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ought to stand until it is overthrown by clear proof of the absence of such d. scretion and intelligence as is usual with infants of fourteen years of age.”
The Penal Code provides that when an infant is charged with crime, upon the prosecution rests the burden of showing that the defendant has sufficient intelligence and maturity of judgment to render him capable of harboring a criminal intent, until the age of twelve years, at which time the presumption of incapacity ceases. Now, while this statute does not undertake to prescribe, and does not necessarily affect, the rule to be applied in civil actions, it suggests, as asserted in the Nagle case, an age to which the courts can with safety limit the presumption of incapacity on the part of an infant to appreciate the perils incident to crossing railroad tracks. This presumption may, in a proper case, be so far overborne by evidence as to present a question for the jury, and then the age of the injured party may doubtless be considered by the jury in connection with the facts indicating a lack of comprehension of a dangerous situation. But in the absence of evi. dence tending to show that an injured infant twelve years old was not qualified to understand the danger, and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris.
The views expressed lead to the conclusion that the judgment should be reversed.
RAILWAY TRACKS, DUTY REQUIRED OF Persons APPROACHING. — The railway track itself is a warning of danger to one approaching it, and it is bis duty to stop, look, and listen for approaching trains before he attempts to yo upon the track: Ellis v. Lake Shore etc. R. R. Co., 138 Pa St. 506, post, p. 914, and note.
NEGLIGENCE — INFANTS. — As to the age at which an infant may be regarded as capable of such powers of discretion as to charge him with negli. gence, see extended noto to Westbrook v. Mobile etc. R. R. Ca, 14 Am. 8th Rep. 590_596
SimmonS v. EVERSON.
(124 NEW YORK, 319.) PARTIES MAINTAINING NUISANCE JOINTLY AND SEVERALLY LIABLE FOR
DAMAGES RESULTING THEREFROM WHEN. - Persons who by their sev. eral acts or omissions maintain a public or comnion nuisance are jointly and severally liable for such damages as are the direct, immediate, and probable consequence of it. Where, therefore, three several owners of adjoining lots on a city street permit a brick wall extending along the fronts of their several lots to remain in a leaning, unsafe, and dangerous condition, after the buildings of which they were a part had been burned down, and such wall falls upon and kills a person who was lawfully standing on the sidewalk adjacent thereto, all of said owners are jointly and severally liable, although no part of the wall of one of them touched him. ACTION to recover damages for the death of plaintiff's intestate, alleged to have been caused by the defendants' negligence. The trial court found that the appellants owned in severalty three adjoining lots on a street in the city of Syracuse. A continuous brick wall formed the front of the three buildings on these lots. These buildings were destroyed by fire, which left standing only the front wall and parts of the partition walls. Shortly after the fire, this front wall began to lead toward the street, and began to incline more and more, until November 17, 1887, when it gave way and fell. Material from the part of it which stood on the lots of appellants Everson and Pierce fell upon and killed the plaintiff's intestate, who was lawfully on the sidewalk near the boundary between their properties. No part of the wall of appellant Lynch fell on decedent. It was found that each of the defendants was careless and negligent in not removing or supporting the walls on his own lot, and that the several neglects of the defendants united and directly caused the walls to fall. It was also found that these walls were so unsafe that they were a public nuisance, and that the decedent did not negligently contribute to the accident.
M. M. Waters, for appellant Everson.
FOLLETT, C. J. It is urged, in behalf of the defendants, that at most this is but a case of several independent acts of negligence committed by each, the joint effect of which caused
the accident, and for which they are not jointly Hablo within the rule laid down in Chipman v. Palmer, 77 N. Y. 61; 33 Am. Rep. 566.
The case at bar does not belong to the class of actions ario ing out of acts or omissions which are simply negligent; and while the defendants did not intend by their several acts to commit the injury, their conduct created a public nuisance which is an indictable misdemeanor under the statutes of this state: Pen. Code, secs. 385, 387; Vincett v. Cook, 4 Hun, 318; and at common law: Regina v. Watts, 1 Salk. 357; 2 Ld. Raym. 856; 1 Russell on Crimes, 5th ed., 423; 2 Wharton's Crim. Law, sec. 1410; Bigelow on Torts, 237; Pollock on Torts, 2d ed., 345; Stephen's Digest of Criminal Law, art. 176; Indian P. C., sec. 268.
Persons who by their several acts or omissions maintain a public or common nuisance are jointly and severally liable for such damages as are the direct, immediate, and probable consequence of it: Irvine v. Wood, 51 N. Y. 224, 230; 10 Am. Rep. 603; Slater v. Mersereau, 64 N. Y. 138; Timlin v. Standard Oil Co., 54 Hun, 44; Klauder v. McGrath, 35 Pa. St. 128; 78 Am. Dec. 329; 1 Shearman and Redfield on Negligence, 4th ed., sec. 122; Pollock on Torte, 2d ed., 356.
The fall of these four-story brick walls into the street was the direct and immediate consequences of the several acts of the defendants in suffering the portions standing on their own lots to remain unsupported after they had visibly begun to incline towards the street, and it was as obvious before as it was after the accident that if any part of the front wall fell, a large part of it must, and that it would go into the street.
The judgment should be affirmed, with costs.
NUISANCES – LIABILITY OF PERSONS MAINTAINING A NUISANCE — The liability of several persons for creating or continuing a nuisance is both sev. eral and joint, and the plaintiff may, at his pleasure, sue one or all of the wrong-doers: Note to Creed v. Hartman, 86 Am. Dec. 347, 348. But com. pare Blaisdell v. Stephens, 14 Nev. 17; 33 Am. Rep. 623, and noto; Chipman v. Palmer, 77 N. Y. 61; 33 Am. Rep. 566.
MANDEVILLE V. AVERY.
(124 NEW YORK, 876.] OHATTEL MORTGAGE ITHOUT IMMEDIATE DELIVERY OR CHANGE OF Pos
SESSION VOID AS AGAINST CREDITORS WHEN. - A chattel mortgage which is not accompanied by an immediate delivery or followed by an actual or continued change of possession of the chattels mortgaged, and which is executed upon an agreement that the mortgagor may remain in possession of the property covered by the mortgage, and sell the same at retail, and use the avails in substantially the same manner as before the execution of the mortgage, is void as against the creditors of the mortgagor. And the term “creditors” includes all persons who were such while the chattels reinained in the possession of the mortgagor under that agreeinent, and their rights are not affected by the fact that they did not obtain judgment or a specific lien until after delivery of the
property to the mortgagee. RIGHT OR CREDITOR TO ATTACK CHATTEL MORTGAGE AS FRAUDOLENT
NOT WAIVED WHEN. – An assent by a creditor to an arrangement between a mortgagor and mortgagee which will preclude him from asserting his rights as a creditor against the property mortgaged must be such us to create against him an equitable estoppel, or it must exist in agreement supported by a valid consideration. An allegod assent made upon condition that the mortgagor should return to the creditor a portion of the goods purchased of him, the purchase price for which constituted the indebtedness, and would make payments to him, neither of which con. ditions were complied with, is without consideration, and therefore not
binding. CREDITOR NOT DEPRIVED OF RIGHT TO ATTACK CHATTEL MORTGAGE BY
AGREEMENT MADE BY HIS AGENT WHEN. A creditor cannot be de. prived of his legal right to attack a chattel mortgage as fraudulent, by an agreement made by his agent waiving such right, without evidence that he knew of the defect in the mortgage, and had authorized his agent to make an agreement in reference thereto, or had acquiesced in such an
agreement when made. REOKIVER APPOINTED IN SUPPLEMENTARY PROCEEDINGS, POWERS AND
RIGHTS OF. - A eceiver appointed in supplementary proceedings under the code is vested with the legal title to all the personal property of the judgment debtor, and has the right to prosecute all actions to set aside all transfers of property made by the debtor to defraud his oreditors. For the purpose of maintaining such actions he representa the creditors, and possesses the same rights as the creditor ander whose
judgment he was appointed would himself have had. MORTGAGEE CANNOT RETAIN PROPERTY OR ITS PROCEEDS OBTAINED UNDKB
FRAUDULENT MORTGAGE. — Although a mortgagee may have an honest claiın, he cannot, as against a pursuing creditor, retain property obtained by him onder his mortgage if it be fraudulent; and if he takes and sells the property by virtue of his mortgage before any lien thereon is acquired by a creditor, the latter may compel hiin to refund the proceeds; for the mortgage being void, all proceedings under it are also void. The right of the creditor cannot be defeated by a fraudulent mortgages by merely selling the mortgaged property.
PLEA OF FORMER ACTION PENDING, WHAT NECESSARY TO SUSTAIN. - To
sustain a plea of former action pending, it must appear from the pleadings in the first action that it was for the same cause as the second, or necessarily involved the same question. It is not enough that the samo property is in controversy in both actions. ACTION brought to have two chattel mortgages, executed by defendant Henry J. Beck to defendant Edward H. Avery and the National Bank of Auburn, adjudged fraudulent and void, and to require defendant Avery to account for the proceeds of the sale of the mortgaged property, and pay over to the plaintiff such part of said proceeds as was necessary to satisfy the judgment of Lewis P. Ross, a creditor of said Beck. The facts are stated in the opinion.
David Hays, for the appellant.
BROWN, J. The mortgage to the National Bank of Auburn, which was subsequently assigned to Mr. Avery, was executed January 24, 1887. The mortgage to Avery was executed February 8, 1887. As to the first mortgage, the court found that it was not accompanied by an immediate delivery or followed by an actual or continued change of possession of the chattels inortgaged, and that it was executed upon an agreement with the bank that the mortgagor might remain in possession of the property covered by the mortgage, and sell the same at retail in substantially the same manner as before the execution of the mortgage, and use the avails.
Similar findings as to the Avery mortgage were refused. The court found, as a conclusion of law, that the mortgage to Avery was valid, and that the mortgage to the bank was not fraudulent and void as against the judgment of said Ross nor the plaintiff in this action.
There was ample evidence to support the findings aforesaid, and the validity of the Avery mortgage cannot be questioned on this appeal.
The finding quoted in reference to the mortgage to the bank rendered it void as to the creditors of the mortgagee; Gardner V. McEwen, 19 N. Y. 123; Russell v. Winne, 37 N. Y. 591; 97 Am. Dec. 755; Southard v. Benner, 72 N. Y. 424; Potts v. Hart, 99 N. Y. 168; Brackett v. Harvey, 25 Hun, 502; Bainbridge v. Richmond, 47 Hun, 391. And the term “creditors" includes all persons who were such while the chattels remained in possession of the mortgagor under that agreement, and it was not