and 90 New York State Reporter.

has no application because it was passed before the liquor tax law, which authorized for the first time the submission of these questions. The town law is general and sweeping in its provisions, and was intended not only to apply to all propositions and questions which could then be lawfully submitted, but to all other propositions that could thereafter be submitted by reason of subsequent enactments. Moreover, the legislature is presumed to have enacted the liquor tax law, as well as all other laws, in reference to the statutes then in force. There is nothing in the liquor tax law that supersedes or repeals the town law, either expressly or by implication. Neither is there anything in such law repugnant to the town law, so far as this question is concerned. These statutes are pari materia, and relate in some degree to the same subject, to wit, the action of electors at towD meetings; and, under well-settled rules of construction, force and effect should be given to both statutes.

The legislature did not intend to leave the question of the time of filing to the discretion of each town clerk in each particular case. What might seem a reasonable time to one clerk might not seem so to another. There would be endless confusion. Courts would be constantly called upon to define what a reasonable length of time in each particular case should be, and in many cases the public would get very little, if any, notice of so important a proposition. It must be observed, also, that the words "duly filed" are used in the statute. These words mean something more than the mere act of filing. The word "duly" means according to some rule of law. The statute is the same as though it read "filed in accordance with law." In Brownell v. Town of Greenwich, 114 N. Y. 518, 22 N. E. 24, it was held by the court of appeals (Vann, J., writing the opinion of the court) that "duly," in legal parlance, means according to law; that "it does not relate to form, merely, but includes form and substance, both." I am satisfied that the words "duly filed" mean according to the statute governing the subject of filing the petition, to wit, the town law. The statute is mandatory, and prohibits a vote by ballot unless the petition shall have been filed 20 days. The clerk had no discretion. It follows, therefore, that the town clerk was right in refusing to prepare and print the ballots for the reason that the petition had not been filed in his office 20 days before the ensuing town meeting.

The application for the writ is denied, but, as the question is a new one, no costs are allowed.

LOOIS v. EUREKA CLUB.

(Supreme Court, Appellate Division, Fourth Department. January 18, 1899.)

ICY SIDEWALKS-NEGLIGENCE EVIDENCE.

Evidence that for several days water coming off from defendant's house had been allowed to run down the driveway beside it onto the sidewalk, and there freeze, and that defendant's servants had dug a channel taking it onto the sidewalk, where it formed ice, on which plaintiff slipped, is sufficient to authorize a finding of negligence.

Appeal from trial term.

Action by Cora C. Loois against the Eureka Club. From a judgment dismissing the complaint on the merits, entered on a nonsuit granted at the close of plaintiff's evidence, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals. Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and MCLENNAN, JJ.

David N. Salisbury, for appellant.

David Hays, for respondent.

FOLLETT, J. This action was begun February 14, 1895, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. The defendant is a domestic corporation organized as a social club, under chapter 267 of the Laws of 1875, which was repealed, except section 7, by chapter 559 of the Laws of 1895 (Membership Corporations Law). During the year 1892 the defendant was the owner and occupant of a club house on the west side of North Clinton street, in the city of Rochester. On the north side of the club house was a driveway by which carriages entered the grounds of the club from the street and returned from the grounds to the street. January 16, 1892, the plaintiff, then aged 28 years, was employed in the store of Sibley, Lindsay & Curr; and in returning to her home from the store in the evening of that day she slipped on the ice which had been allowed to accumulate on the sidewalk at or near the driveway, and broke one of the bones of her left ankle, causing her great pain and much loss of time, and from the effects of the injury she has never recovered. It appears by the undisputed evidence that the water which came from the north side of the defendant's roof was allowed to flow along the driveway and cover the sidewalk, and there freeze. The defendant's servants, to facilitate the discharge of water from its grounds, cut a gutter, which gathered the water and carried it onto and over the sidewalk. This gutter or channel is said

to have been about a foot in width. The plaintiff testified that she thought the stream of water which had been allowed to flow over the sidewalk when she had previously passed by there was about two inches deep, and that it continued to run until it froze. She testified that when she passed over the walk at noon of the day of the accident the sun was shining and the water flowing, and that the water ran down the walk towards Franklin street, and across the next driveway into the gutter in front of the next building. She testified that the ice was in ridges, with a rough, uneven surface; that the gutter was cut down into the ice and snow as far back from the walk as she could see. The plaintiff's sister testified that in the afternoon of the day of the accident she passed this driveway, and that the ice on its surface was very thick, and the gutter through which the water flowed from the grounds of the club was visible, and that she had seen water flowing through it. She testified that the ice was thick-six inches in places, often more-and "humpy." Bertha Ihrig testified that January 16, 1892, between 12 and 1 o'clock, she passed by the club house, and saw water flowing over the sidewalk in front

and 90 New York State Reporter.

of defendant's driveway, which came from defendant's grounds; that there was ice on the walk over which the water was flowing, and that it was then freezing; that she had trouble in passing over the walk, and nearly slipped and fell. She said that the water, when it reached the sidewalk, flowed all over it, on both sides of the driveway in front of the club, and in front of her sister's place, which was the next house north. Ernest L. Miller testified that he resided in January, 1892, in the house next north of the club, and had lived there for 16 years; that prior to the 16th of January he had been confined to his bedroom, which faced towards the club house, and that he saw defendant's employés working about the grounds on the morning of the day of the accident, saw them picking there, and saw lots of water running down into the cellarway of the club. Emma Miller testified that she passed along the walk on the 16th of January, 1892, and that she stepped into a lot of water running across the sidewalk at the driveway, and that the, water came from the club-house property, and that she fell on the walk by the club house. Augustus C. Danks testified that he observed the walk in front of the club house two or three days before the accident, and shortly after the accident, and that he saw water running from defendant's land down the driveway over the sidewalk, and freezing as it ran, and that he saw a person cutting a channel from the back of defendant's grounds down to the street on the north side of the driveway, and that he saw the water running through this channel across the sidewalk. He testified that he was a plumber, and that he saw water coming from a conductor pipe leading into the ground, and that water came right up out of it; that the conductor led the water from the roof to a sewer; that the water, instead of entering the sewer, flowed through the gutter over the sidewalk. Other evidence of the same character was given, but I think enough has been quoted to show that there was evidence which would have authorized the jury to have found that the defendant was negligent in permitting water to flow from its grounds over this sidewalk for this length of time, and allow it to freeze there. The evidence in the case is sufficient to authorize the jury to have found that the plaintiff did not by her own negligence contribute to the accident. The court erred in granting a nonsuit.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except WARD, J., not voting.

(37 App. Div. 465.)

MCCREDY v. THRUSH.

(Supreme Court, Appellate Division, First Department. February 10, 1899.) 1. INSURANCE - LLOYD'S POLICY - UNDERWRITERS' LIABILITY ATTORNEY IN FACT.

A Lloyd's policy provided that no action should be brought thereon except as against the attorney in fact of all the underwriters, who agreed to abide the result of such suit as fixing the individual liability of each. Held, that the assured was entitled to sue such attorney in fact for the whole loss sustained, and in that action have the individual liability of each underwriter determined.

2 SAME-Judgment against Attorney-EFFECT-RES Judicata.

A Lloyd's policy provided that each underwriter should be liable for one-sixteenth of the loss, and that no action should be brought except against one of their number as attorney in fact for all. A loss having been sustained, plaintiff sued the attorney in fact in his representative capacity, but demanded judgment only for his share of the loss, which was recovered and satisfied. Held, that plaintiff was precluded by such judgment and satisfaction from thereafter suing the other underwriters.

Action by Charles A. McCredy against Henry Thrush. There was a judgment for plaintiff, and defendant moved for a new trial on exceptions. Motion ordered to be heard at the appellate division. Exceptions sustained, and new trial ordered.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, BARRETT, RUMSEY, and INGRAHAM, JJ.

Menken Bros. (Percival S. Menken, of counsel), for the motion.
Lorenzo Semple, opposed.

INGRAHAM, J. This action was brought to recover the amount of the loss sustained by the plaintiff under a policy of insurance whereby certain underwriters, represented by and acting through Daniel Woodcock, as attorney in fact, agreed to insure the plaintiff's assignor against all loss or damage by fire to certain specifically described property, to an amount not exceeding $2,000. This policy contained the following provision:

"No action shall be brought to enforce the provisions of this policy except against the general manager, as attorney in fact, and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder. Judgment entered in such an action shall be satisfied out of the premiums in the hands of the underwriters unexpended; if such premiums shall be insufficient, then out of the deposit made by the several underwriters; if both shall be insufficient, then out of the individual liability of the several underwriters, as hereinbefore expressed and limited; but in no case shall the judgment bind the property of the said general manager to a greater extent than his liability as an individual underwriter."

The underwriters' names were subscribed to the policy, and each underwriter undertook to be liable for the sum of $142.85. The complaint alleges the execution and delivery of the policy of insurance, the destruction by fire of the property insured, and that by reason thereof there became due to the insured from the defendant the sum of $142.85. It alleges the provision of the policy before referred to, and the assignment of the claim to the plaintiff; that in the month of December, 1896, an action was brought in this court by the plaintiff against the said Daniel Woodcock, as such attorney in fact, to recover from him the amount due from one individual underwriter under said policy of insurance according to the terms thereof, in which complaint the plaintiff set forth the above allegations as to the issuing of the policy, the loss thereunder, and the liability of the underwriters thereunder; that the said Daniel Woodcock was duly served with the summons and complaint in said action; that he appeared therein by attorney, and judgment was therein entered in favor of this plaintiff and against said defendant for the sum of

and 90 New York State Reporter.

$142.85, principal, with interest thereon from the 1st day March, 1896, with the costs of said action. The answer, after putting in issue certain of the allegations of the complaint, upon information and belief denies the allegation that in the month of December, 1896, an action was brought in this court by this plaintiff against the said Daniel Woodcock, as such attorney in fact, to recover from him the amount due from one individual underwriter under said policy of insurance according to the terms thereof; and for a separate defense alleges that the plaintiff commenced an action against the said Daniel Woodcock, as attorney for the underwriters of the Insurers' Alliance, to recover a loss occurring under a policy of insurance therein alleged to have been issued by said Woodcock to the insurer mentioned in said policy; and that the plaintiff in said action demanded judgment against the defendant, said Daniel Woodcock, as attorney for the underwriters of the Insurers' Alliance, for the sum of $142.85, with interest thereon and costs; that the plaintiff recovered judgment for the full amount prayed for in the said complaint, with interest, costs, and disbursements; and that the said judgment therein was duly paid and satisfied, and that by reason thereof no indebtedness now exists between this defendant and the plaintiff by reason of any alleged liability under the said alleged policy, and that the plaintiff has been fully paid.

Upon the trial the plaintiff offered in evidence a judgment roll in the case of this plaintiff against Daniel Woodcock, as attorney for the underwriters of the Insurers' Alliance, and, having proved the demand and the assessment to the plaintiff, rested. The defendant then offered in evidence a transcript of the county clerk showing the payment of the judgment obtained by the plaintiff against Woodcock, as attorney in fact for the underwriters, and moved to dismiss the complaint upon the ground that the judgment against the attorney and manager, upon which the suit rested, had been paid and satisfied of record, and that, therefore, there existed now no liability, under the terms of the policy, upon which this defendant could be held liable in this action, and therefore that the action cannot be sustained. The plaintiff then moved that a verdict be directed in his favor. The court directed a verdict in favor of the plaintiff, and ordered the exceptions to be heard in the first instance in this court. The judgment in the action against Woodcock adjudged that "Charles A. McCredy, the plaintiff, do recover of Daniel Woodcock (as attorney of the underwriters of the Insurers' Alliance), the defendant, the sum of one hundred and fifty dollars and fifty-nine cents, the amount claimed, and interest, with twenty dollars and eleven cents costs and disbursements, amounting in the whole to the sum of one hundred and seventy and 70/100 dollars ($170.70), and that said plaintiff have execution therefor."

The questions arising under policies of this character, and the liability of underwriters thereunder, have been several times presented to this court in late cases. In Leiter v. Beecher, 2 App. Div. 577, 37 N. Y. Supp. 1114, which was an action by an insurer who had sustained a loss against the attorney in fact of the underwriters for the full amount of the loss, Mr. Justice Rumsey, in delivering the opinion of the court, said: