FIRST DEPARTMENT, APRIL TERM, 1893. remainder was agreed to be paid on the 13th day of January, 1893, when Mary Ann Campbell was to convey an unincumbered estate in fee simple in the premises to Morgan. Between December 29, 1892, and January 13, 1893, Morgan necessarily expended ninetyfour dollars and twenty-five cents for an examination of the title which was reported to be defective, and on that ground he refused to take the deed tendered. James R. Marvin, for Mary Ann Campbell. G. De Witt Clocke, for William Morgan. FOLLETT, J.: The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann Campbell? If the question is answered in the affirmative, judgment is to be rendered in her favor, that Morgan specifically performed his contract, but if it is answered in the negative, judgment is to be rendered in his favor against Mrs. Campbell for $194.25, and interest thereon from January 13, 1893. * * * The instrument was executed by the owner of the fee of the subjeot of the grant, a definite grantee is named, and the instrument has sufficient parties to constitute a legal conveyance. The consideration recited is a valuable one and sufficient to support a grant. The instrument contains sufficient words of conveyance, "I do give, bequeath and convey to my adopted daughter to have and to hold for her own personal use and to dispose of in such manner and time as she may please." This language carries the fee to the grantee named. The words "give and bequeath," are surplusage and do not affect the validity of the instrument as a conveyance, which is a deed and not a will. The subject of the grant is described as follows: "The house and lot of ground which we (the grantor and grantee) now occupy, together with the entire premises and all the real and personal property of every kind and name, to have and to hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document (except the personal), which are signed and sealed in one package." This description is sufficiently definite to convey the title to the FIRST DEPARTMENT, APRIL TERM, 1893. lot in question as against the grantor and his heirs. (Jackson v. De Lancey, 11 Johns. 365; affd., 13 id. 535; Jackson v. De Lancoy, 4 Cow. 427-432; Pond v. Bergh, 1 Paige, 140-156; Thayer v. Fenton, 22 N. Y. Wkly. Dig. 85; Scully v. Sanders, 12 J. & S. 89; Wilson v. Boyce, 92 U. S. 320; Prettyman v. Walston, 34 III. 175; Bird v. Bird, 40 Me. 398; Harmon v. James, 15 Miss. 111; Whitney v. Buckman, 13 Cal. 536; De Leon v. Higuera, 15 id. 483; Dyne v. Nutley, 14 C. B. 122; 1 Dart V. & P. [6th ed.] 602; 3 Wash. R. P. [4th ed.] 399; 1 Jones Mortg. §§ 65, 66.) The delivery was sufficient to vest the title in the grantee. (Hathaway v. Payne, 34 N. Y. 92.) In the case last cited, a deed was executed upon the stipulation, "That the said deed shall not be delivered to him, the said G. R. Payne (the grantee) during the lifetime of the said G. Payne and Phebe Payne (the grantors), or either of them, but shall be and remain in the possession of Edward Herrendeen, of Farmington, or his executors, administrators or assigns, to be by him the said Edward Herrendeen or his executors or administrators delivered to him, the said G. R. Payne, or to his heirs, executors or administrators, immediately after the decease of him the said G. Payne and Phebe Payne, his wife, as a good and valid conveyance of all the lands therein contained." The deed was executed in November, 1839. The grantor died November 23, 1848; his wife Phebe died April 3, 1854. The grantor left a last will by which he empowered his executors to "convey the real estate of which he should die seized." The executors on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1839, to one Hathaway, who brought trespass against Gideon R. Payne. A judgment was recovered by the plaintiff at Circuit, and affirmed by the General Term, but was reversed by the Court of Appeals, where it was held that the delivery by Herrendeen to Gideon R. Payne, after the death of the grantor and his wife, vested the title in the defendant. (See, also, Nottbeck v. Wilks, 4 Abb. 315; Grymes v. Hone, 49 N. Y. 17-22; Hunter v. Hunter, 17 Barb. 25; Crain v. Wright, 36 Hun, 74; affd., 114 N. Y. 307; 3 Washb. R. P. [4th ed.] 301.) The question submitted must be answered in the affirmative, and FIRST DEPARTMENT, APRIL TERM, 1893. we hold that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract. VAN BRUNT, P. J.: I concur. That a deed may be delivered by a grantor to a stranger to be delivered to grantee after death of grantor, such second delivery relating back to the first delivery, seems to have been long settled. (Ruggles v. Lawson, 13 Johns. 285; Hatch v. Hatch, 9 Mass. 307; Sheppard's Touchstone, 58, 59, marginal paging; 2 Washb. on Real Property, p. 586, marginal paging.) O'BRIEN, J., Concurred. The court holds that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract. SARAH RAINEY, as Administratrix, etc., of JOHN H. RAINEY, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Injury at a railroad grade crossing - violation of a city ordinance-failure to operate gates at night - evidence as to ringing of locomotive bell - contributory negligence. In an action against a railroad company to recover damages for a personal injury, proof of the violation of a city ordinance by the railroad company does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. A city ordinance required a railroad company to maintain gates at its grade crossings and to attend them at all times when trains were passing and close them at least one minute before a locomotive passed. In an action against the railroad company to recover the damages resulting from a person's death, alleged to have been caused by one of its trains at a grade crossing, it was shown that the gates were left open, without the presence of a gateman, between seven at night and seven in the morning, between which hours the accident occurred. Held, that this circumstance was not sufficient to sustain a judgment on the ground of negligence based upon it, where there was no evidence that the trains were run at an unusual rate of speed; that the vicinity was thickly inhabited, or that the highway crossing was much used in the night-time. FIRST DEPARTMENT, APRIL TERM, 1893 The testimony of a witness that he did not hear a Locomotive beil ring on approaching a crossing is entitled to ne weight as against affirmative evidence that it was rung, where it appears that he was standing, at the time testified to, on the crossing within three or four feet of the track, but his attention was not drawn to the approaching train by its neadaght or by ats Loise. The following requests to charge were presented by the defendant the railroad company, and were refused If the deceased, "when he stood at a point ten or fifteen feet distant from the nearest rai., or at any point between that and the rain and before he entered upon the track, courd nave seen the approaching train, the plaintiff cannot recover; " and, If the fact was known to the deceased "that the gates were not operated after seven P. M., he was not entitled to rely, in approaching the track for the purpose of crossing or attempting to cross, upon any protection from the gates." Held, that under the evidence in the case, it was error to refuse to charge as requested. APPEAL by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 30th day of November, 1892, upon a verdict rendered at the New York Circuit, and from an order entered on the 6th day of December, 1892, denying the defendant's motion for a new trial, made upon the minutes. D. W. Tears, for the appellant. Wales F. Severance, for the respondent. FOLLETT, J.: This action was brought to recover damages sustained by the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant's employees in the management of a train when passing a highway crossing. In the twenty-third or twenty-fourth ward of the city of New York the defendant's railroad crosses at grade a highway known as the Spuyten Duyvil road, and the crossing is called the Spuyten Duyvil crossing. At this place the railroad consists of two tracks of the gauge of four feet and seven-tenths of a foot. The two tracks are eight feet and one-tenth of a foot apart, making the distance between the outermost rails of the track seventeen feet and a halt. The highway extends along the westerly side of the railroad FIRST DEPARTMENT, APRIL TERM, 1893. for some considerable distance, then crosses it and extends along the easterly side of the railroad. The next crossing towards New York city is Riverdale avenue crossing, which is 1,470 feet northerly of Spuyten Duyvil crossing. The railroad above and below Spuyten Duyvil crossing is very crooked, so that trains bound for New York run nearly north for some little distance. It is asserted on the part of the plaintiff that her intestate, John H. Rainey, was struck at this crossing between eight and nine o'clock in the evening of January 4, 1892, by a New York bound train. About nine o'clock of that evening he was found lying with his skull fractured about 150 feet north of the Spuyten Duyvil crossing, on the east side of the railroad, near a fence. He was lying on his back, with his head towards the crossing last mentioned, and with his feet towards Kingsbridge. He was unconscious, and died within two days without regaining consciousness. The negligence sought to be established on the trial consisted of two omissions on the part of the defendant: (1) Neglecting to comply with an ordinance of the city of New York requiring the defendant to maintain gates on both sides of its grade erossings, and to attend them at all times when trains were passing, and close them at least one minute before a locomotive passed over the crossing. (2) Neglecting to ring the locomotive bell on approaching the crossing. It was proved, and was not disputed, that defendant maintained gates at this crossing, which were opened and closed, as required, between the hours of seven o'clock in the morning and seven o'clock in the afternoon, but that they were left open without the presence of gatemen between the hours of seven o'clock in the evening and seven o'clock in the morning. Proof of the violation of a city ordinance does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Knupfle v. Knickerbocker Ice Co., 84 id. 488; Moore v. Gadsden, 93 id. 12; Connolly v. Knickerbocker Ice Co., 114 id. 104; McRickard v. Flint, 114 id. 222.) The evidence in the case at bar simply shows a violation of the ordinance of the city, but there is no evidence that the trains were run at an unusual rate of speed, that the vicinity was thickly inhabited, or that the highway crossing was much used during the HUN-VOL. LXVIII. 63 |