and 112 New York State Reporter

missioners the homestead lot, on the map marked "No. 10," was set off to Jennie Putnam, and the William Putnam house, marked on the map as lot "No. 8," was set off to plaintiff John L. Putnam, and the strip sought to be partitioned in this action was disposed of by the commissioners as follows: "We have also set off in common to defendants John L. Putnam and Jennie L. Putnam, as appurtenant to the lot known as the 'William Putnam House,' and marked 'No. 8' on the annexed maps, and the premises last above described as the 'Homestead,' and marked 'No. 10' on the annexed maps;" and here follows the description of the before-mentioned strip. This disposition of this strip was confirmed by the court. Considering the location of lots 8 and 10, and their uses at the time of partition, and considering also the then uses of this strip solely to serve the needs of the two lots, and the probable depreciation in their value without the strip, it is not difficult to attach the meaning of the commissioners and the court to the words used "as appurtenant to the lot," etc. Without doubt it was meant that the owners of the lots should forever have a common right of usage in the strip as an entirety; that there could, therefore, be no forced division at the instance of any owner, and no power of exclusion of either owner from the use of any portion of the strip. If the commissioners or court simply meant to set off this strip to John L. Putnam and Jennie Putnam as tenants in common, there would have been no use in setting it off "as appurtenant to the lot," etc. This judgment of the court must be accepted, and construed as would be like terms appearing in a deed of conveyance. Had the owners of the two lots and the strip conveyed the property lots 8 and Io in severalty, and the strip to both, declaring it to be an appurtenance to each lot, there could be little doubt of his meaning, and none as to his power. The parties would take just what he conveyed, and take the strip as "appurtenant," giving full force to the grantor's intention. In such a case, can it be claimed that either party, without the consent of the other, could compel a sale or division of the strip made by the grantor and accepted by the grantees as appurtenant to the two lots? I think not. Many authorities are cited declaring that land cannot be appurtenant to land, and hence title to land will not pass under the word "appurtenances" as commonly used in deeds. This means that title to land will not pass by implication. In every case the authorities seek to define the word, and that is all. The court in Woodhull v. Rosenthal, 61 N. Y. 390, says: "A thing 'appurtenant' is defined to be a thing used with and related to as dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant." This definition, however, of the word in the abstract does not prevent a different meaning which any grantor may himself give to the word as he uses it. When a grantor makes a strip of land, by express words, "appurtenant" to two other pieces, his meaning is to be discovered from the context, and not from the books. This strip of land having been set apart to conserve the needs of lot 8 and lot io, I see no way in which either John L. Putnam or Jennie Putnam, or any subsequent grantee, can force a sale or division in an action of partition. This clearly would defeat the intention manifest in the original allotment, the

commissioners, and court. In that allotment, according to its terms, the plaintiff has acquiesced for over 25 years. He accepted what was given him with all its limitations and conditions, express and implied; and one of the implied conditions was that he would not interfere with the use of the strip in its entirety by Jennie Putnam or her grantees. This strip was also made an appurtenance to lot 8 by judgment of the court, and plaintiff, as owner of lot 8, held it and used it as such. When he mortgaged lot 8 "together with its appurtenances," I think he must be deemed to have included this appurtenance. It is not strictly true in all cases that land cannot be made appurtenant to land. Land passes as "appurtenant" in the construction of wills (Otis v. Smith, 9 Pick. 292; Blackburn v. Edgley, 1 P. Wms. 600; Doe v. Collins, 2 Term R. 498; Buck v. Nuwton, 1 Bos. & P. 53; Bodenhorn v. Pritchard, 1 Barn. & C. 350), wholly depending upon the intention of the testator. In the construction of statutes land may be deemed appurtenant to land. Mcdermott v Palmer, 8 N. Y. 393. The demise of a house carries with it the garden curtilage and close. Smith v. Martin, 2 Saund. 400. In Archibald v. Railroad Co., 157 N. Y. 574, 52 N. E. 567, the court held that the owner of the upland on tide water took the land under water granted to his grantor as an "appurtenance"; that such land, once granted by the state to the owner of the upland, became an appurtenance to the uplands. This would seem to dispose of the declaration that land cannot be appurtenant to land. It does not seem questionable that a grantor may, if he choose, make it appurtenant. Through the mortgage, the plaintiff John L. Putnam having lost his title to lot 8, "together with its appurtenances," we must conclude that he has now no title to this strip, sought to be partitioned in this action, and that, in any event, the plaintiff cannot maintain the action of partition as against the grantees of Jennie Putnam, for the reasons hereinbefore stated.

The judgment is affirmed, with costs. All concur.

AMSDEN v. DUNHAM et al.

(Supreme Court, Appellate Division, Fourth Department. December 9, 1902.) 1. MASTER AND SERVANT-CONTRACT OF EMPLOYMENT-CONSTRUCTION.

A firm engaged in buying and selling cheese employed plaintiff under a contract to pay him a certain salary, and, in addition, a commission on the profits of the firm as long as there should be a firm and plaintiff should work for it. While plaintiff was so employed, the firm constructed a warehouse at an investment of $8.000, and on dissolution of the firm during the continuance of plaintiff's contract one of the members took the warehouse at a valuation of $14,000. Held, that the erection of the warehouse was not within the legitimate scope of the firm's business with regard to which plaintiff was employed, and plaintiff was not entitled to commissions on the difference between the investment and what the firm received for the warehouse on dissolution.

Appeal from trial term, Alleghany county.

Action by Orville O. Amsden against William C. Dunham, impleaded with another. From a judgment entered on a referee's report in favor of plaintiff, defendant Dunham appeals. Reversed.

and 112 New York State Reporter

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

Stanley C. Swift, for appellant.

W. J. Wetherbee, for respondent.

HISCOCK, J. We think that the judgment appealed from should be reversed. This action was brought by plaintiff to recover for services rendered to the defendants. The latter were copartners and their copartnership was formed "for the purchase and sale of cheese." Plaintiff was to receive for his services a certain sum per month, and, in addition thereto, a commission of 5 per cent. upon the profits of the firm, or, as it is expressed in his evidence, "five per cent. of the profits as long as there was a firm of Amsden & Harris and I work for them." The matter of these commissions was satisfactorily adjusted for two years, but a dispute arose as to those which plaintiff was entitled to receive for the third year, which has given rise to the only question which we need consider upon this appeal. It seems that while plaintiff was in the employ of the defendants they constructed a cold-storage warehouse, investing therein upwards of the sum of $8,000. During the final year of plaintiff's employment, controversies arose between the defendants, the firm was dissolved, and in dividing up the copartnership property the defendant Harris took this warehouse at a valuation of $14,000 or upwards. Plaintiff claims that the difference between the cost of the storehouse and the price at which Harris took it was a profit in the firm business, upon which he was entitled to receive commissions, and the learned referee has found in his favor upon this question. We do not think that it was fairly within the contemplation of the parties that a profit or increase in valuation of such a piece of property as this should be the basis of commissions to plaintiff. The regular legitimate business of defendants when plaintiff entered their employ, was, as stated, the purchase and sale of cheese. It is manifest that he was hired to help about that business. While one of the expressions above quoted from the evidence about his receiving commissions is quite broad, his complaint alleges his right to recover for work, labor, and services performed for defendants "in their copartnership business," and which was the buying and selling of cheese. So far as the evidence and surrounding facts disclose, that was the purpose for which he was hired. It does not appear that he was expected to render any particular services with reference to such ventures as the erection and operation of this warehouse, and it is a reasonable construction of the contract that he should receive commissions upon the profits of the business which received the benefit of his services. While it is true that this warehouse was used in connection with defendants' business, and was deemed advantageous for the proper conduct thereof, it can hardly be regarded as strictly and properly a part of the business itself. It was simply a means of carrying on the work in which the copartnership was engaged. It was collateral and incidental to the same, rather than a part thereof. It would be unreasonable to assume that the parties contemplated that any enterprise

in which the copartners might engage, although with copartnership funds, and however remote from their natural business, should be made the basis of swelling or reducing plaintiff's commissions. We assume that, if defendants had made profits in any one year in the purchase and sale of cheese upon which plaintiff was entitled to commissions, and such profits were entirely wiped out by some outside. venture like the erection of this building, or the purchase of land, or any other form of speculation, plaintiff very strenuously would have insisted that he should not be affected by such losses. The reverse of the illustration seems to us proper. We do not think that the erection of the building was a part of the copartnership business which plaintiff was hired to work in, and that he is, therefore, not entitled to compensation by way of commissions upon any apparent profit in the building.

We have not overlooked the fact that the case upon appeal does not, in precise words, state that it contains all the evidence. The parties, however, have made what they evidently regarded as a compliance with the rule upon this subject, and no question has been raised by either of them upon this point. Under such circumstances we have deemed it proper to be governed by the manifest intention of the parties. In accordance with these views, we think the judgment appealed from should be reversed, with costs to the appellant to abide event.

Judgment and order reversed, and new trial granted, with costs to the appellant to abide event upon questions of law only, the facts having been examined, and no error found therein. All concur, except SPRING, J., not voting.

WELLS et al. v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Fourth Department. December 9, 1902.) 1. RAILROADS-PERSONS ON TRACK-DEATH-CONTRIBUTORY NELIGENCE.

In an action against a railroad company for its negligence in making a "running switch" over a highway, resulting in the killing of plaintiffs' daughter, who was eight years of age, and declared to be sui juris, evidence examined, and held to show that the child was not guilty of contributory negligence.

& DEATH-DAMAGES-EXCESSIVE VERDICT.

A verdict for $3,500 in an action by parents for causing the death of a bright, healthy girl 81⁄2 years of age, who lived with her mother apart from the father and husband, was excessive, and should be reduced to $2,500.

Appeal from trial term, Onondaga county.

Action by Frederick and Julia Wells, as administrators, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed conditionally.

This action was commenced on the 23d day of November, 1901, by the plaintiffs, as administrators, to recover damages for the alleged negligent

12. See Death, vol. 15, Cent. Dig. § 128.

and 112 New York State Reporter

killing of their daughter, Catharine Wells, an infant 8 years of age on the 16th day of the same month. The accident which resulted in the death of the child occurred at a point on Harbor street, in the city of Syracuse, where the highway is crossed by a branch track of the defendant's railroad. At about 11 o'clock on the morning in question the deceased was walking in a southerly direction upon the sidewalk of Emerson street. When she reached a point where that street intersects Harbor street, she stopped a moment, and proceeded on her way towards her home, which, it seems, was in that vicinity. Reaching a point about 10 or 15 feet from the defendant's track, she was seen to look both ways, and then she stepped upon the tracks, and as she put one foot upon the second rail she was struck by one of two cars which had been "kicked" down the branch track by a locomotive, and thrown under its wheels. In this situation she was dragged for some distance, and almost instantly killed. Upon the trial the jury rendered a verdict in favor of the plaintiffs for $3,500, and from the judgment entered thereon, and also from an order denying the defendant's motion for a new trial, this appeal is brought.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

Frank Hiscock, for appellant.

John N. Mosher and Theodore Hancock, for respondents.

ADAMS, P. J. From the foregoing brief recital of the main facts of this case it will be seen that the defendant at the time of the accident was engaged in making what is called a "running switch" over a highway in a large and populous city, and the uncontradicted evidence tends to prove that this was being done under circumstances which were peculiarly flagrant, for these two cars were heavily laden with steel rails, and were sent over the highway crossing at a high rate of speed, with no one upon either of them to control their movement. In these circumstances it is hardly necessary to cite any authorities to establish the defendant's negligence, and, indeed, that fact was not controverted upon the trial, but, upon the contrary, was then, as it is now, expressly admitted. It is claimed, however,-and these are the only questions raised upon this appeal,-that the deceased was guilty of contributory negligence, and that the damages awarded by the jury were excessive. The undisputed evidence tends to show that under ordinary circumstances these cars might have been seen as they approached the crossing in question, and that the track itself was in plain sight for a distance of at least 576 feet from any point 30 feet north thereof. It also appears that the deceased was familiar with her surroundings, that she had frequently crossed the defendant's track at this point, and that she was so bright and intelligent as to elicit from the trial court the direction that, notwithstanding her youth, she was sui juris. With these facts fully established, it is now insisted by the learned counsel for the defendant that the contributory negligence of the deceased was so clearly established as to require the court to dispose of that question as one of law. The degree of care required by infants who are declared to be sui juris is something which cannot be determined by any rule which is applicable to all cases, but it is generally dependent upon the circumstances of each particular case. It may be assumed, however, that, while a person of tender years and immature judgment is not