They include the space between the westerly line of the lot projected across West Third street, which is the westerly limit of this lot and of its bounds by the street, and a straight line extending from the northeasterly corner of said lot and premises, at the junction of the front house line upon West Third street of said lot and premises with the front house line upon South Fifth avenue of the said lot and premises, to the southwesterly corner of the lot and premises situated diagonally across said West Third street and South Fifth avenue, viz.: upon the northeasterly corner of said West Third street and South Fifth avenue, at the point of junction of the front house line upon said West Third street of the last mentioned lot and premises, with the front house line upon South Fifth avenue of the last mentioned lot and premises. This line is projected straight from the southeasterly corner of the lot and building affected on the west of South Fifth avenue to the northeasterly corner of West Third street and South Fifth avenue, at the junction of the lines of these two streets. And that, with the west line, seems to include the entire front of the house and lot in question on West Third street, and is also stated to have done so by the north and south lines, which is what the petitioner applied to have done, and the order directed should be done. The description, it is true, has been made a little obscure by the prolixity of the verbiage employed. But still, as the lines as they have been extended across West Third street, from the westerly and easterly bounds of the premises, include all that street in front of them which has been interfered with by the structure of the petitioner and the use made of it, the petitioner has been secured all that it applied to have estimated and made the subject of compensation.

The result, therefore, should be affirmed, with costs.

VAN BRUNT, P. J., and BRADY, J., concur.

FRANK ROSS, Ancillary Adm'r, Appl't, v. NATHANIEL P. HAMLIN, Impl'd, Resp't.

(Supreme Court, General Term, First Department, Filed January 16, 1891.) PLEADING ORDER TO MAKE DEFINITE.

On appeal by one of two defendants from an order denying motion for a bill of particulars of certain contracts set forth in the complaint, the general term modified the order so as to require a bill of part of the particulars. Thereafter, on motion of the other defendant an order was made requiring the complaint to be made more definite as to certain provisions of such contracts. Held, that while the order enlarged somewhat on that of the general term, it did not injure the plaintiff, as he could as easily comply with it as with that of the general term.

APPEAL from order requiring the complaint to be made more definite and certain, by giving certain provisions of the contracts referred to in the complaint as the basis of defendant's liability.

G. B. Adams, for app'lt; Theodore F. Sanxay, for resp't.

VAN BRUNT, P. J.-Although we are of the opinion that the court below have somewhat enlarged upon the decision of the general N. Y. STATE REP., VOL. XXXVI. 77

term in respect to the same complaint upon the appeal of Willett, 34 N. Y. State Rep., 121, yet we do not think that the appellants have, in any respect, been injured by such action of the court. They can as easily comply with the order of the special term as they could with the order of the general term.

We think, under these circumstances, that the appeal taken was entirely unnecessary to protect the rights of the plaintiffs, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

BRADY and DANIELS, JJ., concur.

FRANK ROSS, Ancillary Adm'r, etc., App'lt, v. WALLACE P. WILLETT, Impl'd, Resp't.

(Supreme Court, General Term, First Department, Filed January 16, 1891.) APPEAL from order requiring the complaint to be made more definite and certain.

G. B. Adams, for app'lt; T. F. Sanxay, for resp't.

VAN BRUNT, P. J.-The decision of the appeal in the case of Ross v. Hamlin disposes of the appeal in this case.

The order should therefore be affirmed, without costs.
BRADY and DANIELS, JJ., concur.

FRANK S. GRAY, App'lt, v. ELLIOTT F. SHEPARD, Resp't. (Supreme Court, General Term, First Department, Filed January 16, 1891.) BILL OF PARTICULARS-PLEADING.

An answer denying that plaintiff entered defendant's employment under the agreement alleged in the complaint, but that he did so under an agree ment set forth; that under such agreement he could be discharged for incompetency, etc., and that he was incompetent, is simply a general denial, and the case is not one for a bill of particulars as to the matters alleged in the answer.

APPEAL from order denying plaintiff's motion for a bill of particulars.

The complaint alleges that the plaintiff was engaged by the defendant to render his services for a term of five years from May 13, 1888, and that, after performing his services until the 4th of January, 1890, the defendant refused to permit him to continue in his employ. The answer denies that the plaintiff entered into defendant's employment under the agreement alleged in the complaint, and affirmatively avers that on or about April 18. 1888, defendant and plaintiff made an agreement, of which a copy is annexed to the answer. Under that agreement the defendant could discharge plaintiff " for any dishonesty, incompetency, incompatibility or breach of contract; " and to justify the discharge. he alleges that the plaintiff was incompetent, incompatible in his habits and manners to and with the defendant and other persons in his employ, and that he did not deal honestly or fairly with the defendant or with his newspaper and its business and interest. but was active in his own interest and for his own benefit and ad

vantage without regard to the interest of the defendant or his newspaper, and was unfaithful to the trust reposed in him." Immediately on the service of the answer, plaintiff moved for a bill of particulars upon an affidavit alleging that he had no knowledge or information and could form no opinion of the matters with which he is charged in the answer, and that he could not safely go to trial for want of said knowledge.

A. J. Dittenhoeffer, for app'lt; Noah Davis, for resp't.

BRADY, J.-The answer in an expansive manner contains simply a general denial; and, therefore, the case is not one for a bill of particulars.

The order should be affirmed, with ten dollars costs and disbursements.

VAN BRUNT, P. J., and DANIELS, J., concur.

LIZZIE KOETTER, Resp't, v. THE MANHATTAN ELEVATED RAILWAY Co., App'lt.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) 1. RAILROADS-NEGLIGENCE OF GUARD-CHARGE.

In an action to recover damages for the alleged negligence of defendants, they requested a charge "that the plaintiff cannot recover merely upon the ground of unintentional negligence of a guard, but only on the ground of direct wilful negligence inflicted by the guard." Held, that defendants were not entitled to this.

2. SAME EVIDENCE.

The statement of the guard who caused the accident, made at the time to plaintiff, "that he was very sorry that he had done it," though not material, is not incompetent; it tends to explain the character and quality of the act, and is a part of the transaction.

3. SAME.

Where a physician had testified that plaintiff's injuries were, in his opinion, incurable, it is not error to charge that the jury are to consider the damages, "and then she is entitled to compensation if from the testimony you find that there is a reasonable certainty that she may suffer in the future from these injuries."

APPEAL from a judgment on verdict.

Davies, Cole & Rapallo, for app'lt; Howe & Hummel, for resp't.

BRADY, J.-This action was brought to recover damages resulting from the negligence of the defendant. The defense was that the defendant was free from negligence and that the injuries received by the plaintiff were caused by her own negligence. The account of the accident given by the plaintiff was as follows:

"On the 26th day of October, 1886, Miss Shane resided in the same house with me. We started from there to my place of business, and to her place of business. We went through Eighty-first street to the Eightieth street station. We went through the gate together, Miss Shane and I, and we dropped the ticket, and the train came along and Miss Shane boarded the train. That was twenty-five minutes to eight o'clock in the morning. I was due down town at eight o'clock. Miss Shane boarded the train. Two or three gentlemen crowded in between Miss Shane and I. I was

rope.

pushed off by the guard. As I stepped back, waiting to board the next train, the signal was given. The rope was pulled by the guard I did not hear the bell ring. I only saw him pull the As I stood back, waiting to board the next train, my arm was seized by the guard, which is my right arm, and I was dragged the extreme length of the platform. From the force of the push that I received, I felt that I was falling, but I don't know where I fell to. Then I went into the waiting room when I came to myself, and the ticket agent was there, and he told me not to go to business. He told me not to go, but I did go. I could not tell exactly how long I remained. I didn't remain there any time at all. I went direct to my physician, Dr. Vandergriffe. He called some time in the evening, about five o'clock. I was then in bed. Up to that time I had always been a healthy girl. Nothing at all the matter with me up to the time of the injury. When I was seized by the arm I was standing on the platform of the station, standing back waiting to board the next train. I think I have stated all that took place. I could not exactly tell you how far I was dragged by the guard.

"Q. One foot or ten feet? A. I could not tell I don't reyou; member; I was so frightened; I remember screaming that I didn't want to board the train.

"Q. Notwithstanding which, he kept hold of you all the time? A. He seized me; I felt that I was falling; and that is all I remember; up to that time I suppose the guard still had hold of me, up to the time I fell; after that I was unconscious; I was confined to my bed, I think it was seven months from the start; Dr. Vandergriffe treated me for about a month or six weeks; then Dr. Gaedke, who is still treating me now, was called in; the train had started when the guard had hold of my arm; besides Dr. Gaedke I was examined by Dr. Vandergriffe, Dr. Leale, a specialist for the Manhattan Railway Company, and Dr. Field from the Manhattan Railway Company, but he only made an external examination; the other physician examined me internally; I am still under treatment; I have not done any work since that time; to my knowledge I have not done anything, nothing that amounts to anything;" and is consistent with that of Miss Shane, who was referred to in that statement, and tells the same story. The defendants called several witnesses including the guard, and by which they insist that the occurrence was proved substantially to

be as follows:

That the guard saw the plaintiff coming up stairs to the landing after he had given the signal to start. That the plaintiff rushed up after he had closed one gate and was just closing the other. That he told her she was too late, but she persistently tried to get aboard the car; that she then grabbed the stanchion of the car, and he leaned over the gate and tried to wrest her, and put his arm around her waist to keep her up. That she was walking along the car line, and she finally tripped, and he thought he put her on her feet, and did not push her down or any way pull her along the platform.

The occurrence, therefore, was presented to the jury for their

consideration upon conflicting evidence. Indeed it may be said as to all things except the presence of the plaintiff and her witnesses. The learned judge, in his charge, called the attention of the jury to the testimony pro and con, leaving them to decide the real issue, whether the plaintiff had established the negligence of the defendant and her own freedom from negligence which in any way contributed to the accident. Several requests, however, to charge were made by the defendants, nearly all of which the court granted; some of which were extremely favorable to them. The jury, nevertheless, found for the plaintiff a verdict for $10,000. The first point presented on behalf of the defendant was that the verdict is contrary to the evidence, and the motion for a new trial should have been granted. This is founded on the proposition that the plaintiff's case presents an alleged act of wanton and total negligence on the part of the guard, and that the plaintiff's story was confronted at the outset by an inherent improbability, while the defendant's account is so natural as to almost suggest itself even in the absence of any testimony. The counsel for the appellant had the opportunity upon the trial to elaborate this view of the case, and no doubt did so in his address to the jury, and there were elements which might be used with success, but unfortunately for him the jury established by law as the tribunal to dispose of such conflicts found against his clients.

A perusal of the evidence does not suggest the propriety of interfering with the verdict upon the ground that it is contrary to the evidence. It must be said the evidence sustains it; sustains the propositions that the defendants were guilty of negligence and that the plaintiff was guiltless of any contributory negligence on her part. The next point presented on behalf of the appellants is that the learned justice of the court below refused to charge as follows:

"That the plaintiff cannot recover merely upon the ground of unintentional negligence of a guard, but only on the ground of direct willful negligence inflicted by the guard."

The answer to the alleged error of this refusal is given by the respondent's points, and is that the plaintiff was entitled to recover if the defendant, by its agents or servants, was guilty of negligence, whether that negligence was direct and willful or whether the guard had been merely careless in conducting himself and caring for the passengers, the safety of whose life and limb was entrusted to the defendant.

It is said in Shearman & Redfield on Law of Negligence, vol. 1, 141, that the liability of defendants in cases of this character is not confined to the mere negligence of servants, but extends also to their willful acts, though unauthorized or even forbidden by the master, so far as such acts deprive third persons of a benefit which the master was bound to confer upon them or for any other reason have occurred in the course of the servant's employment. Although the master may, as has been stated, be responsible for some willful wrongs committed by his servants, such responsibility, when these acts have not been authorized by the master, may still fall under the law of negligence. The master,