Opinion of the Court, per RUGER, Ch. J.

mortgage was available to the defendant Mrs. Bates, and was sustained by the evidence.

The further question is made that the court below erred in deducting the payment of $1,050, made by Mrs. Bates to the plaintiff, from the amount actually owing upon the mortgage, instead of applying it as a payment of a year's interest thereon. This point is founded upon the claim that such payment having been made specifically for a year's interest upon the mortgage, the defendant Bates is, therefore, precluded from claiming its benefit, as a general payment upon the mortgage.

It having been found by the court below that the mortgage in suit was a valid incumbrance upon the premises mortgaged for only about $4,000, it follows that at the time of this payment the sum of $1,050 was not due and owing thereon for interest.

The question is, therefore, presented whether the defendant Bates is precluded from claiming the benefit of this limited liability, by reason of the payment of $1,050, specifically as interest upon the mortgage in question. To authorize the application of so much of this sum as is in excess of the amount actually due for interest, as a payment upon the mortgage generally, is equivalent to holding that she has the right to recover back that sum by suit from the mortgagee. It is not claimed but that this sum was paid with full knowledge of all the facts attending the transfer of the property mortgaged, and the defenses existing against the mortgage, nor but that the plaintiff claimed that his mortgage was a valid lien for its full amount upon the property therein described. Although we cannot see that by reason of this payment the defendant Bates is estopped from questioning the validity of the mortgage debt, inasmuch as the plaintiff has not changed his position or been prejudiced thereby (Waring v. Somborn, 82 N. Y. 604), or that it is affected by the rules governing the application of payments upon valid debts of a distinguishable character, yet it seems to us that this must be held to be a voluntary payment upon a disputed claim, and as such is not recoverable back by the person making it. (N. Y. & II. R. R. Co. v. Marsh, 12

Statement of case.

N. Y. 308; Ritter v. Phillips 53 id. 587; Flower v. Lance, 59 id. 603.)

The disposition of the defendant's claim to have the amount of the Taylor mortgage applied upon the mortgage in suit as a payment thereon by way of recoupment was properly made by the General Term for the reasons stated in the opinion of Judge RUMSEY.

The views above expressed lead to a reversal of the judg ment, and an order for a new trial with costs to abide the event, unless the defendants Chester S. and Mary A. Bates stipulate to allow judgment to be entered in favor of the plaintiff herein, as ordered by the court at Special Term, modified so as to provide for the recovery of a principal sum of $3,803.23, with interest thereon at the rate of seven per cent per annum from May 10, 1877, to May 10, 1881, and at six per cent thereafter; and in case such stipulation be given, the judgment, as it shall be thus modified, should be affirmed, without costs of this appeal to either party.

All concur.

Ordered accordingly.

WILLIAM H. VOSBURGH, Respondent, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant.

Where a railroad corporation purchased the line of another company, of which an existing bridge formed a part, which bridge at the time of the purchase was unsafe and dangerous by reason of defects in its original plan and construction, and such defects were obvious to the eye of a skilled inspector, and could have been easily and surely ascertained by proper examination, held, that it was negligence on the part of the corporation to continue its use without such an inspection and a correction of the defects; that it was liable to an employe upon one of its trains for injuries received by a fall of the bridge; and this, although the bridge had been in use for several years before the purchase.

Devlin v. Smith (89 N. Y. 470), distinguished.

It seems that the prior use might have justified a continuance of the use until a competent inspection could reasonably have been made, but did

Statement of case.

not justify a neglect, to observe and remedy the defects when an inspection was made.

(Argued December 7, 1883; decided January 15, 1884.)

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order made April 8, 1882, which denied a motion for a new trial and directed judgment on a verdict.

This action was brought to recover damages for injuries. sustained by plaintiff while in defendant's employ as a brakeman, in consequence of the falling of a bridge, as a train, upon which plaintiff was, was passing over it.

The material facts are stated in the opinion.

James F. Gluck for appellant. Assuming that the bridge fell by reason of certain defects inherent in its original construction, and not the result of use, and which defects, therefore, existed prior to the time at which it came into the defendant's possession, it was error on the part of the court to submit to the jury that question as one, the affirmative answer to which would result in establishing negligence on the part of the defendant. (Devlin v. Smith, 89 N. Y. 470, 476.) The request to charge "that if the defendant employed competent and trustworthy agents to examine and take charge of this structure, who assumed to do so during the time that it was the owner of or occupied the bridge, the defendant is not liable," should not have been denied. (Wood's Master and Servant, §§ 346, 348, 368; Painton v. N. Cent. R'y Co., 83 N. Y. 7, 12.)

Adelbert Moot for respondent. The defendant was bound to furnish plaintiff with a reasonably safe bridge to pass over, and failing so to do, is liable. (Swords v. Edgar, 59 N. Y. 28; Shearman and Redfield on Negligence, §§ 93, 95; Davis v. C. V. R. R. Co., 55 Vt. 84; 27 Alb. L. J. 106.) While it is true the defendant did not construct this bridge originally, having purchased it of a company that built it, and put it in use, it

Opinion of the Court, per FINCH, J.

should be held to the same rule as if it had constructed it; it was the occupant of the bridge, and hence primarily liable. (Swords v. Edgar, 59 N. Y. 28; Ryan v. Wilson, 25 Alb. L. J. 175.) It was a clear case of imperfect and inadequate means and appliances and imperfect machinery. (Lansing v. N. Y. C. & H. R. R. R. Co., 49 N. Y. 521; 7 Lans. 70; Shearman and Redfield on Negligence, § 92.)

FINCH, J. The plaintiff was a brakeman in the employ of the defendant company, and was injured by the fall of the bridge at Ashtabula on the 29th of December, 1876. He has recovered a judgment for damages, which is now sought to be reversed, upon the ground that there was no sufficient proof of negligence to carry the case to the jury. The bridge was built of iron, and spanned a gulf leading inland from the lake, and growing narrower as it approached the point of crossing. It was a deck bridge, constructed upon what is known as the Howe truss plan, frequently applied in the building of wooden bridges, but apparently in this one instance alone, made wholly of iron. It was originally constructed in 1864, by the Cleveland, Painesville and Ashtabula Railroad Company, a predecessor of the present defendant. The history of its construction is not encouraging. The superstructure was planned by Amasa Stone, who appears to have had a large experience in the designing and construction of railroad bridges, and at the time was president of the company for which the bridge was to be erected. Stone, however, merely " directed the method of making the plans,' "" and the method of carrying it out," "in general terms through agents and practical employes." He employed one Tomlinson "to make the design and draft of the structure, and the specifications and details." With reference to his capacity, Stone says only that he had been in his employ for about fifteen years, 66 more or less in the erection of some bridges," and that he regarded him as competent to execute the work under his, Stone's," general directions." But Tomlinson evidently bungled his work, making the top chords too short, and planning to put in the braces with their webs hori

Opinion of the Court, per FINCH, J.

zontal instead of vertical; errors which so "annoyed" Stone that he "intimated to him that his resignation would be accepted, and put another man in charge." Who that was and what may have been his capacity we are not informed. These errors had to be corrected. In doing it, the top chords were elongated by inserting between their members thin plates of iron, called shim pieces, held in their places merely by the dead weight of the bridge and the loads upon it; the office of the top chords and braces under them being mainly to resist compression. When the position of the braces was altered, a few more were added, and this change compelled the chipping away of the lugs on the angle blocks in order to give the braces a fair bearing, and then some of them, crowded by the vertical rods, did not rest fully upon the angle blocks. The iron work for the bridge was done by Congdon, whose principal business appears to have been the construction and repair of locomotives, and who held the position of master mechanic.

The superstructure was put together and erected by one Rogers, who was a carpenter. The result which followed was not surprising. The bridge was put in its place and its members united by the aid of bents built up from the ground below, and when the blocks upon them were removed, the bridge sagged below a horizontal line. That occurred twice. The difficulty was sought to be remedied the first time by the lengthening of the top chords, which proved ineffectual, and the second time by the change in the braces. After that the top chords seem to have preserved their camber of two and one-half inches, and the bridge went into use, at first with a single track and later with a double track, and stood for about ten years, until its fall in 1876.

Upon all these questions of original plan and construction experts were examined. Their opinions differed, as is very common in such cases. But upon two things they agreed. Nobody disputed the mechanical axiom that the strength of a bridge is that of its weakest part, nor the rule of prudence that its factor of safety should have been five, when in truth it was only about three; that is, the bridge should have been SICKELS-VOL. XLIX.

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