROSSINGS - NEGLIGENCE-QUESTION FOR JURY. In an action for injuries to a team and vehicle in a collision with a train at a crossing, evidence held to require submission to the jury of the issue of the negligence of the flagman in not signaling the train to stop in time or of the engineer in not heeding the signal. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 350.*] McLennan, P. J., and Robson, J., dissenting. Appeal from Trial Term, Oneida County. Action by Orville Balch against the New York Central & Hudson River Railroad Company. From a judgment of dismissal, plaintiff appeals. Reversed, and new trial ordered. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Charles H. Searle, for appellant. Thomas D. Watkins, for respondent. KRUSE, J. A moving freight train on the defendant's railroad collided with the plaintiff's team at a street crossing in the city of Utica, killing the horses and demolishing the wagon. The plaintiff seeks to recover damages therefor, claiming that the casualty was the result of the defendant's negligence. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted, and the exception thereto presents the only question upon this appeal. The accident occurred on November 11, 1901, early in the evening, but after dark. It had rained in the afternoon, and was cold. The rain had frozen, and the streets were very slippery. The accident occurred where the railroad crosses Webster avenue. The horses and all of the wagon except the hind wheels had gotten over the track, when one of the horses slipped and fell on the icy pavement. The driver succeeded in getting the horse up; but it fell again, and at one time both of the horses were down. He tried to draw the kingbolt and detach the team from the wagon, but was unsuccessful. He was thus engaged in attempting to extricate himself from his perilous situation for about 10 minutes, when the freight train came along and the collision occurred, with the result stated. There was a flagman's shanty 140 feet east of the place where the accident oc *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |