She strated its existence as matter of law. The

away. Her husband crossed safely at this known to the plaintiff, who had been a renipoint and reached the northerly end of the dent in that vicinity for many years, and had platform on the opposite side, which is nearer been a frequent passenger on the defendant's to Eighty-Fourth street than the one on the railroad. If these facts, in and of themselves, westerly side. The plaintiff did not attempt justified the plaintiff's attempt to cross the to follow her husband across at this point. tracks at the time and in the manner above Having seen the train approaching at the indicated, it would logically follow that the other end of the platform, and evidently sup- verdict of the jury was proper, and that its posing that it would stop by the time the affirmance by the Appellate Division was first car reached the northerly end of the necessary. It seems to us, however, that the platform, she turned and walked towards the plaintiff's evidence upon this feature of the north about 35 feet, taking the same direction case not only failed to establish her freedom as the approaching train. This took her well from contributory negligence, but demoninto the center of Eighty-Fourth street.

. then attempted to cross without again looking

evidence which tended to show that all of at the approaching train. Just as she placed the defendant's north-bound trains stopped at one foot on the track she was struck by the the Eighty-Fourth Street Station was clearly motor car of the north-bound train, which competent and cogent upon that question, had not slackened its speed, and sustained and, standing alone, might have been sufficient the injuries complained of. The plaintiff and to sustain the conclusion that the plaintiff her husband acted upon the assumption that was free from contributory negligence. But this train was the one due to leave for there is something more. The plaintiff testified Brooklyn at 10:53, and that it would stop as that from the time when she and her husband usual in front of the Eighty-Fourth street reached Eighteenth avenue and first saw the platform in such a position that the first car north-bound train at a distance of 700 or 800 would not pass beyond the northerly end of feet south of the station, she did not see it the platform. It transpired, however, that it again until she looked around the rear end was not a regular train, and was not scheduled of the south-bound train which had stopped to stop at that station. The place at which at the station. At that moment she saw the the plaintiff attempted to cross was shown, north-bound train coming into the southerly by the plaintiff's evidence, to be considerably end of the station at a distance of at least 120 to the north of the usual stopping place of feet south of the point from which she took trains at this station. The plaintiff's evidence her observation. Instead of attempting to

tended to show, and the jury were justified cross then and there, as she might possibly

bell

, or gave any warning of its approach, and taken this precaution, while she was in a

in finding, that all trains, except those running have done in safety, she concluded to walk to at night after 9 or 10 o'clock and in the early the north for a distance of 35 or 40 feet, to a morning, came to a stop at this station, and place at or near the center of Eighty-Fourth that the front end of the first car of such street. What was her purpose in doing this? stopping trains did not usually project more She was doubtless acting upon the assumption than a few feet beyond the end of the that the train would stop at the station, and, platform towards the Eighty-Fourth street therefore, concluded to go far enough to the crossing. The evidence also justified the north to be entirely clear of the motor car of jury in finding that in approaching this the train which, in stopping, might run slightstation those in charge of the train that ly past the limits of the station and into the caused the accident blew no whistle, rang no boundaries of Eighty-Fourth street. Having

a that the speed of the train, which was about place of absolute safety from which she could 12 miles an hour, was not slackened. In at every instant have commanded a full view short, that nothing was done to indicate that of the approaching train, it is obvious that this was not the regular train scheduled to she should not have attempted to cross the stop at the Eighty-Fourth Street Station at track without first looking to see whether the that time.

train had in fact stopped. It is a familiar

physical fact within the knowledge of all I. R. Oeland, for appellant. Stephen C.

persons of ordinary intelligence that railroad Baldwin, for respondent.

trains, operated either by steam or electricity,

cannot always be stopped with mathematical WERNER, J. (after stating the facts). precision at a given point. This fact is clearFor the purposes of this discussion we will ly demonstrated by the evidence which tends assume that the jury had the right to charge to show that the north-bound trains, in stopthe defendant with negligence, for there was ping at the Eighty-Fourth Street Station, evidence tending to show that those in charge would sometimes be brought to a standstill of the train with which the plaintiff collided before the motor car reached Eighty-Fourth gave no signal or warning of its approach to street, and on other occasions would run a the crossing at which the accident happened. little further to the north so as to project into We must also assume that the evidence war- Eighty-Fourth street. ranted the finding that all of the north-bound The inevitable inference to be drawn from trains of the defendant stopped at the Eighty- the plaintiff's own testimony is that it was Fourth Street Station, and that this fact was this uncertainty as to the precise point of stoppage of the train that was in her mind ed in the light of another rule to the effect when she concluded to make the "detour" of that a person who intends to take passage 35 or 40 feet to the north. In doing so she upon a railroad train and crosses the railturned her back to the oncoming train and road tracks at a highway crossing commonnever looked again to see where it was, or ly used for that purpose, is not held to the whether it had stopped or not, although a same strict exercise of care and caution that simple turn of her head would have sufficed is required of the ordinary wayfarer along to gain for her this all-important informa- the highway. Terry V. Jewett, 78 N. Y. tion. Without a look, she put her foot upon 338; Brassell v. N. Y. C. & H. R. R. R. Co., the north-bound track. Before she could 84 N. Y. 241. Both of these rules might be move forward, she was struck by the train successfully invoked in support of plaintiff's which was then moving at the rate of 12 contention that her alleged contributory neg. miles an hour. Without any attempt to ex- ligence presented a question of fact for the ercise her senses of sight or hearing she jury, if it were not for the conclusive charstepped from the zone of absolute safety into acter of the evidence showing that plaintiff, a place of probable danger, and this at the although fully cognizant of the threatened very time when the exercise of her faculties danger, disregarded the most simple and obwas imperative, if her previous precautions vious precautions for her safety that common were to be of any practical benefit. If such prudence and ordinary intelligence could sug. conduct does not properly support the legal gest. Having gone out of her way to avoid inference of contributory negligence, then the train, she neglected to look for it at a there can be no case in which the specula- time when every instinct of self-preservation tive finding of a jury upon that question may and every dictate of common prudence denot be substituted for legal rules of evi- manded such action. Instead of attempting dence. It may be admitted, for the argument, to cross at the usual place, relying upon the that the custom of stopping all north-bound customary stoppage of the train, she had wittrains at this station and the failure of the nessed the dangerous, albeit successful, exdefendant to give any signal or warning of periment of her husband, and concluded to its intention not to stop this particular train, defer her crossing to another time and place. might have lulled the plaintiff into a feeling Assuming that the plaintiff walked at the of security such as described in the case of rate of four miles an hour, it would have Parsons v. N. Y. C. & H. R. R. R. Co., 113 taken her between 5 and 6 seconds to make N. Y. 355, 363, 21 N. E. 145, 3 L. R. A. 683, her "detour" of 35 feet, while it would have 10 Am. St. Rep. 450. The obvious answer to taken the train, running at the rate of 12 that suggestion is that the plaintiff's own miles an hour, between 8 and 9 seconds to conduct, considered in the light of the sur- reach the place where she attempted to rounding circumstances, was utterly incon- cross; that point being 155 feet north of sistent with that theory. When the plain- the southerly entrance to the station. Thus, tiff and her husband reached the northerly although this was a matter of seconds, the end of the stationary south-bound train the plaintiff still had an appreciable period of husband crossed the intervening track and, ti

time in which to look for the train, after according to the undisputed testimony, bare- she had arrived at the place where she atly escaped collision with the oncoming train, tempted to cross and before that point had Had the plaintiff attempted to follow even been reached by the train. These are the a moment later, an accident would have been facts which differentiate this case from Palminevitable. It was this emergency that must er v. N. Y. C. & H. R. R. R. Co., 112 N. Y. have suggested to the plaintiff the propriety 234, 19 N. E. 678; Beecher V. Long Island of going to the north to a point beyond which R. R. Co., 161 N. Y. 222, 55 N. E. 899, and the then moving train would be sure not to the other cases relied upon by the plaintiff. extend if it were going to stop at that sta- In all of those cases there were circumstances tion. Having done so much, how could the from which it was reasonable to draw the plaintiff be said to have exercised reasonable inference, either that such care had been excare and caution without even taking an- ercised as was required in the circumstances, other look before stepping from her position or that the necessity for such care had been of safety literally against the motor car obviated by conditions well calculated to lull which was then directly in front of her. a reasonably prudent person into a sense of

We do not deem it necessary to go into an security. In the case at bar the plaintiff's extended discussion of the decided cases for, own testimony affirmatively establishes, not in the last analysis, the question of con. only her failure to exercise necessary care. tributory negligence depends upon the ap- but her evident understanding and appreciaplication of well-settled legal rules to the tion of the conditions which attended her special facts of each given case. As a gen

attempt to cross the tracks. eral rule the question whether a person col- The judgment should be reversed and a liding with a railroad train has been guilty new trial granted, with costs to abide the of contributory negligence is one of fact for event. a jury (Parsons v. N. Y. C. & H. R. R. R. Co., supra), and, as applied to the specific VANN, J. (dissenting). I dissent. The facts of this case, that rule is to be consider- plaintiff, instead of running the risk her hus.

in

set-off to the bond and mortgage. Freel v. cates. In such case it is plain

ed a recovery against the plaintiff for the held by himself. In Briggs V. Briggs, 20 excess of the sum due on the certificates Barb. 477, it was held that, in an action over that due on the bond and mortgage, against several defendants jointly and severunless, as the appellants' counsel contends, ally liable, either of them might set off indithe plaintiff was foreclosed by its failure vidual debts due to him by the plaintiff or to serve a reply to the defendants' answer. might avail himself thereof by way of counThis position of counsel cannot be upheld. terclaim. See, also, Newell v. Salmons, 22 In the answer the certificates are pleaded Barb. 647. The authority of these earlier deas a set-off and defense, and in the prayer cisions has never been impugned, and Newell for judgment, where the only mention of v. Salmons is cited with approval in Bathgate counterclaim is found, it is asked that they v. Haskin, 59 N. Y. 533. In the present case, be allowed as a counterclaim, defense, and as already said, the bond of the defendants is set-off, and that the bond and mortgage joint and several, and, therefore, a several be canceled. No recovery against the plain-judgment could have been had against either tiff for the amount of the certificate is asked. defendant. The fact that the action was It is the settled law in this state that for a in form joint does not affect the principle defendant to preclude a plaintiff from con- involved. When the defendants "in an actesting a counterclaim because of a failure tion are jointly and severally liable, although to serve a reply, the counterclaim must sued jointly, a counterclaim, consisting of be distinctly named as such in the answer.

a demand in favor of one or some of them, Acer V. Hotchkiss, 97 N. Y. 395; Equitable may, if otherwise without objection, be inLife Assurance Society v. Cuyler, 75 N. Y. terposed.” Pomeroy's Remedies and Reme511. But though the judgment was prop- dial Rights, § 761; Dunn v. West, 5 B. Mon. erly reversed in this respect, it not being (Ky.) 376, 381. Therefore, had the defendpossible on another trial to vary the proof ants been sued on the bond in an action at as to the liability of the plaintiff, a new law the defendant Joseph could, under the trial should not have been ordered, but the authorities and the rule obtaining in this judgment merely modified, unless as a mat- state, have interposed as a counterclaim the ter of law the certificates were not a valid amount due him on the participation certifi

y

that the County of Queens, 154 N. Y. 661, 49 N. E. 124; counterclaim so interposed would necessarily Heerwagen v. Crosstown Street Ry. Co., 179 have inured to the benefit of all the defendN. Y. 99, 79 N. E. 729.

ants. The plaintiff had but one claim, and This brings us to the principal question

but one cause of action. Payment by a in the case, which is whether the claim on stranger to the obligation would not disthe certificates which was held by only one charge it, but payment by anybody liable of the defendants was a good set-off against thereon, whether jointly or severally, would the plaintiff's claim. Under sections 502 and necessarily satisfy it. Cockcroft v. Muller, 1909 of the Code of Civil Procedure the as- 71 N. Y. 367. Any other rule would permit signment to the plaintit was subject not a creditor to recover his claim as many times only to every defense, but to every counter- over as he had parties severally liable for claim there might have been set up against the debt. We are not considering a case its assignor. Therefore, the question pre- where the creditor has released one of his sented here is the same as that which would debtors, either without consideration or for arise had the action been brought by the less than the debt, reserving his right to original mortgagee, and may be examined proceed against the others. Such settlements and considered from that point of view. are authorized by our statutes. But where At common law and under the Revised Stat- a debt has been paid in full by one debtor, utes in an action against more than one it is satisfied as to all. Coonley y. Wood, 36 defendant there could be interposed only a IIun, 559. The same rule must obtain in set-off due to all the defendants jointly. the case of a counterclaim as in that of pay2 Rev. St. (1st Ed.) p. 354, pt. 3, c. 6, tit. 2, ment. It is in fact a payment by the set-off

§ 18. That rule still obtains in this state, of an outstanding claim against the creditor. where the suit is on the joint obligation or Had the bond not been assigned, and the liability of the defendants. Where, however, plaintiff's assignor brought an action upon the liability of the defendants is several, it, the defendant Joseph interposing his under the express provisions of section 501 counterclaim, the judgment in the action of the present Code, which in this respect would extinguish pro tanto the claim of that is but a re-enactment of section 150 of the defendant against the plaintiff. If it were former Code, as amended in 1832, a defend- allowed to recover against the other defendant against whom a several judgment may ant, it would be recovering twice over—first, be rendered can interpose a counterclaim ex- by the extinguishment of its debt, and, second, isting in his own favor. In Parsons y. Nash by the amount recovered against the other 8 How. Prac. 454, which was an action defendant. Whenever in a suit on a money against the maker and sureties on a promis- obligation a counterclaim is allowed in favor sory note, it was held that, as a several judg- of one of several defendants it must, from ment might be rendered against either de- the nature of the case, necessarily inure to fendant, either could plead a counterclaim the benefit of all the defendants liable on