FOURTH DEPARTMENT, JANUARY TERM, 1875.

A municipal corporation may not be liable for an injury caused by a nuisance in a street, created without its authority or sanction, of the existence of which it had no notice. But the nonsuit in this case was not put upon that ground, nor does that question arise here, for the reason that there was, at least, some evidence from which the jury might have been warranted in finding that the defendants had notice of the nuisance which caused the injury to the plaintiff. The only ground on which the nonsuit could be suetained, would be that on which it was placed by the court below, namely, that the railroad company being authorized by the legislature to do what they did, and being charged with the duty of restoring the street, the control of the defendants over the street was suspended, and their duty in respect thereto was superseded to a corresponding degree. But this position is untenable. The acts which the railroad company were authorized to do, were not necessarily incompatible with the duty of the defendants to keep the streets in a safe condition. The effect of the legislative authority was merely to render acts legal, which, without it, might have been illegal. It contains no language which expressly, or by reasonable implication, modifies or abrogates the duty which the law had cast upon the defendants, or the liability consequent upon a neglect of that duty. The duty and liability therefore remained. It is the common case of the doing of a lawful act which renders a street unsafe, such as making excavations in it for water-pipes, drains, gaspipes, areas, etc. These privileges, if not incident to ownership, require only the authority of the municipality to make the exercise of them lawful. But it is, nevertheless, the duty of the municipality to protect the citizens against danger arising from the negligent exercise of them. In case injury ensues from such cause, he who makes the excavation and the municipality are each liable. So in this case, if the acts of the railroad company constituted a nuisance, they and the defendants are each liable for their own breach of duty; the former for placing a nuisance in the street, and the latter for not removing it thereform, or affording the necessary protection against danger, by means of lights and barriers. We cannot, on this appeal, determine the liability of the railroad company; but if the injury of which the plaintiff complains, was caused by their neglect of duty, they are primarily liable, and, in case of a recovery against the HUN-VOL. III.

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defendants, they will have a right of action against the railroad company. *But the fact that the railroad company is liable to the plaintiff, and may be liable ultimately to the defendants, does not absolve the latter from their liability to the plaintiff. No reason is perceived why it should have that effect. The defendants were adequately protected in the first instance, by the power which they possessed of imposing such reasonable conditions as they deemed proper, upon the railroad company. By this means, they were enabled to regulate and control the manner of doing the work, and thus to insure the safety of the street, or to get an indemnity against all liability for injuries happening by reason of its having been rendered unsafe. If they failed to exercise those powers, it was their own fault. Furthermore, the remedy over will, in most cases, be found an effectual shield against undue responsibility. We are of opinion, therefore, that nothing has been shown, which makes this case an exception to the general rule of law, governing municipal corporations, before stated.

Upon the other questions presented on the motion for a nonsuit, we agree with the court below, that there was enough in the evidence to require the submission of the case to the jury.

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

Present MULLIN, P. J., SMITH and GILBERT, JJ.

Order and judgment reversed, and new trial granted, costs to abide the event.

* Robbins v. Chicago, 4 Wall., 657; S. C., 2 Black, 418; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 476.

+ Dill. Mun. Cor., §§ 794, 795, 796 and cases cited; Wendell v. City of Troy, 39 Barb., 329; S. C., 4 Keyes, 261; cases last above cited.

FOURTH DEPARTMENT, JANUARY TERM, 1875.

ELIZABETH GOETZMAN, ADMINISTRATRIX, ETC., OF JACOB GOETZMAN, DECEASED, PLAINTIFF, v. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, DEFENDANT.

Policy of insurance · defense that assured was killed in act of adultery — when such killing murder-jury to determine between intentional killing and killing in heat of passion.

In an action on an insurance policy which provided that "if the assured shall die by suicide or in consequence of his violation of any law," it appeared that the assured was shot by one Hesler, immediately after he had had criminal intercourse with his (Hesler's) wife; held, that as the killing was done not while the assured was in the act of adultery, nor in the defense of person or property, that it was a crime, and could not be treated as the natural and legitimate effect of the act of adultery.

A charge to the jury, that if Hesler killed the assured because he had committed the act of adultery, it was not murder, was error. The judge should at least have submitted to the jury the question whether Hesler fired the pistol with intent to kill, or whether the killing was in the heat of passion caused by the act of adultery, and to instruct them that in the former case the defense failed.

EXCEPTIONS Ordered to be heard in first instance at General Term. The action was brought to recover $142 upon a policy of insurance on the life of Jacob Goetzman. The policy contains a provision that "if the assured shall die by suicide or in consequence of his violation of any law," the policy shall be null and void. The answer alleged that said Jacob came to his death while engaged in acts of adultery with one Catharina Hesler, wife of one John Hesler, the said Jacob having been discovered and caught by said John Hesler in the acts of illicit and unlawful intercourse with his wife, and that while so engaged in such unlawful intercourse, the said John shot the said Jacob to death; and defendant alleged that the death of said Jacob was the natural and reasonable result and consequence of his unlawful acts with the wife of said John Hesler. The proof in the case tended to show that just after having committed adultery with Mrs. Hesler, the assured was shot and killed by her husband.

The judge charged: "It is a violation of law for a man to interfere with the most sacred relations we have in social life. When

FOURTH DEPARTMENT, JANUARY TERM, 1875.

*

he undertakes to commit adultery with the wife of his neighbor, he has violated the law, and if the death he suffers grows out of that fact, then the policy is forfeited, and he has no right to recover, or his representatives have not, the amount of the policy if the death be caused in that way. * * He was shot by the person whose rights he had thus invaded. Whether Hesler saw him or not is not absolutely material in this case. If he saw him in the act of adultery, or under such circumstances as was satisfactory evidence to him that he had committed adultery, then he had a right to shoot him, if he did it directly after the offense. Not exactly the right; but the law is careful of the feelings of individuals in that regard, and has so much respect for the natural impulses of a man who is placed under circumstances of that kind, that it says he does not commit murder, so that while the commission of that act is fresh, and he shoots a person under circumstances that satisfy him that the act has been committed; and it is entirely immaterial for this purpose, whether the husband saw the act or not. If he was actually doing the illegal act, and the death resulted as a consequence of that act, then the plaintiff is not entitled to recover in this case, and the whole question for you is, whether this death resulted from the fact was the consequence of the act and his being there and committing adultery with some person else's wife. If it was, he is not entitled to recover. The condition referred to in the policy was not violated, if it was not the consequence of that act; and if that be so, plaintiff is entitled to recover; and if you can find from the evidence in this case any other reason for the husband shooting, except from the fact that he was there having improper relations, or in an improper manner with his wife, then you may give a verdict for the plaintiff; if you can find no other fact, nothing to warrant you, no other reason for the husband shooting him under the circumstances, except from the understanding that he had been and committed this violation of his rights, then the defendant is entitled to your verdict."

The plaintiff excepted to that part of the charge, “where it was stated that it was not necessary for him to see him in the act of adultery.

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Also, where it was stated that it was right for a husband to shoot

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a man if he was there in a position that inferred that he was committing adultery.

"Also, that the commission of adultery was a violation of the law."

The jury found for the defendant, and the court ordered a stay of proceedings for thirty days, in which to make a case and exceptions, and ordered the same to be heard in the first instance at the General Term.

J. C. Cochrane and Wm. M. Bates, for the plaintiff.

D. Pratt, for the defendant. The commission of adultery is not only a violation of the most sacred rights of a man, but justifies him, or at least excuses him, for taking the life of the adulterer, if caught, flagrante delicto. (2 Bish. Cr. L., § 708; State v. John, 8 Ire., 380; Same v. Samuel, 3 Jones [N. C.], 74; 2 Wharton, § 389.) Adultery, of all provocations, is recognized by the law as the highest and strongest. (State v. Will, 1 Dev. & Bat., 121, 169.)

GILBERT, J.:

The learned justice at the circuit certainly gave to the jury an erroneous exposition of the law of homicide, as the same is administered in this State. But we need not stop to discuss that subject. The case comes before us upon exceptions taken by the plaintiff at the trial.

At the close of the testimony, the plaintiff moved, in effect, that the court direct a verdict in her favor. We think that motion should have been granted. The condition of the policy is, that "if the assured shall die by suicide, or in consequence of his violation of any law," the policy shall be void. Assuming that the act of adultery was a violation of law, within the meaning of the parties to the contract of insurance, we are of opinion that the assured did not die in consequence of it. The undisputed facts show that he was killed, not in the act of adultery, nor in defense of person or property. The offense had been completed, and the assured was about to go away. He was not, therefore, at the time he was killed, violating any law, or even committing a trespass, for he was in the house by the license of the wife, from whom the husband had separated.