author: Pratt, J.: Gilbert, J.

text:
    In the Matter of the Application of the KINGS COUNTY ELEVATED RAILWAY COMPANY.

      Sapid Transit — chap. 606 of 1875 — General Term in passing upon the report of its commissioners must examine the whole case on the merits —■ Verification of application to mayor — •when sufficient — Mayor's commissioners may report in favor of a road to transport freight, though the application aslcs for a passenger road only — Consent of municipal authority — when it must he given — Refusal of common council does not hind its successors.

    Upon the application of fifty tax-payers of the city of Brooklyn, the mayor thereof, in pursuance of chapter 606 of 1875, appointed commissioners to determine upon the necessity of constructing an elevated railway therein, and to determine the route thereof. The commissioners having determined that an elevated road should be built therein, and having located its route, and the property owners having refused to consent thereto, the General Term appointed commissioners, who reported in favor of the construction of the said road, and the adoption of the said route.
    Upon a motion to confirm the report of the commissioners appointed by the General Term, held, that it was the duty of the General Term in passing upon the report of its commissioners to examine the whole case upon its merits, and to do what the property owner's ought to have consented to have had done. i. e., to confirm the report if the scheme could be accomplished with equity and fairness, and to refuse to confirm it if that could not be done. (Gilbert, J., dissenting.)

      That in determining- this question the degree of public benefit which was likely to result, and the amount of private injury that would be inflicted upon the abutting owners if the scheme should be carried into effect, were to be considered, and if the court was satisfied that the injury to be inflicted upon jorivate property and rights would be so great and widespread, as to clearly over-balance all possible .benefits to be derived from the construction of the road, the General Term should refuse to confirm the report. (Gilbert, J., dissenting.)
    The application made to the mayor for the appointment of commissioners to determine upon the necessity of constructing an elevated railway, and locating its route, was signed by the applicants, and an affidavit made by one of them was annexed to it, in which he stated that he saw the several persons sign the petition; that he knew each of them, and knew their signatures to be genuine; “ that he has read the foregoing petition and knows the contents thereof, and that the same ar-e true to his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes to be true.”

      Held, that this was a sufficient compliance with the provision of section 1 of chapter 606 of 1875, requiring the petition to be “verified.” (Per Gilbert, J.)
    Where the application to the mayor asks for the appointment of commissioners to determine upon the necessity of an elevated railway for the transportation of x>assengers only, the commissioners appointed in pursuance thereof may report in favor of constructing a railway for the transportation of mails and freight as well as of passengers. (Per Gilbert, J.)
    After the appointment of the mayoi’’s commissioners, and before the formation of the elevated railway corporation authorized by them, the common council of the city of Brooklyn passed a resolution refusing to consent to the erection of steam railways on any of the routes selected by the commissioners.

      Held, that this did not prevent the confirmation of the report made by the commissioners appointed by the General Term, because the action of the common council was premature, as the only corporation authorized to construct the road was not then in existence.
    That in any event, the common council had no power to bind itself, or its successors, so as to preclude the exercise of the legislative functions entrusted to it by the act of 1875. (Per Gilbert, J.)
    Right of the commissioners to give the company the right to select one of several alternative routes, and the effect of the commissioners not fixing any time within which the railroad was to be completed, considered.
    MotioN to confirm the report of commissioners appointed by the General Term, under chapter 606 of 1875, to report .upon the construction and location of an elevated-railway in the city of Brooklyn.
    Upon the application of fifty tax-payers of the. city of Brooklyn the mayor thereof appointed five commissioners to determine upon the necessity of constructing an elevated railway therein and to determine the route thereof. The commissioners having reported in favor of the construction of a road, and determined its route, the property owners refused to consent to it. Thereupon, on the application of the Kings County Elevated Railway Company, the the General Term appointed three commissioners, who reported in favor of the construction of the road, and it was their report which was now sought to be confirmed.
    The application to the mayor was signed by the applicants, and attached to it was an affidavit, sworn to by one of the signers before a justice of the Supreme Court, in which he states that he saw the several persons whose names were affixed to the petition sign the same ; that he knows each and every of them, and that such signatures are genuine ; “ that he has read the foregoing petition and knows the contents thereof, and that the same are true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes to be true.”
    After the appointment of the mayor’s commissioners, and after they had determined upon the necessity of constructing an elevated railway, and determined upon its route, and before the organization of the corporation by which such road was to be constructed and operated, the common council of Brooklyn passed a resolution refusing to grant its consent to locate steam railways on any and all of the routes fixed by the commissioners.
    In July, 1879, the General Term made an order confirming the report of the commissioners, DyicmaN, J., delivering the opinion, which is reported in 18 Hun, 378.
    It appears that the motion to confirm the report had been made and heard at a General Term, when three judges were present. No decision was then made, and the General Term adjourned to a subsequent day. In the meantime one of the judges loft for Europe, and was not present upon the adjourned day. On that day a memorandum was filed with the clerk of the court, the same as if all the judges who had heard the motion were present, stating that the report of the commission was confirmed, one of the justices present writing an opinion in favor of confirmation, and the other dissenting. Upon a motion made to vacate the order of confirmation, and to amend the record so as to show that one of the justices was not present, an order was granted correcting the minutes, by stating that such justice was not present at the court when the decision was made; that the justice not there had sent to the chief justice a declaration or statement in writing that the said report should be confirmed; that there was no written concurrence of such absent justice in the opinion written, and no personal consultation with either of the justices present, with the justice who was not, prior to or at the time of the entry of the order of confirmation. The order denied the motion .to vacate the order of confirmation. Upon an appeal therefrom, the Court of Appeals held that the decision of the General Term was wrongfully made, as the two justices who were present did not concur in making it, and as the third had not con-' suited with them or either of them, and ordered that the case should be sent back to be reargued.
    Upon such reargument this decision was made.

      Henry J. Scuddér and James Emotl, of counsel, and Gilbert and Qameron, attorneys for the Kings County Elevated R. R. Co.

      William C. De Witt, for the owners on Fulton street.

      Winchester Britton, on behalf of owners fronting on Myrtle avenue.

      Edgar M. Qullen, attorney for himself and E. M. Cullen.

      B. F. Tracy, in opposition to motion to confirm.
   Pratt, J.:

The determination of the commissioners which this court is now asked to confirm is to the effect that an elevated railway, according to the specified plans, etc., ought to be constructed and operated upon the following streets and avenues in the .city of Brooklyn : Fulton street, Water street, Adams street, Myrtle avenue, Broadway, Washington street, Hudson street, Flatbush avenue, Fourth avenue, Atlantic avenue, Hamilton avenue, Prospect avenue, Ninth avenue, Nostrand avenue, Lexington avenue, Franklin avenue, Twelfth avenue, Division avenue, North Fifteenth street, Green street, Meserole avenue, Franklin street, Commercial street, Manhattan avenue, Sands street, Prospect street, York street and Main street.

A few of these streets are devoted to the purpose in view, for short distances, but nearly all of them are to be invaded throughout them entire length by the projected railway. This list includes all the principal thoroughfares of the city. On one of the streets named, property of the assessed value of $15,000,000 is situated, and, doubtless, moré than $50,000,000 in value of real estate would be immediately and most seriously affected by the construction of the entire railway as laid out by the commissioners.

It appears that tho descriptions .contained in the title deeds upon one of the principal streets are such as to give only a small portion of the present owners any claim to the land beyond the sides of the street, and, no doubt can be entertained but that most of the property on all the other streets is in a similar situation.

The structure proposed to be erected is to have its pillars within the curb line, and its cross-girders to cover with trestle work, the entire roadway of each street.

Two streets are given in the alternative. In one of them the construction is dependent upon a future contingency, and upon others it is postponed. In some cases no time whatever is fixed for its completion, thus giving to the company the whole period of its chartered life in which to carry out the plan proposed.

While it is apparent that so extensive a project must make a wonderful' change in the city at large, and entail incalculable damage to some of the abutting property, no adequate provision has been made for any contribution to the city treasury for the enjoyment of this valuable franchise, and the owners of private property are left for indemnity exclusively to proceedings at law, under a system of jurisprudence not yet adapted to such an exercise of the power of eminent domain.

It is proper to consider not only tho inevitable consequences that will result from the construction and operation of this road, as mapped out before us, as an entire scheme, but those also which will result from the possession by the railroad company of the right without the obligation to build.

Here is a proposition to do a thing which certainly will affect property one way or the other. It may benefit some. It may injure some. If the company was bound to build certain advantages might arise to the property affected which might offset the disadvantages. But the right to build is in the nature of an easement, and a cloud upon all the property situated upon such streets. It would injuriously affect its sale in the market and prevent permanent improvements thereon. This corporation has the option literally to gridiron the city of Brooklyn with a •structure sufficiently strong and cumbersome for a freight railway. It may impair the property; it will embarrass if not prevent rival enterprises and thus fasten upon the community all the evils of a gigantic monopoly.

It is questionable if the scheme proposed would be a public ■improvement. Is it not -true that so many advantages given to this company, and so many.burdens placed upon the property owners by this scheme, will render it, as a whole, rather a public misfortune than a benefit ? Will it not retard, rather than advance any system of rapid transit which shall fairly distribute its advantages among all our citizens ?

Is it said that these views affect the public interests rather than the private rights of the abutting owners ? This may be true in one sense, but it nevertheless shows that the public interests are in harmony with the rights of the owners upon these streets which are to be incumbered by the option, without the benefit of the obligation to build this road. While some of these questions were properly submitted to the commissioners appointed by the mayor and the' common, council, they may be all considered by the court in determining whether the benefits to accrue from building this road outweigh the damage likely to result to abutting owners and the public.

We come now to the question of the duty and power of the court in respect to this proceeding. It is with a good deal of hesitation that I have come to the conclusion that it is our duty to examine the merits of the question presented, and to give or withhold confirmation, as shall seem wisest to us under all the circumstances.

Assuming that an elevated road is a necessity, that the routes are proper and that the scheme has progressed substantially as required by the statute, to the point where our confirmation is required to enable the corporation to go on with the construction of tbe road, and assuming, further, that this court can act in this matter only in a judicial capacity, I am not satisfied that the weight of evidence, as it appears before us, sustains the determination made by our commissioners.

It is true that many opinions and prophecies were indulged upon the hearing below, but even these related almost entirely to a very few streets, and were favorable, not especially to the entire scheme, but to rapid transit generally upon certain streets named. There is scarcely anything in the case (excluding the actual inspection made by the commissioners) which rises to the dignity of evidence in favor of this report. On the other hand the evidence is abundant and conclusive that the proposed scheme, if carried out, will result in irreparable public and private injury.

It is not necessary to quote the testimony; It is only necessary to distinguish the statements in favor of rapid transit generally from those in favor of this particular plan, to see that the determination of the commissioners is not in accordance with the weight of evidence. Can it be said that the evidence furnished by the inspection of the proposed routes by the commissioners should outweigh the sworn testimony of witnesses with equal or superior means of knowledge ? If that is the law, it would follow that in no case where the senses of the commissioners are made to testify could the court interfere to reverse their report upon the facts ?

The general rule is that the court will not review the decision of a commission as to the value of property requiring personal inspection, examination of witnesses and knowledge of the amount, character and situation of property taken; but this rule which arises out of the necessities of a multitude of controversies and dependent for a just settlement upon a minute investigation into details, was adopted in furtherance of justice, and not with a design to deprive the court of an exercise of its own judgment upon any great question of public policy squarely presented, or to prevent the court from rejecting a report leading to an undoubted private or public wrong.

“ Suppose, for example, this report had embraced every street in the city, could it be denied that the court could look into the merits and reverse a determination so manifestly wrong ? If this power exists in an extreme case, it exists also in one where the injuries and advantages are more evenly .balanced.

But it is not clear that we are acting in this matter purely in a judicial capacity. * This is not analogous to- a proceeding to condemn lands for railroads, streets or other public purposes. In these cases the power of eminent domain has already been exercised, and nothing is left for the courts but to assess by commissioners the amount of compensation to be paid. Take the case of a railroad company applying for a commission to assess damage for land required by it. The law has already conferred' upon the company the right to take the land necessary for its corporate purposes; but in this case the legislative grant of power to build the road has not been made. The condition («. e., the consent of' the property owners) has not been performed.

The appropriation of property for railway purposes is an exercise of the right of eminent domain. The power to exercise this right resides in the Legislature. It may be delegated by general laws to certain officers. An illustration of this is furnished in this matter where the question of the necessity of an elevated railroad and the details of its organization is delegated to commissioners to be appointed by the mayor.

The exercise of this right always involves compensation for property actually taken. The means by which the compensation is to be ascertained and made are judicial, but the determination of the necessity for the exercise of the power and the act of taking are not judicial acts, and cannot be made so by delegating the authority to decide this question to a court, to its judges or to their appointees.

If this is an administrative question and is so involved with danger to private rights and property that, from motives of public policy, the Legislature decided that, the approval of the General Term of the Supreme Court should be obtained, as a substitute for the consent of the property owners, before the right to construct the railway shall accrue, then it follows that the court, in determining the question, is bound to consider all the merits involved, and to do what the property ■ owners ought to have done, i. e., to confirm, if. the scheme can be accomplished with equity aud fairness, and to refuse, if that cannot be done.

In determining the intent of the people, as expressed in the constitutional provision upon this subject, it is important to keep in view the rule of law which existed at the time of its adoption, viz.: That only those whose property was actually taken could claim damages resulting from the exercise of the power of eminent domain. It was in view of this anomalous condition of the law that the constitutional provision and the rapid transit act were passed. They recognize the fact that rapid transit would be confined chiefly to the cities where the streets are in some instances owned by the municipal corporation, and are also under the control of the municipal authorities, and where the anomalous condition of things was most likely to operate with the utmost rigor upon private rights.

Recognizing the difficulties, the Legislature say by this enactment: We will not permit any corporation to build an elevated road along a pu’blic street upon the simple consent of the public authorities. We recognize the rights of the owners of abutting property, and the legislative power of eminent domain shall not be employed without the consent of at least one-half of these parties who are to be the most deeply affected thereby.

It is not the consent of the commissioners appointed by the mayor, nor the consent of the street authorities, nor yet the consent of the property owners which constitute the condition precedent to the legislative consent. It consists in a concurrence of all these elements. The consent of the last is as essential as all the rest. Hitherto the consent of the street authorities or the Legislature was enough, and the property owners were left to their remedy at law, if any they had; but that is not enough. The property owners must consent before the legislative authority attaches to the scheme. It therefore follows that before the consent of the property owners or its equivalent is obtained no question, except a purely legislative one, can arise.

The motive for this condition was the protection of the property owner from threatened injury to his property without a certainty of a remedy. This act recognizes the legislative power to legalize a structure which would otherwise be a nuisance. This is a power to inflict a remediless injury. It recognizes, also, the possible need of new and advisable improvements of this character.

In balancing the possible private dangers against probable public advantages of such improvement, the Legislature refers the ‘Flatter of its awn consent to the parties who are likely to .suffer, and arbitrarily provides that, if half of them approve, the plan may be executed. If they refuse, then the scheme is defeated until the justices of this court, among others, shall consent for them and in their place. In the light of these considerations, what is the substitute for this consent ? Does it consist in the determination of the commissioners, or in two things, both as much as either, to wit; the determination of the commissioners and the confirmation by the General Term ?

' There must be the determination and confirmation before the legislative consent is given. It is in this respect precisely as if the Legislature had authorized its own commissioners, instead of the mayor’s appointees, to examine the question of necessity to adopt plans, etc., and report the same back to the Legislature for its action. • In such case it is plain that until the Legislature itself consented to the building of the road, no judicial function could be exercised. If these views are correct, the act of confirmation precedes any judicial function.

It may be farther observed, that the clauses of this act which prescribe the duties of the mayor’s commissioners contain no provision for the confirmation of their determination. Their decision, upon whatever is delegated to them, is final and complete. This shows that the act of our commissioners was incomplete and worthless, until this court had determined the question for itself. Our “ confirmation ” is required. This is not a mere perfunctory duty, but implies an examination of the whole subject by which alone we are enabled intelligently to ratify or disaffirm their determination.

The confirmation of this court is a power reserved by the Constitution, upon the exercise of which the legislative authority to construct the road depends. Considering the question in this view, and adopting the determination of the mayor’s commissioners as if the same was embodied in a legislative enactment, it seems our duty to decide, as the Legislature might do if the question was referred back to that body for determination, whether a sound public policy requires a confirmation of this report.

The degree of public benefit which is likely to result and the amount of private injury which will be inflicted upon abutting owners from this scheme, if sanctioned, .and a comparison of these matters of fact are material elements in this determination. If the court is satisfied that the injury to be' inflicted upon private property and rights is so great and widespread as to clearly overbalance all possible benefits to be derived from its construction, then confirmation ought to be refused.

It is too apparent to require argument that a person may be grossly injured in his property when none of his legal rights are invaded. A familiar illustration is the building and operation of a street railway. But, in the case of the illustration put, the injury is very limited in extent as compared with that which this rapid transit project will entail. The noise, obstruction, deprivation of light and air and other kindred annoyances, will subject many private owners abutting the proposed routes to enormous losses .for which no compensation is provided.

It seems to us, whether we view this proceeding upon the evidence, in a judicial capacity, or in a broader sense of legislative commission, that the construction and operation of this road, under the proposed plan, will inflict injuries upon the property in front of which it will pass to such an extent as to outweigh the public interest and necessities in having this scheme carried out.

The constitutional provision and rapid transit act have been, carefully considered in the N. Y. Elevated R. R. Case, and the meaning thereof fully declared, except as to the question of the power of the General Term to examine and pass upon the merits of the report of its commissioners. The General Term in that case did confirm the report upon the merits.

It is not necessary to advert to the technical questions raised on this motion, as the foregoing views, if correct, are decisive of the whole matter. As this is a matter of great public concern, we deem it not improper to say that we are fully alive to the need of rapid transit in this city, and anxious that its citizens may enjoy all its advantages at the earliest practicable moment; but we cannot acquiesce in a wholesale surrender of so many important highways to so burdensome a structure, and in allowing the petitioner ninety-nine years in which to finish it, unaccompanied with any terms for the benefit or security of the public and private interests involved.

BARNARD, P. J., concurred.

Gilbert, J.

(dissenting).

This is a motion to confirm the determination of the commissioners appointed by this court in the above entitled matter, namely, that the railway named ought to be constructed. The motion was properly made by the railway company, and it was made at a proper time. (Elevated R. R. Cases, 70 N. Y., 327, et seq.)

The principal objections to such confirmation, are : 1. That said railway would inflict great and irreparable injury upon the -interests of the owners of the property which abuts upon the streets selected for the routes thereof, and upon the public interests of the city of Brooklyn ; and 2. That the proceedings of the commissioners appointed by the mayor of said city to fix and determine the routes of said railway were not, in several particulars, comformable to the statute under which they acted. No complaint has been made of the conduct of the commissioners of the court, or of their proceedings in any material respect.

It seems to me to be sufficient to say, in regard to the first objection, that the public authorities, to whom the constitution has specially confided the defence of the public interests involved in this subject, have consented to the construction of the railway, and that the mayor’s commission, a body specially selected pursuant to law and which the Legislature interposed as a protection of both public and private interests, determined that there is a necessity for the railway in question. That determination is equivalent to one made by the Legislature. Such is plainly the effect of the statute which governs the subject, and so the Court of Appeals held in the New York Elevated Railway Case (70 N. Y., 344). Neither the constitution nor any statute has conferred upon the court the power of reviewing that determination. The determination of the commissioners' of this court that such, railway ought to be constructed should, therefore, be confirmed, unless we have power to review the evidence before us, and such evidence is sufficient to show that, although a necessity exists for some elevated railway, the particular one in question ought not to be constructed. I think that the evidence is quite insufficient for that purpose. It rests principally upon opinions in respect to the consequences which it is supposed will follow the construction of a railway not yet begun. Such opinions are rather in the nature of prophecy than of evidence. Nor is there a balance of opinion against the determination of the commissioners. On the contrary, the preponderance of testimony (if testimony it can be called) is the other way. The record discloses an entire unanimity of opinion in favor of “rapid transit,” and all, or nearly all, the witnesses agree that it would be beneficial to the city. The gist of the objection appears to be to the location of a steam railway in some of the streets selected by the mayor’s commission. n But it is apparent that if the construction of the railway through the streets selected would produce the consequences apprehended, a construction of such a railway in other streets would produce similar consequences. The injury to private owners and to the public interests, if any should accrue, would be varied in degree only ; so that this objection after all is merely an appeal for the protection of one set of interests at the expense of others. For the court could not lawfully frustrate the statute which authorizes the construction of elevated railways by making a decision which, if carried to its logical consequence, would exclude railways from the city entirely. The sustaining of this objection could create a precedent which, if followed, would produce that result. It is ui’ged that the absence of any provision for compensating abutting owners is a good reason why the report shoiild not be confirmed. The answer to this suggestion is : (1.) That the constitution provides that no private property can be taken for the use of the railway, without making compensation therefor ; and (2.) That if the constitution does not entitle the owners to compensation for property injuriously affected, but not actually taken (a question which we are not called upon to decide), the lack of any provision for compensating them is attributable to the Legislature alone. In the absence of a constitutional requirement on this subject, it was the province of the Legislature exclusively to determine whether compensation should be made or not. To hold that the statute ought not to be enforced, because the Legislature failed in their duty by omitting a provision for compensation, would be an unwarrantable assumption of legislative functions. The argument that the power conferred upon the court was intended as a shield against reckless or corrupt legislation is, I think, unfounded. The intention to make such a fundamental change in the distribution of powers by the constitution is nowhere manifested. The language of the amendment of the constitution in 1875 is perfectly plain, and it affords no coimtenance to the idea that such a fundamental change was intended by the people. The proceedings of the bodies, under whose auspices the amendment was framed, are not satisfactory guides to any interpretation thereof different from that which the words import. For, as the constitution does not derive its force from the body which framed, but from the people who adopted it, the intent to be ascertained is that of the people, and it is not to be supposed that they adopted it in any other sense than that which is obvious to the common understanding of men. (Cool. Const. Lim., 66; Sedg. Const. Law.) I think the intention of the people is sufficiently expressed. They intended to subject the report of the commissioners of the court to the same mode of review as the law then existing had provided for analogous cases, such as the laying out of streets and parks, the establishment of railroads and boulevards, the bonding of towns, etc., etc. The power to confirm or reject the report of the commissioners arises out of a simple enlargement of the jurisdiction of the court. It was formerly held that a similar power conferred in similar terms upon the court did not enlarge its jurisdiction, but merely made its members commissioners to execute the power. Matter of Beekman St., 20 Johns., 269; Matter of Mount Morris Square, 2 Hill, 14.) But that doctrine was a long time ago exploded, and it is now settled that in executing such a power the court acts as the court established by the constitution, and not as air inferior statutory tribunal. (Striker v. Kelly, 7 Hill, 9; Matter of Canal and Walker Sts., 2 Ker., 406; Matter of New York Central and Hudson River Railroad Company, 64 N. Y.. 60.) It follows that, in reviewing the action of the commissioners, the court must exercise judicial powers only, and in determining the questions presented must be governed by the rules of law applicable to the case. It cannot act as a commission to settle engineering questions or matters of administration or of public policy. The question whether the consent of the property owners ought to be given is one of administration merely. It depends solely upon the consideration of the public advantage on the one hand, and of injury to owners of private property on the other. Such a question cannot be subjected to the operation of abstract rules of law, but in the nature of things must be determined by the judgment of practical men. To enter upon considerations of that kind would be a palpable usurpation of the functions of the two boards of commissioners. All that the court can do is to confine the commissioners within the limits of the powers conferred upon them, to decide whether their proceedings have been just, impartial and conformable to law, and whether their determination was affected by any improper evidence or by other illegal means. The language of the constitution and of the statute exclude the idea that the court may reject the determination of the commissioners honestly made, because it differs in opinion from them. Both require that the actual determination shall be made by the commissioners. The court can only confirm it; that is, make it firm or valid, or refuse to confirm it. In deciding that question the court cannot, from the nature of the case, review the exercise fairly and in good faith by the commissioners of their judgment in making their determination. Such judgment may be légally made up partly by their own observation of the routes of the railway, and partly by the testimony of witnesses and statements made before them. “ The senses of the commissioners are made to testify. The information thus acquired it is impossible to bring before the coui't of review. The commissioners, too, are selected with reference to their general knowledge, qualifying them to judge discreetly upon the matters submitted to them. Unlike a jury they are restricted to no particular sources of information. They may collect information in all the ways which a prudent man usually takes to satisfy his own mind, but at last they must be governed by their own judgment.” In reviewing their report the court can act only upon facts. There must be something like demonstration that the commissioners have fallen into error' to justify a refusal to confirm their report. (In re William and Anthony streets, 19 Wend., 694; Troy and Boston Railroad Company v. Lee, 13 Barb., 171.) Nor can the court substitute its own judgment lor that of the commissioners, no matter how strong its convictions may be that the commissioners should have come to a different conclusion. The plain language of the constitution and of the statute shows that the people and the Legislature intended that the judgment of the commissioners appointed by -the court, made conformably to law, should be final and conclusive. These propositions, I think, have been adjudicated by the Court of Appeals in the Matter of the N. Y. Elevated R. R. Co. For the court there held (70 N. Y., 359) that “ whether the benefits to follow from the construction of the road were such as to counterbalance the injury which should be done to the private interests from its operation was a question properly before both sets of commissioners, and with their determination of it the court could not, or at least ought not to interfere.” That is the precise question which is primarily involved in this case. No doubt the power which the Legislature unquestionably possesses of authorizing the construction of elevated railways, like many other powers vested in them, is liable to great abuse. But supreme power must be vested somewhere. The old question, “.who shall guard the guardian,” has not yet received a satisfactory solution in any political system. In a representative government like ours, however, the only answer that can be given to it is, that the people must rely for protection upon the power which they possess, and may exert at short intervals, of choosing the persons who shall, from time .to time, be the guardians of their rights and interests.

The next objections are of a formal kind, relating to the proceedings before the mayor and to the action of the commissioners appointed by him. I am inclined to the opinion that such objections cannot be urged at this time, but that they have been waived by the omission to raise them in opposition to the appointment of the commissioners of this court. It is not necessary, however, to dispose of these objections upon that ground, as I am of opinion that none of them are well taken.

The verification of the application to the mayor is in the form usually adopted in like cases, and was, I think, sufficient. All that the statute requires is that the application shall be verified upon oath. It does not require the oath of each applicant, as in some analogous cases, e. g., the general highway act, where a certificate by the oath of twelve reputable freeholders is required. (2 R. S. [6th ed.], 152.) No doubt the Legislature intended the same kind of verification as is required by the general railroad act, namely, one according to the rules and practice of this court. The applicants all having one and the same interest, a verification by one was a compliance with such rules and practice. The statute does not require that the application shall show that the applicants were authorized to make it. The application, it is true, is required to be made by fifty reputable householders and taxpayers, but the statute does not prescribe the means by which the mayor shall ascertain that the applicants are of that class, and it is quite improbable that the Legislature intended that each applicant should make oath respecting his own repute. The mayor determined that the applicants were reputable householders and taxpayers. I think, therefore, that it must be presumed that the mayor either knew or ascertained that fact in some legal mode, although it is not stated in the application.

It appears that the application to the' mayor showed the need of a railway for passengers only, and that the appointment of commissioners made by him had reference to such a railway. The mayor’s commissioners, however, reported in favor of a road for the transportation of mails and freight as 'well as passengers. The language of the statute is disjunctive, and authorizes the appointment of commissioners whenever it shall appear that there is need of a railroad for passengers, mails or freight. The statute does not restrict the authority of the commissioners tq a railway adapted only to the purpose specified in the application. On the contrary, it invests them with full power and authority to do and provide, all that the statute directs them to do and provide, whether the application referred to all the purposes aforesaid or only one of them. Among the powers thus conferred upon the commissioners is that of forming a corporation, and the statute grants to the corporation so formed power to convey persons and property. In short, the mayor’s commissioners have the same powers whether the application for their appointment declares the need of a railway for the transportation of passengers, mails and freight, or óf passengers only. I am of opinion, therefore, that the variance between the application and the report of the commissioners is quite immaterial.

I think that the notice inviting the submission of plans was a sufficient compliance with the statute. It is headed by the usual designation of the office of the commissioners, giving the street and the number of the building in which it is situated, and it specifies the time when they will meet to decide upon the plan or plans for the construction of the railway. The statute makes nq provision for a hearing. Any person desiring to be present at the meeting could hardly be misled respecting the place designated therefor, and as no person had a right to be heard at the meeting, I think the statute required the notice to be given merely for the purpose of apprising the public when the time for presenting plans would end, and when the commissioners would decide upon them. Moreover, such provisions in statutes are directory only, and the law does not avoid subsequent proceedings under the same statute for a non-compliance therewith. (Cool. Const. Lim., 75 and cases cited ; Ma chant v. Langworthy, , 6 Hill, 646; Striker v. Kelly, 7 id., 24; People v. Cook, 14 Barb., 290; S. C., 8 N. Y., 67.)

It is objected that the commissioners did not locate the turnouts, stations, etc., of the railway. But the statute contains no such requirement.

Another objection relates to a supposed conflict between the plan for a railway fixed by the mayor’s commissioners, and the suggestions respecting the operation of the railway at particular places made by the commissioners of this court. This objection assumes that the report of the mayor’s commission requires that crossings shall be at the same grade, thus violating the statute, governing their action; that it fixes the height of the structure at crossings and places of connection, and requires that trains upon Myrtle avenue and Fulton street shall be run upon the same tracks to and from the Fulton ferry. But that is not the case. The recommendations of the Supreme Court commissioners that crossings be upon different grades, and that certain trains be run upon independent tracks, cannot be regarded as conflicting with a plan which defines nothing upon these subjects. The Supreme Court commissioners did not exceed their authority in making such recommendation, for the power to determine that the railroad ought to be constructed includes the authority to add such necessary qualifications to the determination. That principle was decided by this court in the Matter of the N. Y. El. R. Co. (7 Hun, 243), and affirmed by the Court of Appeals (70 N. Y., 358).

I perceive no legal .ground of objection to the action of the mayor’s commissioners in giving to the railway company the option of adopting one of several alternative routes designated, or what is, in substance, the same thing, fixing two routes and then providing that if the railway, should be constructed upon one of such routes it need not be constructed upon the other. Similar action was expressly sanctioned by this court and the Court of Appeals in the New York Elevated R. R. Case (70 N. Y., 358).

It is urged that the report before us should not be confirmed because the common council of Brooklyn, in August, 1878, refused to grant its consent to the construction of the proposed railway. There are, as it seems to me, two answers to this objection : 1. When the refusal was made, no consent had been asked. The corporation which has the sole authority to construct the railway was not then in existence, and yet it alone required or could receive such consent The action of the common council at that time, therefore, was premature. 2. The common council had no power to bind itself or its successors so as to preclude the exercise of the legislative functions intrusted to that body. (Brick Church Case, 5 Cow., 538; Mayor v. Britton, 12 Abb., 367; Same v. Second Ave. R. Co., id., 364.) The case of Musser v. Fairmount, etc., R. Co. (5 Penn. Law Jour. Rep., 466), is not an authority on this subject, because in that case the act incorporating the railway company contained a proviso whereby the grant of the right to use the streets was made dependent upon the condition that the consent of the councils of the city of Philadelphia should be obtained. The act also provided that such consent should, be taken and deemed to have been given, if said councils should not, within thirty days after the passage of the act, by ordinance duly passed, signify their disapproval thereof. It will be observed that the councils were expressly authorized to pass the ordinance refusing consent, and that they were required to do so within thirty days in order to prevent the taking effect of the legislative grant. If they disapproved of the railway, it was their duty to refuse their consent within the time limited, for otherwise the grant of the right to use the streets, which was made upon condition that such consent should be obtained, would take effect. The condition attached to the grant of the right to use the streets in the case before us is the same in effect as that in the Philadelphia Case, but, it is without limitation as to the time when the consent of the public authorities may be obtained, nor are the public authorities required to act at any time in order to avoid an implication of their consent.

In the case of the Supervisors v. Galbraith (9 Otto, 214), a statute of Mississippi authorized a county to subscribe to the capital-stock of a railroad company provided that at an election, of which twenty days notice should be given, a majority of the qualified electors voting should be in favor of the subscription. The proposition when first submitted was rejected, but at a second election it was carried. The Supreme Court of the United States held as follows : “ There is no limitation as to the time when, or the number of times, the voters might be called upon to decide the question of subscription. We cannot recognize any restirction as to the latter without adding to the statute what it does not contain. Our duty is to execute the law not to make it.” To the same effect is'the case of The Society, etc., v. New London (29 Conn., 174).

The action of the common council of Brooklyn referred to was uncalled for and unnecessary to protect any right of the city. The report of the mayor's commission was transmitted to him not in obedience to a statutory requirement, for there was no such requirement, but as an act of curtsey merely. The mayor was not required or authorized, except as an act of curtesy to send the report to the common council. The document did not legally thereby come before that body for any official action thereon, and their action upon it was gratuitous and ineffectual.

There are other minor objections, all of which have been examined, but none of them deserve particular notice. Having found no tenable objection .to the confirmation of ■ the report it should be confirmed.

Present — Barnard, P. J., Gilbert and Pratt, JJ.

Report of commission not confirmed.


source: Caselaw Access Project

author: Pratt, J. :

license: Public Domain

text:
    MARGARET WATKINS, Appellant, v. THE ATLANTIC AVENUE RAILROAD COMPANY OF BROOKLYN, Respondent.

      Negligence — when a question for the jury.

    While one of the defendant’s ears was passing down a street, in the city of Brooklyn, a horse and wagon coming down a street at right angles with the street over which the car was moving ran into it and injured the plaintiff, a passenger therein, who "brought this action to recover the damages sustained thereby. The wagon was coming at a rapid rate of speed, and could have been seen, when the car reached the line of the intersecting street, at the distance of 250 feet. There was no evidence that its rate of speed increased before the collision, which occurred just before the car reached the further side of the said street. The car might have been stopped in twelve feet.

      Held, that it was error to direct a nonsuit, and that the question whether it would not have been prudent for the driver, under the circumstances, to have stopped the car should have, been submitted to the jury.
    Appeal from a judgment in favor of the defendant, entered ’upon a nonsuit directed at the circuit.
    This action was brought to recover 115,000 damages alleged to have arisen from injuries received by plaintiff while a passenger in defendant’s car.
    It appeared that on January 2, 1878, at mid-day, the plaintiff took one of defendant’s cars as a passenger. The car was one of the line which passes from Atlantic avenue, northerly, through Boorum street to Fulton avenue, in Brooklyn. At the crossing of Boerum and Sehermerhorn streets, a collision occurred between the car and a grocery wagon, drawn by one horse.

      The testimony of all the witnesses showed that the wagon was coming very rapidly, and that it struck the car with very great violence. The collision occurred as the car was near the second or northerly foot-crossing. The car, as it came to the first crossing, was going at ordinary speed.
    Other witnesses testified that the driver could have seen the wagon before his car had come within twenty feet of the southerly curb of Schermerhorn street, and before it had come within forty feet of the point of collision ; also, that he could have stopped his car within ten or twelve feet of the point at which he first saw the team.

      Alfred O. Chapin, for the appellant.

      B. F. Tracy, for the respondent.
   Pratt, J. :

When the defendant’s car reached the line of the intersecting street the horse and wagon were visible, about 250 feet away, coming at a rapid rate. There is no evidence that its rate of speed increased : yet before the car crossed the narrow street (thirty feet), the collision occurred. The car might have been stopped in twelve feet. Had that been done it is nearly certain the collision would not have taken place.

Ordinarily, the driver of a horse car would have no reason to apprehend danger from a wagon 250 feet away, and might well suppose himself justified in pursuing his route without reference to it. But, in the case at bar, where the team was proceeding at such a rate as to show that it was without control, or that no reliance could be placed upon the discretion of its driver, perhaps the prudent course for defendant’s driver to pursue would have been to stop his car and let the wagon pass in front.

Carriers of passengers are held to a high degree of care, and we think in this case the question whether such care was exercised should have been submitted to the jury.

New trial granted, costs to abide event.

BarNARd, P. J., concurred; Gilbert, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


author: Per Curiam :

text:
    WILBUR N. WICKHAM, Appellant, v. JAMES E. WICKHAM, Respondent.

      R&movalof causes into United States Cov/rts — chap. 196 0/.1867 — not repealed by chap. 137 of 1875.
    Chapter 196 of the United States Laws of 1867, providing- for the removal of causes into the United States Circuit Courts, was not repealed by chapter 137 of the Laws of 1875. '
    Appeal from an order made at Special Term vacating a prior ex fiarte order, removing this case into the United States -Circuit ■Court. The motion to remove the case was based on chapter 196, Laws of United States of 1867 (sub. 3 of § 639 of U. S. Revised Statutes), allowing a removal in suits between citizens of different States, when the applicant for removal believes that from prejudice or local influence he will not be able to obtain justice in the State court.

      Wm. Stone, for the appellant.
    Chapter 196 of 1867 was not repealed by chapter 137 of 1875. The Supreme Court of the United States has time and again declared that statutes are never repealed by implication, unless the provisions of the latter statute are so much in conflict with the provisions of the earlier statute that the two cannot stand together. (Wood v. U. /S'., 16 Peters, 342; McCoolv. Smith, 1 Black, 459; Henderson's'Tobacco, 11 "Wall., 652; Henderson's Distilled Spirits, 11 id., 356; see also Sedgwick on Statutes and Constitutional Law [2 ed.], 106; Bowen v. Lease, 5 Hill, 221; McCartee v. Orphan Asylum, 9 Cow., 437, 506, 507; The State v. Shaw, 28 Iowa, 67.) The statute which we are now considering has been passed upon several times since the passage of the act of 1875 by courts of United States and State courts, and they have held that subdivision 3 of section 639 of Revised Statutes of United States is not repealed by the act of 1875. (Norton v. American Ring Co., April, 1879, 1 Monthly Law Bulletin, 52, LawreNCe, J., New York Sup. Ct.; Barbour v. The St. Louis, Kansas City and N. R. R. Co., 43 Iowa, 223; N, J. Zinc Co. v. Trotten et al.;
      17 American Law Register, 1878, 376, NixON, J.; Ooolce v. Ford, Am. Law Times and Rep. [N. S.], vol. 4, No. 6, p. 260; also article of Judge DilloN, Southern Law Review, July, 1876; Gomrs. of Arapahoe Oounty v. Kansas Pacific Railroad et al., 4 Law & Eq. Rep., 181.) The court having in the first instance heard the petition and granted the order for removal, and having approved the surety ottered, it had no further jurisdiction over the case, and the order vacating the order of removal was improperly made. (Shaft v. The Phoenix Mutual Life Ins. Co., 67 N. Y., 544; Stevens v. Phoenix Ins. Go., 41 id., 149; Chamberlain v. National Life and Trust Go., 11 Hun, 370; Fishe v. Union Pacific R. R., 8 Blatch., 243; 5 id., 536.) As the petitioner has fully complied with the terms of the statute, the case can be legally tried only in the United States Court, notwithstanding the order vacating the order of removal. (Mix v. The Andes Ins. Go., 74 N. Y., 56.)

      H. A. Wadsworth, for the respondent.
   Per Curiam :

So far as this application rested in discretion, it was passed upon favorably by the judge at Special Term. The subsequent order vacating the order of removal was based upon the theory that the act of 1867 (14 U. S. Stat. atL., p. 558,. chap. 196) is not in force. This we think to be error. The act of 1875 (1.8 U. S. Stat. at L., pt. 3, p. 470, chap. 137) does not in terms repeal the act of 1867, and as they are not in conflict, a repeal by implication does not take place. Such appears to be the current judicial opinion. The order of 15th of October, 1879, should be reversed and the cause stand remanded to the United States Circuit Court, pursuant to the order of the 28th of July, 1879.

The question is quite new and not free from doubt and no costs should be granted.

Present — Gilbert and Pratt, JJ.; BarNAEd, P. J., not sitting.

Order reversed, without costs.


author: Pratt, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN COMAFORD, v. JAMES E. DUTCHER, Sheriff, Appellant.

      Courts of /Special /Sessions — chap. 390 of 1879 conferring thereon exclusive jurisdiction of certain offences, is constitutional — R. 8., pt. 4, chap. 1, title 7, § 27, not affected by — Power of Supreme Court judge to admit to bail.

    Chapter 390 of 1879, providing that Courts of Special Sessions, except in the city of Albany, and in the city and county of New York, shall have exclusive jurisdiction in the first instance to hear and determine every charge for petit larceny, not charged as a second offence, is constitutional and valid.

      People ex rel. Stetzer v. Rawson (61 Barb., 619), followed.
    The said act does not interfere with the powers conferred by section 27 of title 7, chapter 1, part 4 of the Revised Statutes, which provides that upon the trial of an indictment for any offence, consisting of different degrees, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find him guilty of any degree of such offence inferior to that ■charged in the indictment. The exclusive jurisdiction is given to the Special Sessions only where the charge is one simply of petit larceny.
    Such act does not restrict the power of a justice of the Supreme Court to admit to bail one arrested for a criminal offence.
    Appeal from an order made by a justice of the Supreme Court, admitting the relator to bail upon the return to a writ of habeas corpus issued by him.
    It appeared that the relator was held in custody by the respondent, the sheriff of Dutchess county, by virtue of a com-mittment from the recorder of the city of Poughkeepsie, on a charge of petit larceny; that the relator offered to give bail, but that the recorder refused to take it, and held him for trial before him on the said charge; that the relator appeared in person and by attorney, and offered to give bail to appear at the next court having cognizance of the offence charged, and that the district attorney objected to his giving bail on the ground that under chapter 390 of 1879 the relator could only be tried before the said recorder.
    The order directed that the relator be allowed to enter into a recognizance in the sum of $100, with sufficient surety, to appear at the next court' having jurisdiction of the offence.

      Wm. M. Woodin, district attorney, for tbe appellant.

      Abram J. Moer, for tbe relator.

      See to the same effect, Devine v. The People, ante, page 99.

   Pratt, J.

' It is claimed, by the learned counsel for tho respondent that chapter 390 of the Laws of 1879 deprives the accused of the right of trial before a common law jury of twelve men, and is, therefore, unconstitutional. That chapter provides that “ courts of special Sessions, except in the city of Albany and in the city and county of New York, shall, in addition to the powers now possessed by them, have also exclusive jurisdiction in the first instance to hear and determine * * * charges for petit larceny not charged as a second offence.” In the case of the People ex rel. Stetzer v. Rawson (61 Barb., 619), the General Term of the Fourth Department held that a similar statute applicable to Monroe county, passed in 1870 (chap. 47, Laws 1870), was valid under section 26, article 6 of the constitution as amended in 1869, which provides, that “ courts of special sessions shall have such jurisdiction of offences of the grade of misdemeanor as may bo prescribed by law; ” and the same also holds that petit larceny charged as a first offence is a misdemeanor under the Revised Statutes.

The opinion of Judge Johnson m the Mawscm Case was evidently prepared with great care, and is well considered, and until reversed should bo followed in the other deparments.

The argument that there will be a failure of justice in cases of petit larceny and assault and battery, if this law is held to be constitutional, has no force.

By section 27, title 7, chapter 1, part 4 of the Revised Statutes (2 R. S., 702), it is pi’ovided that “upon an indictment for any offence, consisting of different degrees as prescribed in this chapter, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence inferior to that charged in the indictment.” It has been the settled practice under the statutes in cases where indictments charged grand larceny, but the proof failed to establish that the property stolen exceeded in value twenty-five dollars, for juries to convict of petit larceny. In People v. Jackson (3 Hill, 93), this question is discussed by Cowen, J., and the practice approved.

It is plain, from the words of the statute of 1879, that it was not intended to repeal the section of the Revised Statutes .before referred to. Exclusive jurisdiction in the first instance is given where the charge is one described in the act.

This does not interfere with the powers conferred by the Revised Statutes by the chapter before quoted relative to the trial of offences therein described, neither does it operate as a restriction upon the power of a justice of the Supreme Court to admit to. bail.

By section 29, chapter 2, title 2, part 4 Revised Statutes (2 R. S., 710), it is provided that a justice of the Supreme Court shall have power to admit to bail in all cases.

The order, therefore, admitting the defendant to bail was proper, and must be affirmed.

Gilbert, J., concurred ; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.


author: Pratt, J.:

text:
    EDWIN R. ROBERTSON, Appellant, v. WILLIAM RUSSELL, Respondent.

      Examination of plaintiff before trial — defendant must state the nature of his defence — facts showing the examination to be necessary, must be alleged— Code of Civil Procedure, § 872, sub. 4 — General Rule No. 89.
    After the service of an amended complaint herein, and before the service of an amended answer, the defendant applied for an order requiring the plaintiff to appear and be examined before trial. The defendant’s affidavit set out at length the nature of the action, the relief sought and the various matters alleged in the complaint, and alleged that the deponent was advised and believed that it was material and necessary, in the preparation of his answer that he should be permitted to examine the plaintiff as to the allegations set forth in the complaint. The affidavit then set forth the allegations as to which the plaintiff was to be examined, but mentioned no facts tending to show such examination to be necessary or material, nor did it set forth the nature of the defense to be interposed.

      Upon an appeal from an order requiring the plaintiff to appear and be exam- ■ ined, held, that the affidavit was defective in not setting forth the nature of the defence to be interposed.
    That it was also defective in not setting forth the facts and circumstances showing an examination of the plaintiff to be material and necessary.
    That the order should be reversed.
    Appjeal by the plaintiff from an order made at Special Term, denying a motion to vacate an order requiring the plaintiff to appear and be examined as a witness on behalf of the defendant. The application for the order of examination was made by the defendant after the service of an amended complaint. The affidavit set forth fully the object of the action and the relief sought, and also, in detail, the various matters alleged in the complaint. It then alleged: “Deponent further says that, as he is advised and verily believes, it is necessary and material, in the preparation of his answer to the plaintiff’s amended complaint, that he be permitted to examine the said plaintiff as to the allegations, matters and things therein set forth, particularly upon the following : As to the note being regarded as worthless by plaintiff,” etc., and in like manner it is stated that an examination was asked as to certain other allegations of the complaint specifying them. It stated no facts tending to show such examination to be material or necessary, nor did it state the nature of the defence to be interposed.

      O. J. Wells and D. O. Brown, for the appellant.

      Amos G. Hull, for the respondent.
   Pratt, J.:

The affidavit upon which the order for the examination of the plaintiff was granted does not comply with the requirements of subdivisions 2 and 4 of section 872 of the Code of Civil Procedure, or with Rule 89.

Under this section, as amended in 1879, it is incumbent upon the defendant, whether making the. application for the examination before or after the answer, to set forth in his affidavit the nature of his defence (subdivision 2). This the defendant has uttei’ly failed to do in the present instance.

There is, however, a still more serious objection to defendant's affidavit. Subdivision 4 of the section above referred to requires, in conjunction with Rule 89, that the facts and circumstances should be specified showing that the examination is material and necessary. It is no compliance with these provisions for the affidavit to simply state in the language of the rule that the examination is material and necessary, for that is but giving his judgment of the matter.

The judge to whom the application is made must determine the materiality and necessity from the facts of the case. (Greer v. Allen, 15 Hun, 432; Beach v. Mayor, 14 id., 82.)

The affidavit in question does not specify a single fact or circumstance showing the necessity for plaintiff's examination to enable defendant to prepare his amended answer. It sets forth at great length the subjects upon which the examination is sought, but nothing is stated from which the judge granting the order could determine why the deposition of the plaintiff upon these points was essential to the preparation of defendant's answer or defence.

The order appealed from should be reversed, with the costs and disbursements of this appeal and ten dollars costs of the motion.

Gilbbet, J., concurred; BarNaed, P. J., not sitting.

Order reversed, with costs and disbursements.


text:
    JOHN COLLINS, Respondent, v. STEPHEN RALLI and others, Appellants.

      One converting to his own use goods intrusted to him foí- delivery to awrther, is guilty of larceny— One purchasing from a person having the bare possession of goods is not protected as against the true owner— Warehouse receipt, issued to one not the owner —■ a bona fide purchaser from such person is not protected thereby — Section 6, chapter 326 of 1858 — Chapter 179 of 1830.
    H. M. Cutter, a cotton broker, called upon the plaintiff, and by falsely and fraudulently representing that he was authorized to purchase cotton for certain mills in Massachusetts, induced the plaintiff to sell certain cotton to said mills, and deliver to him a bill of sale thereof to the mills. Upon the representation that he desired to ship the cotton immediately Cutter procured from the plaintiff a delivery order upion the warehousemen, at whose warehouse Cutter had the cotton weighed and marked and loaded upon a truck; tags, with the name and address of the mills, being fastened to each bale. Subsequently Cutter stored the cotton in another warehouse, some of the bales at that time still having the' tags upon them, and took out receipts therefor from the keeper of such warehouse in his own name first, and afterwards in the name of his brokers. All the tags were removed from the bales while in this latter warehouse. Thereafter the defendants purchased the cotton in good faith and for value through their brokers, receiving the warehouseman's receipts therefor, and subsequently shipped it to Liverpool.
    It appeared that all the transactions between the plaintiff' and Cutter were done in accordance with the usual custom, where goods were purchased by manufacturing companies through brokers.
    Cutter having absconded without paying for the cotton the plaintiff brought this action against the defendants to recover the value of the cotton received and converted by them.

      Bold, that Cutter Was guilty of larceny in fraudulently obtaining the temporary custody of the cotton and thereafter converting it to his own use, and that the defendants acquired no title to it by reason of his transfer of it to them.
    /ThatjÉtthe plaintiff had merely intrusted Cutter with the temporary possession (rf^Hfeftipn to enable him to weigh, tag and cart it for shipment to the pre-^^^^Murehasers, and had never conferred upon him the apparent title any authority to dispose thereof, the plaintiff was not estopped from re^HRig it from the defendants, though they had purchased it in good faith.

      Craig v. Marsh (2 Daly, 61), overruled.
    That the defendants were not protected by section 6 of chapter 326 of 1858, providing- that warehouse receipts may be transferred by indorsement, and that any person to -whom the same may be transferred shall be deemed and taken to be the true owner of the goods therein specified, so far as to give validity to any pledges, lien or transfer made or created by such person or persons; as such provision only applies to receipts given for goods stored or deposited by persons having- the title thereof, -whether real or apparent, or authority so to do from such real or apparent owner. /
    How far the tag-s remaining upon the hales were notice of the true ownership of the cotton to the second warehouseman, considered. / /

    Appeal from a judgment in favor of the plaintiff, entered upon tlie report of a referee.
    The- referee found that on or about the 28th day of December, Henry M. Cutter, a member of the firm of H. M. Cutter & Co., cotton brokers, in New York, stated and represented to the plaintiff, who was a dealer in cotton in said city, that his (Cutter’s) said firm had an order from the Freeman Manufacturing Qpnpany, of North Adams, Massachusetts, to purchase for them 100 bales of cotton. The standing and responsibility of said manufacturing company was good, and known to plaintiff so to be.
    That said H. M. Cutter & Co offered to purchase from plaintiff 100 bales of cotton for said Freeman Manufacturing Company, at Ilf cents per pound, and plaintiff relying upon the statements and representations of said Cutter, and believing them to be true, accepted said offer and agreed to sell said cotton to said Freeman Manufacturing Company at said price, and thereupon said Cutter made out, subscribed in the name of his said firm as brokers, and delivered to plaintiff, a sold note, dated December 28, 1877, containing the name of the plaintiff, and stating in substance that said H. M. Cutter & Co. had sold for plaintiffs account to the Freeman Manufacturing Company 100 bales of cotton at llg cents per pound, payable in twelve days. That said cotton was at the time of said transaction stored in the warehouse of C. L. Brust at Nos. 90 and 92 West street, in the city of New York, j

    Cutter stated to plaintiff that he desired to ship said cotton to said manufacturing company immediately, as they needed it for use in the mills, and accordingly, on said December 28, 1877, plaintiff gave said H. M. Cutter & Co., at their request, an order on said Brust for the delivery of fifty bales of said cotton to them for immediate shipment to said manufacturing company, and on December 31, 1877, he gave them a like order for the delivery of the remaining fifty bales thereof for like shipment, and that upon said orders said Brust delivered said cotton on said days to H. M. Cutter & Co., and shipping tags were by them attached to tbe bales addressed to said manufacturing company at. North Adams, Massachusetts, and said cotton, as fast as it was so weighed, marked and tagged, was carted off by said H. M. Cutter & Co.’s truckman, O'Donnell, to be shipped, as plaintiff was told by said Cutter and supposed, to said Freeman Manufacturing Company.
    That on or about the 2d day of January, 1878, and on the 9th day of January, 1878, more cotton was procured by Cutter from the plaintiff by similar representations.
    That at or about the time of the delivery of said cotton to H. M. Cutter & Co. for shipment, as aforesaid, plaintiff made out bills or memoranda of sale of said respective lots of cotton to the pretended purchasers, and delivered them to said. H. M. Cutter & Co., each to be sent to the company named therein. Cutter did not ship any of the cotton to any of the pretended purchasers, nor had he or any member of his firm any authority to buy cotton for them.
    That said II. M. Cutter & Co. had their said truckman, O’Donnell, cart all said cotton, consisting of 300 bales, directly from said warehouse to the warehouse of John S. Richards, at No. 618 Washington street, in the city of New York, and there stored it in the name of Ii. M. Cutter & Co.
    That said Cutter instructed said truckman O’Donnell to tear the tags from said cotton while he was conveying it to said Richards’ warehouse, and that a number of said tags were so torn off by said O’Donnell, but that a large number of them remained on said cotton when it was stored in said Richards’ warehouse, and were seen by said Richards thereon, and that after being so stored they were torn off while in said warehouse.
    That as fast as said cotton was stored in said Richards’ warehouse, as aforesaid, said H. M. Cutter & Co. procured said Richards to issue to them negotiable warehouse receipts therefor, in the name of G. H. Price & Co., cotton brokers, whom they frequently employed in their business, and said Price & Co. thereupon indorsed and transferred said warehouse receipts for said H. M. Cutter & Co. to the defendants for value ; Richards thereafter delivered the cotton, upon the surrender to Mm of said warehouse receipts issued therefor, and defendants then shipped said cotton to Liverpool, England, and sold the same and converted the same and the proceeds thereof to their own use before the the commencement of this action.
    That plaintiff was guilty of no negligence, in any of the transactions above stated, but in all respects exercised due care and caution therein, and all his acts in respect thereto were in the usual and ordinary com-se of business of selling cotton to spinners through the medium of a broker.
    That plaintiff parted with the custody of said cotton to said ■H. M. Cutter & Co. for the solo purpose of having the same shipped and delivered to the pretended purchasers.

      Goudert Brothers, for the appellants.
    This case falls within section 6 of chapter 326 of the Laws of 1858. (Geneva National Bank v. Reamer et al., 7 W’kly Dig., 462; Yenni v. McNamee, 45 N. Y., 619; MoGombie v. Spader, 1 Hun, 195, 196.) Plaintiff is estopped, as against the defendants, from claiming that Cutter could convey no title. (MeNiel v. Tenth National Bank, 46 N. Y., 329; see also Babcock v. Lawson, [Q. B.J, C. J. Coce-bueN, 20 Albany L. J., 407; Qraig v. Marsh, 2 Daly, 61, opinion Beady, J., at General Term.; Moyce v. Newington, 4 Q. B. D., 32 [Law Review, July, 1879, 697] ; McGoldrick v. Willetts, 52 N. Y., 612; Paddon y. Taylor, 44 id., 374; Rooty. French, 13 Wend., 570; Wait v Green, 36 N. Y., 556.) Cutter did not obtain the goods feloniously, i. e., by larceny. (4 Blackstone [Chitty], 230; Rexy. Atkinson, 2 East. Pleas of the Crown, 673; Memory v. Walsh, 8 Cow., 242; McGoldrick v. Willetts, 52 N. Y., 612; Graig v. Marsh, 2 Daly, 61; Zink v. The People, 74 N. Y.; Loomis v. The People, Ct. of App., 1879; Weyman v. The People, 4 Hun, 571; Smith v. The People, 53 N. Y., 113.)

      Freling II. Smith, for the respondent.
    Cutter & Co. obtained possession of the cotton feloniously. {Loomis v. The People, etc., 67 N. Y., 327; Smith v. The People 53 id., 113; Bassett v. Spof-ford, 45 id., 391; Weyman v. The People, etc., 4 Hun, 561; Zink y. The People, Ct. of App., 6 Abb. [N. C.], 413.) Plaintiff conferred no indicia or apparent right of property on Cutter & Co. The authorities are uniform that the mere parting with the possession of goods to a person does not enable him to convey title to them. (McNiel v. Tenth National Bank, 46 N. Y., 325; Coveil v. Hill, 4 Demo, 327; Ballard' v. Burgett, 40 N. Y., 314; Barnard v. Campbell, 55 idM 463; 8. C., 58 id., 76; Barker v. Dinsmore, 72 Penn., 427; Marine Bank of Buffalo v. Fiske, 71 N. Y., 358; Gundy v. Lindsay, 38 L. T. Rep. [N. S.], 573; Fowler v. Hollins, 7 Q. B., 616; Hintz v. Idaho, 3 Otto, 583; Lickbarrow v. Mason, 2 T. R., 62.) The defendants are not protected by chapter 326 of the Laws of 1858. (3 Edm. R. S., p. 667; Tracy v. The Troy and Boston B. JR. Co., 38 N. Y., 437; M. and T. Bank of Buffalo v. F. and M. Bank, 60 id., 52; Howland v. Woodruff et al., 60 id.,-73; First Nat. Bank of Toledo v. Shaw, 61 id., 283; see also Bates v. Cunningham, 19 N. Y.-S. C. [12 Hun], 21.)
   Pratt, J.:

The facts in this case clearly show that Cutter & Co. were guilty of larceny in obtaining the temporary custody of, and appropriating to their own use the cotton in question in this action. They had, by false and fraudulent statements, induced the plaintiffs to believe that they represented and were authorized to purchase this cotton for certain manufacturing companies, and relying upon their representation, the plaintiff sold the same to these manufacturing companies as he supposed through Cutter & Co., as brokers, and so they were allowed to put the cotton aboard their trucks after it had been tagged and addressed to the supposed purchasers for conveyance to the depot for shipment.

This was done in pursuance of the usual custom obtaining in respect to shipment of goods purchased by manufacturing companies through brokers.

In such cases it appears the dealer allows the broker to cart the /goods for shipment. The possession of Cutter & Co. was therefore temporary, and given to them for a specific purpose, and they procured such possession fraudulently and with the purpose and design of converting the goods to their own use. The evidence, which is undisputed, shows this conclusively.

The case is therefore brought directly within the definition of larceny given in Loomis v. The People (67 N. Y., 322); and also 2 R. S., p. 679, § 63; Smith v. The People (53 N. Y., 113; Bassett v. Spofford (45 id., 391); Zink v. The People (6 Abb. [N. C.], 413); 2 East’s P. C., 681, 693.

The defendants roly upon Rex v. Atkinson (2 East’s P. C., 673) as an authority in opposition to these views ; but in that case the offence charged was held not to be a felony simply, as it came within the statute of 33 H. 8th Ch., 1, against obtaining goods by false tokens or counterfeit letters, and was therefore punishable as a misdemeanor only (East. P. C., 687). Whether or not Cutter & Co. were guilty of larceny, however, is important in the determination of the case only upon the question of estoppel, for it cannot well be claimed that an owner has conferred upon the thief indicia of title to his stolen goods, or that he cannot reclaim them because of any negligence charged. (Bassett v. Spofford, supra.)

Whatever may be the grade of the offence of Cutter & Co. in defrauding plaintiff of his goods, they could convey no title to them even to an innocent purchaser for value unless plaintiff committed, or omitted some act in respect to them whereby such purchaser was, and a prudent person would naturally be, misled by some apparent ownership or power of Cutter & Co., or their representatives 'in or over the same, created by such act or omission.

If plaintiff clothed Cutter & Co. with apparent title, or power to sell, or did anything out of the usual course of business calculated to and which did actually mislead the defendants in respect to the ownership or right of sale of the cotton, it would clearly bo inequitable to permit the plaintiff to recover therefor from the defendants, who had parted with their money rfkthe faith and credit of the appearances so created by him. T^principle of estoppel would doubtless apply. (McNeil v. Tenth National Bank, 46 N. Y., 329.)

The question therefore arises did plaintiff, so clothe Cutter & Co. with apparent title to or authority to dispose of the cotton in question. Defendants claim that by giving to them the delivery orders he conferred upon them indicia of title.

It seems scarcely necessary to discuss this ' proposition. The delivery orders were but the usual means adopted to put Cutter & Co. into' temporary possession of the cotton to enable them to weigh, tag and cart it for shipment to the manufacturing companies they had falsely and fraudulently represented as purchasers. These orders worked no harm to any one. They were not ,'secn by defendants or any person representing them, and their existence even was unknown to them. If the delivery orders were of such character as to indicate title in Cutter & Co., yet, as defendants wore not misled by them, they furnish no support to Íheir claim of estoppel. This is a familiar rule of law, and was so icld in Boyson v. Coles (6 M. and S., 14), Avhich is a case similar in principle to the one at bar. It was also held in that case that a delivery order is evidence of right of possession, and not of ownership. Says Abbott, J.: “ Upon this point, all that appears to have been imparted to the defendant, as the act of the plaintiffs, was the transfer order to the dock company, upon which the transfer was made to him by Coles Brothers ; but I consider the transfer order merely as affecting the possession; farther than that I cannot carry it; and possession alone is not a sufficient emblem of authority to entitle a factor to pledge so as to enable the pawnee to hold the goods against the reafowner. In the present case, it does not appear that the defendant was misled by any act or document with which the plaintiffs were concerned, other than such as regarded possession, and therefore the jury were warranted in the conclusion which they came to on the second question.” (People v. Bank of Worth America, 75 N. Y., 547.) The purpose of these orders was served when they were delivered to the warehousemen who had the cotton in store, and they obeyed them. They no more indicate title than a writteii direction to one’s cobbler to deliver to his servant a pair of shoes, clothes the latter with apparent ownership and right of sale of them. (McEwan v. Judd, 2 H. of L. Cas., 309.)

Defendants also insist that plaintiff, by intrusting Cutter & Co. with the temporary possession of the cotton for shipment, vested them with indicia of title. It is true that possession is some evidence of ownership, but the rule is elementary that bare possession is not sufficient to enable one to convey title to chattels. (Ballard v. Burgett, 40 N. Y., 314; McNeil v. Tenth Nat. Bank, supra; F. and M. Bk. v. Atkinson, 74 N. Y., 587; F. and M. Bk. v. Logan, id., 568; Loomis v. People, supra ; McGoldrick v. Willits, 52 N. Y., 612; Saltus v. Everett, 20 Wend., 267; Lickbarrow v. Mason, 2 T. R., 62; Boyson v. Coles, supra.) If it were otherwise, ordinary business affairs could not be conducted with safety. The demands of trade require almost innumerable agencies in the transportation of merchandise and necessitate their delivery to employes, agents, and even strangers, for that purpose.

The case of Higgins v. Burton (26 L. J. [N. S.], 342, Ex.), is identical in principle with the one at bar. Plaintiff there had dealings with one Fitzgibbon, a merchant at Cork, in whose employ one Dix had been, who was known to plaintiff as agent for Fitzgibbon. Dix was discharged by Fitzgibbon, and after-wards and before plaintiffs were informed of it proposed to purchase from them, in Fitzgibbons’ name, some silks, which were delivered to him and by him sent to defendant, who was an auctioneer, by whom they were sold and the proceeds paid over to Dix. Afterwards Dix obtained other goods from plaintiff in a similar way, upon which defendants made advances in ignorance of the fraud. The plaintiff brought trover and recovered. Watson, B., says : “Dix only affected to have the authority of Fitzgibbon to purchase the goods; he had in fact no such authority and no property passed to him. There was no real contract and he could give no better title than he had ; and the pledge to the defendant passed no property. The case of Hardman v. Booth (1 H. & C., 803; 7 L. T. Rep. [N. S.], 638; Cundy v. Lindsay, 38 id., 573; and Barker et al. v. Dinsmore (72 Penn., 427), are similar in their facts and to the same effect. Babcock v. Lawson (20 Alb. L. J., 407), cited and relied upon by defendant’s counsel does not conflict with these authorities or the views here stated. That case has no similarity to this. The language of Chief Justice Cockbuen, in relation fo possession as eyjflññce of title, relatesonly to the possession of a factor or one otherwise held out as having power to sell. The distinction must "be borne in mind between~Ehe case in hand'and that of a person procuring the sale of goods by means of false prétences. Here there was no sale ; there was no purchaser, and so the title remained in plaintiff. If one by fraudulent contrivances induc&i the sale and delivery of goods to himself, he could doubtless convey a good title to a bona fide purchaser of them for value so long as the original owner has not exercised his right to revoke the sale and reclaim his goods. The reason of this rule is obvious. The owner in the case supposed has clothed the fraudulent purchaser with a qualified title; as well as given him possession, and therefore it would be a rank injustice to permit him to take them from an innocent person who had in his purchase relied upon the evidences of title so created. The principle of estoppel in such cases would prevail. This distinction is pointed out in Cundy v. Lindsay (supra), in which Lord Chancellor CaiRNEs in his opinion says : “ The result, therefore, is this, that your lordships have not here to deal with one of those cases in which there is de facto a contract made, which may after-wards be impeached and set aside on the ground of fraud, but you have to deal with a case which ranges itself under a completely different chapter of law: the case namely in which the contract never comes into existence. That being so, it is idle to talk of property passing.” (Zink v. The People, supra; McGoldrick v. Willits, 52 N. Y., 612; Smith v. The People, 53 id. 111.)

/The rule of law applicable to the two classes of cases, and the distinction above referred to, are accurately and tersely stated in 'the head-note to the case of Higgins v. Burton (supra), as follows : “ When the owner of goods suffers another to have possession of them, or of the documents which are the evidence of property therein, on a sale to him obtained by means of fraudulent representations, and avoidable at the option of the owner, a sale or pledge by such party before the owner has exercised his option and without notice to the subsequent purchaser is binding ; but this is not so when the party has merely obtained the goods by means of false pretences, without any contract of sale to himself,' as when he falsely and fraudulently represents that another person has authorized him to purchase the goods; and in such case the original owner can recover the goods from a party to whom they have been sold or pledged by the person who fraudulently obtained them before any notice of tbe fraud or any disaffirmance of tbe transaction by tbe real owner.”

The only case that bas been cited or wbieb we bave been able to find in conflict witb these views is Craig v. Marsh (2 Daly, 61.) the learned judge wbo wrote the opinion seems to bave been misled by the general language of the opinion of some of the cases of sales of goods by false pretences, and not to bave kept in mind the distinction between this line of authorities and those in which there is de facto no contract of sale made, as stated by Lord Chancellor Cairnes in Cundy v. Lindsay (supra), in commenting on this distinction. the opinion itself, and the cases cited and relied upon by the learned judge, indicate this mistake. the counsel for the plaintiffs in that case also seems to bave fallen into the error of conceding that the person fraudulently procuring the goods was not guilty of larceny, and the concession doubtless misled the court. the case, so far as we are aware, bas not been cited witb approval or followed, and is not supported by any of the authorities referred to in the brief opinion of the court.

This brings us to a consideration of the. effect of section 6, chapter 326 of tbe Laws of 1858, upon the'rights of tbe parties. This act is entitled “ An act to prevent tbe issue of false receipts,. and to punish fraudulent transfers of property by ware-housemen, wharfingers and others (3d Edm. Stat., p. 667).

The section in question reads as follows : “ Warehouse receipts given for any goods * * stored or deposited with any warehouseman * * may be transferred by indorsement thereof, and any person to whom the same may be so transferred shall be deemed and taken to be the owner of the goods * # therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or persons.” the learned counsel for the defendants insist, that the provisions of this section afford them a complete protection against a recovery in this action ; that, having purchased the cotton upon the faith of the negotiable warehouse receipts, and paid therefor full market value, this case falls both within the spirit and the letter of the section. All the other sections of this act, except the last, which is unimportant, prohibit the issue of false receipts, etc., and prescribe the penalty for a violation of their provisions. The scope and object of the act, therefore, seems to b'e to protect the mercantile community against fraudulent practices by warehousemen, wharfingers and others, in respect to these receipts for goods stored or represented to be stored with them. That this is the purpose is shown by the title of the act. The sixth section is simply an enunciation of common law principles. It estops the warehouseman from disputing the title of the innocent holder of a negotiable receipt issued by him, and renders him liable ' to account to such holder for the goods therein represented, whether falsely issued or not. The clause, “ warehouse receipts given for any goods * * stored or deposited with any warehouseman,” means receipts given for goods so stored or deposited by any person having the title thereto, real or apparent, or authority from such person therefor. This section of the act proceeds upon the assumption that the receipt is so issued. Any other construction would enable ware-housemen to issue receipts for goods, known by them to be stolen, and so convey title to them, or oven themselves to commit larceny, and by issuing receipts for the stolen property defraud the plundered owner of all title to and power of reclaiming it. Such a construction would work a change in the law hardly contemplated by the Legislature when the act under consideration was passed, and yet the construction insisted upon by the defendants would accomplish precisely this result. Courts often have to look beyond the mere words of a statute in determining its meaning, and give to it such an interpretation as the mischief sought, to be cured and the evident intention of the Legislature indicate. Chapter 179 of the Laws of 1830, commonly called the Factor act, is entirelyanalogous, ancTEaFTeen construed by the Court of Appeals in conformity with the interpretation above given to the warehouse act. The factor act provides that “ every person in whose name any merchandise shall be shipped shall be deemed the true owner thereof,” etc. Now it is evident that a literal reading of this clause would give a thief who shipped stolen goods in his own name the same power to convey a good title to them, as the same character of construction would the warehouseman under the sixth section of the warehouse act, as above shown; but the Court of Appeals has held in Kinsey v. Leggett (71 N. Y., 387), and other cases, that the act “ only applies when the shipment is made with the consent of the real owner in the name of another ; ” that “ the act was not intended to deprive actual owners (of their property) who had not parted with their title, or who, by fraud and without any fault on their part, had lost control over it.” (Merch. and Trad. Bk. v. F. and M. Bk., 60 N. Y., 40; Howland v. Woodruff, id., 73; First Nat. Bank of Toledo v. Shaw, 61 id., 283; Covell v. Hill, 4 Denio, 323; S. C., 2 Seld., 374; F. and M. Bk. v. Logan, 74 N. Y., 568.)

The precise question here presented was decided by the Commission of Appeals in the First Nat. Bank of Toledo v. Shaw (61 N. Y., 283). The plaintiff had discounted drafts drawn upon T. W. Griffin & Co., of New York city, upon the security of a bill of lading of a cargo of wheat, which stated that the wheat was shipped on account of plaintiff to Kidd, Pierce & Co., of New York, to be held by them until payment of the drafts, and then to be delivered to T. W. Griffin & Co., the wheat at Buffalo to be received and forwarded by A. L. Griffin & Co. to Kidd, Pierce & Co. A. L. Griffin & Co. transhipped by canal from Buffalo, and issued a canal bill of lading, in substance like the above, with the addition that the freight, etc., were to be paid to Young Bros., and sent this bill to T. W. Griffin & Co. orto Young Bros. On the arrival of the wheat at New York, it was unloaded by direction of T. W. Griffin & Co. at the warehouse of Shaw & Co., who issued to them a negotiable warehouse receipt therefor, according to their custom, which was to issue warehouse receipts to any one who sent boats to them without demanding to see the bill of lading.

T. W. Griffin & Co. indorsed and delivered the warehouse receipt to the New York Guaranty and Indemnity Company, and .that company, upon the faith of it, made a loan of $14,000 to Griffin & Co. One of the drafts held by the bank was after-wards protested for non-payment, and it then brought an action against Shaw & Co. and the Guaranty and Indemnity Company to recover possession of the wheat; and the Commission of Appeals held that it was the duty of the warehousemen (Shaw & Co.) to have made inquiries as to the title of T. W. Griffin & Co., and inasmuch as the latter had no title or indicia of title save the bare manual possession of the wheat, that the warehouse receipt afforded no protection to the Guaranty and Indemnity Company. Commissioner Dwight says, at page 297 of the reported case : “The warehousemen (Shaw & Co.) were bound to inquire whether a bill of lading accompanied the shipment. Their custom to make no inquiries, but to warehouse grain for any one who had the possession, could not in any respect prejudice the rights of the plaintiff. Having warehoused it, they were bound to hold the grain for the rightful owner Their receipt given for the grain was no protection to the Guaranty and Indemnity Company. Shaw & Co. simply trusted to a person having the naked possession, without any title or indicia of it. If on that bare possession they issued evidences of title, they were mere waste paper, under which the Guaranty Company can make no claim. A mere possessor cannot confer ownership by falsely asserting, through bills of lading or warehouse receipts, that he has a title.” Again, at page 302, he says : “If the Guaranty Company saw fit to act on the so-called warehouse receipt, which itself had no solid foundation, it acted at its peril.” And at page 303, etc., he says : “ Shaw & Co. could not safely repose on the mere possession of Griffin Co., but were bound to look into the shipping documents, and are accordingly chargeable with constructive notice of their contents. The Guaranty Company are in the same position with Shaw & Co. The warehouse receipt being mere waste paper, that company can claim no rights under it.”

It is indisputable that the precise point in controversy in this action is here determined, and that it was directly involved in that case. If, then, Shaw & Co. had no right to issue a warehouse receipt for goods to one having control of the boat by and in which they were shipped, and then contained, and if a receipt so issued is worthless, and no protection to one acting and advancing on the faith of it, it is needless to argue that there is no justification for the warehouseman. Richards, in the case at bar, issuing receipts, as is shown by the testimony of the witness Kane, contrary to the usual course of business, to one having merely the naked manual possession of the goods for a temporary purpose, and where the shipping tags on thé goods were in themselves sufficient evidence at least to put a prudent man on inquiry as to the nature and purpose of such possession; and if in the Toledo Bank Case the warehouse receipts furnished no ground for protection to the Guaranty Company, the receipts issued by Richards surely cannot avail the defendants in this action.

In Geneva National Bank v. Reamer (7 Weekly Digest, 462), the court, at Special Term, simply held that the question for whom the grain covered-by the receipt was received or held by the warehouseman was one of fact, and should have been submitted to the jury, and the learned justice in-his opinion correctly remarks: “A receipt fraudulently issued to one who has no property held in store for him cannot bind or affect property held for another.” In Yenni v. McNamee (45 N. Y., 619), the receipt given was held not to be a warehouse receipt under the meaning of the statute. In McCombie v. Spader (1 Hun, 198), the goods covered by the receipt were sold to the person putting them in store, although the sale was fraudulently procured; hence he was in position before the goods were reclaimed by the original owner to convey good title to them by sale directly to an innocent purchaser, or through the medium of a warehouse receipt.

Plaintiff’s demand of the defendants, before suit brought, was sufficient. It is evident from the testimony that they knew to what cotton he referred. The larceny and flight of Cutter & Co. had become a matter of public comment, and the cotton in question was called by them the Cutter cotton, and known to them to have come through Cutter & Co., and the plaintiff, by his demand, made orally and in writing on the 2nd of March, 1878, specified the exact number of bales required, and so designated them as connected with the fraud of Cutter & Co. as to have left no doubt in the mind of the plaintiff’ as to the cotton called for.

The demand formerly made by plaintiff, January 11, 1878, when he found a portion of the cotton in defendants’ possession, was also- sufficient. If they had any misgivings at the time of either demand as to the cotton referred to, it was their duty so to inform plaintiff, and thus procure a more definite description of it. Their failure so to do was a waiver of any defect there may bo in the demands in this respect. (Marine Bank of Buffalo v. Fiske, 71 N. Y., 355.)

The demand and refusal to deliver the cotton, however, was only evidence of conversion, and as it appeared upon the trial that the defendants had actually converted it by shipping it to Liverpool nearly two months before the commencement of the action, and there disposing of it, a demand was unnecessary. (Marine Sank of Buffalo v. Fiske [supra] ; Pease v. Smith, 61 N. Y., 477 ; Connah v. Hale, 23 Wend., 462.)

We have thus gone over, at considerable length, the various ■questions raised in this case and argued in the briefs of counsel with much force and skill, because of their great importance, and as to some of them, their novelty. All the parties to this action are innocent of fault in respect to the matters in controversy, and it is simply the duty of the court to see to it that the loss, which in any event must work a hardship, falls where the law casts it.

The judgment appealed from must be affirmed, with costs.

BaeNAED, P. J., and Gilbeet, J., concurred.

Judgment affirmed, "with costs.