Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. of which the decedent died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him or with a person from whom he derived his interest. It also provides that a sale, pursuant to statute, vests in the grantee all the estate, right and interest of the decedent in the real property so conveyed at the time of his death free from dower not assigned, but subject to all subsisting charges by judgment, mortgage or otherwise which existed at the time of his death. (Code, $$ 2749, 2778.) The evidence discloses that Eneas E. Enos. was never in fact seized of the premises in question, but that the only interest he possessed was that of a mortgagee, who held the legal title as security for the payment of his debt. Under these circumstances it is difficult to find any justification in the statute for the sale of these premises under the proceedings instituted by the administrators as the decedent was not seized of them at his death. It may be that in a proper action the plaintiffs would be entitled to recover the interest which Eneas E. had in the premises, but that question is not here. Even if the sale was authorized the only estate, right or interest which would'vest in the grantee under such a conveyance would be that which the decedent had in the property at the time of his death (Matter of the Executors of Dolan, 88 N. Y. 309, 322); and as the only estate, right or interest that he had was that of a mortgagee it would seem to follow that if the plaintiffs succeeded to that interest they could not maintain this action. It may be that, as between Eneas or Emilus and a third person who was a purchaser in good faith and for value, Eneas was to be considered as the legal owner of the premises, and the purchaser would obtain a title to which the equity of Emilus would not attach; but if the purchase was with notice, the purchaser would be in no better position than his grantor, and his deed would be at most an assignment of Eneas' interest in the property. If, therefore, we are incorrect in our conclusion that under the statute no greater right could be sold than that possessed by the decedent at the time of his death, and the purchaser acquired the legal title to the premises upon recording his conveyance, then the question whether the plaintiffs were purchasers in good faith properly arises. Upon that question much evidence was given. It was shown that Emilus J. Enos and his wife were in actual, open and visible possession of the premises, FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. and had been so possessed of them for many years. This was constructive notice of the interest of Emilus J. in the premises, and was sufficient to put the plaintiffs upon inquiry to ascertain what the rights of the defendants were in the premises. (Bassett v. Wood, 55 Hun, 587, and cases cited in opinion.) Again, the premises were sold by the assignee of Emilus J. in September, 1887, and purchased for the children of Dewitt C. Enos, to whom a deed was given, which was recorded January 6, 1888, more than two months before the premises were sold to the plaintiffs, and more than three months before their deed was recorded. The proof also disclosed that some of the plaintiffs and the attorney who was acting in the matter for all, acquired information in regard to the interest of the children of Dewitt C. Enos in the premises, and as to the interest of Emilus J. therein, which, if credited, was sufficient to show that the plaintiffs were not purchasers in good faith. On the other hand, the plaintiffs introduced evidence which tended to show that some of them were informed by Emilus J. that he had no title to the premises, and that information as to the rights of the defendants was sought from one of the attorneys who foreclosed the mortgage, and who was the attorney for the assignee of Emilus J., and that no information showing that the title of Eneas was less than the legal title to the premises subject to the $1,000 mortgage could be obtained. That at or about the time when it was offered for sale by the administrators, any of the plaintiffs made direct inquiry of Emilus J. or his wife as to their interest in the farm, for the purpose of ascertaining if they had any interest therein, is not pretended. The statements which were proved to have been made by Emilus J. were made at other times, and had no relation to this sale. Indeed, as to most of the plaintiffs they made no effort to ascertain what rights Emilus J. and his wife had in the premises, although such plaintiffs knew that Emilus J. and his wife were in actual, open and visible possession thereof. Nor was any effort made by them to ascertain the rights therein of the defendants Alanson T. Enos, Frank Enos and Hetty Mitchell, although they had a deed of the premises which had been recorded more than two months prior to the time of the administrator's sale, which was known to some of the plaintiffs independent of the record, and some of them were informed that the fore Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. closure sale was in fraud of the rights of the children of Dewitt C. Enos. It may be that as to some of the plaintiffs the court was justified in submitting to the jury the question whether they were purchasers in good faith and for value, and yet, as the burden of proof was upon them to show they were such purchasers (Westbrook v. Gleason, 79 N. Y. 23; Seymour v. McKinstry, 106 id. 230), an examination of the whole case renders it so improbable that they had neither constructive nor actual notice of the rights of the defendants in the premises as to lead us to the conclusion that as to them the verdict of the jury was against the weight of the evidence. As to the other plaintiffs, the evidence was insufficient to justify the submission to the jury of the question whether they were purchasers in good faith. In other words, we are of the opinion that the plaintiffs have not sufficiently borne the burden of showing that they were purchasers in good faith, and for value to justify us in upholding the judgment herein upon the ground that they, as such, acquired a greater or better title than that possessed by Eneas E. Enos at the time of his death. These views lead us to the conclusion that the judgment should be reversed. HARDIN, P. J., and MERWIN, J., concurred. Judgment and order reversed on the facts and law, and a new trial granted, with costs to abide the event. JOHN FITZGERALD, as Administrator, etc., of THOMAS FITZGERALD, Contributory negligence · - when a question for the jury — rules of a railroad corporation as to speed on down grades -failure to provide signals at bridges - damages not excessive. Upon the trial of an action brought by an administrator to recover damages resulting from the death of his intestate, caused as alleged by the negligence of a railroad company, it appeared that the accident occurred at a low bridge and that the company had failed to provide the warning signals indicating the presence of such a bridge as required by section 2 of chapter 439 of the Laws of 1884. It also appeared that the train was descending a grade at a rate of FOURTH DEPARTMENT, JULY TERM, 1895. [Vol. 88. about twenty miles an hour; that there was a rule of the company that in descending grades conductors should see that their men were at their posts, and not allow their trains to acquire a greater speed than one mile in four minutes. The conductor, a witness for the defendant, testified that the deceased, a brakeman, knew that the bridge was low and that there were no warning signals at the bridge. There was also evidence to show that the deceased had been in the cab of the engine and that the fireman had told him that it was not necessary for him to go on top of the cars. Held, that the case was a proper one for the jury; That if the deceased knew the location of the bridge and that it was a low one, but by reason of being occupied at the time in the discharge of his duties, did not notice his approach to it, he would not necessarily be charged with contributory negligence; That evidence offered by the defendant, to the effect that the rule as to the speed permitted in descending grades, and its requirement that men should be at their posts, applied only to the grades at Schenectady and West Albany, did not militate against the right of the deceased to believe that the rule applied to all grades upon the road. It appeared that the next of kin of the deceased was his father, fifty-eight years old, with whom he lived; that the deceased was single, twenty-two years of age and earned one dollar and eighty-five cents per day. Held, that a verdict of $3,000 was not excessive. 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 county of Herkimer on the 14th day of July, 1894, upon the verdict of a jury for $3,000 rendered after a trial at the Herkimer Circuit, and also from an order entered in said clerk's office on the 5th day of December, 1893, denying the defendant's motion for a new trial made upon the minutes. The action was brought to recover the damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant. There was some evidence in the case that the deceased was told not to go on top of the cars, which is thus stated in the charge of the justice who tried the case: "It was the duty of the conductor and engineman to see that the brakemen were on top of the train; were at their posts; and to see to it that the train was held back and not allowed to run over fifteen miles an hour. It was going down grade and this man left the engine and went on top of the cars. What did he go there for? Hun.] FOURTH DEPARTMENT, JULY TERM, 1895. He is not here to tell us, and we don't know what was in his mind except so far as the evidence shows the conversation and acts at the time. The question is whether it was in the line of his duty, under the circumstances, to go there, or whether it was, as claimed by the defendant, that he had no business to go up there; that his duty did not call him there and he ought to have kept away from the place. Two things are suggested for which he might have gone there; one is that he might have been there to help stop this train from going too fast down grade, and that, so far as the evidence shows what this man said, seems to have been the idea in his mind. Because the fireman testifies substantially that just east of Green's Corners, before they arrived at that place, Fitzgerald said: 'We are going down grade here, are we not?' and the fireman said, 'Yes;' and then the fireman says that he, deceased, began to stir himself as though he was going to get down from the seat; that he did get down and went out at the back part of the engine, stopped there The defense say that for a moment and then went up on the car. he was under no obligation; that it was not his duty to go up there unless the engineer told him to go there, and that the fireman told him it was not necessary for him to go there; and that the fireman told him in the presence of the engineer. The fireman says that he said something of that kind to him, and he used the language which I will not repeat here, before he left the seat. That he made no reply. That he got down from his seat and went out, and the fireman says that he started to go over the tender, and that he spoke to him again, and, as he started to climb up on the car, he spoke to him a third time. . To neither of these remarks did the deceased make any reply. Did he hear him? Did he understand that he was being notified by the fireman in the presence of the engineer that he did not need his assistance down that grade? These are questions which you may well consider. Perhaps I need not go further with reference to this suggestion of contributory negligence. You have a right to take into consideration not only what it is claimed the fireman said to him; whether he understood what the fireman said; but also you have a right to take into consideration the rules and regulations of the company, as to whether he understood and had a right to understand from the language of the rules that it was his duty, considering the fact that they were going down grade, and HUN-VOL. LXXXVIII. 46 |