Timothy was surety. But Timothy now claims that he was in fact surety, and that plaintiff knew this; and probably there is evidence to sustain this. He also claims that he told plaintiff, about three months after the note was made, that he must "make Daniel come to time this fall," and that since that time Daniel has become unable to pay. This kind of defense is one that should never be favored. It is not just. The surety has the remedy in his own hands. He can pay up the debt, as by its terms he has agreed to do, and can then sue this surety; so that, if he fears the insolvency of the surety, he has abundant remedy. The doctrine came into this state against opposition. The same judge of the court of appeals who stated it rather strongly in Colgrove v. Tallman, 67 N. Y. 95, said in Hunt v. Purdy, 82 N. Y. 486, that it was not a favorite, and is not to be applied with laxity. See, to the same effect, Newcomb v. Hale, 90 N. Y. 326. In Hunt v. Purdy, the court say, at least, that the notice to the creditor should clearly inform him that he is required to take proceedings in the courts. To the same effect is Machine Co. v. Farrington, 82 N. Y. 121, 131: "Explicit notice or request to the creditor to take legal proceedings to collect the debt." Here this case fails. The only

notice by Timothy to plaintiff is testified to by plaintiff himself: "You must make Daniel come to time this fall. You know it is the best time for mak

ing money with farmers." Now, this did not direct plaintiff to take legal proceedings. Timothy and Daniel were brothers. If Timothy wished plaintiff to sue Daniel at the peril of losing his claim on Timothy in case of neglect, he should have said so unequivocally. Very possibly, he did not wish to direct the plaintiff in express terms to sue, lest Daniel should blame him for so doing. The testimony above cited is all that is shown to have been said by Timothy. Plaintiff testifies that, to satisfy Timothy, he replied he would see Daniel about the note, and see what he had been trying to do; so that this reply does not indicate that the request of the plaintiff implied that legal proceedings were to be taken. A motion to set aside the verdict as against evidence was denied. The case has been argued on the supposition that appeal has been taken; and the case shows that it contains all the evidence. It seems to me, therefore, that there was not evidence to sustain the defense. Judgment and order reversed; new trial granted; costs to abide event.

INGALLS, J., concurs.

LANDON, J., (dissenting.) As the answer denied none of the allegations of the complaint, but set forth an affirmative defense, the defendant held the affirmative, and was entitled to open and close the case. The note was given April 1, 1881. The defendant Timothy Buckley signed it as surety for his brother Daniel. This seems to have been sufficiently shown. About three months after the date of the note, Timothy said to the plaintiff: "You must make Daniel come to time this fall. You know that it is the best time for making money with the farmers in the fall." The plaintiff, who testifies to this, also testifies: "I saw Dan a month or two after, and told him: 'I have to collect that note by Tim's orders, or take the consequences.'" The plaintiff did not make the objection upon the trial, which he urges here, that the demand made by Timothy of the plaintiff to proceed against Daniel was not a demand to take legal proceedings. If he had, possibly further testimony would have been given. Timothy did not testify at the trial. Besides, the plaintiff understood that he was to take legal proceedings if necessary. We do not think we ought to disturb the verdict upon this ground.

Plaintiff moved for a verdict upon the ground that there was no evidence showing that Daniel was not worth as much now as he ever was. It was incumbent upon the defendant to show that Daniel was solvent in the fall of 1881. The evidence is that he owned a farm of 70 acres, worth $60 per acre, incumbered by a mortgage of $2,500; “no other claim upon the farm." He

had cows, horses, and other property worth $446, making a total over the mortgage of $2,151. That he has no property now. He did not testify whether he then owed other debts besides the mortgage. He was not asked. Upon his cross-examination, he testified: "Question. Tell me where you have lost a dollar since then. Answer. In paying interest money, and raising my family. Q. If you paid interest money, it was on what you owed then? A. Yes, sir. Q. Then you did not lose it. A. No, sir. Q. You are worth a good deal less than you were in 1881? A. I have lost it paying debts." He also testified that he had incurred debts since 1881, and that he was not worth as much now as then; that he had a wife and family of 10 children. Now, it is true that he does not in terms say that he owed no other debts in 1881 than the mortgage, but from the statement he did make we think the jury were at liberty to find that he was solvent in 1881, and had since then consumed his property in paying the interest upon the mortgage, and in supporting his family. The question was fairly left to the jury, and we think the judgment must be affirmed.

TOBEY V. CITY OF HUDSON.

(Supreme Court, General Term, Third Department. July 2, 1888.) MUNICIPAL CORPORATIONS-INJURIES BY ICY STREETS-LIABILITY OF CITY.

In an action against a city for personal injuries, it appeared that the injured person fell on a ridge of old ice about two feet long and six inches wide, and frozen about two inches deep. There was evidence that the ridge had been on the sidewalk for several days. The evidence was conflicting as to whether there was a fall of snow, sleet, and rain on the day of the accident. Held, that a refusal to charge that if the jury believe that the sidewalks were made generally slippery on the evening of the accident by reason of a fall of sleet or snow that day, so that the sidewalk, at the place of the accident, would have been slippery without regard to the ice previously formed, defendant was not liable, was reversible error.1 Appeal from circuit court.

Action by Alida Tobey, as administratrix, against the city of Hudson, for personal injuries to plaintiff's decedent. Judgment for plaintiff. Defendant appeals.

Argued before LEARNED, P. J., and LANDON, J.

J. Ryder Cady, for appellant. Willard Peck, for respondent.

LEARNED, P. J. The principal questions raised in this case are whether the verdict was against the weight of evidence on the question of defendant's negligence, and whether there were errors in the charge. It is not to be questioned that a city may be liable for injuries occasioned by an accumulation of ice upon its sidewalks. So it is said in Kinney v. Troy, 108 N. Y. 567, 15 N. E. Rep. 728, on the authority of Todd v. Troy, 61 N. Y. 506. Such, too, was the doctrine of Pomfrey v. Saratoga, 104 N. Y. 459, 11 N. E. Rep. 43, and of Elgie v. Troy, 16 N. E. Rep. 681, affirming 37 Hun, 641. But in the Kinney Case the court seems to use the word "accumulation" as meaning a ridge or unevenness; for they say that, as the ice was all in one sheet, the plaintiff should have been nonsuited. In Kaveny v. Troy, 108 N. Y. 571, 15 N. E. Rep. 726, (decided at the same term,) the court were not willing to say whether the Todd Case should be followed to its full extent; and they remarked that

1A city is bound to exercise active vigilance to prevent and remove obstacles of a dangerous character from its highways, Kunz v. City of Troy, 1 N. Y. Supp. 596; but is not liable for injuries occasioned by the slippery condition of a sidewalk, when that condition was produced by smooth ice of recent formation, Kinney v. City of Troy, (N. Y.) 15 N. E. Rep. 728; although the ice upon which plaintiff slipped was formed by water dripping from a roof, Kaveny v. City of Troy, (N. Y.) 15 N. E. Rep. 726.

On the general subject of the liability of municipal corporations for injuries caused by defective streets and highways, and what is sufficient notice of such defects, see Birmingham v. McCrary, (Ala.) 4 South. Rep. 630, and cases cited in note.

They

snow could be removed without serious difficulty, but that ice from the drip of a roof was a different matter; that in severe winters it was difficult to remove it. And, having shown that the plaintiff might have fallen on ice formed by the drip of the roof, they held that it was not reasonable that the city should be required to remove it, and that the city was not liable. also held that the freezing of the night and next day before the accident could not have failed to form a new coating of ice; that this must have made a new coating over the ice which had been formed by the drip; that the city was not bound to remove that new coating; that the accident might have come from this natural cause, and plaintiff should have been nonsuited on that ground also. In Taylor v. Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642, sand and gravel had lain on the sidewalk, which fact tended to show negligence. On the night before the accident rain fell and froze, and the whole city was slippery. The plaintiff fell on the sloping ice which had formed on the sand and gravel. The court held the city not liable, because it was just as possible that plaintiff would have slipped if the place had been level. So far as can be ascertained, these cases show the present condition of the doctrine as to icy sidewalks; and we may also notice that in the case first cited the court said, "Something more than a slippery sidewalk must be shown." Now, inasmuch as there has never been any question that notice (or implied notice, so called) must be shown, the remark of the court did not apply to the necessity of showing notice. The court must have meant that the city, even with notice, would not be liable merely on the ground that the sidewalk was slippery. Why a city should be liable for damage caused by a ridge of ice, and not for that caused by a smooth piece of ice, we do not attempt to explain; but it seems to us quite evident from these recent cases that the court of appeals have seen that the logical deduction from earlier decisions was such that some distinction must be made to save cities from an intolerable liability,-a necessity suggested by this court in Foley v. Troy, 45 Hun, 396. There was evidence in this case tending to show that the deceased fell on old ice, rounded up in the centre, frozen “swash like;" depth two to two and one-half inches; rain and snow frozen together; a big chunk of ice, probably two feet long and six inches wide. These are expressions used by witnesses. There is evidence that this ridge had been there several days. There is a conflict of evidence on the question whether, on the day of the accident, there had been a fall of snow, sleet, and rain which had frozen, and had made the sidewalks generally slippery. In view of this evidence, the defendant asked the court to charge that if the jury believe that the sidewalks of the city were made generally slippery that evening of the accident by reason of a fall of sleet or snow that day, so that the sidewalk in front of Gray's would have been slippery without regard to the ice previously formed, the defendant was not liable, and the verdict must be for the defendant. The court declined so to charge, but left it, to the jury.

Now, in the Taylor Case and in the Kaveny Case we understand the court of appeals to hold substantially this: that if there has been an old obstruction, be it of sand or ice or snow, and if then there be a fall of sleet or rain which freezes, and makes everything slippery that it covers, including the old obstruction, and then if a person slips on the old obstruction, now covered with the newly-formed coating of ice, it cannot be said that the city was bound to remove this new coating; and also, in such a case, it is not right to assume that the person's fall was caused by the old obstruction, even though that was a possibly concurring cause; that the plaintiff must fail if he does not show that the accident was due to that cause for which defendant was responsible. Searles v. Railroad Co., 101 N. Y. 661, 5 N. E. Rep. 66. It seems to us that this request of the defendant was directed to the proposition thus established by the courts; and that the refusal to charge this, and the leaving the matter to the jury, justified them in finding a verdict for the plaintiff, even if they

were satisfied from the evidence that Gray's sidewalk would have been slippery owing to the sleet which fell that day, and without regard to the ice previously formed. We refer to the discussion in the opinion in the Taylor Case at pages 208, 209. Here we think there was error which may have prejudiced the defendant. The error is quite natural; for in the Todd Case there had been a recent fall of snow, although it does not appear that that fall had oecasioned a general slipperiness; and the remarks of the court in the Kaveny Case seem to indicate a willingness to limit the doctrine supposed to be established in the Todd Case. We have already, as above remarked, expressed the view that some limitation was becoming desirable. It seems to us that, by the refusal to charge as requested, the jury might have found that, without regard to the ice previously formed, the sidewalk might have been slippery; and that if it was thus slippery, and the deceased fell by reason of such slipperiness, the city might be liable. Here it seems to us comes in the distinction drawn by the court of appeals in the cases cited. Supposing that there had been, prior to the day of the accident, a “chunk” or ridge of snow and ice. If, on that day, sleet fell, covering that ridge, and the rest of the sidewalk in the city, with a slippery coating, how can it be determined that the ridge had anything to do with the fall of the deceased? As the court said in the Taylor Case: "It is quite possible that the slope of the walk had something to do with it. It is equally possible that it did not." If the sleet of that day covered the old ridge, then it may have been immaterial, as to the accident, whether that ridge was of a slippery material, like ice, or of a material not slippery, like sand. As it was covered with a coating of ice, one who slipped would slip on that ice; and that coating of ice was a recent deposit, for the failure to remove which the city could not be liable. If the jury had believed that, by that fall of sleet that day, the sidewalks, including that in front of Gray's, were made generally slippery, that slipperiness would have been "a sufficient certain and operating cause of the fall." There are some other requests bearing on the same general matter, which, perhaps, these recent decisions required the court to charge; but it is unnecessary to discuss them, since we think that the Taylor Case and the Kaveny Case made it the right of the defendant to have the charge given which we have discussed. Judgment and order reversed; new trial granted; costs to abide event.

KEANE v. VILLAGE OF WATERFORD.

(Supreme Court, General Term, Third Department. July 2, 1888.) MUNICIPAL CORPORATIONS-INJURIES BY ICY STREETS-INSTRUCTIONS.

Upon trial of an action against a village for injuries resulting from a fall on the sidewalk, caused by ice, there being a conflict of evidence as to the quantity of ice, and the length of time it had been on the walk, witnesses for defendant testifying that there was a thin film of ice that had frozen on the afternoon of the accident, it was prejudicial error to refuse to instruct that, if the ice had only been formed by rain or sleet that afternoon, the plaintiff could not recover.1

Appeal from circuit court.

Action by Ann Keane against the village of Waterford for injuries from negligence of defendant in failing to keep the sidewalk clear of ice. Verdict and judgment for plaintiff, and defendant appealed.

Argued before LEARNED, P. J., and INGALLS and LANDON, JJ.
N. C. Moak, for appellant. James W. Verbeck, for respondent.

INGALLS, J. We are satisfied that the learned justice at the circuit committed an error prejudicial to the defendant's case in refusing to charge, as

1See Tobey v. City of Hudson, ante, 180, and note.

requested by the defendant's counsel, the following proposition: "Defendant also requested the court to charge the jury that, if they should find that the ice on the sidewalk at the point in question was formed by sleet or rain the afternoon or evening of the day of the accident, the plaintiff cannot recover." The evidence in regard to the condition of the ice upon the sidewalk at the time of the casualty was very conflicting, and we think the defendant's theory at the trial, that the ice upon which the plaintiff fell was formed in the evening of the day on which she received the injury, was so far supported by the evidence adduced in support thereof that the jury would have been justified in so finding the fact, provided they credited the witnesses produced by the defendant. Ambrose K. Worthington testified as follows: "In the afternoon of the day that plaintiff fell, it was thawing, and just at night the sidewalk was all clear. I was busy at the bar, and my man had gone home. A gentleman came in, and said there was a lady just fell on your corner.' Inmediately after that, I observed the condition of that walk. I went out there. There was a very thin sheet of ice on the brick,-very thin, just like a wafer. There was no accumulation or bed of ice on that walk in front of my hotel, several inches thick. I know it, because we kept it clean. Mr. Snyder and myself did it. Sometimes I would find ice there, and I would put ashes on it. When it was slippery, and we could not get it off, we would use ashes on it. There was not at that time any such thing as three, four, or five inches of ice on that sidewalk. There was no such thing as a ridge of ice formed by the drip of the eaves on the walk. At that time there was not. We used to keep the gutter clean on the eaves of the stoop. There were tin leaders that went out over the sidewalk to discharge. We used to keep the gutters and leaders clean,-used hot water. When they were frozen up, Snyder would get up and clean them out. He didn't clean the sidewalk that day, because it was thawing, and didn't need it. We tried to keep it clean. Sometimes there would come a snow-storm during the night, and then we would put ashes on until we got it clear. There was no ice or snow on it. I don't remember whether it rained that day or not. I went went out after I heard of the accident, and found an enamel of ice on the brick. That is the first I knew it was freezing. It was thawing during the afternoon. I should not think that platform was over five inches above the brick. During that winter, up to the time of the accident, there was not at any time a bed of ice several inches thick along that walk that was allowed to remain there a day or two, or a week, or anything of that kind." The evidence of Snyder, Holton, and Galvin also strongly supports the defendant's theory in regard to the cause of the injury, and the freedom of the defendant from any charge of negligence in not keeping the sidewalk in question reasonably free from accumulation of ice.

Under the circumstances detailed by such witnesses, we think the defendant was entitled to the instruction to the jury which was requested and refused. Whether, upon all the evidence in the case, with the instruction given as requested, the jury would probably have reached a different conclusion, we cannot determine, and all speculation upon the subject would be useless; and, in view of another trial, it does not seem advisable further to discuss the evidence. The defendant's counsel, in making such request to charge, was at liberty to assume that the jury would credit the evidence which had been produced by the defendant, and would find the facts in accordance with the statement in such request, and would follow the direction of the court in regard to the law. Assuming the facts to be as stated in said request, and that the jury had so found them from the evidence, we are convinced that the defendant could not have been held liable, within the doctrine upon this subject as declared by the recent adjudications. Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642; Kaveny v. Troy, 15 N. E. Rep. 726; Kinney v. City of Troy, 15 N. E. Rep. 728; Muller v. Newburgh, 32 Hun, 24, affirmed by the court of