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    In the Matter of the Application of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extension of Northern Boulevard in the Borough of Queens. Christian Reis, Appellant; Margaret Mahoney et al., Respondents.

      (Argued December 1, 1931;
    decided January 5, 1932.)

      Rodman Richardson for Christian Reis, appellant.

      Arthur J. W. Hilly, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for City of New York, appellant and respondent.
    The damage parcels have been burdened with private easements of fight, air and access. (Matter of City of New York [Johnson Ave.], 135 App. Div. 630; 198 N. Y. 505; Matter of City of New York [Edgewater Road], 138 App. Div. 203; 199 N. Y. 560; Lord v. Atkins, 138 N. Y. 184; Hennessy v. Murdock, 137 N. Y. 317; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Taylor v. Hopper, 62 N. Y. 649; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Matter of Adams, 141 N. Y. 297; Matter of City of New York [West 177th St.], 135 App. Div. 520; 145 App. Div. 918; 203 N. Y. 570; Matter of Village of Olean v. Steyner, 135 N. Y. 341; Matter of Mayor of New York, 114 App. Div. 912; 188 N. Y. 581.) Certain of the damage parcels being burdened with private easements of light, air and access awards representing the fee subject to such easements should have been made therefor instead of full unincumbered fee value awards. (Matter of City of New York [Edgewater Road], 138 App. Div. 203; 199 N. Y. 560; Matter of City of New York [Roosevelt Ave.], 186 App. Div. 457; Matter of City of New York [Decatur St.], 196 N. Y. 286; 133 App. Div. 321; Matter of Schneider, 136 App. Div. 444; 199 N. Y. 581; 173 App. Div. 709; 223 N. Y. 566; 248 U. S. 275; Matter of Hamburger, 165 App. Div. 526; 216 N. Y. 643; Matter of City of New York [Titus St.], 152 App. Div. 752; Matter of City of New York [Carroll St.], 137 App. Div. 39; City of Buffalo v. Pratt, 131 N. Y. 293; Matter of City of New York [West 177th St.], 135 App. Div. 520; 145 App. Div. 918; 203 N. Y. 570; Matter of City of New York [Johnson Ave.], 135 App. Div. 630; 198 N. Y. 505; Matter of City of New York [Grand Boulevard], 160 App. Div. 80; 212 N. Y. 538.) The instrument executed by the claimants herein, purporting to release the easements of light, air and access in, to and over certain damage parcels, is ineffectual to extinguish such easements created by grant in their favor by their common grantor. (Matter of Department of Public Parks, 53 Hun, 556; Bridges v. Wyckoff, 67 N. Y. 130; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; People v. Kellogg, 67 Hun, 546.) The agreement purporting to release and extinguish the easements of light, air and access created by grant was not made and entered into in good faith but was made during the pendency of the proceeding and solely and purposely for the proceeding and to enhance the damages to be made herein for certain parcels and to mulct the city, its taxpayers and the persons assessed in the proceeding. (Matter of City of New York [Briggs Ave.], 196 N. Y. 255; Matter of City of New York [Hawkstone St.], 137 App. Div. 630; 199 N. Y. 567; 2 Lewis on Eminent Domain [3d ed.], 888, 889; Matter of Department of Public Parks, 53 Hun, 556; Bridges v. Wyckoff, 67 N. Y. 130; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438.) The exchange of quitclaim deeds purporting to release and extinguish the easements of light, air and access created by grant in, to and over certain damage parcels did not have the effect of releasing and extinguishing such easements. (2 Lewis on Eminent Domain [3d ed.], 888, 889; Matter of Department of Public Parks, 53 Hun, 56; Bridges v. Wyckoff, 67 N. Y. 130; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; People v. Kellogg, 67 Hun, 546.) The quitclaim deeds purporting to release and extinguish the easements of light, air and access, which were created by grant, were not made and entered into in good faith but were made during the pend-ency of the proceeding and solely and purposely for the proceeding and to unjustly enhance the damages to be made herein for certain parcels and to unjustly enrich themselves at the expense of the city, its taxpayers and the owners of land assessed in the proceeding. (Matter of City of New York [Briggs Ave.], 196 N. Y. 255; Matter of City of New York [Hawkstone St.], 137 App. Div. 630; 199 N. Y. 567; 2 Lewis on Eminent Domain [3d ed.], 888, 889; Matter of Department of Public Parks, 53 Hun, 556; Bridges v. Wyckoff, 67 N. Y. 130; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; People v. Kellogg, 67 Hun, 546.) The appeal of Reis has not been perfected by the filing and service of an undertaking as required by section 593 of the Civil Practice Act, and the city of New York has not waived its right to such an undertaking. (Zolezzi v. Massachusetts Banking & Ins. Co., 251 N. Y. 540.)

      Charles Lamb for Margaret Mahony et al., respondents.
    The filing of a property map, pursuant to section 1540 of the New York City Charter, and section 334 of the Real Property Law, does not constitute a dedication and acceptance of the land for street purposes. (Matter of City of New York [East 177th St.], 239 N. Y. 119.) The damage parcels of claimants were not burdened with private easements at the time title vested in the city of New York. (Matter of City of New York [East 177th St.], 239 N. Y. 119.)

      Thomas P. de Graffenreid for Michael Iorio et al., respondents.
    There were no easements. (Matter of Brook Avenue, 40 App. Div. 519; Matter of 116th Street, 1 App. Div. 436; United States v. Appleton, 1 Sumn. 500; Matter of City of New York [West 177th St.], 135 App. Div. 523; Matter of City of New York [East 177th St.], 239 N. Y. 119; Reis v. City of New York, 188 N. Y. 58; Drabinsky v. Sea Gate Assn., 239 N. Y. 321; Biggs v. Sea Gate Assn., 211 N. Y. 482.) If there were easements, they were entirely extinguished by the deed of release and extinguishment. (Drabinsky v. Sea Gate Assn., 239 N. Y. 321; Matter of City of New York [East 177th St.], 239 N. Y. 119; Reis v. City of New York, 188 N. Y. 58; Gates v. De La Mare, 142 N. Y. 307; Matter of Sea Beach Ry. Co., 148 N. Y. Supp. 1080; 121 App. Div. 907; 196 N. Y. 533; Woolf v. Leicester Realty Co., 134 App. Div. 484; Bolton v. Seamen’s Bank, 99 App. Div. 581; Terry v. Marx Realty & Improvement Co., 130 Misc. Rep. 406; Utter v. Richmond, 112 N. Y. 610.)

      Henry Herz for Thomas Cavanagh et al., respondents.
    The approval of maps by the Board of Estimate and Apportionment and the filing thereof "did not constitute an acceptance of the offer of dedication, and no public easements existed as an incumbrance on claimants’ property at the time of vesting of title. (Matter of City of New York [East 177th St.], 239 N. Y. 119; Matter of Adams, 141 N. Y. 297; Matter of Village of Olean v. Steyner,
      135 N. Y. 341; Matter of City of New York [Ave. D], 200 N. Y. 536; Foster v. Scott, 136 N. Y. 577; Matter of Rhinelander, 68 N. Y. 105.) The damage parcels of claimants were not subject to either public or private easements on the date of vesting of title. Easements, if any, existing by reason of filing of map and sales of lots, having been released by agreement of owners of property in block abutting on damage parcels, claimants were entitled to unincumbered fee value thereof. (Biggs v. Sea Gate Assn., 211 N. Y. 482; Drabinsky v. Sea Gate Assn., 239 N. Y. 321; Matter of City of New York [East 177th St.], 239 N. Y. 119; Reis v. City of New York, 188 N. Y. 58; Gates v. De La Mare, 142 N. Y. 307; Utter v. Richmond, 112 N. Y. 610; Matter of Sea Beach Ry. Co., 121 App. Div. 907; 196 N. Y. 533; Trustees Can. Academy v. McKechnie, 90 N. Y. 618; Matter of Van Etten v. City of New York, 226 N. Y. 483; Matter of City of Rochester, 208 N. Y. 188; Matter of City of New York [Titus St.], 139 App. Div. 238; Snell v. Levitt, 110 N. Y. 595; Matter of City of New York [Ludlow Ave.], 164 App. Div. 839; Andrews v. Cohen, 221 N. Y. 148; Naccash v. Hildansid Realty Corp., 140 Misc. Rep. 730; Lathrop v. Tytle, 84 Misc. Rep. 161; Fritz v. Thompkins, 18 Misc. Rep. 514; 168 N. Y. 524.)

      Nathan L. Goldstein, George Schenker and Irving S. Dorf for Hubert B. Stokes, respondent.
    The damage parcel of claimant is not burdened with easements of light, air and access. (Lord v. Atkins, 138 N. Y. 184; Reis v. City of New York, 188 N. Y. 58; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Matter of City of New York [Roosevelt Ave.], 186 App. Div. 457; Matter of City of New York [East 177th St.], 239 N. Y. 119; Matter of City of New York [64th St.], 183 App. Div. 708; Matter of Adams, 141 N. Y. 297; Weeks v. N. Y. W. & B. Ry. Co., 207 N. Y. 190; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; New York Investors, Inc., v. Manhattan Beach Bathing Parks Corp., 229 App. Div. 593; 256 N. Y. 162.)

      Millard F. Kuh for Rosewill Realty Corporation et al., respondents.
    Land burdened with private easements and in the same ownership as that of the abutting property is entitled to a substantial award for damages when taken in a condemnation proceeding. (City of Buffalo v. Pratt, 131 N. Y. 293; Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438.) Damage parcels of claimants were not dedicated to the public for street use. (Matter of City of New York [East 177th St.], 239 N. Y. 119; Matter of City of New York [Wallace Ave.], 222 N. Y. 139.)

      Leffert Holz and Benjamin F. Schreiber for Irving Estates, Inc., respondent.
    The damage parcel of claimant was never dedicated by the owners or accepted by the city for street purposes, nor were any public easements created over the parcel. (Matter of City of New York [East 177th St.], 239 N. Y. 119.)

      Max Schoengold and Abraham Greenberg for Hulong Enterprises, Inc., respondent.

      Eugene V. Daly for Addie E. Gibbons et al., amici curiœ.

    No dedication or grant of either public or private easements is shown and none may be inferred. (Matter of City of New York [East 177th St.], 239 N. Y. 119; Matter of West 172d St., 171 App. Div. 242; Matter of Brook Ave., 40 App. Div. 519; 161 N. Y. 622; Matter of Hunter, 163 N. Y. 548; City of Buffalo v. Pratt, 131 N. Y. 293.)

      Rodman Richardson for Louis Reis, amicus curiœ.

    The proceeding to condemn is in subordination to and recognition of the legal title, and the filing of the Broadburne map two years after the beginning of the proceeding conferred no easement or right on the city, the public or other owners on said map. (Matter of City of New York [East 177th St.], 239 N. Y. 119; Matter of Brook Ave., 40 App. Div. 519; Matter of City of New York [East River

      Park], 184 App. Div. 509; Nichols Copper Co. v. Connolly, 208 App. Div. 676.)

      H. Stewart McKnight, County Attorney (Robert W. Duvall and Charles E. Clarke of counsel), for Nassau County, amicus curiœ.

    The owner of land condemned by a city for street purposes over which easements of light, air and access exist is entitled only to a nominal sum. (Matter of City of New York [Johnson Ave.], 135 App. Div. 630; 198 N. Y. 505; Matter of City of New York [Edgewater Road], 138 App. Div. 203; 199 N. Y. 560; Lord v. Atkins, 138 N. Y. 184; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Reis v. City of New York, 188 N. Y. 58; Taylor v. Hopper, 62 N. Y. 649; Wyman v. New York, 11 Wend. 486; Finelite v. Sinnot, 125 N. Y. 683; Peoria G. & E. Co. v. Dunbar, 234 Ill. 502; Masterson v. Munro, 105 Col. 431; 2 Devlin on Deeds, §§ 1020, 1020-a; Bridges v. Wyckoff, 67 N. Y. 130; Matter of Department of Public Parks, 53 Hun, 556; 2 Lewis on Eminent Domain [3d ed.], 888, 889.) If a filed property map shows the street to the width proposed in the widening, and conveyances are made therefrom, the grantee has easements of light, air and access over the entire width of the street to the next intersecting street on each side of the lot purchased. (Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Matter of City of New York [Ave. D], 200 N. Y. 536.)
   Cardozo, Ch. J.

The proceeding is one for the opening and extending of Northern boulevard as laid out on the final map of the borough of Queens, city of New York.

The resolution authorizing the acquisition of title for the purpose of the boulevard was adopted by the Board of Estimate and Apportionment June 16, 1922. A petition for an order to ascertain and determine the compensation to be made to property owners was submitted to the Supreme Court in April, 1923. The trial of the proceeding was begun before a justice of the Supreme Court in December, 1926. A tentative decree determining the damages was filed in May, 1928, and a final decree in January, 1929. Title to the damage parcels became vested in the city June 1, 1927.

Northern boulevard as opened in this proceeding is an enlargement of a highway known as Old Broadway which was fifty feet wide. The damage parcel map shows that the street formerly existing was to be widened fifty feet by taking that space away from the abutting lots. The result was to be a boulevard 100 feet in width. The city does not deny that compensation would have been payable for the full value of the new width if title thereto had been acquired when the proceeding was begun. Its chief objection to the award grows out of the filing of private maps and the delivery of conveyances during the pendency of the proceeding whereby the compensation payable at the beginning is said to have been changed. The argument is that by force of these instruments, the land appropriated by the city became incumbered with private easements and that owing to the easements thus created the value was so reduced as to be rendered almost nominal.

The damage parcels in controversy divide themselves into two classes: those covered by private maps upon which the lines of Northern boulevard are provisional and tentative, or may fairly be so considered in the light of the then existing circumstances, and those where the fines of Northern boulevard are unqualified and final.

The O’Donnell map, filed in March, 1924, the DooleyStapleton map, filed in 1925, the Firma Realty map, filed in 1925, and the Andrew Benson map, filed in 1923, fall within the one class. The Broadburne map, filed in 1924, and the Lewis & Thompson map, filed in 1926, fall within the other.

The situation in respect of each class will be considered Separately.

(1) For purposes of illustration, we begin with the O’Donnell map and the group of damage parcels covered thereby.

In March, 1924, while this proceeding was under way, William D. O’Donnell laid out his land upon a map, and subdivided it into lots. On this map he marked the lines of Northern boulevard according to its new dimensions and also the earlier lines which were those of Old Broadway. From time to time thereafter he made sales of the land so mapped and subdivided, identifying the lots by their numbers on the map. If the lateral lines were to be projected to the line of Old Broadway, the depth of each lot would be approximately 150 feet. If the lateral lines ended with the boulevard, the depth was 100 feet only. The intervening space had none of the physical aspects of a street when the lots were put up for sale and conveyances were made. It was covered with trees and boulders. The seller was well aware, and so too were the buyers, that proceedings to open it as a street had been begun by the city, and were going forward in due course. No one, however, is likely to have had any notion that if the city changed its mind and decided to confine Old Broadway to the original dimensions, there would still be a private street for these particular blocks wider than the public highway through the rest of its extension. Sparse the descriptions doubtless are and to some extent ambiguous. Even so, the city does not deny that they were adequate to pass to the grantees of the abutting lots the naked fee, if nothing more, of the space of land intervening between the old lines and the new. All that the city claims is this, that the grantees, in taking title to the fee, took it charged with private easements for the benefit of other buyers, the owners of the other lots laid down upon the map. The existence of these easements, it is argued, reduced to Such an extent the value of the fee that as matter of law the awards must be held to be excessive, since the evidence makes it clear that they could have been little, if any, higher if the fee were unincumbered (Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438).

The question is whether the buyers of these lots, taking title during the pendency of the proceeding to open the boulevard as a public highway, may reasonably be assumed to have covenanted that if the proceeding was not continued, they would keep the boulevard open as a private street to the extent of its entire width, the consequence of such a covenant being to destroy their claims to compensation for the appropriation of the fee.

We have no thought to impair the authority of the principle repeatedly declared that the owner of a tract who lays out streets upon a map and sells the subdivided lots with reference thereto, may be found by implication to have created private easements in favor of the lot owners upon the streets thus declared to be created for their use (Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438; Lord v. Atkins, 138 N. Y. 184, 190; Taylor v. Hopper, 62 N. Y. 649). Even so, the question is one of intention, to be answered, like questions of intention generally, in the light of all the circumstances (Matter of Brook Ave., 40 App. Div. 519, 522; affd. on opinion below, 161 N. Y. 622; Schonleben v. Swain, 130 App. Div. 521, 527; 198 N. Y. 621; Matter of City of New York [Van Alst Ave.], 143 App. Div. 564, 568; Matter of City of New York [West 177th St.], 135 App. Div. 520, 524; Matter of City of New York [Austin Place], 125 App. Div. 821; Smith v. Smith, 120 App. Div. 278, 284; Matter of 116th St., 1 App. Div. 436, 439; United States v. Sumner, 1 Sumn. 500; Underwood v. Stuyvesant, 19 Johns. 181; Matter of Mercer St., 4 Cow. 542; Neely v. Philadelphia, 212 Penn. St. 551, 557). “ Whether a grant of an easement arises from implication in a grant of real estate, depends upon the intent of the parties to the grant; and in construing the grant the court will take into consideration the circumstances attending the transaction, the particular sitúation of the parties, the state of the country and the state of the thing granted, for the purpose of ascertaining the intention of the parties ” (Matter of Brook Ave., supra). A reference to a street or avenue may in one set of circumstances amount to the creation of an easement, and in another may have no other object than description or location.

When the map of the O’Donnell tract is viewed in the setting of the occasion, the lines of Northern boulevard and Old Broadway will be seen to have been set down thereon for description and location and not for the purpose of establishing a private street. There was no sense in indicating the dimensions of Old Broadway as well as those of Northern boulevard, if the purpose was to indicate a covenant that apart from the outcome of the proceeding then pending, the boulevard would be kept open in any event to the extent of its projected width. The meaning was merely this: that the lines of the public street and the boundaries of the .lots will be the lines of the new boulevard, if the widening proceeding goes to a decree, and if it does not go to a decree, that the lots will extend to the line of Old Broadway, the highway already in existence through dedication and acceptance (Underwood v. Stuyvesant, supra). Any other interpretation would lead to consequences too harsh to be accepted by a court except under the pressure of manifest compulsion. At the beginning of the proceeding the owners of the land intervening between the old and the new highway had a valid claim against the city for the full value of the land condemned, or would have such a claim as soon as title passed. If the filing of the maps while the proceedings were under way has had the effect of converting this land into the bed of a private street, the owners have made a gift to the city of nearly the whole value of a third of what they owned. They have reduced by a third the depth of all the lots and have done this without the possibility of requital to themselves or their grantees. They cannot gather in the value to their own use, for, by hypothesis, any fee they might have retained after the conveyance of the abutting lots would have been the naked fee only, a thing that would be worth a dollar and no more. They cannot pass over to the buyers of the lots the right to an award of the unincumbered fee, for by hypothesis they were placing incumbrances on the fee and destroying most of its value in the very act of sale. Possible, of course, it is that owners would do these very things. The result might have come to pass through mistake or inadvertence. None the less, the maps and the conveyances may not fairly be read as effecting that result if there is room for another construction more consonant with reason. The city had begun a proceeding to condemn the land and pay for it. Only under the pressure of manifest compulsion will a court impute to the owners a purpose to give the land away.

The reasons are not obscure why the private maps in question, filed as they were during the pendency of the proceeding, should have taken such a form. Section 334 of the Real Property Law (Cons. Laws, ch. 50), in force at that time, forbade the sale of lots by reference to a map, unless the maps were filed. Section 1540 of the charter of the city (Laws of 1901, ch. 466, as amd. by Laws of 1916, ch. 513) forbade the filing of a map without the consent and approval of the municipal authorities. The effect of these statutes was considered by this court in Matter of City of New York (East 177th Street) (239 N. Y. 119). If the streets and avenues on the maps prepared by the landowners did not correspond with those on the final map of the city, the consent and approval of the municipal authorities would probably be withheld. The landowners knew that proceedings to open the new avenue were pending, and that there was only a most remote possibility that they would be discontinued or abandoned. So the map was made to show the fines of the new street or avenue and those of the old one also. If the new street was opened, the boundaries of the lots would be limited thereby, though compensation for the space-, appropriated would be due to the abutting owners. If the new street was abandoned, the lots would be bounded by the old one. To say that there was a purpose, irrespective of the action of the city, to widen Old Broadway by creating a private street or road beside it and parallel thereto, is to fly in the face of common sense and reason. Municipal authorities are not at liberty to be generous, but they are under a duty to be just.

We think our present ruling is not at variance with what was decided in Matter of City of New York (Sedgwick Avenue) (162 App. Div. 236; 213 N. Y. 438), pressed upon us by the appellant as a controlling precedent. There, as here, the private map was filed during the pendency of the proceeding. It differed, however, in its form from the maps in this proceeding which we have grouped together as those of the first class. The difference is this, that in the map considered in the earlier case, the new avenue was described according to its new dimensions without anything to warn a buyer that they were provisional or tentative. In this situation there was nothing to do except to confirm the implication of private easements in favor of the lot owners, since there was nothing in the conveyances or in any circumstances exhibited by the record to give notice or even suggestion that less was meant to pass. The ruling there made is not to be extended to a case where on the face of the map, as well as in the circumstances, the signs and tokens are many that the lines of the street are those of a municipal project and not of private covenant.

What we have said will apply with unimportant variations to all the maps we have classified as provisional or tentative. Our conclusion as to all is fortified in the case of the O’Donnell and Firma maps by special considerations not applicable to the others. Some of the owners who had bought from the maps exchanged releases with one another, extinguishing any easements that might otherwise have existed. These releases were executed in March, 1927, after the trial had been begun, but before title had vested in the city and before the tentative decree. They were not made in bad faith with a purpose to enhance the compensation payable by the city beyond reason and justice (Matter of City of New York [Briggs Ave.], 196 N. Y. 255). They were made in a legitimate effort to forestall a technical construction of the deeds whereby the constitutional pledge of just compensation was in danger of being frittered away. Dominion over the land, exerted for such a purpose, continued to be legitimate until condemnation was complete.

(2) We pass to the consideration of the second group of damage parcels, those covered by the Broadburne and the Lewis & Thompson maps.

No substantial distinction can be perceived between the case for these lots and the case for the lots in the opening of Bailey avenue (Matter of City of New York [Sedgwick Ave.], supra).

When we examine the Broadburne map, we find nothing to suggest that the lines of Northern boulevard as there laid down are provisional or tentative. In the conveyances made with reference to that map, the point of beginning is stated to be at the southerly side of Northern boulevard, which is thus recognized as an existing street. Nowhere is there notice to a purchaser that the existence of the boulevard for the width of 100 feet is dependent upon any future action of the municipal authorities. Indeed, the conveyances include the right, title and interest of the grantor in the boulevard to the center thereof, which again is a representation that the street has been definitively laid out and is more than a mere project.

In the Lewis & Thompson map there is the same appearance of finality. The conveyances with reference thereto identify the lots by numbers as laid out upon the map, and have, therefore, whatever finality belongs to the map itself.

We conclude that under the authority of Matter of City of New York (Sedgwick Avenue) (supra), the awards to be made to owners of these lots must be less than the value of an unincumbered fee.

There is a distinction, sometimes overlooked, between the ownership of the fee of a street subject to the usual easements when the owner of the fee so burdened is also the owner of the abutting lots, and the ownership of such a fee by one who has no title to the lots. In the first case, the loss sustained by the appropriation of the fee, even though the fee be .subject to the easements, is something more than nominal. An abutting owner is benefited by retaining for himself the fee of a contiguous street, for in so doing he retains control over subsurface uses to which the street might otherwise be put (City of Buffalo v. Pratt, 131 N. Y. 293; Matter of City of New York [Sedgwick Ave.], supra, p. 446), and at times other advantages not easy to catalogue. In the second case, the ownership of the incumbered land is so nearly profitless and barren that an award would be wholly speculative if made for more than nominal damages (Matter of City of New York [Decatur St.], 196 N. Y. 286; Matter of Schneider, 136 App. Div. 444; 199 N. Y. 581). The damage parcels taken in this proceeding belonged to owners whose lots abutted on the newly opened street. Even so, the awards are so nearly equal to the value of an unincumbered fee that they ought not to be upheld if the land at the time of the taking for the purpose of a public street was subject to private easements impairing the value greatly, though not destroying it altogether.

Thus, taking up the damage parcels covered by the Broadburne map, we find that the award for parcel No. 199B was $17,608 as compared with $19,668.80, the highest value given by a witness for the claimant; for 199D $8,972 as compared with $8,866.72; for 199J $4,236.50 as compared with $4,660; and for 199M $4,329.50 as compared with $4,762.45. The awards for the other damage parcels on this map were made to unknown owners without the testimony of experts, but were plainly on a similar scale.

Turning to the Lewis & Thompson map, we find the award for damage parcel No. 340 to be $1,389.10 as compared with the claimant’s valuation of $2,416.92. The awards for the other parcels on that map were made to unknown owners.

We think some deduction, and that not merely a trifling one, should have been made from the value of an unincumbered fee because of the outstanding easements. The testimony of the expert witness for the claimants shows that he made no such allowance in appraising the appropriated parcels, but considered them as if they were to be valued by themselves without reference to their relation to other portions of the lots. In most instances his testimony was accepted with only trifling changes as the basis of the awards. Indeed, there is no other testimony in the record that the court was able to follow, unless it agreed with the witness for the city that the value was almost nominal. There is need of a new appraisal which will give heed to the incumbrances imposed by the private easement without depreciating their effect, and also without exaggerating it.

We speak of exaggeration of the incumbrance as well as depreciation, for we are not to be understood as holding that in the peculiar circumstances here present, the subsurface uses of the bed of the street are the only ones to be considered in determining the loss. The situation would be different if the intervening strip of land had been physically opened as a street, graded as such, and not susceptible of occupation in any other way. In point of fact, it was not opened, or so we infer from the record, though the physical conditions should be more clearly brought out when the case is tried again. If this be so, there were many uses to which the land might have been applied with interference only a remote contingency, if the city had determined, before the appropriation was complete, to abandon the projected street. A lot owner buying from such a map does not covenant by implication that he will do anything affirmative (Greenfarb v. R. S. K. Realty Corp., 256 N. Y. 130, 134). He does not bind himself to open a road, still less to grade or maintain one (Cole v. Hadley, 162 Mass. 579). His duty is fulfilled if he does nothing to obstruct the right of access belonging to his neighbors. The physical opening of a private street fifty feet wide would be a very costly enterprise. If the city abandoned the projected public street, the chances are small that the lot owners would have been willing to clear the way themselves. They would have been satisfied with the existing highway along the lines of Old Broadway. In such circumstances the owner of the fee of the intervening strip, while he would hardly have ventured to improve it with a building, would in all likelihood be free for many years to use it without interference as a garden or a courtyard, improving thereby the appearance or the comfort of buildings at the rear. This is what the Appellate Division must have meant when it spoke of the private easements as not of sufficient dominance ” to work serious impairment of the value of the land affected (232 App. Div. 830, 831). There was indeed a possibility that adjoining owners might insist upon keeping the strip open and grading it as a private way. The contingency was remote and doubtful. Undoubtedly the mere possibility would be a cloud upon the title, seriously affecting the value of the fee, and yet, in view of the doubt and the remoteness, not affecting it as destructively as if the way were open and in use. The effect of these contingencies in their bearing upon the value of the other portions of the lots is to be measured and determined by the trier of the facts.

This court is not at liberty to reverse awards in these proceedings on the ground that they are excessive unless the excess is so great as to indicate that they have been made on an erroneous principle. Such error, we think, appears upon this record in respect of the damage parcels ■that are subject to a right of way.

An appeal has been taken in behalf of Christian Reis, the claimant to an award for the appropriation of damage parcel 199L. The Appellate Division modified the decree as to that parcel by reducing the award to six cents, it appearing that by the deed which was the claimant’s source of title, the grantee was under a duty to convey the damage parcel to the city without compensation if . required for the boulevard. The appeal as to this parcel should be dismissed, without costs, it appearing that there has been a failure to file the statutory undertaking.

Upon the appeal by the city of New York, the order of the Appellate Division and that of the Special Term should be modified by reversing the awards as to damage parcels 199, 199B, 199D, 199E, 199F, 199G, 199H, 199J, 199K, 199M, 340, 340A, 340B, 340D, 340E, 340F, 340G, 340J, 340K, 340M and 340N, and granting a new trial, with costs to abide the event, and as so modified should be affirmed, with costs to the respondents prevailing in this court. (See 258 N. Y. 610.)

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    In the Matter of Oystermen’s Dock Company, Limited, Appellant, against Benjamin W. Downing, as Supervisor of the Town of Oyster Bay, Respondent.
    (Submitted December 1, 1931;
    decided January 5, 1932.)

      James L. Dowsey and G. Burchard Smith for appellant.
    Mandamus is the proper remedy, for the act which it is sought to have performed is a ministerial act and the supervisor was properly directed to execute the lease. (People ex rel. Harris v. Commissioners, 149 N. Y. 26.) It was not the supervisor’s duty, after the town board had acted, to pass upon the adequacy of the rental or whether it was improvident or for the best interests of the public or any similar question. (Town of Brookhaven, v. Smith, 188 N. Y. 74; Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378; Tiffany v. Town of Oyster Bay, 234 N. Y. 15.)

      Thomas J. Cuff and Milton Pinkus for respondent.
    Neither in its application to the town board for the lease nor to the Supreme Court for mandamus to compel execution of the lease did appellant allege or show a public benefit to be derived therefrom. On the contrary, the terms of the proposed lease show a virtual gift of a large tract of town lands which the town board had no power to make under chapter 157 of the Laws of 1920 or otherwise. (Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Trustees v. Mecox Bay Oyster Co., 116 N. Y. 1; North Hempstead v. Hempstead, 2 Wend. 109; Smith v. Odell, 234 N. Y. 267; Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449; Town of North Hempstead v. Gallagher, 21 Misc. Rep. 508; City of New York v. Railroad Co., 98 App. Div. 201; Town of Brookhaven v. Smith, 188 N. Y. 74; Darlington v. City, 31 N. Y. 164; Webb v. Mayor, 64 How. Pr. 10; People ex rel. Lehigh Valley Ry. Co. v. Tax Comm., 206 App. Div. 549; 240 N. Y. 591; City of New York v. Brooklyn R. R. Co., 98 App. Div. 201;
      City of New York v. Atlantic Yacht Club, 209 App. Div. 642; 240 N. Y. 630; First Construction Co. v. State, 221 N. Y. 295; Coxe v. State, 144 N. Y. 396; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; People v. Fields, 58 N. Y. 491.) The Appellate Division in the exercise of its discretion properly denied mandamus. (People v. McGuire, 31 Misc. Rep. 324; People v. Williams, 100 Misc. Rep. 569; Brennan v. Board of Education, 245 N. Y. 8; Burke v. Connolly, 76 Misc. Rep. 337; People ex rel. Breckenridge v. Village of Ocean Beach, 207 App. Div. 821; People ex rel. Wood v. Assessors, 137 N. Y. 201; People v. Supervisors, 22 How. Pr. 275; People ex rel. Lehmaier v. Railway Co., 177 N. Y. 296; People ex rel. Corrigan v. Mayor, 149 N. Y. 215.)
   Pound, J.

This case comes before the court for review on the law and the facts and the exercise of discretion by the Appellate Division. (New York Const. art. VI, § 7; Civ. Prac. Act, § 589; Matter of Flagler, 248 N. Y. 415.)

The town of Oyster Bay holds common lands under water in private, as distinguished from public, ownership which it may convey or lease (Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449, 452), subject to the public right to navigate the waters.

By Laws 1920, chapter 157, the town board was authorized to lease the common lands of the town, including lands under water, for such term or terms, to such persons or corporations, at such rentals and in such manner as the said town board, acting by a majority thereof, shall deem proper.”

Prior thereto town lands were disposed of at town meetings under legislative authority. By the act of 1920 all statutes relating to the power of the freeholders to lease such lands were repealed and a regular procedure for applications for leases was set forth. After petition, notice and hearing a lease may be granted by the town board. By proceedings, the regularity of which is not questioned as to form, the town board voted to grant a lease of a part of the common lands of the town which adjoined the upland owned by Oystermen’s Dock Company, Limited, to such company “ for commercial dock purposes, as said premises are now being used, and, also, for the further purpose of making any hereinafter desired additions, alterations and improvements in and to the Docks, Slips and Channels now thereon,” for a term of fifty years at the yearly rental of $100 with a renewal option for a like period, the respondent, Benjamin W. Downing, as supervisor of the town, voting in the negative. The act of 1920 provided that the supervisor and the clerk of the town should sign and deliver leases authorized by the town board. Respondent refused to execute and deliver the lease. On application of appellant an order of peremptory mandamus was granted at Special Term directing the respondent to sign and deliver the lease. This order was reversed by the Appellate Division “ upon the law and the facts * * * in the exercise of discretion” (232 App. Div. 295, 296).

The supervisor of the town offered no justification for his refusal to act, based on illegality or corruption or fraud. He set up by way of excuse a resolution which was carried in the town at the general election for the year 1929 which reads as follows: Resolved that the Law passed April 10th, 1920 (Chapter 157 of the Laws of 1920) be amended to read that no Town lands shall be leased by any Town Board of Oyster Bay Township without a vote of the people of the Township at a general or Special election.” He also asserted that the lease was improvident and not beneficial to the public. In other words, he set up the views of public policy expressed in the advisory and wholly nugatory resolution of the town meeting which purported to amend a statute of the State and his own views of the public interest against the mandate of the statute and the action of the town board in order to avoid doing a distasteful ministerial act which it was his clear legal duty to perform and which involved no exercise of judgment or discretion on his part. (Marbury v. Madison, 1 Cranch [U. S.], 137, 162; People ex rel. Harris v. Commissioners, 149 N. Y. 26, 30, 31.)

The grant of lands under water to the owners of the upland “ for commercial dock purposes ” is “in the public interest.” At least it is a use that can “ fairly be said to be for the public benefit ” to promote commerce and navigation. “ Grants to the owners of the adjoining uplands, either for beneficial enjoyment or for commercial purposes, have long been authorized and recognized as one of the uses to which the State may lawfully apply such lands.” (Coxe v. State, 144 N. Y. 396, 406, 407.) Indeed, it may be questioned whether the appellant as the owner of the adjoining upland might not maintain and enlarge its existing dock without acquiring title to the land under water. (Appleby v. City of New York, 271 U. S. 364, 399.) In the circumstances, inadequacy of price amounting to fraud or waste is not suggested. The lease was authorized after a public hearing where no better offer was made.

The people of the town of Oyster Bay have a right to expect its public officials to act honestly within the range of discretion vested in them, but human agencies are not infallible. For honest mistakes of judgment they are granted much indulgence. The voters may not curtail the delegated powers of their representatives by direct action on matters of policy. (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413.) If on such matters official action does not meet with public approval, the remedy is political. New officers more in accord with the views of their constituency may be chosen to Succeed the unpopular or unwise. The courts may not conserve the public interests and shape action thereon to their own desire by reviewing the lawful acts of public officers. The Supervisor has no veto power over the resolutions of the town board. He should bow to the wish of the majority in all things lawful. Thus are democracies governed.

While mandamus is a remedy to be granted in the discretion of the court and not as matter of right, that discretion should be exercised with proper regard for established legal principles and not arbitrarily withheld to thwart legitimate action of public officers and to nullify vested legal rights. On the merits, the case points clearly to the relief sought.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


author: Kellogg, J.

text:
    Mary E. Dalton, Respondent, v. Rose Levy et al., Appellants.

      (Argued December 1, 1931;
    decided January 5, 1932.)

      Abraham Rickman and Max Silverstein for appellants.
    The only right that plaintiff may properly assert over Jacobs lane is a right to pass and repass. (Grafton v. Moir, 130 N. Y. 465.)

      John G. Dalton for respondent.
    Where land is conveyed by a deed describing the land by reference to a map and bounding the same upon a lane which is mentioned or referred to in the deed, and the fee of the land composing the lane is vested in the grantor, a right of way extending to the full width and length of the lane as shown upon the map is created in the grantee over the lane. (Baker v. Mott, 78 Hun, 141; 152 N. Y. 637; Wiggins v. McCleary, 49 N. Y. 346; Reis v. City of New York, 188 N. Y. 58; Collins v. Buffalo Furnace Co., 73 App. Div. 22; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Matter of Village of Olean v. Steyner, 135 N. Y. 341; Parsons v. Johnson, 68 N. Y. 62; Hennessy v. Murdock, 137 N. Y. 317; Lord v. Atkins, 138 N. Y. 184; Williamson v. Salmon, 105 Misc. Rep. 485; 196 App. Div. 922; 233 N. Y. 657; Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Taylor v. Hopper, 2 Hun, 646; 62 N. Y. 649.) It is not essential to plaintiff’s right of way that she should have a fee interest in the land composing the lane. (Holloway v. Southmayd, 139 N. Y. 390; Cox v. James, 45 N. Y. 557; Badeau v. Mead, 14 Barb. 328; Lord v. Atkins, 138 N. Y. 184; Cunningham v. Fitzgerald, 138 N. Y. 165.) Plaintiff’s easement in the lane extends to its full width and length as shown upon the map and must be kept open for the benefit of plaintiff and her successors in title. (Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Johnson v. Shelter Island Assn., 47 Hun, 374; 122 N. Y. 330; Matter of Village of Olean v. Steyner, 135 N. Y. 341; Williamson v. Salmon, 105 Misc. Rep. 485; 196 App. Div. 922; 233 N. Y. 657.)
   Kellogg, J.

Nathan and Barney Jacobs owned in common a tract of land in Port Washington, N. Y., which was bounded on the north by Main street, and upon the east by Middle Neck road, both of them public streets. The brothers Jacobs, in 1903, caused this tract to be surveyed, subdivided and mapped, and the map to be filed in the county clerk’s office. The map indicates a subdivision of the tract into fifty-four lots, an avenue and two streets. The lots are designated by numbers, and their dimensions by appropriate figures. The streets are inclosed between parallel lines, fifty feet apart, and are designated “ Maryland avenue,” Maple street ” and Bernard street.” The first proceeds north from the southern boundary of the tract and opens into the village street, “ Main street.” The latter two proceed east from Maryland avenue and open into the village street, Middle Neck road. The' brothers Jacobs, in all their conveyances, made reference to this map for the boundaries of the lands conveyed.

The plaintiff is the owner of lot No. 1, and the defendant of lot No. 2, both of which are approximately rectangular. Lot No. 1 has a frontage on Main street of fifty feet, and a depth of 132 feet; it is bounded on the south by lot No. 3 which has an easterly and westerly length of one hundred feet, and extends through to Maryland avenue.” Lot No. 2 is a corner lot; is bounded on the west by lot No. 1; has a northerly frontage on Main street of fifty feet and an easterly frontage on Maryland avenue of one hundred feet. It will be noted that while lot No. 1 touches lot No. 3 on the south, lot No. 2, with its lesser depth, is not contiguous thereto. Bounded on the north by lot No. 2, on the west by lot No. 1, on the south by lot No. 3, on the east by “ Maryland avenue,” there is an area, extending east and west fifty feet, and north and South approximately thirty-two feet. This area, as shown upon the map, bears no lot number. Moreover, the fine, appearing upon the map to mark the westerly boundary of Maryland avenue, is so broken that, on the easterly boundary of the unnumbered lot, no fine appears to divide the lot from the street.

In the year 1903 the brothers Jacobs deeded lots numbered 1, 3, 4 and 5 to William Dene. In defining the lots conveyed, the grantors describe lot No. 1 as bounded in part by the westerly side of Jacobs lane,” and lot No. 3 as in part bounded by the southerly side of “ Jacobs lane.” Concededly, “ Jacobs lane ” is the unnumbered lot. The title to that lot is now in the defendant, who acquired it after making acquisition of lot No. 2. In deeding lot No. 1 to the plaintiff, in the year 1907, William Dene did not employ “ Jacobs lane ” as one of the boundaries of the lot. However, there was included in the description of the premises and rights conveyed this clause: Together with such right of egress and ingress' as the parties of the first part may have over Jacobs Lane so-called.”

The plaintiff claims that she is possessed of a greater right than that of convenient passage and repassage over the unnumbered lot; that Jacobs lane, as it appears upon the map, unnumbered as a lot and unseparated from Maryland avenue by any line, is a part of that avenue; that, as the grant to Dene bounded lots numbered 1 and 3 in part by Jacobs lane, Dene acquired an easement thereover, for its full width and length, as if it were a public street; that as Dene conveyed lot No. 1 to her “ together with the appurtenances,” she is entitled, in the enjoyment of her ownership of the lot, to the same unrestricted easement.

It is doubtless true that where the owner of a tract of land causes a map of the tract to be filed, which discloses its subdivision into numbered lots, and its intersection by private roads termed streets ” giving access to public highways for all the lots, and conveys the lots by the numbers as they appear upon the map, he conveys, as appurtenances to the lots, easements in the roads, which are as extensive and unrestricted as if they were public streets. (Wiggins v. McCleary, 49 N. Y. 346; Hennessy v. Murdock, 137 N. Y. 317; Lord v. Atkins, 138 N. Y. 184.) That the purpose of such a grantor is to convey such an easement is the necessary implication from the symbols appearing upon the map. The parallel lines extending to public streets; the inclosure of spaces appropriate for roads; the abuttal of all the lots upon some such space; the designation of the spaces as streets; ” the inaccessibility of the lots if the inclosures were not streets; the precise boundaries of the area made subject to the easement — these things indicate that the grantor intends the inclosure to be used by lot owners, to its fullest breadth, as a means of passage, for whatever purposes and by whatever means, and that, like a public Street, the roads are forever to remain open and free from obstructions. The implication may not arise where the road appearing upon the map, to bound the lot conveyed, enlarges to inclose a triangular space, not peculiarly adapted to street purposes, in which case the grantor may build upon the unconveyed triangle. (Williams v. Boston Water Power Co., 134 Mass. 406.) In the case cited, the lines, within which a triangle was inclosed, were wholly unlike two Unes obviously drawn in relation to each other for the purpose of indicating a street between.” They did not sufficiently and clearly say to the grantee, “ This space is forever to remain vacant.” (Per Holmes, J., at p. 415.) In our case, as in the case cited, the rectangle, over which the plaintiff claims an easement as in a public street, is not inclosed within the parallel lines which indicate the course and breadth of a private road. True, it is not divided from the road by any line drawn. Nevertheless, it is a mere recess notched out at the side of the parallelogram, which constitutes the road, and forms no part of the continuous path furnishing egress and access to all the lots. At most, it might serve the uses of the owners of the three lots numbered 1, 2 and 3. Besides this, it does not bear the designation “ street ” or any other name to indicate its purpose. We conclude that the plaintiff gained no easement there-over, for its unrestricted use to its full width, as if it were a public street, through the fortuitous circumstance that the brothers Jacobs, in conveying the several lots to her predecessor in title, employed the southerly and westerly sides of the lot termed Jacobs lane ” as monuments to bound the property conveyed.

At most, therefore, the plaintiff has a right of egress and ingress ” over the lot, as conveyed to her by Dene, her predecessor. A right of way may be general in its character, that is, usable for all purposes; or it may be a limited right, as a right of way for carriages but not for carts, or for horses and not for carriages; or it may simply be a footway.” (Goddard on Law of Easements, p. 406.) Where a right of way is reserved or granted, but not specifically defined, the rule is “ that the way need be only such as is reasonably necessary and convenient for the purpose for which it was created.” All that is required of a defendant, the owner of the servient tenement, is that he shall not so contract the alley-way, either vertically or laterally, as to deprive the plaintiff of a reasonable and convenient use of the right of passing to and fro.” (Per Vann, J., in Grafton v. Moir, 130 N. Y. 465, 471.) The grant of a right of way through and over ” a space twenty feet wide is “ the grant of a convenient way, within those limits.” (Johnson v. Kinnicutt, 56 Mass. 153, 157.)

In this case the defendant, the owner of the lot known as “ Jacobs lane,” has erected upon the lot a garage, designed for his use as the owner of lot No. 2. There remains an unobstructed space, between the garage and the north fine of the lot, which is at least eleven feet wide. We think that this space affords access from Maryland avenue to the rear of the plaintiff’s lot, and egress from the latter to the former, which is reasonable ” and “ convenient; ” that the plaintiff is entitled to a way of passage of no greater width or extent; that with this right the defendant has in no sense interfered; that the plaintiff has no cause of complaint.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    George C. Hudson, Appellant, v. Yonkers Fruit Company, Inc., Respondent.

      (Argued December 2, 1931;
    decided January 5, 1932.)

      Andrew Wright Lent and A. D. Lent for appellant.
    The facts do not warrant a finding of accord and satisfaction. (Nassoiy v. Tomlinson, 148 N. Y. 326; Schnell v. Perlmon, 238 N. Y. 362; Newburger-Morris Co. v. Talcott, 219 N. Y. 505; Fuller v. Kemp, 138 N. Y. 231; Komp v. Raymond, 175 N. Y. 102; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289.)

      Albert C. Jordan for respondent.
    There was an accord and satisfaction and the judgment should be affirmed. (Nassoiy v. Tomlinson, 148 N. Y. 326; Hills v. Sommer, 53 Hun, 392; Whitaker v. Eilenberg, 70 App. Div. 494; Daley v. United States Metal Co., 76 Misc. Rep. 574; Gibble v. Raymond Supply Co., 124 App. Div. 829; Wisner v. Schopp, 34 App. Div. 202; Jones v. Keeler, 40 Misc. Rep. 224; Cleveland v. Toby, 36 Misc. Rep. 320; Chicago Ry. Co. v. Clark, 178 U. S. 367; Schweinler v. Earl, 183 App. Div. 673; Van Almkerk v. National Surety Co.,
      208 App. Div. 464; Fuller v. Kemp, 138 N. Y. 231; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289.)
   Cardozo, Ch. J.

Plaintiff, then the owner and in possession of a quantity of apples, requested the defendant to procure a purchaser. This the defendant did, and collected the price. The plaintiff says that the service was to be rendered without charge, a friendly accommodation. The defendant says that there was an express agreement for the payment of a commission at the rate of ten per cent.

The defendant after collecting the proceeds of the sales, sent a statement of the account to the plaintiff, in which items amounting in their total to $1,017.60, ten per cent of the price, were deducted for commissions. With this statement there was sent a check for $3,184.50, the balance then due if the deduction was correct. The plaintiff kept the check, but made protest at once that the deduction was erroneous. In an action to recover the amount withheld the jury returned a verdict in favor of the plaintiff, finding thereby that the defendant’s service was to be gratuitous. The Appellate Division reversed and dismissed the complaint, holding that the acceptance by the plaintiff of the balance conceded to be his was an accord and satisfaction.

We discover nothing in the record to give support to that conclusion.

The defendant had in its custody money belonging to the plaintiff, collections made by the defendant upon a sale of the plaintiff's apples. It had no lien upon the money, for it had not acted as a factor intrusted with possession. At most it had a counterclaim for the recovery of a commission at the rate of ten per cent. What remained after the deduction of that commission was due to the plaintiff absolutely and at all events. In taking it, he was not taking anything belonging to the defendant. He was taking his own money, his in any event, whether the deduction of a commission was proper or erroneous. The defendant was more than a debtor. It was an agent holding in its possession the moneys of its principal, and guilty of a tort if it kept them for itself (Baker v. New York Nat. Exchange Bank, 100 N. Y. 31).

Two forms of accord and satisfaction of unliquidated claims are to be discovered in the books. One is where there is a true assent to the acceptance of a payment in compromise of a dispute, or in extinguishment of a liability uncertain in amount (1 Williston on Contracts, § 135; 3 id. § 1851; Am. L. Inst., Restatement of Contracts, draft No. 9, § 36-A; Fuller v. Kemp, 138 N. Y. 231, 237; Wahl v. Barnum, 116 N. Y. 87). The other is where the tender of the payment has been coupled with a condition whereby the use of the money will be wrongful if the condition is ignored. Protest will then be unavailing if the money is retained What is said is overridden by what is done, and assent is imputed as an inference of law (3 Williston on Contracts, §§ 1855, 1856; Am. L. Inst., Restatement of Contracts, draft No. 9, § 38-A).

Accord and satisfaction falling within the first of these classes, there plainly was not upon the facts of the case at hand. There had been no dispute between the parties and there was no assent by the creditor, but prompt and emphatic protest. There was not even any compromise. The amount deducted in the accounting did not involve an abatement by the defendant of anything, large or small, from the maximum commission due for its services, if it was entitled to anything. It kept the full commission of ten per cent due according to its witness by force of an express agreement. Such cases as Schnell v. Perlmon (238 N. Y. 362) and Hettrick Mfg. Co. v. Barish (120 Misc. Rep. 673; 209 App. Div. 807) are thus beside the point. A compromise may result where something is abated from a demand which exists, if it exists at all, for a liquidated sum. A compromise may result where a demand, previously unliquidated, is fixed at a given figure, for the right is thus surrendered to make the figure higher. None of these elements of detriment is present in the case at hand. The defendant did not abate a dollar from a liquidated claim. It did not surrender the opportunity to add to the amount of an unliquidated claim. The conclusion is inescapable that there was no genuine assent to an accord and satisfaction, and that the debt was not discharged unless the situation is one in which the law imputes assent, irrespective of the state of mind accompanying the receipt.

The question then is whether the acceptance of the check without approval of the deduction is to be viewed as the breach of a condition lawfully imposed. A debtor paying his own money may couple the payment with such conditions as he pleases (Nassoiy v. Tomlinson, 148 N. Y. 326, 331; 3 Williston, supra, § 1854). The mere fact that he is a debtor does not deprive him of that privilege. If he has the title to the money, he may pick and choose among his creditors, or refusing to pay any one until coerced by legal process, may keep the money for himself. From this the rule has grown up in connection with the satisfaction of unliquidated demands that one who sends a check to another upon a condition explicitly declared that the demand shall be extinguished or the check sent back unused, may hold the creditor to the condition, however embarrassing the choice (Nassoiy v. Tomlinson, supra; Am. L. Inst., Restatement of Contracts, § 38-A). “ Always the manner of the tender and of the payment shall be directed by him that maketh the tender or payment and not by him that accepteth it.” (Pinnel’s Case, 5 Co. 117, quoted in Nassoiy v. Tomlinson, supra). The use of the check in violation of the condition would be an act of conversion. What is said or written by the creditor may be a refusal to assent. The law imputes to him an assent on the basis of his acts (Williston, supra; Restatement of Contracts, Am. L. Inst., supra).

In the case at hand the condition was not lawfully-imposed, if we assume provisionally that it was imposed at all. The defendant was not merely a debtor, paying its own money, which it would have been free to retain or to disburse according to its pleasure. It was an agent, a fiduciary, accounting for money belonging to its principal. No matter whether the deduction of a commission was proper or improper, the balance represented by the check was due in any event. The law will not suffer an agent to withhold moneys collected for a principal’s account by the pressure of a threat that no part of the moneys will be remitted to the owner without the approval of deductions beneficial to the agent. Such conduct is a flagrant abuse of the opportunities and powers of a fiduciary position (Britton v. Ferrin, 171 N. Y. 235; Morris v. Windsor Trust Co., 213 N. Y. 27). We do not need to determine whether a condition would be lawful if the tender by the agent were to involve some abatement of deductions that might otherwise be his. Sufficient for the decision of this case is the ruling that the condition is unlawful when what is paid is no more than must certainly be due. A payment so made is not within Nassoiy v. Tomlinson and other cases of that type. There, as the court was careful to point out (p. 331), " the money tendered belonged to them [i. e., to the makers of the tender], and they had the right to say on what condition it should be received.” The payment in this case is within the doctrine of such cases as Mance v. Hossington (205 N. Y. 33, 36) and Eames Vacuum Brake Co. v. Prosser (157 N. Y. 289). What was paid had no connection with what was disputed and reserved. “ The payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction of another and independent alleged liability ” (Mance v. Hossington, supra; cf. Hettrick Mfg. Co. v. Barish, supra, at p. 684, and cases there cited). The doctrine of accord and satisfaction by force of an assent that is merely constructive or imputed assumes as its foundation stone the existence of a condition lawfully imposed. The rationale of the doctrine fails if submission to the alternative would be submission to a crime. A principal does not put himself in the wrong by repudiating a condition where the agent by withholding payment would be guilty of embezzlement.

Another difficulty confronts the defendant if all the objections thus far considered are overcome. The difficulty remains that nothing in the form of the account rendered or in the accompanying check amounts to the imposition of a condition that the check must be rejected if any item of the account is thereafter to be questioned by the creditor. All that the account does is to enumerate the debits and the credits (among which are items of commission) and strike a balance. The creditor is not informed that the deductions claimed by the debtor, the accounting agent, will be deemed to be finally approved by the acceptance of the check. He is not informed that the tender is in settlement of a dispute, for none had yet arisen. He is informed of nothing more than the readiness of his debtor to account to him for money admittedly his own, without the suggestion of a purpose to foreclose ■controversy as to the deductions if any are disputed. An accord and satisfaction is not so easily established [Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Komp v. Raymond, 175 N. Y. 102; Gaston & Co. v. Storch, 253 N. Y. 68, 71). The debtor must make it clear * * ■* that it is taken in full payment ” (3 Williston on Contracts, § 1856, p. 3181; Gaston & Co. v. Storch, supra; Rose v. American Paper Co., 83 N. J. L. 707). An accord and satisfaction results only where the act of the creditor in “ taking the check would be tortious except on the assumption of a taking in full satisfaction (Williston, supra; Lovekin v. Fairbanks, Morse & Co., 282 Penn. St. 100, 103). Surely no one would urge that upon any showing here made the acceptance by this principal of Ms own money, owing from Ms agent whether the deductions stand or fall, would constitute a tort except on the assumption that the deductions were approved and would never be assailed.

The trial judge did not err in holding that the burden of proof was on the defendant to establish its right to the allowance of a commission. The plaintiff made out a ;prima facie case when he showed a sum of money in the possession of Ms agent, the proceeds of the sale that had been made for his account. If the defendant was at liberty to retain a portion of such fund as compensation for its service, the right to make such a deduction was to be enforced tMough the medium of a counterclaim. There was no hen upon the fund, for the defendant in this transaction was not intrusted with possession and was not acting as a factor. At the end of the whole case, whatever may have been the inferences to be drawn at intermediate stages from the uncontradicted evidence of a service rendered at request, the defendant was under the burden of satisfying the triers of the facts that the service was not gratmtous, but was to be rendered for a price (1 Wilhston on Contracts, § 36).

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed with costs in the Appellate Division and in tMs court.

Pound, Crane, Lehman, Kellogg, O'Brien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    William Halsted et al., Respondents, v. Globe Indemnity Company, Appellant, and Peter G. Gerry et al., as Executors of Elbridge T. Gerry, Deceased, Respondents.
    (Argued December 2, 1931;
    decided January 5, 1932.)

      F. A. W. Ireland for appellant.
    There was a sale of the property which canceled the bond. (Jenkins v.
      Moyse, 254 N. Y. 319; Lisner v. Macomber, 252 U. S. 189; Real Prop. Law, §§ 245, 255, 258; City Bank Farmers’ Trust Co. v. Hewitt Realty Co., 257 N. Y. 62.)

      Minturn de S. Verdi and Edward T. Pierce for defendants-respondents.
    The lessor did not sell the property. (Peabody v. Richard Realty Co., 69 Misc. Rep. 582; 207 N. Y. 642; Western Maryland Ry. Co. v. Commissioner of Internal Revenue, 33 Fed. Rep. [2d] 695; Alpha Portland Cement Co. v. United States, 261 Fed. Rep. 339; Weiss v. Stern, 265 U. S. 242; Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic Assn., 247 U. S. 490; U. S. Grain Corp. v. Phillips, 261 U. S. 106; Eisner v. Macomber, 252 U. S. 189; Matter of Winburn, 136 Misc. Rep. 19; Matter of Foley, 132 Misc. Rep. 332; Matter of Currier, 138 Misc. Rep. 372.) The benefit of the bond followed the property. (Sutter v. Nenninger, 115 Misc. Rep. 359; Shenk v. Brewster, 189 App. Div. 608; Mauro v. Alvino, 90 Misc. Rep. 328; Allen v. Culver, 3 Den. 284; Peabody v. Richard Realty Co., 69 Misc. Rep. 582; 207 N. Y. 642.)
   Pound, J.

On December 1, 1920, Elbridge T. Gerry leased certain premises to William M. Halsted and Henry M. Halsted for a term ending April 30, 1941. Globe Indemnity Company was surety on a bond given as security for the faithful performance of the lease. The lease provided: If the lessor sells said property while such bond is in force, said bond shall be cancelled, provided the lessees shall have faithfully performed all the covenants and conditions herein contained.”

The bond provided: Provided further that if the lessor sells said property while this bond is in force, the same shall be cancelled provided the lessees shall have faithfully performed all the covenants and conditions herein contained up to that time.”

Elbridge T. Gerry, the lessor, died February 18, 1927, during the term of the lease. By his will he devised the leased property to his four children in equal shares. They transferred the title of the property to The Gerry Estates, Inc., a corporation organized “ especially to purchase, acquire, hold, manage and take over so much of the real property, and all interests therein as the Board of Directors may deem advisable, now, or heretofore belonging to, or hereafter acquired by Elbridge T. Gerry, and formerly owned by Louisa M. Gerry, now deceased, or from their or either of their grantees, devisees or beneficiaries, including real estate in which said Louisa M. Gerry had any rights or interest in her lifetime, and to issue the capital stock, bonds, secured or unsecured, or other evidences of indebtedness, of this corporation, in payment therefor, and to take over said real property, subject to all leases and liens thereon, and charges against the same, and to assume the same, and all obligations therein contained to be performed on the part of the owners of such real property.” They were the sole stockholders, each holding one-fourth of the corporate stock and bonds of The Gerry Estates, Inc., given in exchange for their property so transferred to the corporation.

Plaintiffs sue to recover securities deposited with Globe Indemnity Company on the ground that the transfer of the property by the Gerry heirs to The Gerry Estates, Inc., was a sale by the lessor and that the bond should be canceled and the securities returned. At the Special Term judgment was directed for the plaintiffs for the relief demanded in the complaint. The Appellate Division reversed and dismissed the complaint. The latter court said in an opinion by McAvoy, J.: " What the parties obviously intended by the word ‘ sale,’ in the lease and the bond, was a transaction whereby the lessor would dispose of the property for value to a stranger and cease to have any further interest in it. A transfer to a corporation in which the lessor owns all the stock is not such a transaction.” (232 App. Div. 576, 578.)

The surety company, having asked in its requests to find the same relief demanded by the plaintiffs, is the appellant in this court and the plaintiffs only appear as respondents.

The question is whether the transfer from the heirs to the corporation was a “ sale ” of the property. In passing on this question no doubt can arise that the corporation must be viewed as an entity, separate and distinct from its stockholders. No rule of common sense or common justice is thereby violated. No wrong or fraud is shielded by the corporate charter. The corporation exists for the legitimate convenience of the stockholders, nót as a mere mask for their personal acts and responsibilities. It absorbs and takes the place of the individuals who own its stock. (Werner v. Hearst, 177 N. Y. 63; Brock v. Poor, 216 N. Y. 387; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84; Jenkins v. Moyse, 254 N. Y. 319.)

The leased premises have been transferred to a third party (Matter of Gates, 243 N. Y. 193, 197; Marr v. Tumulty, 256 N. Y. 15, 24), but the words íl sale ” and “ transfer ” are not synonymous. “ Sale ” is a technical term which has been defined (Matter of Grand Union Co., 219 Fed. Rep. 353, 356. See Byrne’s Law Dictionary) as a transfer of property from one man to another, in consideration of a sum of money, as opposed to barters, exchanges or gifts. The English Sale of Goods Act (part 1, § 1) defines a sale as a transfer of property for a money consideraron called the price. The New York Personal Property Law (Cons. Laws, ch. 41), section 82, defines a sale of goods as “ an agreement whereby the seller transfers the property in goods * * * for a consideration called the price.” The word price ” generally implies a sale for money although this is not always so. In construing any contract we are not confined to strict meanings of legal terms. The intention of the parties must be sought for in the language used. To understand the language we may put ourselves in their place and discern if possible the objects they had in view and the motives which dictated their choice of words. A wider meaning may thereby be disclosed. A barter may be a sale within the meaning of the word in a contract. (Rollins v. Bazirgan, 252 Mass. 279.) In its broadest sense a sale comprehends any transfer of property from one person to another for a valuable consideration. (Hudson Iron Co. v. Alger, 54 N. Y. 173.)

Here the intention expressed calls for no widening of customary meanings. The surety company was not released by the devolution of title upon the children of Elbridge T. Gerry under the terms of the will. Title had passed but no sale was made. Neither is it released by the transfer of the property to the corporation. Title has passed to the corporation but the premises have not been sold to it. The heirs have exchanged it for stock in their own corporation, for their convenience in handling the property. The corporation is a mere form of family ownership. No transfer for a money consideration or for a price has been had.

The surety company is willing to secure Elbridge T. Gerry or his heirs for the payment of the rent until a sale is made of the property. If a sale is made, then its obligation ends. We can see no reason why the conveyance of the property to the corporation should be regarded as anything but an exchange, as distinguished from a sale, within the contemplation of the parties.

The benefit of a covenant of a surety for the rent runs with the land and, in the absence of a stipulation to the contrary, the grantee who takes subject to a lease obtains the benefit of securities deposited for the due performance of the lease. (Lehman, J., in Mauro v. Alvino, 90 Misc. Rep. 328, 330; cited with approval in Kottler v. New York Bargain House, Inc., 242 N. Y. 28, 37, and Rosenfeld v. Aaron, 248 N. Y. 437, 441.)

The right of the grantee to hold the securities has not terminated and the obligation of the surety remains in force.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.


author: Crane, J.

text:
    Charles Mendelowitz, an Infant, by Louis Mendelowitz, His Guardian ad Litem, et al., Respondents, v. Mary Neisner, Appellant.
    (Argued December 2, 1931;
    decided January 5, 1932.)

      F. A. W. Ireland, Emmet M. Taub and William C. Fiest for appellant.
    The infant plaintiff failed to show the violation of any duty owed to him by the defendant. (Murtha v. Ridley, 196 App. Div. 61; 232 N. Y. 488; Jaffy v. N. Y. C. R. R. Co., 118 Misc. Rep. 147; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Aubrey v. McCarthy, 217 App. Div. 492; Miller v. Woodhead, 104 N. Y. 471; Bassmajin v. Board of Education, 211 App. Div. 347; United Zinc & Chemical Co. v. Britt, 258 U. S. 268.)

      Julius S. Berg for respondents.
    A landlord of a tenement house must keep the yards and hallways in proper repair and reasonably safe condition, and if he is negligent and a personal injury results to a tenant by reason thereof, he is liable therefor. (Dollars v. Robert, 130 N. Y. 269; Palmer v. Dearing, 93 N. Y. 7; Jennings v. Van Schaik, 108 N. Y. 530; Peil v. Reinhart, 127 N. Y. 831; Ahearn v. Steele, 150 N. Y. 203; Caravan v. Stuyvesant, 27 N. Y. Supp. 413; Garrett v. Somerville, 98 App. Div. 206; Hussey v. Long Dock R. Co., 100 N. J. L. 380; Peklenk v. Isle Royale Copper Co., 136 N. W. Rep. 352; Milton v. Holtzman, 216 S. W. Rep. 828; Hyman v. Barrett, 224 N. Y. 436; Sarapin v. S. & S. Corrugated Paper Machinery Co., 209 App. Div. 377.)
   Crane, J.

The defendant was the owner of an apartment house, 814 East One Hundred and Sixtieth street, in the city of New York. Around the building was an alleyway below the surface of the street, reached by descending a flight of steps. The alleyway was formed by the building of the apartment house on one side and a stone retaining wall on the other. The top of this retaining wall was on a level with the street and abutted onto buildings on adjoining property. The retaining wall was capped or topped by heavy flagstones two feet or more wide forming a walk for those who occasionally used it to enter the rear of stores opening onto this walk. While the defendant owned and maintained this retaining wall, he maintained it for no such purpose and had repeatedly warned children and others away from the alley. Some distance down from the entrance to the alley was a flight of steps leading up to a platform level with the top of the retaining wall. This platform was built and maintained to receive the drop of the fire escape. Persons using the fire escape could drop the ladder onto this platform and thus proceed through the alley to the street. As this platform was on a level with the top of the retaining wall the defendant had constructed a railing across the retaining wall and at right angles to its face so as to prevent people from passing from the platform onto the retaining wall or using the retaining wall. Children frequently played in this alley but had been repeatedly warned by the owner to keep out, that it was no play yard, and was not to be used as such. The plaintiff in this case, a young boy nine years of age, testified that he had been told not to go in there.

One of the capstones on the retaining wall apparently was loose from lack of proper cement. On the 17th day of August, 1927, the plaintiff Charles Mendelowitz, the young boy referred to, wanted some clothes pins which were on the wall. H e passed from the alley up the steps onto the platform of the fire escape, climbed the fence and proceeded along the wall, when the defective capstone gave way and he fell into the alley -with the capstone on his leg. His injuries have been very severe, resulting in the loss of his leg, and he has recovered a substantial judgment against the defendant for negligence, which has been sustained by a divided court at the Appellate Division.

'We are of the opinion that the judgment must be reversed and the complaint dismissed, as the defendant owed no duty to Charles which he failed to fulfill. From the evidence it is quite certain that neither the children playing in the alley nor the adults using the wall as a walk were invitees, either express or implied, of the defendant. He tried to keep them out; he put up rails for this purpose, and repeatedly warned the children, including the plaintiff. The persons using the wall were, therefore, trespassers, not invitees, and to such the defendant owed no duty to maintain this wall in a safe condition for their use as a walk. Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. Such is the law as expressed in Fox v. Warner-Quinlan Asphalt Co. (204 N. Y. 240, 243) and Sterger v. Van Sicklen (132 N. Y. 499). Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction, such as spring guns or kindred devices, upon his property. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; Birch v. City of New York, 190 N. Y. 397.)

The danger in this case was not so apparent, nor the defendant’s failure to observe and correct it so blameworthy as to bring him within the principle of the attractive nuisances cases even if those cases could be viewed as law in New York. (Larmore v. Crown Point Iron Co., 101 N. Y. 391; Walsh v. Fitchburg Railroad Co., 145 N. Y. 301.) The same vigilance in detecting decay that is appropriate and even necessary when the use is lawful is not to be expected or required when the use is unlawful.

The boy in this case was not even a licensee. The ■defendant did not acquiesce in his use of the alley or the wall; he expressly forbade their use by the children. What more can an owner do to protect his property or escape liability and yet make reasonable use of his estate in compliance with fire regulations and the like?

That the plaintiff was a tenant in the apartment house did not give him the right nor the license to use those portions of the premises which the landlord had reserved and inclosed for his own purposes. (Olsen v. Fennia Realty Co., 246 N. Y. 641.)

We appreciate fully the dangers incident to city life where children are crowded into apartment houses and have no place to play except the streets, sidewalks, yards and vacant lots, and yet the law, above written, has been made with a view likewise to the use which may reasonably be made by owners of property. The courts have tried to be fair to both. The liability must not be so burdensome as to discourage all improvement.

The duty of landowners to trespassers and licensees is covered by the American Law Institute in its Tentative Draft No. 4, Law of Torts, chapter 2, sections 199 to 212, inclusive. Section 209 says:

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

'* (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

il (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily injury to, such children.”

The comment is: “ e. A possessor of land is, under the principles stated in Comment a, under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily injury to them.”

This may be more liberal to the injured party than the long line of decisions in this State. However, even within this rule, as stated by the American Law Institute, we think the condition of the wall did not involve an unreasonable risk of death or serious bodily injury which the owner should have realized.

For the reasons here stated, the judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: O’Brien, J.

text:
    In the Matter of the Probate of the Will of Catherine Schillinger, Deceased. George Hetzer, as Executor, et al., Respondents; Edward J. Schillinger et al., Appellants.

      (Argued December 2, 1931;
    decided January 5, 1932.)

      Heiby W. Ungerer for appellants.
    The Surrogate correctly charged the jury that the burden of proving undue influence was upon the contestant. (Matter of Kindberg, 207 N. Y. 220; Matter of Alfaya, 204 N. Y. Supp. 90; Matter of Smith, 180 App. Div. 674; Rollwagen v. Rollwagen, 63 N. Y. 504; Matter of Carter, 199 App. Div. 405; Matter of Jones, 199 App. Div. 426; Jarman on Wills, 33.)

      Hampton H. Halsey and James R. Martin for respondents.
    The Surrogate erred in his charge to the jury on the question of the burden of proof of undue influence. (Matter of Kindberg, 207 N. Y. 228; Matter of Dowdle, 224 App. Div. 450; Matter of Falabella, 139 N. Y. Supp. 1003; Matter of Anna, 248 N. Y. 421; Matter of Hone, 226 App. Div. 715; Matter of Rundle, 216 App. Div. 658; Matter of Fleishman, 176 App. Div. 785; Matter of Allaway, 187 App. Div. 87; Matter of Smith, 180 App. Div. 669.)
   O’Brien, J.

A writing which purports to be the will of Catherine Schillenger was propounded by her executor. Among the objections to probate filed by contestants is an allegation that the execution of the will was procured by undue influence. The Surrogate submitted to the jury the single question whether the instrument was the result of the free act of the decedent, and the verdict was in the negative. The decree denying probate, entered upon that verdict, was reversed solely on the law, and the contestants, with a stipulation for judgment absolute in the event of affirmance, appeal to this court.

The Surrogate refused to charge unequivocally that “ the burden of proving undue influence is upon those that assert it,” but, on the contrary, he did charge that, if upon the whole case the probabilities were evenly balanced in the mind of the jury, then the verdict must be for contestants, because, in his opinion, the law places the risk of this latter situation on the proponents. The issue before us, therefore, is whether this instruction conforms with the rule as recognized by this court.

Since the enactment of section 18 of chapter 460 of the Laws of 1837, the statute, now known as section 144 of the Surrogate’s Court Act as re-enacted by chapter 229 of the Laws of 1929, has been in existence. It provides: " § 144. Probate not allowed, unless surrogate satisfied. 1. Before admitting a will to probate, the surrogate must' inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will, and the validity of its execution. 2. If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint; it must be admitted to probate as a will valid to pass real property, or personal property, or both, as the surrogate determines, and the petition and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether the probate was or was not contested.”

The Surrogate must be satisfied in respect to all the elements enumerated in section 144 of the Surrogate’s Court Act. All agree that one offering a paper as a will must show that the instrument is proper in form as to the location and genuineness of decedent’s signature, the number of witnesses and their signatures, the circumstances under which the paper was executed, decedent’s soundness of mind and whatever other factors the statutes require to constitute a valid will. (Howland v. Taylor, 53 N. Y. 627; Rollwagen v. Rollwagen, 63 N. Y. 504; Matter of Martin, 98 N. Y. 193.) The influence necessary to avoid a will must amount to coercion and duress. (Smith v. Keller, 205 N. Y. 39, 44.) It is a species of fraud. (Matter of Smith, 95 N. Y. 516, 522.) After proponent has completed his proof concerning the factum of the alleged will and contestant has produced some evidence that decedent acted under restraint, which party must thereafter assume the duty of satisfying the Surrogate? Upon whom rests the ultimate burden of producing the preponderance of evidence? The decisions of this court, as construed by its members over a long term of years, point to the contestant. In them may be embodied principles differing from those announced in some jurisdictions and their correctness in point of logic may be debatable, but they appear to be fairly consistent with each other. The subject has received the attention of learned text writers who, discussing both theories, probably in the main approve the New York doctrine. (Gardner on Wills, p. 158; 1 Jarman on Wills [6th ed.], p. 68; 5 Wigmore on Evidence [2d ed.], § 2502; Chase’s Stephen’s Digest of Law of Evidence [2d ed.], p. 247.)

In Tyler v. Gardiner (35 N. Y. 559, 593, 596, 597), decided in 1866, the syllabus baldly reads: “ The burden of showing that a will was obtained by undue influence is upon the party who makes the allegation.” However, reference to one part of the majority opinion might perhaps afford some indication that the rule was not intended to be stated in terms quite so broad. Judge Porter in the prevailing opinion is thought by some critics to have attached a qualification when he wrote: " It is true that the burden of establishing imposition and undue influence rests, in the first instance, upon the party by whom it is alleged. Fraud is never to be presumed from the mere concurrence of temptation and opportunity, or from the mere fact that the chief actor is also the principal beneficiary. It must be established by affirmative evidence. It is thus established, however, when facts are proved from which it results as an unavoidable inference. When such evidence is furnished, the burden of repelling the presumption, to which it leads, is cast upon the party to whom the fraud is imputed ” (p. 594). Proponent then is bound to oppose and to resist, he is not obliged to overcome. In another part of his opinion Judge Porter speaks of the proponent’s right and interest to countervail the force of the facts displayed by the contestant. By this language, no heavier duty is cast upon proponent than to restore to equilibrium. Judge Peckham in his dissenting opinion states: “It is conceded that the will was executed in legal form — all the proof required by law for that purpose was given. The burden of its impeachment then rested with the contestant. * * * The burden of proving such influence rests upon him who asserts it” (p. 597). From the language of both judges the rule may be deduced that after the contestant has sustained the burden which the law imposes upon him and has proved facts necessarily leading to an inference of undue influence, probate must be denied, unless the proponent by new evidence meets such proof or, in the language of Judge Porter, countervails it. Such a rule may be held to operate in no essential manner dissimilar from any rule where the burden of showing fraud is placed upon the party asserting it. The difference among the judges grew out of the facts rather than out of questions of law. The majority believed that the contestant had borne his burden and established his case by the weightiest evidence and that such evidence remained entirely unexplained by proponent. The minority reached the conclusion that there was nothing, rising to the dignity of evidence, which showed undue influence. Within ten years after the decision in Tyler v. Gardiner this court, through Judge Earl, expressed the view that ordinarily, when an instrument offered for probate is executed in the mode prescribed by law, evidence of such execution is sufficient proof not only of the factum but also of the testator’s understanding, volition and intent. (Rollwagen v. Rollwagen, 63 N. Y. 504, 517.) In Cudney v. Cudney (68 N. Y. 148, 152) Judge Rapallo used language which may reasonably be inferred to mean that, according to his conception, the obligation rests upon the contestant to prove that the instrument was not really the will of the testator rather than that the duty is with the proponent to show absence of coercion or duress. Certainly that is the interpretation which Chief Judge Cullen and all his associates in Matter of Kindberg (207 N. Y. 220, 228, 229) placed upon the expression in the Cudney opinion. In Matter of Smith (95 N. Y. 516, 522) these are the opening lines of Judge Andrews’ opinion: “Undue influence, which is a species of fraud, when relied upon to annul a transaction inter partes, or a testamentary disposition, must be proved, and cannot be presumed.” The same learned judge, a year thereafter, concurred with an unanimous court in Judge Danforth’s opinion in Matter of Martin (98 N. Y. 193, 196, 197) wherein the statement is made that a will proved by proponent to have been executed by one having testamentary capacity and having knowledge of its contents and also executed in the form prescribed by statute “ can be avoided only by influence amounting to force or coercion, and proof that it was obtained by this coercion. The burden of proving it is on the party who makes the allegation. These principles are well settled (Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 id. 148).” In Matter of Kindberg (supra) Chief Judge Cullen, in commenting upon an expression in the body of the opinion in Matter of Smith (supra), said with the concurrence of all his associates: “ This is a very different proposition from the statement that the burden of proof was on the proponent, Undue influence is an affirmative assault on the validity of a will, and the burden of proof does not shift, but remains on the party who asserts its existence (Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 id. 148; Matter of Martin, 98 id. 193, 196).” Because this statement by the chief judge was not necessary to the actual decision in the Kindberg case, it has been at times subjected to criticism and the thought has been uttered that it failed to recite the rule as previously announced by this court. (Matter of Hermann, 87 Misc. Rep. 476, 480, 502, 503.) However, within the past three years we have reiterated our interpretation of the earlier cases and have restated and again adopted the rule as expressed obiter in the Kindberg case. In Matter of Anna (248 N. Y. 421, 427) Judge Pound, without dissent from any member of the court as now constituted, stated the doctrine with precision and concentrated the whole theory in these few words: “ The burden of proof upon the question of undue influence rested on the contestants. They, however, offered sufficient evidence which, if unexplained, made permissible an inference in their favor. (Matter of Smith, 95 N. Y. 516; Smith v. Keller, 205 N. Y. 39; Matter of Kindberg, 207 N. Y. 220, 228.) ” This language states nothing more or less than the principle expressed in the following excerpt from the prevailing opinion in Tyler v. Gardiner: “ When we find the party, whose right and interest it was to countervail the force of the facts by evidence, content to leave them unrebutted and unexplained, and to abide by the conclusions to which they so clearly tend, we have nothing to do but to draw the inevitable inference, and, applying the settled rules of law, to sustain the rejection of the will ” (p. 574).

Under the rule as stated through these many years and in the Anna case so recently again asserted, proponent need not overcome contestant’s evidence. If he neutralize it, he proceeds as far as the law requires. If he acts with equal force, if he supplies an equivalent weight, he compensates the evidence against him and leaves the scales in equipoise. For him counterweight is enough; for contestant overweight is required. Like the procedure in any kind of trial where a party asserting an affirmative defense must bear the burden of proving his allegations, such a party is entitled to a verdict or a decision when his undisputed evidence warrants an inference that his allegation is correct. If a proponent be content to remain passive and to refrain from explaining the legitimate inference flowing from his adversary’s evidence, his case must necessarily go against him. He cannot be allowed to ignore the evidence advanced by the one whose affirmative duty it is to bear the burden and produce the proof. The contestant’s evidence must preponderate and his burden does not shift. Prima facie proof by proponent, based upon evidence which has not been overborne by contestant, may be deemed sufficient under section 144 of the Surrogate’s Court Act to satisfy the Surrogate and make appear to him the fact that decedent was not under restraint. This is the rule which this court has proclaimed and enforced. At this late day, we ought not to change it.

The order should be affirmed and judgment absolute ordered against the appellants on the stipulation, with costs in all courts. (See 258 N. Y. 632.)

Pound, Crane and Kellogg, JJ., concur with O’Brien, J.; Cardozo, Ch. J., Lehman and Hubbs, JJ., concur in the result on the authority of Matter of Kindberg (207 N. Y. 220).

Ordered affirmed, etc.