Therefore this matter reduces itself down to the contention that the plaintiff is the Republican leader of Albany county, and by reason of his great influence in that capacity will obtain an undue advantage in a trial in his own bailiwick. But he is also alleged to be the Rep blican leader in the state, and apparently he is no more the Republican leader in Albany county than in the state; perhaps not so much so, for, in order to have given his attention to the leadership of the state, he must necessarily have turned over to his lieutenants, to a great extent, the details of leadership in Albany county. Therefore, if his case cannot be tried in any place where he is Republican leader, it cannot be tried anywhere in the state of New York. Both these litigants have grown into proportions far beyond the limits of counties; their fame is wider even than the state-it is national. That a political leader of the stature of William Barnes is a man of tremendous power, wielding incalculable influence, may be admitted; but, unless we assume that the officials of Albany county are willing to lend themselves to the criminal debauchery of the jury system (a proposition which I do not assume, but reject), how can this power and influence of the plaintiff enter the jury box any more in Albany county than in any other county? That the plaintiff is widely acquainted and widely respected in his own county is not the question before us; it is the effect of his political influence that we are asked to consider. Because the Governor of the state is a man of great power and influence and owns a newspaper in Albany county, can he not, just because of these facts, lay the venue of an action in Albany county, the county where he resides, and retain it there? Are the rules of law applicable to the common citizen to be reversed when applied to men of great distinction? Does a person by becoming celebrated surrender the rights guaranteed. to him by the law? Surely not; and unless something more than surmise, suspicion, and innuendo is presented, the citizen who has become powerful and conspicuous should not be driven from his home to litigate, when he brings a suit to redress a wrong.

Cases have been cited to us where the venue has been ordered changed. But every case must stand upon its own merits. What has been done in other cases matters little here. Unless we have reason to believe that a fair trial cannot be had in this case in Albany county we cannot interfere. There is no such reason; there is only suspicion. But a citizen cannot be deprived of his rights on suspicion. If the determination in other cases is to influence us, recent instances where life and liberty were in the balance may be cited to show that the courts will not lightly change the place of trial. People v. Hyde, 149 App. Div. 131, 133 N. Y. Supp. 780; People v. Becker, unreported (see decision on appeal, 210 N. Y. 274, 104 N. E. 396). In the Becker Case the defendant moved before the trial judge for a change of the place of trial; but the motion was denied by the distinguished jurist who has since that time been elevated to the bench of the Court of Appeals. In that case the atmosphere was said to be charged and surcharged with opposition to the defendant. The trial attracted more attention than any other court event of modern times. The metropolitan newspapers were filled with accounts of the

case before the trial began. They freely discussed its merits. Not only the liberty, but the life, of the defendant were there at stake. However, in that case it was adjudged that the defendant could have a fair trial in New York county. And, if precedent counts for anything, our own court, by a recent unanimous decision, in a case somewhat similar to this, is committed in opposition to a change of the place of trial. Noonan v. Luther, 128 App. Div. 673, 112 N. Y. Supp. 898. In this case the court, in refusing to change the place of trial, said: "It [the record] shows an extensive acquaintance by the defendant, and business and political prominence and activity on his part, and also professional and political prominence of his attorneys. These facts are insufficient to justify the order. Lent v. Ryder, 47 App. Div. 415 [62 N. Y. Supp. 400]; Weiant v. Rockland Lake Trap Rock Co., 74 App. Div. 24 [76 N. Y. Supp. 699]. Juries are not likely to be influenced by such unworthy considerations. The learned justice at Special Term based his order largely on the fact that the action has attracted wide attention and has been largely discussed, and that its history at Trial Terms and on appeal had been given wide publication by the newspapers of the county.”

On account of the great pre-eminence of the litigants in this suit, no case can be found just parallel to the one before us; but in some respects, particularly in the matter of political prominence and newspaper discussion, the opinion of this court from which I have just quoted deals with the questions presented here.

If this motion had come to us from a private citizen, as the motion. did in Noonan v. Luther, there might not have been any hesitation in refusing to change the place of trial. However, in its anxiety to do exact justice to the distinguished defendant in this suit, and avoid even a "suspicion" that he is being denied a fair trial, a majority of this court has ordered the venue changed. But all men stand alike before the law; the great and the obscure, the rich and the impecunious, the statesman and the layman. The courts should not tremble before the great; neither should the fear of criticism cause justice to falter. Unless we would change this venue on the application of the most lowly citizen, we ought not to change it on the motion of Theodore Roosevelt.

The learned Special Term justice exercised his discretion wisely, and his order should be affirmed.

Order reversed, with $10 costs and disbursements, and place of trial changed to Onondaga county.

PEOPLE ex rel. TOWN OF HEMPSTEAD et al. v. STATE BOARD OF

TAX COM'RS et al.

(Supreme Court, Appellate Division, Third Department. November 25, 1914.) 1. TAXATION (§ 450*)-EQUALIZATION-REVIEW BY CERTIORARI-MANDATE.

Under Code Civ. Proc. § 2141, providing, relative to the writ of certiorari to review the determination of an inferior tribunal, that the court upon the hearing may make a final order annulling or confirming, wholly or partly, or modifying, the determination reviewed, and Tax Law (Consol. Laws, c. 60) § 177, providing, relative to appeals to the state board of tax commissioners from the equalization of assessments by a For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

board of supervisors, that the board of tax commissioners shall certify their determination to the board of supervisors, and that such determination shall be carried into effect by the board of supervisors at its next annual session, on certiorari to review a determination of the state board of tax commissioners, dismissing an appeal by one of the towns in a county from an equalization by the board of supervisors, the Appellate Division, having determined that the equalization was erroneous, had power to modify the determination of the board of tax commissioners and direct the determination which the board should have directed.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*]

2. TAXATION (§ 450*)-EQUALIZATION-REVIEW BY CERTIORARI-MANDATE.

Where, on certiorari by one of the towns in a county to review the determination of the state board of tax commissioners, dismissing an appeal from an equalization of assessments by a board of supervisors, it was determined that the equalization was erroneous, the mandate would require the board of supervisors at its next annual session to levy upon the other towns of the county such sum as would make full restitution to the relator for the excess of taxes collected on its property, with interest.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*]

3. TAXATION (§ 450*)-EQUALIZATION-ERRONEOUS EQUALIZATION-CREDITING TAXES COLLECTED.

Of the taxes collected upon an assessment after a determination by the Appellate Division that the equalization of assessments was erroneous, and that one of the towns of the county would thereby be required to pay more than its share of the taxes, such part as represented this excess should be credited by the county treasurer to such town.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 800-804; Dec. Dig. § 450.*]

On motion for settlement of order and for judgment of restitution. Order in accordance with the opinion.

For former opinion, annulling the determination of the State Board of Tax Commissioners, see 163 App. Div. 803, 149 N. Y. Supp. 239. Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Alfred T. Davison, of Brooklyn, for relators.

James L. Dowsey, of New York City, for respondent Town of North Hempstead.

Uterhart & Graham, of New York City, for respondent Town of Oyster Bay.

James R. Parsons, Atty. Gen., for State Board of Tax Com'rs.

PER CURIAM. [1-3] We are of opinion that this court has power, under section 2141 of the Code of Civil Procedure, to modify the determination of the state board of tax commissioners and direct the determination which that board should have directed. It cannot be known to the court the exact amount of excess taxes which have in fact been collected. The order of this court should therefore remit to the board of supervisors of Nassau county the percentage at which the assessed value of the real property in the town of Hempstead bore to its full value, and under section 177 of the Tax Law the board of supervisors is required to carry into effect this determination.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

This mandate requires the board at its next annual session to levy upon the towns of North Hempstead and Oyster Bay such sum as will make full restitution to the town of Hempstead for the excess of taxes which have been collected, with interest from the 19th day of July, 1912. People ex rel. Am. Ex. Nat. Bank v. Purdy, 199 N. Y. 51, 92 N. E. 232. Of the taxes hereafter collected upon the assessment of 1911, such part thereof as represents such excess must be credited by the county treasurer to the town of Hempstead.

The $3,000, ordered paid by the town of Hempstead, should be paid to the attorney of appellant herein, and is to be coilected from the towns of North Hempstead and Oyster Bay.

The order may be settled before SMITH, P. J.

(164 App. Div. 642)

KEITH V. PAYNE. (No. 253/97.)

(Supreme Court, Appellate Division, Third Department. November 25, 1914.) 1. ELECTRICITY (§ 16*)—LIABILITY FOR INJURIES-LICENSEES.

The leaving of a wire, charged with a strong current of electricity, suspended in such a way that it was only four or five feet from the ground, where it crossed a vacant lot, was such gross negligence as to render the company liable for injuries thereby occasioned, even to a mere licensee. [Ed. Note. For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.*]

2. ELECTRICITY (§ 19*)-ACTIONS FOR INJURIES-EVIDENCE-CONTRIBUTORY NEGLIGENCE.

In an action for injuries received by plaintiff while inspecting an electric wire, left suspended a short distance above a vacant lot adjoining his home, to see whether it was insulated so as not to be dangerous to his children, and who came in contact with the wire in an unknown manner, evidence held not to show contributory negligence as a matter of law. [Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]

Kellogg and Howard, JJ., dissenting.

Appeal from Trial Term, Essex County.

Action by Erwin A. Keith against Daniel F. Payne. From a judgment dismissing the complaint upon a jury trial, plaintiff appeals. Reversed, and new trial granted.

See, also, 158 App. Div. 909, 143 N. Y. Supp. 1124.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Frederick E. Bowen, of Troy (Owen D. Connolly, of Troy, and H. P. Humphrey, of Troy, on the brief), for appellant.

Stokes & Owen, of Port Henry (Harry E. Owen, of Port Henry, of counsel), for respondent.

SMITH, P. J. The defendant operated an electric lighting plant at Wadhams. The current was carried from Westport by means of wires. At Westport the plaintiff rented a house and lot of Mr. Sullivan, back of which was an open field owned by Sullivan, over which *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the defendant had a right of way one rod wide for its wires and access thereto.

On June 15, 1912, the defendant's servants were at work upon the line, moving the transformer house, and at 6 o'clock, when they were ready to quit work for the day, the wire was suspended from an arm on the transformer house to a pole in its right of way, about 154 feet distant, and sagged so that at its lowest point it was within 4 or 5 feet of the ground. The wire was used for day and night service, and frequently the plaintiff's little children went beyond the yard and garden spot upon the other premises of Sullivan in the neighborhood of the electric wires. When the plaintiff returned from his work, his wife informed him that the wires were lower than usual, and to go there and see if they were insulated, because she was afraid the children would get hold of them. He went to the wires for that purpose about 7:30 or 8 p. m., and when about 10 feet from the wires saw them. It was growing dark. He says: "It was quite light, and still it was not full light." He leaned down to go under them, and that was the last he knew until he found himself upon the ground, with one hand against the wire, one leg up, and in his hand, and he was severely burned in several places. He had lived in the house for three months, and in the immediate vicinity a longer time. He understood the line carried the power from Westport to Wadhams, and supposed that electricity coming over the wire was dangerous. He was asked:

"There was danger to be apprehended to a person coming in contact with this electric wire? A. Yes, sir. Q. And that is the reason why you stooped, I suppose, to get under that first wire, wasn't it? You didn't want to come in contact with those wires, did you? A. No, sir."

He says he did not know the power was furnished over the wires during the daytime as well as the night. He says lights were lit in the agent's office in the morning and early in the evening. He does not say that he understood or believed that power was not upon the wires.

He was about 30 years of age, 6 feet 21⁄2 inches high, and was baggageman at the railroad station in the immediate vicinity. After the accident he found a small spot on the wire not insulated, near where his hand was. He swore on direct examination that he noticed a wire coiled up on the transformer house, and said it was before the accident. On cross-examination the court asked the question:

"You said something about having seen a coil of wire some place that night. Where did you see that? A. On the transformer house. Q. A coil hanging there? A. Yes, sir. Q. Was that the transformer house, after it had been moved? A. Yes, sir. Q. And you saw that when? A. After I got hurt. Q. You had not seen it before? A. No, sir."

[1] It was not unreasonable that persons might pass across the unfenced lands of Mr. Sullivan and go under the wires of the company, and when it left its wires conveying a deadly current within 4 or 5 feet of the ground upon those unfenced premises, without any warning, it was an act of gross negligence.

Even assuming that plaintiff was a mere licensee, the danger was so