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    Forrest v. Forrest.
    The Superior Court of the city Of New York has jurisdiction of actions for divorce.
    The trial of issues of fact in a divorce case is reviewed, and a new trial granted or refused, not upon the principles applicable to a strict bill of exceptions, but on those which governed a court of equity. Unless the errors are such as to render the trial an unfair one, or substantially affect the verdict, a new trial will be denied.
    The Supreme Court, at general term, upon appeal from that part of a judgment for divorce fixing the plaintiff’s alimony, may, it seems, order a reference to ascertain the sum proper to be allowed.
    The adjustment of the allowance is an act of judicial discretion, to which the reference is merely ancillary; and exceptions to the report of the referee, or to his admission or rejection of testimony, are not re viewable in this court.
    Appeal from the Superior Court of the city of Yew York. In November, 1850, Mrs. Forrest brought her action against the defendant for a divorce on the ground of adultery. In the defendant’s answer he charged the plaintiff with having had' adulterous intercourse with several persons named therein. At a special term, on the 24th December, 1850, specific issues of fact were made up and ordered to be tried by a jury. These issues were: 1st. Whether the defendant in the action, since his marriage with the plaintiff, had committed adultery as in the complaint charged. 2d. Whether the plaintiff and defendant were both inhabitants of this State at the time of the commission of such adultery by the defendant. 3d. Whether such adultery was committed by the defendant within this State. 4th. Whether at the time of the commission of such adultery by the defendant, and also at the' time of the commencement of this action, the plaintiff was an actual inhabitant of this State. 5th. Whether the said plaintiff had committed adultery as alleged in the answer. 6th. Whether at the time of the commencement of the action the plaintiff was a resident and inhabitant of this State. 7th. Whether at the time of the commencement of the action the defendant was a resident of the State of Hew York.
    These issues came on for trial on the 15th December, 1851, before Chief Justice Oakley and a jury, and on the 26th January, 1852, the jury rendered a verdict, finding: 1st. That the defendant had committed adultery as in the complaint charged. 2d. That both the plaintiff and defendant were inhabitants of this State at the time of the commission of such adultery by the defendant. 3d. That such adultery was committed by the defendant within this State. 4th. That the defendant was a resident of the State of Hew York at the time of the com■mencement of the action. 5th. That the plaintiff had not committed adultery as alleged against her in the answer. 6th. That the plaintiff was a resident and inhabitant of this State at .the time of the , commencement of the action. 7th. That the plaintiff was an actual inhabitant of this state at the time of the commission of the adultery by the defendant, and also at the commencement of the action. On the trial the judge put another question to the jury, viz.: What amount of alimony ought to be allowed annually to the plaintiff? and the jury answered three thousand dollars.
    At a special term held on the 31st January, 1852, judgment was given dissolving the marriage between the plaintiff and the defendant, and -adjudging that the latter pay to the plaintiff, for her support, during her natural life, the sum of $3,000 a year from the 19th Hovember, 1850, the day on which the action was commenced. The defendant’s counsel contended that the court was not authorized to make any award of alimony, but the justice decided to the contrary, and the defendant excepted. The defendant’s counsel also claimed that whatever sum should be allowed the plaintiff for alimony, it should only be made payable from the date of the decree on January 31st, 1852; but the justice decided otherwise, and the defendant excepted.
    No case was made with the view of moving the court at special term to set asidé the verdict of the jury as against evidence, nor was any such motion ever made.
    In February, 1852, the defendant appealed to the court at general term from the judgment; and caused to be made and settled what is called a bill of exceptions, setting forth the evidence on the trial of the issues of fact, and the various rulings and decisions of the judge on such trial in respect to the admi.ssion and rejection of evidence, and his exceptions thereto; and also two or three exceptions to the judgment of the court in awarding alimony.
    On the 24th July, 1856, the court, at general term, affirmed the judgment at the special term, dissolving the marriage and divorcing the plaintiff, and reversed so much of the judgment or order as awarded alimony, and ordered that it be referred to A. 0. Bradley, as referee, to take proofs, and ascertain and report to the court what would be a suitable allowance to the plaintiff for her support, having regard to the circumstances of the parties respectively, and from what date the same should be allowed.
    This reference was- had .in June, 1859, pending which, the defendant applied at special term for a commission to examine in .his behalf certain named witnesses and such others as might be brought before the commissioners in California, orally, and not upon interrogatories. The avowed purpose of this examination was to show that the plaintiff, after obtaining the judgment of divorce, went to California and pursued the profession of an actress and manager of a theatre, and “ led a life of extravagance, intemperance, immorality and vice.” The motion was denied, and on appeal the court at general term affirmed the order.

      On the 1st December, 1859, the referee made his report, and accompanied the same by a finding of facts, and his minutes of the proceedings and the testimony taken before him. The defendant took and filed various exceptions to the report of the referee.
    At a special term held on the 24th May, 1860, the report óf the referee as to the amount that should be allowed for alimony was, confirmed, and the exceptions to such report overruled and disallowed; and a further decree, order or judgment was made by the court, that there should bé allowed to the plaintiff for her support the sum of $4,000 a year, from the 19th ¡November, 1850, when the action was commenced, during the continuance in life of both of the parties, payable in quarterly installments in each year, and providing for a deduction therefrom of $2,150 paid for the plaintiff’s support during the pendency of the action, under orders of the court. The decree or order further provided for the security to be given by the defendant for the payment of the allowance. The defendant' appealed from the last mentioned order or judgment, and on the 7th December, 1861, the same was affirmed.
    On the 21st March, 1862, the defendant appealed to this court, as the notice states, “from the final judgment of the general term in this action, and each and every part thereof and also from each and every judgment and order in said action, and .from each and every part of them, and each of them.”
    On the trial of the issues of fact, some twenty-eight or thirty . exceptions were taken by the defendant’s counsel to the rulings and decisions of the judge in the admission or rejection- of evidence; some eighteen of which were insisted upon as error in the argument at bar. A number of exceptions were also taken to the decisions of the referee to whom it was referred to take proofs in respect to alimony, rejecting evidence, four or five of which were insisted upon here. It was also insisted that the amount fixed for permanent alimony was unjust, and that the allowance of it from the commencement of the suit was erroneous.

      James T. Brady and John Van Buren, for the appellant.

      Charles O' Conor, for the respondent.
   Wright, J.

This controversy, as like cases are apt to-be, has been bitter and protracted. Twelve years since the wife brought her action against the husband for a divorce on the ground of adultery; and for over eleven years she has had the verdict of a jury convicting.him of the offence, and the judgment of the court dissolving the marriage. During this latter period the controversy has been principally in respect to alimony, a mere incident of the judgment. For more than ten years the plaintiff has been divorced from the defendant, and at liberty to marry again; yet we are now called upon to review the judgment of divorce, and if a merely technical error shall be discovered in the protracted trial of the issues of adultery of the defendant or plaintiff, to reverse such judgment. Six years had elapsed from the affirmation of the judgment by the general term of the Superior Court, before this appeal was brought; and as the judgment for a divorce was a final and perfect one, and the “ further decree or order” for alimony, not any part of it, or a necessary consequence of such judgment, but resting in the discretion of the court, and the judgment not having been appealed from within two years, we should probably have dismissed the appeal a term or two since when a motion to dismiss it was made, had the law regulating appeals to this court been the same as originally enacted in the Code. .In 1857, however, the provision in respect to appeals was so amended as to authorize an appeal to be taken “ within two years after the judgment shall be perfected, by filing the roll thereof, and entering the same in the judgment book, in the proper clerk’s office ” (Ch. 723, of 1857, § 18), and in 1858, it was still further amended so as to allow an appeal to be taken within two years after the judgment shall be perfected by filing the judgment roll.” (Ch. 306, of 1858, § 14.) The judgment roll in this case was not filed, as would seem until March, 1862, and the defendant had two years from the latter date within which to appeal, and before a review in this court could be barred. By section 331 of the Code of 1851, the appeal must have been taken two years after the rendition of the judgment; but by subsequent amendments of the section it was allowed to be taken within two- years after “ the judgment shall he perfected by filing the judgment roll.” We are of the opinion, therefore, that a review in this court of the judgment affirmed at the general term in January, 1856, is not barred by the statute.

A preliminary point made by the defendant is, that the Superior Court had not jurisdiction of the action. This point was first raised on appeal to the general term, but if well taken .is available at any stage of the suit. It proceeds on the ground that the legislature was incompetent to confer, and, in fact, has not conferred, jurisdiction in divorce cases on the Superior Court. I think the ground is not maintainable. During our colonial existence, and for more than ten years after the colony became a state, there was no authority in any court of this state to grant a divorce. In 1787,'the legislature conferred authoritv upon the Court of Chancery to grant divorces in cases of adultery. This continued to be the only law until the revision of 1813, when the legislature made a new and extensive provision for divorces, and widening the jurisdiction of the Court of Chancery.

It was competent for the legislature to have conferred the jurisdiction upon an existing court or to have created one having powers as to divorce cases similar to the ecclesiastical courts of England. The Constitution of 1821 imposed no restriction on the power of the legislature in this respect. In the Revised Statutes, while continuing the authority in the Court of Chancery on matters of divorce, the legislature adopted a system in many respects new, and more comprehensive, and to some extent regulating the practice in that class of cases. The tendency of legislation from the beginning was to invest the court of equity with an authority over a subject that in England belonged exclusively to the spiritual courts and to Parliament. Thus the law continued until 1846, when the Constitution abolished the Court of Chancery, and provided for a Supreme Court having general jurisdiction in laws and equity. The same power was given to the legislature “to alter and regulate the jurisdiction, and proceedings in law and equity as they have heretofore possessed.” (Const., art. 6, § 6.) -By the judiciary act of 1847, the Supreme Court was vested with the same powers, and authorized to exercise the same jurisdiction as was then possessed and exercised by the Court of Chancery. (Ch. 280 of 1847, § 16.) The Constitution of 1846 had provided expressly for the establishment by the legislature of inferior local courts of civil and criminal jurisdiction in cities, (Const., art. 6, § 14,) and that the Superior Court of the city of Mew York should remain until otherwise directed by the legislature, with its then powers and jurisdiction. (Const., art. 14, § 12.) In 1848 the legislature abolished the distinction between actions at law and suits in equity, and the forms of all such actions and suits theretofore existing, and enacted that there should be in this State thereafter but one form of action for the' enforcement or protection of- private rights and the redress or prevention of private wrongs, which should be denominated a, civil action. (Code of 1848, § 62.) Remedies in courts of justice were divided into actions and special proceedings, and an action was defined to be an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement of a right, the redress or prevention of a wrong, or the punishment of a public offence. (Code of 1849, § 22.) The Code prescribed a uniform mode for the commencement of the action, viz.: by summons and complaint; and as indicative of the intention of the legislature to embrace within the definition of án action under the Code, one for a divorce, the amended Code of 1851, expressly provided for the service of the summons by publication when the defendant could not, after due diligence, be found within the State, “ where the action was for divorce in the cases prescribed by law.” (Code of 1851, § 135, sub. 5.) The Code provides that the jurisdiction of the Superior Court Shall extend to the actions enumerated in sections 123 and 124 (when the causes of action are local or against public officers) and to all other actions where all of the defendants shall reside or are personally served with the summons within the city of New York. (Code of 1849, § 33.) This language is comprehensive enough to embrace an action for a divorce against a person resident and served with summons in the city of New York. The defendant resided and was served with the summons within that city.

By no proper construction óf the Constitution of 1846, can it be deemed to have vested in the- Supreme Court, as successor of the Court of Chancery, the whole jurisdiction as to divorce cases, without any authority in the legislature to confer it on any other tribunal. The legislature was without doubt competent to vest such jurisdiction in the Superior Court, and if the proceeding to obtain a divorce is an action within the meaning of that word, as used in the Code (and this admits of no, question) then it has exercised the power in a case where the defendant resides or is personally served with the summons within the city of New York. The jurisdiction of the Supreme Court is not taken away or interfered with in this class of actions, but the legislature has chosen to confer a limited concurrent jurisdiction-on the Superior Court.

The complaint charged the defendant with having committed adultery with persons' named, and also at specified times and places with persons whose names were unknown to the plaintiff. The defendant by his answer, scarcely put his guilt in issue. He denied that he committed adultery with any or either of the women mentioned and referred to in said complaint, at any or either of the times and places stated in said complaint.” This is hardly more than putting in issue the act of the commission of.adultery at the times and .places stated. The burden of 'the answer consisted in recriminatory charges of adultery of the plaintiff in defence and bar of the action. In December, 1850, the issues as to the adultery of the defendant and also of the plaintiff were ordered by the court to be tried by a jury. Subsequently, and before the trial was had, the Code was amended by directing that an issue of fact in an action for a divorce from the marriage contract on the ground of adultery should be tried by a jury. (Code of 1851, § 252.) In December, 1851, a jury was impanneled before the late Chief Justice Oaklet to try the issues of fact, and after a trial which occupied six weeks, a verdict was ren dered against the defendant on all the issues. The jury found that the defendant had committed' adultery as charged in the complaint, and that the recriminatory charges against the plaintiff were not sustained. The large volume furnished to us and to the general term of the Superior Court contains all the evidence taken, and á full history of.the proceedings on the trial of the issuesand the case cannot .be read without admiration of the ability and rigid impartiality of the presiding judge. If there was anything in the conduct of the trial to be censured it was. the latitude extended to the defendant in his recriminatory effort. The greater part of a trial, unusually and unnecessarily protracted, was consumed, not in an effort to maintain or .establish the innocence of the defendant, but in an attempted recrimination of the plaintiff. Of the numerous exceptions "taken by the defendant to the decisions of the judge in admitting or rejecting evidencé, but three (only one of which is now insisted on) were to proof bearing on the question of the defendant’s guilt, whilst most of the others were to evidence elicited, or sought to be elicited, to establish or overthrow the defence of recrimination. ■

The result of the trial of the issues, as has been said, was a conviction of the defendant and an exculpation of the plaintiff from the charge of adultery. The defendant did not complain that the verdict of the jury was unsupported by the evidence, or ask for a new trial on the merits; but contented himself with appealing from the judgment for a divorce subsequently rendered at special term, and asking a reversal thereof, exclusively on the ground of alleged errors of the judge in admitting and rejecting evidence on the trial of the issues of' fact, and of the court in the award of alimony.

It was insisted that the same principles upon which a court of law formerly proceeded in granting or refusing a new trial should be applied to the case; and if evidence had been rejected on the trial of the issues that ought to have been received, or evidence received that should have been rejected, the defendant was entitled to a new trial. This is hardly the rule now in a court of law, for, latterly, even these courts undertake to judge for themselves of the materiality of evidence found to have been improperly admitted or rejected; and when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial.' (Doe v. Tyler, 6 Bing., 561.) Courts of equity have, however, been governed by very different principles from those of a court of law, in granting or refusing new trials of issues of fact. Though evidence had been improperly admitted or rejected, if a court of equity was satisfied that the verdict .ought not to have been different, it would not grant a new trial merely on such ground. (Barker v. Ray, 2 Russ., 63; Lyles v. Lyles, 1 Hill’s S. C. Eq., 82.) The object of a feigned issue is to satisfy the mind of the equity judge upon matters of fact; and the object is attained when the conscience of the judge is satisfied that, at the trial, justice has been substantially done. (Mulock v. Mulock, 1 Edw. Ch., 14; Apthorp v. Comstock, 2 Paige, 483; Collins v. Hare, 1 Dow [N. S.], 139; S. C, Bligh [N. S.], 106; Booth v. Blundell, 19 Ves., 503; Savage v. Carroll, 2 Ball & B., 444.) The application for a new trial is in the discretion of the equity judge; and upon principles well settled before the Code, and I think not altered thereby, á new trial jvould not be awarded in actions of divorce, unless for substantial errors, showing that a fair trial was not had, and affording reasonable doubt as to the justice of the' result. The law of divorce would be useless to the innocent party, and destructive to the public, if new trials were granted upon slight or sharp exceptions.that astute counsel may take in the progress of a protracted investigation of matters of fact, and which might sometimes avail in ordinary suits concerning property or for damages. The inquiry in a court of equity is, is there enough upon the whole case to show that the verdict of the jury is substantially right. This doctrine is especially applicable when the defendant’s guilt satisfactorily appears, and a new trial is asked of recriminatory charges, merely on the ground that some irrelevant testimony was admitted, or some of slight relevancy was rejected. It was in the light of these well-settled principles that the special or general term of the Superior Court were to examine the alleged errors on the trial of the issues of fact. If the errors were so substantial as to lead to the conclusion that the trial had been an unfair one, or that injustice had been done, the court below should have awarded a new trial, for the discretion with which it was clothed was not an arbitrary one; and if the errors committed plainly led to injurious and unjust effects, of which the defendant had a right to complain, and there was reasonable doubt of the justice of the result, a re-trial of the issues should have been ordered. Of the twenty-five exceptions to the rulings of the judge in admitting or rejecting evidence, argued in the Superior Court (twenty of which are now insisted on), none were, in the view of that court, tenable, or called for a new trial, even tested by the principles on which a court of law proceeds in granting new trials. They were, to say the least, technical; and if the judge erred in any of the rulings complained of, such error, in my judgment (and so the court below had the right to conclude), was .not of a character to unjustly affect the general result. Look for a moment at the errors now insisted on.

[The learned judge here examined, seriatim, the several decisions of the court insisted on in the points of the defendant’s counsel, as erroneous. This elaborate examination is omitted, as all the judges concurred in the opinion that the trial was to be reviewed, not as upon a strict bill of exceptions, but upon the principles on which a court of equity examined the trial of a feigned issue awarded for the information of its own conscience. His conclusions were, that, tested by the strict rules which a court of law would apply in considering the objections, there were but two or three that were tenable, and these were unimportant as affecting the general result.]

These are all the rulings of the judge on the trial of the issues of fact urged as errors by the defendant’s counsel in his argument at bar. Tested by the principles which govern a court of law in granting new trials, and treating the case made as a pure bill of exceptions taken on a trial in an action at law, I am of the opinion, with the Superior Court, that there were no material errors in the admission or rejection of evidence that should lead to a reversal of the judgment. But this was not the way that mere errors alleged to have been committed on the trial of a feigned issue out o,f chancery were formerly treated and considered, and the Code has introduced no new rule on the subject. If the court below had found on the record exceptions apparently well taken, it was not necessarily required to grant a new trial. The' application for a new trial was to the discretion of the court, and the errors should have been of such a character as to have produced injustice in the general result, to have called for a re-trial. If the court was satisfied upon the whole case, that justice had been done, though there were errors, technical and unimportant to the general result, appearing on the record, it was no abuse of the discretion with which it was clothed to refuse the application of the defendant to re-open the controversy. It seems to me very clear that none of the rulings of the judge complained of had the unjust effect of preventing a fair trial, or of producing injury to the defendant. The general term of the Superior Court affirmed so much of the judgment as dissolved the marriage contract, and awarded costs against the defendant. In the view we take of the case this was right.

There is an incidental branch of this controversy that has elicited much feeling and occupied a large share of the attention of the courts. ' The statute provides, that if a wife is the complainant and a decree dissolving the marriage on the' ground of adultery be pronounced, the court may make a further decree or order against the defendant compelling him “ to provide such suitable allowance to the complainant for her support, as the court shall deem just, having regard to the circumstances of the parties respectively.” (2 R. S., 145, § 45.) On the trial of the issues of fact the question was put to the jury, what annual amount of alimony ought to be allowed to the plaintiff, and the jury answered three thousand dollars. It was for the court to fix the amount of alimony, and the jury had no control over the question. This was discovered when judgment came to be pronounced on the return of the verdict of the jury; and after giving judgment dissolving the marriage, the court proceeded upon consideration of the facts admitted by the defendant in the pleadings,” to determine that an allowance of three thousand dollars a year for the support of the plaintiff was just, having regard to the circumstances of the parties respectively, and made a “ further decree or order,” that the defendant pay to the plaintiff the sum of three thousand dollars a year from the commencement of the action. The only facts admitted by the defendant in the pleadings bearing on the question of alimony, were that the value of'his real and personal property did not exceed one hundred and fifty thousand .dollars, and that his clear income from such property was not above four thousand dollars. Upon these facts alone, it is obvious that the court was not prepared to make a j ust disposition of the question of what would be a suitable allowance' 'to the plaintiff for her support, having regard to the statutory requirement. The usual course of the late Court of Chancery in such cases was to order a reference to ascertain, by the report of a master, the value of the defendant’s property, the circumstances of the parties respectively, and what would be a suitable allowance. Such reference should have been ordered at the special term, and the general term, on appeal, so properly considered it, and modified the judgment of the special term by affirming that part of it dissolving the marriage and awarding costs against the defendant, and reversing so much of it as related to alimony, and ordering a reference to take proof, and ascertain and report to the court what would be a suitable allowance. It is made a point by the defendant’s counsel that the general term had no power to order the reference. I think it had. The judgment or order as provided for by statute, directing the payment of permanent alimony, consequential upon the granting of the divorce, was before it on appeal, and it was entirely competent for the appellate branch of the court, in reversing the order as to alimony, and thus modifying the whole judgment in the action, to make such direction or order as should have been made by the special term, in the first instance. I entertain no doubt of the power of the appellate branch of the court to make the order of reference. . If it were an irregularity it was merely formal, and was waived by the defendant’s express assent to proceed under the order of the general term when the plaintiff sought a special term order of reference.

The reference was ordered in July, 1856, at which time the ' plaintiff was on her way from California to Australia, and she did not - return to this State until December, 1858. Proceedings on the reference were commenced in May, 1859, and were continued until December of that year. In December, 1859, the referee filed his report and finding of facts, together with the testimony taken before him; and in May, 1860, the special term made an order that the defendant pay to the plaintiff four thousand dollars a year for her support from the commencement of the action, deducting therefrom the sum of $2,150, paid for alimony pendente lite. On appeal to the general term, the order was affirmed.

With respect to this order, the only questions before the court were, 1st, What, amount would be a suitable allowance, having regard to the circumstances of the parties respectively; and, 2d, From what date should the allowance commence. Both the amount to be allowed, and when the allowance was to commence, were matters in the discretion of the court. The statute empowers the court to compel the defendant to provide such suitable allowance as it' shall deem just. Of course, the discretion to be exercised is a judicial, and not an arbitrary one. Ho reference would have been necessary in'the case, if, at the time the judgment of divorce was pronounced, the court had been possessed of facts to enable it to reach a just conclu-. sion as to permanent alimony. The object of the reference, and the repor-t of the referee, is to inform the'conscience of the court; but it is the court, and not the referee, who adjudges the question as to what is a suitable allowance. Hence, there can be no available exception, to be reviewed by an appellate tribunal, either to the report of the referee or to his admission or rejection of evidence on the hearing before him. There certainly cannot be to his rejecting evidence offered by the defendant to prove the immoral conduct of the wife subsequent to the judgment of divorce, on a reference to take proof as to “the circumstances of the parties respectively.” The court itself might, possibly, in the exercise of its discretion, either by reference or when the motion for alimony was brought to a final hearing, hear evidence as to the moral conduct and habits of the wife subsequent to the divorce; but if this be not done, all that can be said is, that, in determining what is a reasonable and just allowance for her support, such subsequent conduct has not been taken into consideration. If, in not doing so, the discretion to be exercised by the court has been abused, it is the subject of appeal; but there can be no abuse of judicial discretion, or any subject for appeal, in not allowing a husband) divorced from his wife, to be the moving party in a proceeding to inquire into her moral conduct subsequently to such divorce.

The power which the statute confers is to make such allowance as the court shall deem just, having regard to the circumstances of the parties, that is, the amount and income of the husband’s estate, and the other duties and burdens chargeable upon him, and the rank and condition in life of the wife.. On a divorce for adultery, the considerations governing the amount of alimony are essentially of a pecuniary nature. If the defendant have the ability to pay, the injured party is to recover such an allowance as will correspond with her social position, and at least maintain her in the style and condition that her husband’s fortune would have reasonably justified her maintenance but for his infidelity. She is not to be put on a stinted allowance because the husband has been unfaithful to his marriage vows ; but this is rather a reason, if his estate be ample, that she should-receive a generous and liberal support. The law allots no definite proportion of the husband’s estate lor alimony; but leaves to the court to award such sum as in the discreet exercise of the power, and having regard to the circumstances of the parties, shall be deemed just. As no two cases are alike, what would be just in one might be unjust in another. Where the husband is possessed of a large estate, and has no children or relatives dependent on his bounty and the wife occupies a high social position, and is a lady of refined and intellectual tastes, it would be just to award such a sum as would be ample to maintain her in the state to which she has been accustomed, though such sum was one-third or even one-half of his income. On the other hand where the estate of the husband is limited, and he has duties or burdens chargeable upon him, and the wife’s condition and station in life is comparatively humble, it would not accord with a just sense, nor would there be a fitness and propriety in it, to strip the husband of the bulk of his property, and bestow it on the wife. On adjusting the allowance, where there has been a divorce for adultery, as it is an act of judicial discretion, the court may take into account imputations against the wife, and even her moral delinquencies after judgment has passed in her favor, but under the statute, &»?d in harmony with the course of judicial decision, the main and legitimate subjects of inquiry are the proper measure of the wife’s expenditures, the amount and 'income of the husband’s estate, and other duties or burdens chargeable upon him. The relevant inquiry at this stage is as to the defendant’s. “ faculties ” and the plaintiff’s need. (2 Bright on Marriage and Divorce, 358, §§ 9, 17 ; 2 Barb. Ch. Pr., 266, n. g; Shelford on Marriage and Divorce, 588, 596; Poynter on Marriage and Divorce, 248, 249, 255, and cases cited in notes; Robotham v. Robotham, 1 Swezey and Tristam, 192.)

The court deemed four thousand dollars a year to be a just allowance for the plaintiff’s support. This appears to be a large sum, but perhaps it is not, taking into view the circumstances of the parties. The value of the defendant’s estate is admitted by himself to exceed $260,000; and there is reason to believe that it is much more, as during six years next after the judgment of divorce, his professional receipts from one theatre alone amounted to about $14,000 per annum, and the proceeds of his engagements at other theatres must have been, large. He was a distinguished and popular dramatic actor and his ability in his profession has been appreciated and generously rewarded. If would not be a high estimate upon the value of his estate to place it at $300,000. The parties have no issue; but the defendant has three maiden sisters whom he supports, and who now preside over his costly mansion in Philadelphia. The plaintiff, is a lady of education and refinement, and previous to this unhappy controversy, and indeed since, has been accustomed to move in the higher social and literary circles of Hew York. Judging from what appears in the case, she is a woman of remarkable energy and intellectual power. She was married to the defendant in 1837, when but nineteen years old, and he, though rising in his profession, had but a small estate. For some twelve years his domestic establishment was under her immediate charge, and she conducted it with system, economy and with a due regard to her -husband’s pecuniary interests, insomuch that when, as we áre now to assume, without cause he banished her from his home and association, his estate had increased from about $12,000 to at ksast $150,000. The parties bad always resided in a city, and do now, where- a larger sum is required for support than in the country. In the case of Burr v. Burr (10 Paige, 20; S. C. in error, 7 Hill, 207), which was for a separation from bed and board for cruel and inhuman treatment of the wife, the Chancellor awarded $10,000 a year as alimony, to begin from the filing of the bill, and the Court for the Correction of Errors affirmed the order. There the complainant was an' aged ladjq xwho, though always occupying a respectable station in life, resided in the country. The defendant’s estate exceeded half a million of dollars, and it is apparent that the amount of alimony was largely exaggerated by a consideration of his cruelty and inhumanity. It may be that because too great consideration was given to these circumstances, the case is an unsafe precedent to follow. It settles, however, the question that the conduct of the. husband may be looked at in adjusting the amount of alimony, and that in.the view of the court of last resort, under the circumstances of that case, there had not been such an indiscreet exercise of power as to be the subject of an appeal. On a division, but five of the members of the court voted for a reversal of the Chancellor’s decree, one of whom was for reducing the amount of the allowance to $3,000 and another to $6,000. In the present case, the husband banished, the wife from his house,' and ceased to cherish and protect her, in May, 1849, and as the subsequent investigation showed, without cause and with imputations against her unfounded in fact. He paid an annual stipend of $1,500 for her support but discontinued that in ¡November, 1850, and left her to support herself, or rely on the favor of strangers.

In view of circumstances developed in the case, the defendant’s wealth and the plaintiff’s need (though we might consider the allowance somewhat large), we cannot say that the discretion of the court below in fixing the sum was so arbitrarily exercised as to amount to an abuse of judicial discretion. If not, there is no question of law raised to be reviewed in this court.

The court awarded alimony from the commencement of the action, instead of the date of the judgment of divorce. This, as was said by Chief Justice Nelson, in Burr v. Burr (supra), is a matter of discretion depending upon the special circumstances of the case. In the case cited the allowance was made to commence from the filing of the bill, though $2,000 a year had been allowed for temporary alimony during the progress of the suit. In this case, it would make about $4,000 difference whether alimony was allowed from the commencement/ of the action or from the date of the judgment of divorce, the action having been commenced in November, 1850, and the judgment pronounced in «January, 1852. It seems to me that if it were ever justifiable or a fit exercise of judicial discretion to date the allowance from the commencement of the suit, it was in this case. The plaintiff had been cast out upon the world, and left to the favor of friends, for the means of support, and to prosecute her suit. Even the stipend that had been allotted to her for support was discontinued before the action was commenced. Before the judgment of divorce no temporary alimony was applied for or allowed, although the expenses of prosecuting the action, beyond the taxable costs, from the protracted nature of the litigation, must have been large. The defendant appealed from the judgment when the cause was hung up in the Superior Court for over four years, evidently because the plaintiff was without means to employ counsel. To dbtain means for her support she was driven to the profession of an actress and theatrical- manager, and pursued it in California and Australia, returning to this State in the winter of 1858. In the meanwhile, and in July, 1856, her cause had been decided by the appellate branch of the Superior Court, but the question of alimony was not definitely disposed of. So much of the judgment as awarded alimony was reversed, and a reference ordered to take proof; and ascertain-and report to the court what would be a suitable allowance to the plaintiff, unless the defendant should,-within ten days from the entry of the judgment, without prejudice to any other objection or exception on his part, file a certificate in writing waiving all further inquiry touching the amount of alimony, or the time from which it should be allowed. An opportunity was here presented for the defendant to waive all further inquiry as to alimony, and submit to the award made at the special term in January, 1852, without prejudice to his prosecuting an appeal from the judgment of divorce. But this the defendant would not do. On the return of the plaintiff, and as soon as she was able to procure counsel to attend the reference, it was noticed, and then was commenced a series of efforts to postpone and prolong the hearing, and which by motions and appeals from orders and from the final order for alimony, protracted the controversy in the Superior Court until March, 1862, and at an expense to the plaintiff for the whole litigation, exclusive of taxable costs, and which is now due and unpaid, of seven thousand dollars. Under these circumstances, I think it was no abuse of judicial discretion to date the award of alimony from the commencement of the action, and hence no question of law is involved in the decision.

The allowance for permanent alimony, and from what date it shall commence, as has been said, are questions resting in the discretion of the court. There is no other rule or criterion to guide than the bom viri arbitrium.” As it is a judicial and not an arbitrary discretion to be exercised, I do not-say that there may not be an appeal from such an order. The power must, however, be shown to have been arbitrarily exercised. Otherwise, the law does not contemplate a review of such decisions in this court. •

The judgment and order of the Superior Court should tie affirmied.

All the judges concurring,

Judgment and order affirmed.


source: Caselaw Access Project

author: Selden, J.

license: Public Domain

text:
    Terry v. Wheeler.
    An agreement by the vendor of chattels to transport them to a place named for delivery, does not render executory a contract of sale otherwise completed, on his part.
    Accordingly, where, on a sale of lumber then in the vendor’s yard, the pieces sold were selected and designated, and the price paid, but the vendor agreed to deliver the lumber at a railroad station, the lumber being destroyed by fire before such delivery, held, that the loss was that of the purchaser.
    The refusal of a court, trying an issue without jury, to consider the testimony, as conflicting, or to pass upon the credibility of witnesses, raises no question re viewable in this court.
    Appeal from the Supreme Court. Action by the assignee of Lewis Elmore, to recover the price paid for a quantity of lumber, purchased by Elmore of the defendant, at his lumber yard in Troy, which the defendant agreed, but failed, to deliver at the railroad in Troy. The defendant denied his liability, on the ground that the title to the property vested in Elmore at the time of the sale, and that the property was destroyed by fire immediately after the sale, without fault on his part. The cause was tried before the court, which found the following facts:
    1. That on the 24th of August, 1854, the defendant sold to Lewis Elmore, by a written bill of sale, a quantity of lumber ■ of .the character, at the price, and upon the terms set forth in the bill of sale,, and that payment therefor was made as stated in said bill. .
    The bill of sale was as follows:

    2. That after such sale and payment, and after delivery of said bill of sale, and in the afternoon of the same day, the memorandum thereupon, as follows— “to be delivered to the cars free of charge ” — was indorsed and signed by the clerk of the defendant. Whether this was done by the authority of the defendant, or whether the defendant then recognized its purport as a part of the original agreement, the court held it not necessary to decide, the parol evidence being held competent and sufficient on that point.
    3. That the lumber so sold was, at the time of sale upon the defendant’s yard, at the city of Troy, and had been inspected and measured; that the three first items named in the bill constituted one separate pile designated as the lumber sold to Elmore; and as to the remaining item, viz.: 600 pieces, these were to be taken from the top of another pile containing more than that number, and a mark was made, showing how far the 600 pieces came on that pile.
    4. That the note mentioned in the bill of sale, was transferred by the defendant before maturity, and paid by Elmore before his assignment to the plaintiff.
    5. That the lumber so sold was on the same day of the saic^ and within a few hours thereafter, and before the removal of any part thereof, and without any fault or delay on the park of the defendant, accidentally consumed by fire.
    6. That at the time of the written contract of sale, and as a part of the agreement for sale, the defendant stipulated by parol to deliver said lumber at the railroad free of charge, no time for such delivery being specified.
    7. That Elmore, on March 1st, 1855, assigned to the plaintiff the cause of action for which this suit was brought.
    The court also decided, that upon the question of an agreement to deliver the lumber, there was no conflict of evidence; that the testimony of the defendant and his witnesses upon that point was substantially to the same effect as the testimony of Elmore. And although requested, the court declined to consider the evidence upon that point as conflicting, or to pass upon the credibility of any, or either of the witnesses.
    And the court decided that, as the lumber sold was to be delivered by the defendant and was not delivered by him, he was liable to the plaintiff, and on that ground judgment was rendered in favor of the plaintiff for the amount claimed.
    The defendant’s counsel excepted to each and every of the findings of fact and conclusions" of law by the court, and to the refusal to examine and decide upon the credibility of "witnesses.
    After the 'introduction of the bill of sale, by the plaintiff, on the trial, the defendant’s counsel moved that the parol evidence in regard to the'sale should be stricken out, on the ground that the bill of sale was the contract, and parol evidence was not admissible to contradict it. The motion was denied, on 'the ground that the agreement to deliver need not be put in the bill, and that parol evidence on that subject was competent and did not disagree with it. To this decision an exception was taken.
    The Supreme Court at general term affirmed the judgment, and the defendant brought this appeal.

      William A. Beuch, for the appellant.

      William L. Learned, for the respondent.
   Selden, J.

There may be some doubt whether the parol evidence in regard to the agreement to deliver the lumber was admissible, but if it were necessary to decide that question, I should regard it as admissible, on the ground that what is called the bill of sale was in substance a mere receipt for the purchase money, and did not purport to be a contract. (Dunn v. Hewitt, 2 Denio, 637; Blood v. Harrington, 8 Pick., 552; Filkins v. Whyland, 24 N. Y., 338.) If the lumber had not ' been paid for, and the instrument, omitting the receipt, had been signed by the defendant and delivered, as a note or memorandum of the sale, it would then have been the evidence of a contract, executory on one part at least, and not open to explanation by parol. But looking at the whole instrument, I think it is to be regarded as a receipt, and not a contract, within the cases above cited. Of course, in this view, the memorandum at the foot of the bill is not regarded as a part of it; if it were, its character would be changed from a receipt to an executory contract, conclusive upon the parties, except so far as it was still a receipt. (Eggleston v. Knickerbocker, 6 Barb., 458.)

The point which is made upon the contradictory character of the evidence in relation to the contract to deliver the lumber on the cars, and its sufficiency to establish such contract, presents only a question 1 of fact which this court cannot review. Where the finding of a court or referee upon a question of fact is ambiguous, the evidence may be referred to for the purpose of removing the ambiguity, but not to reverse or modify a distinct finding, or to establish an independent fact not found. (19 N. Y., 210; 21 id., 550; 22 id., 324; 23 id., 344.) We can no more review the decision of the court, that the testimony was not conflicting, than we can the conclusion that it was sufficient; and we can do neither without making a precedent which would open to review here the details of the evidence in all cases.

But in the view which I take of the remaining question, it becomes immaterial whether there was a contract to deliver at the cars or not. ' The lumber had not been actually delivered, but remained in the possession of the vendor. In the absence of any express contract to deliver, there was an implied one to deliver at the yard of the vendor, when called for. In either case the lumber did not remain at the risk of the vendor, if the title did not remain in him. The risk attends upon the title, not upon the possession, where there is no special agreement upon the subject. (Tarling v. Baxter, 6 B. & C., 360; Willis v. Willis, 6 Dana, 49; Hinde v. Whitehouse, 7 East, 558; Joyce v. Adams, 4 Seld., 296; 2 Kent’s Com., 492, 496 ; Noy’s Maxims, 88.) I entertain no doubt that upon the facts found in this case, the title was in the vendee. The lumber was selected by both parties and designated as the lumber sold to Elmore, except the 600 pieces, which were selected by the parties, and the precise pieces sold' designated with as much precision as if the purchaser had marked every piece with his name; that which was sold by measurement was impfeeted and measured, and the quantity ascertained; the price for the whole was agreed upon and paid, and a bill of parcels receipted and delivered to the purchaser. These facts, I think, vested the title in the purchaser, notwithstanding the agreement of the seller to deliver the lumber free of charge, at the cars.

“ The sale of a specific chattel passes the property therein to the vendee, without delivery.” (Chitty on Contr., 8 Am. ed., p. 332.) It is a general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser. (Olyphant v. Baker, 5 Denio, 382.) The authorities are numerous, where the expression is used that if anything remains to be done by the seller, the title does not pass; but the cases which are referred to to sustain that position, only go the length of showing that where something is to be done by the seller to ascertain the identity, quantity or quality of the article sold, or to put it in the con- ”, dition which the terms of the contract require, the title does'/ not pass. (2 Kent’s Com., 496; Hanson v. Myer, 6 East, 614; Simmons v. Swift, 5 B. & C., 857; Joyce v. Adams, 4 Seld., 291; Field v. Moore, Lalor’s Sup., 418.) The list of cases to this effect might be indefinitely increased; but no case has been referred to by counsel, nor have I discovered any, in which, where the article sold was perfectly identified and paid for, it was held that a stipulation of the seller to deliver at a particular place prevented the title from passing. If the payment ^ was to be made on or after delivery, at a particular placej it ¡ might fairly be inferred that the contract was executory, until such delivery; but where the sale appears to be absolute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the property remains the seller’s, merely because he has engaged to transport it to a given point. I think in such case the property passes at the time of the contract, and that in carrying it, the seller acts as bailee and not. as owner. The questions which arise in such cases, as to sales, are questions of intention, such as arise in all other cases of the interpretation of contracts; and when the facts . are ascertained, either by the written agreement of the parties or by the findings of a court, as they are here, they are questions of law. That the parties to the contract in this case intended to pass the title to the lumber immediately, appears very clear; nor do I suppose that any one would question it, were it not for the apparent hardship of the case to the purchaser. If the property, instead of being lumber, had been sheep or cows, capable of increase, (which follows the ownership,) and there had been a sudden and large increase to the flock, or drove, before they could be delivered at the point agreed upon, I think no one would have said that the defendant could have discharged his .obligation to deliver, and yet retained the increase. Such, however, must be the conclusion, if the plaintiff’s position is maintained. The judgment should be reversed and a new trial granted.

All the judges concurring,

Judgment reversed, and new trial ordered.


author: Smith, J. Sutherland, J., (dissenting.)

text:
    Wager et al. v. Troy Union Railroad Company.
    Reiteration of the decisions m ¡Williams v. New York Central Railroad Company (16 N. Y., 97), Carpenter v. Oswego and Syracuse Railroad Company (24 N. Y., 655), and Mahon v. New York Central Railroad Company (id., 658), that the use of a street for a railroad is a new burden beyond the public easement, which cannot be imposed by legislative authority without compensation to the owner of the fee: that such use, without acquiring the title of the owner of the fee, or his license, is a continuing trespass, and that he may maintain ejectment to recover the land, subject to the public easement as a highway.
    Appeal from the Supreme Court. The complaint was that the defendant had entered upon and unlawfully withheld the possession of a street in the city of Troy which was part of land owned by the plaintiffs, subject only to the public easement; that the defendant had, by artificial embankments, &c., impaired the use of the street and claimed the exclusive / right to use the same or a considerable portion thereof, for a railway. For a further cause of action the complaint alleged that the defendants had dug and excavated the plaintiff’s soil, torn up pavements, made embankments, laid down rails and was committing other acts of trespass by running cars and engines over the premises, to their damage in the depreciation of their buildings and real estate, and in the injury occasioned thereby to their business. It demanded judgment for the delivery of possession of the premises subject to the public easement, and for the damages sustained as well by reason of the withholding the premises as of the several acts of trespass committed by the defendant. On the trial these facts appeared :
    The plaintiffs were the owners in fee of three lots situate on the easterly side of Sixth street, in the city of Troy, known as Nos. 56, 58 and 66; on 56 and 58 were dwelling-houses; on 66 was an iron foundry.
    By an act passed June 20th, 1851 (ch. 255, Laws of 1851), the city of Troy and the several railroad corporations whose railroads then or thereafter should come to the city of Troy, or which had or should have their business terminus in, or run their trains to and from said city, were authorized to subscribe for, and become the owners of stock in a railroad corporation to be organized under the general railroad act "of 1850, for the construction of a railroad with one or more tracks through the whole, or a portion, of the city of Troy. By the 4th section of the act, certain individuals named, were appointed commissioners to obtain subscriptions to the capital stock in' the railroad corporation, and were empowered to locate their railroad by a majority of their number, subject to the approval of a majority of all the members elected to the common council of the city of Troy. The defendant was organized as a railroad corporation under the general railroad act of 1850, in pursuance of the act of the 20th June, 1851. The commissioners named in the act of 1851, located the railroad through certain streets of the city of Troy, among others, through Sixth street. This location was approved by a majority of all the members elected to the common council of the city of Troy. The city of Troy, by its authorities, the mayor, recorder, &c., in a written contract, entered into between the mayor, &c., and the defendant, and other railroad corporations, assented to the construction of the railroad as located by the commissioners, and according to the map and survey thereof (a copy of which survey was annexed to the contract), and upon the grades indicated on the profile of the said railroad, which had been signed by a majority of the directors of the defendant, and filed in the office of the clerk of the county of Rensselaer. But it was expressly stated in the contract, that nothing therein contained was to interfere with the rights or claims of owners of property adjoining said road to damages or otherwise, by reason of any change of grade, or should make the party of the first part (the mayor, recorder, &c.), liable therefor. The common council of the city of Troy, approved of this contract^ and authorized the mayor, &c., to execute it. In constructing the defendant’s railroad through Sixth street, in front of the plaintiff’s premises, the grade of the street was raised on the easterly side nearly a foot, on the westerly side about two feet and a half above the sidewalks, and in the center about a foot. There were four tracks with switches, making in all sixteen rails, laid down nearly opposite to the main entrance to the plaintiff’s foundry building, which, together with the elevation of the grade of the street, created a great obstruction to ordinary travel on the street, and obstructed the access to the plaintiffs’ premises with teams.
    There' was also evidence to show that the grade of the road opposite the plaintiffs’ premises was four inches higher than that indicated on the profile map of the railroad, referred to in the contract between the Mayor, &c., and the defendant, and other railroad companies. There was further evidence tending to show that the plaintiffs’ property had been depreciated in value from five to six thousand dollars, in consequence of the construction and operation of the road. There was no evidence that the plaintiffs consented to the construction of the railroad, or that they had received any compensation for damages, or for the fee or soil of the street, or anv property or interest therein. The western boundary of the dwelling-house lots, by the plaintiffs’ title deeds, is: “ Beginning at a point in the east line of Sixth street, &c., and running thence northerly on Sixth street forty feet,” &c. The western boundary of the foundry property, by the plaintiffs’ title deeds, is: “ Bounded on-the west by Sixth street,” &c. It appeared that Sixth street had been opened and used as a public street since 1826 or 1827.
    At the close of the evidence, Mr. Justice Harris,' before whom the cause was tried, dismissed the complaint, on motion of the defendant, on the ground that the defendant was authorized to construct and operate the railroad, and being so authorized was not liable to the plaintiffs for indirect or resulting damages occasioned by the construction or operation of the road. The plaintiffs excepted to the ruling of the court. The judgment of dismissal was affirmed at general term, and the plaintiffs appealed to this court.

      George Van Santvoord, for the appellants.

      William A. Beach, for the respondents.
   Smith, J.

It is an established inference of the common law that the proprietors of land adjoining a public highway are the owners of the fee of said highway: that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the center of the highway. There is no distinction in this respect between the street of a city and highways in the country. (Bissell v. N. Y. C. R. R., 23 N. Y., 61.)

The plaintiffs having shown title to the premises described in the complaint, established á prima facie title to the soil of Sixth street, from its east line to the center thereof westwardly, subject to the public easement.

The construction of the defendants’ railroad and the laying of the tracks in Sixth street, so far as the same was laid or constructed east of the center of said street adjoining the plaintiff’s premises was consequently an encroachment upon his freehold, "and a trespass, and every use thereof by the defendants a continuing trespass, unless they have acquired the right to construct their railroad in such place under the authority of the legislature or of the common council of Troy.

The nonsuit- at the circuit and the decision at general term affirming the same, are put upon the'ground that the defendants in constructing their railroad in said street, were not in the commission of any unlawful act, the same being authorized by the acts.of the legislature under which the defendants were incorporated and by the common council of Troy.

Under the two acts of 1850 and 1851, the defendants were doubtless authorized to appropriate for the use of their said railroad such streets or parts of streets in Troy as they should deem necessary for the purpose of said corporation, subject to the approval of a majority of all the members elected to the common council of Troy.

When lands are required for railroad purposes, under the •general act of 1850, provision is made in that act for the appointment of "commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate proposed to be taken for such purpose, and it is declared that when such lands have been so appraised and compensation made, that all lands so acquired shall be deemed taken for the public use, and all persons who have been made parties to the proceedings shall be divested of all right, estate and interest therein!

It is not pretended that, the defendants have acquired any rights in Sixth street under these provisions of the general railroad act, or that, the plaintiffs’ interest in said street has been divested by any proceedings under said act, or that any appraisal of their damages for the taking and appropriating said street for railroad purposes has been had or any compensation therefor made or paid. The power of the legislature to authorize the taking of any lands, waters, streams, highways or streets, for public purposes, on making due compensation is undoubted; and that such appropriation of land for railroad purposes is a legitimate exercise of the right of eminent domain, has long been settled in this State and is unquestioned. But these defendants claim the right to construct their railroad in Sixth street without any appraisement of damages or making any compensation to the adjoining owners on said street. This claim is based upon the provisions in the act of June 21,1851, aforesaid, authorizing the defendants to construct their railroad with one or more tracks through the whole or a portion of said city of Troy, and upon the provision of the general railroad act of 1850, which provides that any corporation organized under said act “ may construct its roads across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch.” (Sub. 5, § 28 of Railroad Act, Laws of 1850, p. 224.)

These provisions of the statute doubtless do confer upon the defendants all the power to construct their railroad in the streets of Troy, which, under the Constitution of the United States, or of this State, the legislature could confer. The dedication of the ground covered by Sixth street to the public, the opening and acceptance of the same by the city authorities, and its occupation and long use as a street gave to the public all the rights which could be ordinarily acquired in a public highway, except under a specific grant of the fee thereof. This right was and is a mere easement, a right of passage for travel as highways are customarily used; and the legislature, as the organ or legislative authority of the public, has undoubted control oxer this easement the same as it has on all other public rights, and it could undoubtedly delegate a part of its power over highways to local officers. The mayor and common council possessed a derivative part of this legislative power, but its authority could not ascend higher than the source. The acts of the legislature and those of the city of Troy are all legitimate acts of the legislative authority, and are valid so far as the power of the legislature could extend. The legislative grant to the defendants of the right to construct their railroad in the streets of Troy is a mere authority, and it must be exercised without violating any private rights, or if any private rights are impaired, the constitutional compensation must be made. The legislative grant is made and is only sustainable upon this ground. It saved the defendants the liability to indictment for a nuisance for laying their rails in the streets of the city, and exempts them from all other liabilities as respects the public. It could go no further. It could not take away any private right's without providing for making a just compensation.

The question remains whether the taking and use of a public street or highway for railroad purposes is a new use of the public easement in the street so as to be within the authority or control of the legislature without respect to any private rights in said street. This question this court has distinctly answered in the negative in several cases. The case of Williams v. New York Central Railroad (16 N. Y., 97), is a leading and controlling one on this subject. In that case there was the same appropriation of a street, under the legislative authority and the corporate authorities of the city of Syracuse as in this. In that case it was distinctly held that to occupy a street with railroad tracks and use it for railroad purposes is to charge it with a new easement not within the purposes, intent and legal effect of its dedication, as a street or highway, to the public. Judge Seldeu says: “ Any one can see that to convert a common highway running over a man’s land into a railroad is to impose an additional burden upon the land and greatly to impair its value.” And he further says that the dedication of land for the use of a highway is not a dedication of it for the use of a railroad company and that the two uses are essentially different. The same view is reiterated in the case of Carpenter v. The Oswego and Syracuse Railroad Co. (24 N. Y., 655), and in Mahon v. New York Gentral Railroad Co. (id., 658.)

It is quite apparent that the use by the public of a highway and the use thereof by a railroad company is essentially different. In the one case every person is at liberty to travel over the highway in any place or part thereof, but he has no exclusive right of occupation of any part thereof except while he is temporarily passing over it. It would be trespass for him to occupy any part of the highway exclusively, for any longer period of time than was necessary for that purpose and the stoppages incident thereto. But a railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in the soil, and thus appropriates a portion of the street to its exclusive use, and for its own particular mode of conveyance. In the one case all persons may travel on the street or highway in their own common modes of conveyance. In the other no one can travel on or over the rails laid down except the railroad company and with their cars specially adapted to the tracks. In one case the use is general and open alike to all. In 'the other it is peculiar and exclusive.

It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public also from its use. With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property or of the increase of the burden upon the soil. It would present simply a question of1 degree in respect to the enlargement of the easement and would not affect the principle that the use of a street for the purpose- of a railroad imposed upon it is a new burden.

But in this case the increased burden imposed upon the street is very marked and unquestionable, and must be a serious interruption to the public easement and a very great injury to the adjoining owners. The -construction of eight tracks in the street, with sixteen rails, amounts, I should think, nearly to a practical appropriation of the whole street for railroad purposes, and to the virtual exclusion therefrom of the public and all other modes of conveyance. If the title to Sixth street were in the city of Troy, as the fee of streets is in the city of Hew York, the mayor and common council might perhaps have authorized such appropriation of the street without compensation to the adjoining owners; but in the absence of any such proof, and assuming the title to be, as is the proof, in the adjoining proprietors, the laying down of such tracks in Sixth street was a palpable invasion of the plaintiffs’ rights. The nonsuit in this case was therefore erroneously granted. It was error in the circuit judge to hold, as he did, that the defendants in building their road in Sixth street were in the lawful exercise of their legal rights and powers, and were not liable to the plaintiffs for damages to their land and property adjacent to the street.

In the first count of the plaintiffs’ complaint they set out a complete cause of action in ejectment, and claimed to be entitled to recover that portion of the street eastwardly of the center thereof subject to the public easement. The defendants have put down their rails and tracks on the plaintiffs’ premises, and claim to exercise and are in the constant exercise of acts of ownership over a portion thereof exclusively, and claim a right to place and retain their tracks in said street in that portion thereof of which the fee is vested in the plaintiffs. According to the decision of this court in Carpenter v. Oswego and Syracuse Railroad Company, the plaintiffs were entitled to maintain ejectment to recover such part of the said street, to remove the rails of the defendants’ road therefrom.

The second count is trespass. Under this count, as every entry of the defendant upon the said street in the exercise of their claim to an exclusive use thereof was a trespass and an unauthorized intrusion upon the plaintiffs’ premises, the plaintiffs were clearly entitled to recover some damages. (3 Hill, 567.) What the extent or measure of such damages would be, and upon what principle they should be assessed, are questions which are not now properly before the court. It is sufficient for us to decide that the plaintiffs were improperly nonsuited, and that they were entitled to recover under either count of the complaint. The judgment should, therefore, be reversed, and a new trial ordered, costs to abide the event.

Denio, Ch. J., Davies,.Selden and Allen, Js., concurred.

Sutherland, J., (dissenting.)

I am inclined to think the complaint in this action must be regarded as having been intended to contain two distinct causes of action: The first, ejectment to recover the possession of the half of the street adjoining the plaintiffs’ buildings subject to the public easement ; and the second, to recover certain alleged special consequential damages to the plaintiffs, as abutting lot owners, resulting from the construction and operation of the railroad. These two causes of action, probably, could not properly be united in the same complaint (Smith v. Hallach, 8 How. Pr., 73; Hulce v. Thompson, 9 id., 113 ; Budd v. Bingham, 18 Barb., 494); but as there was no demurrer, and it does not appear that the plaintiffs were called upon at the circuit to elect between- the two, I suppose if, upon the facts of the case, the plaintiffs were entitled to recover on either cause of action, his complaint should not have been dismissed.

It will be noted, that the plaintiffs in their complaint do not complain of, or ask to recover for, any direct damage to them as the owners of the fee or soil of the street, to the middle of it, except from the alleged -withholding the possession.

It is doubtful whether the boundary of the dwelling house lots carries the plaintiffs’ title to the centre of the street, but I assume that it does, and that they own the naked fee of that portion of the street, which they seek to recover the possession of, subject to the public easement.

It is perfectly settled, if the defendant was authorized to construct and operate the road through Sixth street without acquiring the fee of the street, or making any compensation to the abutting lot owners, as owners of the fee of the street, that the defendant is not liable to the plaintiffs for the indirect or consequential damages claimed, unless the acts of the legislature, or the contract with the city authorities in pursuance of and under which the road was constructed, required compensation to be made for such indirect or consequential damages. (Lansing v. Smith, 4 Wend., 10; Gould v. Hudson River R. R. Co., 2 Seld., 522; Case of Phila, and Trenton R. R. Co., 6 Wharton, 25; State of Alabama v. Mayor, &c., of Mobile, 5 Porter, 279.) There is nothing in the case of Williams v. New Yorh Central Railroad Company (16 N. Y., 97), which interferes with this proposition.

If the acts of the legislature, or the contracts with the city authorities, had enjoined'or made it a condition that the fee of the streets should be acquired, or the abutting lot owners compensated for such fee, before the road was constructed, the defendant would have been authorized to construct and operate the road without any compensation to the plaintiffs or other abutting lot owners for indirect or consequential damages, . and without being liable for such damages, upon fulfilling the condition, that is, upon acquiring the fee of the street, or making compensation to the abutting lot owners for such fee simply. (Radcliff’s Ex’rs v. The Mayor, &c., of Brooklyn, 4 Comst., 135; Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb., 273, Hatch v. Vermont Central R. R. Co., 25 Verm., 49; Clark v. Saybrook, 21 Conn., 213.)

The act of June 20, 1851, passed in contemplation of the organization of the defendant as a corporation under the general railroad act of 1850, appointed commissioners to locate the road, subject to the approval of a majority of all the members elected to the common council of Troy; and the road was located by the commissioners and their location thus approved; but there is nothing in this act requiring the fee of the streets to be acquired, or compensation to be made for the fee, or for such use of the streets, or for either direct or consequential damages, to the abutting lot owners.

By the 5th Subdivision of section 28 of the general railroad act (Laws of 1850, p. 224), under which the defendant was organized, corporations organized under it, were authorized to construct their road across, along, or upon, any stream of water, water-course, street, highway, &c.; but the company shall restore the stream or water-course, street, highway, &c., to its former state, or to such state as -not unnecessarily to have impaired its usefulness.

The same subdivision of section 28 declares that nothing in the act shall be construed “ to authorize the construction of any railroad not already located, in, upon, or across any streets in a city, without the assent of the corporation of such city.” This act does not expressly provide or require, that any compensation shall be made to any one for the use of a street or highway, or for any indirect or consequential damages; but it does provide, that any company formed under the act, should have the right to acquire title to any real estate, required for the purposes of its incorporation, in the manner prescribed in the act.

It cannot be doubted, I think, that the defendant was . authorized to construct and operate the road as it was constructed, and operated without acquiring the fee of the street, or making any compensation for such use of the streets, or for any indirect or consequential damages, if the legislature had the constitutional power to authorize such use of the'streets with the consent of the city corporation, without making or providing for such compensation.

The condition on which the city authorities gave their assent to the construction of the road, that it was not “ to interfere with the rights or claims of owners of property adjoining said road, to damages or otherwise, by reason of a change of grade,” &c., does not, I think, affect the question of power, or the rights of the plaintiffs. If the legislature, with the assent of the city authorities, could authorize the construction and operation of the road, without the consent of the plaintiffs, and without compensation to them, this condition could not subj'ect the defendant to liability for damages or otherwise.

. In the case of The People, &c., The Trustees of the Sailors' Snug Harbor, and others, v. The Mayor, &c., of the City of New York, John Kerr, and others, recently decided by the general term of the first judicial district, I had occasion to examine the question of the power of the legislature to authorize the construction and operation of a horse railway, through certain streets of the city of Hew York, conforming to the grade of streets, without the consent of the abutting lot owners, and without compensation to them for such use of the street, or for consequential damages, assuming the fee of the streets to be in such abutting lot owners; and after quite an elaborate examination of the question, I came to the conclusion that the , legislature had such power, on the ground that such use of the streets was within the purpose for which they had been opened or dedicated to public use as highways, and that such new mode of using the streets for public travel or carrying passengers, was a use of the streets as highways, consistent with the public use for which they had been appropriated as highways; and, therefore, such new mode of using them could not be said to deprive such abutting lot owners of the fee of the streets, or of any private property, or possessory right of the street. For the reasons and authorities which led me to such conclusion, I refer to my opinion in that case.

There was a time, no doubt, in England, in the ancient days of the'common law, when no wagon or other wheel vehicles were in use. When they came in use, could the lord of the manor, or other owner of the fee of a public highway, have complained that wheel vehicles cut up or rutted the road, and that such use of the road was not contemplated when the highway was opened or dedicated to public use, was a highway ? . •

By the general railroad act, under which the defendant was organized, a corporation organized under it has power to take and convey persons and property on its road by the power or force of steam, or animals, or by any mechanical means, and to receive compensation therefor. (Subd. 7 of § 28.) Such power must be deemed granted for public use, and such operation of the road in carrying persons and property on it, to be for public úse. (Gen. R. R. Act, § 18; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend., 10.)

In this case the railroad, I assume, was intended to be, and was operated by steam. I cannot see how that affects the question of power, although it is plain that, in a city, a road operated by steam would probably occasion much more serious consequential damage to the adjoining lot owners or occupiers, than a horse railroad.

¡Nor can I see how the raising the grade of the street affects the question of power in this case. I cannot doubt that the legislature had the power, with the consent of the city corporation, to raise the grade of the street twenty-five or thirty inches without compensation to the adjoining lot owners. It is to be pre- • sumed, I think, that the authorities of all cities, by their charters, have power, from time to time, to alter the grade of the street without making such compensation. If the street was raised four inches higher than it ought to have been, of which there appears to be some question, .1 think that was a matter between the city corporation and the defendant. It is plain, that the only damages which the plaintiffs have suffered by the construction and operation of the road, are indirect or consequential damages: that they really have not suffered any direct damage simply as owners of the fee of the street, or of a portion of the street; that the injury to them would have been precisely the same, if their title had not extended to the centre of the street, or the fee of the street had been in the city corporation. The case shows that the consequential damages to the plaintiffs have been serious; but the cases before cited, and many others which might be cited, have established the doctrine that the constitutional prohibition of taking private property for public use without compensation, does not extend to or protect a citizen from such indirect consequential damages.

My conclusion is, that the defendant was authorized to construct and operate the road. If so, it follows that the complaint was rightly dismissed.

In coming to this conclusion, I have assumed, that the plaintiffs owned the soil to the centre of the street, and could maintain ejectment for that portion of the street, which they seek to recover the possession of, subject to the public easement of a highway, if the construction of the road had been unauthorized. But I do not think ejectment would lie, if the road was constructed and operated without authority. It is not necessary to question that trespass would. It does not follow that ejectment would lie because trespass would. In constructing the railroad, the defendant did not claim any title in or to the streets. The occupation of the streets by the defendants in constructing and operating the road, if it can be called an occupation, was not. exclusive, and did not even prima facia show, that the defendant claimed any title. Upon the theory, that the plaintiffs owned the soil to the middle of the street, the defendant only claimed a right of way or easement over their laud. The defendant did not occupy or claim title, so as to be properly made a defendant in an action of ejectment. (Child v. Chapel, 5 Seld., 246; Redfield v. Utica and Syracuse R. R. Co., 25 Barb., 54.)

The action to have possession delivered, subject to the public easement of a highway, is inconsistent with the form of the judgment, and of the writ of possession prescribed by the Revised Statutes (2 R. S., p. 808, §§ 33, 34); and with the sections declaring the effect of the judgment. (2 R. S., p. 309, §§ 36, 37.) To allow the action would be useless; for I cannot see, if a recovery is had, that any other result can follow from the judgment than the abatement of a nuisance, and in such a case as this, the half of a nuisance, which could be abated without the action.

There are other difficulties and inconsistencies in allowing ejectment to be maintained in such case as this, for which see Judge Allen’s opinion in Redfield v. Utica and Syracuse Railroad Company, before cited.

It is certainly doubtful, where there is an exclusive occupation of a portion of a public square, or highway, as by erecting a building or other structure upon it whether ejectment will lie by the owner of the soil, to recover the. possession subject to the public easement of a highway. On the authority of Goodlittle v. Alker (1 Burr., 143), and on the ground that trespass would lie, it was held in Pomeroy v. Mills (3 Verm., 279), and in Robbins v. The Mayor of Pittsburgh (3 Rand., 568), that ejectment would lie, for such an exclusive occupation; but it was held otherwise in The City of Cincinnati v. Lessee of White (6 Pet., 431), which decision was followed by the Supreme Court of this State, in the case of Hunter v. Lessees of Sandy Hill (6 Hill, 407), Judge Beardsley delivering the opinion. See also opinion of Ingersoll, J., in Peck v. Smith (1 Conn., 103); and of Willard, J., in Adams v. Saratoga and Washington Railroad Co. (11 Barb., 451, 453, 455.)

My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs.

Wright, J., also dissented; Gould, J., took no part in the decision.

Judgment reversed, and new trial ordered.


author: Gould, J.

text:
    White v. Stillman et al.

    It is error to submit, to the jury, upon a question of usury, whether the first taker of the note in suit sold it as the agent or broker of the maker, such taker having himself advanced money upon the note, and having, in his negotiations with the maker, stated that Tie should have to charge one and a half per cent a month for discounting, though he also spoke of procuring it to be discounted for the maker.
    Action- on a bill of exchange for $4,565, drawn by one Lowber on the defendants, and accepted by them. The answer averred that it was an accommodation draft, “drawn and accepted for the joint benefit of the drawer and acceptors,” and placed in Lowber’s hands to be indorsed and negotiated: that Lowber procured it to be discounted at a usurious rate by one Hotchkiss. Upon the trial Lowber was a witness, and began his testimony with the statement that Hotchkiss represented that “ he could get the money on our paper.” He also said that Hotchkiss stated that he could not tell whether he would have to charge one and a half per cent or more. ■ After this, meeting Hotchkiss in Wall street, the latter said that if he (Lowber) had a draft on the defendants, he could give the money upon it. Lowber told him that he had no draft himself, but would inquire of the defendants whether it would be an object for them to have the money. Hotchkiss waited while the witness went to make the inquiry. Upon receiving the answer, Hotchkiss said that if the witness would bring him the draft he would give the witness the money. The draft w'as drawn and accepted, and taken to Hotchkiss, who, saying that he would have to charge one and a half per cent a month, perhaps more, gave his own check for $2,000 (which the witness said was all that was wanted that day), and five days afterwards gave him the further sum of $2,192.60. On the day the $2,000 was paid, one Tempest bought the draft in the street, for what sum it did not appear. He passed it at once to the plaintiff.
    The judge charged the jury that it was a question, upon the testimony, whether Hotchkiss took the paper and loaned the money on his own account, or acted as the agent or broker of Lowber to raise the money for him; and that if they should find that Hotchkiss acted as the agent of Lowber, and did not loan the money himself, then, as there was no evidence that Hotchkiss had disposed of the paper at a usurious rate of interest, the plaintiff was entitled to recover. The defendant excepted to the charge. The plaintiff had a verdict and judg. ment, which having been affirmed at general term in the second district, the defendant appealed to this court.

      John N. Whiting, for the appellant.

      James L. Campbell, for the respondent.
   Gould, J.

The plaintiff’s point, that the answer says the draft was drawn “for the joint benefit” of Lowber and Still-man & Co., and so was not an accommodation draft, and, therefore, could be sold at any rate of discount, has no force; since it is entirely plain, from the whole proof, that the note was, as between Lowber and Stillman & Go., entirely without consideration—mere paper, made to raise money upon: and that it had no inception until the money was advanced upon it. This proof was put in without objection; and, had it been objected to, the answer could, and should, have been so amended, on the spot, as to meet the proof. Under these circumstances, this court will not regard the variance, but will proceed upon the case as proved.

We are, then, to proceed upon the ground that, if the transaction with Hotchkiss was such a disposition of the paper as' to give it an inception, that inception was clearly usurious, and the note is void. And the only point upon which we are to pass, is the soundness or unsoundness of the exception to the judge’s leaving to the jury (by his charge), as a matter of fact, the question whether, in taking the note, Hotchkiss acted as Lowber’s agent to sell the note to some other person, or was himself the taker of the note. The defendants claimed that there was no evidénce to show that Hotchkiss acted as such agent, and that the judge should have so decided, as matter of law. And taking the whole testimony as to Hotchkiss’ course, it would seem that the defendants were right. For, though it is true that Hotchkiss spoke of getting, or raising, the money on such paper, he also spoke of “ finding it difficult to use it, or get it discounted, at the banksand in everything which he said about the rate of discount, he said “ he should have tó charge”—“he should have to deduct” one and a half per cent (a month). He drew his own check, at the time of agreeing to take it, for part of the avails, and subsequently gave his own check for the balance; and in neither case suggested that he was not the purchaser. It will hardly do for courts, in administering the law as it is, to lean so strongly against a defence which the statute makes good as to call this transaction, or allow a jury to call it, one in which there is any evidence that Hotchkiss acted as the agent of anybody; for agency is a fact to be found from evidence, not speculated upon to avoid the effect of what is proved.

The judgment of the Supreme Court should be reversed, and a new trial ordered.

Judgment reversed, and new trial ordered.