text:
    In the Matter of the Application of the CORTLAND AND HOMER HORSE RAILROAD COMPANY for the Appointment of Commissioners to Settle the Points and Manner of Crossing the Tracks of the SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, and of the DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY.

      Street raih'oads — consent of the abutting 'property owners to its construction— requisites of such consent— Gonstitution, arrt. 3, sec. 18.
    Section 18 of article 3 of the Constitution prohibiting the construction or opera tion of any street railroad, “ except upon the condition that the consent of the owners of one-half in value of the property hounded on * * * that portion of a street or highway upon which it is proposed to construct or operate such railroad-be first obtained,” does not require that the consent of the property owners should be under seal, or that it should convey to the company any interest which the abutting owners may have in the street or highway, or that it should release the company from all liability for any damages which the owners may sustain by reason of the construction or operation of the road.
    Appeal from an order made at a Special Term appointing commissioners to fix the points and manner in which the Cortland and Homer Horse Railroad Company should be allowred to cross the tracks of the Syracuse, Binghamton and New York Railroad Company, and the Delaware, Lackawanna and Western Railroad Company, and the amount of compensation to be paid by the petitioners.

      Bonds Marshall, for the Syracuse, Binghamton and New York Railroad Company and Delaware, Lackawanaand Western Railroad Company, appellants.

      Duel c& Benedict, for the Cortland and Homer Horse Railroad Company, respondent.
   Learned, P. J.:

An examination of the evidence satisfies us that the learned justice was right in holding that there had been a failure to agree in reference to the proposed crossing. It cannot be necessary to refer to the evidence in detail.

Nor do we think the point well taken that the negotiations with Mr. Sloan and Mr. Niver were insufficient, and that an express vote of the board of directors was necessary to show that there could be no agreement.' The decision cited by counsel in Howlett v. New York, West Shore aud Buffalo Railroad Company (36 Sup. Ct. N. Y. [28 Hun], 55, not reported there), does not apply. The powers of a receiver are special, and he is the mere officer of the court. We need not examine very carefully what the books may have said about the powers of railroad presidents. The present question is simply practical. And no one can doubt that if Mr. Sloan, the president, refused to agree on a- crossing, that was the end of the matter, so far as his company was concerned.

Next, the objection to the map filed by the petitioner seems to have no weight, so far as we can judge by the statement. The map is not returned, and we do not know what it contained.

Again, it is claimed that the petition is insufficient:

1. That there is not a sufficient description of the crossing. But the -highway on which the petitioners desire to build their road is plainly specified, and the place where the railroad company’s track crosses it. There can be no difficulty in identifying the place.

2. That the notice given by the petitioner, under section 22 of the General Railroad Act, is insufficient. The alleged insufficiency is that the notice served is not by the company, but is signed, “ James M. Milne, Secretary of the Cortland and Homer Horse Railroad Company.” It is claimed that this is a notice by Milne personally. The notice is sufficient.

3. The remaining point is probably the most important. Section 18, article 3 of the Constitution, forbids the construction of a street railroad, except on condition that the consent of the owners of onelialf in value of the property bounded on it be obtained ; or that the Supreme Court determine that the railroad ought to be con: structed. The petitioners have obtained the consents of the proper number; but the consents are not under seal. The appellants insist that the consents required by the constitution must be such as convey to the railroad an interest in the street; something which cannot be revoked; and that unless under seal, the consent is a mere license. ( Wiseman v. Lucksinger, 84 N. Y., 31.)

Now, in the present case, the paper signed by the owners, in addition to a consent to the construction of the railroad, contains a release of the abutting owners of all right and interest necessary, and a waiver of claims which they might have had. But we do not understand this to be necessary under the constitution. The consent there provided for does not necessarily include a release of damages. It is a mere consent to the construction. This appears from the rest of the section which provides that, if the consent of -the owners cannot be obtained, the Supreme Court by commissioners may determine whether the railroad ought to be constructed, and the determination may be taken in lieu of the consent of the property owners. Now there is nothing which authorizes the court or the commissioners in this proceeding, to assess damages, or to acquire rights of the owners. They are merely to determine as to the necessity of the road — “ whether the road ought to be constructed.” And as this determination stands in lieu of the consent of the owners, it follows that the consent of the owners only determines whether the road ought to be constructed. The consent is to be obtained in order that useless and improper roads shall not' be put into operation. What rights the owners may have for compensation when the road is laid presents another question. We do not think it necessary to discuss that question after the., decision, so difficult to arrive at, in Story v. New York Elevated Railroad (90 N. Y., 122). All that we need to say is, that we do not understand that the consent required by the constitution, any more than the determination of commissioners therein provided requires necessarily a release of the owner’s rights to compensation, if their fee or their easement is injured by the railroad. We think that it is not necessary that the consent should convey to the railroad company an interest in the street. And we think the consents unsealed were sufficient.

The order is affirmed, with costs.

Present — LeaeNjsd, P. J'., BoardmaN and Bocees, JJ.

Order affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    HARRIET M. WILSON, Respondent, v. JOHN KELLY, Sheriff of Otsego County, Appellant, Impleaded with the PEOPLE’S SAVINGS BANK.

      Gloud upon title — when the Ken of an attachment is not — rights of the holder of an unrecorded deed as against subsequent attaching creditors — abuse of the process of the court.

    The complaint alleged that on June 8, 1882, one George B. Wilson conveyed certain real estate, which he then owned, to the plaintiff, who on the same day entered into and still continues in possession thereof as owner; that the deed' was recorded July 31, 1882; that on July 17, 1882, in an action in favor of the People’s Bank against said Wilson, an attachment was issued and a notice thereof filed in the county clerk’s office stating that a levy had been made upon the said land;'that at about that time appraisers were appointed and an inventory of the land was made and filed by the sheriff; that the notice of lis pendens thus became an .apparent lien upon the land and a cloud on the plaintiff’s title, and that the sheriff refused, although requested so to do, to-cancel the levy and release the premises, and that the plaintiff had lost an opportunity to sell the land by reason of the said apparent lien.

      Held, that the facts stated did not entitle the plaintiff to maintain an action tc have the proceedings, in so far as they affected this land, canceled, and' to recover the damages she had sustained.
    That the lien acquired by the filing of the notice of the attachment of the property was subject to the rights acquired by the plaintiff by her unrecorded deed, and did not constitute such a cloud upon her title as would authorize an action, to remove it, especially as no judgment had as yet been recovered by the bank in the action in which the attachment was issued.

      It seems, that if the attaching creditor should abuse the process of the court by neglecting to proceed with his suit, and thus unjustly perpetuate for a long time the lien of the attachment, the plaintiff might have redress as for an intentional abuse of the process of the court.
    Appeal from an order overruling the defendant’s demurrer to-the complaint, and from the interlocutory judgment entered therein.
    The defendant Kelly demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

      Samuel S. Edioli, for the appellant.

      Samuel A. Bowen, for the respondent.
   Learned, P. J.:

The complaint avers that on the 8th day of June, 1882, George B. Wilson was the owner in fee of certain land ; that on that day he conveyed the same to the plaintiff, who went into possession, and is in possession and the owner; that the deed was recorded July 31, 1882; that on the 17th day of July, 1882, in an action in favor of the People’s Bank against said George B. Wilson, an attachment was issued to defendant Kelly, sheriff of the county; and on that day a notice of attachment was filed in the clerk’s office, stating a levy on said land; and about that time appraisers were appointed and an inventory made by the sheriff of said land, and filed in the •clerk’s office; that a notice of Us pendens thus became an apparent lien on the land, and cloud on plaintiff’s title; that she had requested of said bank and of said sheriff to cancel said levy and release the premises, and they have refused; that she had an opportunity to sell this land, and could have sold it, but for said apparent lien She asks that the proceedings, so far as they affect this land be canceled, and that she recover her damages. The defendant Kelly ■demurs.

The Code (§ 649, sub. 1), directs the mode of attaching real property ; which is by filing a notice, similar to the notice of Us pen-■dens. This is tobe recorded in like manner, and with like effect, as & notice of Us pendens. We are not prepared to say that by the words “ with like effect,” it is determined that the attaching plaintiff acquires a lien which is prior to that of an unrecorded deed. The matter decided in Van Court v. Armstrong (November, 1881, Third Department), was in a foreclosure action, not upon an attachment. And certainly the ordinary rule is that an attaching creditor gets nothing more than the debtor had at the time of the levy. Lamont v. Cheshire (65 N. Y., 30) seems conclusive on this point. The ■object of a notice of lis pendens is to prevent a transfer which shall interfere with the plaintiff’s claim ; that is, to enable the court to give, against any subsequent purchaser, the remedy to which the plaintiff would be entitled against the original owner. It is not a means of acquiring a new right. On the contrary an attachment is the acquiring of a lien or right, to which the plaintiff had no previous claim. Therefore it was said in the last case that an attachment may not have priority over an unrecorded deed. Indeed a reference to section 708, subdivision 2, will show that the sheriff, under execution, is to sell only the interest which the defendant had in the real property at the time when the notice was filed or thereafter.

But the plaintiff insists that there is a cloud on her title because in a litigation between herself and' a purchaser under the execution she would have to prove that her deed was executed before the attachment. But this question is carefully considered in Mulligan v. Baring (3 Daly, 75), and a decision adverse to the plaintiff is given.

The plaintiff, however, cites Lehman v. Roberts (86 N. Y., 232), and refers to certain remarks in the opinion as to the cases in which a cloud on title will be removed, stating that it is only when the pretended title or the proceeding which it is apprehended will create one is apparently void. The opinion, however, does not state that, in all of such cases, an action of this kind will be sustained. On the contrary, the next ¿paragraph in the opinion shows that an action like the present ought not to be sustained. We quote a part: “Nor would' the sale of land under execution against a third party be restrained at the suit of a party in possession having the paper title.” Therefore if in the present case the People’s Bank should proceed to judgment and execution against George B. Wilson, and should sell this land, the plaintiff would not be entitled to such an action as this. She should then defend in an action of ejectment, or take proceedings to compel a determination of the claim under section 1638, etc., of the Code Civil Procedure. Still more, it is not yet determined that the bank will ever have a judgment against George B. Wilson. The attachment is only issued to secure a judgment, should one be recovered. In that respect the attachment is different from the certificate under an assessment sale, which, as a matter of course, entitled the purchaser to a deed ; and in regard to which the question of cloud upon title has often been discussed.

We may say however that, if an attaching creditor should abuse the process of the court by neglecting to proceed with his suit, and should thus unjustly perpetuate, for a long time, the lien of an attachment, a person situated like the plaintiff might possibly have redress, on the ground that the process of the court was intentionally abused to the plaintiff’s injury. Nothing of that kind is here.

The judgment is reversed, with costs, and the demurrer sustained • with costs.

Present — Learned, P. J., Boaedman and Potter, JJ.

Judgment reversed, with costs, and judgment ordered for defendant on demurrer, -with costs.


author: Leaened, P. J.:

text:
    HILAND CARPENTER, Appellant v. THE CONTINENTAL INSURANCE COMPANY OF THE CITY OF NEW YORK, Respondent.

      Motion to change the place of trial for the convenience of witnesses — the old rules as to what the affidavits must contain should he strictly enforced.

    The strict requirements, established by numerous decisions, as to the contents of affidavits used on motions to change the place of trial are wise, and the old rules relating thereto should not be relaxed.
    Where the applicant fails to state in his moving affidavits that, without the testimony of each and every of the witnesses named, he cannot safely proceed to the trial of the cause, as he is advised by his counsel and verily believes, the motion should be denied, except possibly in a case where the affidavit is so full and definite as that the court can see that the party could not proceed to tidal without the testimony of each witness.
    Appeal from an order, made at a Special Term, changing the place •of trial from the county of Rensselaer to the county of Washington for the convenience of witnesses.
    i?. A. Parmenter, for the appellant.

      D. M. Westfall, for the respondent.
   Leaened, P. J.:

We think that the strict requirements, established by numerous decisions, as to the contents of affidavits used on motions to change the place of trial are wise. Experience shows that, on these motions, parties often claim that more witnesses will be necessary than are actually called when the trial finally comes on. And as motions of this- kind do not affect the merits of the case, we think it well to hold parties to those forms which have been settled, in order that courts may reasonably determine how many witnesses will in fact be required.

Those forms are explained in an elaborate note to Brittan v. Peabody (4 Hill, 62). The party must state that he has fully and fairly stated, etc., the facts which he expects to prove by each and every of the witnesses; that eadh and every of the witnesses is material and necessary for, etc., as he is advised, etc., and that without the testimony of each and every of said witnesses, he cannot safely proceed to the trial of the cause as he is advised, etc.

The present affidavit is defective in not stating that each and every of the witnesses is material and necessary, and in omitting altogether the statement that without the testimony of each cmd every, etc., he cannot safely proceed, etc.

The importance of these strict rules will appear by examining this case. The affidavit mentions twenty-five facts which are to be proved. The third is that Edward Daily died intestate. That is alleged in the complaint and denied in the answer. Yet the affiant states that he needs three witnesses to prove what he has thus denied.

The first and second facts are alleged and not denied. Yet two witnesses are said to be needed to prove them. The fourth is that no letters of administration were issued. To this two witnesses are said to be needed. It is a mere matter of record. The fifth, sixth and seventh, are alleged in the complaint and not denied in the answer. Yet three witnesses are said to be necessary on these points. The same may be said of the ninth, tenth, eleventh and twelfth ; to which, or some of which, some six witnesses are said to be necessary We do not see that the thirteenth or fourteenth are disputed. Yet some witnesses are stated to be necessary on these points.

Now, without examining the affidavit further, we have stated enough to show the excellence of the forms which have been established. It -is doubtful whether the affiant would have stated that without the testimony of each and every of the twenty-five persons named the defendant could not safely proceed to trial

We are referred to a Special Term case (Austin v. Hinkley, 13 How., 576), which tends to relax the strictness of the old rule. The rule permitting the party to state the nature of the controversy is mentioned in 1 Burrill’s Practice, 43, but with no intimation that the old strictness should be abandoned. And it is better that the uniform rule should be adopted in a matter which, we above remarked, does not affect the merits of the ease. Certainly we think that in this case an adherence to the strict rule would probably have changed the affidavit materially. Possibly an affidavit might be so full and definite that the court could see that the party could not safely proceed to trial without the testimony of each of the witnesses. That is not this case.

It is very likely that the attention of the learned justice who decided the motion was not called to the imperfection of the affidavit. And it is urged by the respondent that therefore it should not be regarded here. We certainly are unwilling generally0to review the discretion exercised in a motion of this kind, thinking that the discretion of the Special Term is as good as that of the General Term. But it seems to us apparent that the moving party could not say that without the testimony of all these witnesses he could not safely proceed to trial. Unless that were the case, the place of trial should not be changed.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, costs of motion to abide event.

Present — Learned, P. L, and Boardman, J.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, costs of motion to abide event.


author: Learned, P. J.

text:
    LEMUEL COFFIN and Others, Appellants, v. WILLIAM H. HOLLISTER, as Assignee, etc., Respondent.

      Evidence — action to recover goods procured hy false representations — when the falsity of representations made prior to the time of the sale may he proved,.

    Appeal from a judgment dismissing the complaint herein, entered upon an order made by the justice upon the trial of this action before a jury.
    This action was brought to recover certain goods or their value sold to Toles & Pettit, assignors of the defendant, by the plaintiffs. The sale was alleged to have been procured by fraudulent representations, as to the credit of Toles & Pettit, which were made by them. The goods were sold and delivered about October 31, 1881, on a credit of sixty days, and have not been paid for. Toles & Pettit made an assignment for the benefit of creditors to the defendant, June 3, 1882. On the trial the plaintiffs were nonsuited.
    The court at General Term, after overruling certain objections made by the appellants, said : “ The plaintiffs offered to show that in March, 1830, and before the first sale, the firm of Toles & Pettit stated to plaintiffs that they were worth from $45,000 to $10,000, and made confirmatory statements down to the last sale, while in fact they were insolvent and the representations were untrue from the first. The court excluded the offer as an entirety, admitting evidence of anything which occurred at the time, and of contemporaneous actions, upon the ground that the pleading was not so constructed as to allow such a range of examination. The complaint alleged that plaintiffs were induced to make the sale of October 31, 1881, on the false and fraudulent representations of Toles & Pettit that they were abundantly able to pay for their purchases, etc., whereas they were then insolvent. The complaint further averred that the goods in question at the time of the commencement of the action were the property of the plaintiffs and were wrongfully withheld by defendant after demand, and the action was brought to recover the goods. . The issue in the action was whether the plaintiffs or the defendants owned the goods. This was not an action to recover damages against Toles & Pettit for fraud. The material allegations in the complaint, therefore, were that the plaintiffs owned the goods and that the defendant wrongfully withheld them from their possession, and the proof to maintain the former allegations consisted necessarily in showing that, the apparent sale of the goods by the plaintiffs was void and passed no' title to Toles & Pettit. If, for instance, Toles & Pettit bought without any intention of paying for the goods, and with a fraudulent design to obtain possession, then it might be held that they gained no title. Now, it seems to us that the allegations of fraudulent statements which are set forth in the complaint might be omitted, and yet a good cause of action would be set forth in the averments that the plaintiffs owneda the goods and the defendant withheld possession. There, it would seem, that any proof tending to uphold the averment of plaintiffs’ ownership was proper.
    “Without citing many authorities it is enough to refer to King v. Fitch (2 Abb. Ct. App. Dec., 508; 1 Keyes, 432), where it is held that in the case of continuous dealing representations made by the buyer long previously may be proved, although the goods then purchased had been paid for, because representations made at any time may be held by the jury to have influenced the seller at subsequent sales. (See, also, ZabrisMe v. Smith, 13 N. Y., 322 ,• Johnson v. Monell, 2 Abb. Ct. App., 410; 2 Keyes, 655 ; Kennequm v. Naylor, 24 N. Y., 139.) Now, if from the first purchase, in March, 1880, Toles & Pettit were insolvent, and if their statements were from the first untrue, certainly there would be strong evidence that the last purchase was fraudulent; and we think that such evidence was admissible, although the plaintiffs had unnecessarily stated in their complaint the representations of Toles & Pettit, for it is to be observed that even the complaint does not allege that the fraudulent representations were made at the time of the last purchase, but only avers generally that such representations were made.

      “We are of the opinion therefore that there must be a new trial, costs to abide the event.”

      Benjamin, H. Hall, for the appellants.

      Nelson Davenport, for the respondent.
   Opinion by

Learned, P. J.

■ Present — Learned, P. J., and Bocees, J.; Boardman, J., not acting.

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


author: Per Curiam.

text:
    In the Matter of the Application of the ULSTER AND DELAWARE RAILROAD COMPANY for the Appointment of Commissioners of Appraisal, Respondent, v. FREDERICK W. GROSS, Appellant.

      Taking of land for public purposes — right to charge the owner with the costs of the proceedings— Constitution, and. 1, sec. 6.
    Appeal by Frederick W. Gross from the appraisal and report of the commissioners appointed in proceedings instituted by the Ulster and Delaware Railroad Company to acquire title to real estate, and from an order confirming the report of the said commissioners and from a clause therein charging the services and expenses of said commissioners against the sum awarded to the appellant for the lands taken.
    The commissioners fixed the damages at $3,500. It was claimed by the company that it had prior to the commencement of the proceedings offered the appellant $4,500 for the land.
    The court at General Term after considering the testimony and holding that the appraisal of damages should be affirmed, said: “ On another point, however, we are of the opinion that injustice was done to him. By the order of the court confirming the award it is found that the railroad company offered the appellant a greater compensation than that awarded by the commissioners.

      “ It appears that the railroad and its predecessor had been occupying the land for many years, apparently under the expectation of some arrangement as to price or under some actual arrangement Finally the appellant, in 1881, brought ejectment. In April, 1882, these proceedings -were commenced. And the railroad company claim that a few months prior to such commencement they made an offer. Of course the acceptance of the offer would have been a voluntary ending of the ejectment suit. Yet apparently the appellant had a good cause of action in that ejectment suit. So the petition indicates, as it avers, the appellant to be the owner in fee. Now, without ■ deciding a question of veracity or of recollection between the conflicting affiants, we may say that the offer if made and accepted would have caused the appellant to lose his costs incurred in the ejectment suit. It could not, therefore, be con•sidered a clean offer of the amount said to have been named. Under these circumstances we think that it would be unjust to compel the appellant to pay the services and expenses of the commissioners herein.
    “We may add here that as private property cannot be taken without just compensation (Const., art. 1, sec. 6), we have great doubt whether the expenses of taking it can ever be charged against the person whose property is taken. Suppose, for illustration, that the value of the property were no greater than the expenses of the compiissioners; if the owner of the property could be made to pay their expenses he would receive no compensation whatever. And whenever he- is made to pay such expenses, he fails to receive just compensation to that extent. We have no occasion to inquire what the effect of this proceeding may be as to the costs in the ejectment suit.
    “ The order is reversed as to the requirement that the services and expenses of the commissioners be paid by Mr. Gross; otherwise affirmed, with costs of the appeal to the appellant against the railroad company.

      William Pounsbury, for the appellant.

      8. L. Stebbi/ns, for the respondent.-
   Opinion

Per Curiam.

Present — Learned, P. J., Bookbs and Boardman, JJ.

Order modified by requiring the railroad company to pay the expenses and services of the commissioners, and as modified affirmed, with costs of the appeal to the owner.


text:
    The People of The State of New York, Respondents v. Lorenzo Baker, Appellant.—
   Judgment and conviction affirmed. Opinion by

Learned, P. J.


author: Bockes, J.

text:
    The People of the State of New York, Respondent, v. William H. Hale, Appellant.

   — Judgment and conviction reversed and prisoner discharged. Opinion by

Bockes, J.


author: Boardman and Bockes, JJ.

text:
    George Sprott, Executor, Appellant, v. Martin H. Shufelt and others, Respondents.—
   Decree affirmed, with costs against appellant. Opinion by

Boardman and Bockes, JJ.


author: Boardman, J.;

text:
    George Gilbert, Appellant, v. Village of Margaretville, Respondent.—
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Boardman, J.;

Bockes, J., dissenting.


text:
    Frederick Blodgett, Respondent, v. James A. Race, Appellant.—
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


author: Boardman, J.,

text:
    Lucy A. Michelson, Appellant, v. Elisha S. Fowler and others, Respondents.

   — Judgment affirmed, with costs. Opinion by

Boardman, J.,

and by Learned, P. J., dissenting.


text:
    Lenora Morenus, Respondent, v. Ira Crawford, Appellant, Impleaded, etc.

   — Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


text:
    John F. Conor, Respondent, v. Frank P. Hilton, Appellant.—
   Judgment of County Court and of Justices’ Court reversed, with costs. Opinion by

Bockes, J.


text:
    The People of the State of New York, Respondent, v. Andrew Campbell, Appellant.—
   Judgment and conviction reversed and new trial granted. Opinion by

Learned, P. J.


author: Boardman, J.

text:
    Augustus Sherman, Respondent, v. The Mechanics and Traders’ Fire Insurance Company, Appellant.—
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Andrew H. Russell, Appellant, v. James C. Hartt, Administrator, etc.—
   Decree affirmed, with costs. Opinion by

Boardman, J.;

Bockes, J., dissenting.


text:
    Ellen Roach, as Administratrix, etc., of Thomas Roach, deceased, Respondent, v. The Fort Orange Paper Company, Appellant.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Sarah J. Uline, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.—
   Judgment and order affirmed, with costs. Opinion by'

Boardman, J.


author: Bockes, J., and Learned, P. J.

text:
    J. Fowler Haight, Respondent, v. Nelson Webster, Appellant.—
   Judgment and order reversed, new trial granted, costs to abide event Opinion by

Bockes, J., and Learned, P. J.


text:
    Clara B. Allen, Respondent, v. Walter S. Allen, Appellant.—
   Judgment reversed, new trial granted, referee discharged, costs ■ to abide event. Opinion by

Boardman, J.


text:
    David S. Patten, Respondent, v. Michael Neal, Appellant.—
   Order affirmed, with costs. Opinion by

Boardman, J.


author: Bocees, J.

text:
    Jacob E. Hogle, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.—
   Judgment affirmed, with costs. Opinion by

Bocees, J.


author: Learned, P. J.;

text:
    Charles E. Patterson, Receiver, etc., Respondent, v. Daniel Robinson and others, Appellants.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Boardman, J., not acting.


text:
    Matter of New York, West Shore and Buffalo Railway Company, Respondent, v. Sidney Yates, Appellant.

   — • Order reversed, with costs, new commissioner to be appointed by Special Term. Opinion by

Boardman, J.;

Bocees, J., taking no part.


text:
    Matter of New York, West Shore and Buffalo Railway Company, Respondent, v. Charles A. Donaldson, Appellant.—
   Order modified so as to pay the present owner the value of ..the dower of wife of grantor, and as modified affirmed, without costs to either party. Opinion by

Boardman, J.


author: Learned, P. J.,

text:
    Charles E. Patterson, Receiver, etc., Respondent, v. Daniel Robinson, Appellant.—
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.,

and by Bocees, J., dissenting.


text:
    Henry Lindsley, Appellant, v. John Vandewarker, Respondent.—
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Tennis H. Haulenbeck, Appellant, v. Alfred Van Nortrand, and others, Respondents.—
   Judgment reversed, with costs, and judgment ordered for plaintiff on demurrer, with leave to defendant to answer on payment of costs of demurrer and of appeal. Opinion by

Bocees, J.


text:
    The People of the State of New York ex rel. Catharine Stanton v. Peter Snyder and others, and twelve other cases.—
   Decisions already handed down, setting aside assessment and apportionment. Opinion by

Boardman, J.


text:
    John H. Miller, Appellant, v. Sarah A. Rodgers and others. —
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Ellen Urquhart, Appellant, v. The City of Ogdensburg, Respondent.—
   Judgment and order affirmed, with costs. • Opinion by

Bocees, J.


text:
    James W. Nellis, Respondent, v. The Village of Nelliston, Appellant.

   — Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    James Hall, Respondent, v. Benjamin F. Chandler, Appellant.—
   Judgment affirmed, with costs. Opinion by

Bocees, J.


text:
    In the Matter of the Will of Samuel Cottrell.—
   Decree affirmed, vdth costs against appellant. Opinion by

Boardman, J.


text:
    Elizabeth G. Chipman, Appellant, v. Village of Saratoga Springs, Respondent.—
   Order affirmed, with costs. Opinion by

Bocees, J.


text:
    Catharine J. Wise, Respondent, v. The Phoenix Insurance Company of Hartford, Connecticut, Appellant.

   — Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Elisha Ayers, Appellant, v. Wilson H. Sherman and others, Respondents.—
   Judgment of County Court affirmed, with costs. Opinion by

Boardman, J.


text:
    Denis Larmore, Respondent, v. The Crown Point Iron Company, Appellant.—
   Judgment and order affirmed, with costs. Opinion by

Bockes, J.


text:
    Henry Weiderwax, Jr., Appellant, v. Sherman Jaqua, Respondent.

   — Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Mary McAlear, Respondent, v. Annie E. Delaney, Appellant, Impleaded, etc.

   — Appeal discharged, with ten dollars cOsts and printing disbursements. Opinion by

Bockes, J.


author: Learned; P. J.

text:
    Maria Miller, Respondent, v. Henry L. Miller and others, Appellants.

   — Order affirmed, with costs. Opinion by

Learned; P. J.


text:
    The People of the State of New York ex rel. Harry F. Crooks v. H. O. Sweet and others, Referees, etc.—
   Order reversed, without costs. Opinion by

Boardman, J.


text:
    In the Matter of Highway between Towns of Louisville and Madrid.—
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by

Bockes, J.


text:
    William H. Silvernail, Appellant, v. Eve Malvina Felts, Respondent.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Horton Cothrell, Appellant, v. Ellwood Griffin and another, Respondents.

   — Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Isaac B. Potter, Appellant, v. The Village of West Troy, Respondent.

   — Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Learned, P. J

text:
    Adelia M. Greenman, Respondent, v. Ira W. Watkins, Appellant.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J


text:
    Oliver J. Peck, Respondent, v. Bradley Nichols, Appellant.—
   Judgment of County Court reversed, and that of Justices’ Court affirmed, with costs. Opinion by

Boardman, J.


text:
    Robert Perguson, Respondent, v. Catharine McDonough, Appellant.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J.,

and'by Bockes, J., dissenting.


text:
    Frederick W. Crandall, Appellant, v. Mary Fowler and others, Respondents.

   — Judgment affirmed, with costs. Opinion by

Learned, P. J.,

and by Bockes, J., dissenting.


text:
    George W. McNish v. Carrie A. Bowers.
   — Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    John McMahon, Appellant, v. The Port Henry Iron Ore Company of Lake Champlain, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Bookes, J., taking no part.


text:
    Henry Hildreth, Respondent, v. City of Troy, Appellant.

   — Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Kate Devny v. City of Albany.
   — Judgment reversed, new trial granted, costs to abide event, on opinion of Court of Appeals in Salisbury v. Village of Ithaca.


text:
    John McNeary v. Herbert D. Chase.
   — Motion for reargument denied.


text:
    Matter of Petition and Charges against John J. Hassett, Assistant Police Justice.
   — Motion denied.


text:
    Seth Velsey, Respondent, v. Charles M. Velsey, Appellant.—
   Judgment of County Court affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    Walter S. Church, Landlord, Respondent, v. Paul Shultes and another, Tenants, Appellants.

   — Order reversed, with costs, and proceeding sent back for trial. Mem. by

Boardman, J.


text:
    The People of the State of New York ex rel. Charles Bray, Mayor, etc., Respondent, v. The Board of Supervisors of Ulster County, Appellant.

   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    Benjamin S. Codman and others, Respondents, v. William B. Putnam, Appellant.

   — Order reversed for defects in affidavit, without costs and without prejudice to renewal.


text:
    Louis Isenberger, Respondent, v. William C. Herrick and another, Appellants, Impleaded, etc.

   — Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Motion to dismiss appeal denied, without costs.


text:
    Edward J. Chapin, Respondent, v. Walter J. Foster, Appellant.—
   Order reversed, with ten dollars costs and printing disbursements, and motion to vacate granted, with ten dollars costs on decision in Ætna Insurance Company v. Shuler (28 Hun, 338), on defendant stipulating not to sue for false imprisonment.


text:
    Allen Godden, Appellant, v. Andrew Whipple and another, Administrators, Respondents.

   — Judgment of County Court affirmed, with costs.


text:
    Adaline Wright, Respondent, v. Isabella S. Conger, Appellant, Impleaded, etc.

   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    John Harwood, Respondent, v. Thomas D. Beadle, Appellant. —
   Judgment reversed, reference discharged, costs to abide event. Appeal from order dismissed, with ten dollars costs. Mem. by

Boardman, J.


text:
    David Baker, Appellant, v. Sarah A. Witherell, Respondent, Impleaded, etc.

   — Judgment reversed, reference discharged, new trial granted, costs to abide event. Mem. by

Boardman, J.


text:
    Timothy Dillon and another, Respondents, v. James L. Ingalsbe, appellant.

   — Judgment affirmed, "with costs.

Potter, J., not acting.


text:
    Hermenegilde Prefontaine, Appellant, v. Joseph M. Warren and another, Respondents.

   — Judgment affirmed, with costs.


text:
    Charles E. Cone, Respondent, v. Roswell Warner, Appellant.

   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Warren Bennett and another, Appellants, v. Robert Nelson, Respondent.

   — Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Oscar Hopkins, Appellant v. Harriet Scott, Respondent.

   — Judgment affirmed, with costs.


text:
    Frederick E. Illston and another, Respondents, v. Richard Parker, Appellant.—
   Judgment affirmed, with costs.


text:
    In the Matter of the Estate of Thomas McBride, Deceased.—
   Order affirmed, with ten dollars costs and printing disbursements. Mem. by

Learned, P. J.


text:
    William W. Hare, Appellant, v. Henry Schofield, Respondent.—
   .Judgment and order affirmed, with costs.


text:
    C. Meech Woolsey, as Receiver, etc., Respondent and Appellant, v. Ezekiel S. Elting and another, Appellants and Respondents.—
   Judgment affirmed, without costs. Mem. by

Learned, P. J.


text:
    Edward Hughes, Jr., Respondent, v. Charles M. Baxter, Appellant.—
   Judgment of County Court and of justice reversed, with costs, and judgment rendered for defendant, with costs. Mem. by

Learned, P. J.


author: Barnard, P. JT.:

text:
    PETER C. MOORE and Others, as Commissioners of Highways of the Town of New Utrecht, Appellants, v. THE BROOKLYN CITY RAILROAD COMPANY, Respondent.

      Construction of a railroad on a highway — commissioners of highways have no power to compel it to keep its track there.

    Tlie defendant, in pursuance of lawful authority, constructed and operated its railroad from the city of Brooklyn through certain public roads in the town of New Utrecht to its terminus therein. Its right to so construct its road was made dependent upon its first procuring the consent of the commissioners of highways of the town and of the abutting property owners. Both of these consents were procured. Thereafter the company proposed to abandon a portion of its route adjoining its terminus, and to construct, at its new terminus, a track across the sidewalk to an adjoining lot owned by it, upon which it intended to change its engines from one track to. another.
    In an. action brought by the commissioners of highways to enjoin the defendant from abandoning this portion of its route and from constructing the track across the sidewalk:
    Held, that the court properly refused to continue a temporary injunction in tl:e action.
    That it was no part of the plaintiff’s duties to compel the company to keep their railroad upon the highway.
    That if the consent of the abutting property owners was conditional they alone could enforce the condition.

      town of New Utrecht and abandoning the same, and also from laying down tracks across the public sidewalk without the consent of the highway commissioners.
    The object of the company in constructing tracks across the sidewalk is to consummate the abandonment of that part of the road which lies between the terminus adjoining Fort Hamilton and a point on Stewart avenue, near Denyse street, by terminating the road on the street at that point and connecting it with the terminus which it proposes to locate on its own private property, about 200' feet beyond the fixed line of the road, where it intends to change the engines from one track to the other, and thereby avoid the necessity of running its cars to the end of the route, where the engines are now changed from one track to the other by means of a “ Y ” switch there located.
    The defendant was organized under the general railroad law of the State for the purpose of operating street railroads within the limits of the city of Brooklyn. Shortly after its organization an act was passed (chap. 77, Laws 1854) authorizing it to extend its-railroads beyond the city limits, through the towns of the county of Kings, upon any road or highway, and to regulate and grade the same for such purpose on obtaining the consent of the supervisor and commissioners of highways of the town, and of the abutting property owners. The company obtained the requisite consents and constructed its road in 1861.

      Wm. Sullivan, for the appellants.

      Mory'is c& Pearsall, for the respondent.
   Barnard, P. JT.:

When the commissioners gave their consent to the construction of the defendant’s road in the town of New Utrecht, upon the highways, their duty was done. After that they could require the restoration of the streets to their former usefulness. It was no part of their duty, and was not within t'heir power to make it obligatory upon the railroad company to always keep their road upon the highway. If the defendant’s company take up the track and restore the road, it is all which the plaintiffs as commissioners can enforce. If the consent of the land-owners was upon a condition, they must enforce it. The plaintiffs are limited to tbe rights of the public to the highway and to the enforcement of the duties of the railroad company to the highway. (Chap. 255, Laws 1855.) If the act proposed by defendants is accomplished it,will discontinue a part of the railroad and entirely relieve the highway from it, and if the highway is properly restored the plaintiffs will be put back where they were before the consent was originally given. A consent to a railroad in the street with either steam or horse-power, carries with it the right to connect passenger stations or depot yards or stables with the street railroad. A bill in equity may be the proper remedy for an improper or dangerous method in carrying out the plans. A preliminary injunction should not be issued to restrain the connection on- a general averment that it will be dangerous.

The commissioners have power to see that the rights of the people to the highway are preserved, and the company are to grade the road under the direction of the commissioners. (Chap. 11, Laws of 1854, § 2.)

The order dissolving the injunction should be affirmed, with costs.

Dtkman and Pratt, JJ., concurred.

Order vacating injunction affirmed, with costs.


author: Barnard, P. J.:

text:
    DARIUS H. JOHNSON and JEFFERSON B. CONLEY, Appellants, v. CAROLINE H. MEEKER and Others, Executors, etc., of WILLIAM H. MEEKER, Deceased, Respondents, Impleaded with JOSEPH F. DEAN.

      Contract for the use of a barge — failure of the defendant to perform on his part— right of the plaintiff to use the ba/rge in order to diminish the amount of damage occasioned by the defendants refusal to use it —judgment — when a ba/r.

    The plaintiffs agreed with the defendants, coal dealers, to furnish a barge, with a captain and crew, to transport coal from. Hoboken to Fall River from March 1, 1876, to January ^ 1877, for a stipulated sum per month. The barge was furnished and made three trips, but after that the defendants refused to employ it and she lay idle until the first part of September, 1876, when the plaintiffs gave notice to the defendants that they would -employ the barge in other business and hold the defendants responsible for the loss, if any. The defendants claimed that the plaintiffs represented, when the agreement was made, that the barge was able to carry 600 tons of coal around Point Judith in the summer and 575 in the winter, and also that the cost of towing the barge would not exceed $175 per trip, bio proof was given on the trial as to the making or as to the falsity of these representations.
    The court below held that the act of the plaintiffs in taking possession of and using the barge in September, 1876, after serving the aforesaid notice, canceled the contract and relieved the defendants from further liability thereon.

      Held, that this was error.
    That after the defendants’-refusal to perform the contract on thfeir part the plaintiffs were entitled to use the barge so as to diminish as far as possible ■ the damages occasioned by the defendants’ wrongful act.
    A judgment in an action, based upon an actual performance of a contract, is not a bar to an action brought to recover damages for its subsequent breach.
    Motion by the plaintiffs for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the defendants.

      Joseph A. Shoudy, for the appellants.

      Hamilton Odell, for the respondents.
   Barnard, P. J.:

The proper disposition of this case was not made at the trial.

The plaintiffs were owners of a barge. Meeker and Dorn, who are represented by the defendants, were coal dealers. It was part of their business to transport coal from Hoboken to Fall river. The season, so called, for this business was from about first of March to about first December. The scrap of writing, with the evidence and pleadings, make plain what. the contract was. The plaintiffs were to furnish this barge, properly supplied with captain and crew for this purpose, from the 1st of March, 1876, to 1st January, 1877, at $300 per month, for two trips per month. As no more trips than two in each month were made, it is immaterial what was intended by the clause in the paper as to dividing the excess equally. It probably meant that for a third trip in one month only half price was to be called for, seventy-five dollars per trip in excess of two. The answer does not deny that the agreement was for a term of months, but the defense made is that the plaintiffs represented the barge able to carry 600 tons of coal around Point Judith, in the season of transportation, so called, and 575 tons during the winter. Also, that the towing could be and would be furnished at $175 per trip. That the barge could not carry 600 tons, and the towing costs :$250 per trip, and that after three trips, defendants declined to •employ the barge further. After the three trips the barge lay idle until the latter part of September, 1376, when the plaintiffs gave notice to the defendants that they would employ the barge in other business, and hold the defendants responsible for the loss, if any. This act was held by the court to annul the contract after that date. This was so held upon the ground that the defendants were in the possession of the barge, and that the taking it therefore was an •eviction. Although the complaint avers, and one of the plaintiffs testifies that the barge was in possession of the defendants, the fact is plain that there was no such possession in defendants as to make the employment of the barge, under the circumstances, wrongful.

A contract once made is to be performed according to its spirit. The plaintiffs agreed to furnish a boat and men with which the defendants could freight coal. They were to keep the barge constantly ready to perform. After a refusal to receive performance by defendants the plaintiffs were at liberty to use their property so as to relieve the defendants from all unnecessary damage. They were not bound to keep men in idleness and to have their barge suffer from disuse and exposure, such as the evidence details, and sue finally upon the contract as if performed. The contract was broken when the defendants refused to perform. All after that became a mere •question of damages. If the defendants upon receiving the notice, that the plaintiffs would use the vessel on their account to the best •advantage possible thereafter, had spoken, a different question would have been presented. They did not speak, but as it now appears Telied upon a legal excuse for repudiating the contract altogether. This defense required proof and none was furnished.

In contracts for labor it has always been the rule, that upon a refusal to receive the" labor the employed is bound to seek other ■employment and reduce the damage. The old rule required him to prove his effort and failure. Now after refusal to secure labor it is incumbent upon the employer to prove that the employed could have obtained employment and refused. As to lands, to secure the lessee there must be proven a surrender which implies a determining of possession and an acceptance and discharge of the tenant from his obligation. We think there is no case which holds that an employment of the men and vessel under circumstances similar to those presented in this case works an abrogation of the contract, On the contrary, we deem the law to be otherwise. That the plaintiffs only did their duty.

The question of the bar of the former judgment is not so clear. When a contract is entire, as this one was, there can be but one action for the breach. If the contract was rescinded before the former action was brought the judgment would be a bar. No reason is apparent until the defendants gave notice of a refusal to perform it. The complaint in the former action was for monthly earnings of the crew and boat. The defendants -had and used it. A breach on the first of October would still entitle the plaintiffs to recover the damages sustained after the breach.' As the case stands there is no bar by the former judgment; that.action was based upon an actual performance.

The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.

Pratt and Dykman, JJ., concurred.

Exceptions sustained and new trial granted, costs to abide event


text:
    ANDRE GUSTAF, Appellant, v. THE AMERICAN STEAMSHIP COMPANY, Respondent.

      Practice— a party to an action cannot be compelled to appea/i' for examination before trial in any county other than the one in which he resides or has an office — Code of Civil Procedv,re, sec. 886.
    Under section 886 of the Code of Civil Procedure, a party to an action cannot be required to appear for an examiaation before trial in any county other than that in which he resides or has an office for the regular transaction of business in person.
    The t^ct that the action is brought and is to be tried in such other comity does not authorize the court to require him to go out of the county of his residence.
    Appeal from an order made at a Special Term, denying the plaintiff’s motion to vacate an order obtained by the defendant requiring him to appear for examination before trial, in the courthouse iu the 'city of Brooklyn. The plaintiff resided in the city of New York. The place of trial of the action was Kings county.
    ,/. Edward Swanstrom, for the appellant.

      Edward 8. Hubbe, for the respondent.
   Barnard, P. J.:

By section 886, .Code of Civil Procedure, when a person to be examined before trial, resides in the State, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. The plaintiff resides in the city and county of New York, and has no office in Kings county. The order requires him to appear in Kings county to be examined. The fact that the place of trial -of the action is designated to be Kings county does not enlarge the power to require a party tq go out of the county of his residence: The section makes no exception, in favor of counties in which the place of trial is placed. An examination before trial rests upon article 1, of title 3 of the Code, and that article restricts the place of examination in all cases to a county in which a person resides.

The order should be reversed, with costs and disbursements.

Dykman and Pratt, JJ., concurred.

Order reversed, with costs and disbursements.


author: Barnard, P. L:

text:
    CAROLINE BENGSTON, Respondent, v. THINGVALLA STEAMSHIP COMPANY, Appellant.

      Pleadings — allegation that the defendant isa corporation — -what averments in the answer do not raise an issue as to this fact— Code of Civil Procedure, see. 1776.
    The plaintiff alleged in the complaint in this action, “that the defendant is, and was at the times herafter mentioned, a foreign corporation created by and under the laws of the government of Denmark, and having an office in the city of New York, and at the times hereinafter mentioned was, and now is, a commoiííbarrier of passengers and their baggage for hire.” The defendant appeared' by the name by which it was sued, and in its answer denied “ on its information and belief, that at the time mentioned in the complaint, or at any other time, the defendant was a foreign eorp&ration, as is alleged in the complaint, and defendant denied that it has an office in the city of New York, and further answering the defendant admits that it is a common carrier of passengers.” Dor a second and separate defense it alleged “ on inf ormation and belief that it is not and never was a corporation.”

      JBefd, that the answer did not contain such “an affirmative allegation,” that the defendant was not a corporation, as is required .by section 1776 of the Code of Civil Procedure to compel the plaintiff to. prove the fact of its corporate existence.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the value of a trunk and its contents which were received by the defendant at Malmo, Sweden, to be delivered in New York.
    The complaint alleged among other things: “ First. That the defendant is, and was at the times hereinafter mentioned, a foreign corporation cheated by and under the laws of the government of Denmark, and having an office in the city of New York, and at the times hereinafter mentioned was, and now is a common carrier of passengers and their baggage for hire.”
    The answer alleged, among other things: “ First. The defendant denies on its information and belief that at the time mentioned. in the complaint, or at any other time, the defendant was a foreign corporation, as is alleged in the complaint, and defendant denies that it has an office in the city of New York. And further answering the defendant admits that it is a common carrier of passengers. * * * Second. For a second and separate defense, the defendant alleges on information and belief that it is not, and never was a corporation.”
    The court below held that the answer did not put in issue the corporate existence of the defendant, and that the plaintiff was not bound to prove that fact.

      J. A. Shoudy, for the appellant.

      J. Edward Swanstrom, for the respondent.
   Barnard, P. L:

There was no issue made by the answer which required the plaintiff to prove the corporate existence of the defendant. The complaint averred that the defendant was a foreign corporation, incorporated under the laws of the kingdom of Denmark, and was a common carrier of passengers. The defendant appears in its own name, which apparently is a corporate name, and admits that “ it is a common carrier of passengers,” but “ denies, on its information and belief, that at the time mentioned in the complaint, or at any other time, the defendant was a foreign corporation as is alleged in the complaint.” The denial, such as it is, is not absolute, but upon information and belief, and especially fails to meet the real allegation. Was it a corporation under the laws of Denmark or of any other nation ? If Swedish, the allegation in the complaint that it was Danish would be of no relevancy. The denial is so framed that the defendant can be either a foreign or domestic corporation, formed in any country except Denmark. ,The only issue made is one of nationality of the corporation. The Code (§ 1776) requires an affirmative denial of the fact that the defendant is a corporation. The judgment is therefore right, and should be,affirmed, with costs.

Dtkman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    MATHEW C. UHRIG, Appellant, v. THE WILLIAMSBURGH CITY FIRE INSURANCE COMPANY OF BROOKLYN, NEW YORK, Respondent.

      Policy of insurance against fire — condition that the amount of the loss should be determined by arbitrators — compliance with the conditions dispensed with, if the company act in bad faith.

    The defendant issued to the plaintiff a policy insuring him against loss by fire, which provided that in case of a disagreement as to the damages each party should select an arbitrator, and that the two so selected should determine the loss, and in case they were unable to agree that they should appoint a third, and that the decision of two of the three should determine the loss. Evidence was given tending to.show that after the loss each party appointed an arbitrator; that the defendant did not make its appointment in good faith, and that the arbitrator appointed by it was not intended to appraise the loss, and refused to do so, in order to force a settlement; that he and the company refused to appoint another arbitrator until after the property had been removed, so that no appraisal could be made.

      Held, that the failure of the company to act with good faith in making the first appointment, excused the plaintiff from complying with the condition of the policy, and authorized him to bring an action upon the policy.
    That his right so to do was not affected by the fact that the company had, previous to his so doing, offered to again refer the matter to arbitrators, to be mutually appointed.
    Appeal from a judgment in favor of tbe defendant, entered on tbe dismissal of tbe plaintiff’s complaint at tbe circuit.
    Tbe action was brought to recover tbe value of certain articles of personal property, which were destroyed by fire, and were deemed tq be covered by a policy of insurance issued by tbe defendant.

      P. Keady, for the appellant.

      Albert G. McDonald, for tbe respondent.
   Barnard, P. J.:

Tbe court erred in dismissing tbe plaintiff’s complaint. Tbe action was for a loss by fire upon a policy of insurance. Tbe policy contained a condition that in case of a disagreement as to damages each party should select an arbitrator and' the two mould establish tbe loss, and upon a failure to agree that they should appoint a third, and that two out of the three should settle tbe amount. Each party did appoint one. There was proof tending to show that the defendant did not appoint these appraisers in good faith, and that the appraiser was not intended to appraise, but to refuse to appraise so as to force a settlement. That- he and the company refused to appoint another man to make up the board until after the property had been removed and cleared up, so that an appraisal could not well be made, if at all. This would not be answered if subsequently the company tendered an offer, again to refer to the arbitrators to be mutually appointed. If the first appointment was not in good faith, and was designed to accomplish an ulterior purpose and not an appraisement according to the spirit of the contract, the plaintiff was relieved from the condition and could sue in the ordinary way and have his damages assessed by a j'ury. It' was for the j’ury to say from the evidence whether the condition was broken.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt and Dykman, JJ., concurred.

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


author: Barnard, P. J.: Dykman, J.

text:
    MARY A. SEYBOLT, as Administratrix, etc., of DANIEL H. SEYBOLT, Deceased, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Postal cleric traveling in a postal car is to bé rega/i'ded as a passenger —his right to recover for a negligent injury received from the company is not affected by the fact that the company has given him a conditional pass. f

    The defendant carried tlie mail for the United States without any special contract under the provisions of the United States Revised Statutes, which require the cars to be properly fitted up for the accommodation of the clerks to accompany and distribute the mails. Upon the requisition of the proper government officer passes were issued by the defendant for the clerks employed in caring for and sorting the mails so carried. A pass was issued to the plaintiff’s intestate, who was a clerk in the employ of the post-office department, which provided that the person accompanying it assumed, in consideration therefor, all risk of accident, and expressly agreed that the company should not be liable under any circumstances, whether of negligence of their agents or otherwise, for any injury to the person, and that he would not consider the company as common carriers, or liable to him as such.
    In this action, brought to recover damages for the deatfi of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendant:

      Held, that the clerk was entitled, under the contract between the government and the defendant, to protection as a passenger.
    That he was not affected by the terms and conditions of the pass, which were not a part of the contract made with the government, and were not sustained by any consideration.
    That he was entitled to recover. (Dykman, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the damages sustained by the plaintiff by reason of the death of her husband, which was alleged to have been caused by the negligence of the defendant. The intestate, who was a postal cleric, was killed by reason of injuries caused by the train of car's in which he was being thrown from the track. The defendant had, upon the requisition of one of the officers of the post-office department, issued to the intestate a pass, upon the back of which was printe4 a condition, providing that “ the person accepting this free pass assumes in consideration therefor all risk of accident, and expressly agrees that the New York, Lake Erie and "Western Railroad Company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, or for any loss or injury to the property of the passenger using this pass. And he also agrees that as for him he will not consider the New York, Labe Erie and Western Railroad Company as common carriers, or liable to him as 'such.”
    Section 4005 of the United States Revised Statutes requires “ that all cars for the post-office railway car service shall be properly fitted up, furnished, warmed and lighted for the accommodation of the clerks to accompany and distribute mails.” Sections 4000, 4001, 4002, 4003, 4004, also relate to this subject.

      Lewis E. Carr, for the appellant.

      J. F Seybolt, for the respondent.
   Barnard, P. J.:

The deceased was a postal clerk, and the defendant was a carrier of the mails for the government by contract. It was a part of this contract that the postal clerks should be carried free. In such cases the clerks are passengers and entitled to protection as such. (Blair v. The Erie Railway, 66 N. Y., 313.) The clerk was not traveling upon a free pass. The government officers made requisition for passes under the contract and the defendant sent one, with a condition upon the back of the pass making the recipient agree to waive his right to sue for injuries occasioned by the negligence of the railroad company. This was not a part of the contract between the government and the defendant, nor o.f the contract between the government and the deceased. There was no basis for such a restriction upon the carrying of the clerk. There was no consideration moving either between the government or deceased and the defendant. The question of fact properly arising upon the evidence having been found in favor of the plaintiff, the judgment should be affirmed, with costs.

Pratt, J., concurred.

Dykman, J.

(dissenting):

This is an action under the statute to recover damages for causing the death of Daniel H. Seabolt, a postal clerk in the railway mail service, who was killed on the defendant’s road on the 22d day of January, 1881, while in the discharge of his duties.

Assuming on the finding of the jury that the death of the deceased man came from the negligence of the defendant, yet very serious questions are presented for consideration.

There was a contract between the United States government and the defendant requiring the latter to carry the mail, and the person in charge of it, but the plaintiff cannot avail herself of that contract to furnish the foundation for this action, because it was made with no reference to her or her intestate. (Nolton v. W. R. R. Co., 15 N. Y., 444.) Neither can there be an implication of a contract to exercise care and diligence toward the deceased, because the inference is repelled by the fact that he was not riding under an independent contract, but was riding either in virtue of the contract with the government or on the pass to be mentioned hereafter. At the same time the deceased was a passenger and not an intruder on the train when he met his death, and the defendant was under obligation to exercise some care and skill in his transportation.

This duty arose from the general rule of law which imposes on all persons who undertake a duty, even gratuitously, to exercise some care and skill in its performance, and is entirely independent of any contract. The basis of liability for a failure in the discharge of this duty is negligence, and if there was no waiver of this liability, a recovery may be maintained against the defendant in this action on that principle.

So we are brought to the examination of the question of waiver, which must be predicated on the following facts: A pass was obtained from the defendant by the agent of the government for the deceased, and sent to him, the important portions of which are as follows : “ New York, Lake Erie and Western Railroad Company, January, 1881. Pass D. H. Seabolt on account United States Post Office Department, free, while oh duty this month between New York and Dunkirk, subject to the condition-on the back of this pass.” * * * On the back was this : “ The person accepting this free pass assumes, in consideration thereof, all risk of accident, and expressly agrees that the New York, Lake Erie and Western Railway Company shall not be liable under any circumstances whatever of negligence by their agents or' otherwise for any injury to the person, or for any loss or injury to the property of the passenger using this pass.” * * *

There has been much diversity of judicial opinion respecting the effect to be permitted to similar language on railroad passes, but the right to stipulate for immunity and exemption from responsibility for negligence has been finally recognized and affirmed in this State in many cases in our highest appellate court. (Bissell v. N. Y. Central R. R. Co., 25 N. Y., 442; Poucher v. Same, 49 id., 263: Mynard v. Syracuse, etc., R. R. Co., 71 id., 180.) The language employed in this case is sufficiently broad and comprehensive to be allowed the effect claimed by the defendant. It is clear and unmistakable that the defendant shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, or for any loss or injury to the property of the passenger using this pass.”

The deceased man received and accepted this pass containing this language, and was in possession of it at the time of his death. Such acceptance constituted a contract between him and the company, by which he waived liability by reason of-negligence.

Our conclusion therefore is, that the plaintiff cannot avail herself of the contract between the government and the defendant, because it was not made with or for the deceased; and that although the defendant owed the deceased the duty of care because it had undertaken to carry him, and he was rightfully on the train, the performance of that duty was waived by the acceptance and use of the pass containing the stipulation for exemption.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


text:
    JANE E. BULLARD, Appellant, v. ARTHUR W. BENSON and Others, Executors, etc., of JOHN BULLARD, Deceased, Respondents.

      WiU — devise and bequest to widow in lieu of dower and all claims against the estate — when she cannot share in lapsed legacies which pass to the next of kin.

    The will of tlie defendant’s testator, after giving certain legacies, gave to the widow certain real and personal property and a life estate in one-fifth of the residue, provided that" it is my will, and I do hereby declare, that the devises and bequests hereinbefore made to and for the benefit of my beloved wife Jane E. Bullard are made and shall be accepted and received by her in lieu and bar of dower, and of all claims she may have upon or against my estate as my widow.” Two of the legacies lapsed.
    Held, that these legacies were undisposed of and should be paid to the next of kin.
    That the widow was excluded by the provisions of the will from sharing in the distribution thereof, as in ordinary cases of intestacy.
    . Appeal from a decree of the surrogate of Kings county, made upon tlie final settlement of the accounts of the executors of John Bullard, deceased.
    John Bullard died leaving a will by which, after giving certain legacies, he disposed of his residuary estate by giving two-fifths thereof to his brother "William, one-fifth to his nephew John, one-fifth to his nephew Lewis H., and a life estate in the remaining fifth to his widow, with the remainder over to his brother and nephews.
    In settling the estate the widow claimed, among other things, to be entitled under the statute of distribution to a portion of two of the legacies which had lapsed by the death of the legatees in the lifetime of the testator, and also that in determining the amount of .the residuary estate the income received by the executors after the death of the testator should be included therein. Both of these demands were overruled by the surrogate.

      Charles J. Lowrey and James .Emott, for the appellant.'

      Benjaman D. Silliman and Philip H. Adee, ' or the executors, respondents.
   Barnard, P. J.:

The testator, by his will, devised real estate to his wife and cash to a large amount, and made her the legatee of the life estate of one-fifth of his residuary estate, real and personal. By the twenty-fourth clause of the will he provides that “ it is my will, and I do hereby declare that the devises and bequests hereinbefore made to and for the benefit of my beloved wife, Jane E. Bullard, are made and shall be accepted and received by her in lieu and bar of dower and of all claims she may have upon or against my estate as my widow.” The will gave legacies to a brother and cousin who died before the testator, and these legacies lapsed. Those legacies are under the case of Kerr v. Dougherty (79 N. Y., 327), undisposed of and pass to the next of kin. The question presented is whether the widow takes the usual widow’s portion of those legacies as in cases of intestacy. The question is answered by the Court of Appeals in Chamberlain v. Chamberlain, (43 N. Y., 424). In that case there were bequests to the widow in lieu of dower and any other shares and interest in the estate. Some of the legacies were void, and it was held that the widow must be excluded from receiving any part thereof. There is no difference between a lapse and an invalid disposition in other ways as by an illegal bequest. The legacies in such eases fail and the property is undisposed of. The words in the present will, in reference to the widow’s exclusion from the estate, are fully as comprehensive as in Chamberlain v. Chamberlain. The court say: “ The words employed are sufficient to exclude the widow’s claim to recover any part of the estate not specifically given to her by the will. The testator in substance declares that his widow shall, if she takes under the will, receive so much and no more, and that the same shall be in satisfaction of every other claim and demand upon the estate and every part of it.”

The condition was imposed, not for the benefit of other legatees, but as a limitation of the claims of the widow upon the estate. These words would be sufficient to exclude the wife, if she accepted, from all participation in the estate, if the remainder was wholly undisposed of by the will, and as to those legacies that is the position in which the appellant stands.

The remaining portion of the decree appealed from is correct. As to the appellant, the residuary estate is what is left after payment of legacies and costs and expenses of the execution of the will and of the accounting. This includes the commissions of the executors. The interest allowed to the appellant upon her legacy must be deducted before the residue is reached.

The part of the decree appealed from should be affirmed, with costs.

Pratt and Dykman, J J., concurred.

Part of surrogate’s decree appealed from affirmed, with costs.


text:
    GEORGE S. ALLISON, Respondent, v. ROSA SCHMITZ and Others, Appellants.

      Usury — when a valid mortgage is not affected by a subsequent usurious agreement, although it be held by the party guilty of the usury.

    The plaintiff made a usurious agreement with the defendant Schmitz, whereby he agreed to loan to the latter $3,000; $2,500 of which was to be used in paying off an existing mortgage, the balance to be paid in cash. The plaintiff paid the amount of the first mortgage to the holder and took an assignment thereof. He also took the new mortgage for $3,000, which was subsequently decided to be usurious and void.
    In this action, brought to foreclose the $2,500 mortgage assigned to the plaintiff: Held, that he acquired a perfect title thereto by the assignment and was entitled to foreclose it. ,
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mortgage.

      G. P..Hoffman, for the appellants.

      Irving Brown, for the respondent.
   Barnard, P. J.:

The plaintiff agreed to loan to the defendant Schmitz, $3,000. The loan was made to pay» a mortgage existing upon the property of $2,500, and the remainder in cash. The agreement was usurious. The plaintiff paid the prior mortgage and took an assignment of it to himself. He also took a mortgage for $3,000, which sum included the old mortgage and the cash advanced. The $3,000 mortgage was decided void for usury. This action is brought to foreclose this $2,500 mortgage. The mortgage in. question was not, in fact, paid by the defendant. -It was a' valid claim against her and the plaintiff paid the amount of the same to the holder and took an assignment. The amount was paid from the amount of the loan agreed to be made by defendant. The creditor was changed but the debt remained.

Schmitz had paid nothing. If this payment had been included in usurious mortgage the debt paid could still have been received and collected. (Patterson v. Birdsall, 64 N. Y., 294.)

If the plaintiff had himself owned the first mortgage and had taken the $3,000 mortgage under similar circumstances he could have enforced the old mortgage which, was free from usury. (Gerwig v. Sitterly, 56 N. Y., 214.)

The invalid mortgage cannot be used as a defense to a valid claim, ( Winsted Bank v. Webb, 39 N. Y., 325.)

The plaintiff acquired a perfect title to the first mortgage by the assignment although the $3,000 mortgage was usurious, and although, he had agreed to pay the first mortgage out of the second loan.

■ The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


text:
    THE VILLAGE OF PORT JERVIS, Respondent, v. THE FIRST NATIONAL BANK OF PORT JERVIS, Appellant.

      Negligence — right of a village to recover from a lot owner what it has been obliged, by a,judgment recovered, against it therefor, to pay to one injured by his wrongful act— what is a sufficient notice to him of the pendency of the former action against the

    The defendant, a national bank, made without authority of law a dangerous-excavation in a village sidewalk while erecting a building on its adjoining lot. A Mrs. Hart having been injured by falling into the excavation brought an action against the village and recovered therein a judgment for the damages she had sustained. The president of the bank, who was one of its building committee, was also a member of the board of trustees of the village and one of its street committee. He had knowledge of the action brought against the village, con suited with, its lawyer about the action and the liability of the bank, and was a witness on the trial in favor of the village. The action against the village was by his direction carried to the Court of Appeals.
    In this action, brought by the village against the bank to recover the amount it had been compelled to pay:

      Held, that the defendant was bound by the judgment recovered by Mrs. Hart, and that the plaintiff was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover from the defendant the amount the plaintiff had been compelled to pay by way of damages to a Mrs. Hart for personal iujuries sustained by her in falling into an ■excavation in one of the sidewalKs of the village. The excavation was an uncovered area left in the sidewalk in front of a building which the defendant had erected and was completing at the time of the accident.

      O. P. Sowell, for the respondent.

      Lewis E. Carr, for the appellant.
   Barnard, P. J.:

.The defendant would have been liable to Mrs. Hart as a wrongdoer. The bank had without authority of law made a dangerous place in the highway and this lady had fallen into it and been injured. The negligence of the defendant would have had no relevancy, nor her contributory negligence. The act was wrongful and the defendant would have been bound to keep the place safe at all hazards. Mrs. Hart did not sue the creator of the nuisance, but brought her action against the plaintiff. In this case, against the village, the liability was made out by showing that the hole continued so long and was so apparent, that the village was chargeable with negligence as against the traveler in not filling up or otherwise guarding the same. The village was cast in damages for this neglect. The defendant knew of the action; the president of the defendant and its building committee. He was also a member of the board of trustees and one of the committee on streets of the plaintiff. He was a witness upon the trial which Mrs. Hart brought against the village. He consulted with the lawyer of the village about the action and the liability over of the bank in case Mrs. Mart recovered judgment and was a witness on the trial in favor of the village. He directed the case to go to the Court of Appeals and it was done as he directed. The defendant is bound by that judgment. In Heiser v. Hatch (86 N. Y., 614, MSS. opinion), the rule is laid down as follows :

“ When a person is responsible over to another either by operation of law or express contract, and he is duly notified of the pendency of the suit, he is no longer regarded as i stranger, beca'üse he has the right to appear'and defend the.action; and the judgment, if got without fraud or collusion, will be conclusive against him. (Littleton v. Richardson, 34 N. Y., 187.) The case last cited has the qualification that there is a request to take hold of the defense, but this is not necessary.” (Blasdale v. Babcock, 1 Johns., 517; Chicago v. Robbins, 2 Black, 418.)

There is no error therefore in the charge of the judge that the bank had notice of the pendency of the Hart action sufficient to bind the bank by the Hart judgment against the plaintiff. (Holden v. N. Y. and Erie Bank, 72 N. Y., 286.) The liability follows necessarily. The rule has always been that when liability over1 was by contract, as in cases where a party agreed with the city to guard the obstruction and failed, and the city was held in damages, that the action over was proper. (City of Brooklyn v. Brooklyn City R. R., 47 N. Y., 475.)

In Robbins v. Chicago (4 Wallace, 657), in a very similar case to the present one, the court held that the city was primarily liable, but had an action over against the wrong-doer by operation of law-The Court of Appeals in the City of Rochester v. Montgomery (72 N. Y., 65), maintained an action by a city against the defendant who had placed an unlawful obstruction in a street or had negligently permitted it to remain there unguarded. The court mentions with approval the case of Robbins v. The City of Chicago, above cited.

The judgment was, therefore, properly recovered and should be affirmed, with costs.

Pratt, J. concurred.

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

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.:

text:
    THE CITY OF BROOKLYN, Respondent, v. FREDERICK SCHOLES, Appellant.

      Canvasser of election in the city of Brooklyn — liable to a penalty for a failure to sm've —1880, chap. 528.
    Chapter 528 of 1880, providing that every person appointed as register, poll clerk, canvasser or inspector of election in the city of Brooklyn, who shall fail to take and file the oath of office, or willfully neglect or refuse to discharge the dutios of such office, shall, “unless excused by the board of elections, be liable to a penalty of $ 100, to be sued for and recovered by said board in any court of record iu the name of the city of Brooklyn for the use and benefit of the city treasury,” is constitutional.
    It is for the board of elections and not for the court to decide whether the reasons assigned by the person appointed, for declining to serve, should be accepted or rejected.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motiou for a new trial made upon the minutes of the justice before whom the action was tried.

      Hurd c& Grim, for the appellant.

      F. W. Ccitlm, for the respondent.
   Dykman, J.:

The board of elections of the city of Brooklyn appointed the defendant a canvasser of election in the ninth district ©f the nineteenth ward of that city on the ninth day of October, 1882, and gave him notice of his appointment.

He declined and refused to accept the position, failed to take the oath of office, and refused to discharge the duties pertaining thereto. This action wastherefore brought against him for the recovery of a penalty of $100, attached to such refusal by the following statute: Every person appointed as register, poll clerk, canvasser or inspector of election failing to take and file the oath of office hereinbefore provided for, or who shall willfully neglect or refuse to discharge the duties of such register and inspector or canvasser, shall unless excused by the board of elections be liable do a penalty of $100 to be sued for and recovered bv said board in any court of record in the name of the city of Brooklyn for the use and benefit of .the city treasury.” (Chap. 528, Laws of 1880.) Statutes imposing similar penalties are by no means unusual. Any person chosen or appointed to the office of supervisor, town clerk, commissioner of highways, overseer of the poor, overseer of highways, pound-master or town sealer, who shall refuse tó serve, forfeits a penalty. (1 R. S., 347, §§ 25, 26.)

The power to impose these penalties results from the right of the sovereign to compel the performance of a service for its benefit by the subject. In civilized society and enlightened government, men are not absolutely free. The burdens of government are unavoidable qualifications, and belong essentially to the lot of freemen. They are ills to which they must submit because they are a part of their contribution to society and government which they yield in return for its protection and benefit.

It is the duty of all to help on the action of government. There are places to be filled in the course of public affairs for which occupants must be found, at whatever inconvenience to individuals, and when constraint becomes necessary, then such constraint is the law of necessity for the general welfare. Offices of note are^aspired to for the .honor and emoluments which they bring, but it is not always so in the lower walks of public life. Jurors attend the courts from necessity, and witnesses on compulsion, and in some cases without compensation. The entire population of a county above’ the age of fifteen years may be summoned to assist officers in making arrests and maintaining the peace, and are bound to attend on pain of punishment.

The reasons assigned by the defendant were not deemed sufficient by the appointing board. His excuses were not accepted and he was not excused. That seems under the statute to be his only means of escape. If not excused by the board of elections he must discharge the duties of the office or be liable to a penalty of $100.

There was no disputed question of fact for the jury, and it was proper therefore to direct a verdict for the plaintiff.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not voting.

Judgment and. order denying new trial affirmed, with costs.


text:
    ARTHUR V. BRIESEN, Appellant, v. THE LONG ISLAND RAILROAD COMPANY, Respondent.

      Baibvad company— is not liable for consequential damages ca/used by its lawful use of its premises.

    Where a railroad coaipany has acquired title to the interior of a block in a city and uses the same as a depot for passengers and freight and a yard for the accommodation of incoming and outgoing trains, and such drilling operations as are absolutely necessary to the proper transaction of its business, using due skill and care and all the appliances and machinery required by law, it is not liable to the owner of abutting property for the injury and damages which may be caused thereto by such use.

      Bellemont and Ohio Company v. Fifth Baptist Church (27 Alb. Law Jour., 488 [Sup. 0t„ U. S.]), not followed.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      Frederic B. Jennvngs, for the appellant.

      Hinsdale & Sprague, for the respondent.
   Dykman, J.:

The plaintiff in this action is the owner of certain premises consisting of a dwelling-house and lot of land in the city of Brooklyn, and the defendant has become the owner of the interior of the block in the rear of his premises and laid tracks thereon, and uses the same for a drilling yard in such a way as to annoy the plaintiff in the use of his property and depreciates its value.

This action was commenced to recover damages for the injury and restrain the defendant from operating its trains on its lot. It is found as a fact that the defendant’s use of its lot interferes with the beneficial use of the plaintiff’s premises, and is a disturbance and injury thereto. But it is also found that such use of the premises is confined entirely to the ordinary operation and maintenance of a depot for passengers and freight, and a yard for the accommodation of incoming and outgoing passenger and freight trains, and to such drilling operations as are absolutely necessary to the proper transaction of such business, and to no other use or purpose whatever. That such use and occupation of the premises are and have been confined to what is necessary in the due, ordinary and skillful management of the railroad business and the proper accommodation of the public; and that the defendant, in the conduct of its railroad business at this point, has used and is using all due skill and care with a proper regard for the neighboring property, and is using all appliances and machinery required by law.

It is also found that the defendant has lawful right and authority to do all it has done on its premise's, and there is sufficient documentary and other proof to establish all these findings. We must, therefore, inquire whether any liability .has been incurred by reason of the facts so founded. The defendant is a railroad corporation invested by law with power to own and operate a railroad, and to do all necessary acts and things necessary and proper to that end, and is exempt from liability for injuries necessarily resulting from such legitimate and proper use.

It may be stated, as a general rule of law in this State, that what is done by the sanction of the State under legislative authority is completely justified when done without negligence or fault. (Radcliff's Executors v. The Mayor, 4 Comst., 195.) It was decided in that ease that where persons are authorized by the legislature to do certain things they are not responsible for consequential damages where they act with prudence and care.

In no proper or strict sense can this railroad be termed a nuisance, when managed without negligence or willful misconduct. Its eon struction was authorized by sovereign power for purposes of public utility, and its operation is lawful because it is in pursuance of a statutory license. So long as it is kept within the scope of the powers granted to it, it is protected from all legal proceedings. This remark, however, is subject to the qualification that the resulting injury arises as a natural result of the exercise of the statutory authority. In the case of Bellemont and Ohio Company v. Fifth Baptist Church (27 Alb. Law Jour., 488) the Supreme Court of the "United States laid down a different rule of law; but as we understand * the law to be settled in the courts of this State, as we have stated it here, we feel bound to follow our own rule until our highest appellate court shall declare a different rule. Our consideration of the case leads to an affirmance of the judgment.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    THOMAS CAHILL, Appellant, v. HENRY HILTON and Others, Respondents.

      Inquest — when it will be set aside because of the unexpected absence of one of the defendants’ material witnesses — the right to do sois not affected by the fact that the trial court refused to postpone the triol.

    One Carpenter, a resident of Connecticut, was an important and necessary witness for the defendants upon the trial of this action. He attended on one trial when the jury disagreed, and at another term of the court when the cause was not tried. At the term at which the jury disagreed he promised to attend at the next, the June, circuit, and the counsel for the defendants relied on this promise and expected that he would attend. On the first day of the June Circuit the cause was set down for Thursday. Carpenter, upon being apprised of this fact by a telegram, replied that he would be unable to attend. Upon these facts the defendants applied for a postponement of the trial, which was denied, whereupon an inquest was taken and a judgment entered in favor of the plaintiff.
    Upon a motion made by the defendants the court at Special Term made an order setting aside the inquest, and vacating the judgment, and granted a new trial, upon the payment by the defendants of plaintiff’s trial and witness fees and the costs of the motion

      Held, that this was proper.
    That the right of the court to make such an order was not affected by the fact that no appeal had been taken from the order denying the motion for a postponement.
    Appeal from an order made at a Special Term setting aside an assessment of damages and a judgment entered thereon, upon the payment by the defendants of the plaintiff’s trial fee and witness fees, together with the costs of the motion.

      Austen G. Fox, for the appellant.

      Thompson, Weeks & Lown,'for the respondents.
   Dykman, J. :

This action is for the recovery of damages for a personal injury. Edward Carpenter, a resident of the State of Connecticut, is an important and necessary witness for .the defendants on the trial. He attended on one trial when the jury disagreed, and at another term of the court when the cause was not tried. At the- March Circuit in 1883, after the disagreement of the jury, he promised and agreed to attend as a witness at the June Circuit, and the counsel /or the defendants relied on his promise and expected his attendance. On the first day of tfie court, in June, 1883, the cause was set down for trial on Thursday, and the counsel for the defendants apprised Carpenter of the fact and requested his attendance as a witness on that day by telegraph. Carpenter received the telegram, and then for the first time answered back that he was unable to attend. These facts were presented to the trial judge and motion made for a postponement of the trial, which was denied. An inquest was then taken and judgment has been entered. Y */ 1 1

Then a motion was made at Special Term, on affidavits and' papers setting forth these facts, to open the default, which was granted, and the assessment of damages and judgment were set aside on terms. The appeal is from this 'last order, and our examination of the facts leads us easily to the conclusion that it was a just exercise of discretion, / w hile, as an abstract proposition; the absence of a foreign witness is an insufficient ground for the postponement of a trial at the circuit, yet there may be controlling circumstances which render it sufficient in connection with other facts. It was so liere.y^ The witness had attended on previous terms of the court voluntarily; he was ready and willing to so attend again. He had so agreed to attend at the term of the court where the default was taken. He was expected and his attendance was relied on until the opening of the court. He was an important witness for the defendants. After that the time was insufficient to take his testimony by commission.

As there has been no appeal from the order of the trial judge refusing to postpone the trial we cannot review the action which resulted in such order, and the subsequent motion to open the default is not to be viewed as an appeal from that order. Motions to open defaults taken at the circuit are by no means uncommon or unusual, and tliey are not unfrequently made where the motion for a postponement has been denied by the trial judge. Neither does the granting of such motion call in question the propriety of the proceedings at the circuit. They are usually based on new papers and further facts, and are addressed to the Special Term of the court where adequate conditions may always be imposed in full view of all the facts.

The former trial of the cause resulted in a disagreement of the jury, and now a large judgment has been obtained against the defendants by default. It will be much more satisfactory to reach that result by a fair trial, and our conclusion is that the action of the Special Term in opening the default and affording an opportunity for a trial was a wise exercise of discretion.

The order appealed from should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.