author: Maoomber, J.

text:
    In the Matter of the Probate of the Last Will of Anna Clausmann, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Will—Probate—Undue influence—How proved.
    To invalidate a will on the ground of undue influence there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it, and so controlled the actions of the testator, either by importunities which he could not resist, or by deception, fraud or other improper means, that the instrument is not really the will of the testator.
    2. Same—Vacating probate—What pact will not justify.
    The testatrix, a woman over eighty, made and executed her will within ten hours of her death. By said will she gave most of her property to her landlord, who had promised to see that she had a Christian burial The testatrix had no next of kin, but nephews and nieces. Meld, that, it was not sufficient cause to vacate the probate of said will, because the said legatee did not sufficiently inquire of testatrix concerning the extent and situation of her property, and of her relation to her next of kin, before he consented to be a beneficiary in the will or consented to aid her in the execution of her purposes. -

    Appeal by the executor, who is also principal legatee, from the decree of the surrogate of New York county, vacating probate of the last will and testament of Anna Clausmann.
    S. F. Kneeland, for proponent and appellant; Henry B. B. Stapler, for contestants and respondents.

       Reversing 5 N. Y. State Rep., 329.

   Maoomber, J.

The deceased was a woman upwards of eighty years of age, who lived in humble quarters, and, without the knowledge of any person, apparently, of the extent of her property, dies leaving the sum of $4,000, mostly in bank, but some of it hidden away with her bank books in the mattress of her bed.

She was shown to have left no descendants, and no collateral relatives nearer than nephews and nieces, who are the contestants. She lived in small rooms in the rear of the house of John Severs, the proponent of the will and who is the principal legatee thereunder. She had no friends or companions except one elderly lady by the name of Ellen Mcdale. The surrogate has found as a matter of fact that the testatrix had repeatedly before the execution of the will in question, expressed the intention of leaving nothing to her relatives, stating as a reason therefor, in substance, that they did not care for her personally, and only for her money or property. This finding has been made notwithstanding the evidence of Harriet Ground and of Margaret Schultz and others who have given testimony, in substance, that she often spoke of her nephews and nieces, but seemed to be more attached to one nephew than to the others.

Somewhere from six to ten hours before she died the will in question was executed by her. The evidence of Mrs. Bertha Severs, the wife of John Severs, corroborated in many respects by others, shows that the testatrix, believing that she was near her end, asked John Severs to see to it that she had a decent burial, and was not buried in the Potters field. He promised to see that she was not buried in Potters field but should have a Christian burial. She said to him that she wanted to make her will and to give him all that she had if he would see that she had a proper burial, except the sum of $200, which she desired to give to Ellen McGale. Thereupon Mr. Severs sent for Adam Hins, a notary public, with whom he had no previous acquaintance, who came, and, as Mr. Hins testifies, took the old lady’s, instructions. Mrs. Severs testifies that Mrs. Hins asked the testatrix if she had any children, and she said she had not, and he then asked her how she would have her property distributed, and she said she wanted to give $200 to Ellen McGale and the rest to John Severs. He thereupon, with a blank form, prepared this will.

John Schuier, the other witness to the will, is a brother-in-law of the proponent, and had known the deceased fourteen or fifteen years, who was at times his customer, buying groceries of him. He testified that she said to him that she wanted him as a witness to the will, and that she said it was her last will and testament, and she wanted him to sign it as a witness. He says her mind was very clear, and he noticed nothing different in her than what was customary. The old lady, though capable of writing, executed the instrument with a cross. This is explained by the witness Hins, corroborated by others, that at the time of its execution she was seized with a severe.coughing fit, and that he explained that it would do just as well for her to take hold of the pen and he would make the mark m her behalf, which was accordingly done. This witness, who is not shown to have any relations with the parties interested in the case, and had never seen the testatrix before that time, testifies, in substance, that she appeared to him to be of clear mind touching her property and of its disposition, and requested him to be a witness to the will.

The testimony of Harriet Ground, if true, would make a ¡strong case against the proponent. This evidence running through fifty-six pages of printed matter, has been carefully weighed by us, and we are of the' opinion that the learned surrogate, acted wisely in not resting his judgment, upon it, nor to any considerable extent upon that of Margaret Schultz.

If we understand the decision of the surrogate (5 N. Y. State Rep., 329), aright, he has vacated the probate of the will, not because it was not regularly and formally executed according to the provisions of the statute, not because of any undue influence exercised upon her mind by Severs, or by any person attending her under the established meaning of that term nor for duress, nor because of mental incapacity of the decedent to make a last will and testament. He has placed his decision, as disclosed by his opinion, upon the ground that the proponent did not sufficiently inquire of her concerning the extent and situation of her property, and of her relation to her next of kin, before he consented to be a beneficiary in the will, or consented to aid her in the execution of her purposes. Lest injustice be done to the reasoning of the learned surrogate on our part concerning this matter, it is well to quote somewhat fully from his elaborate opinion.

He says: “'These accounts of what took place just before the will was written, are of grave importance, not simply as showing what was said, but as showing also, what, was not said, between the notary and the decedent at the only time when the latter is claimed to have any instructions for the preparation of her will. She seems to have been asked whether she had a husband and whether she had, children. She was not questioned as to the _ existence of any other relatives and for aught that she said, or that was known to the notary and to the proponent, she might have had a dozen brothers and sisters with nephews, nieces and cousins by the score. She was asked if Mr. Severs was to be credited respecting the nature of her property, but no inquiry or disclosure was made in regard to its value. These omissions were serious. The proponent should not, in view of the circumstances disclosed by the evidence, have allowed the decedent to make a will under which he would be substantially the sole beneficiary until her attention had been expressly called to the nature, extent and value of her property, and to the question whether or not any person existed who would naturally be the object of her bounty.

* * .* “I am greatly inclined to think that when the decedent announced her purpose of leaving him all her property, except $200, and subsequently gave directions for the preparation of a will which should effectuate that purpose, she did so chiefly, if not altogether, for the sake of securing for her dead body a decent burial. She seems to have been under a morbid apprehension that her remains might be deposited in a Potter’s field. This appears in what she said on three several occasions to Henry Schuier and Mrs. Severs, two of the proponent’s witnesses, and Henry Wood-gate, who was called by the petitioner.

‘ Says Schuier, she said my landlord is the nearest friend I have got, and he is the man who will bury me; otherwise she would be buried in Potter’s field.

“Woodgate testifies that not long before her death the decedent intimated a wish that he (Woodgate) should bury her and proposed to give him her money.

“ The contribution which Mrs. Severs makes to this theory has been stated already. She reports the decedent as saying to Severs, ‘ I am going to make a will now to you; I will make my wifi and I will be sure you must bury me;, you must do it; you must promise me.’

“In this situation I am clear that Severs was called upon to make inquiry into the value of the dying woman’s estate and to ask her relations with her kinsfolk before he busied himself in finding a notary or consented to the execution of a will in his interest. In view of the facts and circumstances upon which I have commented, I have serious doubts, both as regards the capacity of this deceased, and as regards her freedom from such influence as the law pronounces undue.”

How the conclusion of undue influence exerted upon this old lady by those surrounding her can be drawn from the trustworthy evidence in the case is not readily discern-able, nor do we understand the surrogate to assent that, there was any exertion of undue influence by Severs, or by anybody in his behalf, to have this will executed in his favor, except as he has himself stated it, in connection with and mainly dependent upon the omission which he regards as serious, of the proponent to make the inquiries above mentioned.

In the case of Cudney v. Cudney (68 N Y , 152), the court says: “To invalidate a will on the ground of undue influence there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it and so controlled the actions of the testator, either by importunities which he could not resist, or by deception, fraud or other improper means, that the instrument is not really the wifi of the testator.”

It is not unnatural that Mr. Severs should have been surprised, as the surrogate says he was subsequently, over the. sum which came to him from the old lady by virtue of this will; but as it seems to us, this cannot be said to arise from any bad motive or any omission of duty on his part in aiding her in the execution of the will and in consenting to become her beneficiary and assuming on his part a charitable burden. And there is nothing in the case to show that Severs at this time believed, or had any reason to believe, that the arrangement that the old lady desired to make was a benefit or a detriment to him.

Nothing is shown to bring knowledge at the time to him of the actual condition of her property. Shé had been his tenant for years. There is nothing in his conduct during that period or since which shows an over-reaching or grasping disposition by means of which he would undertake, knowingly, to possess himself of her property without her full and free consent.

Suppose he had enquired into the extent of the old lady’s property and had found out by her that she had many nephews and nieces, how would that have availed the case, inasmuch as the surrogate has found as a matter of fact, that for a long time prior to the execution of the will she had expressed her determination not to give any of her property to these next of kin, because, as she believed, they had not been next of kin to her except in name and for the purposes of distribution of her estate.

We think within the language of section 2652 of the Code of civil procedure, there were not sufficient facts before the surrogate to enable him to decide that this will was not sufficiently proved to be the last will of the testatrix or for any reason it was invalid; and instead of making a decree revoking the probate thereof, the judgment should have been a confirmation of its probate.

It follows therefore, that the decree should be reversed, and that under section 2588 of the Code of Civil Procedure it should be ordered, that the material questions of fact arising upon the issues between the parties shall be tried before a-jury in the court of common pleas.

The order stating the questions of fact so to be tried, if not agreed upon by the parties, may be settled on submission of the papers to the justice writing this opinion.

The subject matter of costs, and how payable is reserved until after such trial.

Van Brunt, P. J., and Bartlett, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Henry Bedlow et al., App’lt, v. New York Floating Dry Dock Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

      1. Riparian owners—Rights of, to land, below water—Bulkheads— Boundaries. '
    The city of New York, by the Dongan charter, received title to all the lands situate between high and low water mark, surrounding the island of Manhattan. By the Montgomery charter of 1730 there was granted to it all the lands under water for 400 feet from the low water mark into the East river, from the north side of CorlearsHook to Whitehall. The city was, in April, 1798, empowered to lay out streets and wharves in front of those parts of the city adjoining the rivers and along the rivers, as they might think proper, at the expense of the proprietors of the land adjoining or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots, and by act of 1801 to direct piers to be sunk and completed in front of said streets or wharves, at the expense of' said proprietors, and if they should neglect or refuse to make the said piers the city was empowered to build them itself, and reserve to its own use all the wharfage derived therefrom; and it was also empowered, by act of 1806, to grant the right to make such piers, and the right of receiving the profits thereof, to any person or persons, in fee or otherwise, upon such terms as it might deem proper. Prior to November, 1806, one was owner of certain property in the city of New York, situate between Montgomery and Clinton streets, on the East River, to whom, his heirs and assigns forever, in that month and year, the city by deed granted, amongst other property, a lot of land opposite to that before-mentioned, and fronting on the East river, together with and singular the easements, etc., to the said lot of ground, belonging or in any wise, appertaining. By the said deed, the grantee, for himself, his heirs and assigns, covenanted that he or they would at their own proper costs and expense, build and erect a wharf, pier or street on the south side of the said lot of ground so conveyed contiguous to the East river, and to keep and repair the same at their own charges, which wharf, pier or street should be open to the inhabitants of the city of New York for use in the manner of the public streets of the city. Prior to 1834, a wharf, pier or street was built upon the before-mentioned premises by the grantee, the south side of which was coincident with the southerly side of the previously mentioned grant. From the evidence in the case, it was apparent that the bulkhead in front of the premises extended beyond the line of the conveyance by the city, and was situate entirely upon the land owned by the city. In 1830, the grantee of the before-mentioned premises died, and in September of 1834 his executors leased certain lots of ground, among which were those before-mentioned, together with all and singular the easements, etc., to the premises above described, belonging or anywise appertaining, and particularly the wharf and water privileges, to the extent of the right of said executors for the term of twenty-one years, with a covenant for two renewals. The lessees went into possession of the property leased .and improved the same. The city; in November, 1838, directed that a pier be built in the slip between Clinton and Montgomery streets, at the expense of the owners of said slip, under the direction of the street commissioner, the location of which was fixed in front of the premises leased.' By proceedings taken by the common council in December of 1840 it appears that public notice of the said resolution was given according to law, informing all those interested in the water front within the described limits that in event of their refusal or neglect to comply with the aforesaid direction and to contribute their proportionate shares of the expenses, they would thereby forfeit all their interests in the wharf thereunder constructed agreeably to the provisions of statute in such case made and provided. Pursuant to said notice the lessees under the above mentioned lease addressed a note to the street commissioner setting forth that they were lessees having the rights and privileges of the owners of the soil to the bulkhead between Clinton and Montgomery streets adjoining the projected pier, and expressing their willingness to build the said pier at their own expense, according to the ordinance of the common council directing the same. After the lapse of the period prescribed by law," during which no other parties expressed any intention relative to the matter, the street commissioner was authorized to permit them to build said pier at their own expense and for their own benefit. Thereupon one of the lessees, the other having assigned his lease to him, built the pier, and subsequently, in 1840, being desirous of mortgaging it to satisfy objections apparently having arisen to his title, received a confirmation of the permission granted by the common counc.l He then mortgaged the premises in. question as his own to divers people, and in 1848 the pier was conveyed by its then owners to these defendants by a full warranty deed, under which they have since remained in possession The trustees, under the will of the party to whom the premises were originally granted by the city, in June of 1857, gave a renewal of the lease to its then owners for a term of twenty-one years from May 1, 1856, the description of the property being similar to that in the original lease. At the termination of the renewed lease these plaintiffs paid the tenants in possession the value of the Anprovements upon the premises and entered upon the upland. The defendants still retain possession of the pier, refusing on demand to surrender the same to the plaintiffs. This action was brought to recover possession of the same, and the defendants, in their answer, set up the title derived from the lessee who had taken the assignment of interest from his co-lessee. Held, that there being no evidence in support of the proposition that the border premises granted in the conveyance above mentioned and made by the city coincided with low water-mark, there was no presumpthat it did so.
    2. Same—Rights of—Different classes of.

      Held, that riparian owners were not entitled as a matter of right to the soil under water in front of their uplands; that a distinction ^existed between the rights .of riparian owners of lands bounded by the sea or on navigable rivers where the tide ebbs and flows, and the rights of such owners of land bounded on rivers of upon the margins of the same above tide-water.
    3. Same—Right in case in question.

      Held, that the plaintiffs had no rights in respect to the lands below high water-mark, except such as they might have derived by grant from the city of New York.
    4. Same—Action for possession—When not well founded.

      Held, that whatever rights of the plaintiffs, if any might have been invaded by the construction of the wharf in question, it not being constructed upon land belonging to them, an action for its possession will not lie.
    By the Dongan charter of 1686 the city of New York was granted the title of all the land situate between high and low water mark, surrounding the Island of Manhattan. By the Montgomery charter of 1730 there was granted to the city of New York, from the north side of Corlears Hook to Whitehall, all the land under water for 400 feet from low water mark into the East river. In April, 1798, the corporation of the city of New York were empowered to lay out streets and wharves in front of those parts of the city adjoining the rivers and along the rivers as they might think proper, at the expense of the proprietors of the land adjoining or nearest and opposite to the said streets or wharves in proportion to the breadth of their several lots; and by the act of 1801 the corporation was empowered to direct piers to be sunk and completed in front of said streets or wharves at the expense of said proprietors, and if the proprietors should neglect or refuse to make the said piers the corporation were empowered to build the said piers themselves and receive to their own use all the wharfage derived therefrom; and by the act of April 2, 1806, they were also empowered to grant the right to make such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they may think proper. Prior to November, 1806, Henry Eutgers was the owner of certain property in the city of New York, situated been Montgomery and Clinton streets, fronting on the east river. In November, 1806, the mayor, aldermen and commonalty of the city of New York, by deed, granted to said Eutgers, his heirs and assigns forever, amongst other property, a lot of land opposite to that part of the ground hereinbefore mentioned, containing in depth on the west side ninety-four feet and on the east side eighty-six feet, and in front on the east river or harbor of said city ninety-two feet six inches, together with all and singular the easements, profits, commodities, advantages, emoluments, hereditaments and appurtenances to the said lot of ground belonging or in anywise appertaining. In said deed the said Henry Eutgers covenanted for himself, his heirs and assigns that he or they would, at their own proper costs and expense, build and erect a good, sufficient and firm wharf, pier or street of seventy feet in breadth on the south side of the said lot of ground conveyed in said deed contiguous to the East river, which wharves, piers or streets should be built, kept and repaired by the said Eutgers, his heirs and assigns at his and their proper cost, charges and expenses. It was also covenanted in said deed that the streets, wharves and piers so to be built should forever remain and be for the free and common passage of and public streets and ways for the said inhabitants of the city of New York and all others going and returning through or by the same in like manner as the other public streets of the said city. The deed also contains covenants as to the title and quiet possession.
    Prior to 1834 a wharf, pier or street was built upon the premises hereinbefore mentioned, such street being South street, and the southerly side of South street being coincident with the southerly side of the grant from the city to Eutgers. It appears, however, from the evidence in the case that the bulkhead at the time hereinafter mentioned in front of the premises hereinbefore mentioned as conveyed to Eutgers was more than thirteen feet in the East river beyond the line of the conveyance by the city to Rutgers, and was entirely situated upon lands belonging to the city. Rutgers died in 1830, and in September, 1834 his executors ' leased to Stevenson and Pierce certain lots of ground situate between South and Water streets, and among others the lots hereinbefore mentioned, together with all and singular the easements, profits, commodities, etc., to the premises above described belonging or in any wise appertaining, and particularly the wharf and water privileges to the extent of the rights of said executors for the term of twenty-one years, with a covenant for two renewals. Stevenson & Pierce went into possession of the property leased, and improved the same. In November, 1838, the corporation directed that a pier be built in the slip between Clinton and Montgomery streets, at the expense of the owners on the said slip, under the direction of the street commissioners. The location of the said pier was fixed in front of the premises occupied by Stevenson & Pierce. As appears from the proceedings which will be subsequently referred to, taken in December, 1840, by the common council, public notice of the said resolution was given according to law, informing all those interested in the water front within the limits described, that if they should refuse or neglect to comply with the directions aforesaid, and not contribute their relative proportions of the expenses, that they would thereby forfeit all their interest in the wharf arising therefrom, agreeably to the act of the legislature in such case made and provided. Pursuant to said notice, Stevenson & Pierce addressed a note to the street commissioner, setting forth that they were lessees having the same rights and privileges as possessed by the owners of the soil, to the bulkhead between Clinton and Montgomery streets, adjoining the contemplated pier, and expressing their willingness to build the said pier at their own expense, according to the ordinance of the common council directing the same. They were the only parties who signified any intention in the matter, and after the lapse of the period directed by law for that purpose, the street commissioner was authorized to grant permission to Stevenson & Pierce to build said pier at their own expense ' and for their own benefit. Thereupon, Pierce, Stevenson having assigned his interest to him, built the pier in question at an expense of some $12,000. In 1840, Pierce being desirous of mortgaging the pier, and some objections apparently having arisen as to his title, applied to the common council for the confirmation of the permission given by the street commissioner to build the pier in question, which permission was duly confirmed by a resolution of the common council, subject to any and all rights which the owners of the fee might at any time have, if any, in and to the same. Pierce mortgaged the premises in question as his own to divers people, and in 1848 the pier was then conveyed by the then owners thereof to the defendants by a full warranty deed, and the defendants have ever since remained in possession of the same. In June, 1857, the trustees under the will of Rutgers renewed the lease of Stevenson & Pierce to the then owner of the said lease, Algernon S. Jarvis, for a second term of twenty one years from'the first of May, 1856. the description of the property being the same as in the original lease. At the termination of the renewal lease, the plaintiffs paid the tenants in possession the value of the improvements upon the premises ana entered upon the upland. The defendants still retained the possession of the pier, and refused on demand to surrender the same to the plaintiffs. In 1882 the plaintiffs, claiming to be the owners of the pier, commenced this action to recover possession of the same. The defendants, answered, setting up the title derived from Pierce, and upon the issue thus joined a trial was had and judgment, rendered in favor of the defendants, and from such judgment this appeal taken.

      A. B. Conger and Herbert B. Turner,- of counsel, for pl’ffs and app’lts; E. N. Taft, of counsel, for def’ts and respt’s.
   Van Brunt, P. J.

It is claimed upon the part of the plaintiff that Rutgers, being the owner of the upland and the grantee of the city of New York of land to low water mark, his devisees had the rights of riparian owners to build wharves and piers. It is assumed in this proposition that Rutgers was the grantee of the city of land to low water mark. We fail to find any evidence to support this assumption. He was the grantee of the city of land to the south side of South street, as it was to be laid out under the covenants of the deed, from the city to him. Whether the south fine of South street coincided with the low water mark nr not does not appear, and there is no presumption whatever that it did.

It is also assumed that Rutgers, as the owner of the uplands, had some riparian rights derived from the common law independent of any statutory provisions regulating the procedure of the corporation of the city of New York in the improvement of its water front.

In this proposition the learned counsel seems not to have taken notice of the distinction between the rights of riparian owners of land bounded by the sea or on navigable rivers where the tide ebbs and flows, and the rights of such owners. of land bounded upon rivers or upon the margins of the same above tide water,

In the case of Furman v. New York (5 Sandf. S. C., 16), this distinction is expressly recognized, and it is held that by the common law the king is seized in fee of all the lands under the navigable waters of his realm, and is entitled to grant and convey them, and that he has the right of soil under all rivers within the flux and reflux of the sea, and that it follows from the nature of the property of the crown in the soil under water that riparian owners are not entitled as matters of right to the soil under water in front of their uplands. Upon the affirmance of the above case in the 10 N Y , 567, this principle was again enunciated and formed the basis of the decision.

The cases of Yates v Milwaukee (10 Wall., 497) and Weber v. Harbor Com’rs (18 id., 64), in no way militate against the rule above stated. The question as to riparian rights discussed in Yates v. Milwaukee did not relate to navigable waters wherein the tide ebbed and flowed, and in the second case cited only the rule as applicable to the first is affirmed. It is true that by the act of April 3, 1807, certain pre-emptive rights were given to riparian owners, but that act in no way related to land situated south of the northerly side of Corlears Hook, the location of the pier in question. The act of 1807 was a grant to the corporation of the city of New York of 400 feet into the East river from the northerly side of Corlears Hook. The plaintiffs therefore had no rights whatever in respect to the lands below high water mark except such as they may have derived by the grant from the corporation of the city of New York/ the owners thereof.'

It is true that by the acts of 1798 and 1801 above-referred to the corporation were authorized to direct piers to be sunk and completed at the expense of the proprietors of lands lying opposite to the place where such piers should be directed to be sunk; and that in the event of the neglect of said proprietors to sink or make such piers according to the directions of the mayor, etc., it should be lawful for them to sink and make the same at their own expense and receive to their own use, the wharfage, or to grant the right of making such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they might think proper. But in the event of a disregard upon the part of the corporation of these privileges which were extended by the acts of the legislature to the adjacent owners and the building of such piers by the corporation or the authorization of their being built by other parties, the adjoining owners did not become the proprietors of the piers thus built.

In the case of Whitney v. The Mayor, etc. (6 Abb. N. C., 330), where the question is discussed, the court say: '' Without pronouncing a definite opinion whether the proceedings of the corporation were so far regular as to put the respondent in the wrong and produce a forfeiture of his rights, it is enough to decide that inasmuch as the pier has been constructed, the respondent’s remedy, if any, is by an action for the specific wrong he has suffered for depriving him of the opportunity to contribute to the expense and have an interest in the pier to the same extent.”

The action in that case was brought upon the theory that the pier was '“’egal obstruction to the use of the plaintiff’s bulk-head ai hat the corporation were wrong doers.

The court i- ; “I am of the opinion that if it should be conceded that e corporation failed to give the respondent the requisite r ’ ce to erect, or contribute to the expense of erecting a pier t does not follow that that structure is a nuisance or a > jxpresture. The corporation was the exclusive judge of tñe propriety of constructing piers and of the places where they should be situated. This power was •committed to the common council for important public purposes having relation to the great city of which they were the local legislature. It was, however, to be exercised with a proper regard to the interests of riparian proprietors, but the structures were to be upon land under water, belonging to the city and not to the proprietors. It would, however, be likely to prejudice them by covering a portion of their water front, and to compensate them for this inconvenience they were allowed to have the direct profits arising from the piers if they would pay the expense of constructing them.

But it cannot be maintained because a directing portion of the statute has been disregarded that an important public work which the city had a right to construct is, therefore, to be regarded as a nuisance. If it were situated upon the respondent’s land the case would be different * * * If the respondent has sustained an injury in being deprived •of the opportunity which the statute intended to secure him to erect it himself and have the wharfage arising from it, he is entitled to his action for that specific grievance. This is not matter of form, for it maybe for aught that has appeared in this case that the enterprise of constructing the pier was a very unprofitable one, looking only to the direct revenue arising from it, and that the respondent could not, with a proper regard to his interest, have afforded to erect it. In such case his damage would be merely nominal.”

The case of Langdon v. Mayor, etc. (93 N. Y., 129), in no wav militates against the view hereinbefore expressed. In ' construing the grant from the city the court laid particular stress upon the fact that such grant naturally and obviously imported a perpetual grant of wharfage with a perpetual right of free access to the wharf from the adjacent water, and founded this conclusion upon the fact that they were-contracting in reference to what was then believed to be the permanent exterior water line of the city on the north-river, which line was represented as such permanent exterior line upon the map annexed to the conveyance. The action of Langdon v. Mayor was an action for damages-caused by reason of the erection of a new wharf or bulkhead' in front of plaintiff’s wharf and was in consonance with the rule laid down in such cases in the case of Whitney v. The Mayor. It would appear, therefore, that whatever rights of the plaintiff were invaded by the construction of this wharf, it not being constructed upon land belonging to the plaintiffs an action for possession will not-He.

It is, however, urged upon the part of the plaintiff that Stevenson & Pierce, the lessees of the plaintiff’s ancestor, acquired no rights to the pier except in that capacity, and that, therefore, the rights of their assignees terminated at the expiration of the lease, claiming that when a tenant of land acquires an interest in adjacent lands by reason of such-tenancy, and for the use of the leased premises, it enures tobas benefit only while the tenancy continues, and on the expiration of the tenancy reverts to the landlord.

To support this proposition various Engfish cases are cited and reference is also made to the case of Dempsey v Kipp (61 N. Y., 462), where this rule seems to be recognized in the opinion of the court.

A material distinction exists, however, between the rule claimed and the facts in the case at bar. It is necessary to-the rule that the interest acquired in the adjacent land's should be for the use of the leased property. There is no evidence in this case that the pier in question was built lor the use of the property leased by Stevenson & Pierce from the plaintiff’s testator.

Upon the trial it appeared affirmatively, by the evidence-of Mr. Jarvis that the pier was built for general commercial purposes, he stating that it was built for the purpose of having it for a wharf for the steamers that first began to-come to the port of- New York, the Sirius, the Great Western and then the British Queen.

It would therefore appear that the rule claimed on behalf" of the plaintiffs has no appHcation to this case. It further appears from the proceedings of the common council that the permission given to Stevenson and Pierce to construct-this pier was to be at their own expense and for their own. benefit It is true that the confirmatory resolution' was made subject to any and all such rights, if any, which the owners of the fee may at any time have in and to the same. What this phrase may mean does not clearly appear as the corporation was without dispute the owner of the fee. As has been already seen, whatever rights the adjacent owners of the uplands may have had, it did not give them the right to the possession of the pier after its construction, but simply to an action for damages because of the violation of their rights by this construction if such rights were violated. That it was not the intention of Stevenson & Pierce to construct this pier for the benefit of the Rutgers estate seems to be apparent from the fact that they at once proceeded to exercise absolute ownership over the same, mortgaging the same and conveying the same by a warrantee deed in 1848,

It further appears than this pier in no way interferes or communicates with the land belonging to the Rutgers estate. The bulkhead communicating with the pier "is from thirteen to sixteen feet south of the southerly line of the land granted to Rutgers by the deed, and the bulkhead stands upon land, the title to which belongs to the city, and in which the Rutgers estate has no interest.

Under all these circumstances it is difficult to see how the plaintiffs can succeed in establishing a right to the possession of the pier in question as claimed by them.

_ It has not been thought necessary to consider the exceptions to the evidence, as the evidence, if admitted, could not affect the legal propositions hereinbefore stated.

• The judgment appealed from must be affirmed, with costs.

Brady and Daniels, U., concur.


author: Brady, J.

text:
    Worthington Brick Company, App’lt, v. William L. Bull et al., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Contract to convey land—Statute oe adds—Subscription of CONTRACT.
    In an action to compel the specific performance of an alleged contract of the defendant’s testator to convey certain lands to the plaintiff, it appeared that a certain business was conducted by the son of the testator the testator advancing money and lending his aid .to its successful establishment; that the business was not remunerative; that the organization of the plaintiff as a corporation was projected by the testator and son in connection with one Burt; that the capital stock was $50,000, represented by 2.000 shares at twenty-five dollars each; that the testator and son and Burt were the trustees; that the business was conducted in part on the lands which it was alleged were to be conveyed to the corporation, that there was comparatively little to represent the capital stock of $50,000 unless the land were embraced; that a deed was prepared, found amongst the papers of the testat.r in an envelope marked “Worthington Brick Company.” the consideration of which was said to he $50,000, and that the testator had indicated by pencil marks the places at which he and his wife and his son and his wife were to sign the instrument; that the corporation continued in possession of the property up to the time of the decease of the testator. Held, that there was a link wanting in the chain of facts and circumstances which was essential to the completion of the contract, and that is, some instrument subscribed by the testator agreeing to transfer his interest in said land to the plaintiff, notwithstanding his intention to convey did in reality exist.
    2. Same—How contract mat be proved.

      Held, that if there were any papers subscribed by the testator which expressed, when united or combined, a contract to sell containing the terms thereof, even though presented on shreds and patches it might be woven out, but that this essential pre-requisite did not exist.
    Appeal from judgment of the special term dismissing the complaint.

      John A. Bryan and Addison M. Burt, for app’lt; W. A. Jenner, for resp’t.
   Brady, J.

This action was Drought to compel the specific performance of an agreement between the testator Henry R. Worthington and his son Henry and the plaintiff’s corporation. The complaint alleged that the plaintiff was incorporated on the first of March, 1880, by the filing of a certificate signed by the Worthingtons just mentioned and Addison M. Burt, a lawyer; that the father and son were the owners as tenants in common of certain lands on which there was a brick yard at South River, where for several years the son had carried on brick-making and was the owner of certain personal property there located; that shortly before the formation of the company they decided they would organize the same for the purpose of continuing the business, and that the real estate at South River should be conveyed to the corporation for the consideration of the entire amount of capital stock which was to be equally divided between them; that on the third of March of the same year the plaintiff agreed to purchase from the Worthingtons upon the terms mentioned, and that Mr. Burt was requested by the parties to prepare a deed by which the •real and personal property should be transferred to the plaintiffs for the consideration already mentioned; that a deed was drawn, but through some inadvertence was not executed, although it was found after his death amongst the papers of the testator in an envelope which was addressed Worthington Brick Company;” that nothing was done by either the father or the son indicating a desire or purpose to rescind the agreement; that the father left a will which was .duly admitted to probate, whereby the executors were given a power of sale; that in pursuance- of this agreement between the Worthingtons and plaintiffs, the son and his wife conveyed their half of the brick property to the plaintiff, and that the latter through its proper officers demanded from the executors a conveyance of the other half.

This statement sufficiently developes the character of the complaint and the allegations on which the claim is founded. The answer denied all these allegations excepting the ownership in common, and excepting also that Mr. Burt was the lawyer of the testator at the death of the deceased, and that it contained also a denial of the will as set forth in the complaint; and as a separate defense averred that if there was any agreement as to a sale it was void under the statute of frauds; that if it ever existed, it was rescinded; and further, that there was an entire want of consideration.

The evidence upon the trial established the facts that the son had conducted the business above mentioned at South River, assisted pecumarly by his father; that the business was not remunerative; that the company was organized as as alleged in "the complaint, the capital stock being stated at $50,000, that a deed was prepared, dated March 3, _ 1880, from Henry R. Worthington, deceased, and his wife, and H. W. Worthington, the son, and his wife to the plaintiff, of the property at South River, which had four seals and in the testator’s handwriting in lead pencil, opposite the first seal was written “H. R. W.;” opposite the second seal, “Mrs.;” opposite the third, “H. F. W.;” opposite the fourth, “Mrs.,” which deed was found in an envelope indorsed in the handwriting of the testor, “Worthington Brick Company.”

In the eleventh clause of the will of the testator, it was recited that, whereas he owned one-half of the brick property at South River, 1ST. J., then occupied by his son Harry, who was the owner of the other half, it was his will that he should be allowed to purchase the testator’s half, if he should so desire, at a fair and reasonable valuation and on easy terms of payment; and further that, whereas, he had from time to time, advanced to his son a large part of the money used in the purchase and improvement of his property at South River, and in the support and maintenance of his family, he directed that Harry should pay, or secure to be paid to his executors for the benefit of the estate, two thirds of the value of his undivided share of the property at South River, said value to be ascertained by proper appraisement and valuation at the time of his death, or as speedily as possible thereafter, unless his son Harry should prefer to surrender and convey all the property free from incumbrances to his executors as part of his estate, in which case the son was to have and receive his equal share of the residuary estate, subject to the deduction only of the sum of" $10,000, as thereinbefore provided. But in the event of his not accepting the proposition and declining to pay the two-thirds of the value of the testator’s undivided half of the property and should refuse to convey the same to his executors, as provided, then it was his will and desire, and he directed that the sum of $25,000 should be deducted from the share of his estate to which his son would otherwise be entitled under the provisions of his will, in addition to the sum of $10,000 to be deducted from such share as therein provided, and his will also contained the following: “And I further state, that although a far larger aniount of my money has been spent in the effort to develop a business at South River than I have directed to be charged against my son Harry, or to be deducted from his portion of my estate, such expenditure was made by me voluntarily, with a view to establish him in a business which has not thus far been remunerative. While, therefore, I look to him to pay a reasonable sum for what is left there of tangible property, I do not expect him to pay the expenses of unprofitable experiments and wasted investments made with my approval and by express sanction.”

The certificate of incorporation declared that the objects for which the company was formed were the manufacture and dealing in common bricks, firebricks, tiles, drain pipes, sewer pipes and other articles made of clay, and that the name of the town and county in which the operations of the company were to be carried on was the city and county of New York, where the principal office of the company would be, but that part of its business was to be carried on at South River, in the state of New Jersey. And it was further declared that the number of the trustees of the company should be three, and that the names of those who should manage its concerns for the first year were Henry R. Worthington, M. F. Worthington and Addison M. Burt, the capital stock, as already stated, being put at $50,000, divided into two thousand shares at twenty-five dollars each.

It is not pretended that any contract for the sale of the testator’s interest in the brickyard was subscribed or signed or that the deed was delivered, but it is insisted, on behalf of the plaintiff, that upon the facts stated there is abundant evidence of an agreement on the part of the father and son to transfer the property mentioned, to the company, one-.half of which had already been transferred by the son. The learned justice in the court below thought the evidence did not amount to a contract, either verbal or otherwise, and that one could not be formed from the different facts and circumstances collectively considered, and therefore dismissed the complaint.

One discussion of the plaintiff’s right in the brief submitted on its behalf assumed a very wide range and embraces a great many doctrines and principles, some of which may be justly invoked for the plaintiff’s benefit. It will not be questioned that a contract for the sale of land binding upon the party charged may be eliminated from papers other than one directly in itself stating the terms and conditions of the contract. It is said by Browne on the Statute of Frauds, section 346, as a deduction from the numerous authorities, that a writing relating to the transaction may be sufficient, however informal; a letter, a receipt of money, a bill of parcels, or a stated account in which the vendor charges himself with the price, or the return of the sheriff upon an execution, or the vote of a corporation entered on their minutes, signed by their clerk, may be a sufficient memorandum, and it is said in section 346, as a result of a history of the question, that it is often the case that the terms of the contract are not all contained in any one paper, and the question then arises, as stated by him, under what circumstances two or more papers can be offered in evidence as constituting the memorandum, one only or all being signed, as the case may be. It is sufficient, if when taken together a contract is made out and there may be an identification of the documents where there is an offer and acceptance by parol evidence. Raubitschek v. Blank, 80 N. Y., 482, and cases, cited.

In this case, as we have seen the business was conducted by the son, the father advancing money and lending his aid to its successful establishment; that the business was not remunerative; that the organization of the plaintiff as a corporation was projected by the father and son in connection with Mr. Burt; that the capital stock was $50,000, represented by 2,000 shares at twenty-five dollars each; that, the father and son and Mr. Burt were the trustees; that the business was conducted in part on the lands which it was alleged were by agreement to be conveyed to the corporation; that there was comparatively little to represent the capital stock of $50,000, unless the lands were embraced; that a deed was prepared, found amongst the papers of the testator in an envelope marked “Worthington Brick Company,” the consideration of which was said to be $50,000, and that the testator had indicated by pencil marks the places at which he and his wife and' his son and his wife were to sign the instrument. We have, therefore, two papers, one of them the certificate of incorporation and the other the unexecuted deed bearing upon the question of. transfer, surrounded by facts and circumstances which lead. to the conclusion that the conveyance of the land was contemplated and agreed upon, but not consummated during the life of the testator, for what reason does not appear. There is no pretense that the corporation did not continue in the possession of the property up to the time of the decease of the testator. There is, however, a link wanting in the chain of facts and circumstances which would seem to be essential to the completion of the contract, and that is some instrument subscribed by the testator agreeing to transfer his interest in the brick yard to the plaintiff, notwithstanding that the intention to convey did in realty exist if we regard the scheme of the plaintiffs’ incorporation from its commencement down to the moment when the deed went into the possession of the testator, who was one of the, trustees of the company and was by him so-marked as to indicate an intention to execute it. This would seem to be particularly so for the reason that he and his son were made by the deed the recipients of the entire capital stock except perhaps one share to Mr. Burt to enable him to act as trustee, and also for the reason that there would be very little else to represent the capital stock, and. it being the evident intention to pay in the amount of the stock as required by law by the transfer of the land itself, which, with the implements used and the other personal property on the land, went to make up the entire amount, of the capital stock. The certificate of incorporation must-be regarded as part of the arrangement by which the contract was indicated and in which it is distinctly stated that, a part of the business was to be conducted at South River, the locus in quo contained in the deed itself found in the-possession of the trustee who was to sign it, and in an envelope endorsed by him in the name of the company, thus expressing that it was a transaction of the company, and undoubtedly for its benefit, and which, having been done by the testator himself, would doubtless be a sufficient, signing within the adjudicated cases cited on the subject, of signature prior to the change in the statute of frauds, and which, it was very well established, might be in any part of the contract or instrument, in the body or at the foot, or elsewhere, so long as it appears to have been placed there by his sanction. Merritt v. Clason, 12 Johns. Rep., 102; Clason v. Bailey, 14 id., 484; Browne on Statute of Frauds, section 416 and cases.

But the rule was changed by the substitution of the word “subscribed,” and which as determined by adjudication means signing at the end or bottom of the contract. Davis v. Shields, 26 Wend., 341; Viele v. Osyood, 8 Barb., 132; James v. Patten, 6 N. Y. Rep., 9 (2 Selden). Giving to the plaintiffs therefore all they can claim there was no execution of a contract to convey, however impressive the array of facts may be of an intention to do that act. The making of initials opposite the seals or at the places where the signatures were to be made was not a subscription in any sense under the latter rule created by the authorities last cited, although it would seem to be conclusive evidence of an intention to sign. If there were any papers subscribed by the testator which expressed when united or combined a contract to sell containing the terms thereof, even though, presented on shreds and patches, it might be woven out, but this essential pre-requisite does not exist. The appellant in the consideration of the case seems to have been influenced by the earlier rule as to signatures and the English cases on the subject which are not in harmony with our statute. Much time has been devoted to the examination of the appeal, but it has been found impossible to-demonstrate the error which is supposed to have been committed in the court below.

The judgment must therefore be affirmed, with costs.

Daniels, J., concurs in result.


author: Van Brunt, P. J. Brady, J.

text:
    The Citizens’ National Bank of Davenport, Iowa, Appl’t, v. The Importers’ and Traders’ National Bank of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887,)

    1. Checks and drafts—Transferable without endorsement.
    This defendant was the depository and correspondent of the plaintiffs. Several drafts drawn by the plaintiff in favor of another it was alleged were not paid, and this action was brought to enforce their payment. Held, that a check or draft on a bank, payable to a person named or order, was transferable by manual delivery without endorsement, although the only right then acquired by the transferee is that which the payee had in it at the time of transfer .
    3. Same—Action for refusal to pay—Dismissal of complaint.

      Held. That it having been sufficiently proven that the drafts in the hands of the plaintiffs had been paid and returned to them as vouchers; relating to the fund on deposit the complaint was properly dismissed. Van Brunt, P. J., dissenting.
    3. Same—Evidence—Competency of.

      Held, That the whole of the conversation which took place at the time of the presentation of the note was properly received in evidence. Held, by Van Brunt, P. J., that the fact of the refusal to pay having been proved, the reason therefor assigned by the bank official was incompetent.
    4. Same—Right of action accrues on refusal to pay.

      Held, by Van Brunt, P. J., That the sum on deposit being liable to-draft by the depositor, on the refusal of payment a right of action accrued in favor of it and that the burden of proof was upon the depositor -to justify such refusal.
    The appellant is a foreign corporation and the respondent-is a domestic corporation,

      On the divers dates between the 25th of February and the 10th of May, 1884, the plaintiff drew ten certain drafts or bills of exchange, each dated as of the day when drawn,
    whereby it directed the respondent to pay to the order of W. 0. Walworth & Co. certain sums of money. W. C. Walworth & Co. endorsed said drafts to the order of George Wadsworth for collection, and on the 6th day of November, 1884, George Wadsworth, having indorsed said .drafts in blank, presented them to the respondents for payment, and demanded payment thereof, which was refused, .and said drafts were protested for non-payment and notice thereof duly given. When the drafts were presented the .appellants had sufficient money or funds on deposit with the respondents to the benefit of the appellant, and subject to its draft, wherewith to pay such drafts in full. At the time of the presentation of these drafts for payment and the declinature of the respondent to pay the same, it was claimed by the respondent that it had previously paid the paper to the Fourth National Bank and that it had returned the checks to the plaintiff as vouchers. At the time of the presentation of the drafts as aforesaid said drafts bore the following endorsements, which were upon the drafts at the time of the endorsements heretofore stated to have been by W, C. Walworth & Co. and George Wadsworth two of the drafts being endorsed as follows:
    “Pay to the order of E. S. Bennett.
    “ W. 0. WALWORTH & CO.
    “Pay to the order of John W. Rumsey & Co.
    “E. S. BENNETT.
    “JOHN W. RUMSEY & CO.
    “Pay Fourth National Bank or order account Corn Exchange" Bank, Chicago.
    “ORSON SMITH, Cashier”

    The remainder of said drafts bore the following endorsements:
    “Pay to the order of John W. Rumsey & Co.
    “W. 0. WALWORTH & CO.
    “JOHN W. RUMSEY & CO.
    “Pay Fourth National Bank or order account Corn Exchange Bank, Chicago.
    “0. C. SWINBURNE, Assistant Cashier,

    (In some cases; in other cases),
    “E. S. CARL, .Cashier”

    Upon cross-examination, the witnesses who proved the presentation of the drafts to the bank being asked as to the genuineness, “ W. C. Walworth & Co.,” whereby said paper was indorsed to Bennett or Rumsey, testified that as to two of the drafts such endorsements were not genuine, and that as to the other indorsements they were genuine.
    The plaintiff having closed its case upon the foregoing facts, a motion to dismiss the complaint was made upon the ground that it appears as part of the plaintiff’s case that when these drafts were presented by him the reason assigned for the refusal to pay was that the defendant had already paid these drafts, and that it is conceded that they were at time indorsed, as appears on the drafts.
    And also because the complaint simply stated that the depositor drew his draft upon the depositary, to the order of Wadsworth, that Wadsworth indorsed it, and Wads-worth, the payee, demanded payment from the defendant, that the defendant refused to pay it, that it was protested, notice given to the plaintiff, and thereupon the plaintiff was obliged to pay it, and now claims damages to the amount of the check.
    This motion was granted, and from the judgment thereupon entered this appeal is taken.

      George Wadsworth, for app’lt; Anthony E. Dyett, for resp’t.
   Van Brunt, P. J.

The right of the plaintiff as drawer of the checks in question upon the refusal to pay, if such refusal was not justifiable, to bring an action against its depository for the amount of the check seems to be supported by the case of Viets v. The Union National Bank of Troy (101 N. Y., 563), where it is held that while a check drawn by a depositor against a bank account does not operate as an assignment of so much of the account, it authorizes the payee, or one to whom he has indorsed and delivered it, to make a demand, and the refusal of the bank to pay on presentation gives the drawer a right of action, in case he has funds in bank to meet the check and the refusal was without his authority. It is admitted in the case at bar that at the time of the demand for the payment of these checks the defendant had sufficient funds of the plaintiffs to pay the same, and that the refusal to pay was not by the authority of the plaintiff. The ground upon which the defendant seeks to support the ruling of the learned court below in dismissing the complaint, seems to be founded upon a misapprehension of the rules of law in reference to admissions.

The rule stated by the counsel is undoubtedly well settled by authority and has been frequently applied in reference to the construction of admissions not only in conversations, but also in pleadings, and it. is to the effect that where one party proves an admission of the other against, him, the latter has a right to insist that the whole of the conversation be taken together and he may prove all that was said at the time, as well what makes in his favor as what is against him and that the whole admission is presumably true until some part of it is impeached by evidence. Tnis rule is established by the case of Rouse v. Whited (25 N. Y., 170), and cases there cited; but it has no application to the case at bar. The plaintiff attempted to, prove no' admission of the defendant. It proved an act, namely, the refusal to pay; and although under the authoity of Bennett & Hall v. Birch (1 Denio, 141), the defendant had a right to prove by the evidence establishing the demand and refusal, the reasons given for the refusal, there is no principle or law which justifies the assumption without evidence that the reason given is true. If such a rule were to prevail it would be a dangerous fact for a holder of commercial paper to present it for payment, because if in refusing such payment the reason assigned was that the paper had already been paid, the holder although in possession of the paper would be required to prove that such was not the fact, thus reversing the whole order of proof. If the plaintiff had sought to prove a demand and refusal by a conversation with one of the officers of the bank, had after the refusal, in which such officer admitted that such demand had been made and such refusal had taken place, and in connection therewith had stated that they refused upon the ground that they had already paid the draft, then the rule in respect to admission would apply. But in the case at bar the act of refusal itself was proved and by no assertion which the party upon whom the demand had been made may make, can he change the burden of proof as to payment.

It appears that as to two of the drafts, although bearing a number of indorsements they were never indorsed by the payee until they were indorsed to George Wadsworth for collection, who presented the same for payment; the pre vious indorsement of W. C. Walworth & Co., being proved not to be genuine. It is clear, therefore, that notwithstanding all the other indorsements upon the drafts, the title was in George Wadsworth for the purpose of collection, and he had a right to demand-the same of the bank, and that the payment to any of the other indorsees even if proved would be no defense to the action, because no title in the drafts existed in any of them so far as appears by the evidence.

As to the other drafts which bore the genuine endorsement of W. C. Walworth & Co. to other persons, without, some proof the presumption would be that W. C. Walworth & Co. had parted with their title to those drafts prior to the time of affixing the subsequent endorsement to George Wadsworth for collection, and no recovery could be had without some explanation in respect to the endorsements.

It is claimed, however, that as the title to a check on a bank payable to a payee named or .order may be transferred by mere delivery without the endorsement of the payee, the proof that the endorsements upon two of the checks of W. C. Walworth & Co., the payee, were not genuine, does not affect the position of the defendant, because the Fourth National Bank when it presented the checks to the defendant for payment was presumably the holder of the checks and entitled to their payment. This proposition assumes that' there is proof that those'checks were in possession of the Fourth National Bank, arid that it presented the checks to the defendant for payment, and that the defendant paid the same. But, as has been seen, no such evidence exists in the case, it not having been proved, and the statement accompanying the refusal to pay the checks not being evidence of the truth of the facts stated in the refusal. If a bank pays a check drawn to order without the endorsement of the payee, it is bound to prove that the payee has parted with title before it can defend a refusal to pay upon demand by the payee having possession of the paper. There is no presumption that the holder of commercial paper payable to order unindorsed has any title to the same whatever, the presumption may be where genuine endorsements are established.

It is claimed upon the part of the respondent, that the plaintiff, before it could recover of the defendant, was clearly bound to tender back to the defendant the checks with their endorsements.

It is sufficient to say in answer to this proposition that the checks were tendered at the time of the demand and refusal, and that no such point was made upon the trial, or upon the pleadings, and if any motion had been based upon those grounds, the plaintiffs had the checks in court, and would undoubtedly have offered to surrender them to the defendants.

It would appear, therefore, that certainly as to two of the checks in question, it was error to dismiss the complaint and for such error, the judgment must, be reversed and a new trial ordered, with costs to appellant, to abide event.

Brady, J.

The plaintiff is a foreign corporation as appears from its title and the defendant was its correspondent and depository here. Several drafts or checks drawn in favor of William C. Walworth & Co., were not paid it was alleged, and which having reached the plaintiff, this action was commenced to enforce their payment. The defence interposed was payment and upon this issue the trial proceeded. The drafts and their endorsement by the payees.. were put in evidence and proved except three or four of the latter which were said not to have been made by any one of the payees firm but by whom the witness knew not. The same person was called to show presentment and demand of the drafts after they had been returned to the plaintiff, and that payment was refused because it was claimed to have been made, and it sufficiently appeared that they had been returned to the plaintiffs by the defendant, as vouchers relating to the fund on deposit. The complaint on these facts was dismissed.

It does not seem to be questioned that the whole conversation which took place at the time of presentation was properly received in evidence, and it could not well be. The rule is established by a series of cases. Bearss v. Copley (10 N. Y., 93); Perego v. Purdy (1 Hilton, 269); Rouse v. Whited (25 N. Y., 170), and cases cited, and payment hav ing thus been asserted it was deemed therefore to have been proved prima facie.

The. appellant is understood to contend however, that the defendant being a depository and having confessed to money enough to pay the drafts, the right of action existed and the burden of proof of payment therefore rested upon the defendant. This would convert the action into one for money had and received and not for the non-payment of drafts duly issued and presented. This is regarded as an erroneous proposition. If the action had been as suggested, the proof would have been different and undoubtedly forced the defendant to show why the claim urged was not satisfied.

The plaintiff would establish a demand by showing the deposit and vesting, and the evidence of what took place at the presentation of the drafts would not have appeared on the plaintiff’s case The defendant would then have been called upon to establish the proper appropriation of the fund in its possession, which had belonged to the plaintiff, and would not have been relieved by the statement mentioned. The plaintiff, by adopting a different course, exposed its rights to such defeat as the statement would accomplish and assumed the duty of showing it to be untrue. This obligation was not discharged, and the result was prejudicial. The evidence amounted to the plea of confession and avoidance.

It is said, however, that the drafts which were shown not to have been endorsed by the payees were not valid vouch ers, or properly paid, and as to these the right to recover was clear, but this does not seem to be a good legal proposition. It has been declared that a check or draft on a bank, payable to a person named or order, may be transferred by parol with manual delivery and without endorsement (Freund et al. v. Imp. and Trad. Nat. Bank, 76 N. Y. Rep., 352), although the transferee acquires only the rights he would have had, had the check been non-negotiable, that is, the right which the payee had in it at the time of the transfer. The payees on these drafts had an undisputed right to the sums named on them for they are alleged in the-complaint to have been drawn for value received. There is no evidence, except such as might be inferred from the manner of the endorsement that they were improperly transferred, no testimony showing that they were not in fact transferred by parol and manual delivery. The presumption is that they were.

The witness mentioned did not regard the endorsements as made by either of the persons constituting the firm of the payees; he did not know in whose handwriting the endorsements were made.

This is the extent of the evidence of the subject, and it does not touch the integrity of a parol transfer with manual delivery. They have been endorsed by the rightful owner on authority given for that purpose or by some authorized person in order to give them purer currency. There was no right of action based upon the improper endorsement asserted in the complaint or developed by the evidence of the payees that wrong had been done them, assuming the endorsement not to have been made, the fact is immaterial. In addition to this it may be said that the plaintiff substantially asserted the validity of the transfers made by asking for the payment of the drafts, and predicating its action upon their soundness as choses an action. For these reasons it becomes our duty to affirm the judgment.

Ordered accordingly, with costs.


author: Potter, J.

text:
    Eliza Abrams, Resp’t, v. Frank Rhoner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Specific performance of contract for purchase of land—When
    decreed—Title by adverse possession Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract where the vendor can give such a title.
    2. Same—Presumption as to delivery of deed of reconveyance.
    One Bayard was the owner of the premises in question on December 20, 1771, and upon that day conveyed them to Livingston and others. In 1797, it appears the same Bayard conveyed the same premises to Houston and wife and others; that the plaintiff derived her title through mense conveyances to her father, who went into possession of the premises in 1820, under an assessment lease, and continued under a deed dated 1834, and that the plaintiff and her grantors had been in the actual possession of the premises from the date of the deed from said Bayard in 1797 to the making of the contract for the sale of said land, to enforce which tins action is brought. It also appeared that neither of the grantees under the deed of 1771, nor any of their heirs, had ever been in possession or made any claim to the premises in question, nor any portion thereof, and that no conveyance by the grantees under the said deed of 1771, or any one of them was ever found or heard of. Held, that the presumption was conclusive that the grantees named in that deed mus t have reconveyed to Bayard before he conveyed in 1797, or that the conveyance of 1771 never had an operative delivery to the grantees named therein,
    3. Adverse possession—What constitutes.
    To constitute an adverse possession, it is not necessary that the title or deed under which the claim is made is rightful; the party need not produce and prove the deed under which he claims, and if when produced it is defective, it will not destroy the effect of the party’s possession.
    4. Same—Tenant in common may acquire—How acquired.
    One tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof for twenty-one years.

      Julius Heidermer, att’y ; James C. De La Mare, counsel for resp’t; Thomas J. McKee, att’y; Stephen Pfiel, counsel.
   Potter, J.

This an appeal from, a judgment entered upon the report of a referee appointed to hear and determine the issues in the action.

The action was brought to compel the specific performance of a contract made between the plaintiff and defendant on or about the 5th day of December, 1884, for the conveyance in fee simple by plaintiff to the defendant, on or about the 29th of December, 1884, of certain premises in the city of New York, and known and designated as 139 Mulberry street, in consideration of the sum of thirteen thousand and five hundred dollars, thirteen hundred of which was to be paid upon the making of the contract, and the residue on the delivery of the deed.

The plaintiff alleged and proved that she was ready and willing to convey, and that she tendered a proper conveyance to the defendant, and demands the payment of the balance of the consideration at the specified time and placé and the defendant refused to accept the same, or to pay the balance of the consideration.

The defendant contends that the plaintiff had not at that time the ability to convey such title as the contract called for, and that the title that she could convey was not a marketable title.

The defendant under the contract to convey is entitled to a marketable title. Shriver v. Shriver, 86 N. Y., 575.

Is the plaintiff’s title defective to the degree that renders it unmarketable ? The plaintiff’s title rests upon proof of a conveyance from Nicholas Bayard, dated December, 1797, to several parties, and by mesne conveyances from the grantees in said deed, and upon an adverse possession thereunder for about one hundred years.

The defects in plaintiff’s title as specified and insisted upon by defendant, are that Nicholas Bayard, the grantor of the premises in the deed above mentioned, and under which the plaintiff claims to derive her title, had by a previous deed, dated in 1771, conveyed the premises in question to others than the grantees in the deed of 1797, and that there is no proof of any conveyance of the premises by the grantee in the deed of 1771, back to the grantor Nicholas Bayard; that one of the deeds forming the chain of title from grantees under the deed of 1797, and through which plaintiff claims title, viz.: the deed to Albert I. Terhune from McIntosh and wife, was not sufficiently proved, owing to a defect in the certificate of acknowledgment, and that the possession of the plaintiff and her grantors, some of the essentials of such adverse possession as constitutes a marketable title.

Assuming the referee had found or ought to have found, that Nicholas Bayard was the owner of the premises in question on the 20th of December, 1771, and that upon that day he conveyed them to Philip Livingston and others, there is the undisputed evidence and the fact is found by the referee, that in 1727 the same Nicholas Bayard conveyed these premises to William Houston and Mary, his wife, and others, the grantees being the daughters of said Nicholas, and the husbands of the two daughters that were then married, and that the plaintiff derives her title through conveyances to her father, who went into the possession of the premises in 1820 under an assessment lease and continued under a deed dated 1834, and that the plaintiff and her grantors have been in the actual possession of the premises from the date of the deed from said Bayard, dated in December, 1797, to the time of making the contract in question; that neither of the grantees under the deed of 1771, nor any of their heirs had ever been in possession or make any claim to the premises in question nor any portion "thereof and that no conveyance by the grantees under the said deed of 1771, or any one of them was ever found or ever heard of, the presumption must be conclusive, that the grantees named in that deed must have re-conveyed to Nicholas Bayard before he conveyed to his daughters and their husbands in 1797, or that the conveyance of 1771, never had an operative delivery to the grantees named therein. Woolsey v. Morss (19 Hun, 273), and the numerous cases it referred to in the opinion in that case. Jackson v. McCall, 10 Johns., 377; Jackson v. Moore, 13 id., 510; Ottinger v. Strasburger, 33 Hun, 466.

But aside from this presumption the plaintiff established a title- by adverse possession. These premises have been held by plaintiff and her grantors under claim of title fortified by conveyances to the parties occupying, and in the absence of any hostile claim, practically from the date of the deed from Nicholas Bayard in 1797 to the date of the commencement of this action.

Where the title by adverse possession is so clear that the court should direct a jury to find such title, the court will compel a specific performance of a contract, where the vendor can give such a title.

Ottinger v. Strasburger (supra), and the same case affirmed in 102 N. Y., 692. Shriver v. Shriver, 86 N. Y., 575.

We do not think any point is made in favor of the defendant by the overruling of the objection to the introduction of the deed from McIntosh and wife to Terhune on the ground of its defective acknowledgement and proof.

If the referee had ruled to the contrary and excluded the-deed it would have left the plaintiff and her grantors holding title to four-fifths of the premises by adverse possession from the date of the deed in 1797, by Nicholas Bayard to-Mrs. McIntosh formerly Eliza Bayard, or it would have left the plaintiff’s title to stand upon this case; that plaintiff' had acquired the title of all the grantees under the deed of 1797, except Eliza McIntosh and to have been a tenant in common with her and then to have acquired her title by adverse possession; for one tenant in common may acquire the title of another tenant in common by adverse possession. An ouster will be presumed after an exclusive possession and receipt of the entire profits with a claim of right to the whole thereof for twenty-one years. Florence v. Hopkins (46 N. Y., 133); Woolsey v. Morss (19 Hun, 374), and cases there cited.

But the deed was properly received as evidence for the purpose of showing the plaintiff entered and occupied the share of the premises deeded by Nicholas Bayard to Eliza. McIntosh under a claim of title from her and her husband. To constitute an adverse possession it is not necessary that the title or deed under which the claim is made is rightful; the party need" not produce and prove the deed under which he claims and if when produced, it is defective as a deed, as for want of - a seal or otherwise, it will not destroy the effect of the party’s possession. Bradstreet v. Clarke (12 Wend., 674), and cases cited.

An illustration of this principle is shown in conveyances by a pretended agent or attorney. If the power to convey did not exist in fact or was a forgery yet it is insufficient to give color to the grantees claim of title and stands upon the same footing as a genuine deed or a deed under a valid power. Id.

The grantee in the deed from McIntosh and wife was in possession in 1834 and gave to said McIntosh a mortgage to secure the purchase money of the portion of the premises purporting to be conveyed by McIntosh and wife to him and which mortgage was afterwards paid and satisfied.

This afforded proof at least by way of admission and recognition that McIntosh and wife had parted with whatever title they ever had when they accepted a mortgage from Terhune as the mortgagor and owner, to secure the purchase of premises formerly owned by McIntosh and his wife, and would conclude their heirs and their privies, and form at least the beginning of an adverse possession good against all persons, from the date of the mortgage as well as before. Terhune and his wife and children including the plaintiff had occupied the premises until the commencement and trial of the action.

Under the facts of this case we have not thought it necessary to examine whether the certificate of the proof of the execution of the deed from McIntosh and wife was strictly in conformity to the statute at the date thereof.

Under the circumstances of this case, if such proof was necessary the court would allow a liberal construction of the certificate. West Point Iron Co. v. Reymert (45 N. Y., 703); Canandarqua Academy v. McKechnie, and cases cited.

Judgment should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, J., concur


text:
    Philip Brady Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Contract—Effect of recission of—No provisions survive except THOSE SPECIALLY AGREED ON.
    This action was brought to recover compensation for work performed under a contract. By the terms of the contract, it was provided that in event of certain contingencies arising, the defendant should have the power to direct the plaintiff's assignor to discontinue any further work under said contract, and that they might proceed themselves and complete the work, or relet it to another, and to charge any excess of expense over the original contract price consequent on so doing to the original contractor, and deduct the same from any sums due him. It was further-agreed that the work should be done in a time agreed upon, and for each day beyond the period allowed during which the work should remain in an unfinished state, a certain sum was to be deducted by the defendants from the sum due the plaintiff. The defendants, after the work had proceeded for some time, directed the plaintiff’s assignor to stop and relet the work to another, stipulating that he should have a certain time within which to finish it: Meld, that the defendants having annulled the original contract, and let the work to another under a new agreement, none of the provisions of the original contract remained in force except those kept alive by express agreement
    2. Same—New contract—Effect upon original contract.

      Held, that the defendants having, by express agreement with the party with whom the latter contract was entered into, allowed him a period of time in which to complete the work in excess of that stipulated for under the original contract, could not in this action he allowed to deduct from the sum due the plaintiff's assignor for compensation the sum originally agreed upon for delay in the completion of the work.

      L. Lajlin Kellogg, for resp’t; E. Henry Lacombe, corporation counsel, for app’lt.
   Potter, J.

This is an appeal from a judgment entered upon a verdict directed by the justice at circuit for the sum of $4,700.77. The controversy arose out of a contract between the defendant and plaintiff’s assignor in relation to regulating and grading, etc., One Hundred and Twelfth street between Seventh and Eighth avenues, in the city of New York. It appeared' from the evidence upon the trial that the contract between the parties, among numerous provisions and stipulations, contained a provision that in any or all of several contingencies the defendant should have the power to direct the plaintiff to discontinue any further work under said contract, and for the defendant thereafter to proceed and complete the work or to relet the work to another and to charge any excess of the expense of so doing to the original contractor, and to deduct the same out of any moneys that then or thereafter might be due to the contractor under the original agreement.

The original contractor performed • work under the contract from the date of the contract, October 23, 1882, till some time in January; 1884, when the contract was terminated by the defendant and thereafter, on the 20th of May, 1884, another contract for the completion of the work was entered into between the defendant and Patrick Farley, pursuant to the original contract for that purpose, and the work was completed by the latter under the new contract.

It was also agreed that the contractor should complete the work in two hundred and seventy-five days, besides certain specified days not to be computed, and further, that the said party of the second part hereby further agrees that the said parties of the first part shall be and they are hereby authorized to deduct and retain out of the moneys which may be due or become due to the said party of the second part under this agreement, as damages for the non-completion of the work aforesaid within the time stipulated for its completion, the sum which shall accrue and become due for the inspector’s wages, for the time not hereinbefore excepted, after the expiration of the time stipulated for the completion of the work.

The contract contains other provisions in relation to damage's for violation of the contract by the contractor and allowing the defendant to retain the same out of moneys due or to grow due under the contract. There is also this provision in the contract, to wit: that “the said party of the second part hereby further agrees that the said parties of the first part shall be and they are hereby authorized to deduct and retain out of the moneys which may be due or become due to said party of the second part under this agreement, as damages for the non-completion of the work aforesaid within the time hereinbefore stipulated for its completion, the sum of fifteen dollars for each and .every day the aggregate time of all the inspectors employed upon said work may exceed the said stipulated time for its completion.

Upon the trial the defendant sought to be allowed in reduction of the plaintiff’s claim, the amount of the damages at the rate specified in that provision of the contract, viz., fifteen dollars a day for the number of days employed upon the work beyond the number specified in the contract for the completion of the work. These damages, the defendant claimed, should be allowed without other proof than the fact that the contract was not completed within the time specified for that purpose in the original contract.

The learned justice overruled the defendant’s contention and directed a verdict for plaintiff regardless of any claim for damages under the provision of the contract.

Was the direction of the trial judge in this regard erroneous ?

From the general structure and provisions of the contract under consideration it is pretty plain that while the plaintiff’s assignor was to undertake the performance of the contract and to complete it in a specified time and manner, yet the defendant had the right in certain contingencies to annul the contract and complete it or to let it to another to complete. The defendant chose the latter and let the work to another under a new contract containing other and different provisions, notably as to the prices of the work; and as to time within which the work was to be completed. The defendant having annulled the original contract, as it had the unquestionable right to do, the plaintiff’s assignor had no further right to continue the work under that contract. None of the provisions of the contract thus annulled herein, were in force or operative upon the parties to it, except such of them as were kept in life by the express terms of the old contract after the new one was made by the defendant, for the completion of the work.

These were, that if the defendant got the work completed for less than it had contracted to pay plaintiff’s assignor for it, he should receive the difference; and if the defendant had to pay more for its completion than it had contracted to pay plaintiff’s assignor, lie should pay the defendant the difference.

This was a fair and equitable arrangement, as it provided that the work should be ultimately performed, and that the parties should respectively pay and receive just what had been contracted for, and all the other incidents of the original contract as means to that end were dispensed with by the new contract. I think the provision in regard to paying fifteen dollars a day under the contract between John .Brady and the defendant had been annulled by the adoption of the new in place of the original contract.

This construction of the two contracts is fully shown in the fact that in making the new contract with Farley, the defendant agreed upon another and much extended period of time. viz.: two hundred days in which Farley was to complete the work. Can it be, that the defendant can rightfully insist that Brady shall pay damages for delay in completing a contract which the defendant has taken away from him and let to another, with a stipulated extension of time for its performance ?

The claim is not only for damages from the delay attending Brady’s partial performance, but is also for the delay which the defendant expressly gave Farley for the performance of the unfinished portion of Brady’s contract.

It has generally been regarded as a complete answer to a cause of action for breach of contract, that the party thus complaining, rendered it impossible for the other party to perform it. Gallagher v. Nichols, 60 N. Y., 438.

But the defendant’s contention exceeds this by a considerable ; for he not only took the contract away from Brady but let it to another, and gave that other an express extension of time in which to perfect it.

Let us trace the working of this principle a little in another direction. Under the contract the defendant had the right to cancel it, and to finish the work itself, charging Brady with any excess in the expense of doing it.

Could it also recover of Brady fifteen dollars for its own delay in completing the work ?

I apprehend the law applicable to this class of contracts is this: That where one party to a contract has broken it in some material part, the other party to the contract may treat it as null and go on and complete the contract; or he may repair the breach by doing what is omitted or defectively done, and charge the expense of it over to the defaulting party. If he takes the former course, the contract is at an end and the party cannot recover any damages beyond those sustained when the contract was rescinded. If he take the latter course, he may recover any legitimate damage during the performance of the residue of the work. Crawford v. Becker, 13 Hun, 375 ; Murphy v. Buckman, 66 N. Y., 297-300.

Entertaining these views, I am satisfied that the direction given by the trial court to render a verdict for the plaintiff, taking no account of the fifteen dollar a day clause, was correct, and I do not deem it necessary or useful to go through the numerous and differing cases to be found upon the question, to decide whether that clause imparts a penalty, or liquidated damages. Especially as we are referred to a case by appellant’s counsel. Reilly ex. v. The Mayor, etc., (34 Hun, 628), in the general term of this department, holding that this clause in a contract like the one under consideration, imports liquidated damages and not a penalty.

Except for that case, my first impression would incline my judgment to the opposite conclusion.

Judgment should be affirmed with costs.

Lawrence, J., concurs; Van Brunt, P. J., not sitting.