author: Brady, J.:

text:
    JOHN H. MORRELL, Appellant, v. MARY CATHARINE TRIMINGHAM MORRELL, Respondent.

      Action for divo?'ce— when a compulsory reference cannot be ordered.

    An action was brought by a husband to dissolve a marriage, on the ground that he was induced to enter into it by the fraudulent concealment of a disease with which his wife was afflicted, and also on the ground that by reason of such disease she was physically incapable of entering into the marriage state, and that there was' no reason to suppose that her physical incajiacity would be removed.

      Held, that a compulsory reference could not be ordered on the application of the defendant unless plaintiff waived his right to a trial by jury in the manner provided in section 1009 of the Code of Civil Procedure.
    That the provision of the statute, authorizing a reference in an action to annul a marriage for physical incapacity of one of the parties, embraces only cases in which from a physical incapacity, other than that which results from sickness, the marriage cannot be consummated.
    Appeal from an order of reference made in this action.
    Tracy, Olmstead <& Tracy, for the appellant.

      Hall & Harvey,. for the respondent.
   Brady, J.:

The plaintiff seeks to annul the marriage between him and the defendant, on the ground that it was accomplished through fraud. This is the primary and chief cause of action. He avers, however, as a separate ground of complaint, that the defendant on account of a malady to winch she was subject was physically incapable of entering into the marriage state at the time of the marriage, and that there is no probability that her physical incapacity will be removed. The answer meets these allegations by proper denials, and thus issues were created which required investigation in the manner declared by law. The defendant, preferring that mode, applied at Special Term for an order of reference which was opposed, but the. application was successful, and a reference was ordered to hear and determine the action and the issues therein.

The plaintiff appeals from that order, and the question presented is, whether it was authoritatively made. An examination of the law of this State shows that issues, such as the pleadings herein present, were the subject of statutory enactment at an early period, and that the right to a trial by jury, given, was protected by the Constitution.

The Legislature, in defining the jurisdiction of the Court of Chancery, provided as follows : “All issues upon the legality of a marriage (except where a marriage is sought to be annulled on the grouud of the physical incapacity of one of the parties) shall be tried by a jury of the country, and the chancellor shall award a feigned issue for the trial thereof.” (2 Rev. Stat., old paging, 175, § 45; 3 Rev. Stat. [6th ed.j, 191, § 59.) It had also been declared that suits to annul a marriage should be by bill, and should be considered in the same manner as other suits in equity prosecuted in the courts in equity, and that the court should have the same power to award issues, to decree costs and to enforce its decrees as in other cases. (2 Rev. Stat., old paging, 144, § 35; 3 Rev. Stat. [6th ed.], 155, § 48.)

The' right of trial by jury upon issues relative to the legality of the marriage was secured, therefore, and this right was preserved by the Constitution (art. 1, § 2, Constitution of 1846), although it might be waived in the manner to be prescribed by law. (Id.)

This latter provision gave the Legislature the power to declare in what way the right to trial by jury might bo waived, and this power has been exercised. It is provided by section 1009 of the Code of Civil Procedure that a party may waive his right to the trial of an issue of fact by a jury. First. By failing to appear at the trial. Second. By filing with the clerk a written waiver signed by the attorney for the party. Third. By an oral consent in open court entered in the minutes. Fourth. By moving the trial of the action without a jury, or, if the adverse party so moves it, by failing to claim a trial by jury before the production of any evidence upon the trial.

It does not appear that the plaintiff moved the trial of the action, unless the placing it upon the Special Term calendar for trial was such an act, but it is clear that the plaintiff’s right is not affected by that circumstance. He may demand the trial by jury when the. cause is called for trial.

It has been held that a refusal to grant an order settling issues to bo tried by jury does not deprive the party of his right to such trial, which may be insisted upon when the cause is brought to trial. (Colman v. Dixon, 50 N. Y. Rep., 572.)

The provisions of the Code, § 970, of Civil Procedure, and the rule (31) relating to them, do not declare that a failure to apply for the settlement of issues to be submitted to a jury is a waiver of the right to such trial. If the plaintiff were to move the cause to trial before a judge without a jury, and begin the trial, the power of the court sitting as a court of equity might perhaps be invoked to order a reference. When the order appealed from, however, was made, no such proceeding had been adopted, there was no waiver of the right to a jury therefore, and the court consequently had no authority to make the order.

It may be said that the section of the statute first referred to, excepts issues which relate to the physical incapacity of one of the parties, but that does not avail the defendant. The issues do not relate exclusively to the charge of physical incapacity, and the latter charge is one which is predicated of those on which the charge of fraud rests, namely, the condition of the defendant arising from the malady with which she was afflicted. The main charge is fraud, as before suggested, and the issues created by it affect the legality of the marriage. Aside from these views it is quite apparent that the exception relates to physical incapacity other than that'which results from sickness, and embraces those cases only in which from physical incapacity the marriage cannot be consummated. ‘ t

For these reasons the order appealed from must be reversed, but it is done with reluctance because the action is one it seems which should not be tried in open court on account of the character of the issues presented.

Ordered accordingly ; no costs allowed in this appeal.

Potter, J., concurred.

Present — Brady and Potter, JJ.

Ordered reversed, without costs.


source: Caselaw Access Project

author: Ingalls, J. :

license: Public Domain

text:
    SAMUEL H. HURD as Receiver of the Third Avenue Savings Bank, Respondent, v. SPENCER K. GREEN, Appellant.

      Bond —■ what a sufficient considei’ation therefor — when a party is liable on a bond given to strengthen a bank.

    December 81,1873, the defendant executed to the Third Avenue Savings Bank a bond under seal, by which “ in consideration that the Third Avenue Savings Bank at my (his) request does continue its ordinary business, after the 19th day of January, 1874,” he bound himself to pay to the said bank, “ its successors and assigns, on the first day of January, 1883, or six months after demand therefor, the sum of §15,000.” The defendant at the time of executing the bond was, and from its organization had been, a trustee of the bank, and continued to be one until the bank was dissolved and the plaintiff was appointed receiver in 1875. At' the time the bond was given the bank was in embarrassed circumstances, and its capital was seriously impaired. In an action brought by the receiver upon the bond, held,

    (1.) That the seal was prima facie evidence of a sufficient consideration to support the bond.
    (2.) That the fact that the bank at the defendant’s request continued in business, was a sufficient considei'ation to support it.
    (3.) That the defendant could not claim that the action of the bank in taking the bond was ultra vires and void.
    (4.) That the action was not prematurely brought, as the bond became due six months after a demand made, and did not necessarily run until 1883.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit, and from an order denying a motion for a new trial.

      Robert Sewell, for the appellant.

      Frederick Smythe and A. J. Vanderpoel, for the respondent.

       SAMUEL H. HURD, as Receiver of the THIRD AVENUE SAVINGS BANK, Respondent, v. RICHARD KELLY, Appellant, and THE SAME v. DANIEL D. T. MARSHALL, Appellant. Decided at the same term.
      “Ingalls, J.:
      “We refer to the opinion in the cause Samuel H. Hurd, receiver, etc., v. Spencer K. Green, in which most of the questions presented upon the appeals in the above actions are discussed. The three appeals were argued together, and the questions raised are mainly identical. Requests were made in the above actions by the counsel for the defendants that certain questions should be submitted to the consideration of the jury, which were declined by the court. An examination ol such requests, in connection with the evidence and the law applicable thereto, convinces us that the decision at the circuit was correct. (West. N. Y. L. Ins. Co. v. Clinton, 66 N. Y., 327; Dair v. United, States, 16 Wall [U. S.], 1; Magee v. M. L. Ins. Co., 92 U. S. Rep., 93.) The bond in question, although by its terms payable to the bank, was in fact intended for the benefit and protection of all persons who dealt with the bank. The bond was reported to the bank department as an asset, and constituted a part of the property of the bank, and enabled it to continue its ordinary business, thereby inducing innocent parties to deposit their money therein. The execution and delivery of such bond cannot, therefore, be regarded as a transaction affecting merely the bank and those who executed the instrument; but as extending- to all persons who in the capacity of depositors or otherwise transacted business with it upon the assumption that it was solvent. They were justified in regarding such bond a valid obligation, which contributed to the strength of the bank; and as nothing appeared upon the face of the bond to excite suspicion they were not concluded by any private negotiations between the officers of the bank and the parties who executed the bond. In view of all the facts of this case, and the relation which the defendants bore to the bank, it would be unreasonable and unjust to allow them to escape liability upon the pretence that they were not informed in regard to the pecuniai-y condition of the bank, or upon the ground that false representations were made in relation thereto, when it is apparent that they had every opportunity to examine and ascertain the facts; and there is no evidence that they availed themselves of such privilege. If parties will voluntarily assume such liabilities they should not be permitted upon slight grounds to avoid the consequences, to the prejudice of innocent persons. The judgments should be affirmed, with costs.”
      Brady, J., concurred.
      Present — -Davis, P. J., Brady and Ingalls, JJ.
      Judgment affirmed, with costs.

   Ingalls, J. :

This action was brought to recover upon a bond hereinafter set forth. At the close of the plaintiff’s evidence the defendant’s counsel moved the court to dismiss the complaint, or to direct a verdict for the defendant upon the following grounds :

First. That it appeared by the evidence that there was no consideration given for the bond.

Second. That the bank had no power to enter into such a contract, and the bond was ultra- vires and void.

Third. That the bond was contrary to the statute against gaming and betting and void.

Fourth. That by the terms of the bond it appeared that it was not yet due.

Which motion was denied by the court upon each of the grounds aforesaid, and to which ruling of the court the defendant’s counsel duly excepted.

The defendant’s counsel then moved the court for leave to go to the jury on the question of consideration or no consideration for the bond, and also moved the court to submit the question of the defendant's right to recover salary for the six months’ service in 1871, proven to have been rendered, to the jury.

Both of which motions the court denied, and the defendant’s counsel duly excepted in time to the denial of each of said motions.

The court then directed the jury to return a verdict for the plaintiff for the sum of $19,161.08. To which direction of the court, and to the verdict rendered thereunder, the defendant’s counsel didy excepted in time.

The following is a copy of the bond before mentioned :

Know all men by these presents : That I, Spencer K. Green of the city, county and State of New York, in consideration that the Third Avenue Savings Bank, at my request, does continue its ordinary business after the 19th day of January, 1874, do hereby bind myself, my heirs, executors and administrators, to pay unto the Third Avenue Savings Bank, its successors or assigns, on the 1st day of January, 1883, or six months after demand therefor, the sum of $15,000, with interest from the 1st day of January, 1873, at seven per cent per annum, payable on the first days of January and July. And I expressly agree that ,the payments made on account of either the principal or interest of this bond shall not be claims against the said savings bank, nor constitute a debt of the said savings bank, except, however, that all payments so made shall be returned with interest by the said savings bank, out of any actual surplus acquired by it exceeding the sum of $115,000.

And the said Third Avenue Savings Bank does receive this bond upon the terms and conditions herein expressed, and further agrees that whenever an actual surplus exceeding the amount of $57,500 shall have been acquired by it, then the rate of interest upon the sum secured by this bond shall be reduced to such extent as shall not impair such surplus, and that interest shall be allowed and paid by it upon all sums of money actually paid on account of the principal sum secured hereby.

And the said savings bank does further agree that whenever the actual surplus acquired by it shall amount to the sum of $10,000, exclusive of this bond and of a certain other bond dated 28th December, 1872, made by William A. Darling and others, then this bond shall be discharged and the obligor thereof bo forever released therefrom.

In witness whereof I have hereunto set my hand and seal, and the said savings bank has hereunto affixed its corporate seal, and caused these presents to bo attested by its officers this 31st day of December, in the year one thousand eight hundred and seventy-three.

[l. s.] (Signed.) SPENCER K. GREEN.

T. W. DECKER, President.

[l. s.] David Morgan,

Secretary.

In presence of Henry C. Weeks.

The defendant’s counsel moved for a new trial upon the minutes of the judge, which was denied and an exception taken to the decision. We are satisfied that the consideration established is sufficient to sustain the bond. First. The seal imports a consideration, and even since the modification of the rule, in this respect, at common law by the Revised Statutes (Edm. ed., vol. 2, p. 423, § 77), it is at least presumptive evidence of a sufficient consideration. (Torry v. Black, 58 N. Y., 186; Gray v. Barton, 55 id., 69; Petrie v. Barckley, 47 id., 653; Calkins v. Long, 22 Barb., 98.) Second. The bond states as a consideration, a request to the hank to continue its ordinary business after the 19th day of January, 1874, as follows: “In consideration that the Third Avenue Savings Bank at my request docs continue its ordinary business after the 19th day of January, 1874, do hereby bind myself,” etc. The bank did continue such business after that period and until the 4th day of October, 1875, when it was dissolved by order of the court. It is insisted by the defendant that when he executed the bond he was not aware that the bank was embarrassed, and further that it did not change its course of business in consequence of such request, and therefore the request did not amount to any actual consideration. It may be well to examine some of the facts bearing upon this question in this connection. The defendant had been a trustee of this bank from its organization until its dissolution, and was its president until July 15, 1871, and claims to have been daily in attendance at the bank in the discharge of his duties as such president much of the time up to that date. It appears by the report of a committee, which was appointed by the trustees to investigate and report in regard to the condition of the bank, that its capital was seriously impaired as early as December 12, 1872, such report contains the following: “These statements demonstrate the fact that the apparent surplus exhibited by the December statement is entirely deceptive, and that under the most prudent management undisturbed by any untoward action of the depositors, the board cannot reasonably expect to realize from the present assets of the bank sufficient to meet its present liabilities, and that the deficiency in this respect amounts to very nearly the sum of $100,000.

“This, it will -be remembered, is the deficit under a favorable realization of the assets. The last column of the table shows what may be expected if the assets of the bank are forced to a peremptory sale by the action, either of the board or of the depositors. In this case the deficiency of the assets of the bank would be upwards of $250,000.

“The present position of the bank in regard to its ability to meet its payment of interest and expenses from its income for the coming year is equally unfortunate. The annexed table exhibits the total income which the bank can reasonably expect for the year 1873, on the basis of its present deposit, as.the sum of $84,554. This sum, however, would be increased to $94,214, if the Tarrytown property could be at once converted into cash, or paying investments. The payments of the bank for the next year for interest and expenses, estimated also on the basis of the present deposit, are shown to be $99,930. Thus the deficiency of income will be from $5,700 to $14,500, according as the Tarrytown property is realized or not.

“ This then is the actual position of the bank, the disasters of the past have mppled the institution, and it becomes the action of the present managers to save it if they can. Many of us have come into the bank with a view of aiding in the good work, if we can, and others until now have faithfully stood by the ship, ivliile those chiefly responsible for the -wreck have left. Hitherto we have acted with the direct approval of the superintendent of banking, and now again we should seek his approval of whatever action we propose taking.

“ What then remains to bo done ? We have said that an actual deficit of $100,000 exists ; that the position is constantly growing worse from the deficiency of income, and that if the bank were to-day forced into liquidation, a loss of upwards of $250,000, or fifteen per cent, would be thrown on the depositors; in fact, in the case of actual suspension and the inevitable liquidation in the bankruptcy court, the necessary sacrifices and expenses would so diminish the volume of the assets that the percentage of loss to the depositors would be largely increased.”

This report was on file in the bank and showed its condition, and plainly pointed out the course which should be pursued to preserve the bank, which was adopted by the, trustees, and the bonds were executed accordingly, the first amounting to $100,000 on tho 28th day of December, 1872, by fourteen individuals, and the one in question executed by the defendant, which bears date December 31, 1873. 'The defendant testified that he gave the bond to strengthen the ban7o, and was aware at the time that the bond for $100,000 had been executed, but did not know for what purpose, nor did ho know that the assets were less than the liabilities. It is certainly very remarkable, in view of all the circumstances, that the defendant could be so ignorant of the condition of the bank , possessing, as lie obviously did, every opportunity to acquire information in relation thereto. It does appear by his own evidence that he not only knew that the bond for $100,000 had been executed, but that prior to 1871 the officers relinquished a portion of their salaries in consequence of the condition of the bank at that time. It seems incredible that a person of ordinary intelligence should not have inferred that a bank which required bracing to the extent of $115,000 was not in a sound condition, and the evidence of the defendant shows clearly that ho was possessed of a knowledge of facts which should have put him upon inquiry in regard to the solvency of the institution before he executed the bond in question. We think no inference can reasonably be drawn from all the circumstances but that the defendant, and the parties who executed the other bond, knew that the bank was crippled and required support, and that they executed the bonds hoping thereby to prevent its failure. These bonds amounting to $115,000 were reported to the bank department as assets in the years 1874 and 1875. The defendant testified as follows : “From the time I gave the bond the bank continued open; it received deposits and transacted its ordinary business; I ceased to be president July 15, 1871 ; I continued to bo a trustee down to the time of the bank stopping; I was elected as a trustee first in 1856, or 1857, or 1858, I cannot tell which ; and at the time of my election as president I was a trustee, and always continued to bo a trustee up to the time of the dissolution of the bank.”

The bank was thus enabled to continue its business, and the depositors entrusted their money to it, upon the assumption that it was a sound institution, and therefore the request of the defendant expressed in his bond as a consideration for his undertaking was realized, and cannot be regarded as mere matter of form. In the Trustees of Hamilton College v. Stewart (1 N. Y., 581), Judge Gardner remarks at page 583: “ In looking at the contract, however, we meet with the same difficulty, in another form to which I have alluded in reference to the first count in the declaration. There is no request by the subscribers that the plaintiffs shall do anything. * * * The trustees are made by the subscription the mere depositories of the money, and nothing more. * * * If, with C. J. Nelson, we find that the defendant agreed to pay $800, provided the plaintiffs would procure subscriptions, and should afterwards invest the money, etc., this, according to the cases, would amount to a request to perform those services, and the defendant would be liable.” (Richmondville U. Seminary v. McDonald, 34 N. Y., 379; Barnes v. Perrine, 12 N. Y., 29.) Within the doctrine of these cases, the request contained in the defendant’s bond, acted upon as it was by the bank, and thereby preserving its credit, and inducing innocent persons to deposit money, and transact other business with it, upon the assumption that it was sound and reliable, certainly constituted a consideration sufficient to uphold the bond. The law does not require that the consideration shall be commensurate with the magnitude of the obligation to render a contract binding. In Oakley v. Boorman (21 Wend., 588), Judge Cowen says: “ Almost every bargain is incapable of being made exactly equal on both sides, * * * hence the law has declared that the slightest consideration is sufficient for the greatest undertaking.” (Barnes v. Perrine, supra; Earl v. Peck, 64 N. Y., 597; Sands v. Crooke, 46 id., 564; Haden v. Buddensick, 4 Hun, 649.)

Third. There are reciprocal agreements contained in the bond, and those of one party constitute a consideration for those of the other. The bond is complete in itself, and is executed by all the persons whose names appear in the body of the bond as parties thereto ; and the obligation of the defendant is personal for a specific amount, and not made by the terms of the instrument to depend upon whether or not other parties were to assume a similar liability. (Richmondville U. Seminary v. McDonald, 34 N. Y., 379, 382; W. N. Y. L. Ins. Co. v. Clinton et al., 66 id., 326.) It is further insisted that the baidc had no power to enter into such contract, and being ultra vires the bond is void.

Since corporations have become so universal, extending to almost every department of business, science and benevolence, the application of this doctrine to contracts made by, or with, corporations has latterly essentially changed, and a far more liberal rule is now indulged in regard to such contracts than formerly; and necessarily so to prevent fraud and injustice. Indeed, the rule seems so far relaxed that when the contract is not tainted by fraud, or expressly prohibited by statute, and has been fully or even partially executed so that it would be unjust to allow a repudiation thereof by either party, such defence will not be sustained by the courts. In Whitney Arms Co. v. Barlow (63 N. Y., 63), Judge Allen remarks: “The plea of ultra vires should not as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.” In Railway Co. v. McCarthy (96 U. S., 6 Otto, 258), Judge Swayne says : “ The doctrine of ultra vires when invoked for or against a corporation should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong.” (Bissell v. The M. S. and N. I. R. R. Co., 22 N. Y., 258; The Oneida Bank v. Ontario Bank, 21 id., 490; Tracy v. Talmage, 14 id., 162; Steam N. Co. v. Weed, 17 Barb., 378.) The defendant executed the bond in question voluntarily, and either knew or had the means of knowing, and, therefore, should have known, the condition of the bank and the purpose for which such security was required, and innocent parties, having trusted the hank upon the faith of such security, should not be subjected to loss by allowing the defendant to escape liability through such a defence, as it would be inequitable and grossly unjust.

It is further contended by the defendant that the bond will not become payable by its terms until January 1, 1883, and that the action was, therefore, prematurely commenced. The language employed is as follows : “ To pay unto the Third Avenue Savings Bank, its successors or assigns, on the 1st day of January, one thousand eight hundred and eighty-three (1883), or six months after demand therefor.” Regarding the purpose for which the bond was given, we conclude that the intention was to make it payable on the 1st day of January, 1883, or at any time previous thereto, after the expiration of six months from a demand of payment. The bond was executed to provide for any emergency which might arise in regard to the bank, and it is not reasonable to suppose that the bond was not to be resorted to until 1883. A demand of payment would seem quite unnecessary after the money had become due by the terms of the bond. We think the interpretation which we have given to the instrument is consistent with its terms, and is in accordance with the intention of the parties.

It is claimed that the bond is void within the provisions of the statute against betting and gaming; we fail to discover wherein it is obnoxious to such statute.

In regard to the counter-claim for salary as president of the bank, from January 1 to July 15, 1871, after a careful examination of the evidence, wo deem it not allowable, as it is quite apparent that at the time there was no intention on the part of the defendant to demand the same ; on the contrary, it is quite evident that owing to the condition of the bank there was an understanding that it should be relinquished. The evidence of the defendant is not inconsistent with such view of the matter. He testifies on that subject as follows, viz.: “As president of this bank, Iserved from the 1st of January, 1871, to the 1st of July, 1871; I think I served to the middle of July; I am not certain ; I was not paid anything for that six months’ service ; I had been paid for all my services as president prior thereto ; I cannot state what I had received for the years prior to 1870 ; I can only give my impression that it i vas about $6,000 ; I attended the bank daily during those six months in 1871; I had prior to 1871, in consequence of the condition of the bank, agreed to relinquish a portion of my salary, one or two years previously ; I don’t' recollect which ; I don’t recollect how much I had relinquished ; it appears by the minutes I did not receive any salary whatever for the year 1871.”

William B. Harrison, another of the trustees, testified as follows : “ There was a meeting of the trustees of the bank at the time that the bond was acknowledged in the bank and delivered to the secretary of the bank ; Mr. Green was present at the time and saw .it done ; there was some alteration made in the bond upon that occasion, at the suggestion of Mr. Green; I think I remained a trustee of the bank until it suspended, at least nominally ; I was not there vei’y much the last year or two ; I cannot tell you, as a matter of fact, whether there Avere any salaries paid to any of the officers of the bank, excepting employees, from 1871 doAvn to the time of the failure; but I think most of the officers relinquished their salaries for quite a period before the failure of the bank ; I think the relinquishment commenced about 1871; there was some resolution passed with reference to it, I believe ; from 1871 down to the time of the dissolution of the bank it received deposits and paid depositors, and did the ordinary business of a savings bank ; there were new accounts made from time to time, and there were clerks and book-keepers employed and salaries paid to them by the bank, and other incidental expenses necessary to carry on the bank were paid ; they made their regular semi-annual reports, I believe, as required by law.”

The recollection of the defendant was quite indistinct in regard to the amount which he had received, and in relation to the relinquishment of a portion of his salary. Again it does not appear that he made any demand for the balance of the salary prior to the commencement of the action, a delay of about six years, which, while it might not have the effect to bar the claim, it certainly greatly strengthens the presumption that it was relinquished, as the plaintiff contends. Again the value of the defendant’s services was not shown; nor does the evidence establish the amount of salary which he did receive, with a precision which would have enabled the jury to have rendered a verdict in his favor, if the cause had been submitted to their consideration. As we have before remarked, the defendant was unable to state with any degree of certainty the salary which he received. The counter-claim has the appearance of an experiment, rather than the assertion of a bona fide debt against the bank. Under the circumstances wo are convinced that the defendant failed to establish a state of facts which entitled him to the allowance of such claim, or even to require a submission of the case to the jury. He should be required to seek compensation with the other creditors out of the fund in the hands of the receiver, if he can strengthen the evidence in support of his claim sufficiently to entitle him thereto. .We conclude therefore that the judgment should be affirmed,with costs.

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    HENRY W. THAULE, Respondent, v. MARGARET M. KREKELER, Appellant.

      When the General Term cannot redmce damages — Code of Civil Procedure, section 1317.
    Under section 1317 of the Code of Civil Procedure the court at General Term has no power to reduce the damages awarded by the verdict of a jury in an action for malicious prosecution, but must either reverse or affirm the judgment.
    Motion for a ro-argument.
    This action was brought to recover damages for a malicious prosecution. The plaintiff recovered a judgment for $3,500.
    Upon an appeal, the General Term, in October, 1878, directed that the “ motion for a new trial be granted on payment of costs of former trial, unless plaintiff shall, within twenty days after entry of this order, stipulate to reduce the verdict to $1,800, in which case motion for new trial denied, and judgment affirmed as so reduced, without costs to either party.”

      Peter Mitchell, for the appellant.

      D. M. Porter, for the respondent.
   Per Curiam:

Upon the hearing of this appeal on a former occasion we gave this case a careful examination, and concluded that none of the exceptions taken were available. We thought, however, upon an examination of section 1317 of the Code of Civil Procedure that the power of the court to diminish damages in an action of this nature were enlarged by this section. Subsequent examination has satisfied us that this was an error. The former order of the court was founded entirely upon the supposed power given by the section mentioned.

We are satisfied therefore that the rules established in this State by the decisions do not authorize us to reduce the damages in a case of this character. We can only reverse the judgment, but have no power to clo that unless we are satisfied that the jury acted from undue motives, or under gross error.

We have reached no such conclusion with regard to the action of the jury in this case. For these reasons the judgment should be affirmed.

Present- — -Davis, P. J., Beady and Potteb, JJ.

Judgment affirmed.


author: Davis, P. J. ;

text:
    REGINA MANSBACH, Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Appellant.

      An action lies against an insurance■ company to ham a policy canceled by it, reinstated.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to compel the defendant to reinstate an endowment policy taken out and hold by the plaintiff on the life of her husband, and to receive the stipulated premiums thereon. The defendant had canceled the policy and declared the same void, on the ground of certain alleged fraudulent representations contained in the application therefor. The court below found that no fraudulent representations were made in the application for the policy.
    The court at General Term said: “In Cohen v. New York Mutual Insurance Company (50 N. Y., 610) it was substantially held that an action of this nature could be maintained, for the purpose of restoring a policy of insurance repudiated by the defendant. So far as the meritorious rights of the parties in such a case as that are concerned, the decision has been overruled, we have no doubt correctly, by the Supreme Court of the United States, but it is still the law of the courts of this State, and is not affected by the decision of the Supreme Court of the United States, so far as relates to the right to maintain such an action.”

      William II. Arnoux, for the appellant. ■ C. Strauss, for the respondent.
   Opinion by

Davis, P. J. ;

Brady and Ingalls, JJ., concurred.

Judgment affirmed, with costs.


author: Ingalls, J. ;

text:
    AMELIA KERR, Executrix and WALTER CARTER, Executor, etc. of HENRY A. KERR, Deceased, v. EDWARD H. DOUGHERTY, Trustee, etc., and others.

      Legacy —from what time interest allowed thereon.

    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    The action was brought for the purpose of obtaining a construction upon the will of Henry A. Kerr, deceased.
    The court at General Term said : “ After a careful examination of the questions presented in this case, .we are satisfied that the decision of the Special Term is correct, and should be affirmed in every particular, except as to the period from which the interest should be allowed upon the legacies which arc declared valid. Unless there is contained in a will a very clear declaration to the contrary, interest is allowable upon general legacies only from the expiration of one year from the time letters testamentary or of administration are granted. We do not discover in the will in question any provision which indicates that the testator intended to prescribe a period from which interest should be computed, different from that which the law fixes. The will contains the following declaration : ‘ The legacies are to be paid as soon as the amount can be collected out of the funds now invested on bond and mortgage at the city of Grand Rapids, Michigan.' In JBradner v. Faulkner (12 N. Y., 472), the direction was very similar to that which is quoted above from the will in question ; and it was decided that interest was chargeable only after the expiration of one year from the granting of letters testamentary. (See, also, 2 R. S., § 43 [Edm. ed.], p. 92), which provides “no legacies shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are directed by the will to be sooner paid.” (Redfield on Wills, vol. 2, p. 564, etc.; Webster v. Hale, 8 Vesey, Jun’r [Sum. ed.J, 410 ; Cooke v. Meeker, 36 N. Y., 15.) The will in question contains no direction in regard to the payment of interest upon such legacies ; and the period when the money would be realized upon the Michigan securities was not stated in the will.”

      George DePorest Lord, for the plaintiffs. B. F. Watson, for A. E. Holahan, appellant.

      Thatcher M. Adams, for the Union Theological Seminary and Presbyterian Board of Foreign Missions, respondent.

      M. M. Budlong, for N. Y. Bible Society, appellant. Waller Edwards, Jr., for Trustees General Assembly and others,. appellant.
   Opinion by

Ingalls, J. ;

Davis, P. J., and Brady, J., concurred.

Judgment modified as directed, without costs.


author: per Curiam.

text:
    EDMUND A. SAUNDERS, ALEXANDER WALKER and THOMAS F. POLLARD, Appellants, v. JANE IRWIN, Respondent, Impleaded with others.

      Levy by sheriff— Injunction to prevent sale on the ground that otherwise the rights of firm creditors will be impeinlled — denied — Presumption that the sheriff will sell, in accordance with the legal rights of parties.

    Appeal from an order made at a Special Term vacating an order of injunction.
    The plaintiffs claim to be partnership creditors of the firm of Tooker & Irwin, composed of the defendants, Tooker and Thomas J. Irwin, alleging some $2,400 to be due them from said firm for goods sold and delivered. Of this amount only $845.71 is in judgment. Execution was issued on this judgment to the sheriff of the city and county of New York, January 17, 1879.
    The defendant Jane Irwin, on the 17th January, 1879, recovered judgment in this court for $7,496.17 against the said Tooker and Thomas J. Irwin, and the defendants Candee and Arnold, the four composing the firm of Tooker, Arnold & Co. Jane Irwin, on January seventeenth, issued execution on her judgment to the sheriff of the city and county of New York. Tooker & Irwin’s property was levied upon under the last mentioned execution, and advertised for sale by the sheriff. The plaintiffs alleging that the firm of Toolcer & Irwin was insolvent brought this action on behalf of themselves and other creditors, and prayed for an injunction restraining the sale, except subject to the payment of the firm debts and the settlement of firm accounts. Thereupon the plaintiffs on the 30th of January, 1879, obtained, an injunction staying the sale, with an order to show cause why same should not be continued to judgment, returnable February 5, 1879.
    The court at General Term said : “The question presented on this appeal is whether upon the facts stated in the complaint equity will interfere to give the relief prayed for. We think the plaintiff fails to show any case for the interference of a court of equity. The rights of the sheriff to make a levy and sale are clearly defined. If he went beyond those rights, and sold the whole interest in the property and delivered the same to the purchaser, he would himself be a trespasser. It must be presumed that the sheriff intended to sell in accordance with his legal rights, and a court of equity will not interfere on such a state of facts, simply, by injunction to compel officers to do their duty. The legal rights of the creditors of the firm could not be affected by a sale made by the sheriff.”
    The order should be affirmed, with ten dollars costs and disbursements.

      Henry De Forest Wee/ces and George H. Forster, for the appellants. Edward T. Bartlett, for the respondent, Jane Irwin.
   Opinion

per Curiam.

Present — Davis, P. J., Brady and Potter, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Smith, J.:

text:
    WILLIAM HENDERSON and others, Representatives of MATHER WILLIAMS, deceased, Respondents, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

      Unauthorized use of a street by a railroad — damages recoverable therefor — when such use will be restrained by injunction.

    This action, was brought by the owner in fee of a lot and the street in front thereof, in the city of Syracuse, seeking to recover damages from the defendant for the use of a portion of the street by it for railroad purposes, and to restrain the defendant from the further use of it; or for a judgment that, if it be permitted to continue such use, it should only be on condition of paying the damages occasioned thereby. After the commencement of the action the plaintiff died, and his executors and devisees were substituted in his place.' Before the'trial plaintiffs had sold the lot abutting on the street, reserving the right to recover the damages sustained from the defendant.
    The referee found that, by reason of the construction and use of defendant’s railroad, the plaintiff’s testator sustained damage in the impaired value of his lands and the rents and profits thereof; fixed the amount of such depreciation and added interest from a date, not exceeding six years prior to the commencement of the suit. Held, that such damages were properly recoverable in this action.
    The referee further directed that if the plaintiffs tendered to the defendant a conveyance of their interest in the land in said street, and a release of their damages, except the amount awarded, the defendant should pay a further sum, . —the value of the land used by the defendant — with interest from the date of the report, and in default of such payment the defendant should be perpetually enjoined from using the street; and if such tender was.not made an injunction was denied.

      Held, that as the plain tiffs were entitled to an injunction unconditionally they only, and not the defendant, could complain of the limitation imposed upon this light by the referee.
    Appeal from a judgment entered on the report of a referee. The action was brought in 1853, by Mather Williams, the plaintiffs’ decedent, praying for an injunction restraining the defendant from using certain portions of Washington street, in the city of Syracuse, described in the complaint, for the purposes of a railroad, and to recover damages for the past use; or for a judgment that if they be permitted to continue such-use, it shall bo only on condition of their paying the damages sustained.
    Williams and others, being the owners of the lands through which Washington street runs, laid out and dedicated said street to the use of the public. The defendant laid its tracks in said street, and used the same, with the consent of the public authorities having charge of the street, but without obtaining the consent of Williams or making compensation to him.
    The action has been tried three times. The first trial was by the court, without a jury, and resulted in a judgment for the defendants, which was reversed by the Court of Appeals, and a new trial was ordered (16 N. Y., 97). In 1868, the cause was tried a second time by Hon. Henry A. Foster, as a referee, who ordered judgment for the plaintiff for $19,605.83. He denied the prayer for an injunction, but ordered that upon payment of said sum, the fee of the portions of the street belonging to the plaintiff-vest in the defendant for the use of their railroad. That judgment was reversed by the General Term in the fifth district. About that time Williams, the plaintiff, died, and his executors and residuary legatees and devisees were made plaintiffs, by order of the court. In 1876, the cause was tried by another referee, who ordered judgment in favor of the plaintiffs for $19,508.79 damages, besides costs, and further ordered that if the plaintiffs should tender to the defendant a conveyance of their interest in the land in question, in said street, and a release of their damages, except said sum of $19,508.79, the defendant should pay to the plaintiffs the further sum of $4,339.43 and interest from the date of the report; and in default of such payment, the defendant should be perpetually enjoined from using such portions of said street; and if the plaintiffs shouldfailto make such tender, the injunction was denied. Upon the last trial, the referee found that the construction and use of the railroad greatly impaired the value of the lands of the plaintiffs, fronting upon Washington street, and extending to its center, and also the value of the rents and profits thereof. He also found that, previous to such trial, all of said lands fronting said street, had been sold by said Mather or the plaintiffs. All claims for damages caused by the construction and use of said railroad were, however, reserved and excepted irom the conveyances thereof. From the judgment entered upon the last report the defendant has taken this appeal.

      Jas. R. Cox, for the appellant.
    The plaintiffs are not entitled to recover a single dollar of all the supposed damages proved, and exhibited in the judgment, because we were in possession, and have continued to be. {Carpenter v. OswegoR. R., 24 N. Y., 656; Wohler v. Buff, and St. L. Co., 46 id., 686 [MS. opinion].) And until plaintiffs recover the possession in ejectment, they can only recover the damages (probably nominal) resulting from the original ouster and possession taken by defendants. (3lonck-ton v. Fashley, 2 Lord Raym., 975; so in Croke, Elizabeth, 540; and in Roll. Abridgment, 553; 3 Blackstone’s Commentaries, chapter 12, page 210; Case v. Shepherd, 2 Johns. Cases, 27; Holmes v. Seeley, 19 Wc-nd., 507; Leland v. Toucey, 6 Hill, 328; Holmes v. Davis, 19 N. Y., 488; Frosty. Duncan, 19 Barb., 560; Wohler .v. B. and St. L. R. R., 46 New York, 686; Sedgwick on Damages, 64, and cases cited, page 66.) Because these damages are not the “ natural and proximate consequences ” of the act of entry and ouster complained of.' (Carson v. Central R. R. Company, 35 Cal., 325; Looker v. Damon, 17 Pick’g, 284; 1 Chitty PI. [6 ed.], 441; 2 Greenleaf Ev., sec. 256; Dickinson v. Boyle, 17 Pick’g, 978; Brovmy. Cummings, 7 Allen, 507; 1 Waterman Tresp., 103.) Here was a trespass committed on ’Washington street by defendants “under an honest mistake, without intent to injure. The damages should be confined strictly to compensation for the injury sustained by the trespass.” (1 Waterman Tresp., 102; Allison v. Chandler, 11 Mich., 542;
      Dibble v. Morris, 26 Conn., 416; Beecher v. Derby, 24 id., 491; The Proprietors, etc., v. Nashua Railway, 10 Cushing, 385, 390, 391; see, also, Sedgw. Dam’s, sec. 82, sub. 12, etc.)

      D. Pratt, for the respondents.
    The right of plaintiffs to recover for the unauthorized occupation of Washington street, in said city, was adjudged conclusively by the Court of Appeals in this case. (Williams v. N. Y. O. R. R. Go., 16 N. Y., 97; Craig v. TIle Rochester City and Brighton R. R. Go., 39 id., 404; Rochester Gas Light Go. v. Oallcins, 62 id., 386; Carpenter v. Oswego and Syracuse R R. Go., 24 id., 685; Mahon v. N Y. Central R. R. Go., id., 658; Milhau v. Sharp, 27 id., 611.) There has been, since the decision of this case, some conflict in the decisions where the fee of the street has been in the public, but none where the fee remained in the adjacent owner, either in this country or in England. In England compensation is to be made for lands appropriated or injuriously affected. In Eagle v. The Gliaring Gross Railroad Company, the plaintiff was allowed ¿6650 for diminishing his light. (2 Law R. [Com. P.], 638.) The defendant was a trespasser. He was therefore liable for all the damages which naturally or necessarily resulted from such trespass. (3 Duer, 406; 6 id., 315; 24 Barbour, 273.) The rule in such cases is this: What was the fair marketable value of the whole land and what is the fair marketable value of that not taken, and the difference is the proper compensation to be awarded. (Matter of Rensselaer and Saratoga R. R., 4 Paige, 553; Eoglev. Auburn andRoch. R. R. Go., 2 Barbour’s Chancery, 489; Wand v. Same, 4 - Scldon, 160; Troy and Boston R. R. v. Lee; 13 Barb., 169; Road v. New York and Erie R. R., 18 id., 80; Eurniss v. Hudson River R. R. Go., 5 Sand., 551; Orawford v. The Village of Delaware, 7 Ohio St., 459; Oumminsville et al. v. The Cincinnati Railway Go., 14 id., 524; Hayñes v. Thomas, 7 Ind., 88; Tate v. Ohio and Miss. R. R. Go., id., 479; Bosmanv. The I. and O. R. R. Go., 9 id., 467; Dockland v. North Mo. R. R. Go., 31 Mo., 180; Roioan’s Ex'r v. Town of Portland, 8 B. Monroe, 282; Brand v. Hammersmith, 2 Queen’s Bench [L. R.], 225; see, also, Ohamberlcdn v. West End R. R. Go., 2 Best & Smith, 605; 5 id., 164; Beckett v. The

      Midland Railway Co., 3 C. B. [Law R.], 83; Drake y. The Hudson R. R. R. Co., 7 Barb., 508; Fletcher v. The Auburn and S. R. R. Go., 25 Wend., 462.; Mahon v. The U. and 8- R. R. Go., Lalor, 150; S. C., 24 N. Y., 658.)
   Smith, J.:

The Court of Appeals held in this case, that the defendants were trespassers in laying their tracks over the plaintiffs’ land in the street in question, without his consent, or the appraisal and payment of his damages. They held, also, in accordance with well established rules, that the plaintiffs arc consequently entitled to an injunction restraining the defendants from continuing the trespass, upon the ground of preventing irreparable mischiefs and a multiplicity of suits ; and that the court having jurisdiction of the subject-matter, for the purpose of giving equitable relief, may also, in this action, award'damages to the plaintiffs for the ¡last injury.

The proper measure of damages in the case was not considered by the Court of Appeals. It presents a novel question, and one of considerable difficulty. The referee having found that by the construction and use of the railroad, Williams sustained damage, not only by the use of that part of his land upon which the railroad was laid, but also in the impaired value of his lands fronting on the street, allowed damages of the latter description, and the defendants’ counsel claims that the allowance was erroneous. He insists that the case is to be governed by the rule prevailing in actions at law for trespass quare clausum fregit; to wit, that the plaintiffs, if disseized, can recover only for the entry and ouster, and not for the continuance of the trespass, unless he has regained possession by re-entry. Ho also insists that the damages should be confined to the strip of land actually taken by the defendants, and should not include consequential damages to the adjoining lands.

It may be assumed that the acts of the defendants amounted to a disseisin. The Court of Appeals held, in the case of Carpenter v. Oswego and Syracuse R. R. Co. (24 N. Y., 655), that the owner of land covered by a highway upon which a railroad company had laid its track, without his consent, and without making compensation, may maintain ejectment to recover possession. And in the later case of Wohler v. The Buffalo and State Line R. R. Co., not reported, which was an action of trespass, the same court held, as appears by the manuscript opinion of Grover, J., handed up by the appellants’ counsel, that the wrongful laying down and use of a railroad track by running trains upon it was a disseisin, and that the owner of the land could only recover for the entry and ouster until he had regained possession.

But we are of the opinion that the rules invoked by the appellants’ counsel are not applicable to the present case. The judgment now appealed from having determined that the plaintiffs are entitled to a perpetual injunction restraining the defendants from making further use of the locus in quo, the position of the respondents is analogous to that of a plaintiff who has recovered judgment in an action of ejectment entitling him to the possession. The circumstance that the allowance of the injunction is dependent upon a condition to be performed by the plaintiffs does not affect the question, as their ability to perform the condition is obvious, and their willingness to do so is evinced by the fact found by the referee, that on the tidal they tendered a stipulation to do the acts which the condition requires. The case is to be regarded as if the condition had been performed, and the injunction had issued.

We are therefore brought to inquire what damages the plaintiffs are entitled to recover, upon the assumption that they have regained possession. As the defendant’s tracks, and the use made of them, were a continuous trespass upon the plaintiffs’ lands, amounting to a nuisance, the plaintiffs are entitled to recover for the injuries directly resulting therefrom. Is the counsel for the appellants correct in his position that the damages are limited to the strip of land actually occupied by the tracks of the railroad, and do not include damages to the adjoining lands ? When the railroad was constructed, the plaintiffs’ lots extended to the centre of the street. The road was built upon a portion of each lot. Had the defendants instituted a statutory proceeding to acquire the title to the land needed for their tracks, on making-compensation, while the plaintiffs, or their testator owned the entire lots, the land in the street would have been regarded as still forming a parcel of the original lots, subject to the easement, and the depreciation in the value of the portions of the lots adjoining the street, as well as the value of the portion proposed to be taken for the actual use of the railroad, would have been a proper element of damage in such proceeding. (The Troy and Boston R. R. Co. v. Lee, 13 Barb., 169; Rood v. The N. Y. and Erie R. R. Co., 18 id., 80; Furniss v. Hudson River R. R. Co., 5 Sandf., 551; Matter of Prospect Park and C. I. R. R. Co., 13 Hun, 345; 16 id., 261.) Such depreciation was the direct result of the construction and use of the railroad. The case of Proprietors of Lodes and Canals and ano. v. The Nashua and Lowell R. R. Corporation (10 Cush., 385), cited by the appellants counsel is not in point. There, the owner of land not abutting on the defendants’ railroad, and situated at some distance from it, claimed damages for depreciation in its value caused by laying the railroad across a street leading thereto, and also by reason of waste water being set back upon the land, in consequence of the railroad being constructed across a street gutter without a culvert. It was held that the damages claimed were consequential and remote, and could not be recovered. Ch. J. Shaw, who delivered the opinion of the court, distinguished the case from those where the damage to real estate is direct, by passing over it, or part of it, or, to quote his language, “ which affects the estate directly, though it does not pass over it, as by a deep cut or high embankment, so near lands or buildings as to prevent or diminish the use of them ; ” and he expressed the opinion that the particular circumstances stated by him would present proper subjects for the assessment of damages. The statute of Massachusetts, under which the proceeding was had, gave a remedy only for damages necessarily caused to the land by the railroad (p. 388). The referee in this case has found upon testimony which fully warrants the finding, that by reason of the construction and use of the defendants railroad, the plaintiffs’ testator sustained damages in the impaired value of his lands and of the rents and profits thereof. In ascertaining the amount of such damage, he fixed the amount of the depreciation in value of each lot, and to that he added interest, computed from a date not exceeding six years prior to the commencement of the suit. There appears to have been no allowance for the depreciated value of the use or of the rents and profits, other than the allowance of interest. In theory of law and in fact, the damage, consisting of the depreciation in value of the land, was sustained when the defendants built and commenced using their railroad.

The subsequent sale of the land by the plaintiffs did not divest them of their right to recover damages, that right having been reserved to them by express agreement with their grantees or operation of law; but it had the effect to deprive them of all remedy for the recovery of such damages, unless they are recoverable in this action. It has been said already that the damages in question would have been a proper subject of award in a proceeding instituted by the defendants to acquire the right of way, while the plaintiffs were the owners of their original lots. But if the defendants should hereafter institute a proceeding for that purpose, they could not be required to make compensation for the depreciated value of the lots fronting on the street, for the reason that the plaintiffs no longer own them and the present owners have no interest in the lands which the defendants would seek to condemn, so that if the item of damage under consideration cannot be recovered by the plaintiffs in this action, not only are they without remedy, but the wrong-doer is exempted from its payment. The plaintiffs and their testator in selling violated no duty. They were under no obligation to the defendants not to sell. They had a right to sell whenever they chose.

On the whole, we think the item of damages in question was properly allowed. That the plaintiffs are also entitled to interest upon it, as allowed by the referee, seems clear. It is but a fair compensation for the depreciated rents and profits before the sale and for the use of the principal sum represented by the depreciated value of the land to which the plaintiffs have been entitled since the sales. The plaintiffs are not chargeable with unreasonable delay. The defendants are in fault, having wrongfully taken and withheld possession of the land of the plaintiffs’ testator nearly forty years, without instituting proceedings to acquire the right to do so on making compensation.

These conclusions do not conflict with the decision of the Supreme Court in the fifth district, on the appeal from the judgment rendered upon the second trial. In two particulars, the case as then found by the referee differed from the case now presented. The prayer for an injunction was denied, and a portion of the plaintiffs’ lands fronting the street had not then been sold. Mr. Justice Mullin, who wrote the prevailing opinion, thought the case was a proper one for an injunction ; but as no appeal was taken from the part of the decision which denied the injunction, he did not discuss it, and the case was necessarily treated as one in which the plaintiff was not entitled to an injunction.

The judgment requires certain other damages to be paid by the defendants on their being tendered a deed and release. That portion of the damages consists exclusively of the value of the strip of land appropriated by the defendants for their tracks, as found by the referee. The defendants’ counsel objects to that part of the judgment that it makes a bargain for the parties, and that it compels the defendants to buy at a price fixed by the referee under a throat of an injunction if they refuse. That view of the matter is hardly warranted. The plaintiffs are entitled to an injunction, unconditionally, and they alone can complain of that feature of the judgment. The terms prescribed are for the benefit of the defendants, and afford them an opportunity to purchase the fee of the land without the expense and delay of a special proceeding for that purpose, and the stoppage of their trains by injunction in the meantime. If they do not choose to avail themselves of it, the case will be the same as if the injunction had been ordered without any condition.

The counsel for the defendants argue that this provision of the judgment was held erroneous by the Supreme Court on the second appeal. The decision, then under -review, was very different from the present judgment in that respect. It ordered payment, unconditionally, of the whole amount of damages awarded, and provided that upon such payment the fee of the soil covered by the track should vest in the defendants for the purposes of their railroad, subject to the public easement. It was not optional with the defendants to pay, or with the plaintiffs to convoy. Judge Mullin held that the decision was erroneous, in that it compelled the plaintiffs to convey, without their consent, on receiving the damages which the law awards for the trespasses of which they complained ; and also, that as the decision necessarily implied that the damages included the value of the property taken, a measure of damages was adopted not applicable to an action for trespass on lands. The present judgment is not liable to either of those objections.

It follows from the views above expressed that the judgment should be affirmed. The plaintiffs are entitled to costs.

Taloott, P. J., and Hardin, J., concurred.

Judgment affirmed, with costs.


text:
    HARVEY S. BEDELL, as Assignee of JAMES L. HUMPHREY, Bankrupt, Respondent, v. WILLIAM H. BARNES, Appellant.

      Sale by school collector' — invalid, if notice be not posted — measure of damages.

    The defendant, a school collector, levied upon and sold certain property belonging- to plaintiff’s assignor, for an unpaid tax, without having posted the notice as required by statute. Subsequently, the purchaser, upon being threatened by plaintiff with an action, sold the property to him for the amount of his bid.
    In this action by the plaintiff, held, that the failure to post the notice rendered • the sale void and the defendant liable as a trespasser.
    That the plaintiff could only recover the amount paid by him to regain the property.
    . Appeal from a judgment of the Oneida County Court, entered upon a verdict in favor of the plaintiff, and also from an order of that court denying the defendant’s- motion for a new trial made on the judge’s minutes.
    The action was one of trespass for taking and carrying away certain personal property of the plaintiff, as assignee in. bankruptcy of one Humphrey. The defendant was a school collector, and assumed to levy upon and sell the property to satisfy a school tax against Humphrey. It appeared that the defendant omitted to post a notice on the outside of the front door of the schoolhouse, as was required by statute.

      The property was bid off by one Forgham, and there was evidence tending to show that shortly after the sale Forgham, at the request of the plaintiff, released all the property to him, and restored it to his possession on payment of the sum of $24.60, being the amount which the property had cost Forgham.
    The action was originally commenced in a justices’ court. The plaintiff recovered $200 before the j ustice, and the like sum in the County Court.

      S. Cromwell, for the appellant.
    The court erred in its application of the rule as to the measure of damages. The evidence shows, and the plaintiff admits, that-he repossessed himself of all of the property, and that fact should have gone in mitigation of damages. (Vosburgh v.Welch, 11 John., 175; 2 Hill, 204, and note; Dailey v. Cronley, 5 Lans., 301; Baker v. Freeman, 9 Wend., 36; Lyon v. Yates, 52 Barb., 237.)

      D. M. K. Johnson, for the respondent.
    The defendant wrongfully took the property of the plaintiff of the value of over $200, and refused to deliver it; sold it; converted it to his use. If the plaintiff is entitled to recover, the value of the property is the measure of damages. (Cortilyou v. Lansing, 2 Cai. Cas., 200; Kennedy v. Strong, 14 Johns., 128; Smith v. Griffith, 3 Hill, 333; Com. Bk. of B. v. Kortright, 22 Wend., 348; Androws v. Durant, 18 N. Y., 496; Scott v. Rogers, 31 id., 676.)
   Smith, J.:

The statute requires the collector of a school district, on receiving a warrant for the collection of taxes, to give notice to the tax payers of the district by publicly posting notices of the purport specified in the act, in at least three public places in the district ; one of which shall be on the outside of the front door of the school - house. (Laws of 1871, chap. 359, § 2.) This cannot bo regarded as directory merely. The notice is for the benefit of the tax payers. In that respect it is analagous to the provision of law giving two weeks for the voluntary payment of the tax. (Laws of 1849, ch. 382, p. 535, § 5.) It has beenheld that if a collector levies within that time he is a trespasser. (Parker v. Brown, 17 Barb., 145.) So a town collector has no right to levy without a previous demand. (1 R. S., 397, § 1; Thompson v. Gardner, 10 Johns., 404.) The defendant was, therefore, liable for the injury which the plaintiff sustained by reason of the seizure and sale of his property, but as the purchaser had, at his request, released the property, and restored it to the plaintiff’s possession, on being paid what it cost him, that fact should have mitigated the damages. The plaintiff seeks to distinguish the case from those in which the property is bid off by the agent of the plaintiff, or one acting in privity or concert with him. Here it is said the plaintiff repurchased the property, and that is no reason why he should not recover its value of the trespasser. But the evidence tends to show that he threatened the purchaser with suit, as a wrong-doer, and that the latter thereupon proposed to relinquish his bid, on being reimbursed, and the plaintiff accepted the property on those terms.

We think that under those circumstances he cannot recover the value from the officer making the sale. If there was any question as to the nature of the transaction by which the plaintiff regained possession, it should have been left to the jury.

The judgment and order should be reversed, and a new trial ordered in the Oneida County Court; costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

Judgment and order reversed, and new trial ordered in Oneida county : costs to abide event.


author: Smith, J. :

text:
    JOHN GARWOOD, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Division of water — when restrained by injunction •— Ghap. 237 of 18G9 — what right to water acquirable wider.

    The plaintiff, the owner of a mill operated by the waters of the Tonawanda creek, brought this action to restrain the defendant from diverting the water of said creek'by pipes and conducting it to tanks and reservoirs to be used in supplying its engines, and to recover damages for such diversion. It appeared that the acts of the defendant materially reduced and diminished the grinding power of the plaintiff’s mill, and had damaged him to the extent of $500.

      Held, that the plaintiff was entitled to a judgment for a perpetual injunction restraining such diversion, and for the amount of the damages sustained.

      Held, further, that the question whether or not such use by the defendant was a reasonable one was immaterial.

      /Semble, that, under chapter 237 of 1869, a company is only entitled to take such surplus water of a stream, as may be taken without injuring or interfering with any domestic, agricultural or manufactux-ing purpose to which the water of the stream is then commonly applied.
    Appeal from an order made at the Special Term in Genesee county, denying plaintiff’s demand for equitable relief and for a judgment for damages, and ordering that the action be retained as an action at law, for trial by a jury upon a single question specified in the order.
    The action was brought by the plaintiff, who is the -owner of a grist mill which is operated by the water of Tonawanda creek, in the town of Batavia, to restrain the defendant from diverting the water of said stream above the plaintiff’s mill to certain tallies and reservoirs, constructed by the defendant for the purpose of supplying its locomotive engines with water, and also to recover damages for such diversion.
    The cause being at issue, the court, at Special Term, ordered certain issues framed; to be tried by a jury, and they were after-wards tried and a verdict rendered thereon. The issues and the verdict were as follows :

      First. Has the diversion of the water of the Tonawanda creek, in the village of Batavia, above the plaintiff’s mill, by the New York Central Railroad Company and by the defendant, been of sufficient amount to perceptibly reduce the volume of water flowing in said creek, and so much as to materially reduce or diminish the grinding power of the plaintiff’s mill ? If yes, for what length of time was such reduction or diminution continued ?
    The jury answered yes to that question, and fixed the length of time at 474 days.
    The second question was answered in the negative and is now unimportant.

      Third. What damage has the plaintiff sustained by the diversion of the water of said creek from said mill by the New York Central Railroad and the defendant ? In answer to that question the jury fixed the damages at $500.
    The plaintiff moved the cause for a final hearing at Special Term, on the verdict and the proofs taken on the trial of the issues, which the parties stipulated might be used for that purpose. Certain undisputed questions of fact of a formal character were admitted.
    It appeared in evidence that the water was carried from the stream to the tanks by means of iron pipes, which the railroad company had laid in the ground for that -purpose.
    The cause having been heard, the court made an order directing that the demand of the plaintiff for equitable relief, by way of granting a perpetual injunction and compelling the defendant to take up its pipes and cease to use any of the water of the stream for supplying its engines and operating its road, bo denied, and adjudging that the plaintiff, failing in the chief purpose of the suit, is not entitled to a judgment for the damages assessed by the jury; and further ordering, that as the question of reasonable use has not been passed upon, this action be retained as an action at law, and that the plaintiff have the right to bring the action to trial before a jury upon the single issue, whether the use of the water by the defendant was reasonable.
    From that order the plaintiff appealed.

      M. Taggart, for the appellant.
    The plaintiff has, by virtue of the conveyance to him, a legal right to the flow of the water in its natural channel or course. His right consists in the current of the stream. (2d Bouvier’s Institutes, 170; §§ 1610, 1611, 1612, 1613; Gale & Whateley ou Easements, ch. 5, § 129; Bhorey v. Piggott, 3 Buis., 339; Merritt v. Parker, 1 Coxe [N. J.j, 450; Twiss v. Baldwin, 9 Conn., 291; Galmont v. Whitaker, 3 Eawle [Pa.], 84, 88; Pugh v. Wheeler, 2 Dev. & Bat. [N. C. R.], 50.) The riparian owner has no right to use the water for irrigating his land, if thereby he deprives the proprietor below of the reasonable use of the water in its natural channel. {Arnold v. Foot, 12 Wend., 330; Angel on Water Courses, 125; Ingraham y. Hutchinson, 2 Com. Rep., 584; Colburn v. Richards, 13 Mass., 420.) The court below erred in deciding that the demand of the plaintiff for equitable relief, by way of granting a perpetual injunction and compelling the defendant to take up its pipes and cease to use any of the water of the stream for supplying its engines, and in operating its road, be denied. {Walter y. Belfe, 4 Eng. L. & Eq. Rep., 15; Campbell v. Beaman, 63 New York, 568.) The court below erred in deciding that the plaintiff was not entitled to the damages assessed by the jury. (Code of Procedure, § 167; Corning v. The Troy Iron and Nail Factory, 40 New York Reports, 191.) The plaintiff has a legal title to the use of the water and current of the stream, and could not be deprived of such right or title, without his consent, or by due course of law, and upon payment to him of a just compensation. (2 R. S., part 4, title 7, chap. 1, \ 34; 2 Bouv. Law Die., 646; Code of Proc., § 642; 1 Bouv. Law Die., 636; § 6 of art. 1 of the Const, of 1846; § 7 of art, 1 of Const, of 1846; Bloodgood v. Mohojwk and Hudson R. R. R. Co., 18 Wend., 9; II. R. R. R. Co. y. Outwaters, 3 Sandf. Rep., 689; Gardner v. Trustees of Newburgh, 2 J. C. R., 162; chap. 237 of Laws of 1869; Wynehamer v. People, 13 N. Y., 378; Mcrrgan v. King, 35 id., 454; Rochester Water Works v. Wood, 60 Barb. R., 107; Clinton v. Myers, 46 N. Y. R., 511; Corning v. The Troy Iron and Nail Factory, 40 id., 191; Olmsted v. Loomis, 9 id., 428; Code of Proc., § 167; Webb v. The Portland Man. Co., 3 Sumner, 100; Tyler v. Wilkison, 4 Mason, 400; Townsend v. McDonald, 12 N. Y. R., 381; 2 Story Eq., § 101, 926, 927; Angel on Water Courses, § 449, 450; Cott v. The Leioiston R. R. Co., 36 N. Y., 214; The Penn. Coal Co. v. Del. and Hud. Canal Co., 31 id., 91; Brown v. Bowen, 30 id., 519; Olmsted v. Loomis, 9 id., 423; Pollitt et al. v. Long, 58 Barb., 20; 2 Bouv. Inst., 174, § 1610, and note b, 1612, note b, 1613, note b, etc.) The defendant being a corporation existing by statute has no natural right to the use of the water. It is in no sense a riparian owner. (Riley v. The City of Rochester, 9 N. Y., 64; Hens, and Bar. R. R. Co. t. Davis, 43 N. Y., 137.)

      A. P. Laning, for the respondent.
    By the common law of nature, the use of water flowing in its natural channel, like the use of heat and light, is common to all, and is not the subject of exclusive property in any. No one has absolute property in it until it ceases to. be aqua profluens. (Justin, b. 2, tit. 1, § 1; Grot., b. c. 2, § 12; Puff, b. 4, c., § 52; Yattel, b. 1, c. 20, p. 101-110; Brown’s Civil Law, b. 2, c. 1, p. 170; Yinius, 140, 141, 142; Com’rs v. Kempshall, 26 Wend., 422; Angel on Water Courses, §§ 121, 122; Perlcins v. Don, 1 Root Ch., 535; Mason v. Hill, o B. & Aid., 306; 27 Eng. Com. Law, 11; 5 id., 1, and cases cited.) In the enjoyment of this natural right, the owner of the land over or through which a natural stream flows may abstract from the volume thereof, to drink, to water his cattle, for domestic purposes, for agricrdtural purposes, for mechanical or manufacturing purposes, and, in short, any general or useful purpose which ministers to his personal necessities, or his business interests, although, by so doing, the quantity is greatly diminished. (Weston v. Allen, 8 Mass., 136; Laphams. Anthony, 5 Pick., 175; Newhall v. Ireson, 8 Cush., 595-599; Blanchards. Baker, 8 Greenl., 253; Arnold s. Foot, 12 Wend., 331; Embrey v. Owen, 6 Exch., 368, note; Wadsworth v. Tillottson, 15 Conn., 366; Mayors. Com’rs, etc., 7Barr. [Pa.], 348; Westons. Alden, 8 Mass., 136; Pitts s. Lancaster Mills, 13 Mote., 156.) Such being the nature of the right, it follows that it is to be used in a reasonable manner, having reference to the rights of others, and it is only for an unreasonable use that an action is maintainable. (TYards. Ward, 3 Exch., 778; Weston s. Alden, 8 Mass., 136; Colburn v. Richards, 13 id., 420; Cook s. Hull, 3 Pick., 269; Anthony s. Lapham, 5 id., 175; Evans s. Monethon, 3 Scan., 492;
      The Mayor, etc., v. Commissioners, etc., 7 Bar., 348 ; Howells v. MeCuy, 3 Rawle, 256; Snoio v. Parson, 28 Vt., 459; Platt v. Johnson, 15 Johns., 217; Dickinsonv. Grand Junction Canal Co., 9 Eng. Exch., 521; Elliott v. Fitchburgh It. It. Co., 10 Cush., ■193.) As between proprietors on the same stream, the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suffers damages by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether, under all the circumstances of the case, the use of the water by one is reasonable and consistent with a corresponding enjoyment of right by the other. (Cary v. Daniels, 8 Metcalf, 477; Merritt v. Brinlcerhoff, 17 Johns., 321 ; Chandler v. Howland, 7 Gray, 350; Embrey v. Owner, 6 Exch., 353 ; Hitrich v. Deacher, 6 Pennsylvania, 32; Ilartzall v. Sill, 12 id., 248; Pitts v. Lancaster Mills, 13 Metcalf, 156; Bliss v. Kennedy, 42 Illinois Reports, 68; Dumont v. Kellogg, 29 Mich., 420; Atchison et al. v. Peterson et '' al, IT. S. Sup. Ct., reported in Alb. Law Jour., vol. 11, p. 238.) To hold that there can be no diminution, and no obstruction or impediment whatsoever, by a riparian proprietor in the use of the water as it flows, would be to deny any valuable use of it. (Tyler v. Wilkinson, 4 Mason, 401; Palmer v. Mulligan, 3 Caines, 30, Dilling v. Murray, 6 Indiana Rep., 324 ; Snow v. Parsons, 28 Vermont, 459, Hays v. Waldron, 44 New II., 580; Davis v. Getchel, 50 Me., 602; Clinton v. Myers, 40 N. Y., 514.)
   Smith, J. :

It is apparent, from the terms of the order appealed from, that, in making it, the Special Term acted upon the assumption that, although the diversion of the water by the railroad company had perceptibly and materially reduced the volume of the stream and lessened the plaintiff’s water power to his damage of $500, as found by the jury, yet ho was not entitled to relief by injunction to restrain its continuance, nor to recover his damages, for the reason that it had not been found that the defendant’s use of. the water was unreasonable. In this, we-think the learned court fell into an error.

Wo understand it to be a principle of the common law that, although every riparian proprietor has a right reasonably to use the water in the stream, and even to take it in small and reasonable quantities from the stream for domestic and other uses, yet he has no right to divert any part of the water of the stream into a course different from that in which it has been accustomed to flow, for any purpose, to the perceptible and material injury of any other riparian proprietor, without a grant, prescription or license. The doctrine of reasonable use has no application to a case of the latter description. A mere detention of the water, or a pollution of it, by one riparian proprietor to the detriment of another below him on the same stream, may be reasonable or unreasonable, according to circumstances, and if reasonable, no action will lie. This results from the general principle that each proprietor has an equal right to the use of the water as it passes along. But no proprietor can divert or diminish the quantity of water which would otherwise descend to the proprietors below, to their perceptible and material injury, wdthout their consent. Thus, it has frequently been held that a mill owner has no right to divert the water, for the use of his mill, to the material injury of a mill owner below him. (Brown v. Beet, 1 Wils., 175; Bealey v. Shaw, 6 East, 208; Sackrider v. Beers, 10 Johns., 241; Crooker v. Bragg, 10 Wend., 260; Corning v. Troy Iron and Nail Factory, 39 Barb., 311; S. C. affir’d, 40 N. Y., 191.) Nor for the pui’posc of repairing his mill. (Van Hoesen v. Coventry, 10 Barb., 518.) Nor can it be so diverted for purposes of irrigation. (Arnold v. Foot, 12 Wend., 330; Colburn v. Richards, 13 Mass., 420; Cook v. Hull, 3 Pick., 269; Anthony v. Lapham, 5 id., 175.)

In Gardner v. The Trustees of the Village of Newburgh (2 Johns. Ch., 162) an act of the Legislature having authorized the trustees of said village to supply it with water, by means of conduits, and, for that purpose to enter on the lands of other persons to make reservoirs and lay conduits, etc., and provided compensation for the owners of such land, and also for the owner of the land on which the spring, from which the water was to be conducted, was situated, but made no provision for indemnifying the owners of lands through which the stream flowed, and, from such spring had run, from time immemorial, for the injury they must suffer by diverting the course of the streams from their farms, Chancellor Kent granted an injunction to prevent any proceeding to divert the stream until provision was made for a just compensation to the persons who might be injured by diverting the water. In Tyler v. Wilkinson (4 Mason, 397), Story, J., after a thorough examination of the authorities, laid down the proposition that the true test of the principle and extent of the “ reasonable use ” of the water as it flows, to which each riparian proprietor is entitled is, whether it is to the injury of the other proprietors or not. The proposition was cited approvingly by Grover, J., in Clinton v. Myers (46 N. Y., 511, 516). It is apparent from the context that the learned judge had reference to a material injury.

In Angelí on Watercourses, where numerous authorities upon the subject are cited and commented on, the author remarks: “It is submitted, whether it may not be fairly deduced from the preceding authorities, that for any essential diminution of the water of a watercourse, which nature has directed to run in a certain and determinate channel, for any purpose, the law in this country will interpose.” (Section 129 ; see, also, §§ 97-108, and cases cited in notes.)

The cases cited in the opinion of the learned judge in this case at Special Term do not appear to us to militate against the views above expressed. In Pitt v. Lancaster (13 Metc., 156) the only question for adjudication was whether the detention of the water was unreasonable. The point decided in Embrey v. Owen (6 Exch., 353; 20 Eng. Law Jour. [N. S.], 212; 4 Eng. L. & Eq., 466) was, that a diverting of the water by a riparian proprietor, for purposes of irrigation, did not give a right of action to the owner of a mill lower down on the stream, it appearing that the irrigation did not take place continuously, but only at intermittent poriods, when the river was full, and that no damage was done thereby to the working of the mill, and that the diminution of the water was not perceptible to the eye. In Elliot v. The Fitchburg Railway Company (10 Cush., 191) the only point decided was, that one riparian proprietor cannot maintain an action against an upper proprietor for a diversion of part of the water of a natural watercourse flowing through their lands, unless such diversion causes the plaintiff actual perceptible damage.

Iii some of the cases cited by the defendant’s counsel, and in many others that might be cited, it is said that each riparian proprietor may make reasonable use of the water for purposes of irrigation, and (in the case cited from 10 Cushing) for the purpose of supplying railroad engines with water ; but it is nowhere said that the use of the water, for either of those purposes, to such an extent as to work perceptible and material injury to a lower proprietor, is a reasonable use, or that it does not give a cause of action to the injured party. In view of the facts found by the jury in this case, there is and can be no question as to whether the use of the water which the railroad company has made, and proposes to make, is reasonable. It is a clear invasion of right, resulting in perceptible, essential damage to the plaintiff.

The railroad company having acquired a strip of land, six rods wide, adjoining the Tonawanda creek on each side, for the purposes of its incorporation, is probably vested with the rights of a riparian proprietor, so far as may be necessary to accomplish the objects for which it was created. But in the exercise of such rights it is subject to the same liabilities as other riparian proprietors. As was said by Nelson, J., in Crooker v. Bragg (supra), “ we cannot take from one party a right, for the sake of the convenience of another ; ” or, as was said in Wheatley v. Chrisman (24 Pa. St., 298), “the necessity of one man’s business is not to be made the standard of another man’s rights.” The right to have the waters of a stream flow in their natural bed is as absolute and fixed as the right to the soil itself, and is incapable of being divested by any wrong-doer. If the defendant needs to draw water from the creek for the use of its road, in such quantity and so frequently as to essentially and appreciably lessen the flow of water to the plaintiff’s mill, it must obtain his consent, or acquire the right to do so, under the statute, on making compensation, provided the statute extends to the case. Chapter 237 of the Laws of 1869, amending the general railroad act of 1850, recognizes the right “ to take and convey water from any spring, pond, creek, or river, to such railroad, for the uses and purposes thereof,” as one of the rights which a railroad company, needing the same, may acquire by purchase from the owner ; or, if unable to agree with the owner, by proceeding under the statute, subject to a limitation in the act, which will be referred to presently. That act is a legislative recognition of the right of property in the water of running streams, of which the owner cannot be deprived, without his consent, or just compensation.

But if it be assumed that the views above expressed are erroneous, and that the plaintiff is not entitled to maintain an action, except upon showing that the defendant’s use of the water is unreasonable, we do not understand upon what principio his prayer for equitable relief should be denied, while his action is allowed to proceed with a view to a legal remedy. If it should be found by the jury that the defendant’s use was unreasonable, why would not the plaintiff be entitled to equitable relief ? It seems to us that if, in truth, the plaintiff’s case for equitable relief was defective, simply because the question of reasonable use had not been passed upon by the jury, the proper course would have been for the court to decide that question upon the evidence j or if- the judge preferred to take the verdict of a jury upon it, then to frame an issue' accordingly, and send it to the circuit for trial and reserve the hearing. That course would seem due to the plaintiff, especially as the issue of reasonable use was tendered by the defendants in their answer, and they did not ask to have it included in the issues which were framed to bo tried by a jury. But, as has been said, the defence tendered by the answer, that the defendants had only made a reasonable use of the water, was wholly irrelevant, as the use they made of the water was an invasion of the plaintiff’s absolute right. That courts of equity will interpose, by injunction, to restrain the wrongful diversion of the water of running streams, as in other cases of private nuisance, is too well-settled to require the citation of authorities. It is suggested in the opinion delivered at Special Term that the defendants have a right to use the stream, as they have done, in certain seasons of the year, referring, as we suppose, to seasons of high water. But in the case of Crooker v. Bragg (supra), it was decided that a stream of water cannot be diverted from its natural course without the consent of the owner, over or by whose land it passes; although such owner may not require the whole or any part of it for the use of machinery. “ Upon any other principle,” said Judge Nelson, delivering the opinion of the court in that case, “this right to the stream, which is as perfect and indefeasible as the right to the soil, would always depend upon the use, and a party who did not occupy the whole for special purposes would be exposed to have the same diverted by his neighbor above him, without remedy, and which diversion, by twenty years enjoyment, would ripen into a pi'escriptive right beyond his control, and thereby defeat any subsequent use.” Concurring in the doctrine of that case, and the reasoning by which it is sustained, we think the plaintiff is entitled to an injunction as prayed for in his complaint. If, at certain seasons of the year, there is a surplus of water in the stream not needed by the plaintiff for the use of his mill, and needed by the defendants for the use of their road, it does not follow that the defendants may, therefore, use such surplus ; but they may acquire the right to use it under the statute on making compensation. The limitation in the act of 1869, already referred to, is to the effect that nothing in said act contained “ shall authorize the taking of any waters that shall at the time of such taking be commonly used for domestic, agricultural or manufacturing purposes, to such an extent as to injuriously interfere with such use in the future.” That provision seems to warrant the construction that the right to use such surplus, and that only, may be so acquired.

The order of the Special Term should be reversed ; but as it is apparent that upon the verdict the plaintiff is entitled to judgment, this court should award judgment, and not order a new trial.

Judgment ordered in favor of the plaintiff for an injunction restraining the defendant from diverting the water of Tonawanda creek to the injury of the plaintiff, and for the damages found by the jury, with costs of the appeal, and the costs of the action.

Talcott, P. J., and Hardin, J., concurred.

Order of Special Term reversed, and judgment ordered in favor of the plaintiff, that an injunction issue perpetually restraining the defendant from diverting the water of Tonawanda creek to the injury of the plaintiff, and that he recover the damages found by the jury, with costs of the appeal and of the action.


text:
    HARTWIN E. BARBER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Indictment for obtaining goods by false representations as to the prisonei'’s debts — — debts not specified in, cannot be proved — testimony in supplementary proceedings — when inadmissible.

    An indictment for obtaining goods by false pretences alleged that the accused represented “ that he was out of debt, or nearly out of debt, and that he had no debts against him except a few dribbling grocery bills,” and then proceeded “whereas in truth and in fact said Hartwin E. Barber was not out of debt and was not nearly out of debt, but was largely in debt and owed large sums of money to divers persons.”

      Held, that upon the trial the prosecution could not prove any specific sums owed by the accused, as none were described or set forth in the indictment.
    Upon the trial to prove debts due from the accused, testimony given by him on his examination in proceedings supplementary to execution under the Code, section 292, was admitted.

      Held, that this was error.
    "What evidence of ownership of the chattels, obtained by the false representations, is sufficient to sustain the indictment, considered.
    Writ of Error to the Court of Sessions of Allegany, to review a conviction and judgment upon an indictment against the plaintiff in error, charging him with obtaining property by false pretences.

      Daggett <& JSfo7-ton, for the plaintiff in error.

      O. JST. FlaTiagaTi, district attorney, for the defendants in error.
   Smith, J.:

The indictment charged that Barber falsely and knowingly represented to William and Nathan Colegrove, among other things, that “ he was out of debt or nearly out of debt, and that he had no debts against him except a few dribbling grocery bills,” and thereby induced them to deliver to him five cows belonging to them, of the value of $132.50. The only language in the indictment negativing such representation was the following: “ Whereas, in truth and in fact, said Hartwin E. Barber was not out of debt and was not nearly out of debt, but was largely in debt and owed large sums of money to divers persons,” without specifying any indebtedness whatever. At the trial, the prosecuting attorney gave evidence of such misrepresentations. Pie then offered evidence tending to show that before the making of the alleged representation, a certain judgment had been rendered against Barber in the Supreme Court of this State for over $1,100, and also that he had executed a mortgage upon real estate, which recited that it was given to secure the payment of $530 and interest, according to the condition of a bond given by him of the same date. The counsel for the prisoner objected to the evidence, on the ground that no specific indebtedness was alleged in the indictment. The objection Avas overruled and the evidence was received, and the counsel for the prisoner duly excepted.

The testimony was inadmissible. The existence of those particular debts not having been charged in the indictment, the prosecution was not entitled to prove them, and the defendant ivas not required to be prepared to meet them. The case of The People v. Miller (2 Park. Cr. Cas., 197) is in point. In that case the defendant Avas indicted for obtaining an indorsement of a note by false pretences. It Avas charged and proved that the defendant obtained the indorsement by representing, among other things, that all his last year’s debts had been settled and paid. Held, by the General Term in the seventh distiict, that such representations could not be shoAvn to be false by proving a specific indebtedness existing at the time, unless the existence of such specific indebtedness had been alleged in the indictment. Welles, J., delivering the opinion of the court, said : “ It” (the evidence of specific debts) “could only be material by way of contradicting the representation charged and claimed to have been proved, that all the defendant’s last year’s debts had been settled aud paid. If admissible at all, it could only be so, under a proper allegation or averment of the fact. It Avould be contrary to well-established principles to allorv evidence to be given upon a material issue, tending to fasten fraud and falsehood upon the party, without any averment or notice in the indictment, of the fact sought to be proved.”

A part of the evidence introduced by the prosecution, to show the existence of specific debts, consisted of the testimony given by the defendant, on his examination in proceedings supplementary to execution, pursuant to section 292 of the Code of Procedure. The evidence was objected to on the ground that the testimony of a witness in supplementary proceedings cannot be used against him in a criminal proceeding. The objection was overruled and the defendant excepted. Section 292 provides that “no person shall, on examination pursuant to this chapter, be excused from answering any question, on the ground that his examination will tend to convict him of the commission of a fraud ; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.”

The counsel for the people argues that the last clause of the portion of the statute above quoted only applies where the witness has declined to answer upon the examination, upon the ground that his answer might tend to criminate him; otherwise, the counsel says, witnesses in supplementary proceedings may testify falsely with impunity, as their testimony could not be used to support a prosecution against them for perjury. The argument proceeds upon a misconception of the statute. Immunity from the consequences of perjury is not secured to the witness, whether he does or does not ask to be excused before testifying. He shall not be excused from answering on the ground that his examination will tend to convict him of a fraud: i. e., of a fraud upon his creditors in respect to his property ; otherwise, the object of the statute, which is to obtain a discovery of his property, would be frustrated. In all other respects, he is entitled to the benefit of the rule, that a witness is not obliged to criminate himself. In the present case, a refusal, on the part of the witness, to answer would have been unavailing, for the obvious reason that his testimony could not have tended to show him guilty of a crime, except, possibly, of a fraudulent disposition of his property, which, according to the statute, would not excuse him from answering. We apprehend that the true meaning of the provision, that the examination of a witness in supplementary proceedings shall not be used against him in any criminal proceeding is, that it shall not be used as evidence of any fact testified to by him on such examination. If that is the extent of the provision he is liable, like other witnesses, to indictment for perjury, and his testimony, given on the examination, may be shown on the trial of such indictment, not as proof of the facts stated by him, but as evidence of his sworn statements. But whether the opinion last expressed be correct or not, certain it is that the testimony of the witness cannot be used as evidence of a fact stated by him on such examination, and as on the trial of this case, the testimony of the defendant as a witness in the supplementary proceedings was received solely as evidence of certain facts stated by him on such examination, it was directly within the prohibition of the statute and its reception was error.

The counsel for the prisoner insists that the proof did not show that the cows were the property of the Colegroves, as charged in ttfe indictment. It appeared that the Colegroves had originally owned the cows and had sold them to one Watson and had taken back a chattel mortgage on them, to secure purchase-money. Watson had advertised his personal property for sale at public auction, with the consent of the Colegroves, they to select notes realized from the sale in satisfaction of their mortgage. The arrangement was publicly announced to the bidders, and the defendant having bid off four of the cows at the auction, and purchased a fifth cow of the Colegroves, at private sale, his note was one of those selected by the Colegroves. By the representations in question, he induced the Colegroves to accept his note and deliver to him the cows. Upon this state of facts, we think the Colegroves had such an interest in the cows as supports the allegation in the indictment.

It is also insisted that the indictment is fatally defective. It is only necessary to say that although it is not sufficiently specific in its allegations to admit proof that Barber was owing particular debts, it alleges other false representations than those respecting his indebtedness, and is sufficient in all other respects.

For the errors above pointed out, the judgment and conviction must be reversed, and the case remitted to the Court of Sessions of Allegany for a new trial.

Talcott, F. J. and Hardin, J., concurred.

Judgment and conviction reversed, and case remitted to the Court of Sessions of Allegany county, with directions for a now trial.