[1, 2] Defendant's only liability was for negligence as a warehouseman. The refrigerators at the time of the loss were interstate freight. C., C., C. & St. Louis Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453; Chicago, Rock Island & Pacific Railway Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836.

[3, 4] The plaintiffs assumed the burden of proving that the defendant was negligent in storing the refrigerators at a place where they were liable to be destroyed by the flood, and to sustain the verdict it must appear that the defendant did not exercise the care which an ordinarily prudent person would exercise with reference to the property at the time and under the circumstances. The complaint presents the only real ground upon which a liability could be based, and the burden of proof rested upon the plaintiffs to establish defendant's negligence. Railroad Co. v. Reeves, 10 Wall. (77 U. S.) 176, 19 L. Ed. 909; Barnet v. N. Y. C. & H. R. R. Co., 167 App. Div. 738, 153 N. Y. Supp. 374.

The defendant's freightyard at Albany adjoins the Hudson river. In it there are about 40 tracks, with various switches. Access to the yard is by a single track of railroad which crosses the tracks of the Delaware & Hudson Railway Company, and a crossover or tower at the point of intersection, controlled by the Delaware & Hudson Company, allows the defendant's cars to pass over the intersection from time to time, and the defendant cannot move its cars into or out of the yard without the signal from the Delaware & Hudson tower, the Delaware & Hudson Company having the right of way over the crossing, and the defendant's rights at the crossing being subordinate to that right.

The defendant, March 18th, gave the plaintiffs notice of the arrival of the freight, and required its removal within 48 hours. They paid the freight and draft, and the car was placed on the delivery track, the usual place for unloading. The track upon which it was placed was the highest ground in the yard, and about 500 or 600 feet from the river. During the time mentioned between 300 and 400 cars were stored in the yard. 600 or 700 cars per day usually came into the yard. Large quantities of freight were in the two warehouses in the yard. On March 20th, two days after the arrival of the car, the plaintiffs removed from it to their warehouse 57 refrigerators, a truckload, leaving 53 refrigerators in the car. The street leading to the plaintiff's warehouse, particularly the entrance to their warehouse, was in bad condition, and for that reason the plaintiffs claim the remainder of the refrigerators were not removed at the time.

March 26th flood conditions prevailed in the watershed of the Hudson river and at Albany. The high water was caused by the excessive rains through the watershed, and not by ice or melting snow. The highest track of the defendant's yard was 1718/100 feet above mean sea level. The floor of the car was 461⁄2 inches above the rails, so that the freight in the car would not be wet unless the water rose over 21 feet above mean sea level. The water in the river rose rapidly

during the 26th and 27th, and at 1 p. m. on the 27th was 1710/100 feet above mean sea level, just covering the rail of the track upon which the car stood. The water reached its extreme height at 1 p. m. March 28th when it was a fraction over 22/10 feet above mean sea level, with the result that it entered the car and practically destroyed the refrigerators. The extreme recorded height of water prior to March, 1913, was 2116/100 feet above mean sea level, on February 9, 1857. There was no other previous record showing that the water of the river at Albany was 20 feet above mean sea level.

On the morning of the 26th water began to come over the tracks in the yard nearest the river. That was, however, no unusual condition, because frequently the summer and spring rains bring it over them. Prior to the 27th, aside from the water on the shore tracks, there had been no water in the yard proper, but upon the morning of the 27th water began to go into the yard, and at about 8 o'clock the yardmaster was ordered by his superior to get the cars and freight out of the yard. He immediately stopped all cars from entering the yard, and used all reasonable efforts to remove the cars from the yard. He began at once to put empty cars at the warehouses to remove the freight, and began to move cars, taking those nearest the river. He had three engines in the forenoon, with ample men. About noon his superior asked what he needed, and he replied that he ought to have another engine on account of the heavy grade to get out of the yard, because he had to move rapidly in order to get any show from the Delaware & Hudson. Two large engines were sent him about 1 o'clock. An engine was attached to this car and other cars upon the same track about 8 o'clock the morning of the 27th, with the intention of removing them from the yard, but consignees were removing freight from these cars with trucks, and this car was not moved at that time; the engine immediately began to remove other cars. Such removal by the consignees continued until about noon. About 1 o'clock on the 27th the cars upon that track, including the car in question, were moved towards the exit, and were about at the Morton elevator, but the Delaware & Hudson Company by the constant use of its tracks refused permission to let these cars pass over them, and they were thereby compelled to remain in the yard. The yardmaster, at various times, sought permission of the Delaware & Hudson Company tower to move these cars, but was unable to obtain it. The car, with others, remained there attached to the engine, ready to be moved, until about 10 o'clock, when timbers and driftwood came down the river, drifted in between the cars, and it was impossible to move them. In attempting to move some other cars one became derailed, which rendered it impossible to use the track so that the car in question could not be moved in either direction. The men worked diligently until the height of the water rendered it impracticable to remove the cars. The defendant succeeded in getting from the yard all of the cars but about 40.

[5] The plaintiffs are residents of Albany, carrying on a large business there, and evidently had full knowledge of the flood conditions in the Hudson at Albany during the time in question. They also knew

just where their car was located in the yard, and the location of the yard with reference to the Hudson river, and at all times undoubtedly had access to the car, but did not feel called upon during the freshet to attempt to remove their freight. Other consignees having freight in the yard apparently apprehended no danger until the morning of the 27th, when they began to remove it. It is fair to assume, therefore, that the plaintiffs, the other consignees of freight in the yard, and the defendant, had no reasonable ground to apprehend danger from the flood to freight in the yard until the morning of the 27th. Perhaps the care which the plaintiffs exercised towards their freight prior to the 27th was some measure of the reasonable care which the ordinary prudent man would exercise under the circumstances. It was so highly improbable that water would enter this car upon the high track upon which it was that no negligence can be charged against the defendant up to the morning of the 27th when it began to remove freight from the yard. Up to that time the ordinary prudent man would consider the freight safe in the yard; after that time he would have reason to apprehend that it might be injured by the flood. If there is any negligence therefore upon the part of the defendant, it must be for something which it omitted to do on and after the 27th. Apparently the car in question would have been removed from the yard soon after 8 o'clock, when the engine was attached to it and the other cars upon this delivery track, if the removal had not been delayed by the different consignees seeking to remove their freight. The plaintiffs' freight had no preference over the freight of any other consignee; a like duty was owing by defendant to each car load and each parcel, to exercise a reasonable care for its preservation from impending danger. No consignee can claim negligence against the defendant because it removed the freight of some other consignee in the ordinary dispatch of business before his freight was reached. None of the 40 car loads left upon the track was discriminated against, but cars were left upon the track because under the existing conditions all the freight could not be removed, and the freight removed had just as imperative a right to be removed as that of the plaintiff or any other consignee. In the afternoon the engine was attached to the car in question and the other cars upon the delivery track, and the removal would have been accomplished had it not been for the necessities of the Delaware & Hudson Company which caused it to refuse to allow the defendant's cars to cross its tracks and thereby made it impossible for the defendant to remove any other cars from the track. We cannot find that the defendant omitted to perform any act which it reasonably could have performed for the safety of the plaintiffs' freight after it became reasonably apparent that it was in danger.

[6] The official in charge of the United States Weather Bureau at Albany, on the morning of the 27th, issued a typewritten paper to the newspapers, predicting that the water would reach 20 to 21 feet in Albany within the next 24 or 36 hours, and he telephoned to a large number of business houses to the same effect. We may fairly assume that the plaintiffs and the defendant had knowledge of this prediction. At about 1 o'clock on the 27th it is evident that the defendant's yardmaster was experiencing or was fearing some difficulty in being able to cross

the tracks of the Delaware & Hudson, as he required another engine in order to make the passage quicker when an opportunity offered. Apparently after that time no opportunity offered. We assume from the record that the Delaware & Hudson Company acted in good faith, and that the freshet imposed upon it such conditions that in order to take care of its own business it was necessary for it to deny the defendant the privilege of crossing its tracks. There is not enough in the record to indicate with any reasonable degree of certainty what the conditions were with reference to the crossing of the Delaware & Hudson tracks during the forenoon, and whether if the extra engine had been put into the yard in the morning all the cars might have been removed. There is nothing to show that a reasonably prudent person would have anticipated that the conditions of the Delaware & Hudson Company's service during the flood would render it necessary to preclude the defendant from crossing its tracks at this place. The actual situation of its tracks with reference to the advancing water, the conditions prevailing with reference to that company during the morning of the 27th, and the necessities of its business do not appear, and it is not apparent that the defendant had knowledge of any conditions during the morning of the 27th which would cause a reasonably prudent person to anticipate that crossing would be denied him in the afternoon if the flood continued.

We conclude, therefore, that the judgment should be reversed as against the evidence and a new trial granted, with costs to the appellant to abide the event. All concur.

(96 Misc. Rep. 278)

O'CONNOR v. HEALEY.

Supreme Court, Special Term, Rensselaer County. July, 1916.)

1. NEW TRIAL 133-PROCEEDINGS TO PROCURE-MOTION-Case.

Under Code Civ. Proc. § 999, authorizing a motion on the judge's minutes to set aside a verdict, the practice of entertaining such motions should only be approved in plain cases, where the error is manifest, and where the questions are doubtful or complicated the party should move for a new trial on a case.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 270-272; Dec. Dig. 133.]

2. NEW TRIAL 131(1)-PROCEEDINGS TO PROCURE-MOTION.

A party may make a motion for new trial on a case, as authorized by Code Civ. Proc. §§ 997, 1002, on any or all of the grounds permitted under section 999, authorizing motion on the judge's minutes.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 263; Dec. Dig. 131(1).]

3. NEW TRIAL 114-PROCEEDINGS TO PROCURE-MOTION ON JUDGE'S MINUTES-AUTHORITY OF JUDGE.

On disqualification of the justice who presided at the trial to determine a motion on the minutes to set aside the verdict, the movant cannot proceed with the motion before any other judge.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 234-236; Dec. Dig. 114.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

4. NEW TRIAL 114-PROCEEDINGS

JUDGE.

TO PROCURE-DISQUALIFICATION

OF

On the disqualification of the trial judge to determine a motion on the judge's minutes to set aside the verdict, the motion itself and a direction to delay entry of judgment, implied from the judge's statement that he desired a copy of the minutes before deciding the motion, fell, leaving open to the movant only the right to proceed under Code Civ. Proc. §§ 997, 1002, by motion for new trial on a case.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 234-236; Dec. Dig. 114; Judges, Cent. Dig. § 102.]

5. NEW TRIAL 133-MOTION-STATUTORY PROVISIONS.

Though Code Civ. Proc. § 999, authorizing motion to set aside a ver dict on the judge's minutes, is the only one that speaks of setting aside a verdict, the grant of a new trial under sections 997, 1002, involves the setting aside of the verdict, and the remedy under section 999 is not exclusive.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 270–272; Dec. Dig. 133.]

6. JUDGMENT 272-ENTRY-COMPLETION OF TRIAL.

Under Code Civ. Proc. § 992, relating to exception to rulings, a trial is complete on the rendition of a general verdict, where no previous motion has been reserved, and the clerk on application of the successful party must enter judgment in conformity with the verdict, unless the court should otherwise direct.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 512-523; Dec. Dig. 272.]

7. EXECUTORS AND ADMINISTRATORS

456(1)—ACTIONS-COSTS-ENTRY.

Under Code Civ. Proc. §§ 1835, 1836, 3246, relating to costs in actions against an executor, the plaintiff, in order to secure an entry of judgment for costs, must apply to the court.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 1941-1947, 1966; Dec. Dig.

456(1).]

Action by Margaret O'Connor against John J. Healey, as executor of the last will and testament of John F. Lowery. On motion for an order that defendant proceed with its motion to set aside the verdict, or that plaintiff be permitted to enter judgment, with costs, on the verdict. Order entered.

Edward S. Coons, of Ballston Spa, and Edgar T. Brackett, of Saratoga Springs, for plaintiff.

James V. Coffey and John T. Norton, both of Troy, for defendant.

VAN KIRK, J. This is a motion for an order that the defendant, at the Special Term of the Supreme Court in Saratoga Springs, July 8, 1916, then and there proceed with its motion to set aside the verdict, or that the plaintiff be permitted to enter judgment with costs on the verdict.

The plaintiff has recovered a verdict from the defendant for services rendered to the deceased. A motion to set aside the verdict under section 999 of the Code was made and entertained; Mr. Justice Cochrane stating at the time that he desired a copy of the minutes before deciding the motion, by inference, at least, directing that judgment await the decision of the motion. Thereafter, and before the motion was decided, he was designated to the Appellate Division and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes