text:
    Samuel Bryant, Adm’r, Resp’t, v. The Town of Randolph, App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Negligence—Highways—Barriers at bridge approaches—Liability of TOWN.
    In making its crossing a railroad elevated a highway twelve feet in I860, leaving it twelve feet wide at the top and without railing or barrier. Plaintiff’s intestate, while descending the steep incline with a heavy load, and while upon the railroad lands, was killed by the overturning of his wagon through the wheels cutting into the loose gravel. The approaches to the crossing were unsafe and dangerous. Held, that the town was liable for the omission of the commissioner in failing to erect barriers.
    3. Same.
    The duty imposed upon railroads by Laws 1850, chap. 140, to restore the approaches to a railroad bridge does not relieve the commissioners of highways from the care and control of the approaches to railroad crossings, although constructed by the railroad company as part of its statutory duty.
    This action was brought to recover damages occasioned by the ■death of George A. Bryant by the overturning of a wagon loaded with bark on a public highway, in the town of Randolph, on the 23d day of September, 1887. The deceased was a young man nineteen years of age, and on the morning of the day mentioned he started two miles south of the place where the New York, .Pennsylvania & Ohio Railroad crosses the intersection of two public highways in the town, with a team and wagon loaded with hemlock bark, to go to the village of East Randolph, which lies about two miles north of the railroad.
    The railroad was constructed in 1860, and crossed the two highways about twelve feet above their original grade. This rendered necessary the raising of the surface of each of the highways as they approached the crossing, both on the north and south, so as to enable travelers to cross the track of the railroad. The Tailroad company thereupon constructed embankments in the highway on each side of the crossing twelve feet high at the intersection of • the highways and the crossing, and descending northerly and southerly from thence until the original grade of the highways was reached. The' embankments from a point a few feet from the crossing were eleven to twelve feet wide, and travel was practically confined to the space on the top of the embankments. The sides were left unguarded by any railing or other barrier.
    Owing to the angles at which the highways approached the crossing, a person driving from the south approached the crossing on a curve to the left, and on reaching the crossing was required to make a curve to the right, and then another curve to the left, in order to follow the road to East Randolph.
    The intestate reached the crossing on his way north, and after passing over the crossing drove so near the edge of the embankment that the right hind wheel of the wagon commenced to cut down into the loose gravel on the west side, and finally the wagon overturned and the intestate received the injury of which he died. The intestate was seated on the top of his load on the right hind side, just forward of the right hind wheel of the wagon, holding the reins, and in reach of a brake connected with the axle of the wagon, in which position he could see the top of the horses’ ears, but not.their bodies. It appears that drivers sometimes sat in the position occupied by the intestate, and sometimes near the front wheel, in which case they would operate the brake by means of a rope attached to the lever, and a loop in which the foot was placed. It was shown that the intestate was a careful driver, acquainted with the management of horses; that he was familiar with the road, and that the team he drove was steady and manageable.
    The traveled part of the embankment was firm six to eighteen inches from the edge on the west side. It had rained from twenty-four to thirty-six hours before the accident, and it may be inferred that the side of the embankment was softened by the rain. Maps were introduced showing the course of the wagon after it passed the crossing, as indicated by the tracks made by the wheels, and from which it appeared, as claimed by the plaintiff, that the horses-were properly in the track, and that the wheels on the near side of the wagon both commenced to cut down in the beaten track, and that the front wheels remained in their proper position until, by the cutting down of the hind wheel more and more, the front, wheels were drawn over and the wagon overturned.
    The claim to charge the town of Randolph is based upon the alleged negligence of the commissioner of highways in omitting* to observe due care in protecting the embankment by a railing or barrier, or otherwise, so as to render it safe for public travel. It. was also claimed that in 1886 the commissioner of highways, in attempting to improve the road, had rendered it more dangerous* than it was before. The embankments had continued as they were constructed in I860 until 1866. It is not seriously questioned that the crossing was difficult and dangerous for loaded teams by-reason of the curves and the narrowness of the embankments.
    The plaintiff’s cotinsel offered to prove that in repeated instances; prior to the accident- in question, accidents had occurred to-travelers and teams from the condition of the highway at this point, but the proof was excluded on the defendant’s objection.
    It is conceded that the commissioner of highways had sufficient funds to make any reparation required.
    The jury found a verdict for the plaintiff, and the judgment entered thereon was affirmed by the general term.

      William H. Henderson, for app’lt; Franh W Stevens, for resp’t..

       Affirming 38 St. Rep., 956.

   Andrews, J.

The act of 1881, chap. 700, imposes upon the-several towns of the state liability, for any damages occasioned to persons or property by reason of defective highways, in cases where theretofore the commissioner of highways of the town would have been liable. The general highway statute places upon the highway commissioner the “care and superintendence of the highways and bridges ’’ in his town. 1 Rev. Stat., 501, § 1.

It is the established rule in this state that where an individual sustains an injury by misfeasance or nonfeasance of a public officer, who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer in behalf of the party injured. Bronson, J., Adsit v. Brady, 4 Hill, 630. In accordance with this principle, prior to the act of 1881, commissioners of highways were held liable to a person injured from a defective highway within his jurisdiction which he had negligently omitted. to repair, provided he had adequate funds furnished by the town with which he could have made the necessary reparation. Robison v. Chamberlain, 34 N.Y., 389; Hover v. Barkhoof, 44 id., 113; People ex rel., etc. v. Town Auditors, 74 id., 310.

The opposite view taken in the opinion of the court in Bartlett v. Crosier, 17 Johns., 440, and in Weet v. Village of Brockport, 16 N. Y., 161 n, and in some of the New England states has not been followed.

Under the statute of 1881 the liability of a town is commensurate with that of a commissioner of highways before the act was passed, and while the duty of reparation rests upon the commissioner of highways since the passage of the act as before, the civil liability for injury to persons or property from his neglect to perform the duty is transferred to the town, and it becomes liable to respond in damages wherever before the statute the commissioner would have been liable.

In this case- the jury have found that the approaches to the railroad crossing were unsafe and dangerous, and their finding is justified by the evidence. The embankment confined travel to the narrow roadway on the surface, and the evidence tends to show that the lines of approach to the railroad track- along the •embankment were such that travellers incurred great hazard, especially with loaded wagons, of driving too near the edge of the ■embankment and of being precipitated over the side into the depression below. The embankments were "constructed by the rail-Toad company in 1860 within the lines of the existing highways. The sides were left unguarded by any fence or barrier, and this •condition continued until after the accident in question.

We do not understand it to be controverted that if these approaches remained a part of the highways of the town of Randolph, over which the commissioner of highways had, and was bound to exercise, the same jurisdiction as over other parts of the highways in the town, a case of negligence on the part of the ■commissioner was established, which in the absence of contributory negligence on the part of the deceased gave a right of action ■against the town under the act of 1881. Negligence on the part •of a commissioner of highways fnay consist as well in the omission to erect barriers in dangerous places in a highway as in leaving the bed of the highway defective. Ivory v. Town of Deerpark, 116 N. Y., 476; 27 St. Rep., 643; Dillon on Mun. Corp., § 1005, and cases cited.

But it is contended on behalf of the town that no responsibility rested upon the commissioner of highways as to the condition of the embankments, for the reason that they were part of the railroad crossing and. made necessary to adapt the highways to the grade of the railroad, and were constructed by the railroad in performance of the statutory duty imposed upon a railroad company which constructs its line across a highway to restore the: same “ to its former state or to such state as not unnecessarily to impair its usefulness.” Laws of 1850, chap. 140, § 28, subd. 5. This duty is, as is properly contended, a continuing duty, and it. is insisted that the effect of the statute is to withdraw from the jurisdiction of the commissioner of highways such portions of the highways of the town as form a part of a railroad crossing, and to place the duty of repair exclusively upon the railroad corporation. This claim is, we think, unsound.

The railroad statute confers a privilege upon railroad companies and imposes a duty. It permits them tó locate their lines across highways, but it couples the privilege with the duty of restoration. For a failure to perform the duty there is a public remedy by indictment, or by mandamus, or other action at the instance of the highway commissioners of the town, under chapter 255 of the Laws of 1855, and a private remedy also in behalf of a person injured. People ex rel. Green v. R. C., 58 N. Y., 153; People v. N. Y. C. & H. R. R. R. Co., 74 id., 302; Masterson v. Same, 84 id., 247; McMahon v. R. R. Co., 75 id., 231.

But we perceive no ground for maintaining that the duty imposed by the statute of 1850 upon railroad corporations relieves commissioners of highways from the care and control of those parts of public highways constituting approaches to railroad crossings, although constructed by the railroad company as part of its statutory duty. The object of the statute of 1850 was two-fold; to legalize the crossing of highways by railroads, and to impose upon the railroad company crossing a highway the burden and expense of restoration. But the original highway, when its route is not changed, remains a public highway as before. The railroad company has the right in the first instance to determine the place of crossing and the manner of restoration. But, as was said in People ex rel. Green, supra, the discretion reposed in the railroad company is ministerial and not judicial. The commissioner of highways is not deprived of his jurisdiction, and under the statute of 1855 may institute proceedings to compel the company to fully perform its duty, or he may, as it seems, where the company is in default, proceed and do the necessary work and maintain an action against the company for the expense.

There is no express statute depriving a commissioner of highways of jurisdiction over parts of highways which a railroad company may adapt for approaches to crossings, and it would seem to be opposed to public policy to exempt them from his general jurisdiction and 'responsibility and to turn over travellers injured by defective reparations to a remedy against a private corporation.

We think the ruling at the trial upon this point was correct.

The defendant also set up the defense of contributory negligence. We deem it unnecessary to restate the evidence bearing upon this point. It is sufficient to say that the question upon the facts proved was for the- jury.

One ground upon which contributory negligence was claimed was the position of the intestate upon the load of bark. It was claimed that he should have sat near the front wheel, in full sight of the horses, and have operated the brake by a rope from that position. The court allowed under objection a question to be put to two of plaintiff’s witnesses, whether the place where the intestate sat was a proper place for a driver to be, and they answered in the affirmative. We think these questions were improper and that the matter was not provable by the opinion of witnesses. But all the facts bearing upon the question were before the jury, composed presumably of men competent from judgment and experience to determine the matter upon the facts for themselves, and we think it is quite plain from the circumstances appearing in the record that the improper evidence allowed did not prejudice the defendant, and for that reason the error is not sufficient ground for reversing the judgment. There are some other exception's, but the main reliance was upon the two points we have noticed and we think none of "the others require particular consideration.

The case was carefully tried,'the charge was clear and impartial, ■and we think the judgment should be affirmed Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Robert McCulloch, App’lt, v. John Dobson et al., Resp’ts.

      Court of Appeals,

      Filed April 12, 1892.)

    1. Lease—Repairs.
    In an action for injury to the premises by the neglect of lessees to keep and perform the covenants of a lease as to repairs, the answer contained a denial and set up a counterclaim for repairs done by defendants before entry on the employment of the lessor. The evidence was conflicting, but defendants’ testimony was express that plaintiff told them to get the place put in order and charge it to him. Held, that the covenants of the lease, when read together, meant that the tenants were to receive the premises in good working order and repair, and was to leave them in that condition, and whether there was a breach by the tenants was a question of fact for the referee.
    3. Same—Parol request by landlord for tenant to repair.
    Plaintiff's paroi request to defendants, after the delivery of the lease, to make the repairs contemplated, and his promise to indemnify them for the cost, was binding upon him.
    •3. Reference—Code Civ. Pro., § 993.
    The mere fact that a referee filed his statement without having noted his decision upon the margin opposite each proposition is not a <v refusal to make any finding whatever” within the meaning of § 993 of the Code Civ. Pro. In such a case the proper practice is to apply to the court to send the report or the statement back to the referee for the purpose of supplying the omission or correcting the mistake if it be one.
    4. Same—Appeal.
    A motion to set aside a referee’s report on the ground that his mind was impaired and he was incompetent to perform his duties, or for additional allowance on the ground that a case is difficult and extraordinary, is addressed to the discretion of the court, and is not reviewable here.

      Appeal from a judgment of the supreme court, general term, second department, affirming judgment in favor of defendants, entered on report of referee.

      Benno Loewy, for appít; George L. Carlisle, for resp’ts. .

       Affirming 39 St. Rep., 907.

   O’Brien, J.

The plaintiff’s action was for the recovery of damages for the breach, by the defendants, of the covenants of a lease of a silk mill and machinery, executed and bearing date September 4, 1884, for a period of two years from the 30th of September following. The defendants entered into possession of the demised premises and occupied them for the term and' paid the stipulated rent of $5,000 per annum. The covenant upon which this action depended was to the effect that the defendants, during the term, would at their own expense keep and maintain the mill, water power, machinery, tools and appurtenances, including the dam and raceway, in good repair and condition, and further that after the expiration of the term they would surrender the demised premises in as good condition as reasonable use and wear thereof would permit. The complaint charges a breach of those covenants in various particulars, not important now to specify, on account of which a large sum was claimed as damages. The defendants covenanted in the lease not to run the mill over time, without the consent of the underwriters and companies insuring the same first had, and in case permission to do so was given, they were to pay the plaintiff any additional sum that he would be, for this reason, obliged to pay as premium on the risk insured. That the defendants, in compliance with the lease, gave-the plaintiff notice on March 3, 1885, that it was their intention to run the mill over time and requested the plaintiff to get the consent of the insurance companies for that purpose; with which request the plaintiff complied, at an expense to him of $300 in additional premiums, which the defendants never refunded.

The defendants’ answer put in issue all the allegations of the complaint with respect to a breach of the covenants of the lease, and for a separate defense and as a counterclaim alleged that both prior to and at the time of the execution of the lease the plaintiff promised and agreed with the defendants that he would, at his own expense, make such repairs to 'the premises, appurtenances and machinery about to be included in the lease as would be sufficient to put the same in good, full and complete working order and repair prior to the time that the defendants’ right of entry should accrue. That the defendants refused to sign the lease until such repairs were "made, or until plaintiff promised so to do. Whereupon the plaintiff, as an inducement to the defendants- to execute the lease, and in consideration thereof, agreed to-put the premises and machinery covered by the lease" in good, full and complete working order and repair. That in pursuance of this agreement the plaintiff requested and employed the defendants to make the repairs themselves at his expense; that in making the repairs contemplated they performed labor and furnished materials of the value of $2,500 and upwards which-the plaintiff" had not paid to them. After the covenant in the lease providing for the surrender of the premises, follows this provision: “ It being understood that the said premises should be in good repair before entry of the said party of the second part, and it is also agreed that the said party of the first part shall put in steam pipes for heating.”

The issues were tried by a referee, who found that the plaintiff stipulated in the lease to put the premises in repair before entry by defendants, and that the plaintiff agreed, by paroi, that if defendants would make such repairs, he would pay to them the cost of the same. That the defendants then did make such repairs, which the plaintiff was bound to make under the agreement, at a cost in all of $2,413.15. He also found that the defendants surrendered the demised premises, at the expiration of the term, in as good condition, reasonable wear and tear excepted, as they were in when received from the plaintiff, and bettered by at least the amount above mentioned expended by the defendants in the repair of the property. That, besides the sum so expended, the defendants during the term expended a large sum in keeping and maintaining the demises premised in good order, and that they did keep and maintain the property in as good order and condition as that in which they had received them, except that they failed to .-surrender and turn over to the plaintiff certain machinery and tools covered by the lease of the value of twenty dollars. He sustained the plaintiff’s claim for additional premiums paid by reason of running the mill over time, and found the amount to be $362.12, which the defendants had not refunded. He then deducted the two sums found in favor of the plaintiff from the sum found in favor of the defendants, and directed judgment in favor of the defendants for the balance, $2,031.03, and that the complaint be dismissed. The covenants of the lease when .all read together mean that the lessor will put the premises in good working order and repair before the commencement of the term, that the lessees will then keep them in repair, and at the end' of the term surrender them to the. lessor in as good condition as they were in at the commencement of the term, when the lessor had performed his covenant to put them in good working order, ordinary use and wear excepted. The tenant was to receive the demised premises in good working •order and repair, and he was to leave them in that condition as near as reasonable use and wear would permit.

Whether there was a breach of the covenants of the lease ■on the part of the defendants in failing to keep the premises in repair, or in failing to- surrender them in the condition required by the lease, was a question of fact which has been determined against the plaintiff by the referee upon a- mass of .conflicting evidence, and in this court his finding on that point must be treated as conclusive.

It is ' not important to consider the effect of the plaintiff’s paroi promise to put the premises in a good and tenantable condition before the commencement of the term, because the lease itself contains a sufficient provision on this subject. The plaintiff’s paroi request to the defendants, after the delivery ■ of the lease, to make the repairs contemplated, and his promise to-indemnify them for the cost, was certainly binding upon him. The request and promise, as well as the extent and cost of the repairs, involved a question of fact which the referee has-determined against the plaintiff. The voluminous record before-us contains a mass of evidence bearing on the two questions-referred to, but the most favorable view that can be taken for the plaintiff would be obliged to admit that it was at least conflicting. In this court any discussion of it would be quite useless as the finding of the referee must be accepted as the true-state of the facts.

The plaintiff’s counsel has called our attention to various requests presented to the referee to find upon the evidence the facts-therein incorporated._ We have examined them with some care, and think it is sufficient to say with respect to them that none of the requests that were material, or that the plaintiff was entitled, to have passed upon by the referee, were so conclusively established by proof as to warrant this court in holding that there was legal error in declining to find as requested.

The learned counsel for the plaintiff argues, as ground of error, requiring this court to reverse the judgment, the omission of the-referee to indicate, upon the margin of the paper or otherwise, his-disposition of certain propositions of fact and law submitted to-him under § 1023 of the Code. That section requires that “ At or before the time when the decision or report is rendered, the court, or the referee must note on the margin of the statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement thus noted; but-an omission so to do does not affect the validity of the decision or report.” As to some of the numerous requests submitted to the-referee in this case, he made no note on the margin indicating the disposition made of them. As to the others, he complied with the Code. Section 993 provides that a refusal to make any finding on a question of fact, seasonably submitted, is a ruling on a. question of law. There are two answers to the plaintiff’s contention in this respect.

First. Nearly all the propositions are' either covered by the-findings made by the referee and stated in his report or they are immaterial. The most important of them relate to provisions of' the lease which the referee was asked to find. The lease and every part of it was in evidence and is in the record now before the court, and the plaintiff has the benefit of all its provisions. It. was not necessary that the referee should incorporate it in his report or make separate findings in regard to all its stipulations. The referee could find nothing which was not embraced in the instrument, and the plaintiff could not be injured by his failure to state-in the form of a distinct proposition what the lease did or did not contain. Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21.

Secondly. The mere fact that the referee filed the statement or delivered it to the attorney without having noted his decision upon the margin opposite each proposition is not a “ refusal to-make any finding whatever ” within the meaning of § 993. That may be the result of a mistake which is liable to occur in any case, especially when the requests are very numerous. If the referee had failed to file or deliver the paper at all that would not affect the validity of his decision under § 1023. Much less can it be said that his omission to note upon the margin of the paper his disposition of one or several requests is an error of law reviewable in this court. In such a case the proper practice is to apply to the court to send the report or the statement back to the referee for the purpose of supplying the omission or correcting the mistake if it be one. It is only when it affirmatively appears by the record that the court or referee has refused or declined to pass; upon requests or make findings that this court can treat the refusal as a ruling on a question of law. The omission of the usual note on the margin of the statement does not necessarily show in this case that the referee refused to pass upon the plaintiff’s findings. So that, even if there is, among the requests referred to, anything material, or that would be beneficial to the plaintiff, the question is not properly before us on this record.

There are many exceptions in the record to the rulings of the referee admitting or excluding evidence offered by either party. But very few of these exceptions merit any special notice. In order to prove that the machinery was not in good repair when the defendants’ term commenced they were permitted to give the testimony of witnesses as to its condition subsequent to the commencement of the term. Some of these witnesses were experts, and they all described the condition of the articles of machinery, the appearance of the fractures and other defects in such a way as to reflect light upon the condition of the same articles a few months or weeks before. Evidence as to the condition of machinery in a mill at a particular date is competent ordinarily to show what its condition was at a date shortly before.- It is not necessary that the- witnesses should have seen the machinery at or before the time when its condition is to be ascertained. The fact that they did not examine or see the machinery at the very day, nor till some days or even months subsequent to the time in question, may affect the value, but not, ordinarily, the competency of the testimony.

The plaintiff sought to prove by a witness who worked in the-mill for the defendants a conversation between defendants’ foreman and a third party as to the condition of the machinery. This was excluded and properly so. The plaintiff could not prove his case, as to the condition of the premises, by declarations of the foreman to a third party. The plaintiff in order to show that the machinery was in good order at the commencement of the term offered samples of silk made from it in 1883 which were excluded. Aside from any other objection to this species of evidence, it was quite absurd to suppose that the referee could judge as to the condition of machinery from the character of the products of the mill Proof was also offered to show that defendant employed incompetent hands as a basis for an inference that they necessarily damaged the machinery. This was properly excluded. It was-sought to impeach one of the witnesses for the defendant who gave material testimony by proof of his admissions, after the testimony was given, to the effect that it was not truthful. This was excluded. A witness cannot be impeached by proof of declarations made out of court, before or after the trial, contradictory of his testimony, until a proper foundation is laid for the impeachment by interrogating the witness himself. in regard to the statement. The other exceptions in the case are of no greater and many of them are of very much less importance. None of them presents any question that requires a reversal of the judgment. The record contains a notice of appeal from two orders, made in the case, and which have been affirmed at the general term. The referee’s report was made and signed July 14, 1888. It was delivered on the 17th and filed on the 18th of July and on'the 20th of that month he died. One of the orders denied a motion, made by the plaintiff, to set aside the report on the ground that the referee’s mind was impaired some time before his death and he was incompetent to perform the duties of a referee. The other order granted to the defendants an additional allowance of costs on the ground that the case was difficult and extraordinary. Both motions were addressed to the discretion of the court and the decision of the general term, affirming them, is not reviewable here. The judgment should be affirmed, and the appeals from the orders dismissed, with costs. '

All concur.


author: Gray, J.

text:
    The Mayor, etc., of New York, Resp’t, v. The Dry Dock, East Broadway & Battery R. R. Co., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Railroads—New York city—Ordinance requiring road to run CARS ALL NIGHT—EVIDENCE AS TO ITS UNREASONABLENESS.
    By defendant’s charter it was compelled to run its cars “ as often as the convenience of passengers may require, and shall he subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to time by ordinance prescribe.” Held, that while the reasonableness of an ordinance requiring it to run cars all night was a question of law for the court to decide, it was competent for defendant to give evidence of such facts as would establish, or tend to establish, that the convenience of passengers or of the public did not require the running of its cars during the hours specified.
    3. Same.
    That the evidence offered related to a period of time subsequent to the date when the ordinance went into effect is not a ground for objection.
    Appeal from judgment of the New York common pleas, general term, affirming a judgment of a justice of the fifth district court for a penalty for violation of a city ordinance.

      John M. Scribner, for app’lt \.D,J. Dean, for resp’t.

       Reversing 39 St. Rep., 105.

   Gray, J.

This was an action to recover a penalty of $100.00 for an alleged violation by the railroad company of an ordinance of the common council of the city of New York, which required the several street surface railroad companies to operate their roads “ as frequently as public convenience may require and not less than one car every twenty minutes between the hours of 12 midnight and 6 o’clock A, it. each and every day, both ways, for the transportation of passengers.” The particular violation charged in the complaint was the failure of defendant to run its cars on its. Avenue D branch every twenty minutes during the ordinance hours, on the 11th day of July, 1890. The plaintiff recovered a judgment in the fifth judicial district court in the city of New York, which was afiirmed, upon an appeal to the general term of the common pleas court for the said city. The defendant, obtained leave to take an appeal to this court and its counsel has presented an elaborate argument, in which he questions the right of the common council to pass the ordinance as to this defendant; and he insists that in the trial of the action the judge erred in the exclusion of evidence and in his decision upon the case as made.

In 1860 the legislature passed “ An act to authorize the construction of a railroad in Avenue D, East Broadway, and other streets and avenues of the city of New York.” Chapter 512, Laws of I860.' This defendant is the assignee and owner of the rights, privileges .and franchises conferred on the grantees named in the act. In its second section it was provided as follows:

“ Section 2. Said railroad shall be constructed on the most-approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and shall be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may from time to-time by ordinance prescribe. ”

In 1890 the ordinance in question was passed by the common council, and the defendant questions its power and right to pass it; upon the ground that it alters or violates the contract between the state and the defendant. The argument, however, disregards the fundamental fact that it was a part of that contract that the defendant should be subject to such rules and regulations as the common council should prescribe; and the only limitation or qualification imposed by the legislature in that respect was that they should be such as were reasonable.

Within the boundaries of the authority conferred by the legislature upon the common council, that body may make ordinances for the regulation by individuals or corporations of the conduct of their affairs or the use of their privileges where they touch or affect municipal and public interests. This fight to legislate through ordinances in the administration of municipal affairs is necessary for the protection and for the promotion of civic interests, and is conferred in the consolidation act. . That body has, of course, no general power in these respects. It may exercise only such powers as have been especially delegated to it by the legislature, and such as may be necessary to carry into effect any and all the powers vested in the municipal corporation.

When the charter, under which the defendant acquired its right to operate its railways, was granted in 1860 it was one of its conditions or provisions, and as such quite as much obligatory upon the grantees as any other part of the legislative grant, that the corporation should comply with any ordinances prescribed by the common council which constituted a reasonable regulation of the use of the corporate franchises. There is not here any question of an alteration of a charter or of any impairment of the contract with the state. The defendant took the charter with all the conditions expressed in it, and by .acceptance has agreed that the operation and enjoyment of the privileges and franchises conferred shall be in subordination to ■such reasonable regulations as the common council of the city shall ordain. By accepting the charter the grantees voluntarily ■consented to be bound by all of its provisions and conditions, and the corporation cannot complain of -the enforcement of any, if, by a fair reading of the language, the enforcement in the particular manner is authorized.

The question then simply is, whether this ordinance of the common council, which was adopted with respect to all the surface roads in' the city, was a reasonable regulation with respect to this defendant; for if it was not, then it is not obligatory within the meaning of the act of incorporation. The authority of the common council in prescribing regulations was qualified as to this ■defendant and, when it is sought to recover a penalty for noncompliance with a regulation, it is competent for the defendant to show that it should not apply to it, because unreasonable. As in this case the regulation affects the running of cars at stated intervals of time, its reasonableness, I think, may properly be considered in connection with the other language of the second section of the charter; which requires the corporation to “ run as often as the convenience of passengers may require.” Not that that language controls, or decides the question of reasonableness; but it bears upon and illustrates the design of the legislature in subjecting the corporation to regulations upon that subject. In the passage of the ordinance in question the presumption is in favor of its reasonableness, and the burden was upon the defendant to show the contrary. I think this is very obviously so; because the common council acts as the public, or municipal agent, and exercises an authority 'which was delegated to it by the legislature; as being the proper and a representative body to make rules and regulations to which the railroad company should be subject. In the passage of a general ordinance, affecting subjects of municipal administration, it should and will be presumed that the common council acted in the exercise of a judgment upon facts and for reasons calling for such legislative action. In Cronin v. The People, 82 N. Y., 323, it was said of the city ordinance there, that it was not “ necessary to allege or explain the reasons for its enactment, or the exigency out of which it grew. It is of the nature of legislative bodies to judge for themselves and the fact and the exercise of that judgment are to be implied from the law itself.”

The adoption of the ordinance in question does not conclude the courts in passing upon the case of its alleged violation ; because their determination is to be controlled by the question of whether it was reasonable as to the defendant, and that can only be determined from facts in evidence. The court will imply the ■existence of reasons rendering the adoption of such a public measure presumptively proper, and it is for the defendant to show The facts which should exempt it from compliance with the gen•eral regulation. Presumptively, the ordinance was required in the interests of the public, for whose convenience railroad companies hold and must operate their franchises; but the presumption is open-to rebuttal by this defendant, by giving in evidence facts which show that in its case its enforcement would be unreasonable, and that the convenience of the public, or of passengers, •did not require such a regulation. It was, therefore, competent for this defendant upon the trial to give' evidence of such facts .as would establish, or tend to- establish, that the convenience of passengers or of the public did not require the running of its cars •during the ordinance hours specified. Such facts were plainly relevant to the issue, and bore upon the question the reasonableness of the ordinance in the defendant’s case. Undoubtedly the reasonableness of the ordinance was a question of "law for the court to decide upon a consideration of all the facts and circumstances of the case. It is the province of courts to construe the •acts of legislative bodies, and within that jurisdiction, in a proper •case, to apply and to enforce their provisions. When the law is positive and plain in its terms and requirements, and if it does not conflict with any constitutional rights or immunities, then that strict compliance must be enforced which a fair reading demands, •and construction may have little or no work to perform.

But if limitations are affixed to the law, which control in its :ap"plication to subjects, it is for the court to decide whether, under the circumstances as disclosed, the conditions for its application are met by the case. Whether this ordinance should .apply to the defendant would depend upon whether the defendant has succeeded in proving that it was- an unreasonable regulation in its particular case. If it could prove that, when obeying the ordinance, upon a fair trial of the regulation, that few or no "passengers were carried, the judge might, and possibly should, find that the regulation was an unreasonable one, and therefore ■should not be enforced. With the evidence upon the subject before him, it would be for the judge to decide upon the question •of the resonableness of enforcing such an ordinance.

That the evidence offered' related to a period of time subsequent to the date when the ordinance went into effect, is not a ground for objection. Obviously, until after the defendant did commence to operate this branch of its road in obedience to the •ordinance, it would be difficult to show that passengers did not use defendant’s road during the ordinance hours and that public «convenience did not require the running of cars all night. Nor is the question controlled by considerations of the expense to the -defendant. It received its franchises and privileges for the public •convenience and to be operated as the public interests should require. No provision or condition of the law of its being qualified its obligation to use its franchises, by permitting the operation of the railroad to be controlled solely by questions of profits. In the case of such quasi public corporations, their primary duty and a cardinal obligation which arises from the grant of public rights and privileges, require of them that they should operate their franchises in a reasonable subservience to the public convenience. In the present case it would not be a sufficient answer to the rule to say that the operation of cars all night was unprofitable'. The objection should be upon the ground that the convenience of passengers does not require it " ■

We think that there was no force in the objection, and no basis for it in the facts, that the ordinance was unreasonable for the want of sufficient time within which to comply with its requirements ; and we do not think that it was a sufficient compliance by the defendant to operate its Avenue B line of cars. The ordinance related to all lines of railroads using the streets of the city, whether they were main lines or branches.

For the error committed in excluding evidence -offered by the defendant tó show that, with respect -to the running of its cars over the Avenue D branch, the regulation embodied in the ordinance of the common council was not a reasonable one, the judgments below should be-reversed and a new trial ordered, with costs to the appellant to abide the event

All concur.


author: Peckham, J.

text:
    Mary B. Van Cleaf, App’lt, v. Catharine Burns, Impl’d, Resp't.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Doweb—Divobce.
    The fact that by the statute of a foreign state a wife who has been . divorced from her husband by the judgment of the courts of that state on the ground of her abandonment of her husband forfeits her right to dower in the lands of her husband within that state does not deprive her of her right to dower in lands of her husband within this state.
    2. Same.
    Under what circumstances an interest in land within this state shall be-allowed a wife by way of dower is a question of policy which the state alone has power to decide, and no judgment of a foreign tribunal in and of itself can in anywise affect that question. ,
    Appeal from judgment of the supreme court, general term, second department, reversing judgment in favor of plaintiff and granting new trial.

      John H. Kemble, for app’lt; Josiah T. Marean, for resp’t.

       Reversing 42 St. Rep., 26.

   Peckham, J.

This case has already been in this court in the-second division, and is reported in 118 N. Y., 549; 29 St. Rep., 860. It did not then appear what effect the Illinois divorce had in that state upon the'dower of the divorced wife.

It was held, in the absence of evidence upon that question,the decree of the Illinois court dissolving the marriage for a crime other than adultery of the wife would not deprive the wife of her then -existing dower rights in lands in this state. As to whether a different result would be reached in case it appeared that the Blinois statute deprived the wife of dower even where the divorce was for a cause other than adultery, the court made no decision and intimated no opinion. The case went back for a new trial and upon such trial evidence was given that by the Illinois statute the effect of the divorce in that state was to deprive the wife of dower and any estate granted by the laws of that state in the real or personal estate of the husband, even where the divorce was granted, as in this case, for a cause other than the adultery of the wife, to wit; her abandonment of the husband.

As this .is a fact which did not appear on the former appeal, we are asked to regard the whole question as res nova, and to come to a decision irrespective of the former opinion as to the true meaning of the word “ misconduct,” as used in the 8th section of our'statute relating to divorce, which is as follows: 11 In case of divorce, dissolving the marriage contract, for the misconduct of the. wife, she shall not be endowed.” 2 R. S., 741, § 8.

The claim of the counsel we regard as inadmissible.

We are bound by the authority of the former decision to hold that the word “ misconduct ” relates to that kind of misconduct only which our laws recognize as sufficient to authorize a divorce, viz: adultery. The sole question open for us to determine is whether the'fact that by the statute of Illinois a wife who has been divorced from her husband by the judgment of an Illinois court on the ground of her abandonment of her husband, and who thereby forfeits her right to dower in the lands of her husband within that state, also, and for that reason forfeits her existing right to dower in lands of her husband within this state. Evidence as to the effect of the Illinois divorce upon the defendant’s right to dower in lands in that state has no tendency to throw light upon the meaning of the word “misconduct” as used in ■our statute. We have determined that it refers only to misconduct such as we recognize as sufficient to authorize a divorce in •our own state. We must still give the same meaning to that word that w'e have done prior to the introduction of such evi: dence.

If the defendant in the Illinois divorce is to be deprived of her existing right to dower in the lands of her husband in this •state by reason of such foreign divorce, it must be, not by virtue •of our statute, but by reason of the effect which such judgment must have under the constitutional guaranty that full faith and •credit shall be given to the judgments of a sister state. Constitution, art. 4, § 1. Congress, in the course of carrying into effect the clause cited, passed an act on the 26th of May, 1790, chapter 11, and therein provided that “the records and judicial proceedings authenticated as aforesaid shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” It was held in Mills v. Duryee, 7 Cranch, 481, that if in the court whence the judgment was taken it had the faith and credit of evidence of the highest nature,, viz: record evidence, it must have the same faith and credit in. every other court. If the judgment of the state court were conclusive in the state where obtained, it must be conclusi.ve evidence-in every other state.

In Christmas v. Russell, 5 Wall., 290, it was held that the-judgment of a state court, not reversed by a superior court having jurisdiction, nor set aside by a direct proceeding in chancery,, is conclusive in the courts of all the other states when the subject, matter of controversy is the same.

This judgment is therefore conclusive evidence in this state that the parties were divorced as therein stated and for the cause therein set forth. The effect which such a divorce has upon the-lands of a husband in the state of Illinois must be determined by the law of Illinois. The effect which it has upon the lands of the husband within this state must be determined by the laws of this state. The sovereignty of Illinois cannot extend beyond its territory and the legislature of that state has no power to enact what shall be the effect of a judgment of one of its own courts upon the real estate -situated within another sovereignty. • It has made no-such attempt. As to this question, full faith and credit are given to the judgment of a court of a sister state, when the same effect upon rights of property within the jurisdiction of that state is given to such a judgment as is given to it by the law of the state where-rendered. The judgment is not open to any inquiry upon the-merits. Green v. Van Buskirk, 5 Wall., 307.

Under what circumstances an interest in land within this state shall be allowed a wife by way of dower is a question of policy which the state alone has power to decide, and no judgment of a. foreign tribunal in and of itself can in any wise affect that question. In truth the learned counsel for the respondent substantially conceded that the case must be decided by reference to our-own statute, and if that statute did not forfeit the wife’s dower in such a case as this, no forfeiture could be founded upon the terms-of the Illinois statute. Hence his very strong plea for a reopening of the question as to the meaning of our statute notwithstanding the decision in regard thereto by the other division.

Having decided that the wife forfeits her do.wer only by misconduct of the nature already stated, that interpretation of our statute decides this case.

The general term having granted an extra territorial effect to the Illinois statute in opposition to our own, we must for that reason reverse its judgment and affirm that of the special term, with costs to plaintiff in all courts.

All concur.


author: Earl, Ch. J.

text:
    Ann Tucker, Resp’t, v. The United Life & Accident Insurance Association, App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    Insurance (life)—Application fob insubance — Consumption—Evidence of.
    In the application of plaintiff’s intestate he stated that he had never had consumption. The policy was issued March 20, 1889, and he died October 7, 1889. In February, 1889, S., a physician, had treated him and discovered bacilli in the sputum. Held, that bacilli in the sputum cannot always be an indication that the disease of consumption has actually commenced, and as after the examination by S. his cough disappeared and subsequently he had passed a good examination by defendants’ physician, it was a question of fact for the jury as to whether at the time the policy was issued he was afflicted with consumption.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      William G. Tracy, for app’lt; William Kennedy, for resp’t.

       Affirming 39 St. Rep., 986.

   Earl, Ch. J.

This action was brought by the plaintiff upon a policy of insurance for her benefit upon the life of her son Will-'ll am Q Tucker. It is claimed on behalf of the defendant that the answers contained in the application of the insured for the insurance, and which were made a part of the policy, were warranties and that they were untrue. He represented that he had never had any serious ailments or local disease, and among other things that he had never had consumption. The policy was issued on the 20th day of March, 1889, and he died of consumption on the 7th day of October following. The defendant claims to nave shown by undisputed evidence that he had consumption at the time of the insurance, and thus that the breach of warranty was established. On the part of the plaintiff it is claimed that there was a conflict of evidence upon that point and that the case was therefore properly submitted to the jury and that the verdict of the jury is conclusive here.

The defendant called as a witness Dr. Sears, a young physician, who had been in practice at the time of the insurance about three years. He testified that the insured first called upon him on the 25th day of February before the iusurance for professional advice and treatment, and that he made six calls upon him before the fifth day of March, and that he treated him for consumption; that during that time he procured and examined a specimen of his sputum and discovered what are known as Koch bacilli, the germs of tuberculosis, and he gave it as his judgment that he had consumption at that time. His evidence as to the presence of the bacilli was confirmed by another physician who during the trial of the action made a microscopic examination of the bacilli. If there had been no other evidence in the case to weaken the force of this evidence it is probably true that the defense to the action would have been established. Dr. Sears formed his opinion from the appearance of the insured at the time he treated him, from the presence of the bacilli in the sputum, and from his subsequent history and death from consumption. The insured thought he had nothing but a cold, and was not informed by Dr. Sears that he had consumption. The presence of the bacilli cannot be conclusive. Bacilli in the sputum cannot always be, it seems to me, an indication that the disease of consumption has actually commenced. These germs enter the system and in thousands of cases do no harm. In order to work mischief they must find favorable conditions, and at what precise time their operation has gone so far as to cause disease cannot be easily determined. Philosophically speaking the disease must have a precise commencement. On one day the victim may be free from disease and on the next day it may have commenced. So far as I can see these bacilli may have been present about the first of March and yet their operation may not have gone so far as to cause consumption on the 20th day of March; so that from the mere presence of bacilli on the first of March, from any light given by the evidence, or from anything in the nature of things, I am unable to say that they absolutely and infallibly indicated the existence of consumption prior to the 20th of March. But there was evidence on the part of the plaintiff which produced a manifest conflict.

The sister of the insured testified that he had a cold, and at her request went to Dr. Sears to get a prescription for that, and that she and her brother believed that it was a mere temporary ailment. At the time of the insurance he weighed about 155 pounds, and for some considerable time thereafter his complexion was ruddy and he was apparently healthy. He continued in bis ordinary employment of a laborer until within a few weeks of his death; He died of acute tuberculosis, which generally runs its course in a very short space of time, usually three or four months. After visiting Dr. Sears the cough he then had disappeared, and was not noticed by his sister for some months thereafter, and during some months thereafter he was not under treatment by any physician. The examining physician who made the medical examination for his insurance testified that he examined him on the 19th day of March; that his physical appearance was then healthy ; that he made a thorough examination by the usual tests and found his lungs in a perfect healthy condition ; that he examined him by percussion and auscultation, and pronounced him healthy. He saw him some weeks afterward and conversed with him and saw nothing to indicate any lung trouble or any disease of any kind. Now, taking all this evidence, it was a question of fact for the jury to determine whether at the precise time the policy was issued he was afflicted with consumption. Although he died of consumption, the proof shows that the particular form of that disease of which he died may have originated after the i n surance and ordinarily would not .exist for a period of six months before causing death.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Andrews, J.

text:
    The New York Life Insurance & Trust Co., Trustee, Resp’t, v. John Henry Livingston et al., App’lts.

      (Court of Appeals,

      Filed April 12, 1892.)

    Trust—Power oe appointment.
    Clermont L. De Peyster conveyed his property to plaintiff as trustee to lease the real estate and keep invested the personalty, and pay over the income to him, and upon his death to make over the balance to such persons, and in such shares, as should be appointed by him by his last will and testament. By his will he gave and bequeathed to defendant ‘ all the rest, residue and remainder of my estate, both real and personal property, of what nature and kind soever and wherever situate, which I may own or be in any manner entitled to at the time of my death,” Held, that this was a good execution of the power of appointment
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

      George W. Ellis, for app’lts; Henry B. Beekman, for resp’t.

       Affirming 39 St. Rep., 159.

   Andrews, J.

The will of Clermont" L. DePeyster, after giving a single legacy, provides as follows: “ I give and bequeath to my uncle John Henry Livingston all the rest, residue and remainder of my estate, both real and personal property, of what nature and kind soever and wherever situate, which I may own or be in any manner entitled to at the time of "my death.” This was a good execution of the power of appointment contained in the prior trust deed of July 11, 1887.

By § 126 of the statute of powers it is enacted that “ The lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication.”

By analogy the same rule of construction applies to wills of personal property. Cutting v. Cutting, 86 N. Y., 522; Hutton v. Benkard, 92 id., 295.

There is no intent expressed in the will that it shall not operate as an execution of the power, nor does such intent appear by “ necessary implication.” The testator owned the property embraced in the trust prior and up to the time the deed was executed. He reserved therein the beneficent interest during his life and a "power of appointment by will. This was little less than ownership, and the statute for the purpose of construing a disposition by will under a power of appointment treats the subject of the power as the property of the donor of the power, and conclusively infers an intention in a testator to execute the power where the will disposes of all his property and the inference is not rebutted by express language or necessary implication.

The will in question disposed of all the testator’s property, real and personal, by the legacy and gift of all the residue. The argument that as Livingston was the heir at law of the testator, and as such would have taken all the real estate embraced in the trust deed, under the limitations therein, if there had been no will, and that it cannot be supposed that the testator intended by a will made within a month after the execution of the deed to change the title which would accrue to him thereunder into a title as devisee, or to deprive his next of kin of the benefit of the deed, is entitled to no weight under the statute. It is matter of argument merely. There is no “ necessary implication ” resulting from the language of the will or the circumstances that it was not intended to operate upon the property embraced in the power.

Nor is there anything in the fact that the gift in the will was a “ residue ” after payment of the legacy.

There was nothing in the nature of the prior dispositions, in terms or by construction, which limited the residue to property of which the testator was the absolute owner.

The conclusion of the court below should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Sherman, S.

text:
    In the Matter of the Estate of Ira L. Gates, Dec’d.

      (Surrogate’s Court, Chautauqua County,

      Filed March 9, 1892.)

    Judgment—Lien of justice’s judgment eiled in office of county clebk —Code Civ. Pbo., § 1880.
    James Matteson recovered a judgment against the decedent before a justice of the peace of Chautauqua county, which was docketed in the county clerk’s office on transcript filed July 3,1878, and such judgment thereupon became a lien on land of decedent, who died intestate December 13, 1884, leaving no personal property to pay the judgment. The judgment creditor petitioned the surrogates court for leave to issue execution and sell the lands. Opposed by Hiram Putnam, subsequent mortgagee of same lands, claiming the judgment outlawed, and the lien thereof extinguished by lapse of time. Letters of administration were issued upon the estate of decedent September 13, 1888, and the administrator was duly discharged January 4, 1890. Wield, that although the judgment was outlawed, and more than ten years had elapsed after docketing thereof, yet in this case, under § 1380 of the Code, the lien thereof was continued three years and six months from issuing letters of administration; that the meaning of the word “ thereafter,” as used in the third sentence of said section, relates back to the issuing of letters of administration and not to date of decedent’s death.
    Application for decree to issue execution to sell lands of decedent.

      George H. Frost, for Matteson, the judgment creditor; M. M. Allen and J. G. Record,• for Putnam, subsequent mortgagee.
   Sherman, S.

Judgment for $184.54 was duly recovered June 25, 1878, in favor of James Matteson against the decedent, Ira L. Gates, before a justice of the peace of Chautauqua county, on which a transcript was duly made by such justice and filed, and judgment duly entered and docketed thereon for $185.29 in the clerk’s office of said county on July 3d of same year. No part of the judgment has been paid, or execution issued to collect it, and same thereupon became a lien on the lands of the decedent described in the petition herein. Soon thereafter the said Ira L. Gates gave a mortgage for $1,000 on same lands, which was duly recorded, to said Hiram Putnam, which remains unpaid.

The decedent, on December 13, 1884, being six years and five months after the judgment was docketed, died intestate, leaving no personal property to pay the judgment or other debts owing by him at his decease. An administrator was duly appointed of his estate on September 13, 1888, who settled the estate as such, and was duly discharged January 4, 1890. The order granting leave herein to issue execution being made March 9, 1892, and execution issued to sell said lands only a few days less than three years and six months after granting the letters of administration.

It was claimed by the learned counsel for the mortgagee on the trial herein, and denied by the petitioner, that the judgment was outlawed. The petitioner claimed that the lien of judgment would not expire until March 13, 1892, being three years and six months after letters of administration were granted. The mortgagee claimed that such lien expired June 13, 1888, being three years and six months from death of intestate on December 13, 1884.

The important question in this case arises on construction to be given to the meaning of the word “ thereafter ” in the third sentence of § 1380 of the Code, whether, in the connection used, it means three years and six months after letters of administration were issued, or same length of time after death of decedent. If the latter, the lien had already expired; if the former, it has not.

Such section reads as follows:

“ Section 1380. After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate’s court of this state, which has duly granted letters testamentary, or letters of administration, upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent’s death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll. But where the decedent died intestate, and letters of administration upon .his estate have not been granted within three years after his death by the surrogates court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate’s court of the county in which the property on which the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment existing at the decedent’s death continues for three years and six months as aforesaid. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed, by the deceased judgment debtor during his life time, if such conveyance was made in fraud of his creditors, or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of - any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced as aforesaid, and shall endorse on said execution the words 1 issued under section thirteen hundred and eighty of the Code of Civil Procedure,’ whereupon said sheriff shall enforce said execution as therein directed against the property so described, and not against any other property, either real or -personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto.”

By the first part of the third sentence of above section the order of the county court or decree of surrogate cannot be made nor execution issued until the expiration of three years after letters testamentary or of administration have been grantdd. And immediately following in the same sentence are these words, “ and for that purpose such a lien existing at the decedent’s death continues for three years and six months 1 thereafter,’ notwithstanding the previous expiration of ten years from the filing of the judgment roll.”

These provisions were undoubtedly made to enable the administrator or executor to make an inventory of the personal property, and ascertain whether the judgment or any part thereof could be paid or satisfied from the personal property. And it is quite clear that the words, existing at the decedent’s death,” are here used only as qualifying words as to the time such lien must commence, and not otherwise in any way affecting the limitation of the time from three years and six months from granting of letters. This view is confirmed by the remaining sentences of said § 1380, providing for cases in which, under the circumstances therein named, leave to issue execution may be granted, where letters have been issued, and limiting the last sentence of such section as follows: in such case the lien of the judgment existing at the decedent’s death continues for three years and six months as aforesaid.”

There is no time limited by the Code or practice in which letters of administration may be issued after the decedent’s death. If not issued in three years after such death, they may be issued thereafter upon the petition of any creditor, next of kin or other person interested in the estate contingently or otherwise.

Bearing in mind that no order for leave to issue execution can be made under § 1380 in less than three years after letters testamentary or of administration have been granted and such leave is obtained by § 1381 of Code, which expressly provides that notice of application for leave to issue execution “ must be given to the executor or administrator.”

Suppose the next of kin or creditors neglect to obtain such letters, as in this case, until about the time or after the three years and six months have expired from the death of decedent, instead of same time after letters have issued, the latter time dating from issuing of letters is wisely provided for in the construction of the word “ thereafter,” as claimed by the petitioner, so as to give reasonable time to examine the condition of the personal estate and make an inventory absolutely necessary to ascertain the value of the personal property that may be applied in payment of the judgment or some part thereof, whereas in the former case no such remedy would exist.

If the meaning of the word “ thereafter ” is as claimed by the mortgagee as used in § 1380, why should the words “ as aforesaid ” have been used at the close of the last sentence of said section in place of the word thereafter,” so the sentence would read, “ In such case the lien of the judgment existing at the decedent’s death continued three years and six months thereafter ” instead of “as aforesaid,” and thereby giving such sentence a meaning as claimed by the mortgagee.

The question is new and I have been unable to find any authority bearing upon it except the decision of the learned county judge of Chautauqua county, granting an order a few days since in this case upon the same facts as herein, for leave to issue an execution to collect the judgment in question by sale of said land.

I do not think that the case of Platt v. Platt, 15 St. Rep., 217, cited by the counsel for the mortgagee, is in point, as the precise question here involved was not in it.

The following authorities were cited .by counsel as bearing upon the questions raised: Townsend v. Tolhurst, 32 St. Rep., 21, and cases therein cited; Code, §§ 1251, 1377, 1381, 1379 and 3017; Matter of Holmes, 36 St. Rep., 535, Waltermire v. Westover 14 N. Y., 16.

I direct decree for leave to issue execution to sell the land as prayed for in the petition.


author: Bookstaver, J.

text:
    James A. Flack, Late Sheriff, Resp’t, v. Samuel Thaxter et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Indemnitors—Liability of.
    A covenant oí indemnity against a future judgment is broken by the recovery of a judgment; the cause of action against the indemnitors is complete at that moment, and they are precluded from setting up any defense except that of fraudulent collusion for the purpose of charging the surety.
    3. Same—Effect of direction to return property to claimant.
    By the commencement of an action against a sheriff for conversion of goods wrongfully levied on, the claimants relinquish all title and ownership to the goods in question, and vest the same in the sheriff, after which he cannot be required by his indemnitors to return the goods, and his refusal cannot affect his right to recover from them.

      Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict of a jury.

      Beliz & Large, for app’lts ; David Tim, for resp’t.
   Bookstaver, J.

Action on a bond of indemnity. In May, 1889, Stiekney, Conyngham & Co. began an action in the city court against Henry Steinbrouck, Sr. to recover $200, wherein a warrant of attachment was issued against the property of Steinbrouck and directed and delivered to the plaintiff as sheriff for execution. By the direction of the attaching creditors two levies were made under the warrant on horses, trucks, harness, shovels, etc. This property' was claimed by- Steinbrouck, Jr., and one Kemler; notice of the claim was given to the creditors. They requested the plaintiff as sheriff to retain and sell, the property levied on and the defendants in this action indemnified him against that claim. On receiving the indemnity bond the sheriff refused to return the property. For these levies and this refusal to return the property the claimants brought two actions in conversion in this court for the two separate levies directed by the creditors, which were subsequenty consolidated, and after trial of the consolidated action obtained a verdict for the value of the property levied on under the creditors’ direction, and for nothing else, as appears by the finding of the jury contained in the judgment roll in that action. This action was brought in the city court to recover from the indemnitors the amount of that judgment and counsel fees in defending the action.

The bond sued on was given, among other things, to save the sheriff harmless from just such a judgment as that obtained against him. The judgment was not for any negligence, oppression or fraudulent act committed by him, nor for any malfeasance or misfeasance in office, but simply for the value of the goods taken by him under the creditors’ direction. This would seem to be conclusive of the plaintiff’s right to a recovery in this action, and to bring it squarely within, Conner v Reeves, 103 N. Y., 527; 4 St. Rep., 216, where" Andrews, J., said, p. 529: “The undertaking was not against damage merely, but was an indemnity against liability by judgment as well. By the general rule of the law a covenant of indemnity against a future judgment, charge or liability is broken by the recovery of a judgment or the fixing of a charge or liability in the matter to which the covenant relates. When the covenant is one of indemnity against the recovery of a judgment the cause of action is complete the moment the judgment is recovered, and an action for damages may be immediately maintained thereon measured by the amount of the judgment, and this, although the judgment has not been paid by the covenantee, and although the covenantor was not a party or had no notice of the former action. The covenantor in the action on a covenant of general indemnity against judgments is concluded by the judgment recovered against the covenantee from questioning the existence or extent of the covenantee’s liability in the action in which it was rendered. The recovery of a judgment is the event against which he covenanted, and it would contravene the manifest intention and purpose of the indemnity to make the right ■of the covenantee to depend upon the result of the retrial of an issue .which, as against the covenantee, had been conclusively determined in the former action . always, however, saving the right, ns the law must in every case where the suit is between third persons, to contest the proceedings on the ground of fraudulent collusion for the purpose of charging the surety "

In this case there is no question of fraud or collusion raised, .and indeed it would have been strange if there had been, for the same attorneys appeared on the trial of that action against the sheriff who appear for the defendants in this action.

From the case made, it appears that the levy was made about the 17th of May, 1889, and an order was made by the city court on the 22nd June, 1889, for the sale of the horses as perishable property on the 28th of that month, which was done, oand the sale realized enough to pay the anticipated judgment and costs. The residue of the property remained in a stable which the defendants, on the trial, conceded was a proper place for their storage, until they were destroyed by fire in July. 1889, which occurred through no negligence on the part of the plaintiff

But appellants contend that after the sale of the horses, when it was ascertained that enough had been realized to satisfy any judgment which might be recovered m the action in which the attachment was issued, the plaintiff was guilty of some negligence m not making a disposition of the remainder of the property, so that he ought not to recover for that which was lost by the fire What this negligence consisted m they do not point out with clearness They claim among other things that he •ought to have returned the property to the claimants as directed by them. But some two or three weeks before the sale of the horses the claimants had commenced two actions against him for the conversion of this very property By the commencement of such actions against the sheriff, the claimants relinquished all title and ownership to the goods in question and vested the same in the sheriff, and it thereby became his property This was the manifest intention of the indemnitors when they executed and -delivered the bond of indemnity to him. He was not bound to return the goqds to the claimant thereafter, even if requested so to do by the indemnitor. There is considerable dispute in the ease whether there was any attempt made on the part of the sheriff to carry out the direction of the plaintiff's attorney in this respect, but we do not think that is material, as it is clear that the tender of the goods to the claimants would have affected nothing unless they had been willing to receive them. Dyett v. Hyman, 37 St. Rep., 251, and cases there cited.

How, as the event turned out, the indemnitors were as much wrongdoers as the sheriff in directing the levies in question, as the property levied upon turned out not to be the attachment debtor's property It was, therefore, as much their duty as the sheriff’s to mitigate the damages arising from the levy. In fact it was moré. He had only obeyed their instruction in the matter. Had his judgment as to the sufficiency of the first levy been acquiesced in by the creditors, there probably would havé been not more property levied on than sufficient to satisfy the anticipated judgment and costs. That there was an excess of goods in. his hands was occasioned by the direction of the creditors to-make a further levy, and for this they made themselves-responsible, and we think they ought to have taken such steps as-they might have been advised m order to lessen the damages as much as possible m the event of a recovery by the claimants in the actions instituted by them.

There’ is no evidence m the case.that they gave any other-directions to the plaintiff than to return the goods There is no evidence that they negotiated with the claimants for this return. There is no evidence that the claimants would have accepted the-goods if tendered to them m due form. Merely because the sheriff was «a public officer imposed no duty in this respect upon him which was not eq ually incumbent upon them'. They cannot complain of his negligence if they themselves were guilty of the same negligence. .

The cases cited by the appellants to show that indemnitors are-not responsible for every act of the sheriff do not support their contention m this case Witowski v Brennan, 41 Supr. Ct., 284, was an action brought for damages in the removal of goods and for taking away and not returning, the merchandise levied on ; in other words, for malfeasance in office. In O’Donohue v. Simmons, 31 Hun, 267, it was held that the trial court erred in not submitting to the jury the question as to whether or not the judgment against the sheriff was not recovered in part for his unlawful oppression or illegal acts not covered by the execution of the bond of indemnity The charge in that- case being that the sheriff has been guilty of malfeasance and misfeasance in office

In Bowe v Wilkins, 105 N Y , 322 , 7 St. Rep., 538, the sheriff levied upon property under an attachment which was there-. after vacated, and the sheriff, without the knowledge or assent of the obligors, refused to surrender the property on demand, and subsequently sold it upon an execution m violation of his duty. In Clark v Woodruff, 83 N Y , 518, the sheriff levied on goods after a bond of indemnity was executed and endeavored to have the bond cover those goods, which of course it could not.

This case differs from those m that the bond given by the defendant was to protect the sheriff and save him harmless against any judgment that might be obtained against him for the detention of the goods -against the demand of the claimants. In the performance of this duty, as far as we see, he committed no oppressive or illegal act, and was not guilty of misconduct not covered by the bond.

We do not understand that the appellants contend that the sheriff was guilty of any negligence in regard to the loss of goods by fire. It they do so, we think such contention could not prevail, as he was bound to exercise only ordinary diligence m taking care of property levied on, such as every person of common prudence capable of governing a family takes of his own Conceras. Moore v. Westervelt, 27 N. Y. 234; Browning v. Hanford, 5 Hill, 588. It has been held that a sheriff was not an insurer of goods which he has seized under execution and that his general liability is the same as that of a bailee for hire. See also Jenner v. Joliffe, 6 Johns., 9-

It is contended on the part of the appellants that the counsel fees allowed by the jury were excessive, because the plaintiff was guilty of some negligence in not consolidating the two actions sooner. But the evidence was all before the jury and the amount which they found we think is consistent with the testimony and. conclusive upon us upon this appeal.

These views lead us to the conclusion that there was no error committed by the court below either m directing the jury to find the amount of the judgment entered m this court against the sheriff, or m its refusal to submit the question of negligence to the jury, or m its refusal to direct them to deduct the value of the goods lost m the fire from that judgment, and that the judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.