Fetes, who died on the 24th day of July, 1855, leaving a last will and testament disposing of both real and personal property, whereby he devised to his widow a life interest in the lands described in the complaint, with the remainder over to his children. The will was duly admitted to probate on the 26th day of December, 1855, by the surrogate of the county of Erie. The point in controversy is, whether the plaintiff was named in the will as one of the children of the deceased. The will was recorded in the surrogate's office some time between December 26, 1855, and December 31, 1855, when the term of the surrogate expired by limitation. His successor signed a certified copy of the will January 8th, 1856, and annexed thereto a paper purporting to be a certificate, to the effect that it had been so admitted to probate by his predecessor, and that the same was then on file in the surrogate's court. This instrument was recorded in the Erie county clerk's office in the year 1871, as a will of real estate. The original will was lost, and the question as to the contents thereof is to be determined mainly by the copy thereof as recorded in the surrogate's office, and the other copy thereof as recorded in the county clerk's office. The copy set out in the books of the surrogate omits the name of the plaintiff as one of the beneficiaries under the will, while the one recorded in the county clerk's office contains his name, with five others, all the children of the testator. It is probable that the surrogate, being pressed for time, had not an opportunity, before surrendering his office, to compare the copy as it now appears in his book with the original. This assumption finds corroboration in the fact that such copy in the surrogate's book bore no certificate or mark showing that it had been compared with the original will. But the copy as recorded in the county clerk's office bears upon its face such evidence, as it has the usual certificate annexed. The attestation usually determines the question whether the document is the whole or a part only of the original. Voris v. Smith, 13 Searg. & R., 334.

But it is claimed that the certificate of the surrogate was a nullity, inasmuch as the statute under which the same purports to have been given relates only to the certificates of the successors in office where there has been a vacancy, and that the appointees of the unexpired term alone are authorized to complete the unfinished business of their predecessors, 2 R. S., 233, § 11, while those, succeeding by election for a full term have not such power. It would seem that there was an omission on the part of the legisla ture in not making the statute broad enough to cover the right of a successor by election to complete the unfinished business of his predecessor. It is probable, as the referee says, that the legisla ture in enacting this provision had in view the simple act of signing and certifying records and documents presumptively legal and valid. In other words, such power may have been assumed to have theretofore existed; and the object of this provision was simply to authorize the successor of a surrogate whose office had been suddenly terminated by death, incapacity or removal, to continue and complete the business begun and pending before him. The provisions of the statute contemplated that every public offi

cer should complete his official business before retiring at the end of his term.

But it by no means follows that the surrogate had not the power to certify records which he found in his office. Under the Revised Statutes, as originally enacted, a surrogate could exercise no powers except those which were expressly conferred upon him.»\ 2 R. S., 220, § 1. By chapter 460, of Laws of 1837, however, these restrictions were removed, at least to some extent, and he was empowered to administer justice in all matters according to the provisions of the statutes of the state, and there were conferred upon him all the powers which were necessary and incidental to enable him to discharge the duties of his office. Brick's Estate, 15 Abb., 32. He has the power to exemplify, under his seal of office, all transcripts of records, papers or proceedings therein, and the same must be received in evidence in all courts with the like effect as the exemplifications of the records, papers and proceedings of courts of record. 2 R. S., 221, § 6. It is quite probable that the copy certified by the surrogate and which was recorded in the county clerk's office was taken from the original will as filed, and not from a copy thereof as entered in the books of the surrogate.

So much only need be said upon the question of the probabilities as to which record was the true one, irrespective of the admissibility of either of them in evidence, whether as primary or secondary proof.

Under 2 R. S., 58, §§ 14 and 15, this record would not be admitted as primary evidence, inasmuch as it does not contain "the proofs and examinations so taken." Morris v. Keyes, 1 Hill, 540; Caw v. Robertson, 5 N. Y., 132; Hill v. Crockford, 24 id., 128. The enabling act, passed by the legislature in 1870, chap. 74, provides as follows: "Section 1. All acts hitherto of surrogates and officers acting as such in completing, by signing in their own names the unsigned and uncertified records of wills and of the proofs and examinations taken in the proceedings of probate thereof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre-existing statutory requirements." This power, however, it will be observed, was restricted to cases where the record of the will contained the proofs and examinations as required by the provisions of the Revised Statutes. Hill v. Crockford, 24 N. Y., 128. Whatever the insufficiencies of the enabling act of 1870 may be, no question can be made of the act of 1890, chap. 155, which confirms all acts of surrogates in certifying the records of their office, and the same clearly covers the record of the will in the case beWhile, it is true, this act was passed since this controversy arose, and even since the case was argued before this court, yet such are its comprehensive terms that it must be deemed to apply to all cases existing and undetermined in the courts. A statute commonly speaks only for the future, and where vested rights are involved the legislature cannot affect the past or the present, but there are many remedial statutes that mainly affect past transactions, and are enacted for that purpose. Statutes con

fore us.

firming illegal or irregular proceedings of various public officers are of this character, and can have no relation to other than past transactions. 1 Kent's Commentaries, 455; Foster v. Essex Bank, 16 Mass., 245; Underwood v. Lilly, 10 S. & R., 97; People v. Supervisors, 43 N. Y., 136; People v. Spicer, 99 id., 233.

Under these statutes the certificate added to the record of the will in the surrogate's office was confirmed, as also was his certificate that the will delivered to him by his predecessor as being the original will from which the copy was made and upon the faith and credit of which he certified the copy. The copy of the will in the book of deeds seems to us to be precisely of the same degree of evidence as the copy of it in the record of wills, and that, under these enabling acts, they both became primary evidence of the contents of the will itself. No greater effect can be given to the one than is given to the other of these records. Each is a copy of the same will.

It is a noteworthy fact, that there is no evidence that there was any purpose on the part of the testator to withhold from the plaintiff an equal share in the residuary estate after the expiration of the life interest of the testator's wife. This fact, therefore, coupled with the other, namely, that in the book of wills the record had not been signed, and so probably not compared with the original will, and the further fact that Bartholomew Fetes' name appears in the record as contained in the book of deeds in the clerk's office, presents a case where the more reasonable inference is, that the plaintiff was in fact named in the will, and that, consequently, he can maintain this action. These irreconcilable documents present an instance of conflict of evidence only; and the case must be disposed of substantially in the same manner as other cases where the evidence is conflicting. Where two inconsistent copies of the same will, both duly certified, the one from the records of the surrogate's office and the other from the records of the county clerk's office, are in evidence, the original will being lost, and both parties to the controversy claim under the probate of such lost will, the court or tribunal passing upon the facts may resort to the attending circumstances, and if there is no other evidence determine which record is the true one. Under this rule there is a clear preponderance of the evidence in favor of the plaintiff.

It follows, therefore, that the interlocutory judgment appealed from should be affirmed, with costs to the respondent. DWIGHT, P. J., and CORLETT, J., concur.

THOMAS COLLINS, Resp't, v. THE NEW YORK CENTRAL & HUDSON RIVER R. R. Co., App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) NEGLIGENCE-FIRES CAUSED BY PASSING LOCOMOTIVE.

Plaintiff's barns and strawstack were destroyed by fire communicated by sparks from a locomotive. The tracks of the defendant's road and that of the Erie R. R. cross plaintiff's farm, the lines being parallel and about four rods apart. A locomotive of the Erie road passed some minN. Y. STATE REP., VOL. XXXIII. 72

utes before the defendant's locomotive, but no sparks nor any indica[Sup.Ct. tions of fire were observed. Immediately after defendant's locomotive passed sparks were discovered in the strawstack which resulted in the fire. It was shown that large coals of fire were emitted by the latter engine to a great height and that it had an extension arch with a netting of large meshes. Held, that the evidence was sufficient to sustain the contention that the fire was caused by defendant's locomotive, and that it was liable therefor.

APPEAL from a judgment entered in Niagara county, January 15, 1890, on a verdict of the jury rendered at the circuit in favor of the plaintiff for the sum of $4,503.96, besides interest and costs; and also from an order denying the defendant's motion for a new trial made upon a case and exceptions.

James F. Gluck, for app'lt; Frank Brundage, for resp't.

MACOMBER, J.-This action is brought to recover the value of two barns and a shed attached to one of them, an ice house, a milk house, and a stack of straw containing about ten tons, which were destroyed by fire May 5, 1882, communicated, as is contended by the plaintiff, by sparks or coals of fire escaping from locomotive No. 113, operated by the defendant.

The defendant's railroad track crosses the plaintiff's farm, which lies between Tonawanda and La Salle in Niagara county.

The plaintiff's dwelling-house and barns, at the time of the fire, were located at the north side of the highway which runs from Tonawanda to Niagara Falls. The barns so burned were known as the old barn and the new one, the latter of which was about four rods from the defendant's track, while the old barn was about eight rods therefrom. At the time of the fire a straw stack stood at the northeast corner of the new barn, between the barn and the defendant's track. A board fence, about six feet high, separated the straw stack from the defendant's track. The track of the Erie railroad also crosses the plaintiff's farm parallel with the defendant's track, and about four rods distant northerly therefrom.

The fact that the fire originated through sparks escaping from the smokestack of a locomotive, operated either upon the defendant's road or upon the Erie road, and that such fire destroyed the property of the plaintiff of the value above mentioned, is not disputed. The controversy turns upon the contention made by the plaintiff, that it was the engine of the defendant which emitted the sparks causing the fire, while the argument in behalf of the defendant is, that it is at least doubtful which locomotive caused the injury, and that, therefore, the plaintiff cannot recover.

Upon the former trial of this case, a like recovery was had, which was sustained by the general term; but on appeal to the court of appeals the judgment thereon was reversed and a new trial granted, upon the ground of the exclusion of certain competent evidence, and upon the admission of other certain incompetent evidence. The case upon the new trial presents no question which was passed upon by the court of appeals. Indeed, the case was tried with great circumspection in that regard.

The question whether locomotive No. 113, operated by the de

fendant, or locomotive No. 19, operated by the Erie Company, caused the fire, presented a question of fact. The evidence brings the case within the principles stated in Crist v. The Erie Ry. Co., 58 N. Y., 638; O'Neill v. Ñ. Y., O. & W. R. R. Co., 115 id., 579; 26 N. Y. State Rep., 269; Webb v. R., W. & O. R. R. Co., 49 N. Y., 420, and other authorities which might be cited.

Engine No. 113 had drawn trains from Buffalo to Niagara Falls for two or three years previous to the time of this fire, going down to the Falls between nine and ten o'clock in the morning, returning to Buffalo about noon, again going to the Falls at three in the afternoon and back to Buffalo at seven at night.

Engine No. 19, operated by the Erie Company, ran down to Buffalo from Niagara Falls at about nine o'clock in the morning, back to Buffalo at about a quarter before twelve, and returned again about three in the afternoon, bringing up to Buffalo again at seven o'clock in the evening.

This is substantially the undisputed evidence relating to the general movements of these engines, but the witnesses differ in matter of minutes, and the trains were sometimes not upon schedule time. The locomotive on the Erie track had passed a few minutes, variously estimated from two to fifteen, before the defendant's engine went up. No one saw any evidence of the escape of dangerous cinders from the Erie locomotive, or any fire originating therefrom, either by the wayside or in the adjoining fields at the time in question. Immediately, however, after the passing of the defendant's engine fire was discovered in the straw stack of the plaintiff, which resulted in the loss already mentioned. Many witnesses testified to the emission of large burning coals from the smokestack of the defendant's engine, and obviously these were sufficient to cause the fire; for the jury from this testimony could properly draw the inference that these burning coals, being a quarter to half an inch in diameter, were thrown high in the air and were subject more or less to gusts of wind. Much evidence was given in behalf of the defendant, designed to show that the smokestack then in use on engine No. 113 was of an approved pattern, and that the same was not out of order. On the contrary, it was proved by the defendant's master mechanic that the diamond stack, the style then in use upon the Erie road, had been used for years upon the defendant's road; that engine No. 113 had what is known as an extension arch, having a large netting with twelve-thirty.seconds of an inch of meshes. It was claimed that the larger meshes were used in the extension arch so as to get better draft, and that aside from the question of preventing the escape of cinders and sparks, the extension smoke stack was as good as any in use at that time. This may well be conceded, and yet the defendant not relieved from responsibility. O'Neill v. N. Y., O. & W. R. R. Co., 115 N. Y., 579, 583; 26 N. Y. State Rep., 269; Bedell v. L. I. R. R. Co., 44 N. Y., 367.

Several witnesses testified to the fact that this engine No. 113 had caused several fires in that vicinity in the spring preceding the time in question. Indeed, the character of this particular engine for causing fires was well known in that region, and in a