Statement of case. The owners of certain lands in the city of Troy, had laid them out into city lots, streets and alleys; lots had been sold and some of the streets had been worked by the city. Plaintiff was struck by a car attached to a train moving backward on defendant's road at a point where said road crossed an alley so laid out. The alley was north and south, at the north end it runs to a creek over which there is no bridge, and consequently there is no travel upon the alley on the north side of the railroad or crossing the road. The negligence complained of was the omission to ring the bell or blow the whistle of the engine drawing the train as it approached the crossing. Further facts appear in the opinion. Esek Cowen for appellant. The mere making of a map, on which streets and alleys are laid down is not of itself a dedication of these streets and alleys to the public without an acceptance. (Holdam v. Cold Spring, 21 N. Y. 474; Suspension Bridge Co. v. Bachman, 66 id. 261.) And this is the case even where lots have been sold, abutting on the streets so laid out. (Fonda v. Borst, 2 Keyes, 48; Badeau v. Mead, 14 Barb. 328; Grinnell v. Kirtland, 6 Daly, 356; affirmed, 68 N. Y. 629; City of Oswego v. Oswego Canal Co., 6 id. 257; Niagara Falls Suspension Bridge Co. v. Bachman, 66 id. 474.) If the alley was not a highway, and a traveled highway, the court was in error in charging that the defendant was bound to give the statutory signals. (Cordell v. N. Y. C. & H. R. R. R., 64 N. Y. 535.) H. R. R. R. Co., R. R. Co., 52 Co., 58 id. 451; R. A. Parmenter for respondent. On the evidence, the question of the plaintiff's contributory negligence and of defendant's negligence was plainly one of fact for the jury. (14 Hun, 322; 83 N. Y. 620; Ernst v. 35 id. 9; Maginnis v. N. Y. C. & H. R. id. 215; Webber v. N. Y. C. & H. R. R. R. Salter v. U. & B. R. R. Co., 59 id. 631; Culhane v. N. Y. C. & H. R. R. R. Co., 60 id. 137; Massoth v. D. &. H. C. Co., 64 id. 524; Cordell v. N. Y. C. & H. R. R. R. Co., id. 535; Haycroft v. L. S. & M. S. R. Co., id. 636; Casey v. N. Statement of case. If there was any evidence Y. C. & H. R. R. R. Co., 78 id. 518, 524.) The question of the alleged contributory negligence on the part of the plaintiff was also one of fact for the jury. (Hill v. N. Y. C. &. II. R. R. R. Co., 2 Weekly Dig. 94; Morrison v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 643; Sheehey v. Burger, 62 id. 558; O'Mara v. Hudson R. R. R. Co., 38 id. 445; Dickens v. N. Y. C. R. R. Co., 1 Keyes, 23; Hart v. II. R. B. Co., 9 Weekly Dig. 536; 80 N. Y. 622.) tending to show negligence on behalf of the parent, which would have been sufficient to defeat the action when established, it was still a question of fact for the jury under all the evidence. (Ihl v. Forty-second St. R. R. Co., 47 N. Y. 317; McGarvey v. Loomis, 63 id. 107.) The defendant being guilty of negligence in the management of powerful and dangerous machines, had no right, under the law, to exact of this plaintiff a higher degree of caution, care and deligence than could be reasonably expected from a child of her age. (O'Mara v. II. R. R. R. Co., 38 N. Y. 449; Sheridan v. B'klyn & N. R. R. Co., 36 id. 42, 43; Mowery v. Central City R'y, 51 id. 667; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 id. 252; Thurber v. H. B. M. & F. R. R. Co., 60 id. 336; McGarry v. Loomis, 63 id. 107; Fallon v. Central Park, etc., 64 id. 13; Haycroft v. L. S. & M. S. R. R. Co, 2 Hun, 491; 64 N. Y. 636-7; Casey v. N. Y. C. & II. R. R. R. Co., 78 id. 518; Dowling v. N. Y. C. & H. R. R. R. Co., 90 id. 679; 83 id. 620; Casey v. N. Y. C. & H. R. R. R. Co, 6 Abb. N. C., 104.) In case of such a collision the law does not exact from the traveler mathematical certainty in the measurement of time, speed and distance. (Stackus v. N. Y. C. & H. R. R. R. Co., 9 Weekly Dig. 441; Justice v. Lang, 52 N. Y. 323; Dolan v. D. & H. C. Co., 71 id. 285; Briggs v. N. Y. C. & H. R. R. R. Co., 72 id. 26; 83 id. 620.) The dedication, acceptance and user of the alley are complete and should not be disturbed to enable a railroad company to escape the legal consequences of its negligence. (Bridges v. Wyckoff, 67 N. Y. 130; Niag ara Falls Susp. B. Co. v. Bachman, 66 id. 261; Head v. City of Brooklyn, 60 id. 248; Taylor v. Hopper, 2 Hun, 646; Opinion of the Court, per RAPALLO, J. Matter of Ingram, 4 id. 495; Holedale v. Trustees Village of Cold Spring, 21 N. Y. 474.) Having invoked the decision of the court, the defendant is estopped from complaining of the result, unless it appears there is not sufficient evidence to support it. (Armes v. Dauchy, 82 N. Y. 443; Dillon v. Cock roft, 90 id. 649.) RAPALLO, J. The sole question submitted to us in this case is whether at the time the plaintiff was injured, the alley, or that portion of it where the injury occurred, was a "traveled public road or street," before crossing which the defendant was bound to give the statutory signals. We are clearly of opinion that it was not. Assuming that the locus in quo had been so dedicated to the public by the owners of the land as to constitute it a public street, which the local authorities would have had the right to improve and put in use as such, that is not sufficient to bring it within the statute. The statute is evidently intended for the protection of persons crossing the track of the railroad, when traveling on the public street or road, and it was held in the case of Cordell v. New York Central & Hudson R. R. R. Co. (64 N. Y. 535) that according to the plain language of the statute, the street or road, to bring it within the requirement of the statute, must be both traveled and public. In the present case the alley at the place of the accident was not traveled or capable of being traveled. It extended on paper from Madison street in the city of Troy, northerly to the South side of the Poestenkill creek. It was crossed about midway by the track of the railroad. The only evidence of any travel upon it was, that at the south end of it, where it entered Madison street, there was a store called the Iron Works store, and that teams would enter the alley from Madison street to receive goods from the store, and would then turn around before reaching the track of the railroad; and the father of the plaintiff, who had lived many years in the immediate locality, testified that there never was any travel upon the alley, except south of the railroad track, that when they got to the track they turned; Statement of case. consequently there was no travel across the railroad track at that place, nor was there any occasion for such travel as there was no bridge across the creek over which travelers could pass, and it does not appear that any use was ever made of the alley, except to receive goods on teams from the store south of the track. The judgment should be reversed and a new trial ordered, costs to abide the event. All concur. 162 460 94 16 a164 377 HORACE ANDREWS et al., Respondents, v. THOMAS M. TYNG, Appellant. The General Term of the Supreme Court has no authority on appeal to determine the amount of unsettled damages; at least where no facts are found below upon which an estimate as to the true amount can be made. Accordingly held, where on trial before a referee in an action for attorney's services wherein the defendant set up a breach of the contract of employment on the part of plaintiffs, and the referee found the breach, but allowed only nominal damages, and where the General Term decided this to be erroneous and that defendant was entitled to substantial damages, that it was error for the General Term to fix the damages; that it only had authority to order a new trial, so that the amount of damages might be determined by a trial court. Plaintiffs agreed to prosecute two actions for defendant for a specified sum as retaining fee, an allowance for each day's attendance before a referee, and a percentage of any recoveries. Because of non-payment of the retaining fee, and the daily allowance, plaintiffs, as the referee found, “refused to be bound by the contract,' but they continued thereafter as attorneys of record and acted in that relation, and as such, without the knowledge of their client and in hostility to his interests stipulated to vacate an order in his favor, granted in one of said actions. Held, that plaintiffs' contract was an entire one; that conceding because of the nonpayment of fees, they might refuse to act, they could waive the default, and having so done, by acting as attorneys thereafter, and their action being wrongful and adverse to their client, they were not entitled to compensation for any services in said suit. Statement of case. Before plaintiffs' refusal to be bound a judgment against defendant had been rendered in the other of said actions. Held, that plaintiffs could only recover under and according to the terms of the contract. (Submitted October 10, 1883; decided November 20, 1883.) APPEAL from a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of the plaintiffs, entered upon the report of a referee. The complaint stated that the plaintiffs were lawyers, and set forth, in substance, two causes of action: First. An indebtedness for services rendered upon defendant's retainer in the prosecution of two suits-one against Baird and others and another against Fields and others. Second. A debt due them as assignees of Delevan for money paid by him for the defend ant. The defendant pleaded a special agreement by which the plaintiffs were "to use their best efforts" in his behalf in said actions, in consideration that he would pay them $300 as retainers — $10 for each day's actual attendance before a referee, ten per centum upon the amount of any recovery, and all costs and allowances that might be recovered and paid in those suits; that they failed to keep their agreement, and while acting as his attorneys combined to injure him, " and in the interest of his opponents" abandoned the actions intrusted to them to prosecute "to his injury more than $10,000," and asked judgment accordingly. By reply these allegations are controverted. The issues were tried before a referee. He found the employment of the plaintiffs upon terms substantially as claimed by the defendant; that prior to July 26, 1870, he paid them $175, and on that day, after repeated, unavailing demands for further payments of "retainers and compensation on this agreement," they, by reason of defendant's failure to meet those demands, "refused to be further bound by the agreement, and withdrew from it." By that time the Fields suit had gone into judg ment against the plaintiffs therein. The suit against Baird and others was still pending, but they also obtained judgment SICKELS VOL. XLIX. 3 |