seems to have been applicable to a few only of the certificates held by the plaintiffs. As to them such endorsement alone was insufficient evidence to establish title in the plaintiffs. In the view taken it is not essential to refer to the legislation had and the action taken to supply the deficiency in funds for municipal purposes, occasioned by the individuality of assessments which had been made, although it was the subject of consideration in the court below. But it may be observed that in 1883 provision was by statute made to make assessments of arrears of unpaid taxes assessed prior to July 1, 1882; and it was provided that all taxes, assessments and water rates unpaid, for which sales had been made, which sales were for any reason invalid, should be deemed to be in arrears from the date when they were levied, or attempted to be levied or confirmed. Laws 1883, chap. 114. It is claimed on the part of the plaintiffs that thereupon the city proceeded to re-levy taxes and assessments upon the premises, and collected them, and thereby twice received payment of the moneys for which this action was brought. As found by the trial court, this was not necessarily so as to the whole amount. The court found that pursuant to that act of 1883, the city authorities levied upon each of the parcels of land a tax or assessment for some amount in lieu and stead of those in question, but that the amount so re-levied did not appear. These facts tend to show that the city made such assesssments, by way of re-levy, as were deemed essential to supply the deficiency caused by or resulting from the irregularities in previous assessments, including those for which sales had been made; and that the statute of 1883 was passed to meet that necessity. It is not seen that the plaintiffs were entitled to recover interest prior to the time the demand of payment was made. Nor were they entitled to recover anything by way of indemnity for costs incurred by them in defense of an action brought by one Barnard, in which they were made defendants, and in which was involved the question of the validity of the certificates as liens. They had no rights as against the defendant, except such as were given by the contracts contained in the certificates; and those were to a conveyance, unless irregularities were discovered in the proceedings prior to the sales, and in that case they were entitled to repayment of the amount of the purchase money as represented by the certificates. of which they had the title.

These views lead to the conclusion that the statute of limitations was not a bar to the action; and that the judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

ALFRED HICKEN BOTTOM, Resp't, v. THE DELAWARE, LACKAWANNA & WESTERN R. R. Co., App'lt.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

Where plaintiff was injured while getting on board defendant's train, 1 Affirming 15 N. Y. State Rep., 11.

and as a result his right arm was amputated ear the shoulder, and on the trial of his action for damages he testified that he had since experienced pain, seemingly in the amputated arm, it is competent to inquire of a medical witness whether the pain as represented by the plaintiff's evidence was the necessary consequence of the condition produced by the crushing and severance of the plaintiff's arm.

2. TRIAL-CHARGE TO JURY.

Although some portion of a charge, for the want of some qualification or explanation, may be subject to criticism, it is to be construed in the light of other portions of the charge so far as it may be, and if the charge as a whole presents the questions fully and fairly to the jury so as not to mislead them, exceptions to detached portions of it will not be effectual for the support of error.

3. SAME-REQUESTS TO CHARGE.

It is the better practice, because less liable to mislead the jury, for the court even after making the main charge to decline to instruct the jury as requested unless the proposition submitted to it for that purpose clearly embraces within its terms all the facts to be found as the premises from which the inference or conclusion for which instruction is asked may properly be drawn, or that the charge as thereupon made be carefully qualified so as to include all the facts requisite to support the instruction requested or given.

APPEAL from judgment of the general term of the supreme court, in the first judicial department, affirming judgment entered on verdict in favor of the plaintiff.

Hamilton Odell, for app'lt; Christopher Fine, for resp't.

BRADLEY, J.-In October, 1885, at Newark, N. J., the plaintiff, while in the act of getting on board the defendant's train of cars to return to the city of New York, where he resided, fell upon the track and received severe and permanent injuries. He charged that they were occasioned solely by the negligence of the defendant in not giving him a reasonable time to get on to the train before it was started. And upon that subject the evidence on the part of the plaintiff tended to prove that when he reached the train, and proceeded to get aboard, it was standing still at the station, that he stepped on to the step of the car and with one hand took hold of the front railing of its platform, when by the guddenly starting of the train with a jerk, he was thrown from it, fell under the car, and in that manner received the injury complained of. There was some conflict in the evidence on the subject, but that on the part of the plaintiff permitted the jury to find that the injury was caused by the negligence of the defendant, and without any fault of the plaintiff; and that question, as well as that whether or not the damages awarded by the verdict were excessive in amount, were for the purpose of this review disposed of by the court below. The injury resulted in the ampu tation of the plaintiff's right arm near the shoulder. The plaintiff testified that he has since experienced pain, seemingly in his amputated arm and hand, and that such painful sensation has continued up to the time of the trial. That the pain he suffered has been gradually getting less except the sensation of a swollen hand, which constantly and still continued. Later in the trial a physician called as a witness was, by the court, asked this question: In your opinion, as a medical man, following an accident such N. Y. STATE REP., VOL. XXXIII. 40

as here described, and an amputation, does it follow that the patient experiences the pain of an imaginary hand and lower part of the arm?" which after objection on the ground that it was immaterial and incompetent was made, overruled, and exception taken by the defendant, the witness answered: "It is not the rule, but it frequently happens."

The reason urged in support of the exception is that such pain was imaginary and a mere delusion, and not the direct or natural result of the injury. The plaintiff had mentioned this as part of the painful suffering he had endured after the accident and the amputation of his arm. And whatever was its nature, if his statement was true, the sensation was that of pain and the result of the injury, his bodily pain resulting from which was properly the subject of proof and consideration. Ransom v. N. Y. &

E. R. R. Co., 15 N. Y., 415; Curtis v. R. & S. R. R. Co., 18 id., 534. And if the sensation of suffering from it actually existed, and was attributable to such cause, the evidence came within the rule of admissibility. Pain is but the sensation of a condition which produces it, and the fact that it seemed to the plaintiff to come from, or to be in the hand and the amputated arm, as if their connection with the body remained, is only descriptive of the pain he suffered. It was no less the subject of consideration because the location of it was deceptive. The pain resulting from the injury is the fact to which his evidence related. And assuming that the sensation of it was such as the plaintiff testified it was, it cannot, as matter of law, be said that it was without some natural cause. In that view it was presumptively competent to make the inquiry that was made of a medical witness, whether the pain, as represented by the plaintiff's evidence, was the necessary consequence of the condition produced by the crushing and severance of the plaintiff's arm. As it cannot be assumed that there was any want of good faith on the part of the plaintiff in permitting the amputation to be, as it was, made, it is not for the purposes of the question important whether such painful sensation following the injury was to some extent attributable to the manner in which the surgical operation was performed. It may be treated as within the result, of which the injury occasioned by the alleged negligence of the defendant was the proximate cause. Lyons v. Erie R. Co., 57 N. Y., 489; Sauter v. N. Y. C., etc., R. R. Co., 66 id., 50.

It did not appear by preliminary examination of the doctor or otherwise that the answer sought by the question asked him was not the subject of expert evidence, and upon the objection taken the question of his competency to give an opinion was not raised. Stevens v. Brennan, 79 N. Y., 255; In re Crosby v. Day, 81 id., 242. The question put to the witness was proper, and the ruling permitting him to answer it was not error, although a portion of the answer not strictly responsive may not have been competent as evidence. When the witness answered that such consequence was not the rule, he had gone as far as he was necessarily called upon by the question to speak; and what he added to that may not have been competent, as the evidence, of itself, did not with

any degree of certainty relate to the plaintiff's condition. That such may have been the effect of his injury is not proof that it was so. Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y., 61; 23 N. Y. State Rep., 729; 44 Hun, 236; 7 N. Y. State Rep., 804. But as there was no refusal of the court to strike out the answer of the witness or any portion of it, the question as to competency of the latter part of it is not here for consideration. Crippen v. Morss, 49 N. Y., 63; Platner v. Platner, 78 id., 91.

At the conclusion of the general charge, the court was requested by the plaintiff's counsel to further charge the jury "that the defendant was bound under the circumstances of this case, as presented by the plaintiff, to allow him a reasonable time in which to get on the train, and is responsible for any injury resulting to him from the slightest motion of the car during the entrance of the plaintiff as such passenger in such reasonable time," to which the court responded: "I so charge, subject to the qualification that I charged before. That is the law, of course, if a passenger presents himself as a passenger to get aboard the train before the conductor has actually signaled the engineer to start." The defendant's counsel excepted. This proposition which the court was so requested to charge, standing alone, did not embrace all the elements of fact requisite to the responsibility of the defendant for the injury sustained by the plaintiff. But by reference to the charge which the court had just made, it is seen that the jury were fully and correctly instructed upon the subject of negligence of the defendant and the freedom of the plaintiff from negligence essential to charge the defendant with liability.

The court submitted to the jury the question whether the plaintiff indicated to the agents of the defendant there that he was a passenger before the train was signalled to move, that if he did. not the defendant was not guilty of negligence, that he had no right to delay the train, but it was for him to present himself at the station in time, and in some way signify his purpose to take the train before it became the duty of the conductor to give the signal to start it; and that in such case if he was not given a reasonable time to get aboard, the defendant was chargeable with negligence. But that to render the defendant liable its negligence must be found to have been the sole cause of the injury; that if the plaintiff failed to exercise due care he could not recover; that the burden was with him to prove to the satisfaction of the jury that he was free from negligence as well as that the defendant was guilty of it; and that if the evidence failed to satisfy them that both propositions were established the plaintiff was not entitled to recover; and they were further instructed that if the plaintiff attempted to get on to the train when it was in motion, he was guilty of negligence and could not recover. The court was also requested by the plaintiff's counsel to charge the jury "that the defendant is liable whether the signal by the conductor or brakeman to start has been given or not, provided a reasonable opportunity was not offered to the passenger to get on board the train." The court responded: "As to passengers presenting themselves as passengers before the signal was given, I so

charge." And the defendant's counsel excepted. What has been said of the former proposition is equally applicable to this one. And so far as practicable they may be considered together. While the court may well have been justified in declining to charge either of them as requested, it cannot be assumed that by the disposition made of those requests the court intended to modify the charge as already made upon the essentiality of both negligence of the defendant and care on the part of the plaintiff to a recovery by the latter, but on the contrary that the charge as made of and upon those propositions to which the court's attention was called by the requests, was made in view of the instruction before given, and had relation only to the considerations bearing upon the question of negligence of the defendant and which would subject it to responsibility and liability so far as they were dependent upon a failure to observe and perform its duty to the plaintiff. In that view this additional charge was in harmony with that preceeding it. And this was not only indicated by the qualifying language of the court in respect to the former request, but by the remark of the plaintiff's counsel immediately following the latter exception, "that as to the passenger's conduct he is only required to use ordinary care and prudence in protecting himself in getting on the train," and that which the court added, "He is only bound to use the care of an ordinarily prudent person under like circumstances. That is the rule as I understand it." It is the better practice, because less liable to mislead the jury, for the court even after making the main charge to decline to instruct the jury as requested unless the proposition submitted to it for that purpose clearly embraces within its terms all the facts to be found as the premises from which the inference or conclusion for which instruction is asked may properly be drawn, or that the charge as thereupon made be carefully qualified so as to include all the facts requisite to support the instruction requested or given. But in view of the charge as made and of what followed the requests and the disposition of them, there was no opportunity for the jury in the present case to have been misled. Although some portion of a charge, for the want of some qualification or explanation, may be subject to criticism, it is to be construed in the light of other portions of the charge so far as it may be, and if the charge as a whole presents the questions fully and fairly to the jury so as not to mislead them, exceptions to detached portions of it will not be effectual for the support of error. Sperry v. Miller, 16 N. Y., 412; Caldwell v. N. J. Steamboat Co., 47 id., 282; Losee v. Buchanan, 51 id., 492.

The language used in the fore part of the first request, for want of precision, was open to some criticism, but the court so qualified the proposition as to bring it in conformity with the charge already made, and by reference to that it may be observed that the question of plaintiff's credibility as a witness was submitted to the jury. The fair import of the charge founded upon the request was that the circumstances presented by the plaintiff were to have the effect mentioned if adopted as true by the jury, and it is not seen that they could have otherwise understood it. And the