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Ordinarily the intestate reported at the station soon after 8 o'clock and then proceeded northerly through the yard to his train. On the evening in question, however, he did not leave the station until about 8:30, it being a question of fact whether the passenger train had arrived there when he started for his train. This passenger train, however, arrived, so far as appears, at the usual time, and after discharging its passengers proceeded northerly with its headlight lighted on track 1 in yard C at a slow rate of speed and at a distance of about 120 feet from the station house ran over and killed the intestate. There is no evidence conclusively binding on plaintiff showing what caused the intestate to get under the train.

I shall not discuss the question whether the evidence permitted the jury to find defendant guilty of negligence because of fault on the part of the motorman operating its train, for we are all agreed that the evidence shows that intestate was guilty of contributory negligence as a matter of law, although the statute under which the action was brought requires the defendant to establish this as a defense.

time he selected, intestate was offered a perfectly safe course of travel if he saw fit to take the clear space of 15 feet westerly of the track on which the passenger train was moving. In case he so traveled, no possible harm could come to him in reaching his train. The way was absolutely safe. For some reason he apparently saw fit to proceed northerly between tracks 1 and 2. The space between these was occupied by two third rails, each one located about 26 inches from the nearest track, and the two being apart from one another by about 26 inches. It was, of course, possible for the intestate to walk in safety between those tracks, even though the passenger train came northerly on one of them, and he knew that it could only come on one of them because the other was occupied with standing cars. Under these circumstances, knowing that the train was liable at any time to come as it did, the obligation rested on him to exercise his powers of sight and hearing to avoid danger therefrom. The train was in plain sight from the time it left the station until it struck him; and, if he had looked as he was bound to, he must necessarily have seen it, and could easily have avoided danger.

An old railroad employé traveling through switching yards may not thus in the first instance abandon a perfectly safe pathway for a more dangerous one, and then turn his back on a train which he knows may approach at any moment, without being subject to the charge of carelessness.

[2] It is urged that, since the obligation rests upon the defendant to establish contributory negligence, it must by its evidence exclude every possible theory of an accident without intestate's negligence before it can ask to have it held as a matter of law that he was negligent. Undoubtedly, if the evidence permitted the jury to find the intestate free from contributory negligence on any reasonable theory, it would be the duty of the court to permit it so to do. But I do not apprehend that a jury may be permitted to excuse the intestate from the charge of negligence on merely conjectural possibilities utterly unsuggested by any evidence, and, unless they may be thus permitted to do, we see nothing which defends this intestate against the charge.

[1] The testimony clearly establishes and the learned trial justice held that the intestate, "of course, was familiar with the yards, the location of the tracks, and, in general, at least, with the defendant's system of operating its trains there." The tracks which are involved in this case were perfectly open to view from a point southerly of the station northerly to a point where intestate was accustomed to meet his freight train each night, and which latter point was several hundred feet north of the place of the accident. Aside from the general observation which during a period of several months he would naturally make of the passenger train which ran over him, the time of its arrival and the method of its operation were necessarily emphasized in his mind by the fact that each night he went out with his train a short time after its arrival and departure, and there was no opportunity for confusion of trains, because no other train arrived at the station for about an hour before the one in question, and no other one departed therefrom up to the time intestate's own train left, except this same passenger train starting back on its southerly journey. The respondent especially calls to our atTherefore, when intestate on the night in tention the case of Texas & Pacific Ry. Co., question left the station to go to his train v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 if the passenger train was not already at the L. Ed. 186, as an authority on very similar station, he knew that it soon must arrive, facts for the proposition that the question of and proceed northerly into the yard in the intestate's contributory negligence should be direction in which he himself was going. It submitted to the jury. An examination of is suggested that it did not always run north- that case, however, discloses peculiar facts erly into the yard on the same track as on in the arrangement of the locomotive and this evening, but even so intestate knew that flat car which it was pushing and which it was sure to follow him on one of the few ran over the intestate in the yard which tracks, and that it might be on any one of clearly differentiate it from the present case them. and properly made the issue of the intes

ciples of law affirmed in the opinion do not in any manner conflict with our views.

The judgment must be reversed, and a new trial granted, costs to abide event.

CULLEN, C. J., and WILLARD BARTLETT, CHASE, COLLIN, and HOGAN, JJ., concur. WERNER, J., absent.

Judgment reversed, etc.

(208 N. Y. 416)

JACOBS v. H. J. KOEHLER SPORTING GOODS CO.

(Court of Appeals of New York. May 20, 1913.)

1. NEGLIGENCE (§ 85*)-CONTRIBUTORY NEGLIGENCE MINORS-CARE REQUIRED - SUI JURIS.

A boy, 14 years of age, struck and killed by defendant's automobile, was sui juris. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121-128; Dec. Dig. § 85.*] 2. NEGLIGENCE ( 95*)-CONTRIBUTORY NEGLIGENCE-MINORS-NON SUI JURIS-IMPUTED NEGLIGENCE OF PARENTS.

An infant may be of such tender years as to be incapable of personal negligence, during which time the negligence of its parents or guardians in suffering it to incur danger may be imputed to it.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 151-156; Dec. Dig. § 95.*] 3. NEGLIGENCE (§ 85*)-CONTRIBUTORY NEGLIGENCE-CHILDREN-SUI JURIS-CARE RE

QUIRED.

A child, though of sufficient age to be sui juris, is only required to use the degree of care reasonably to be expected of one of his years, and not the degree of care required of an adult.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121-128; Dec. Dig. § 85.*]

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry Jacobs, as administrator of the goods, chattels, and credits of Charles Jacobs, deceased, against the H. J. Koehler Sporting Goods Company. From a judgment of the Appellate Division (152 App. Div. 933, 137 N. Y. Supp. 1123), affirming, by divided court, a judgment of the trial court entered on the verdict of a jury, in favor of plaintiff, defendant appeals. Affirmed.

Paul Bonynge, of New York City, for appellant. Martin T. Manton, of New York City, for respondent.

CULLEN, C. J. This action was brought by the father as administrator of a boy 14 years of age, who was killed by the defendant's automobile, to recover damages for the death. It would be without profit to relate the circumstances of the accident. It is sufficient to say that both the negligence of the defendant's servant and the absence of contributory negligence on the part of the deceased were questions of fact. The case was, therefore, properly for the jury to determine.

But one question is presented by this appeal which we are required to notice. The learned trial judge charged: "The deceased was probably sui juris, as they call it; but that does not mean that he must exercise the degree of care that an adult person must exercise, but he was charged with the duty of exercising the measure of care and caution that is common and usual with boys of that age." To this the defendant excepted and requested the court to charge: "That the burden of proof is upon the plaintiff to show that the deceased used the same degree of diligence in avoiding danger that would be exacted of an adult under the same circumstances." This was refused and the defendant excepted.

The learned counsel for the defendant in

sists that the decision of this court in Tucker

v. N. Y. Central & H. R. R. R. Co., 124 N. Y. 308, 26 N. E. 916, 21 Am. St. Rep. 670, justified and required the court to charge as requested, and that the refusal to so charge is error. In other words, he contends that the law of this state is that a child of the age of deceased, in the absence of evidence to the contrary, must be deemed to be sui juris and be held to the same degree of care and prudence that is required of an adult.

[1] That the deceased was sui juris is clear, but that an infant whenever he becomes sui juris is required to exercise the same degree of caution as an adult is not the law of this state, nor was it so decided in the Tucker Case. We think the rules governing the contributory negligence of infants are very well settled by the decisions of this court, though these rules do not obtain in many other jurisdictions.

[2] An infant may be of such tender years as to be incapable of personal negligence. At such age the infant is termed non sui juris; but, if not responsible for its own negligence, the negligence of its parents or guardians in suffering it to incur danger may be imputed to it. This is what is called the doctrine of imputed negligence. Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 98 Am. Dec. 66; Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442, 58 Am. Rep. 508; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108; Weil v. Dry-Dock, E. B. & B. R. R. Co., 119 N. Y. 147, 23 N. E. 487.

[3] Later, children emerge from this condition, and are responsible for their failure to exercise reasonable care for their own protection. But they are not required to exercise the degree of care required of an adult, but only to exercise the degree expected from one of its years. Sheridan v. Brooklyn City & Newtown R. R. Co., 36 N. Y. 39, 42, 93 Am. Dec. 490; Thurber v. Harlem Bridge, M. & F. R. R. Co., 60 N. Y. 326; McGovern v. N. Y. Central & H. R. R. R. Co., 67 N. Y. 417; Byrne v. N. Y. Central & H.

that is common and usual in one of her age." The action was defeated because the deceased did not exercise the care to be expected of one of her age, not that to be expected from an adult. There is but one authority in this court in support of the contrary rule, that of Honegsberger v. Second Ave. R. R. Co. *40 N. Y. 570, the doctrine of which was expressly repudiated in Thurber v. Harlem B., M. & F. R. R. Co., supra. The charge of the trial court was, therefore, correct.

R. R. R. Co., 83 N. Y. 620; Dowling v. N. Y. [ture years, she was expected and required Central & H. R. R. R. Co., 90 N. Y. 670; Stone to exercise the measure of care and caution v. Dry-Dock, E. B. & B. R. R. Co., 115 N. Y. 104, 21 N. E. 712; McCarragher v. Rogers, 120 N. Y. 526, 24 N. E. 812; Swift v. Staten Island R. Tr. R. R. Co., 123 N. Y. 645, 25 N. E. 378; Zwack v. N. Y., Lake Erie & W. R. R. Co., 160 N. Y. 362, 54 N. E. 785; Costello v. Third Ave. R. R. Co., 161 N. Y. 317, 55 N. E. 897; Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256, 83 N. E. 15. In the Byrne Case, 83 N. Y. 621, an infant 10 years of age was the plaintiff. Judge Earl there said: "An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age." And the language of this learned judge has been cited with approval in the later cases.

The question when an infant ceases to be non sui juris and becomes responsible for its negligence has been the subject of some difference of views in this court. In the Thurber Case it was held that the plaintiff, an infant of eight or nine years of age, was not non sui juris. In Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440, where the injured child was less than seven years old, the court treated the infant as if it was sui juris. There is a strong intimation that the trial court erred in that respect, but the error was harmless as the plaintiff recovered. It was with this doubtful question, of when an infant becomes sui juris, that the Tucker Case was dealing, and it was there held, as already stated, that an infant over 12 years of age was presumed to be sui juris. True, it was also held in that case that, being sui juris, the child was guilty of contributory negligence which barred its recovery, but that ruling did not import, nor does the opinion declare that the measure of care required of an infant is the same as that of an adult. Of course, when an infant becomes responsible for its own negligence, the question whether its conduct constitutes negligence or not, like the question of negligence in regard to an adult, may be a question of law or may be a question of fact. But, even when determined as a question of law, the condition of the party injured is to be considered. All that was decided in the Tucker Case was that the conduct of the plaintiff was so careless as to constitute negligence even in the case of an infant 12 years of age. The case of Thompson v. Buffalo Ry. Co., 145 N. Y, 196, 199, 39 N. E. 709, 710, is of a similar character, There the administrator of an infant aged 14 was nonsuited for the contributory negligence of the deceased, but the rule applicable to the case is very clearly stated by Judge Haight: "Although a minor, no claim is made that Alcy was not sui juris. Whilst she may not have possessed the judgment, caution, and prudence of persons of more ma

There doubtless comes a time in the life of a child when, though still in law an infant, it reaches such maturity that no distinction on account of age can be drawn in its favor. It is not necessary to determine what that time is. It is sufficient to say that, if a question of law and not of fact, the age is greater than that of deceased. The statutes of the state recognize this lack of judgment and responsibility on the part of immature persons. Thus it is forbidden to employ a child under the age of 14 years in a factory under any circumstances, or a child between 14 and 16 without the employment certificate provided by the statute (Labor Law [Cons. Laws, ch. 31], § 70), while a criminal act which would be a felony if committed by an adult is only a misdemeanor when committed by a child under the age of 16 (Penal Law [Cons. Laws, c. 40], § 2186). The judgment should be affirmed, with costs.

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MATTHEWS v. MCKENNA et al. (Court of Appeals of New York.

June 3,

1913.) TRUSTS (§ 59*) - SAVINGS BANK DEPOSITREVOCATION.

A depositor made a deposit of her own money in a savings bank in her own name in trust for a cousin who was present in the bank at the time, and who obtained from the depositor the passbook for safe-keeping, and who read at the time the statement therein, and who retained possession of the book for nearly a year, when she delivered it to the depositor, who withdrew the money from the account, and deposited it in her individual account. Held, that the deposit was in the form of a revocable trust, and the trust was revoked by the acts of the depositor, and the cousin could not recover from the estate of the deceased depositor.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 78-81; Dec. Dig. § 59.*]

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Margaret Matthews against Catherine McKenna, individually and as ex

ecutrix of Mary Kelly, deceased, and an- | jointly do not conclusively establish either other. From a judgment of the Appellate the one or the other. Hemmerich v. Union Division (151 App. Div. 527, 136 N. Y. Supp. 110) reversing a judgment of dismissal, defendant named appeals. Reversed, and judgment of Special Term reinstated.

Lewis C. Grover, of Brooklyn, for appellant. Charles Harwood, of New York City, for respondent.

COLLIN, J. The action is to procure the adjudication that certain moneys deposited by Mary Kelly, now deceased, in the Brooklyn Savings Bank, in trust for the respondent, and not withdrawn, are owned by the respondent. The appellant, asserting that they belonged to Mary Kelly at the time of her death, claims them by virtue of her will.

Dime Savings Inst., 205 N. Y. 366, 98 N. E. 499; Matter of Totten, 179 N. Y. 112, 71 N. E. 748, 70 L. R. A. 711, 1 Ann. Cas. 900. The intention of the depositor and whether or not it was effectuated were questions determinable by the Special Term from those

acts and the other facts found.

The order of the Appellate Division should be reversed, and the judgment of the Special Term reinstated, with costs to appellant in both courts.

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and HOGAN, JJ., concur.

Order reversed, etc.

(208 N. Y. 496) CLOWE v. SEAVEY et al.

1. BANKRUPTCY ($ 181*)
TRANSFERS.

FRAUDULENT

A voluntary transfer by one of all his property, with intent to defraud his creditors and to secure it to himself and his children, is fraudulent, though the transferee acted in good faith, and the trustee in bankruptcy of the transferror may maintain an action to set aside the transfer.

The following facts were found by the Special Term: On July 26, 1904, Mary Kelly deposited in the savings bank $2,839 belonging to herself, and received from it a passbook in which the deposit was evidenced by (Court of Appeals of New York. June 3, 1913.) the writing, "The Brooklyn Savings Bank in account with Mary Kelly in trust for Margaret Matthews (cousin)," and the statement of the sum as a deposit. The respondent accompanied Mary Kelly to the bank on that occasion, and was present there with her while the deposit was being made and the account entered. Mary Kelly on that day delivered the passbook to the respond-Cent. Dig. §§ 259, 260, 271, 273, 274; Dec. Dig. [Ed. Note.-For other cases, see Bankruptcy, ent for safe-keeping, and the respondent then Cent. Dig. §§ 259, 260, 271, 273, 274; Dec. Dig. § 181.*] read it and knew that the deposit and ac- 2. BANKRUPTCY (§ 143*)-TITLE OF TRUSTEE count was entered as therein stated. The IN BANKRUPTCY. respondent retained possession of the passbook until about May 2, 1905, when it was redelivered to Mary Kelly, who thereafter retained possession of it until the account evidenced by it was closed. Mary Kelly at various times beginning with August 13, 1907, down to April 23, 1910, withdrew moneys from the account, and on April 23, 1910, withdrew the whole of the balance thereof, to wit, $1,744.30, and deposited it in another account which she had with the bank, and this sum (less a small amount withdrawn by consent of all the parties) remains in the bank and is the subject of this action. The conclusions of law were, in substance, a gift was not made to the respondent, but a tentative trust was created, revocable at the will of Mary Kelly, who did revoke it by the withdrawals and redeposit, and the moneys were a part of her estate. The facts found support the conclusions of law and the judgment rendered upon them.

The deposit was in form a tentative and revocable trust. The acts of the depositor which are or can be invoked by the respondent as making it irrevocable or a completed gift as a matter of law are stated generally and yet accurately, permitting the respondent to know of the deposit and its nature, and delivering the passbook to her for safe-keeping. Those acts considered separately or

Under Real Property Law (Consol. Laws 1909, c. 50) §§ 36, 40, 59, dividing expectant estates into future estates and reversions, and providing that a future estate is contingent while the person to whom or the event on which it is limited to take effect remains uncertain, visable, and alienable as an estate in possession, and that an expectant estate is descendible, dethe interest of a granddaughter under her grandfather's will, which will not vest in possession unless she survives her father, is alienable, and on her bankruptcy the estate passes to the trustee in bankruptcy, who may sue to set aside a fraudulent transfer thereof.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*1

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Charles W. Clowe, Trustee in Bankruptcy, against Elizabeth S. C. Seavey and others. From a judgment of the Appellate Division (151 App. Div. 912, 135 N. Y. Supp. 1105), affirming by divided court a judgment for plaintiff, defendants appeal. Affirmed.

Henry J. Hemmens, of New York City, for appellants. Edgar T. Brackett, of Saratoga Springs, for respondent.

MILLER, J. This action is brought by a trustee in bankruptcy to set aside a transfer made by Elizabeth S. C. Seavey, the bankrupt, to her mother-in-law of all her right,

title, and interest, present and future, in and to the estate of her grandfather. She had no other property. The court found upon sufficient evidence that she made the transfer with intent to cheat and defraud creditors, and in effect that it was voluntary except for the sum of $1,000, loaned by the transferee upon the security of it. The court also found that the transferee did not participate in said fraudulent intent. The judgment provides for the repayment of said loan with interest. The instrument of transfer was executed by both parties. The transferee expressly agreed that in consideration of the transfer she would devise and bequeath the estate transferred to her as well as all of her other estate, in trust for the use of the transferror and her husband during their lives and the life of the survivor, with remainder to their son. The particular clause of the will creating said interest reads as follows: "In the event of the death of my said son, and the remarriage of his said wife, should she survive him, I desire and direct my said trustees, John B. Clement and John Cox, to pay to my said grandchildren, lawful children of my son Henry S. Clement, or their descendants, all the estate hereby devised to my son, Henry S. Clement, and his children, as aforesaid.

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[1] It is of no consequence that the transferee had no intent to hinder, delay, or defraud the creditors of the transferror. A person cannot successfully put his property beyond the reach of his creditors by a transfer which secures it to himself and his children, even though the transferee may have the best of motives, and be ignorant of his fraudulent intent.

[2] The important question in the case is whether the interest of the bankrupt passed to the trustee in bankruptcy. Curiously enough the inalienability of that interest is asserted by those who claim under an assignment of it. It is forcibly urged by the learned counsel for the respondent that said interest is a vested remainder. However, we do not consider it necessary to determine whether it was vested or contingent, because we are of the opinion that in either view it was alienable.

It was decided in National Park Bank of N. Y. v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846; Id., 203 N. Y. 556, 96 N. E 1122, that future contingent interests in personal property were alienable, the same as contingent remainders in real property, but it is argued that that case is distinguishable in that in this case the persons who are to take cannot be ascertained until the death of the life beneficiary. The writer did observe in that case that there was no uncertainty of the person, and it has been stated by text-writers, and often assumed by judges, that contingent interests are mere possibilities, and not alienable, where there is uncertainty of the persons who are to take. That

no longer exist. It did not survive the adoption of the Revised Statutes, which divided expectant estates into (1) future estates, and (2) reversions, and provided that a future estate is contingent "while the person to whom or the event on which it is limited to take effect remains uncertain," and that "an expectant estate is descendible, devisable and alienable, in the same manner as an estate in possession." R. S. pt. 2, c. 1, tit. 2, §§ 9, 13, and 35; now Real Prop. Law (Cons. Laws, c. 50) §§ 36, 40, 59. Those provisions are plain and simple, and leave no room for the refinements of the ancient common law.

Assuming the interest of Mrs. Seavey under her grandfather's will to be contingent, it will be extinguished by her death before the death of her father. If the person to take were certain, and the event uncertain, the contingent interest or estate would never vest in possession, unless the event happened. The statute makes no distinction between uncertainty of person and uncertainty of event, and there is no sound reason to make such a distinction with respect to the alienability of contingent interests. Whatever the uncertainty, they are defined by the statute as estates. Of course, the contingency may be such that the interest or estate is not transmissible, descendible, or devisable, but so far as the nature of the contingency admits, all expectant estates are descendible, devisable, and alienable. The interest of Mrs. Seavey is certain to vest in possession and enjoyment if she survives the event, and there is no substantial difference between this case and National Park Bank of N. Y. v. Billings, supra. In that case, as in this, the interest was contingent upon survivorship, but in this case, as in that, it is not subject to the will of a third party, and is more than a mere possibility, e. g., the chance of sharing as next of kin in the estate of another upon his death, or "that which the heir has from the courtesy of his ancestor," or a mere possibility of reverter, which was involved in Upington v. Corrigan, 151 N. Y. 143, 45 N. E. 359, 37 L. R. A. 794.

We should not introduce subtleties into the plain rule of the statute, unless constrained to do so. It will not be profitable to discuss in detail the many cases cited by the appellants. Expressions may be found in judicial opinions which, apart from their context, may seem to support the distinction sought to be made between uncertainty of person and uncertainty of event, but it is sufficient to say that the precise point has already been decided by this court in favor of the respondent, and that the cases relied upon by the appellants did not deal with it.

Jackson v. Waldron, 13 Wend. 178, and Edwards v. Varick, 5 Denio, 664, are only of historical interest. They involved an assignment made in 1804. Their authority even as to the common law was much weakened, if indeed they were not overruled, in Miller v.

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