stipulation was "that the testimony of real estate experts be limited to three witnesses upon behalf of each party." This stipulation was not violated by the ruling of the court. The witness to whose testimony exception is taken was not an expert. He was an owner of real estate situate in the neighborhood of the property described in the complaint and he testified to facts, something that a real estate expert seldom does.

The questions presented by the other exceptions that were signed before us have been so frequently determined adversely to the defendant by this court that it is not necessary to call attention to them.

Judgment and order affirmed, with costs.
FREEDMAN, J., concurs.

GEORGE T. SMITH, Resp't, v. THE NEW YORK, NEW HAVEN & HARTFORD R. R. Co., App'lt.

(New York Superior Court, General Term, Filed November 3, 1890.) MASTER AND SERVANT-NEGLIGENCE.

Plaintiff, who was a brakeman in defendant's employ for about two weeks, while attempting to uncouple cars on a moving train, on a dark night, was injured by the projecting handle of a switchstand which had not been in use for a long time, the rails being spiked. The court charged that it was not defendant's duty to light such switchstand or show it to plaintiff, and refused to charge as matter of law that defendant had the right to maintain it in the position in which it was, or that it did not owe plaintiff any duty to remove it. Held, no error; and that the question whether its maintenance in such position with its handle projecting and the rails spiked, was negligence, was properly submitted to the jury.

APPEAL from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant's motion upon the minutes for a new trial.

Page & Taft, for app'lt; Thomas P. Wickes, for resp't.

FREEDMAN, J.-The defendant, by stipulation, has waived all exceptions appearing in the record except the exceptions taken to the refusal to dismiss the complaint, both at the close of plaintiff's case and the close of the whole case, and to the charge of the court and the refusals to charge otherwise. The exceptions so remaining raise the question whether, under the circumstances of the case, there is any liability whatever on the part of the defendant.

The action is for a personal injury alleged to have been sustained in consequence of the negligence of the defendant. In every such case the plaintiff must prove that he was wholly free from contributory negligence on his part, and that the injury complained of was the result of defendant's negligence exclusive of any other primary cause.

Upon the question of plaintiff's contributory negligence the case was clearly one for the jury upon the evidence, and the instructions given to the jury upon this point carefully guarded every right which the defendant had. This branch of the case is so free from doubt that discussion in detail is wholly unnecessary.

But the charge of negligence made against the defendant presents a grave question. At the time of the injury, which occurred at about a quarter before six in the afternoon of the 20th of December, 1888, at the Harlem River freight yard of the defendant, the plaintiff had been employed as a car coupler and brakeman in said yard for only about two weeks. The plaintiff then and there received an order by means of a signal to make a cut (ie., to uncouple a car from other cars) upon a train of cars which was being moved in the yard. The plaintiff was then standing upon the ground and the cars were moving so swiftly that he was unable to make the cut as they passed him. He therefore ran after them in order to get hold of a handle attached to one of the cars, and in this way to get up on the platform of the car. He evidently intended to do the uncoupling while standing on the platform of the car, since he could not do it safely from the ground. It had become dark, and the plaintiff held a lantern in his left hand out in front of him and about on a height with his shoulder, so that he could see the handle by which he intended to raise himself up to the platform. He had his right hand up ready to catch the handle, and just as he was in the act of grasping it, he came into collision with the handle of a switchstand. The handle ran into his leg, and he was seriously injured. The switchstand was not in use at the time and useless in the condition it was. The defendant at the trial admitted that the rails to which the switch was attached were spiked so that the switch could not be used. As to the length of time during which the switchstand had not been used, the testimony of witnesses varied from four weeks to six months. The yard covered many acres of ground, and in it were upwards of sixteen miles of railroad tracks. There were also quite a number of switchstands, some of which were at the time in question lighted, while others were not. The switch stand in controversy was not lighted, and plaintiff testified that he did not know of its existence. The trial judge charged, at defendant's request, that the defendant did not owe to the plaintiff the duty to light the switch in question or to take him to the switch stand and point it out to him. The only thing then left upon which negligence could be predicated was the maintenance of the switchstand in the position it was at the time with its handle projecting and the rails spiked, and the question was submitted to the jury as one of fact under all the circumstances of the case. This disposition of the question was in accordance with the decisions in Plank v. N. Y. Central & Hudson R. R. Co., 60 N. Y., 607, and Fredenburg v. The Northern Central Railway Co., 114 id., 582; 24 N. Y. State Rep., 550.

That being so, the refusal to charge that, as matter of law, the defendant had the right to maintain the switch in question in the position in which it was at the time of the accident, and the refusal to charge that, as matter of law, the defendant did not owe to the plaintiff any duty to remove the switchstand in question, did not constitute error. Nor was it error to refuse to dismiss the complaint.

The exception remaining available to the defendant under the

stipulation referred to having been found to be untenable, the judgment and order should be affirmed, with costs.

TRUAX, J., concurs.

EMMA A. PORTH, Resp't, v. THE MANHATTAN RAILWAY Cò. et al., App'lts.

(New York Superior Court, General Term, Filed November 3, 1890.) RAILROADS-NUISANCE-WOODEN STATIONS.

The defendant acquired no authority, either under its original charter or the rapid transit act, to build wooden stations, and when it built such a station in a public street it was guilty of maintaining a public nuisance, which the court could abate at the suit of an individual who sustains special damages thereby.

APPEAL from a judgment of this court in favor of the plaintiff, rendered after a trial of the issues at an equity term.

The judgment awards to the plaintiff the sum of $416.85 damages and costs, and contains an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of the premises No. 1435 Second avenue, unless within a time specified in the judgment they pay to the plaintiff the sum of $1,000, and also contains an absolute and unconditional injunction against the further maintenance and use of a certain station building situated in Second avenue, just north of the plaintiff's premises, and a stairway connected therewith, a portion of which extended in front of said premises.

Davies & Rapallo, for app'lts; James B. Ludlow, for resp't.

INGRAHAM, J.-We are of the opinion that the facts alleged in the complaint were sufficient to authorize the relief granted by the court in this action.

The complaint alleged that the defendants, in the years 1879 1880, wrongfully and without legal authority entered upon Second avenue and constructed an elevated railway, and that thereafter, and about the month of October, 1881, the defendant again entered upon Second avenue and erected an elevated station building of wood, with a wooden stairway descending to the sidewalk of Second avenue.

This structure is alleged to be an unlawful appropriation of plaintiff's property, and a part of the relief demanded is that the defendants be compelled to take down and remove the elevated railroad structure and station building on Second avenue.

The defendants, in their answer, allege that they erected the elevated railway structure under authority of the laws of the state of New York, with the consent of the city of New York, and that the said structure was constructed according to law.

The plaintiff thus alleged that the station of the defendant was unlawful; the defendants deny that allegation and allege that it was authorized by law, and it was this issue that the court found in favor of the plaintiff.

We are also satisfied that the defendants were not authorized to erect a wooden station in any of the streets of New York.

The original authority given to the Gilbert Elevated Railway

Co. to build a railroad in Second avenue was never acted on by the company. No railroad was ever built under that charter. In 1875 the act called the rapid transit act was passed. Under the provisions of that act the defendant, the Metropolitan Elevated Railway Co., was authorized to construct in Second avenue a different structure from that authorized by the original charter, and it is upon the authority conferred by that act that the defendants entered upon Second avenue and built the railway structure now operated by them.

It cannot be claimed that the structure as built was authorized by the original charter, and the defendants must found their authority to build and maintain their railroad structure under the act of 1875, if it exists.

It is clear that the defendants acquired no authority under that act to build wooden stations.

The commissioners appointed under the act of 1875 authorized the defendants to build the structure of iron, and provided that the "stairs and all parts of the stations, except the platform, doors, windows and inside sheathings and except the tread of the stairs, shall be of iron."

The structure as thus prescribed by the commissioners was expressly accepted by the defendants, and it was this structure and this structure only that defendants were authorized to build in Second avenue. When, therefore, the defendants built and maintained a station of wood in Second avenue, a public street, they did what was unauthorized by law and were guilty of maintaining a public nuisance.

It is well settled in this state that a court of equity will abate a public nuisance at the suit of an individual who sustains thereby special damage different from that sustained by the general public. Callanan v. Gilman, 107 N. Y., 370; 12 N. Y. State Rep., 21.

We think, therefore, that the judgment directing the removal of the unlawful structure was right. The other questions presented in this case have been settled by repeated decisions of this court adversely to the appellant.

We think no error was committed on the trial, and that the judgment should be affirmed, with costs. FREEDMAN, J., concurs.

In the Matter of the Application of JAMES A. COWIE. (Supreme Court, Chambers, New York County, Filed October, 1890.) ELECTIONS-LAWS 1890, CHAP. 262-NOMINATIONS.

Neither the clerk nor the court has power under the Ballot Reform act to decide between the claims of rival factions of a political party. Where a certificate of nomination by a convention of a party is filed, and no objections are filed within the time specified in the act, the county clerk is bound to recognize the person named as the regular nominee of that party. MOTION for mandamus to compel the county clerk to recognize the petitioner as the regular nominee of the republican party for assembly.

Henry & Sprague, for James A. Cowie; Walter S. Poor, for Frederick S. Gibbs; Charles Blandy, assistant corporation counsel, for the county clerk.

INGRAHAM, J. From the papers upon which the order in the proceedings is applied for, it appears that, in pursuance of a duly authorized call of the republican county committee of the county of New York, the enrolled republicans of the thirteenth assembly district, on the 26th day of September, 1890, held their primary election at the headquarters of the said enrolled republicans at No. 269 Eighth avenue; that at said primary election there was a contest between two factions of the said enrolled republicans, and two tickets were voted, upon which were the names of the several delegates to the republican county, congressional, assembly and aldermanic conventions, and that the inspectors of such primary election duly announced that the ticket headed by Frederick B. House was elected by a majority exceeding 200. It also appears that a certificate of the election of such delegates to the assembly convention, signed by the inspectors of election, was duly filed with the register of the city and county of New York, and a certified copy thereof produced before the county clerk on the hearing before him.

The convention, the delegates to which were thus elected, met on the date fixed at the place named in the call for the election, and nominated, as a candidate for assembly, Frederick S. Gibbs, and a certificate of that nomination, duly attested by the presiding officer and secretary of such convention, was duly filed in the office of the county clerk. No objections thereto were filed with the county clerk within the time allowed by law.

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The application is made under chap. 262 of the Laws of 1890. By § 2 of that act it is provided that "any convention or primary meeting, as hereinafter defined, held for the purpose of making nomination to public office, may nominate candidates for public office to be filled by election within this state. A convention or primary meeting, within the meaning of this act, is an organized assemblage of voters or delegates, representing a political party, which, at the last election before the call of such convention, polled at least one per centum of the entire vote cast in the district for which the nomination was made."

The convention that nominated Frederick S. Gibbs was clearly a convention representing a political party, as specified in this section, and a certificate of such nomination was in apparent conformity with the provisions of the act.

By section 13 of the act it is provided that all certificates of nomination which are in apparent conformity with the provisions of the act shall be deemed valid unless objections thereto shall be made in writing within three days after the filing of the same. No objections having been filed to this certificate, and it being in apparent conformity with the provisions of the act, it would seem that, by operation of law, the nomination was valid, and the county clerk was bound to recognize the person named as the regular nominee of the Republican party for the office.