author:
Balcom, J.
     Selden, J.,

text:
    Clark, Executor, v. Gilbert.
    The compensation of an agent or servant, employed under a special contract, the complete performance of which is prevented by his sickness and death, is not confined to a quantum meruit, but is to be measured by the contract.
    Whether the compensation is to be reduced by an allowance in the nature of damages for a loss of profits which,, but for the agent’s death, would have accrued to the principal as a result of his further services, quaere.

      An agent was employed to superintend an engineer work under a contract by which he was to receive as wages one-third of the profits. He died alter a considerable portion of the work had been done, and it was completed "afterwards at a large "profit. The cáse not showing how" the profits were distributed as to'time, they áre to be deemed to have accrued •ratably iii proportion to the amount and cost of the work accomplished, and his compensation is measured by one-third of such a proportion of the whole profits as the cost of the work done at the time of his death bears to "the entire cost of the work when completed.
    Action commenced in 1858 to recover compensation for personal services rendered by the testator of the plaintiff for the defendant in the State of California.
    Prior to February, 1853, the defendant and others had made a contract with the government of the tTnited States, for the construction of a sectional floating dry dock, at Mare Island, California, and they were to have a lease and the use of said dry dock for the term of three years, for the repair of merchant vessels as well as government vessels. They were then the owners of a patent right to build a basin and railway to use in connection with said dry -dock; and they expected to enter into a contract with the government for the construction of a basin and railway at the navy yard in California, to be used in connection with the dry dock; and after-wards, on or about the first day of July, 1854, they did enter into such contract with the government.
    On the 8th day of February, 1853, the defendant and his associates had commenced'constructing the dry dock; and on that day, at Mew York, the defendant made "an agreement in writing, with the plaintiff’s testator (William A. Heermans), by which Heermans was to go to California and take charge ■ of the defendant’s interest (which was one-fourth), in the dry dock contract, and also his interest in all other contracts which should be made, or business in any manner connected with such contracts or works; and the defendant was to pay him a specified-salary for his services; and also one-third of all the profits that should be paid to the defendant for the aforesaid ■business, , and to make .payments to him as fast' as-the profits should be ascertained and divided, or in any way drawn from the business. In pursuance of this agreement Heermans (the testator), went to California, arriving there the 18th day of March, 1858. He thereupon took charge of the one-quarter interest of the defendant in the contracts for the construction and lease of the dry dock and in the business connected therewith; and after the making of the contract for the construction of the basin and railway, he took charge of the defendant’s interest therein; and he faithfully performed the duties required of him, according to the agreement before stated, without interruption, from the time he arrived in California, until the 1st day of April, 1856; and he faithfully performed all such duties until his death, except so far as he was prevented by sickness. About the 1st day of April, 1856, he became sick and in consequence was absent from the business until the 1st day of July, 1856, and thereafter he gave but little attention to the business, except looking over the books, accounts and balance sheets, until the 27th day of July, 1856, when he died,
    The contract for the construction of the dry dock was performed, and the dry dock was finished prior to April, 1856, and at that time the materials for the construction of the basin and railway had been purchased, and mostly delivered, and about half of the work of constructing the same remained to be performed. On the 27th day of July, 1856, there remained to be done, and used to complete the work, about $17,500 in value of labor and material. The basin and railway were completed in September, 1856, and accepted by the Government, in November of that year. The dry dock was completed in 1854, and occupancy thereof by the defendant and his associates terminated November 5, 1856. The dock was put in operation in 1858.
    The defendant and his associates received from the United States Government $1,450,000 for constructing the dry-dock basin and railway. The defendant received $84,920.90 for his share of the profits of constructing the basin and railway. Neither Heermans nor- the plaintiff, as his executor, received any portion of those profits, one-third of which the plaintiff endeavored to recover in this action. Heermans was paid $8,416.71.

      The action was twice tried before a referee. On the first trial the referee decided that the plaintiff was entitled to recover $28,449.66. He’ then ascertained the compensation to which Heermans was entitled from the contract the defendant made with him. On the last trial he decided that the value of the services rendered by Heermans, under the contract with the defendant, was the sum of only $300, over and above what he had been paid; “ such value being ascertained without reference to said contract or profits, and independent thereof.” And he held that neither the contract between the defendant and Heermans, nor the amount of profits received by the defendant, could be taken into consideration in fixing the sum which the plaintiff was entitled to recover. To these conclusions the plaintiff’s counsel excepted.
    The judgment entered on the first decision of the referee was reversed, and a new trial granted, at a general term of the Supreme Court in the first district. (32 Barb., 576.) The judgment entered on the last decision of the referee was affirmed at a general term of the” Supreme Court in the district; and the plaintiff appealed to this court.

      John H. Reynolds, for the appellant.

      George F. Comstock, for the respondent.
   Balcom, J.

This court decided, in Wolfe v. Howes (20 N. Y., 197), that, where a person is prevented by sickness or. death from felly performing a contract for his personal' services, which he has partially performed, compensation may be recovered for the services actually rendered by him under the contract. That decision shows that the plaintiff, as executor, may recover, in this case, compensation for the services his testator rendered for the defendant, although he was prevented by sickness and death from performing all he was to render according to the agreement between them: also, that the agreement is “of consequence” in measuring or regulating the compensation to which the plaintiff is entitled. The latter conclusion is irresistible, for the reason that the agreement was not rescinded by the death of the testator, but remained in force, so far as to show his employment by the defendant and the value of the services rendered under it. Besides, it would be palpably unjust to disregard the stipulated value of the testator’s services, for it is evident that he was employed in consequence of his integrity and capacity for the services required; and to allow the defendant now to reduce the value of such services by proof of the sum for which he could have employed another person to perform the same services, in whom he might or might not have had confidence, would enable him, according to the first decision of the referee, to gain more than $20,000 by the testator’s death.

The. question whether a servant, who has not fully performed his contract, is, prima facie, entitled to recover the stipulated value of the services actually rendered, when disabled by sickness from serving the full term agreed upon, was not properly before the Supreme Court in Fahy v. North (19 Barbour, 341). The servant, in that case, recovered fifty Srits per month less than his employer was ■ to pay him, cording to the agreement between them, but he did not opeal from the judgment; his employer was the'appellant, ,d the only material question determined on the appeal was, whether the sickness of the 'servant was an excuse for his not working the length of time agreed upon; and the court held it was.

There is -no case which holds that where the full performance of a contract for personal services is prevented by the sickness or death of the party, who was to render the services, a greater compensation can be recovered than the stipulated-value, on pfoof that, the services were worth more than such value. But there are decisions, that the recovery in» such a case cannot exceed the contract price, or the rate of it for the part of the service performed. (Cole v. Smith, 4 Ind., 79; Allen v. McKibbin, 5 Mich., 449.) The doctrine was asserted in Allen v. McKibbin, that the servant cannot be permitted to gain by his sickness, nor can the employer be permitted to lose by it.

The Supreme Court of Vermont held in Patrick v. Putnam (27 Vt., 759), that a person contracting to labor for a definite term, who fails to fulfill his contract by reason of sickness, is liable to have the amount of his recovery reduced from the contract price, by the damages sustained by his employer, in consequence of Ms not being able to complete the full term of service. This rule is equitable; and it should be applied to such cases, although the servant is not to be regarded as violating Ms contract, in consequence of Ms inability fully to. perform it, by reason of Ms sickness or death. His failure fully to perform his contract, for such a cause, is Ms misfortune aad not Ms fault; and his employer should neither gain nor lose by it.

This rule is just to the servant as well as the employer; and it should have been applied to this case. Much more might be said in favor of this rule, but it needs no vindication; it is so well grounded in good sense it sufficiently commends itself. It may be said to be a common sense rule, and common sense is the basis of all just law.

This rule does not conflict with the decision of this court in Jones v. Judd (4 Comst., 412). In that case the defendant had a contract with the state to complete certain sections on the Genesee Valley canal, and he sublet a part of the work to the plaintiffs at a certain stipulated price per yard for excavation, and a certain other stipulated price per yard for embankment. After the plaintiffs had done a portion of the easiest work on their job, the state, by a legislative act, stopped the work; and this court, by an equally divided vote, affirmed a judgment by which the plaintiffs had recovered the stipulated prices per yard for what earth they had excavated and embankments they had made. « The plaintiffs in that case were not in default' at all; and although the defendant was not blamable for the stoppages of the work, he had his remedy against the State for all damages he sustained by reason of the" stoppage. That case, therefore, is clearly distinguishable from this.

By applying the rule to this case, that the servant, when prevented by sickness or death from fully performing a contract for his personal services, may recover compensation for the services performed, at the rate specified in the contract, subject to the right of the employer to reduce the same, by proofof the damages, if any, sustained by him in consequence of the servant not being able to complete the stipulated term of service, justice would be done to both parties, and the plaintiff would recover one-third of the profits earned, at the time of the testator’s death, on the contracts the defendant and his associates had with the government of the United States, not only for constructing the dry dock and the lease of it, but also the basin and railway, after deducting the damages, if any, the defendant sustained in consequence of the sickness and death of the testator, prior to the completion of the work.

The first decision of the referee shows that the compensation of the testator can be ascertained from the evidence, according to the measure fixed by the contract.

It is no objection to the rule above stated, that at the time the testator died, the profits earned upon the contracts the defendant and his associates had with the United States Government, could not have been ascertained; and that if the action had then been brought and tried, it would have been impossible to measure the testator’s compensation for services in the manner specified in the agreement under which they were performed. If the plaintiff had then brought his action, and failed to recover the proper compensation, because it was impossible for him then to make the requisite proofs, he would have been beaten, as any other person is when he fails to obtain justice for the want-of legal evidence to establish his case. The plaintiff acted wisely, and waited until he could legally and properly prove his case, before bringing his action. But it is unnecessary to determine whether the plaintiff could have brought this action immediately after the testator died, or was obliged to wait until the dry dock, basin and raibvay were completed and paid for by the United States before Bringing it; and I will not express an opinion upon the question.

The cases relied on by the Supreme Court, to support the position that the agreement under which the services were performed, could not be resorted to, for measuring the compensation therefor, because the same could not be ascertained by “ arithmetical calculation,” arose in actions to recover compensation for services performed under agreements void by the statute of frauds; and are inapplicable to a case where the services were performed, as in this, under a valid contract.

The foregoing views lead to the conclusion, that the referee erred, on the last trial, -in ascertaining, the value of the testator’s services without reference to the agreement under which they were performed, or. the profits the defendant made and received upon the contracts he and his associates had with the Government of the United States, for constructing the dry dock, basin and railway, and the lease of the dry dock.

The judgment of the Supreme Court should be reversed, and a new trial granted, costs to abide the event.

Some of the judges dissented from the idea that the agent, not being in fault in dying, could be treated as liable to damages to compensate the principal for a reduction of the profits in the further prosecution of the work, arising from the loss of the agent’s services. The case did not show what loss, if any, was sustained by the defendant from this cause, but showed a profit upon the work as a whole. It was thought that,.in the absence of evidence, the profits should be regarded as distributed ratably throughout the work, and as divisible, not in proportion to time, but to the amount of work performed and material furnished. The result of the discussion was this:

Selden, J.,

did not sit in the case; all the other judges were for reversal; and all of them, except Rosekranb and Balcom, Js., concurred in this rule, propounded by Marvin", J., for measuring the plaintiff’s damages V'The testator’s compensation is to be ascertained by taking one-third of such a proportion of the whole profits earned and received by the defendant as the amount and cost of the work done at the I time of the. testator’s death bears to the entire cost of-the work when completed.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

author: Selden, J. Balcom, J.

license: Public Domain

text:
    The People v. Vanderbilt.
    The act of March 27, 1821, for extending the Battery in the city of New York, is not a contract: so far as it gave the city the title to the land under the waters of the Hudson, it was a mere transfer to the city authorities of a public trust and of the title as ancillary to its execution. If unrepealed, that act created no obstacle to the enforcement, at the suit of The People, of the prior limitations of the grant for the purpose of preventing obstructions to the public right of navigating the stream.
    The act of 1821, however, was repealable, and was repealed by the act of 1857, establishing bulkhead and pier lines for the port of New York, so far as to reinvest The People with the title to the bed of the Hudson outside the pier lines.
    The sinking of a crib or pier in the river outside of the line established by the act of 1857 could not be authorized by the authorities of the city, and was a purpresture and nuisance, to be restrained and abated at the suit of The People, irrespective of the question whether any damage arises therefrom.
    Such an erection in a public river is, it seems, a nuisance, whether it can be shown to produce any injury or not.
    The fact, it seems, that the city was authorized by the act of 1821 to fill up a part of the bed of the river for public purposes, is no protection to one proceeding upon its authority to fill it up for another and a private purpose. ■
    A judgment approved and affirmed, which, in addition to enjoining the defendant from completing the pier he had commenced, required him to remove the crib already sunk. The court-, it seems, may abate the nuisance by its own officers, or require the party to do it. ■
    Appeal from the Supreme Court. In November, 1861, when this suit was commenced, the defendant was engaged in-the construction of a pier in the harbor of New York, and had sunk a “crib” at a point west of the foot of Battery Place, and south of pier No. 1, in the North River, which “ crib ” was to be filled with stone, and to constitute a part of said pier. The object of the action was to restrain the defendant from proceeding with the erection of the pier, and to compel the removal of the part already built, as an encroachment upon the harbor, an obstruction to the navigation, and therefore a public nuisance.
    Upon the trial, at special term, the plaintiff put in evidence the various charters of the city of New York, and also several statutes, among which were, the “ Act for the appointment of a commission for the preservation of the harbor of New York from encroachments, and to prevent obstructions to the necessary navigation thereof,” passed March 30th, 1855, and the “ Act to establish bulkhead and pier lines for the port of New York,” passed April 17th, 1857. The last of these acts provides (§ 1), that “ The bulkhead line, or line of solid filling, and the pier line, adjacent to the shores of the port of New York, are hereby declared and established to be the bulkhead and pier lines recommended to the legislature by the commissioners appointed under the act entitled “An act for the appointment of a commission for the preservation of the harbor of New York from encroachments, and to preserve the necessary navigation thereof,” passed March 30th, 1855, in their reports of January 27th, 1857, and March 18th, 1857, and as laid down on the map accompanying said reports, entitled, “ Atlas of New York Harbor, made under the direction of the harbor commissioners, in two volumes,” &c., &o. The maps referred to in this provision were also introduced in evidence, duly certified by the secretary of state, under objection and exception by the defendant’s counsel, upon the ground that they were inadmissible for the purpose of explaining and enlarging the terms of the statute.
    On the part of the defendant it was shown that the common council of the city of New York, on the 16th of May, 1853, adopted the following resolution, viz.: “Resolved,, that permission be and it is hereby granted to C. Vanderbilt, Esq., to widen a small pier, south side of pier No. 1, North River, on the southerly side, so as to make the same forty feet wide, and that it be extended, parallel with pier No. 1, to the exterior line, at a distance of 150 feet from said pier, under the direction of the street commissioner.”
    The defendant’s counsel also read and relied upon the statute, entitled, “An act to provide for the expense of extending the Battery in the city of New York, and for other purposes,” passed March 27th, 1821, which, among other things, provides, “ That it shall be lawful for the mayor, aldermen and commonalty of the city of New York, to extend that part of the city usually called the Battery, into the bay and North and Bast Rivers, such distance as they may deem proper, not exceeding 600 feet; and further, that all the title of the people of this State, in and to the land and land under water, in front of and adjoining to the said Battery, and extending from thence into the bay and the North and Bast Rivers, a distance not exceeding six hundred feet, shall be and the same is hereby vested in the mayor, aldermen and commonalty of the city of New York, and their successors forever, to remain for the purpose of extending the said Battery for a public walk, and for erecting public buildings and works of defence thereon, but without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part thereof.”
    It appeared that the crib sunk by the defendant, and the whole work done by him was within the six hundred feet specified in this provision and entirely upon land, the title of which was vested by it in the city, but that it was outside of and beyond the “bulkhead and.pier line,” laid down upon the maps referred to in the statute of. 1857, and which had been introduced in evidence by the plaintiff.
    The defendant’s counsel offered to prove that the crib and proposed pier were not, and would not be when complete, a nuisance, nor interference in any manner with the navigation of the river. But the court held, that if the pier was unauthorized by law, it would be, per se, a nuisance, without regard to its effect upon navigation, and rejected the evidence; to which the counsel for the defendant excepted. Upon this state of facts the judge decided that the pier was an unauthorized structure in, and an encroachment upon, the harbor of New York, and was therefore a public nuisance, and granted a perpetual injunction.
    The judgment entered, in addition to ordering an injunction, contained the following provision: “ And it is hereby further ordered and adjudged, that the said defendant do forthwith and within thirty days after service, upon him or his attorneys, of a copy of this judgment, remove the crib or structure referred to in the complaint in this action, erected by him in the waters of said harbor, south of pier No. 1, North Eiver, which crib or structure is hereby adjudged to be a public nuisance in the waters of said harbor, so that the same shall be entirely taken away, and the nuisance created thereby wholly abated, and so that the waters of said harbor shall be and remain as they were before said crib or structure was erected.”
    The judgmént was affirmed at general term, whereupon an appeal was brought to this court.

      Charles A. Rapallo, for the appellant.

      William Allen Butler, for the respondent.
   Selden, J.

It will conduce to a clear understanding of this case, to exclude in the first instance all consideration of the act of April 17th, 1857, and to ascertain what would be the position and rights of the parties, irrespective of that statute.

If restrictions like those inserted in the act of 1821, upon the use and the power, of sale of the land conveyed, had been contained in a conveyance granting land for the sole benefit and emolument of the grantee, they might not have been available at all to the grantor, or if at all, orily as implied .covenants on the part of the grantee. (Craig v. Wells, 1 Kern., 315.) But the grant here is not for the pecuniary benefit'of the corporation, but is made in trust for the public at large. It is a mere transfer, pro tanto, to the city authorities of the public trust vested in the people as the sovereign power, in respect to the lands in question, and a conveyance of the title for the purpose of enabling those authorities to execute the trust. The people although parting with their title, did not divest themselves entirely of their obligation- to protect the public against any encroachment upon the navigable waters in question, other than such as the statute authorized. There is, therefore, no obstacle, notwithstanding the transfer of the title, in enforcing in the name of the people, the limitations contained in the act of 1821, so far as to prevent the erection of a nuisance in contravention of the provisions of that act.

The counsel for the defendant contends that nothing has-been done which is inconsistent with the act of 1821; that as the city was authorized by that statute to fill up the Tams in quo for a certain purpose, and as in the accomplishment of that purpose the city would have a right to do all that the defendant, acting under the authority of the city ever has done, no foundation was laid by the proof aside from the act of 1857, for any injunction upon the work.

With a view to this objection, it will be well to look particularly at the judgment, which consists of two parts. The first perpetually enjoins the defendant “ from building, erecting or maintaining, any pier or structure in the waters of the harbor of New York, south of pier No. 1 North river, and north of Castle Garden.” The second provides for the removal by the defendant of the work already done, within thirty days after notice of the judgment.

The objection referred to has no application to the first part of this judgment, which is purely prospective, and relates not to what the defendant had already done, but to what it appeared'he intended thereafter to do. Injunctions are usually prospective in their operation, and are designed in general to prevent the doing of some unlawful act, which the defendant threatens, or is about to perform. The terms of the resolution under which the defendant in this case proceeded, are abundantly sufficient to warrant the court in assuming that he intended to erect a pier for his own private gain; or, at least, for some use inconsistent with that prescribed by the act of 1821. It was entirely proper, therefore, so far as this objection is concerned, that he should be restrained from accomplishing his purpose.

With respect to the other portion of the judgment, the objection has more plausibility. The argument that it would be improper and useless to compel the city or any one acting under its authority to remove material from the bed of the river or harbor, merely on the ground that it had been placed there for a wrong purpose, when the city might the next day put it back again for a legitimate purpose, is not without apparent force. Still, we think this branch of the judgment may be supported even without reference to the statute of 1857, as the city would have no right to place or keep obstructions in the harbor, although they might be made to constitute a part of the work it was authorized to perform, unless it intended in good faith to go on and complete such work.

The act of 1821 proceeded upon the ground that the inconveniences arising from obstructions in the navigable waters of the harbor, would be more than counterbalanced by the advantages to be derived from the performance of the work it authorized. But unless this judgment can be sustained, the city might permit the obstructions produced by the crib to remain in perpetuity, without the compensating benefit contemplated by the act.

There is, however, another objection, which, considering the case irrespective of the act of 1857, it is more difficult to answer. The judge upon the trial assumed that if the pier was unauthorized, it was, per se, a nuisance, and rejected all proof that it was not so in fact, Was this correct ?

The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct. The first of these rights is by the common law vested prima facie in the sovereign power; that is, in England, m the king, here, in the people; but may be alienated by the king or people so as to become vested in an individual or corporation. (Hale, De Jure Maris and De Portibus, 1 Harg. Law Tracts; Rogers v. Jones, 1 Wend., 237.) The second is a right common to the whole people, and it is vested in the public at large. A purpresture is an invasion of the right of property in the soil, while the same remains in the king or the people. A nuisance is an injury to the jus publicum, or common right of the public to navigate the waters. It will be seen, therefore, that there is a wide difference between the two, and that although they may coexist, yet either, may exist alone without the other.

If the injury complained of be a purpresture, it may be abated and removed at the suit of the attorney-general in England, and of course of the people in this State, whether it is a nuisance or not. (Eden on Inj., § 9, p. 259; Attorney-General v. Richards, 2 Anst., 603.) Being an encroachment upon the soil of the sovereign, like trespass upon the soil of a private individual, it will support an action irrespective of any damage which may accrue. But where the action is to remove a nuisance, which is not a purpresture, a nuisance in fact must in all cases be shown to exist. (Hale, de Portibus Maris, chap. 7; Attorney-General v. Richards, supra.) In the present case the title to the land being vested in the city, there could be no purpresture, and as the defendant acted under the authority of the city, if the case depended upon the .act of 1821 alone, without regard to that of 1857, the decision of the judge excluding evidence that the structure was not and would not be when completed, a nuisance, would have been clearly erroneous. It becomes necessary, therefore, to consider the effect of the latter act.

It is insisted that this act does not aid the plaintiff’s case. First, because it does not locate and define any exterior pier line by its own provisions, or by reference to any existing map of record, but only according to maps thereafter to be filed by the harbor commissioners. This is said to leave it in the power of the commissioners to define the limits within which the law should operate, which it is insisted is an unauthorized delegation of legislative power. It will appear, however, by reference to the act, that with certain exceptions not affecting this case, -the pier line is established according to certain maps made and presented to the legislature long before and which were produced upon the trial from the office of the Secretary of State.. But were it otherwise, there is nothing to prevent the passing of a legislative act authorizing the harbor commissioners to locate such a line. Much greater delegations of power are frequently made to municipal and other public bodies.

It is further objected that the law of 1857, in so far as it is in derogation of the rights granted to the city by the act of 1821, is inoperative and void. This objection must rest solely ' upon that provision of the National Constitution, which prohibits States from making any law impairing the obligation of contracts. The legislature has an undoubted right to repeal or modify any previous statute which does not partake of the nature of a contract. The law of 1821 is not a contract. No pecuniary interest is granted by it to the city. It was passed exclusively for public purposes, and simply substitutes the authorities of the city for the' legislature in the accomplishment of certain public objects. It was subject, therefore, at any time and to any extent, to alteration or repeal. Although the act of 1857 does not in terms restore the title to the land outside the pier line and within the six hundred feet to the people of the State, ypt such, no doubt, was its effect. That title having been transferred to the city for a specific public purpose, and that purpose having been abandoned and its accomplishment rendered impossible by the act of 1857, the latter act must operate pro tanto as a repeal of that of 1821, and the title would "of course revert to the people. It follows that the whole structure outside the pier line, it having been commenced after the passage of the act of 1857, was a purpresture and liable to be removed irrespective of the question whether it was or was not a nuisance.

It is no answer to the action, that there is another remedy under the act of 1860, imposing certain duties upon the commissioners of pilots. A statutory remedy never takes away a previous remedy at common law, unless such an intention is declared, but it is always held to be cumulative merely.

The only remaining objection is to the form of the judgment, which it is said should not have directed the defendant himself to remove the crib, but should have left this to be done by the proper officer. This objection if well taken, would not warrant an appeal to this court, but the error should have been corrected in the court below on motion. But the judgment, although not in the usual and most approved form, is, we think, not objectionable. In the case of Ryder v. Bentham (1 Ves., Sen., 543), the Lord Chancellor appears to have made an order that the defendant himself pull down the scaffolding, which he had erected to the injury of his neighbor’s rights, and we doubt not other precedents might be found for such a direction. Our conclusion, therefore, is, that the judgment should be affirmed. •

Balcom, J.

It cannot be doubted that the crib, or pier, which the defendant commenced erecting in the waters of the harbor of New York, was a public nuisance, unless he was authorized to build such a structure at that place, by some power competent to confer such authority. Woolrych says, “an obstruction-in a public river is a nuisance,” such as the erection of a wharf, “ so as to narrow the river,” and, “ at the common law, any encroachment upon a public stream was considered to be purpresture; that is to say, the making of that several and private which ought to be commonto many.” (Woolrych on Waters, Law Library, 4th series, vol. 53, pp. 192, 195.) It was held, in Hart v. The Mayor, &c., of Albany (9 Wend., 571), that it is not lawful for an individual, without grant, to construct and moor a floating storehouse or vessel for the receiving and delivering of goods and merchandise in any public river, or in any port or harbor, or in the basins or docks thereof; and that such permanent, appropriation and exclusive occupation of a public river, &c., is an obstruction to its free and common use, and is indictable as a public nuisance. (The People v. Cunningham, 1 Denio, 524.)

The defendant claimed, at the trial, and still claims,, that he was authorized to construct the proposed pier by a resolution of the common council of the city of New York, which was passed by such council and approved by the mayor of that city on the 16th day of May, 1853. By that resolution, permission was attempted to be given to the defendant to widen a small pier on the south side of pier number one, North river, on the southerly side, so as to make the same forty feet wide, and that it be extended parallel with pier number one, to the exterior line, at a distance of one hundred and fifty feet from said pier, under the direction of the street commissioner.

The mayor and common council of New York City had no authority to grant the defendant such permission. It has been held, in England, that a legal grant from the crown cannot make an erection in a. public river for private purposes legitimate ; and that the right of the public to the unobstructed use of navigable waters is paramount to any right of property in the crown. (Woolrych on Waters, Law Library, 4th series, vol. 53, p. 194.)

The defendant’s counsel insists that the act “ to provide for the expense of extending the Battery in the city of New York, and for other purposes,” passed March 27,1821 (Laws of 1821, p. 158), authorized the common council of that city to pass the resolution in question. But he is mistaken. For it is obvious that the defendant was constructing the proposed pier for private objects, and not for the purpose of extending the Battery; •and the act referred to, after providing for the extension of that part of the city called the Battery “into the bay and North and East rivers,” not exceeding six hundred feet, declared that the title to the land that distance under the water was vested in the mayor, aldermen and commonalty of the city of New York, “to remain for the purpose of extending the said Battery for a public walk, and for erecting public buildings and' works of defence thereon, but without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part thereof.”

The-defendant sank the crib and was constructing the pro-. posed pier further into the waters of the bay and North river than any person could lawfully erect one, according to chapter 763 of the Laws of 1857 (Laws of 1857, vol. 2, p. 638), or chapter 522 of the Laws of 1860 (Laws of 1860, p. 1062). The defendant cannot avoid liability for what he did and intended to do, on the ground that the proof does not show the People sustained or would sustain any actual damage by the crib or proposed pier. It was held, in the case of The King v. Ward (4 Adol. & Ellis, 384), on a trial of an indictment for. a nuisance in a navigable river and common King’s highway,- called the harbor of Cowes, by erecting an embankment in the waterway, that a finding by the jury that the embankment was a nuisance, but that the inconvenience was counterbalanced by the public benefit arising from the alteration, amounts to a verdict of guilty: also, that it is no defence to such an indictment that, although the work be in some degree a hindrance to the navigation, it is advantageous in a greater degree to other uses of the port.

The crib sank by the defendant and the proposed pier were a purpresture, and were, per se, a public nuisance. (Waterman’s Eden on Injunctions, vol. 2, p. 259, ch. 11.) The offer, therefore, of the defendant’s counsel to prove by the testimony of witnesses that the crib and proposed pier were not, and would not be, an actual nuisance, and would not injuriously interfere with or affect the navigation of the river or bay, was properly overruled.

The remedy to prevent the erection of a purpresture and nuisance in a bay or navigable river, is by injunction at the suit of the Attorney-General. (Wat. Eden on Inj., vol. 2, ch. 11; Davis v. The Mayor, &c., of New York, 4 Kern., 526; The Attorney-General v. Richards, 2 Anst., 603.)

In the case last cited, the information stated that the defendants-had erected a wharf or key, two docks and other buildings, between high and low water-mark in Portsmouth harbor, so as to prevent the boats and vessels from sailing over that spot or mooring there, &c., and prayed that the defendants might be restrained from further that those made might be abated, and the harbor restored to its ancient situation ; and the court decreed that the buildings be abated;

The judgment in the case at bar is, that the defendant be restrained from erecting, the proposed piér, &c., and that he remove the crib within thirty days after service upon him of a copy of the judgment.

No authority has been cited to show that it was erroneous to require the defendant to remove the crib; and I think there is none. This part of the judgment is right upon principle, and is somewhat supported by the case of The Attorney-General v. Richards (supra), and it ought to stand.

- The judgment of the Supreme Court should be affirmed, with costs.

Davies, J., did not sit in this case; all the other judges were for affirmance—Marvin, J., upon the opinion of Selden, J.; Denio, Ch. J., and Wright, J., concurring with Balcom, J., that any erection in a public river is a nuisance per se; as the Reporter understood the other judges to do also.

Judgment affirmed.


author: Denio, Ch. J.

text:
    Andrews v. The Artisans’ Bank.
    The crediting by a bank to a dealer of the proceeds of a note which it had been induced to discount by his fraudulent representations, and the payment thereof upon his checks, do not prevent the bank from setting ‘ up the fraud by way of defence or counter-claim in his action for moneys subsequently deposited.
    Where such action is brought before the maturity of the note, evidence that the bank had offered to return it upon discovering the fraud is not a prerequisite to its giving proof of such fraud. Nor is it an objection that the bank was shown to have held the note and presented it for.payment at maturity. The latter fact, it seems, is not conclusive that it had affirmed the contract of discount.
    This action was brought in the Supreme Court on the 11th May, 1860, to recover an amount alleged tó be due the plaintiff as a dealer and depositor in the defendant’s bank. On the trial in January, 1861, it appeared by the pass book of' the plaintiff, the entries in which were made by the defendant’s clerks, that, on the 9th day of May, 1860, there was, to the plaintiff’s credit in his account with the bank, the sum of $2,580.15. On that day the plaintiff caused his check to be presented for $2,250, but payment was refused. " It further appeared that on the 19th April, preceding, the balance to the credit of the plaintiff was $6,703.45, and that on that day he procured the bank to discount a note for $5,227.63, made on the 16th March, 1860, by Charles S. Bensen and indorsed by the plaintiff, and payable at four months after date, the proceeds of which, $5,139.39, were placed to the plaintiff’s credit. After this entry, and before the refusal to pay the check in question, the plaintiff made various considerable deposits and drew his checks to a large amount, which were regularly paid ; and at one time, namely, after the business of the 25th day of April, the balance to the credit of the plaintiff, allowing all the entries, would be only $344.39. After that, on the 30th April, the plaintiff deposited $2,235.76, thus increasing his balance to the ab'ove mentioned sum of $2,580.15, and at which it stood, when the check was refused. It also appeared that at the maturity of the note of Bensen it was duly protested for non-payment, by the defendant, who caused notice thereof to be given to the plaintiff as indorser.
    The defendant then offered to prove that the plaintiff, in order to induce the defendant’s president and cashier, to discount the note of Bensen, and to place- the proceeds to his. credit, represented to them that Bensen “was perfectly responsible, and that his note or indorsement were as good as gold, and that he was wealthy and was not engaged in any business to embarrass himand that these officers, believing in and relying upon the said representations, consented to receive the said note and to credit the amount, as was done, and that without said representations they would not have so done; and that those representations were entirely false, to the knowledge of the plaintiff; and that Bensen was at that time wholly insolvent, and shortly after'said discount, made an assignment of all his property in trust for his creditors, with preferences in favor of parties other than the defendant, a large portion of his debts being contracted in a business in which he was connected with the plaintiff, and that the representations were made with a view to defraud the defendant, the plaintiff himself being irresponsible. The defendant claimed to recover the amount which would be due the bank, by disregarding the credit of the note, having set it up by way of counter-claim in the answer. The judge, on the plaintiff’s objection excluded the evidence and directed a verdict for the plaintiff, and the defendant’s counsel excepted. After an affirmance of the judgment at the general term, the defendants appealed to this court.

      Francis Kernan, for the appellant.

      J. H. Reynolds, for the respondent.
   Denio, Ch. J.

If the facts respecting the discount of Ben-sen’s note were such as the defendant offered to prove them, the credit which-the plaintiff obtained on the defendant’s books, being the result of his fraud, was unavailing, either as a contract for the payment of the sum which was in form credited, or as evidence of money of the plaintiff in the defendant’s hands. The contract to pay the amount to the plaintiff upon his checks in the' usual course of banking business, which would have arisen, if no fraud had intervened, could not be predicated of the' transaction if it should appear to have been brought about by the fraud of the party seeking to avail himself of it. Fraud vitiates every contract and renders void as to the guilty party every transaction into which it enters. The Supreme Court, without questioning this self-evident proposition, was of opinion that the defendants could not avail themselves of it in this case, because, as it was considered, the fruits of the fraud had been actually delivered to the plaintiff when his checks had been answered' to the extent of the moneys to his credit on the books, except as to a small sum. Conceding' that the plaintiff had thus drawn from the bank the amount of this fraudulent and invalid credit, the defendant’s remedy was not limited to an action on the case for fraud, for the redress of this wrong. The law allows a shorter method, by holding that the money thus obtained was received by the plaintiff to the defendant’s use; and it implies a contract on the part of the plaintiff to repay it to the party from whom he had wrongfully obtained it. (Willson v. Force, 6 John., 110; Byxbie v. Wood, 24 N. Y., 607.) If the discounting of the note had been an isolated transaction and the proceeds had been immediately paid to the plaintiff, the defendants could, as soon as they had discovered the fraud, have brought assumpsit against the plaintiff to recover it from him, as for money which he had received for the use of the bank, and upon an implied promise to repay it; and in such case no notice or request is necessary, as there is a trust or implied agreement that the money shall be kept, for the party to whom it belongs. (The Utica Bank v. Van Gieson, 18 John., 485.)

In actions arising upon contract the Code of Procedure allows the defendant to interpose a counter-claim, which, if unconnected with the transaction set forth in the complaint, must also arise upon contract, and it must have existed at the commencement of the action. (§§149,150.) It is not essential that the contract upon which the counter-claim is based should be an express one. The classification of actions and defences does not, in the Code, or by the ancient practice, recognize any distinction between express and implied contracts. The distinction made by the second subdivision of the 150th section, is between demands arising ex contractu and such as originate in a tort, according to the former classification.

It follows from these views that if the defendants could have made good their offer of proof they would have entitled themselves to defeat the plaintiff’s action, and moreover to recover the balance of the money which they had parted with upon the fraudulent discount, unless they had affirmed that transaction by their subsequent conduct. The trial did not ^ proceed far enough to raise that question, for the judge excluded the evidence of fraud on the ground that if proved it would furnish no defence to the plaintiff’s claim. • The plaintiff, it is true, had proved that after issue joined in the suit, and before the trial, the defendant had caused the note to be presented for payment, and notice of non-payment to be given. This did not conclusively prove an adoption of the transaction. Before doing this, they had, by a very deliberate act of record, repudiated the contract of discount by claiming in the answer that it was induced by the fraudulent representations of the plaintiff, and under circumstances which enabled them to recover back the money in this suit. For aught we can know, they might have proved an offer to redeliver the note to the plaintiff, if they had been allowed to go on with their defence. I am not prepared to say that a formal presentment for payment, and a notice of non-payment would, under these circumstances, have warranted a conclusion that they had adopted the contract. The presentment for payment and the notice would, it seems to me, have been only a reasonable .precaution for the bank to take, and the adoption of the discount could not, I think, be legally inferable from it. Besides, if the defendants were chargeable with the note they would have to account only for its actual value, which according to the offer of proof, would- not have been great. But any- questions which may arise upon this branch of the case can be better determined when all the facts shall be presented.

The judgment must be reversed, and a new trial awarded.

Emott, J., dissented on the ground that the bank should have returned the note immediately upon discovering the fraud. All the other judges concurring,

Judgment reversed and new trial ordered.


author: Marvin, J.

text:
    The People v. The New England Mutual Life Insurance Company.
    The act (ch. 463 of 1853) for the incorporation of life insurance, and in relation to the agencies of foreign, companies, repeals so much of chapter 95 of 1851 as required the deposit by foreign companies of $100,000 with our comptroller.
    After such repeal, any foreign company was at liberty to withdraw the securities deposited by it; and although they remain on deposit in this State, it is not liable to taxation thereon as money invested in business in this State.
    Appeal from the Supreme Court. The parties submitted a statement of facts under section 372 of the Code, and asked the judgment of the court whether the defendant was liable to a tax imposed on it in Hew York city, upon $100,000, which, previous to February, 1852, it had déposited in mortgage securities with the comptroller of this State, and which remained in his custody when the tax was assessed. It was a corporation created by the State of Massachusetts, and had agents in Hew York and several other cities of this State, who received and transmitted to the office, in Boston, applications for life insurance. These agents were°in the habit of remitting the annual premiums for insurance, preliminary proofs in cases of deaths, &c., &c., but were not authórized to make, alter or discharge contracts, or to waive forfeitures. The tax was assessed upon the corporation upon the ground that the $100,-000 so deposited with the Comptroller, upon an intended compliance with the laws of this State, as a security for policy holders, was a sum invested in the business of the company in this State. It had ho 'other funds or property in this State, and did'business'here no otherwise than as above stated. The Supreme Court gave judgment for the plaintiffs for the amount of the tax, and the defendants appealed to this court.

      James C. Carter, for the appellant.

      Lyman Tremain, for the respondent.
   Marvin, J.

By the act of 1844 companies could be organized to make insurance on lives, &e., and for all kinds of insurance. Mo deposit with the comptroller was required to be made by any company created under the laws of another State, but companies incorporated by any foreign government other than the states of this Union, were to have certain stocks, which were to be held in trust by citizens of this State (p. 444, § 7).

By the act of 1851, chapter 95, all companies transacting the business of life insurance within this»State were to deposit with the comptroller $100,000 in public stocks or bonds and mortgages. The comptroller was to hold such stocks, bonds and mortgages as security for policy holders (§§ 1, 2). Section 3 relates to agents.

The act of 1853, chapter 463, is entitled an act to provide for the incorporation of life and health insurance companies, and in relation to agencies of such companies. By the 14th section, page 892, agents were prohibited from acting for companies .organized under the laws of other states, unless such corporations possessed certain capital and securities deposited with one of the officers of the State under which the companies were organized.

By the 15th section, companies organized under the laws ' of foreign governments were prohibited doing business in this State until they had deposited with the comptroller, for the benefit of stockholders, &c., securities to the amount of $100,-000. By the 22d section, so much of the act of April 10, 1849, aúd of April 8, 1851, as relates to life insurance, was repealed; but this- section was not to affect any company incorporated under such acts.'

In my opinion, the requirements of the 1st and 2d sections of the act of 1851 were no longer in force after the passage of the act of 1853. The latter act contains clear and specific directions touching what shall be done by corporations created under the laws of other states, and also under the laws of a foreign government: in the latter, what deposits of sureties are to be made with the comptroller of this State. In the former, the corporations are to possess a certain amount of capital invested in the manner specified, and such investments are to be deposited with the auditor, comptroller or- chief financial officer of the State by whose laws said company is incorporated. The act carefully specifies the proof which such corporations are to furnish to the comptroller of this State, of the facts authorizing it to do business in this State. Such companies are permitted from time to time to exchange the securities so deposited with the auditor, comptroller or chief financial officer of the State in which such company is located, for other stock, authorized by the act. This section 14 was amended in June of the same year, chapter 551. Its substance, upon the question under consideration, is, that it shall not be lawful for any person to act within this State, as agent or otherwise, in receiving, &c., &c., for corporations organized under the laws of other states, unless such company is possessed of the amount of capital required ($100,000), and the same is invested in stocks of the United States, or of the State of Hew York, or of the State in which such company is located, or in such stocks and securities as now are or may hereafter be received by the bank department, which investments are deposited with the auditor, comptroller or chief financial officer of the State by whose laws the said company is incorporated, and the comptroller of this State is furnished with the certificate of such auditor, comptroller or chief financial officer aforesaid, under his hand and official seal, that he, as such auditor, comptroller or chief financial officer of such State, holds in trust and on deposit, for the benefit of all policy holders of such company, the security before mentioned, which certificate shall embrace the items of the security so held, and that he is satisfied that such securities are worth $100,000. It is added: But nothing herein contained shall be construed to invalidate the agency of any company incorporated by another State, by reason of such company having from time to time exchanged the securities so deposited with the auditor, comptroller or chief financial officer of the State in which such company is located, for other stock authorized by this act, or by reason of such company having drawn their interest and dividends from time to time for such stock. Such company is to appoint an attorney in this State, on whom process of law can- be served, and the attorney is to file with the comptroller a certified copy of the charter of such company, and also of the vote or resolution appointing him. When these requirements have been complied with, the comptroller is to give a certificate of the facts, and setting forth the name of the attorney, and' when this certificate is filed in the county clerk’s office, where the agency is to be established, it is to be the authority of the company to commence business. The company or its attorney is required annually to file with the comptroller of this State, a statement of their affairs, in the manner and form provided in section 12, for similar companies in this State. Here we have a complete system for life insurance companies, organized under the laws of either of the United States, and they áre put upon the same footing as those organized under the laws of this State, as to the amount of their capital and the securities required to be filed. Companies "organized under our statutes are to file securities with our comptroller, and the companies organized under the statutes of other states are to -file the like securities and in the like amount with the auditor, comptroller or other chief financial officer of the State under whose laws the corporation was organized, to be held by such officer in trust and on deposit for the benefit of all the policy holders of such company. On furnishing the evidence required and appointing an attorney, &c., the comptroller may give a certificate and the company may commence business.

The act of 1853 professes to provide a complete system for the incorporation of life and health.insurance companies, and it contains a system perfect and complete in all its parts, by which corporations created under the laws of other states, for the purpose of such insurance, may do business in this State, and then it repeals the previous acts, so far as they relate to life insurance, saving, however, from its effects, the companies incorporated under those acts.

The act of 1851 was an act in relation to all companies transacting the business of life insurance in this State, and it required the filing of the securities with the comptroller in this State. By the act of 1853 all this is changed, and this part of the act of 1851 is abrogated and repealed, and another system is substituted. This act of 1853 provides for the organization of companies in this State, and after it became a law no new companies could be organized for life insurance under the act of 1849. In short, corporations created under the acts of other states were no longer required to file any securities with, the comptroller in this State, but were to file them with the officer specified in their own states, and from that time I have no doubt such companies had a right to withdraw any securities they may have deposited with the comptroller in this State, unless it should be shown that policy holders in this State had acquired some lien upon them. At any rate, after the act of 1853 became a law, there was no necessity of any deposit of securities with the comptroller in this State as a prerequisite to its transacting business here. And as the securities filed with our comptroller were to be held as securities for policy holders in said companies, that is, all policy holders in general, whether in or out of this State, and as the language used in the act of 1853, touching the securities held by the auditor, &c., is to the same effect, that is, holds in trust and on deposit for the benefit of all the policy holders of such company, it seems clear to me that the scheme of 1853 is a substitute for that of 1851, and that the securities held by the auditor, &c., are pledged for all the policy holders of the company, whether such policies were issued prior to or after the act of 1853 became a law, and that the securities in the hands of the comptroller here were at once released upon the company complying with the act of 1853, and without such compliance it could do no more business in this State.

If the comptroller is to retain the securities after the company has complied with the act of 1853, the c®nsequence will be that such company will be required to provide and file securities to the amount of $200,000, instead of $100,000: that is, $100,000 with our comptroller and $100,000 at home with its auditor, Ac., and these securities will be held in trust in common for all policy holders of the company, or the company will be driven from this State by the act of 1858, leaving, however, its $100,000 securities in the hands of our comptroller, for the benefit of its policy holders then in this State and in other states, at that time, and for the benefit of future policy-holders in other States.

The truth is, that the requirement of the act of 1851 was very peculiar, if not unreasonable. The company was only required to possess a capital of $100,000, all of which was to be deposited with our comptroller, for the benefit of all its policy holders, though nine-tenths of them and. the business of the company should be elsewhere than in this State.

Even under the act of 1851,1 do not think that it could be fairly said that a company depositing $100,000 with our comptroller was using all of such capital in this State in life insurance, when, by the act, such securities were for the benefit of all its policy holders, wherever they might be. Only a small portion of its business may be done in this State; in other words, it may not use in its business in this State more than one-tenth of its' capital, and its capital may not be in all more than $100,000.

I think the securities with the comptroller were not taxable, and the judgment of the Supreme Court should be reversed.

Denio, Ch. J., Weight, Selden and Balcom, Js., concurred.

Judgment reversed.


author: Rosekrans, J.

text:
    Romaine v. Van Allen, Receiver, &c.
    A plaintiff who has commenced and prosecuted with reasonable diligence his action for the wrongful conversion of shares of corporate stock, is entitled to recover the highest price it has reached between the time of conversion and the end of the trial.
    So held in a case where the trial was protracted, and the price of the stock rose during its continuance from $5,962 to $8,175.
    Appeal from the Supreme Court. Action to recover the value of 300 shares of the capital stock of the Michigan Southern and Northern Indiana Railroad Company, wrongfully sold and, converted by the Bank of Albany, of which the defendant was receiver. On the trial before a referee these facts appeared: In September, 1860, the plaintiff borrowed of the Bank of Albany $4,087.50,.to be paid on demand, with interest, and pledged as collateral security 300 shares of the stock above mentioned, with authority, in case the plaintiff should fail to meet any demand for repayment, to sell the stock, or a sufficient portion thereof, to pay the amount due and demanded. On the 19th of November, 1860, without having demanded any payment, of given any notice to the plaintiff of its purpose, the bank sold the 300 shares for $3,937.50, being the full market price on that day. On the 7th December, it gave notice of the sale to the plaintiff and required him to pay the balance due on his loan, after applying the proceeds of the stock. The plaintiff refused to ratify the sale, and at no time assented to or confirmed it. He endeavored to effect some arrangement with the bank, by which they should replace the stock to him, and considerable time was consumed in correspondence and negotiations, with that view, on his part. The bank failed, and in May, 1861, the defendant was appointed receiver. The plaintiff presented his claim to the receiver for the highest value which the stock had reached, up to the time of such claim, giving notice that if he should be compelled to resort to an action, he should claim the highest price down to the time of trial. On the 14th June, 1861, the defendant informed the plaintiff that his claim was disallowed, and the latter commenced this action a week afterwards.' The highest market price of the stock, between the time of the sale by the bank and the commencement of this suit, was $5,475, on the 25th'March, 1861. The trial of the cause commenced Oct. 25, 1861. On the 14th October previous, the stock -'could have sold for $5,962.50, the highest price down to the commencement of the trial. The trial was concluded July 25, 1862, having been, from time to time, adjourned, on the application of the plaintiff, on reasonable grounds, as was admitted. The highest price at winch the stock could have been sold before the conclusion of the trial, was $8,175, on June 30, 1862. The referee ordered judgment for plaintiff for $3,609.89, measuring his damages by the price last stated,- and deducting the amount of his loan from the bank. The j udgment entered on his report having been affirmed at general term, in the third district, the defendant appealed to this court.

      Charles M. Jenkins, for the appellant.

      Lyman Tremain, for the respondent.
   Rosekrans, J.

The Bank of Albany having wrongfully converted the 300 shares of Michigan Southern and Northern Indiana Railroad stock, pledged to it by the plaintiff, as security for the payment of his notes,, is liable to the plaintiff for the value of the stock. The only question in the case is as to the measure of damages. The plaintiff insists that he is entitled to recover the highest market value of the stock at any time intermediate the conversion and the close of the trial, the defendant insisting that the bank is only liable for the market value of the stook at the time of the conversion, and interest thereon. The referee adopted the former rule. In the case of Wilson v. Little (2 Comst., 450), which was substantially like the one under consideration, this court remarked that it was unnecessary in that case to settle the general rule of damages. It might be inferred from this language that such rule had not then been settled. There were, however, at the time, several reported cases, in which the same question had been considered by the late Court for the Correction of Errors, and had been passed upon by the court in a manner to leave but little, if any, doubt as to the correctness of the rule adopted in this case. These cases uniformly hold that, although the general rule of damages in trover may be the value of the chattel at the time of its conversion, with interest, or. that value when the chattel has a determinate or fixed value; yet when there is any uncertainty or fluctuation attending the value, and the chattel afterwards rises- in value, the plaintiff can only be indemnified by giving him the price of it at some period subsequent to the conversion; and the necessary result of all the decisions, in my judgment, is that in such cases the plaintiff is entitled to recover the highest market value of the property at any time intermediate the conversion and the trial. In the case of Cortelyou v. Lansing (2 Caines’ Cases in Error, 200), the plaintiff had pledged a depreciation note, which was in the nature of á certificate of public debt, nominally of the value of $2,629.48, for the payment of a loan of $600, a part of the loan was subsequently paid, and the pledgee, without demand of payment of the loan, or notice of sale of the certificate, sold it for $625, which was then its highest market value. In 1799, eleven years after the convérsion of the certificate, the administrator of the pledgor went to the house of the pledgee to demand it, but made no demand, in consequence of the incapacity of the pledgee to atténd to business. The administrator then brought his action to recover the value of the certificate, and, upon the trial, the court charged that the only rule of damages was the value of the certificate in 1799, and this ruling was approved by the Supreme Court, and the Court for the Correction of Errors. Kent, J., delivering the opinion of the court, said: “ The plaintiff could only be indemnified by giving him the price of the certificate at the time he called upon the defendant to restore it; and one of the cases even carries the value down to the time of the trial’’ and he cited, with approval, the decision in Shephard’s Executor v. Johnson (2 East. R, 211), that the plaintiff was entitled to recover, not merely the value of the stock which the defendant in that case had agreed to replace, on the day it was to have been replaced, but the value as it stood at the time of the trial. The case of Cortelyou v. Lansing, is not, as the defendant’s counsel suggested, one of the cases which the reporter, in a note at the opening of the volume, mentions as often disputed or denied.

The case of Kortright v. The Commercial Bank of Buffalo (20 Wend., 91), was assumpsit for the value of 100 shares of the stock of the bank, transferable only on the books of the bank, the certificate of which had been assigned to the plaintiff as security for a loan of money, and which shares the bank had refused to .allow to be transferred on its books, to the plaintiff, on his request. The judge at the circuit charged the ■jury that the measure of the damages which the plaintiff was entitled to recover, was the highest price, that the stock bore at any time after the demand for permission to make the transfer on the books of the bank, before the commencement of the suit. This ruling wzts afiirmed by the Supreme Court and by the Court for the Correction of Errors. (22 Wend., 348.) Verplanck, Senator, who wrote the prevailing opinion, said (page 366): “ If the plaintiff was prevented from realizing his debt by the refusal of the bank to allow the transfer of the shares the bank must be liable for the highest price of the stock at any time after the demand, and before the trial," and he cited, with approval, the decision of the Supreme Court in West v. Wentworth (3 Cow., 82), and the adoption, by that court, of the rule laid down by Justice Grose, in Shephard v. Johnson (2 East. R., 211), and also the opinion of the Supreme Court, in Clark v. Pinney (7 Cow., 596), to the effect that if the plaintiff, without unreasonable delay, prosecutes his suit, that the fluctuation in the price should be exclusively at the hazard of the defendant, and that the plaintiff was entitled to the highest price between the day when the delivery should have been made and the day of the trial. In the case of Kortright v. The Commercial Bank of Buffalo (supra), the plaintiff took no exceptions to the ruling at the Circuit, and although it was less favorable to him. than that laid down by Senator Veeplajstk, and in the cases cited by him, he conld only have the benefit of the rule under which he obtained his judgment. It is to be observed that in the case of Shephard v. Johnson (supra), the value of the stock had reached its highest market price on the day of the trial, and this was evidently the reason for the remark of Grose, J., that the plaintiff could only be indemnified by giving him the price at the'time of the trial. His language is: If the defendant neglect to replace the stock at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified by giving him the price at the time of the trial.” Clearly, if the highest price of the stock was measure of the plaintiff’s indemnity, he would be entitled to recover that price, within the decision, if the stock reached that price on any day preceding the day of trial, and had declined in market on that day. Such was the construction put upon the ruling in Shephard v. Johnson by the English courts. In Harrison v. Harrison (1 C. & P., 412), it was cited, and the plaintiff was allowed to recover the value, of stock agreed to be replaced, on the day preceding the day of executing the writ of inquiry. And in Greening v. Wilkinson (1 C. & P., 625), Abbott, Ch. J., said that the jury might give the value of the East India Company’s warrants for cotton converted by the defendant, at the time of the conversion, or at any subsequent time, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained.” If this is the true measure of damages, in an action upon contract to replace stock, it is, for a still stronger reason, the proper measure in an action of trover, for the wrongful conversion of stock. Such action is based upon the plaintiff’s title to the stock which is not transferred until his recovery of judgment, and the withholding of his stock until the day of trial is a continuing wrong, and the injury which the owner sustains on the day that his stock has reached its highest value, is the loss of such value on that day, whether it be the day of the conversion or the day of trial, or any intermediate day. And unless the plaintiff is allowed to recover the full value of his property at any time after its conversion, down to the time of the trial, he may be .deprived of a portion of his indemnity, as no subsequent action can. be brought to recover any increased price after the commencement of the action, by the judgment in which his title is transferred.

The case of Allen v. Dygert (3 Hill, 593), affirmed in tb e Court for the Correction of Errors, also supports the ruling of the referee. In that case the plaintiff had pledged to the defendant 250 shares of the stock of the American Trust and Banking Company, as security for the payment of his note, and the defendant had wrongfully converted all but 72 shares of the stock prior to the 25th February, 1839. The case states .that on that day the defendants had no stock standing in their names except 72 shares. The pledge was made on the 19th January, 1839, and it appeared that on the 22d and 23d days of January, 1839, the defendants sold similar stock at $96.50 per share, and on the 25th day of February, at $99.50 per share, and in March, when the plaintiff’s note fell due, at $95 per share, and these prices were admitted to be the highest market prices on the several days when the sales were made. It did not appear that the stock sold belonged to the plaintiff. The 72 shares were sold in July, 1839, after the plaintiff’s note fell due, at $75.25 per share, and the proceeds were credited ‘on the plaintiff’s note. The circuit judge decided that the plaintiff was entitled to recover for all the stock converted (which did not include the 72 shares) at the price for which it was selling on the 25th February, 1839. The judgment of the Supreme Court affirming this ruling, was affirmed by the Court for the Correction of Errors, by a vote of 18 to 1. The case shows that the plaintiff, whose stock is wrongfully converted, is not. confined to its value at the time óf its conversion, as his measure of damages, but that he may recover the highest price which his stock would have brought on any subsequent day before the commencement of the action. It is not to be supposed that the counsel or the court were, not aware of the decisions in our own and in the English courts, which allowed the highest market price of the stock converted on any day intermediate the conversion and the day of trial, and it is a reasonable inference that the rule established by those decisions was not alluded to, and that the plaintiff did not claim the benefit of it solely because the stock had reached its highest market value before the commencement of his action. The same measure of damages is said by this court, to be applicable in a case where a factor sells the goods of his principal below the price limited by the principal. (See the opinion of Ruggles, J., and of Bronson, J., in the case of Blot v. Boiceau, 3 Comst., 85-87). It was held that the factor who sells in violation of his instructions, though he obtain the market value at the time of the sale, takes upon himself the peril of a rise in the value of the goods, and in case of a rise in the- market value, will be liable to pay according to such increased value at any time before an action is brought, and as Bronson, J., remarked, “perhaps down to the trial.” Assuming that in an action for the wrongful conversion of stock, the highest market value of the stock at the time of the conversion, or at any time after-wards, and before the commencement of the suit, is the measure of the plaintiff’s damages, I have already suggested reasons which seem to me satisfactory, for allowing the plain tiff the benefit of the rise in the market down to the time of the trial.

I regard the decisions in the. Court for the Correction of Errors as obligatory and controlling upon this court, and as settling the rule of damages, as adopted by the referee. Independent of the authorities, the rule appears to me to be reasonable and necessary to protect the rights of the owners and pledgors of stock against the tortious acts of pledgees, if the plaintiff 'commences his action within a reasonable time after conversion, and prosecutes it with reasonable diligence. If it is to be modified for the benefit of wrong doers, application should be made for that purpose to some other power and jurisdiction than this court. The judgment should be affirmed.

Marvin, J., expressed no opinion; all the other judges con- ■ curring,'

Judgment affirmed.