text:
    Bowery Bank of New York, Resp’t, v. Mary E. Gerety, as Administratrix, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Bills and notes—Void contbact.
    Where a sheriff, upon borrowing money, gives as security his note with indorsers, and an assignment of his hills against the county; as sheriff, for services riot yet performed, the fact that such assignment is invalid, as against public policy, does not affect the validity of the note.
    Appeal from a judgment entered on a verdict in favor of plaintiff, rendered by direction of the court.

      Charles A. Deshon, for app’lt; James R. Marvin, for resp’t.
   Parker, J.

Alexander V. Davidson, while sheriff of the city and county of New York, and about September 10, 1885, applied to the plaintiff for a loan of $1,500, and, as security for 'its repayment, he proposed to give to the plaintiff his note for such amount, indorsed by Moses Mehrbach, Joseph L. Gerety, and Aaron Aarons, and also assign to the bank his bills against the county as sheriff for the following month of December. His proposition being acceded to, Davidson accompanied by his proposed indorsers, went to the banking house of the plaintiff, where ■ the note was signed by Davidson, and indorsed by Mehrbach, Gerety, and Aarons; and, at the same time, Davidson in conformity with his arrangement with the the indorsers, as well as with plaintiff, assigned to the plaintiff his bill for services for the month of December. The assignment to the bank.of Davidson’s bill for services not then performed, but to be rendered in the future, was void as against public policy. Bowery Nat. Bank v. Wilson, 122 N. Y. 478 ; 34 St. Rep. 43.

In this action, which is brought upon the note, and against the administratrix of one of the indorsers, it is urged that inasmuch as the assignment of the December bill was unenforceable by the bank, because illegal, the note is also unenforceable. In other words, it is asserted by the defendant to be a sound legal proposition that if a party borrowing money attempts to assure its repayment by two kinds of security, the one valid, and the other invalid, the lender’s right to enforce the valid security is lost by his acceptance of the invalid security, notwithstanding the fact, that the acceptance of the invalid security was not, as to the lender, malum per se, and that such acceptance was with the knowledge and consent of the obligors on the valid security, to whom, no injury was thereby occasioned.

In Oneida Bank v. Ontario Bank, 21 N. Y. 490, a draft issued by a banking association, to one who took it upon a loan of' money to the bank, was held to be void, but it was also held that the lender was entitled to the money advanced by him upon the basis of a contract of loan, treating that as valid, and rejecting the illegal security. In the course of the opinion, the court said:

“1 proceed, therefore, next-to observe that a party dealing with one of these banks, and-taking from it a security which the statute prohibits, can reject the security if it be regarded as void, and recover the money or value 'which he advanced on receiving it. * * * The loans themselves were lawful contracts, and I see no reason why -they cannot stand according to their terms and intention, rejecting only the assurances given for the repayment as-simply worthless.”

So, if Davidson had given his individual note without indorsement, and as further security had made assignment of his December bills, the fact that the security was worthless and void would not have affected the contract of loan. The bank could have rejected the security, and have proceeded against Davidson on his-note. But Davidson, instead of giving his individual note for the loan, gave an indorsed note, and the indorsers thereon are in no. different position than Davidson, except as regards the question of priority of liability. Davidson, by the note which he signed as maker, agreed to pay to the plaintiff the amount which it had loaned him. The fact that, as a further assurance of payment, he gave to the plaintiff a worthless security, because void, did not affect his pbligation to pay his note; and the indorsers, by the contract of indorsement, undertook that the maker should pay the same at maturity when duly called upon and invited, and that, they would pay the same if the maker should not.

Having thus briefly referred to the principles which we think support the decision of the learned judge at circuit, we shall refer to a few of the authorities which the counsel fot> the appellant cites_in support of his contention. The first case is that of Bank v. King, 44 N. Y. 87. In that case Platt and Holroyd assigned to J. M. King & Oo. the tools,, machin'ery, geods in stock, and business carried on by them, together with the good will of the business, and covenanted not to become interested directly or indirectly in the same business for a term of thirty years. The consideration was $11,000, to be paid in nine different payments, for the last of which a promissory note was given, which recited the covenant not to engage in the business again. It was held that the covenant was illegal, because in restraint of trade, and that, as there could be no 'separation .of the good consideration from the illegal,' there could be no recovery on the note. But than case is not at all in point, for in this case the contract,of loan was in all respects legal and valid; and Davidson’s promise to pay was given upon full consideration, the assignment, which was intended as further security for the repayment of the loan, being alone invalid. The case of Arnot v. Coal Co., 68 N. Y. 588, is, in principle, analogous to the case of Bank v. King. In that case plaintiff’s assignor and the defendant entered into an agreement for the sale of coal to the defendant; the agreement providing, among other things, that the plaintiff’s assignor should not sell coal to any other party north of the state line during the existence of the contract. It was held that this contract was illegal, and, as it constituted a part of the consideration, the agreement was void, and plaintiff was denied recovery for a partial perfprmance. In all of the cases cited by the appellant the consideration consisted of both legal and illegal stipulations, which were dependent and inseparable, and in such cases it is held that the unlawful consideration vitiates the promise. But, if we are right as to the nature of the contract between the bank and Davidson, these cases are not applicable to this one.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Lillie J. Earle, Resp’t, v. George H. Robinson, as Trustee, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 13, 1895.)

    1. Contract—Consideration.
    The extension of time to pay a debt, which becomes extinguished by the act of the owner of said debt, can never be a sufficient consideration, of itself, to support a promise to pay such debt.
    3. Conditional sale—Retaking of goods by vendor.
    Where goods are sold on condition that they shall remain the property of the vendor until paid for, the seizure of.them by the vendor for bread) of condition extinguishes the purchaser’s liability on the purchase money notes and also upon any additional notes given by him merely to secure an extension of time.
    Appeal from a judgment in favor of plaintiff.

      Geo.- M. Pinney, Jr., for app’lts; A. J. Buttenhoefer, for resp't.
   Van Brunt, P. J.

There does not seem to be any dispute in regard to the facts upon which the judgment appealed from was founded. It appears that in the year 1893 the defendant Ferdinand P. Earle, haying become lessee of an hotel in this city, known as the “ New Netherland,” bought of the defendant com-pony W. & J. Sloane carpets, hangings, draperies, and upholstery for that hotel, which goods were delivered to Earle under an agreement .which contained the following provision :

“ It is hereby agreed that these goods, described as above, are the property of and belong to W. & J. Sloane until paid for in full.”

Earle gave to W. & J. Sloane certain promissory notes, having considerable periods to run, for the purchase price of said goods. On the same day the defendant the Phoenix Furniture Company sold and delivered to said Earle the furniture for said hotel, and Earle gave to that company, also, his promissory notes in payment therefor, having also considerable periods to run. This furniture was delivered to Earle, under an agreement which contained the express provision that the' title should not pass -to Earle, but should remain in the company until Earle should pay the installments and all insurance premiums, and in default of payment the company was to have the right to take possession of said furniture and remove it from the building ; and, inasmuch as it might not be possible to sell it as new furniture, it was further agreed that all payments made up to the time the property was so taken should belong to the company, and that, if one-half of the purchase price should have been paid by Earle, the Phoenix Company would return one-fourth of the furniture, and that if three-fourths of the purchase price was paid, thé company would return to Earle one-half of the furniture, according to the schedule prices, the selection to be made by the company. Earle also purchased of the defendant the Gorham Company the silverware' for said hotel, and it took in payment thereof Earle’s promissory notes, secured by chattel mortgage -on said silverware. Earle failed to pay, as they came due, certain of the notes held by W. & J. Slcane and the Gorham Company. In consequence of such default the three companies demanded that Earle execute and deliver new notes, and that -he secure such new notes by a mortgage upon the lease and personal property in the Hotel Normandie, of which Earle was the proprietor. In compliance with this demand, and for the purpose of securing an extension of time of payment, Earle, on the 15th of January, 1894, executed and delivered to the three companies certain new promissory notes, payable to their order. Contemporaneously with the delivery of such new promissory notes to the three companies, Earle executed and delivered to the defendant Robinson, as trustee, as further collateral security for the notes, a mortgage on the lease and personal property in the Hotel Normandie. The Normandie mortgage, and also the written offer, signed by Earle) pursuant to which the mortgage and the new notes were given, both contained the following provision:

“That none of the present security now held by said three corporations, or either of them, is to be changed in any respect; but that this extension of the terms of payment is in consideration of the payment of one dollar ($1) and the giving of this mortgage as further collateral security thereto.”

The new notes exceeded the amount of the old notes by the amount of the interest added. At the time of the making and delivery by Earle of the Normandie mortgage and the new notes, none of the old notes were surrendered, and by express agreement the old notes were to be retained by the three companies, but were not. to be negotiated by them, and nob to be surrendered to .Earle until the new notes were paid. The day after the execution of the Normandie mortgage, Earle paid $2,000, which was distributed among the defendant companiés. Earle was .dispossessed from the hotel on the 19th of March, 1894. He thereupon confessed judgment to certain creditors, and the plaintiff, under the execution sales which followed, purchased for a nominal consideration the right, title, and interest of Earle both in the New Nether-land property and also in the lease and personal property covered by the Normandie mortgage. On the 5th of April, 1894, Earle made default in paying the first of the new notes, which became due on that day, to W. & J. Sloane and the Phoenix Company. On the 6th of April the Sloane and Phoenix Companies retook the property which they had sold and delivered to Earle, and each sent, both to Earle and the plaintiff, a written notice containing this statement:

“ We further notify you that we shall, in due course, and within the time allowed by law, sell all of said property so retaken by us for the best price we can obtain, and give you credit for the proceeds of such sale. We shall be pleased to receive any suggestions which you may desire to make regarding the sale of said property, as we desire to do in all respects what is best for both parties.”

On the 30th of July, 1894, the Phoenix and Sloane Companies sold the chattels which they had thus retaken at private sale to Robert Stafford and H. P. Whittaker, the present lessees of the Netherland; the Phoenix Company realizing $75,000, and the Sloane Company $35,000. A bill of sale of the furniture was executed by the Phoenix Company, and purported to grant and convey “all the furniture at present located in the Hotel New Netherland, now designated as the ‘Hotel Netherland,’” and contained covenants upon the part of the vendor as follows:

“And said party of the first part does hereby, for itself, its successors and assigns, expressly covenant that said furniture, and the whole thereof, is free and clear of and from all claims, demands, liens, and incumbrances of every kind, and that said party ■of the first part is the sole and exclusive owner thereof, free from any demand or claim on the part of any person or presons whatsoever. And said party of the first part does hereby, for itself, its successors and assigns, expressly covenant and agree to and with said parties of the second part to warrant and defend the sale of the said furniture, and the whole thereof, hereby sold unto the said parties of the second part, their executors, administrators, and assign, against all and every person and persons whomsoever.”

A bill of sale with similar covenants was executed by the Sloane Company for the carpets, curtains, drapery, bedding and chairs in said hotel. Subsequently, the trustee of the Normandie mortgage gave notice of an intention to foreclose, sell, and dispose' of all the property mentioned and included in that mortgage, whereupon this action was brought to restrain the foreclose of the mortgage, upon the ground that there was nothing due thereon. The foregoing facts apppearing upon the trial, the court held that the mortgage could not be foreclosed, and that there was nothing due thereon, and gave judgment for the plaintiff; and from such judgment this appeal is taken.

It is urged upon the part of the appellant that:

“The vital error of the learned justice is that he wholly overlooks the circumstances under which the new notes were given by Earle to the three companies. He erroneously assumes that the consideration for the new notes was simply the original purchase price of the property agreed to be sold aud delivered by the companies to Earle.”

In this it seems to be assumed that, if no recovery could be had upon the old notes because the consideration therefor had failed, a recovery could be had upon the new notes because there was incorporated in the new notes the interest upon the amount secured by the old notes, and the time for payment extended. This is the only new consideration, if it may be called such, which was incorporated into the new notes. It seems to us that the learned counsel loses sight of the fact that interest is a mere appurtenant, to a debt, and when the debt is destroyed there is nothing upon which interest can stand. The extension of time to pay a debt which becomes extinguished by the act of the owner of such debt-can never be a sufficient consideration of itself, to support a promise to pay the debt. If the position of the learned counsel is correct, then when a note is renewed and interest is added, no matter if the consideration for the first note- entirely fails, the renewal notes can be enforced. It it* not necessary to cite authorities for the purpose of establishing the proposition that renewal notes, although interest may be added and time extended, are subject, in the hands of the original holders, tp the same defenses as the original debt, and that if by the act of the creditor the debt ceases to be enforceable, such defense is applicable to all renewals or extensions of such debt, whether interest is included or not; and when the learned court held that there could be no recovery for .the original indebtedness, the structure upon which the whole of this security rested failed, as payment of a collateral can never bo enforced where the original debt is extinguished.

’The question therefore resolves itself into that which was determined by the learned justice below against the appellants. Upon an examination of the case and a consideration of the arguments presented upon this appeal, we think that the learned counsel for the-appellants has mistaken the relations existing between these contracting companies and Earle. They are endeavoring to claim rights such as they would have had, had they simply a vendor’s lien upon goods sold, the title to which had passed to the vendee, but which had never been delivered. The case of Van Brocklen v. Smeallie, 140 N. Y. 70; 55 St. Rep. 263, describes the vendor’s lien as arising under these circumstances :

“That the vendor of personal property has a lien, or something more than a lien, upon it for the purchase price, while it remains in his possession awaiting delivery, although the tight of property has passed to the vendee. The right of the unpaid vendor is deemed, sometimes analogous to the pawnee’s right of sale, and sometimes to the right of.stoppage in transitu. Whatever it be it is at least a lien upon the property sold for the purchase price so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized.”

The appellants jn this action seek to claim rights such as a person would have who stands in that relation to the transaction. It is a familiar principle that the vendor’s lien is gone the moment the property is delivered. The right of stoppage in transitu is only exercised where the property can be seized before it reaches the consignee. It is undoubtedly true that, where the vendor’s lien exists, the right of the vendor in enforcing the same is threefold : He may store the property for the buyer and sue for the purchase price, or. he may sell the property as agent for the vendee and recover any deficiency resulting, or he may keep the property as his own and recover the difference between the contract and the market price at the time and place of delivery.

None of these rules apply to the case at bar or to any conditional sale where the title to the property remains in the vendor. And this is the relation which by express contract existed between the defendant companies and' Ferdinand P. Earle. They expressly reserved to themselves the title of this property, with right to take possession of it and to forfeit all payments which had been previously made, upon default in the payment of any of these notes. “ The agreement between the Phoenix Company and Earle was more formal and broad than that between Earle and the Sloane Company. But, as far as this question of title was concerned, they amounted to the same thing, — that Earle was to get no title to the property until he had paid for it; and it was upon this theory that these companies acted when Earle made default. They took possession of the property and sold it as their own. They guaranteed, in the bills of sale to the purchaser, that they were the owners. Now, if they had understood that the title had passed to Earle how could they have given such a guaranty? They understood at that time that they were the owners ; not that they had a lien upon the property and were foreclosing that lien. They sold it as owners, having a complete and full title, and Earle having no right or interest therein. Under such circumstances, can these defendant companies, after,they have asserted the rights given them by the instruments above quoted, which they thought better protected them than a mortgage upon the property, now come into court and be heard to say that all they had was a lien which they foreclosed? It seems to ns not. They were not contented with the lien. They wanted to have the right of taking this property in default of payment of the last note, even if all the rest had been paid, and of forfeiting all the payments which had previously been made; the Phoenix Company, however, making an agreement that, as a certain portion of the payments were made, Earle should get title to such portion of the furniture as they might select according to schedule prices. It is not at all likely that that these companies, in case a large proportion of these payments had been paid, would have insisted upon their strict legal rights; but they had the power so to do, and it depended entirely upon their charity whether, after a default was made in the payment of the last note, Earle should not lose all that he had paid, with the exception of that reserved to him by the Phoenix Company’s contract. Now these companies have taken this property as of their original title, where is there any consideration for the renewal notes which Earle gave? He got nothing but the mere possession of this furniture during this time. He acquired no title or interest therein, and could not until he had paid the notes. He could not call the companies to account as to the manner iri'which they sold this property. They might have given it away, and it would have made no difference to him, because he had no interest whatever in it, having made default in the payment of the notes, and the parties selling the property having exercised their right under the contract to resume possession.

This relation between the vendor and vendee on conditional sales is recognized by the legislation of 1893 and 1895. In 1893, by chapter 684, it was enacted that, when articles conditionally sold are retaken by the vendor or his successor in interest, such property sold and taken shall be retained for thirty days by the person by whom or on whose behalf the same has been so taken, during which time the purchaser or his successor in interest may fulfill such contract of purchase, and shall be entitled thereupon to receive such property; and that after .the expiration of such time all interest of the purchaser or his successor in interest in the property shall cease. And in 1895, by chapter 523, it was provided that if, on the retaking and resale of goods conditionally sold, there should'be a surplus realized by the vendor, such surplus should be paid to the vendee. If, in conditional sales, there is any such thing as a vendor’s lien, there was absolutely no necessity for such statutes. The statutes were enacted for the purpose of alleviating.hardships such as would have existed in the case at bar had Earle paid all his notes but one, and then unfortunately failed to pay that note, and these companies had taken the goods in question, forfeited all payments made by Earle, sold the goods for much more than was due, and pocketed the proceeds. It-is urged that, had the companies sued on the notes after retaking and -selling the property, Earle would simply have had the right to make them account for the value of the property taken. In other words, he would have had a partial defense by way of counterclaim for the value of the.property; and the cases of Payne v Cutler, 13 Wend. 605; Spalding v. Vandercook, 2 id. 431; Stacy v. Kemp, 97 Mass. 166,—are cited to support that proposition. All that these cases decide is that where there is a partial failure of consideration the party may recoup on an action on the promissory note, and they seem to have no application whatever to a case where the whole original indebtedness is wiped out by the action of the creditor. It is urged that the case of Brewer v. Ford, 54 Hun, 11; 26 St. Rep. 888; 59 Hun, 17; 35 St. Rep. 967; 126 N. Y. 643,—is conclusive authority for the proposition that, in this state, a conditional vendor has, upon the vendee’s default, unless there he something to the contrary in the contract between the parties, the right to retake the property and apply it to the payment of the debt, and may thereafter recover any deficiency from the vendee. Upon an examination of this case we fail to find any such question involved. The plaintiff had sold to the defendant’s assignor certain property, consisting of machinery, and it was provided in the contract of sale that the machinery should be the property of the plaintiff until paid for. Payment was made by the giving of certain promissory notes. Certain of the machinery was assigned by the vendee to the defendant assignee, and went into his possession. The plaintiff demanded possession of the same, which was refused, and an action of conversion was brought. Upon the trial it was insisted that the action could not be maintained without a surrender of the notes, only one of which had become due, and all of which were outstanding; and it was held that the plaintiff might recover his own property in this action, irrespective of where the notes were. In other words, if Earle had parted with the possession of some of this property, the Phoenix and Sloane Companies could retake it upon his making default in the payment of his notes.

It does not seem necessary to say anything further upon the questions involved on this appeal. As has already been stated, the extension of time or the promise to pay the interest, which had accrued upon the old notes and was incorporated in the new, did not and could not form any independent consideration. Such consideration was based upon the validity of the debt represented by the old notes, and when that consideration failed there was nothing left to which interest could attach.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Henrietta Fisk, Resp’t, v, New York Press Company, Limited, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Libel—Special damages.
    In an action for libel, where special damages are claimed for plaintiff’s loss of employment as a teacher, it is error to submit to the jury any item of such claim which is wholly unsupported by evidence.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      John W. Boothy, for app’lt; Daniel P. Hays, for resp’t.
   Parker, J.

The judgment awards to the plaintiff $6,000 for damages occasioned to her by the publication of certain articles in a newspaper published by the defendant. The appellant attacks it on the ground that such award includes some amount for special damages resulting from the dismissal of the plaintiff, who was a teacher in one of the public schools of this city, by the board of education, for which there is no warrant in the evidence. That the appellant is right in saying that the matter of special damages was before the jury, and in such a way as requires the court to assume that it was considered in making up the amount of the verdict, is quite clear. In the first place, the complaint alleges in paragraph 6 as follows :

“And plaintiff further shows that since and by reason of the publication first above mentioned, and the scandal thence arising, the said'board of education of the city of New York has sent her a notice of removal from her said office of principal, and refuses to allow her to continue her duties or collect her salary.”

On the trial the plaintiff proved her.dismissal by the board of education, the amount of her salary, which was $>1,750 a year, and that she had held such position for many years. During the progress of the trial the court understood from the complaint and the position of the counsel that the case was being tried upon the theory that one element of her damage consisted of her dismissal from the public service because of the publication complained of. This appears not only by the general course of the trial, but also from the statement of the court while ruling upon an objection interposed to a question bearing upon the element of damages. The court said: “The whole special damages that you set out is being dismissed from the public service. That is your case.” Now, while the case was tried upon that theory, and the rulings of the court upon the admission and rejection of testimony were in all respects correct, the plaintiff failed to prove the basic fact upon which to rest her claim for special damages. She proved that she had been a teacher in the public schools for thirty-five years, was receiving a salary of $1,750 a year, and was dismissed from the public service by the board of education immediately after the publication of the first article alleged in the complaint; but she failed to prove that the article ever came to the knowledge of any member of the board of education, or that its publication contributed in any degree whatever towards her dismissal from the service. It is quite likely that the failure to prove that fact may have been an oversight, but we are not permitted to speculate as to whether it was or not. Judgments must have evidence to support them, and there is no evidence in' this record that plaintiff’s discharge was ocoaioned by the publication of the article alleged in the complaint. That the' evidence was silent upon this question was probably not in the mind of 'the judge when he came to submit it to the jury, for he denied defendant’s request to charge that “there is no evidence that the publication of the article on April 15, 1892, was the cause, directly or indirectly, of the plaintiff’s discharge from Grammar School No. 71.” Again, after the court had delivered its.instructions to the jury, through which they were advised that there could be no recovery because of her dismissal unless plaintiff had shown that the publication of the libel was the cause of it, defendant’s counsel asked the court to charge the jury that there was no such evidence, to which request the court replied “ I won’t charge whether there is evidence or not. It is for the jury to say that.” If there had been evidence from which the inference of fact could have been properly drawn that the plaintiff was discharged because of the publication complained of, then the position taken by the court would have been entirely sound. But it is error to submit to a jury any item of plaintiffs claim which is wholly unsupported by evidence. Holmes v. Jones, 121 N. Y. 461-470; 31 St. Rep. 379. That was done in this case against ■objection by the defendant, and its exception taken thereto call for a reversal of the judgment.

The judgment should be reversed, with costs to the appellant to ■abide the event.

All concur.


author: Van Brunt, P. J. O’Brien, J.

text:
    William Jay et al., Resp’ts, v. William G. Wilson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Vendor and purchaser—Title.
    A purchaser who agrees to accept the title to real estate if “satisfactory," is bound to accept it if a marketable title is shown.

      2. Same—Marketable title.
    A purchaser will not, generally, be compelled to take a title when there is a defect in the record title which can be cured only by a resort to paroi evidence, but such is not the case, where the sole ground upon which it is claimed that the title is not marketable is the fact that, subsequent to the record of the deed of the purchaser in good faith, there appears from his grantor a deed of a previous date upon the record.
    Appeal from a judgment in favor of plaintiffs.
    The facts are stated by Mr. Justice O’Brien, as follows:
    This action was brought to recover a fee for searching defend•ant’s title, under an agreement evidenced by a memorandum signed by the defendant, as follows:
    “48 Wall Street, New York, Nov. 26th, 1894.
    “Messrs. Jay & Candler, Attorney and Counsel for Egerton L. Winthrop—Dear Sir: Your client being willing to loan me $20,-■000 for five years at five per cent, per annum on my bond, secured by a first mortgage on the premises known as No. 314 West Eighty-Sixth street, New York city, and now owned by me, which mortgage is to be executed by me and my wife, ■ and which said bond and mortgage are to be drawn by, and to be in form satisfactory to, you, the said loan to be made in case my title to said premises is satisfactory to you, I hereby agree to pay you, for your services for examining such title, one per cent, on the amount of the proposed loan, and, in addition, all cash which you may disburse for searches and for recording such deeds and mortgages and others papers as shall be desirable, and for notary’s fees and such other disbursements as shall be necessary.
    “Yours, respectfully,
    William Gr. Wilson.”
    Frederick Van Tine was the owner of the premises under examination prior to June 29, 1889. On November 6, 1889, Van Tine executed a deed to Mary F. Hopkins for the consideration, as shown in the deed, of $40,000. The deed was recorded November 13, 1889. By a deed dated June 29, 1889, Frederick Van Tine purported to convey the same premises to Nelson M. Whipple. This deed was recorded May 14, 1890. By deed dated •July 17, 1891, and recorded July 22, 1891, Mary F. Hopkins conveyed the title to William Gr. Wilson, the defendant in this-case. Upon discovery of the Van Tine-Whipple deed, plaintiff wrote to Rose & Putzel, who were attorneys for the defendant at-the time of the purchase by him of the premises, of the condition of the record, and requested them to call and explain the matter. Although such attorneys disclaimed being the representatives of the defendant, they nevertheless wrote, in reply, saying if plaintiffs or whoever had the matter in charge would call at their office, “ we would be happy to give such further explanations as we possibly can.” These letters do not seem to have brought the attorneys together, but resulted in further communications, one-' of which was a letter from the plaintiffs directly to the defendant-stating, among other things, that “after carefully examining the returns made upon the search, and considering the questions presented, we have reached the conclusion with great reluctance that we cannot approve the title, or advise our client to make the loan.” Thereafter Rose & Putzel wrote the plaintiffs that the defendant had handed plaintiffs’ communication to them, and demanded back the abstract and searches. Then plaintiffs wrote to Rose & Putzel as follows : “ When the difficulty in the title was manifest to us, we endeavored to obtain the presence of one of your firm here to explain matters, but without success. We then went to the Lawyers’ Title Company and stated the condition of the title, as disclosed by our official searches, to one of the counsel in the law department, and we were informed by him that, under the state of facts as they were disclosed by those searches, the company would not be willing to insure the title,”—and advising them that they should commence a suit for their fee.

      Gibson Putzel, for app’lt; Flam.en B. Candler, for resp’ts.
   Van Brunt, P. J.

I concur in the conclusion arrived at by Mr. Justice O’Brien that the contract under consideration in this action did not confer upon the plaintiffs the right arbitrarily and capriciously to refuse to be satisfied with the title which was tendered but that there must be some reason upon which dissatisfaction is founded ; but I do not concur in the conclusion that there was any difficulty with the title which was offered under the contract referred to. I think that, in arriving at this conclusion, the learned justice has misconceived the rule applicable to the question of marketable titles. It is undoubtedly the law, as stated in Irving v. Campbell, 121 N. Y. 353; 31 St. Rep. 307, and cited by him, that a purchaser is not bound to take a title which he can defend only by a resort to paroi evidence, which time, death, or some other casualty may place beyond his reach ; and that a purchaser will not, generally, be compelled to take a title when there is a defect in the record title which can be cured only by a resort toparol evidence. But in the case at bar there is no' defect in the record title. It is complete. The purchaser would be compelled-to resort to paroi evidence for the purpose of defending his title. The sole ground upon which it is claimed that the title' is not marketable is the fact that, subsequent to the record of the deed of a purchaser in good faith, there appears from his grantor a deed of a previous date upon the record. This subsequent deed casts no cloud upon the title of the purchaser. His record title is superior, and/there is not a tittle of evidence impeaching that record title.

But it is claimed upon the part of the respondents that, if the. grantee of the subsequent deed should show that the purchaser, who paid his money for the property, knew of the existence of this deed, or was in the possession of the property, the title would be impeached. There is not the slightest attempt to prove that the grantee in that deed ever was in possession, or that the first purchaser had any reason to suspect the existence of any such deed. If such a procedure is to place a cloud upon title, then no purchaser is secure, because his grantor, after he has conveyed, and his grantee’s deed is placed on record, may sign and acknowledge a new deed, dated back of the deed by which he has conveyed the property, and record it, and there is a cloud upon the title. The validity of titles cannot be subject to any such schemes or devices. The record title in the case at bar was good. It required no paroi evidence to sustain it, and hence, according to the authority cited, the title was a marketable one.

The judgment appealed' from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Parker, J., concurs.

O’Brien, J.

(dissenting).—Upon the trial, and on this appeal, the appellant insists that, upon the showing made, the title was valid and marketable, and that the plaintiffs, therefore, were bound to be “ satisfied.” On the other hand, the respondents contend that, under the terms of the contract, the title to the premises which was to be examined by the respondents was to be “ satisfactory ” to them, and that, as the title, after examination, was not a satisfactory one in their judgment, they. were entitled to recover the fee agreed upon for their services. I do not think, for the disposition of these contentions, it is necessary to determine whether the title was in fact valid and marketable, the question presented being whether it was a satisfactory one within the terms of the agreement between the plaintiffs and the defendant.

There is a class of cases in which it has been held that, “ when a person contracts to perform work to the satisfaction of the other party to a contract, and the subject involved is a matter of taste, as the painting of a portrait, the rule is that the person for whom the work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned.” Moore v. Goodwin, 43 Hun, 536; 7 St. Rep. 154. And there is another class in which it has been held that it is competent for the parties to make an agreement, outside of matters relating to taste, by which one can give to the other the right of arbitrarily rejecting the performance or tender of performance by the other party. Gray v. Railroad Co., 11 Hun, 70. I think, considering the subject-matter of the contract and the construction to be given thereto, that it did not confer upon the plaintiffs the right arbitrarily and capriciously to refuse to be satisfied, and that in this respect it falls within^ another class of cases, in which the rule has been stated as follows: '

“ That which the law will say a contracting party ought to be satisfied with, that the law will say he is satisfied with.” Miesell v. Insurance Co., 76 N. Y. 115 ; Dennis v. Mass. Ben. Association, 120 id. 496; 31 St. Rep. 652.

Applying this rule, which is as favorable as the appellant contends for, I think that the conduct of the plaintiffs in refusing to pass the title or make the loan, without further explanation, which I think the defendant was called upon to furnish, was neither capricious nor arbitrary. The good faith of the plaintiffs is not assailed. As soon as the existence of the Yan Tine-Whipple deed was known, they gave the defendant and those who were acting for him a statement of the defect, and requested suggestions or explanations which might satisfy them, and these were not furnished. The existence of this deed was sufficient to put the plaintiffs on their inquiry, it being conceded that if Whipple had gone into possession of the houses under his deed, this would have been notice to all, and one who took title did so at his peril, no matter whether his deed was recorded first or not. I think this proposition is sound, although that contended for by the appellant may be equally sound, that a person holding title under a recorded deed, purporting on its face to he for a valuable consideration, is presumed to have been a purchaser in good faith and without no-tice of the- existence of an unrecorded deed prior in date. The burden of proving that the vendor had notice is on the assailant of the title. If, however, the title were assailed upon the ground that Whipple had gone into possession with notice, the attitude and knowledge as to the title of the person who took from Yan Tine the deed first recorded would be necessary to support defendant’s title. And in this situation, upon the question presented by the appellant as to this being a marketable title, we might with profit resort to the case of Irving v. Campbell, 121 N. Y. 353; 31 St. Rep. 307, where Ruger, O. J., in discussing the question as to ■what constituted such a title, said :

“ The rule as to the quality of such title is quite fully stated by Judge Earl in Moore v. Williams, 115 N. Y. 568; 26 St. Rep. 259. He there says: 1 Is a purchaser bound to take a title w'hich he can defend only by a resort to paroi evidence, which time, death, or some other casualty may place beyond his reach ? * * * A good title means, not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as security for a loan of money. A purchaser will not, generally, be compelled to take a title when there is a defect in the record title which can be '•cured only by a resort to paroi evidence.’ It was also said by Judge Andrews, in Fleming v. Burnham, 100 N. Y. 10 : ‘A title open "to a reasonable doubt is not a marketable title.’ The court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. * * * It would especially be unjust to compel a purchaser to take a title the validity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry, or open to opposing influences.”

It is conceded by appellant that a recorded deed is open to attack upon the ground that there is a prior unrecorded deed, provided it can be shown that he who took under the former deed took with notice of the unrecorded deed. The existence of the Whipple deed justified an inquiry by the plaintiás into the question as to its effect, and the probability of an attack upon the title from that quarter; and if it were made, it is conceded that the evidence to sustain'the title would, in part at least, rest in paroi. The inquiry, however, of the defendant, and of those whom plaintiffs in the beginning had á right to regard as his attorneys, elicited no explanation of any kind; nor upon the trial of this action was it suggested, one way or the other, as to whether or not Whipple went into possession of the property at the time of the delievery of the deed to him, or what, if any, were his relations to this title. Where, as here, the contract was that the title was to be satisfactory to the plaintiffs, I do not think the defendant could legally take the position that he would give no explanation, but would «compel the plaintiffs to accept or reject the title at their peril. In this, I think, fts argued by the respondents, the counsel for the appellant loses sight of the relation of the parties to this controversy. While as a matter of law the burden is upon the one that claims a title is not marketable to prove that fact, the answer is given in the suggestion that the relation between the respondents and the appellant was not that of vendor and vendee, but was that of attorneys for the proposed mortgagee and the proposed mortgagor. The appellant, therefore, stood in the light of a vendor of the property, so to speak, as it was for him to satisfy the respondents, if he could do so from the documents or other conclusive and satisfactory evidence that he might possess which was not of record, that, his title was marketable; and it was not incumbent upon the respondents to make good the title of the appellant, and, if they could, to show that the title was marketable, and one upon which they could conscientiously advise their client to loan his money. While, therefore, if this had been an action for specific performance, brought by a vendor against a vendee, wherein the former had produced prima facie evidence from the record as to the validity of his title, the vendee could not reject without showing that such title was invalid and unmarketable, attorneys for a proposed lender under a contract such as was here entered into— that the title was to be satisfactory to them—are not in the same position. And where, as here, upon examination they discovered the Van Tine-Whipple deed, concerning which no explanation was given, although asked of the defendant, and the duty of giving which devolved on the latter, the refusal to make the loan or pass the title cannot be characterized or regarded as arbitrary, captious or unreasonable.

I am of the opinion, therefore, that the judgment was right, and should be affirmed, with costs.


author: Per Curiam.

text:
    People ex rel. Lehigh Valley Railway Company, App’lt, v. City of Buffalo, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1895.)

    1. Municipal corporations—Assessments—Review.
    Upon eertiora/ri to review an assessment, the court is empowered to take evidence for the purpose of determining whether the assessment is legal or illegal for any reason, and- is not concluded by the return made by the assessors to the writ.
    3. Same.
    If the assessors commit an error, either in the principle upon which the-assessment is made, or in making a clear departure or misapplication of the true principle of assessment in the particular case, the superintending power of the court is adequate and competent to establish the principle, and to compel the inferior tribunal to be governed by it.
    3. Same—Benefit.
    The supposed benefit or advantage should he substantial, reasonably certain, and capable of being realized within a fairly reasonable and convenient time, and ought not to be merely speculative, conjectural and distant, depending upon remote and uncertain contingencies.
    4. Same.
    Even though the proof establishes the fact that relator’s share of the assessment is excessive and unjust, it will require a very gross case of inequality to warrant the court in adjudging that the decision of the-assessors was wrong in law.
    5. Same.
    Where the evidence shows that the assessors could not have acted upon the principle of benefits as applied to the particular circumstances and condition of things, it is within the province of the conrt, and it becomes its duty, to compel a reasonable observance of the rule and set aside any arbitrary action.

      Oertiorari to review a local assessment on relator’s premises for r dredging the Buffalo river and excavating rock therein.

      Frank Brundage and Herbert P. P. Bissell, for relator; Frank Laughlin, for resp’t.
   Per Curiam.

— Order affirmed, on opinion of Green, J., with $10 costs and disbursements.

The opinion of Mr. Justice Green at special term is as follows:

The city charter (Laws 1891, chap. 105, section 101) provides that a writ of certiorari may be granted with a view to determine the legality of assessments. Such writ shall be applied for in the form and manner, and the subsequent proceedings therefor shall comply with the.provisions of the Code of Civil Procedure (section 2120 et seq.), except as in this section expressly or otherwise provided. Then it is provided that “ the return shall not be con-, elusive.” If, upon the hearing, it shall appear to the court that testimony is necessary for a proper disposition of the matter, the court may take evidence. “If it is established that the assessment is illegal for any reason,’’ the court may order it cancelled. The court is empowered to take evidence for the purpose of determining whether the assessment is legal or illegal “for any reason,” and is not concluded by the return made by the assessors to the writ. A new tribunal was made, with the power to review the case upon the return and any evidence taken in support of the petition. Relator claims (1) that its lands are not and cannot be benefited by the proposed improvement in Buffalo creek, because none of it abuts upon that portion of the creek upon which the improvement is to be made; (2) that the amount of the expense has not been assessed upon the various parcels of land to be benefited by the improvement in proportion to such benefit; (3) that the assessment upon relator’s lands is excessive and unjust. But the petition contains no statement of fact in support of the last two allegacions.

Two principal matters are involved in this controversy; one respecting the exercise of the power of the assessors in determining what lands were benefited, and to what extent each parcel is benefited, and in making the assessment in proportion to such benefit; and the other respecting the extent of the jurisdiction of the court in reviewing the determination1* of the assessors upon those questions.

The board of assessors is directed to assess the whole amount ordered to be assessed upon the parcels of land they deem benefited by the improvement, and in proportion to such benefit. A very wide discretion has been conferred upon the assessors in this respect, but still it is not unlimited. They have no arbitrary power to determine that certain property is benefited when- it is perfectly evident that it is not and cannot be. “ Certainly,” says the court, “ the language used is very broad, but it seems only reasonable that some fact should exist upon which their judgment can be based.” Longley v. City of Hudson, 4 Thomp. & C. 353. Whether certain property may properly be included in the assessment for benefits depends upon the principle upon which it is made as applied to the particular facts, such as the nature and extent of the improvement, and the location of the lands assessed with respect to it. The probability of benefit or advantage that may be derived from it and various other circumstances are to be taken into account. The question is, however, one of general benefit to the locality arising from the enhancement in value of the property, and not merely immediate local use or enjoyment of the improvement after it is made. The general rule for determining these benefits is to ascertain the market value of the property with and without the improvements — what is the property now fairly worth in the market, and what will be its value after the im provements are made? People v. Mayor, etc., of City of Syracuse, 2 Hun, 433. The effect of the improvement upon the market value is to be considered, and the assessment made in view of that fact, without regard to the present use of the lands or the purpose of the owner in relation to their future enjoyment. Id., 63 N. Y. 299. And, in ascertaining what the relative benefit is to different parce's of land, the situation of the different lots, and their relative adaptation to uses which would be promoted by the improvement, may properly be considered. Whether access to them is needed, and to what extent the beneficial enjoyment would be increased by the. improvement, should be considered. Id. 300. But the benefit and advantage which the property owners will derive from 'the improvement ought not to be speculative, conjectural, or distant, depending upon remote and uncertain contingencies, but they should be substantial, certain, and capable of being realized within a reasonable and convenient time. In re Fourth Ave., 3 Wend. 452 ; People v. Mayor, etc., of City of Syracuse, 63 N. Y. 300.

The true and exact apportionment of the.expensee can never be determined by any fixed rule, like the assessment of unliquidated damages by a jury; the sums to be contributed by each owner rest in the judicial discretion of the assessors. What would seem just to one set of men might seem quite unjust to another, and the most that can be attained or -hoped for is an approximation to what is‘just. Were the courts to interfere and vacate these verdicts, for no other reason than the difference of opinion between the judges and assessors in regard to the quantity of expense chargeable upon a particular piece of land, few assessments would be able to stand. From the very nature of the duty assigned to the assessors, their powers over the sums of money which each particular piece of property chargeable shall contribute must be nearly absolute, and their assessment roll final and conclusive, unless it is such as shall shock the common sense, and furnish intrinsic evidence of fraud or other misconduct. Lyon v. City of Brooklyn, 28 Barb. 609. “ Whether the assessment is just or not is not a question for us.- It is whether it is lawful—whether the property was lawfully liable to assessment. In my opinion, that assessment should have been only nominal. Those whose province it was to decide the question thought otherwise. If an error has been committed in the amount of the assessment, we cannot correct it." Owners of Ground v. Mayor, etc., of Albany, 15 Wend. 377.

In People ex rel. Gage v. Lohnas, 54 Hun, 608; 28 St. Rep. 246, relator’s property was near, but not on, the street widened, and it was claimed that it was not benefited. “ That was a question for the trustees to determine. The return affirms that their property was benefited.”

In People ex rel. Davidson v. Gilon, 126 N. Y. 147 ; 37 St. Rep. 17, the point decided was that the railroad tracks, ties, and rails were not assessable, and the assessors’ return stated that the company was not benefited by the improvement, and the record contained no record to show that it was. But the judge writing the opinion of the court went further than the question before the court warranted, and observed that the assessors were the exclusive judges of the property supposed to be benefited, and the extent of such benefit, and their determination cannot be reviewed upon certiorari except for errors of law. Code, §2140. “They had the power to assess upon their own knowledge and judgment, after an inspection of the property; and, in the nature of things, that knowledge and,the grounds of their determination could not be reproduced before an appellant tribunal in such a manner as to enable a review thereof to be had.” Citing In re Cruger, 84 N. Y. 619.

In re Church Street, 49 Barb. 456, it was complained that the area of assessments for benefits was too great, and wholly outside of the range within which there was any improvement or enhanced value of the lands. The court said that a wide discretion had been conferred upon the commissioners in this respect. “ They are authorized to extend their assessments to any lands they deem benefited. The statute takes this subject out of any review by the courts. The commissioners appear to be vested with sole discretion in this respect. The question is practically one of fact, and not of law, and I do not perceive that the legislature could have expected that the courts would be better able to decide upon the propriety of the extent of territory to be included in the assessments for benefits than the commissioners. The city parks and markets were assessed over $500,000, and the court observed that it would not undertake to say that the price of the park had been enhanced by the extension of Ohurch street; but its future value for building or commercial purposes, should such changes be made, would be improved as much as the land on the opposite side of Broadway, or other contiguous property.”

In re Cruger, 84 N. Y. 619, the petitioner claimed that the assessors wrongly apportioned the assessment, since they made no difference between lots where the grade was raised but a few inches and those where it was raised eighteen feet. The assessors adopted the frontage rule, and that they are at liberty to do. See O'Reilley v. City of Kingston, 114 N. Y. 448; 23 St. Rep. 799 ; Kinney v. City of Troy, 38 Hun, 289.

The statute authorized the court to vacate the assessments for “ substantial error in the proceedings.” We quote from the opinion of the court: “The objection to the principle upon which the assessors acted in making their assessments for benefit is equally unavailing. In re Eager, 46 N. Y. 109. The conclusion reached by them was a matter of v judgment on their part. Elements went to the formation of their conclusions which cannot be placed before us. We cannot say their determination was erroneous, even if it was exposed fully to our review. To criticise the results of their judgment would practically require that wo should ourselves try every question of value and of benefit, and that, too, upon evidence different from that before the assessors. Their error of judgment, if in fact it existed, was not an error in the proceedings, and not the subject of our review under the statute. A similar answer disposes of the objection that the area of the assessments for benefits are too small. The law committed that question to the assessors and the board of revision. They acted upon such knowledge and observation as they had, and such proof as was presented. The}' had a discretion to exercise in this respect which we cannot review. The petitioner is, in substance, asking us to substitute the opinion and judgment of his witnesses as .to the area of benefit for that of the officers to whbin it was committed by the statute.” But in this case it was stated that the petitioner's property was benefited. It waj claimed that the. amount of the assessment was too large.

In Genet v. City of Brooklyn, 99 N. Y. 308, the court said that, assuming the charge exceeded the benefit, it was nevertheless, under the authority and direction of the legislature, and it cannot be invalidated by proof that the charge was unjust or unequal or even arbitrary, and that the judgment of the commissioners m fixing the district wees final unless it was subject to revision in a direct proceeding, as to which it was necessary to determine.

In Le Roy v. Mayor, etc., 20 Johns. 430, the court said: “Who are to be comprehended in an assessment depends on the principle by which it was made. That must be determined by a sound construction of the law applied from the facts. It does not rest in the discretion of those who are to execute the law. The superintending power of this court is competent to establish the principle and compel the inferior authority to be governed by it; leaving to its discretion the manner of reviewing, and the amount of contribution to be exacted from each individual.” From various orders, maps, and other instrumental proceedings returned, the court was able to say that the class of persons actually benefited had been omitted. That equality had therefore been violated which the court thought the statute or its true construction demanded, and they therefore set aside the proceedings in that case.

In Ex parte Mayor, etc. of Albany, 23 Wend. 283, it was said that the former caséis an authority for no more than that the court will take up the admissions, in the return that a greater number have been benefited than the inferior tribunal had assessed.

And in the case of Baldwin v. Calkins, 10 Wend. 166, so far as it affirms that the principle of an assessment may be reviewed by ■certiorari, was questioned In re Mt. Morris Square, 2 Hill, 28, where the court observed that “ the objections which go to the merits are susceptible of another and conclusive answer. They respect their improper omissions of land from the assessment, or the injurious extension of the assessment to persons who, it is said cannot be benefited. This involves an inquiry into the evidence which cannot be insisted by the common-law certiorari."

“Upon a common-law certiorari, the court cannot review the determination of the commissioners that the relator’s lands have been benefited or in respect to the sums assessed. These are matters of fact, and belong to the commissiQners exclusively to determine, and it is only where it is shown that they have acted upon some erroneous principle or violated some legal right that the court may interfere." People v. Haines, 3 Thomp. & C. 227.

The question of special benefit and the property to which it extends is, of necessity, a question of fact. Spencer v. Merchant, 100 N. Y. 588. “When it becomes a question of fact whether the proposed improvement will be advantageous 'to the property in any designated direction, the decision of the corporate authorities is conclusive. But then there must be a question,—something to decide. I mean, of course, where the district is not 'clearly included, If it is entirely clear that any portion of a proposed district cannot be benefited, then any attempt to render the property in it liable to part of the expenses ” will be set aside by the court; as, for instance, where the land assessed was so situated, by reason of any intervening tunnel, that it could have no' 'connection with the sewer. People v. City of Brooklyn, 23 Barb. 106. So, where some of the land assessed for a sewer was lower than the bottom of the sewer, so that it could not be drained into it without considerable expense and change in the surface of the lots, another portion could not drain into it without crossing the lands of third persons, and certain other portions were assessed at a uniform rate, without regard to their distance from the sewer or the expense of connecting with it. Clark v. Village of Dunkirk, 12 Hun, 181. This case was affirmed on the" ground that the assessors went upon a rule wrong in law, in this: That, in getting at the value of lands deemed benefited, the value of the buildings was not taken into account. ■ This was considered “an error of law.’’ 75 N. Y. 612. -

Kennedy v. City of Troy, 14 Hun, 308, was an action to set aside an assessment for a sewer upon the ground that the assessors acted upon an erroneous principle, and omitted' property benefited by it. The testimony of one of the assessors showed that they did not decide that the lands omitted were not benefited, but that they thought (erroneously) they could not legally assess them. But this case was reversed in 77 N. Y. 494, upon the ground that it did not appear that the assessors acted upon a rule wrong in law.

“They took, as a rule, that all property benefited by the making of the sewer must be assessed for the cost of it. If they erred at all, it was in determining what property 'was in fact benefited. Such an error is to be' reviewed and corrected by certiorari, and not by suit,”—citing Le Roy v. Mayor, etc., 20 Johns. 430. And see Elwood v. Rochester, 43 Hun, 113; 6 St. Rep. 132.

“Suppose the assessor had assessed lots several blocks from the proposed sewer, and which could not possibly be benefited thereby, and while assessing some, had' arbitrarily omitted to assess ■others; would such an assessment be within the power conferred ? It seems to me not, because the judgment of the commissioners would be without a single fact to uphold it. The supposed case is the one before us, so far as the sewerage constructed can possibly benefit the property of the plaintiff which is assessed. There is no access from the low land to the sewer. It cannot and does not drain the lot of plaintiff. While this lot is assessed, another larger lot (Orphan Asylum lot), directly opposite, hears no part of the burden.” And the map showed that the plaintiff’s lot was in fact drained by another sewer. Longley v. City of Hudson, 4 Thomp. & C. 353.

In Re Common Council of Amsterdam, 126 N. Y. 158; 36 St. Rep. 948, some of the property assessed was not bounded on the ■extended streets, but was situated upon outlaying streets, not immediately or directly connected with the streets extended, and quite far distant therefrom, a mile or more. Upon a motion to confirm the report of the commissioners, which contained the evidence taken, the special term was of opinion that this assessment' weald not stand as to the property which was not bounded upon the extended street and held that there was no sufficient proof that this property was specially benefited by the improvement, and the matter was referred back to the commissioners for further hearings and assessments.

The- general terms appears to have agreed with the special term that there was no sufficient proof of special benefits to the outlying owners; but the court of appeals held that the general term was right in its conclusions that the commissioners were not limited to the assessment upon lands bordering upon the extended streets.” “The authority given is without limit or restriction. No arbitrary district- of .assessment is marked out. No limitation upon the commissioners’ judgment is imposed, but any real estate, benefited by the improvement is by that fact alone made liable to assessment. As a consequence of that construction, if follows that," thus far no sufficient proof of benefit has been given as it respects the outlying property, yet on hearing, there may be.”

In Lang v. City of Buffalo (special term, July, 1891) it appeared that the plaintiff owned no property on the proposed line of a sewer on Ferry street, but their property was situated on or near the easterly line of Bailey avenue. Their property located in that vicinity was incapable of being drained into this sewer, by reason of the fact that the creek where it crossed Bailey avenue was lower than the sewer itself. But the defendant contended that the plaintiff’s property may and in the future will be drained by a sewer to be laid in Bailey avenue, and connected with the Ferry street sewer at the junction of Bailey avenue. Some evidence was given directly tending to establish the probabilities to be that, those lands must be afforded with sewer facilities for this drainage in this mannér.

The slope of ground from the city line to the junction of Ferry street and Bailey avenue is southerly and for that reason favorable to the drainage of the property in this direction; it was also stated that the Ferry street sewer was constructed larger than it otherwise would have been, to afford drainage to plaintiff’s land and that it was sufficient for many years in the future to extend these facilities to them by means of an addition of a sub-sewer in Bailey avenue, and that this sewer can, as a matter of fact, be ■constructed to connect with the proposed sewer under the creek by a'siphon sewer laid and maintained at that point. Judge Daniels, in his opinion, said that “ the benefit, of course, is pot • expected to be derived by the property throught its immediate connection with this sewer, but by the construction of a subsewer in Bailey avenue. It is morally certain that the plaintiff’s property must ultimately find its relief by sewerage in a southerly direction, and following down the line of Bailey avenue. The natural avenue for it, according to the slope of the ground, is from the northerly line of the property, down Bailey avenue, to and under the creek. It is not required that any specific amount or measure of benefit shall result to the property, but it must, as a matter of fact, be benefited by the improvement to some extent to afford the assessors jurisdiction to include it in the assessment; and the evidence shows the fact to be that they had before them .such information, accompanied with its probable correctness, as led them to the conclusion that this property would all be benefited by this improvement, and that benefit is stated to be means which the improvement will afford for the drainage of this property by the subsewer expected to be laid in Bailey avenue. All that is" essential to establish the jurisdiction of the assessors is that it should receive some benefit from the improvement, and then the amount is left to the judgment of the assessors that any substantial benefit derived by the property from the improvement will justify an assessment.”

In view of the provisions of the city charter empowering this court to take evidence upon the legality of an assessment, and to vacate it if found ‘"illegal for any reason,” and forbidding an action to review any definite irregularity or error that may be reviewed or corrected on certiorari, it is evident that the slope of the writ of certiorari is also enlarged, and the decisions upon the common law writ are, to a large extent, rendered inapplicable. But the powers of the board of assessors, as determined by the numerous decisions of the courts, are in no way circumscribed, nor do we believe that the powers and jurisdiction of the courts in reviewing the determination of the assessors upon questions of fact, are to any extent, enlarged or extended beyond the scope of the prior jurisdiction. The assessors still have and possess a large discretion in fixing the area of supposed benefit, and in determining what property is benefited and the proportion of benefit inuring to each parcel of land.

It is a matter of judgment or opinion founded upon the nature or character of the proposed improvement, the location, value, and character and use of the respective properties deemed benefited, their relativity to the improvement, and a variety of other considerations and circumstances. These are essentially matters of fact, and this determination is confided by the legislature to the board of assessors. But their powers cannot be exercised in any arbitrary manner nor is their discretion unlimited. There must be some reasonable basis for their judgment and conclusions.

They cannot arbitrarily judge that certain property is benefited when it is clearly evident, that it is not, and cannot be from the nature of the particular improvement, and the character and location of the property. If they commit an error, either in the principle upon which the assessment is made, or in making a clear departure or misapplication of the true principle of assessment in the particular case, the superintending power of the court is adequate and competent to establish the principle, and to compel the inferior tribunal to be governed by it. The determination of each case must be determined upon the particular circumstances presented. It is not an answer for the assessors to say that the assesinent was made only upon the properties that they deemed benefited, when the evidence shows a plain, material, and substantia] departure from the principle as applied to the particular facts. In such a case the matter “does not rest in the discretion of those who are to execute the law.” Le Roy v. Mayor, etc., 20 Johns. 430.

Of course, the court will not undertake to substitute its own judgment for that of the assessors upon mere matters of fact or. opinion but it is both its power and its duty .to keep them within the scope of their authority, and to prevent any arbitrary exercise of their powers conferred by the law.

Relator claims that none of its property is. benefited by the improvement, and requests this court -to so determine, contrary to the judgment and determination of the assessors, It is 2,-800 feet from the linó of -relator’s land to the nearest point of the improvement. Between these points, and for 3,200 feet east from the relator’s north line, the Buffalo river is unnavigable, as appears from the testimony of the engineer . called by the city, -and his soundings. The dredging for which the assessment is levied would in no manner improve the conition of the river beween those points of six thousand feet to enable vessels to get any nearer the relator’s property than the point at which the dredging ends. The large expense of this work is caused by the large amount of rock in the bed of the river, and its removal is of first importance before proceeding to render the river navigable further up the stream. Beyond the point where the improvement ends at Hamburg street, and up the stream, and in front of relator’s premises, there is little or no rock; and consequently, when the dredging is further extended at some reasonable and probable time, the expense will be much less. Relator contents that in view of the facilities possessed by it for operating its property by means of a ship canal, canal slips, etc., and the "large expenditure to produce that condition, it is "an absurd claim that it can possibly be benefited by this improvement; that the assessors could only speculate that soine time in the future, by the expenditure of other large sums of money, the river would be so improved as to enable the relator to derive some benefitfrom its use along its property; that the charter means certain and present benefit, and cannot be held to authorize speculatoin as to what might be the result in the distant future. It is true that the supposed benefit or advantage should be substantial, reasonably certain, and capable of being realized within" a fairly reasonble and convenient time, and ought not to be merely speculative, conjectural, and distant, depending upon remote and uncertain contingencies. But, generally speaking, these are matters or opinion, judgment, or fact, and therefore questions, for the determination of the assessors, with which the court will not lightly interfere.

The question for the court is whether the relator’s lands abutting on the river will derive any substantial or appreciable benefit or advantage from this improvement. If so, then it is properly assessable, even though its proportion of the assessment may be ■'excessive. We are unable to perceive that the relator is not or "cannot be benefited by the work of making the river navigable, even though it will have no immediate use or enjoyment of its waters as a navigable stream in respect to its property. The present use of the property for the uses or purposes to which it may be devoted after the improvement is done does not necessarily absolve it from assesiinbility for benefits. The assessors have adjudged that, in their opinion, the removal of this rock and earth from the bed of the river, in order to render it navigable, will inure to the benefit and advantage of upper riparian owners beyond the point where navigability will end. Their judgment seems reasonable, and meets the approval of the court. It has a sound basis in fact, and the matter was clearly within their jurisdiction. No erroneous rule of assessment was adopted, nor does there exist any substantial departure from or misapplication of the true principle to the facts; and we cannot perceive, and therefore cannot adjudge, that no benefit will inure to the upper riparian owners from the fact that the river is rendered navigable below stream. On the contrary, it is a very reasonable presumption tha^t some-substantial benefit will inure to it as propriety of lands upon the stream. , Even though the stream is made but partly navigable, its importance and its value are increased, and must benefit to some extent the owners of lands in front of which navigability does not extend or exist. Nor would we be warranted in holding, contrary to the judgment of the assessors, that there would be no enhancement of' value by reason of his improvement; that it is all a mere matter of speculation and conjecture, depending upon remote and uncertain contingencies. If the assessors took into consideration—and we assume they did—the probability or expectation that within a reasonable time the dredging of the river would be extended beyond relator’s property, the court cannot say that those elements ought not to have entered into their consideration at all, or that the assessors have acted upon a rule wrong in point of law, or made an essential departure from the correct rule of assessment. From the nature and condition of things as they exist, there is a strong probability, amounting to a moral certainty, that the work of rendering the strean navigable will be extended so as to reach relator’s land. Relator is a railroad corporation, with large and valuable properties in the vicinity in question, and it is necessarily intimately connected with lake and canal navigation. The land is located upon Lake Erie and the City Ship Canal. Relator insists that it is thereby furnished with all needed harbor and dock facilities; that it has already made extensive improvements, at great expense, for the purpose of utilizing its land for dock and harbor purposes, and connecting the same with the ship canal and Lake Erie, adequate and sufficient for all needs in the use of its property. In the course of time, however, the business of railroads and water transportation will increase, and additional facilities for ships and vessels to reach relator’s property on the north will be required. Can it be maintained that, if the city should undertake to make the stream navigable up to relator’s property, it will neglect to utilize its land for dock and other facilities? That it will refuse to improve its property on the north as it has on the south, and thus afford vessels the privilege of loading and discharging their cargoes on Buffalo river? The proper use for the lands lying on the river is for docks or wharves, and the excavation of this rock in the bed of this stream is but a step in advance in the direction of rendering lands available for this purpose; and that may be justly considered a substantial benefit,—an advantage to some extent; one that is reasonably certain and capable of being realized within a fairly reasonable time. And it greatly lies within the power of this railroad company to procure the accomplishment of that result, and- to realize the actual use and enjoyment of its lands for the purposes they are peculiarly adapted.

We are therefore of the opinion that we will not be warranted in holding, contrary to the judgment of the assessors, that any error was committed in their determination that the excavation- of rock and earth from the bed of the river, for the purpose of rendering it navigable, will inure to the benefit and advantage of a railroa^ company owning lands upstream, and beyond the point of navigability, nothwithstand the existence of an artifical waterway, docks, and freight houses within the southern bound of its property, and some distance from the point of improvement. When the stream is afterwards made navigable up to its lands on the north bounds, another waterway will be opened up to Buffalo Harbor. If this improvement had been extended beyond relator’s property, a proportionate share of the expense of excavating this rock would undoubtedly be chargeable to its property; so if, in the first instance, the dredging had been commenced in that portion of the strean fronting its lands, and subsequently this particular work had been undertaken.

In regard to the contention that the amount of the expenses of this work has not been assessed upon various parcels of land in due and proper proportion to the supposed benefits inuring to them respectively, and that relator’s share is excessive and unjust, we will observe that, in the first place, there aré no statements of fact in the petition in support of this allegation ; and even if there were, and the proof established the fact, it would require a very gross case of inequality to warrant the court in adjudging that the.decision of the assessors was wrong in law. We are constrained by the adjudications of the courts heretofore referred to, and reported, from making any such determination in this case. We cannot determine the quantum of .benefit or particular amount that should have been assessed.

But the court is unable to perceive upon what principle or method of assessment the assessors proceeding in assessing the expense of this work upon all of the relator’s large and valuable 'lands lying beyond the Buffalo Creek tracks, and far beyond the range and scope of the improvements in the river. The lands included in the assessment have a frontage of 5,045 feet on the Hamburg turnpike, running back to the Buffalo river and the Lake Shore & Michigan Southern Railway tracks, and bounded on east by Tifft street; containing about 260 acres, SO acres of which are" cut off the Buffalo Creek Railroad tracks, and áre situated immediately adjacent to the Buffalo riven The City Ship Canal, a public navigable waterway, runs within the southern bounds of the property, and in connected with a cross-cut canal and several canal slips, upon which the relator has erected lumber and ore docks for the convenience and necessities of the busiues of transportation both by land and water. In respect to this portion of its property, the relator possesses all necessary dock and harborfacilities; and it is alleged that it has been put to large expenditure in improving this property for this purpose, and in connecting the same with the ship canal and Lake Brie. Taking into consideration the nature, condition, and construction of this property, its situation and locality, and the purposes to which it is now devoted, used, and enjoyed, and its connection with Buffalo Harbor by an artificial waterway, we cannot resist the conclusion that the assessors must have lost sight of the true rule of assessment, and made a clear departure from it. 'The supposed benefit to this portion of the property by reason of dredging in 'the river some distance from it is a mere supposition, without any' fair and reasonable basis in the existing circumstances. It is largely speculative, conjectural, and ’ remote. This property is reached by vessels through the ship canal, and the river bounding the whole lands upon the north and west is unnavigable, and will remain so after this dredging is completed. How, then, can it be claimed that the dock property connected with the ship canal will be benefited by such an improvement ? The court will hesitate before undertaking to substitute its own judgment in the place of the assessors in respect to the area of benefits, and should abstain from doing so in a reasonably doubtful matter; but, where the evidence shows that they could not have acted upon the principle of benefits as applied to the particular circumstances and condition of things, it is within the province of the court, and it becomes its duty, to compel a reasonable observance of the rule, and to set aside any arbitrary action. All that the court here determines is that the action of the assessors in assessing all of relator’s property was illegal so far as this particular improvement is involved.

An order in accordance with the above opinion will be settled after due notice of the time and place of such settlement.


author: Pratt, J.

text:
    Orval A. Lockwood, App’lt, v. George A. Waldorf, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Causes of action to recover chattels.
    Subdivision 2, section 3228 of the Code does not entitle plaintiff to' any costs where the value of the chattels is not fixed.
    Appeal from'an order, vacating so much of the judgment in favor of plaintiff as awarded to him costs.

      Bill & Gox and T N. Little, for app’lt; George H. Smith, for resp’t. 0
   Pratt, J.

This is an appeal from the county judge of Orange county, who disallows $124.64, costs awarded to plaintiff against defendant. The county judge must be right. There was nothing determined by the appellate court, except a judgment for the return of property the value of which was not fixed. The appellant relies bn section 3228 of the Code as to when plaintiff is entitled to costs. Subdivision'2 of that section says: •

“ In an action to recover chattels, but if the value of the chattels, or all of the chattels, recovered by plaintiff, as fixed, is less than $50, the amount of his costs cannot exceed the amount of value.”

I find no means of assisting plaintiff under the law. In the justice’s court the plaintiff recovered judgment for $100, or the return of the property. He appealed from this judgment, and got the same result, without damages or value of property. The other sections of the Code referred to by plaintiff are inapplicable to this case. The plaintiff is unfortunate, but there are "no legal means of helping him out.

Judgment affirmed. -

All concur.


text:
    George Follett et al., Resp’ts, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Election of remedies—Trespass or nuisance.
    In an action against an elevated railroad company for injury to abutting premises, plaintiff will not be required to elect whether he will try the cause of action for a continuing trespass or for a nuisance.
    2. Elevated railroad—Damases.
    A recovery by a proceeding against an elevated railroad for injury to-abutting premises is not affected by a conveyance pendente lite to himself individually by the cestui que trust.

    Appeal from a judgment', awarding an injunction unless defendants pay a certain-sum as fee damages and a certain amount as rental damages.

      Hoadly, Lauterhach & Johnson (IJenry L. Scheuerman, of counsel), for app’lts ; Benjamin B. Kenyon (Benjamin B. Kenyon and Woolsey Uarmalt, 'of counsel), for resp’ts.
   Pratt, J.

At the opening of the trial, defendants moved that plaintiffs be compelled to elect whether they would try the cause as for a continuing trespass, or as for a nuisance. The motion was properly denied. Under our present system, parties are allowed to plead the real facts. What benefit will result from that liberality, if, upon the trial, the party may not prove the facts as pleaded? A party has an absolute right to plead and prove the facts upon which his rights depend,—to prove them all, and to' prove them as they took place. The determination of the right that flow from those facts is-the duty of the court, which cannot properly be transferred to the party. The only motive conceivable for urging such a motion is a hope that the party might make an unwise election, to the detriment of his rights. To compel a party to take a position involving such a peril would be an abuse of discretion which would speedily be corrected by an appellate court.

The principal objection urged against the judgment is that the transfer pendente lite destroyed the right of plaintiffs to recover rental damages. The original complaint "was brought by the plaintiffs as trustees of an express trust. Two years afterwards a supplemental complaint is filed, by which it appears that the rights of the cestui qui ttust have been relinquished to the trustees. In this there it nothing that affects the merits of the action, nor the rights of the plaintiffs to • recover. In the one case the plaintiffs would be liable to account for the fruits of the judgment. In the other they are free from such liability. The only concern the defendants have with the question is that they be not compelled tO' pay their debt twice. To that danger they are not exposed.

Judgment affirmed, with costs.


author: Pbatt,'J.

text:
    Catharine Manning, Resp’t, v. Atlantic Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Appeal—Verdict.
    It is not sufficient to reverse a case, upon the ground that the jury has-found a verdict against the weight of evidence, that the court, had it been sitting as a jury, would have rendered a different verdict, though the appellant had a greater number of witnesses than the respondent.
    Appeal from a judgment on a verdict, directed in favor of plaintiff.

      Bergen & Dykman, for app’lt; Foster L. Backus, for resp’t
   Pbatt,'J.

This is an appeal from a judgment entered upon the verdict of a jury. The action was brought to recover damages for injuries alleged by the plaintiff to have been received as aresultofthe sudden starting of the defendant’s car while the plantiff was boarding it from the rear platform. The defense is that the car did not start, but that plaintiff slipped and fell. Of the fact that the plaintiff did fall and was injured there is no dispute.

The principal ground urged by the appellant for reversal is that the verdict was against the weight of evidence. It is not sufficient to reverse a case, upon the ground that the jury has found a verdict against the weight of evidence, that the court, had they been sitting as a jury, would have rendered a different verdict. It is true that the defendant had a greater number of witnesses than the plaintiff, but the jury had the right to believe a less number of witnesses. They were better judges of the credibility of the witnesses than the court, who have before them simply the testimony as printed in the appeal book.

The case is in a nutshell. The simple question is whether the car started while the plaintiff was trying to get upon the rear platform. The jury had the right not only to consider the sworn testimony, but they also had the right to weigh all the facts and circumstances of the case. The places upon the plaintiff’s body where she was injured which were exhibited to the jury, and the positions where the witnesses claimed to have stood, were all facts to be considered by the jury in arriving at a verdict. The plaintiff claimed that, just as she was stepping upon the car, it started; and her witnesses testified that the car started, moved ten feet, and then stopped; and the witness Eragner, who testified for defendant, stated that the car was standing still while she was lifted up and carried away. But there was evidence in the case that Fragner did not arrive upon thé ground until after the car had started and the woman fell. Eragner corroborated the plaintiff’s witness Bell in swearing that the car was opposite an iron post, while the defendant claimed that the car was upon the crosswalk, where it stopped to receive the plaintiff.

We do not think that there was such a preponderance of evidence in favor of the defendant as to justify a reversal, upon the ground that the verdict was against the weight of evidence. We have examined the exceptions in the case, and are of the opinion that they are not well taken." The question put to the witness Eragner, where the car stood when he arrived at the scene of the accident after it occured, was competent and relevant. If the car stopped at the crosswalk, and, when Eragner arrived, the car was not upon the crosswalk, but was opposite an iron post, the question was very material, as showing that the car must have started after it first stopped.

Judgment affirmed, with costs.