author:
Dykman, J.
      Pratt, J.

text:
    Leslie M. Saunders et al., Resp’ts, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Riparian owners—Accretions.
    Accretions, whether natural or wrongful, belong to the upland owner;
    2. Same—Railroad.
    Plaintiffs’ grantor conveyed to defendant’s predecessor a strip of land-across a bay in front of his premises for the purpose of building its road, the deed containing a reservation of a right of wav across the strip to the-river. Thereafter the bay was filled from the track to the shore, and defendant laid tracks thereon on which it kept its cars, preventing access to the river. Reid, that the land so made was an accretion which belonged to the plaintiffs as owners of the upland, that they were entitled to access-to the river, and that the obstructions should be removed.
    S. Same—Land grants.
    The state has no power to grant to a railroad company a strip of land: under water so as to affect the right of access to the water of the upland-owners.
    Appeal from judgment in favor of plaintiffs, entered upon the-decision of the court on a trial without a jury.
   The facts appear in the opinion at special term as follows:

Dykman, J.

The plaintiffs in this action are upland owners-on the east bank of the Hudson river, at Yonkers. The Hudson Eiver Eailroad Company was incorporated as a body politic and corporate by a special law in May, 1846, with power to construct and operate a railroad from Hew York to Albany. At that time Ethan Elagg was the owner of the upland now belonging to the plaintiffs, and there was a small bay in front of the land, across which the railroad was projected; and Ethan Flagg gave a deed of conveyance to the railroad ‘company August 13, 1847, for a-strip of land 73 feet wide and 1,037 feet in length. The Hudson, Eiver Eailroad Company constructed its road across the bay upon the land covered by the deed from Ethan Flagg. Thereafter the-Hudson Eiver Eailroad Company became consolidated with the.Hew York Central Eailroad Company, under the name of the Rew York Central & Hudson Eiver Eailroad Company. Subsequent to such consolidation the defendant made a filling on the east side of the strip included in the Flagg deed, and in 1882 laid down a railroad track east of the original track, and in 1888 laid -down another track, still further east, and both these tracks extend along the whole front of the plaintiffs’ upland. At this time the whole of the bay from the original high-water line west So the original railroad embankment is all filled in with earth so as to exclude the water. Some of that filling was made by the defendant, and some by the owners of the upland. The precise quantity of filling done by each is not stated definitely. Since the two extra tracks were laid down, they have been used by the defendant in its business. Its yard is there, and large cars are run there, and remain upon the tracks for different periods of time. This action is brought to restrain such use, and compel the removal of the two tracks so laid down east of the original roadbed of the defendant, and in front of the upland of the plaintiffs. In December, 1873, the defendant obtained from the commissioners of the land office letters patent for a grant of land under water on both sides of the original bed of the Hudson Eiver Eailroad from Rew York to Albany, containing many thousands of acres of land, and including the land upon which the two tracks above mentioned were laid. These are the substantial and basal facts upon which the questions involved in this action are to be determined. The questions are interesting, but intricate, and their examination affords a wide scope for research, and requires careful discrimination and analyzation.

It will be orderly to determine first the rights of the plaintiffs as riparian or littoral proprietors, and that inquiry can now proceed without embarrassment from the case of Gould v. Railroad Co., 6 N. Y., 522, which, after repeated attacks from flank and rear, has now received an assault in front from the court of appeals, and been overthrown. Rumsey v. Railroad Co., 133 N. Y., 80; 44 St. Rep., 248. This case can therefore be determined in the light of authority, upon principles more consonant with reason and justice.

The rights of riparian proprietors to the water flow from the contiguity of their land thereto. They have the right of access to the navigable part of the river from the front of their land; the right to make a landing or wharf, subject to the rights of the public; the right of fishing and landing, and of accretion. Yates v. Milwaukee, 10 Wall., 497. They may also fill up shallow water in their front, and upon such reclaimed land construct wharves, so long as they do not infringe upon the rights of navigation. Dutton v. Strong, 1 Black, 23. Under the civil law they might project a mole in the sea. These rights and privileges constitute property which is under the protection of the constitution and the laws, and which cannot be impaired or destroyed without compensation. In this case the right of accretion is important, because the rule is the same whether the accretion is natural or wrongful; whether it results from natural'causes, or the work of man. Steers v. City of Brooklyn, 101 N. Y., 56. Justice can be done to the littoral owner in no other way. Accretion, whether natural or wrongful, must belong to the upland owner, or he will be excluded from the water, and changed into an inland, instead of a riparian, owner, without his assent. If that rule of law enunciated in the Steers case is applicable here, it is difficult to see why the accretion in front of the upland of the plaintiffs did not vest in them and their predecessors in title. If the wrong construction of a wharf in front of the old shore, in that case, was viewed as accretion, which went to the riparian proprietor because it was between him and the river, it is difficult to see why the filling in here should not have the same result, and accrue to the benefit of the upland owners. In each case the access of the owner is similarly affected, and unless his rights are extended to the new shore he is converted into an inland owner, and deprived of the important and valuable rights of a litteral owner without compensation. In the case of Ledyard v. TenEyck, 36 Barb., 126, the defendant owned the land on the east shore of Cazenovia lake, in this state, and the canal commissioners excavated the outlet, and deposited the material in the shallow water in front of his premises. The defendant took possession of the reclaimed land. The court said the trusteeship of the state, both for the public and the landowner, was at an end, and the land became necessary for the beneficial enjoyment of the upland, and thus arose, if not a legal, at least a strong equitable title, which, with the possession, should not be disputed, except by the state itself. That case favors the contention of the plaintiff. I think the doctrine of the Steers case is applicable to this, and that the right of access of the plaintiffs is extended to the new shore formed by the railroad. I intend to rest my decision, on this branch of the case, upon the right of the plaintiffs as riparian proprietors, independent of the rights they may have as owners of the land under water west of the railroad.

The defendant contends that the plaintiffs’ right of access to the river was terminated or limited by the execution and delivery of the deed from Flagg to the railroad company for the strip of land across the bay, but the deed can have no such operation. At most, that deed conveyed that strip of land, and that only for the use of the road,' for the purposes expressed in its charter, and the grantor surrendered none of his rights with which he was clothed as upland owner. Railroad Co. v. Aldridge, 135 N. Y., 83; 48 St. Rep., 373. Moreover, the grantor reserved to himself, and his heirs and assignees, all his and their rights to the land below high-water mark, except the strip so conveyed; and unlike the reservation which was condemned in the Blakslee case because the right is regarded as appurtenant to the land, and cannot exist if severed from the ownership thereof, this reservation was valid, because the grantor remained the owner of the upland, and reserved the right as appurtenant thereto. The case of Duke of Buccleuch v. Board, L. R., 5 H. L., 418, was this: The Duke of Buccleuch was the owner of land on the river Thames, through which a road was constructed along the shore of the river, under an act of parliament, which cut off his access to the river; and it was decided by the house of lords that he was entitled to compensation", not only for the land actually taken for the construction of the public road, but also for the permanent damage to the whole property in consequence of its change from riverside to roadside property, including his particular right to use the shore of the river. That case seems to be a direct authority in favor of the plaintiffs here.

The defense to this action is based upon the right bestowed upon the Hudson River Railroad Company by chapter .30 of the Laws of 1848 to alter its line, and file a new map, and acquire the land embraced in the new location, the filing of such new map, and the grant from the commissioners of the land office in 1873. It is to be said of this grant, preliminarily, that it was for railroad purposes only, and the company could take it for no other purpose; and Judge Brown, in his opinion in the first Rumsey case, 114 N. Y., 432; 23 St. Rep., 928, took pains to-show adequate provision was made to give every upland owner easy access to the water, and preserve to such owners their access to the river.

There are, however, other reasons why this grant can have no operation which will abridge the rights of riparian owners along the éast bank of the Hudson River. By the common law of England the title to the soil under navigable waters was in the crown, and the control over such waters rested in the British parliament; but by the Revolution, and the separation of the states from the crown, the title to the bed of navigable waters, which before that rested in the crown, was transferred to the people of the state, by the Revolution, as the successor of their former sovereign. At the same time the people, in their sovereign capacity, became vested with the absolute control over rivers which before rested in the British parliament, but surrendered the power to regulate commerce and navigation to the congress of the United States, in 1778, by the adoption of the federal constitution. So that now, through their legislature, the people may exercise all the power over navigable waters, and the soil upon which they lie, which could have been exercised by the king, in conjunction with parliament, previous to the Revolution, subject to the restrictions imposed by the constitution of the United States, and no more.

We must now inquire what those powers of the crown and parliament were. It was determined in England, at a very early period, that the title to property in the soil under tide waters was vested in the king, as the representative of the public, for the public use; and after Magna Charta, at least, he never had the authority to make an exclusive grant in an arm of the sea. It was laid down by Braeton that those things which related particularly to the public good could not be sold, and that rule was based upon principles of public policy. The sea and the navigable rivers are the natural highways of the world, and, although the sovereign may make grants of the soil for certain purposes, yet such grants are subject and subordinate to the paramount right of the public, and there is even an implied reservation of such public right in all such grants. As the people of the'state succeeded to the rights of the king and parliament, they took no greater rights. The distinction is between the “ domain of the state,” which is the property of which the people have the absolute estate, like an individual, and the “ public domain,” which the state holds as a mere trustee for the use of the public, and “ which remains in the state of primitive indivisión.” 2 Kent Com., 339. The former applies to things in which the state has an absolute property, and the latter to the property which the state holds as trustee for the public, such as highways and navigable streams. In the latter case the state holds only “a regulating power, for the purposes of protecting the public in the use of the waters for navigation, and other public purposes, and of this power and duty of regulation the state cannot divest itself.” “ It is equally true that the riparian proprietors have certain rights and interests which are valuable, and of which they cannot be deprived, except under the exercise of the right of eminent domain. Among those rights are the right of access to the navigable river or sea from the front of his lot; the right to make a landing, wharf or pier for his own use, or the use of the public, subject to the supervision of the state to see that it does not interfere with navigation; the rights of fishery, of ferry, of towing on the banks, of landing lading, and unlading; the right of accretion,” etc. Keport of Hon. Daniel Pratt, attorney-general, to the senate, January 28,1875. This quotation is not made because it has the force of authority, but because it expresses in terse language the doctriné which prevails in this state upon that subject.

The same doctrine is laid down by Angelí, in his learned work on Tide Waters, in these words: “Although the king is regarded as the legitimate proprietor, yet bis character in this respect is fictitious, inasmuch as he cannot exercise his ownership to the exclusion, inconvenience, or injury of his subjects. He can therefore be considered only as guardian and trustee for the benefit of his subjects.” Ang. Tide Waters, 135.

The same doctrine was laid down by the supreme court of the United States, in the Chicago Lake-Front case, in the following language: “ That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under the tide water at common law, we have already shown. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States holds in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, have liberty of fishing therein, freed from the obstruction or interference of private parties.” Illinois Cent R. Co. v. State of Illinois, 13 Sup. Ct., 110.

A line of decisions which commenced with the celebrated Story case, 90 N. Y., 122, holds that an owner of land abutting upon a public street has a property right therein for access, light and air, and that the state has no power to grant a railroad the right to occupy the street, when such occupation affects injuriously the •enjoyment of such rights, without compensation. In the opinion •of the court of appeals in the Rumsey case, 133 N. Y., 79; 44 St. Rep., 248, where the Gould case was overruled, it was said: “ Unless there is some distinction to be made between the rights which pertain to an owner of land upon a public river, and one upon a public street, which is not perceived, then the principles ■sanctioned by this court in these cases virtually overrule the Gould case, as they are apparently irreconcilable.”

Frank Loomis (Ira A. Place, of counsel), for app’lt; Ralph E. Prime, for resp’t.

So far as those cases relate to the right of access, they are applicable to this case.

We have already seen that upon the declaration of independence, in 1776, the people of each state became sovereign, and in that ■character became invested with the absolute right to all navigable waters, and the soil upon which they rested, for their own common use; and such title was held by the state, in its sovereign capacity, in trust for the public, and continued to be so held and owned, in such trust capacity, until 1788, when it surrendered the right to control the waters for purposes of commerce and navigation. But it surrendered nothing more. It still remains the owner of the soil, and can make grants of the same, within the restrictions of the statute, but the extent of the grant in question is almost sufficient, of itself, to prove that its execution was in contravention of the trust under which the property is held. The trust is governmental, and the property cannot be alienated except in the -execution of the trust in the interest of the beneficiaries. It cannot with any propriety be claimed that the surrender of a strip of land containing thousands of acres, from Hew York to Albany, to a trading corporation, is in the interests of the public. "The size of a similar grant did not escape the attention of the supreme court of the United States in the case of Illinois Cent. R. Co. v. State of Illinois, supra, and in relation thereof it was said in the opinion: “We hold, therefore, that any attempted cession -of the ownership and control of the state in and over the submerged lands in Lake Michigan by the act of April 16, 1869, was inoperative to affect, modify, or in any respect control, the sovereignty and dominion of the state over the land, or its ownership thereof.”

It is not necessary for me to hold this grant void, except so far as it contravenes the rights of these plaintiffs, and my conclusion is that their rights remain unimpaired. It must be borne in mind that the right of access is an exclusive right of the riparian proprietor, and the grant in question assumes to convey a strip of land in front of the east shore of the Hudson river, without any reservation in favor of shore owners, and thus deprive them of •their exclusive rights of access to the water. My conclusion, therefore, is that the grant in question is unavailing against these plaintiffs, and their exclusive right of access to the water; and the obstruction of which they complain must be removed, and they must have judgment therefor.

Pratt, J.

We think the judgment in this case should be affirmed upon the facts and principles stated in the opinion filed by Mr. Justice Dykman upon the trial.

There was no error on the part of the trial judge in refusing to find the third, fifth, sixth and ninth requests of the defendant. Some of said requests were not justified by the evidence, and others, if found, could not have changed the result.

The judge found that the title to the land in question was in the plaintiff by virtue of being upland owner, and the same being an accretion to his shore; in this the decision is sustained by authority. Steers v. Brooklyn, 101 N. Y., 56. This case differs from that of People ex rel. Blakslee v. The Commissioners of the Land Office, 135 N. Y., 447 ; 48 St Rep., 432, as in that case the relator was not the owner of the adjoining upland.

The plaintiff, at least, had title in the sense that he had the right of unobstructed access to the shore of the Hudson River, which we think is sufficient to sustain the judgment. Yates v. Milwaukee, 10 Wallace, 497; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y., 79; 44 St. Rep., 248; Matter of Yonkers, 117 N. Y., 564; 28 St. Rep., 676; Illinois Central R. R. Co., v. State of Illinois, 13 Sup. Ct. Rep., 115; 6 Mass., 332; 12 Pick., 467; 10 Mich., 125.

We think the deed of Flagg to the defendant of the parcel seventy-three feet in width did not cut off the shore owner’s right to go to the river. This deed, expressly limited to parcel B (seventy-three feet in width), could not be held to affect the right of the grantor to pass from the original shore over parcel F. in question without obstructions, at least as far as the east line of parcel B. But we think the right also remained in Flagg and his grantees to cross the railroad—parcel B.—and go to the river, especially after the state patented the land west of the railroad line (parcel B.) to the plaintiff’s grantors in 1869. Langdon v. Mayor, 93 N. Y., 151; Smith v. N. Y. & O. M. R. R. Co., 63 N. Y., 58, and cases cited; chap. 140, Laws of 1850, §§ 44 and 49.

The right to cross the railroad is recognized in the deed of Flagg to the defendant by a covenant on the part of the latter to that effect

The defendant utterly failed to show any title to the parcel in question or any right to occupy the same. Neither the charter nor the filing of maps could confer any title upon the defendant. N. Y. C. & H. R. R. R. Co. v. Aldrich, 135 N. Y., 83 and 89; 48 St. Rep., 373.

The power of the commissioners of the land office and the quality of the title of the state to lands under water are sufficiently discussed in the opinion below before referred to. The defense of title by adverse possession was not established as matter of fact, so also of the defense that the plaintiff’s deeds of the land were void because of the statute avoiding deeds of land in the actual possession of other persons claiming adversely.

We also think the court below was right in refusing to find defendant’s request No. 14, as the proof was against such a conclusion.

There are many questions in this case upon both sides of which much can be said, but in view of the long opinion rendered below, and the discussion of recent causes in the court of appeals of a similar character, it seems unnecessary to state more here than the conclusions at which we have arrived after careful examination of the case and the briefs.

The conclusions of fact seem to be supported by the evidence and the conclusions of law are well supported by reason and authority.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    The People ex rel. John J. Griffin, App’lt, v. Austin Lathrop, Superintendent of State Prisons, and William M. Brown, Warden of Sing Sing Prison, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. State prisons—Power of removal by warden.
    The power of appointment of a warden of a state prison being subject to the approval of the superintendent of state prisons, he is bound to obey the letter and spirit of an act passed by the legislature in the exercise of their “ management and control” of the prisons.
    2. Same—Laws 1889, chap. 382.
    There is nothing necessarily inconsistent between chap. 382, Laws 1889, and the acts relating to honorably discharged veterans and the civil service.
    3. Same.
    The warden of a state prison has a broad discretion as to the appointment and removal of subordinates, the efficiency of the service being the chief consideration; and while he is bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced, yet where in his honest judgment the public interests require the removal of a veteran his action will not be interfered with.
    Appeal from order denying motion for a writ of peremptory mandamus to compel the reinstatement of relator as a keeper of Sing Sing prison.
    Delator, who was an honorably discharged Union soldier, had been since 1866 a guard or keeper of Sing Sing prison. He continued to hold said position until September 25, 1891, when, he was discharged by the warden.

      Horace D. Ellsworth, for app’lt; S. W. Rosendale, atty. gen. (John W. Hogan, dep. atty. gen., of counsel), for resp’ts.
   Pratt, J.

The points involved in this case gravely affect the public service, and we assume that they will be submitted to the court of appeals. Perhaps the ends of justice might be served quite as well if, under these circumstances, we merely announced our conclusion without any opinion. But we, nevertheless, briefly state our view.

The constitution, § 4, art. 5, undoubtedly vests the superintendence, management and control of the state prisons in the superintendent of state prisons, but that management and control is “subject to such laws as now exist or may hereafter be enacted.” Hence the superintendent is certainly subject to the action of the legislature in the exercise of their “management and control.” The warden is to be appointed by the superintendent. True, the constitution does not say that the warden is subject to the control of the legislature, but his power of appointment is subject to the “approval of the same by the superintendent.” It is plainly subordinate to the superintendent, and it would be singular indeed if the warden is not bound to obey the letter and spirit of a statute which his superior is bound to observe.

We find nothing necessarily inconsistent between the act of 1889, ch. 382, and prior statutes, so far as they bear on the point here involved. The only difficulty is in their application. The warden’s power of removal from office must not, in our judgment, be exercised for mere political or personal or other arbitrary reasons, but wholly for the efficiency of this branch of the public service.

The warden is undoubtedly vested with a most important trust. His employes must be men of great skill in judging of men, particularly those who become prisoners, and, above all, men of absolute loyalty, courage, coolness and bravery—nerve, as it is sometimes expressed. It is not according to our experience that these qualities are always found in the people who are most proficient in geography or arithmetic, or any other acquirement of that character. Hence, the widest latitude was needed and was extended by the act of 1889, in this case to the-warden, and to that extent he was relieved from the force of acts prior to 1889. But, subject to this broad discretion, we think he was bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced. But it must be observed that the discretion is so broad that it is difficult to determine judicially just where this officer may err in one direction or the other. It was and is, undoubtedly, a question of fact whether he acted within the line of his duty in this case—that is to say, whether or not his honest judgment was that the public interests required the removal of this relator. If he so honestly-judged, I do not see why we should or how we can lawfully interfere. It would undoubtedly be our duty to determine, in a proper case, whether or not he acted honestly or dishonestly in the premises; but we see no fair reason to question his action in that regard in this case.

It was natural that the relator should think that his removal was attributable to purely political considerations. But that is a mere conclusion at best and is scarcely supported by sufficient evidence. Besides that, the allegation is denied by the warden, who says that he acted solely for the good of the service. The relator may have been, and doubtless was an excellent man, one wholly satisfactory in general ways; but what if the warden should discover that there was at his service another man of preeminent ability, whose skill and service he could secure in this department of the public service ? Can there be any doubt, in view of this statute, that the warden would be authorized to secure his services even at the expense of creating a vacancy for that purpose? We think not. The public interest, in that case, might require a removal of the least efficient, though perhaps fair man, as means of greater efficiency, for that matter is always relative. It will be thus seen that we do not accept this proposition, that the relator’s office gave him a vested right in the office which he might hold as his property. ' The efficiency of the service is the controlling consideration. The relator held his place subject to the warden’s judgment of the public interest, to be honestly exercised. We see no reason to disturb the judgment of the learned judge at special term on this question of fact.

The warden is, doubtless, responsible to the criminal authorities for his discharge of this duty. So, too, we think that a court in such a proceeding as this may review that question; but we do not see, that the relator has placed himself in a position where we can help him in that particular now.

We, therefore, affirm the order.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    John Fiero, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Railroad—Contributory.
    Plaintiff, who was a conductor, was injured while passing through the Harlem tunnel by falling from the rear of the last car, which was not provided with a chain. Held, that a request to charge that if he knew that there were but three cars in the train he could not recover was properly refused, as he might know that fact, and yet the various duties might so occupy his mind that he might forget it for a moment without being guilty of negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion on the minutes to set aside the verdict and for a new trial.
    Plaintiff had been a conductor in defendant’s employ for several-years, and had been accustomed to pass through the main or central portion of the Harlem tunnel, but a week before the accident-had been assigned to a train which ran through the side tunnel,, which was not thoroughly ventilated and was liable to become-dark by reason of fog and smoke. The train, on the occasion in, question, was composed of three cars, the last car not being provided with a chain across the rear end. While engaged in taking up tickets the plaintiff came to the last car, and seeing the reflection in the glass of the rear door, supposed that another car was behind, and stepping out fell from the car and was severely injured. There were two red lights on the rear platform which he kicked off as he fell.

      Frank Loomis (D. W. Tears, of counsel), for app’lt; William P. Fiero, for resp’t.
   Pratt, J.

The charge of the court correctly stated the respective duties due to each other from the plaintiff and defendant Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did not take that course, but received the requests and restated the law in defendant’s favor so far as could be done consistently with the law.

The objection to the charge most strenuously urged was to the request to charge that if plaintiff knew there were but three cars in the train he could not recover.

We think that request was properly refused. The plaintiff might know that fact and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment without being guilty of negligence that would bar his recovery.

The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well known fact when fully occupied with pressing duties.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Merwin, J.

text:
    H. D. Blakeslee, App’lt, v. Isaiah Sincepaugh, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    I. Estoppel—Equitable—When infancy no defense.
    If there he intentional fraud in statements as to ownership of land, the doctrine of equitable estoppel will apply, notwithstanding the infancy of the person so making them, if he he of sufficient age to appreciate his rights and duties.
    2. Same—Question of fact for jury.
    Whether a defendant who asked plaintiff, whom he supposed owned certain land he wished to purchase, if he was the owner, and when told that he was not, purchased it of one who claimed to he the owner, without searching the records, has exercised such good faith and due diligence as will entitle him to set up an equitable estoppel, is a question of fact for the jury.
    Appeal from a judgment entered in Tompkins county on 27th ' October, 1891, upon a verdict in favor of the defendant at the Tompkins circuit; also from an order at special term denying a motion for a new trial upon a case and exceptions.
    The action is in ejectment for 19 41-100 acres of land. In the complaint it is alleged that on December 3, 1880, Havilla D. Blakeslee, then being the owner of these and other lands, conveyed the same to the plaintiff; that plaintiff thereupon entered into possession and so remained until on or about December 1, 1882, when the defendant entered into possession and ousted the plaintiff, and that defendant has ever since been in possession.
    In the answer it is among other things alleged that the defendant on the 1st December, 1882, purchased the premises of Havilla D. Blakeslee; that, shortly before this, the plaintiff, knowing that defendant was about to purchase from Havilla D. Blakeslee, falsely and fraudulently represented to the defendant that he, the plaintiff, had no title or interest in the premises, and that they were owned by Havilla D. Blakeslee, and that defendant, relying on such representations, and by reason thereof, took a conveyance from Havilla D., paying him therefor the sum of $680 ; that defendant thereupon went into possession and has made extensive improvements on the property. The answer also alleges that defendant has no knowledge or information sufficient to form a belief as to whether the plaintiff became the owner or received a conveyance on or about December 3, 1880, or entered into possession.

      M. N. Tompkins, for app’lt; David M. Dean, for resp’t.
   Merwin, J.

Upon the trial of this action, it was shown on the part of the plaintiff that Havilla D. Blakeslee, by deeds dated September 25, 1834, and September 22, 1838, became the owner of a quantity of land and thereafter, by deed dated December 3, 1880, and duly recorded December 4, 1880, he with his wife conveyed the same to the plaintiff excepting sixteen acres theretofore conveyed to the plaintiff. The premises in dispute are a part of the lands described in these deeds. The consideration of the deed of December 3, 1880, as stated in the deed, is the sum of one dollar and the maintenance and support of the parties of the first part during their natural lives. It was then shown on the part of the defendant that Havilla D. Blakeslee and wife, by warranty deed dated December 1, 1882, and recorded December 5, 1882, conveyed the premises in dispute to the defendant for the consideration therein named of $680, which defendant at the time paid to the grantor or the person acting for him. Havilla D. Blakeslee was the grandfather of plaintiff, and evidence was given tending to show that plaintiff at this time lived with his grandparents on the farm of which the premises in question were a part; that he knew of the negotiations for the purchase by defendant of the grandfather; that during these negotiations the defendant saw the plaintiff, told him he was talking about buying a piece of land of his grandfather and had heard that he, the plaintiff, had an interest in it and asked him whether that was so and whether he had any deed or mortgage against it, and he, the plaintiff, replied that he had no deed or mortgage against it and had no interest in his grandfather’s premises ; that the plaintiff at the time knew that he was the legal owner of the property and made the statement to defendant with intent to deceive him and induce him to buy of the grandfather; that the defendant thereupon, in reliance upon the truth of plaintiff’s statement and ignorance of the true state of the title, made the purchase of the grandfather.

The plaintiff denied making the representations or that he knew that his deed covered the property conveyed to defendant. It was also shown that plaintiff was then a minor, having been born March 6, 1862.

At the close of the evidence the counsel for plaintiff asked the court to direct a verdict for the plaintiff upon several grounds, chiefly that the evidence upon the part of the defendant was not sufficient to constitute an estoppel; that at the time of the alleged statements the plaintiff was an infant, and that if he made the statements he did not know at the time whether or not he owned the land, and that no fraud was shown upon his part, and that the defendant was guilty of negligence in not causing the records to be searched. The court denied the motion and stated that in its-opinion the better way to dispose of the case was to submit it to the jury on four questions: “ First, whether these statements were made by the plaintiff to the defendant. Second, whether the plaintiff had knowledge at the time he made them that he was the legal owner of this land. Third, whether they were made by the plaintiff with the intention that they should be acted upon by the defendant in the purchase of the land. Fourth, whether they were acted upon and relied upon by the defendant when the land was purchased by him.” The plaintiff’s counsel duly excepted to-such ruling and to the denial of the motion. The case vyas thereupon submitted to the jury upon the line suggested by the court, and a general verdict rendered for the defendant There was no-exception to the charge and no request that any other question should be submitted to the jury.

1. The first proposition now presented by the plaintiff is that-the plaintiff, being an infant at the time of making the alleged statements, was not estopped thereby.

Assuming, as we must, that the facts, so far as warranted by the evidence, were found against the plaintiff, we have here a case of intentional fraud. In Spencer v. Carr, 45 N. Y., 406, where, as here, it was claimed that an infant was barred of her title by an equitable estoppel, it was held that in the absence of intentional fraud upon her part she would not be estopped, and that-as that was not found she would not be deprived of her legal rights. The inference is that if there was intentional fraud the-doctrine of equitable estoppel would apply notwithstanding infancy. The opinion of the court in the case strongly supports1 this inference in cases where the infants are of sufficient age to appreciate their rights and duties. We are referred to no case in this state where the views suggested in Spencer v. Carr are criticized. In Brumfield v. Boutall, 24 Hun, 457, the question of fraud on the part of the infant was not up, nor was it in Sherman v. Wright, 49 N. Y., 231. The same may be said as to Ackley v. Dygert, 33 Barb., 176. In Brown v. McCune, 5 Sand., 224, decided in 1851, it was held that fraudulent representations as to his age did not bind an infant. This case was criticised and the opposite rule, held in Eckstein v. Frank, 1 Daly, 334. In Green v. Green, 69 N. Y., 553, a father had taken a deed from his minor son and paid him the consideration, and the question was whether the son on becoming of age could repudiate the deed without restoring the consideration. It was held that he could, it appearing that the money was spent tyid he had no other property with which to replace it. There was no question of fraud in the case.

In 1 Story Eq., § 385, it is said, in reference to cases like the present, that cases of this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepresentation; for neither infants nor femes covert are privileged to practice rleception or cheats on other innocent persons.” In 2 Sugden on Vendors, 8th Am. ed., 507, ch. 23, § 1, pl. 17, it is said: “If a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against, the person who has the right, although covert, or underage.” In 2 Pom. Eq., § 815, it is said: “An equitable estoppel arising from his (the infant’s) conduct may be interposed, with the same effect as though he were an adult, to prevent him from affirmatively asserting a right of property or of contract in contravention of his-conduct upon which the other party has relied and been induced to act.” Numerous cases are cited to each of the quoted propositions. The same rule is stated in Bigelow on Estoppel, 448. See-also, note in 44 Am. Dec., 386; Bispham’s Eq., § 293.

There is no doubt in the present case that the infant was of sufficient age to appreciate his rights and duties. He lacked only a few months of being of age. The rule, to be inferred from the Spencer case as to the application of the doctrine of equitable estoppel to infants, while it may not be entirely consistent with the supposed disability and need of protection of infants, has, I think, the weight of authority in its favor and it should be followed by us in this case. The court below therefore properly held that the fact that plaintiff was an infant did not of itself relieve him.

2. The plaintiff further claims that he should not be estopped, because he had no knowledge that he owned the land in dispute. This, however, upon the evidence was a question of fact, and was found adversely to plaintiff.

3. It is further claimed that the burden of proof is on the defendant, and that the testimony being evenly balanced, defendant must fail. It is true that the burden of proof was on the defendant, and that statements testified to by the defendant were denied by the plaintiff. It was however for the jury to determine where the truth was, and there were many surrounding-circumstances that bore upon the question.

4. It is further claimed that the defendant was guilty of lachesr in neglecting to consult the records in the clerk’s office, and the case of Trenton Banking Co. v. Duncan, 86 N. Y., 221, is cited in support of the-, proposition. In that case the plaintiff, who sought the benefit of an estoppel, neither looked at the record nor made any inquiry of anybody as to the ownership of the property, and it was held that its failure to examine the record and make inquiry prevented its recovery. The present case is materially different. So in McCulloch v. Wellington, 21 Hun, 5, there were no representations by the owner but, as said in the opinion at page 14, it was the case of a purchaser who, from his confidence in the vendor, or from other circumstances not imputable to the claimant, has purchased property and omitted to make tbe necessary and ordinary examination of title. In Lyon v. Morgan, 19 N. Y. Supp., 201; 45 St. Rep.,500, the effect of failure to examine the record was not determined, and the case was decided upon other grounds.

If the present case was one where the owner was simply silent, it may be that the constructive notice from the record would pre- ‘ vent the defendant from receiving any benefit from the doctrine of estoppel. But assuming there were false representations and intentional fraud, the rule would be different. Brinckerhoff v. Lansing, 4 Johns. Ch., 65; Fisher v. Mossman, 11 Ohio St., 47. As said by Judge Strong, in Hill v. Epley, 31 Pa. St., 334, “Itshould never be forgotten that there is a wide difference between silence and encouragement.”

A party setting up an equitable estoppel is himself bound to the exercise of good faith and due diligence to ascertain the truth. 2 Story Eq., 12th ed., § 1553, 6. Whether the defendant in that respect was negligent under the circumstances of the present case, was a question of fact. Moore v. Bowman, 47 N. H., 494. The court below was, therefore, correct in holding that it should not be said as matter of law that the defendant was guilty of negligence.

5. The appellant claims that incompetent testimony was admitted to his prejudice, but we find no ruling that supports this contention.

No other question is presented. It follows that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Parker, J., concur.


author: Merwin J.

text:
    Edwin E. Hall, App’lt, v. The City of Syracuse et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    •Corporations—Stockholder’s action to set aside company’s deed'.
    In an action by plaintiff, as a stockholder in defendant corporation, to set aside a deed from the latter to the city of Syracuse, upon the ground that as against a stockholder who did not assent to it it was void for want of power in the board of directors to execute or authorize it, it appeared that the corporation was organized under the act of 1875, for the purpose of manufacturing paper; that it possessed water rights, situated on the outlet of Skaneateles lake; that by chapter 891, Laws of 1889, the Syracuse water board was created, and power conferred upon it to acquire by purchase or condemnation for the city any property necessary for its system of waterworks; that the water rights of the corporation were necessary, and the board demanded of it the sale of stick rights; and in case of refusal, threatened to take condemnation proceedings. At the subsequent meetings of the company, at which all the stockholders were present but plaintiff, and he must have known of them, the city’s offer was accepted, and the necessary conveyance authorized. The price paid was all the right was worth, and no material injury to the company’s "business resulted from the sale. Held, that there was no reason shown for the court interfering with the conveyance.
    Appeal from a judgment entered in Onondaga county, on :20th January, 1893, upon the decision of the Onondaga special term dismissing the complaint.

      George Barrow, for app’lt; Hancock, Beach & Devine, for resp’ts, Mottville Paper Co. et al.; Charles E. Ide and C. G. Baldwin, for resp’t, City of Syracuse; Charles L. Stone and W. A. Beach, for resp’t, Syracuse Water Board.
   Merwin J.

This action is brought by the plaintiff, as a stockholder in the defendant, the Mottville Paper Company, Limited, to set aside a deed from that company to the city of Syracuse, dated February 23, 1891, upon the ground that, as .against a stockholder who did not assent to it, it was void for want of power in the board of directors to execute it or authorize its execution.

The paper company was organized in 1886, under the provisions of chapter 611 of the Laws of 1875, for the purposes of manufacturing paper at Mottville, N. Y. Prior to the organization, the parties interested therein and who afterwards became stockholders, contemplated the purchase of certain real estate and buildings thereon, and water rights and privileges appurtenant thereto, situated on the outlet of Skaneateles lake. After the incorporation such property was purchased and improvements were made thereon, and the business of manufacturing paper was .there entered upon and continued down to the time of the trial, the water of the outlet being used for the purpose of washing the material and reducing the same to pulp and in part for the propelling of machinery, the balance of the machinery being propelled by steam power.

By chapter 291 of the Laws of 1889 the Syracuse water board was created, and power was conferred upon it to acquire by purchase or condemnation for and in the name of the city of Syracuse any property necessary for the acquisition, construction, maintenance, control and operation of the system of water-works contemplated by the act. By § 18 of the act as amended in 1890, it was authorized under certain conditions to take water from the Skaneateles lake. One of the provisions of this section is that before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extin.guish all water power rights upon the outlet of said lake to be affected by the proposed storage of water." It was also provided that the powers granted to the water board to acquire property ■under the act and to make payment therefor shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable the city to obtain water from the lake under the provisions of the amended section. The water •power rights of the Mottville Paper Company were among those ■affected by the proposed storage of water. Substantially all its water rights, easements and privileges were derived from water coining from the lake through the outlet. Thereupon the water board, acting under the authority given by the acts referred to, prior to January 5, 1891, demanded of the Paper Company the ¡sale by it of such rights and privileges, offering to pay the value to be agreed upon, and in case of refusal by the company to sell, ■threatened to take proceedings under the statute for the condemnation thereof.

The capital stock of the Paper Company was $30,000, of which the plaintiff has since January, 1888, been the owner of $5,000, ¡and at one time was secretary and treasurer of the company. He has, however, since January, 1890, been at variance with the management of the corporation, and attended no meetings of the stockholders or directors. . The annual meeting of the stockholders is fixed by the by-laws of the company for the first Monday of January at the office of the company at Mottville. At the annual, meeting in January, 1891, stockholders owning or representing stock to the amount of $25,000 were present. The plaintiff was-not there. At this meeting the subject of selling the company’s-water rights to the city of Syracuse, and the possibility of the city taking the property by condemnation, were considered, and the president of the corporation was authorized to confer with the-city authorities and see what arrangement could be made, and report thereon to the board of directors.

Under this authority, negotiation was had by the president, and he reported at a subsequent meeting of the directors that the city offered to pay $22,500 in cash as damages and for the purchase of the water rights. This offer was accepted by the directors and the president authorized to execute the necessary conveyances, and receive the money. The deed in question was accordingly executed and delivered and the money paid. The deed purports to convey “ all the right, title and interest held or claimed, by the said first parties in and to the water power, the right, or privilege to use the water of Skaneateles lake outlet, and all interest or easements held or claimed therein by them,, wherever situate or from whatever source derived; and especially all the right to use the water of said outlet, and all the easements or water privileges connected with or belonging to-the following described premises,” describing the real estate of the company; “ said party of the second part also stipulates- and agrees that said city of Syracuse will not, at any time,' make any charge or rental to said first party for the use by them of any waters flowing down said outlet. This stipulation or agreement shall not, however, be construed as a license or grant, of any rights with relation to said waters or the use thereof.”

The money received upon the sale has been used by the paper-company in the payment of its debts or in the business of the-company, and prior to the commencement of this action the plaintiff did not restore or offer to restore to the city any part of it.

It is found by the special term upon sufficient evidence that-the price paid was all that the rights conveyed were worth ; that-in and about the prosecution of the business the paper company can obtain more reliable power to operate its paper mill and machinery from steam than from water, and that sufficient water for-the purpose of making paper can be obtained from sources other than from water flowing from the lake into the outlet; that during the period of seven or eight months of the year water will flow down the outlet to the Erie canal for the use of the state that all the business of the company can be well conducted without the use of water from Skaneateles lake flowing through the-outlet; that in making the sale and conveyance the defendants-acted in good faith and for the best interest of all parties concerned as they believed, and no material injury has resulted therefrom to said company, or to any of its stockholders. It appears that the directors who authorized the deed owned or represented all the stock except what was owned by the plaintiff.

We fail to see that the plaintiff has any good ground for equitable relief. The city and those acting in its behalf had a right to believe that the president of the company and its board of directors had a right to act for it in agreeing upon the value and in making a conveyance to carry out the agreement. Practioally, at the stockholders’ meeting, the matter was placed by them in the hands of the board of directors. The city authorities were not called on to investigate whether all the stockholders were present. The plaintiff is presumed to have known of the meeting, he does not deny that he knew of it, but he chose to be absent.

If, as was apparently the case under the statutes referred to, the city had a right to acquire the property in question whether the paper company was willing to sell or not, the question of power to sell became unimportant to the stockholders. The only open question was the one of price, and upon that subject, especially after the action of the annual meeting, the board of directors legally represented the corporation. It was their duty to obtain the highest price they could. In their judgment this was accomplished by agreement rather than by allowing proceedings for condemnation. We find no good reason for interfering with their agreement and consequent conveyance.

It follows that the judgment should be affirmed.

Judgment affirmed, with one bill of costs to defendants.

Hardin, P. J., and Parker, J., concur.


text:
    William Dale, Resp’t, v. The City of Syracuse, App’lt.

      (Supreme Court, General Term,, Fourth Department,

      Filed September 23, 1893.)

    1. Municipal cobpobations—Negligence—Injunction.
    A corporation engaged in constructing street railroad tracks through the streets of a city was enjoined by a property-owner from continuing the work until further order of the court; work was stopped, leaving a crosswalk with holes between the flag-stones; thereafter, and during the continuance of the injunction, plaintiff fell through one of such holes and was seriously injured. The city was not a party to the injunction suit. In an action against the city for damages for the personal injuries caused to plaintiff, Held, that the injunction was not designed to interfere with the duty of the city in keeping its streets and sidewalks in a reasonably safe condition, and its existence no defense to the action.
    2. Same.
    In such case, the question whether the plaintiff was guilty of contributory negligence in not looking constantly to see where he was stepping, he knowing of the condition of the cross-walk, was properly left to the jury.
    Appeal from a judgment entered in Onondaga county on 26th. May, 1892, upon a verdict at the Onondaga circuit in favor of the plaintiff for $200; also from an order denying a motion on the minutes for a new trial.

      Charles E. Ide, for app’lt; Hancock, Beach & Devine, for resp’t.
   Merwin, J.

On the 24th December, 1890, the plaintiff, in passing over the crosswalk on West Fayette street at its intersection with South Salina street in the city of Syracuse, fell and received a somewhat serious injury upon his head, and the action in this case is for the recovery of the damages sustained by such fall. The jury, by their verdict, have found that the plaintiff was injured by reason of the negligence of the defendant without any negligence on the part of plaintiff that contributed to the result. The condition of the crosswalk at the time of the fall was at the trial a matter of dispute. In the fore part of the November previous, the greater part of the flagging composing the walk had been torn up by The Syracuse Consolidated Street Eailway Company, preparatory to the laying of a curve for the purpose of connecting the track of the company on South Salina street with the line of the company on West Fayette street. Before this was completed an injunction had been obtained by Mr. Kirk, the owner of the block on the northerly corner, restraining the company, its agents and servants and all other persons acting in aid or assistance of the company, “from in any manner interfering with the streets in front of plaintiff’s (Kirk’s) premises known as South Salina street and Fayette street, or touching or molesting the same, or laying down, constructing or maintaining street railway tracks, switches or curves in, along, upon or in front of plaintiff’s said premises in either of said streets ” until the further order of the court. This injunction was obtained and served on the 28th November, 1890, and thereupon the company stopped its work, leaving the cross walk, as the plaintiff claimed, in an unsafe and dangerous condition, with holes between the flagstones or other stones that were there, and that it so remained until after his injury. There was evidence on the part of the plaintiff that sustained this view and supported the verdict in that regard.

The defendant, however, claims that by reason of the injunction, which continued until after the injury, it had no right to interfere with or repair the crosswalk, and that, therefore, it is not chargeable with its unsafe condition. We are of the opinion that this position is not sound because,

1. The answer of the defendant admits that, on the 24th December, 1890, it was the duty of the defendant to keep that crosswalk in good condition and repair and free of obstructions and in safe condition so that the same could be travelled over without endangering the lives and limbs of those attempting to walk upon or across it.

2. This defendant was not a party to the injunction suit, nor was it acting in aid or assistance of the railway company. The injunction was not designed to interfere with the duty of the city in keeping its streets and sidewalks in a reasonably safe condition.

The particular defect which, as the plaintiff claims, caused him to fall, was a hole or depression in the crosswalk into which as he came along he stepped and which at the time he did not notice because his attention was attracted to a man on the opposite sidewalk engaged in removing snow in an improper way. The defendant, however, claims that the fall of plaintiff was not occasioned by any hole in the walk, but by a slippery condition of the walk arising from a fall of snow during the night previous. Whether the hole caused the plaintiff to fall was, however, a question for the jury. The condition of the crosswalk as left by the railway company and as it was on the morning of the injury was fully described, the plaintiff gave his recollection of how the accident happened and was exhaustively examined and cross-examined about it. The court charged that if the plaintiff did not fall by reason of the imperfect, irregular condition of the crosswalk he could not recover, and that the city was not responsible for the slippery condition. The jury in effect found that the accident would not have happened had it not been for the imperfect condition as left by the railway company and permitted by the defendant to remain although sufficient time had elapsed to bring to the' defendant notice of the defects. In this respect we think the verdict should not be disturbed. Taylor v. City of Yonkers, 105 N. Y., 208; 7 St. Rep., 332.

It is further claimed that upon the undisputed evidence the plaintiff was guilty of contributory negligence. The argument is based on the testimony of the plaintiff himself that he was not at the moment looking to see where he was stepping, but allowed his attention to be attracted away from the crosswalk. The occurrence was about fifteen minutes before seven o’clock in the morning. It was not fully daylight, though light enough to see across the street. The plaintiff was the janitor of the Kirk block and was coming from his house in the southern portion of the city. He was walking at a moderate gait, and as he came to the crosswalk at the corner opposite the Kirk block he noticed a man cleaning the ice and snow from the sidewalk in front of the Kirk block with a spud in a manner that would deface the walk. He was about to call to him when he fell.

It was a part of the duty of the plaintiff to look after the sidewalk that the man was cleaning off. By reason of his attention being called to this, he did not at the moment notice where he was stepping. He was familiar with the condition of the crosswalk. The question is whether as matter of law it should be said that the failure of plaintiff to constantly look to see where he stepped was negligence. Was he careless in not stopping still when he looked at the man across the street ? His attention was suddenly attracted to a matter that naturally would for the moment divert his thoughts. The question whether he was chargeable with carelessness was, we think, properly left to the jury. See Driscoll v. Mayor, etc., 11 Hun, 101; Thomas v. Mayor, etc., 28 id., 110. In Palmer v. Dearing, 93 N. Y., 10, it is said : “ While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and prudence might reasonably apprehend injury generally imposes upon him the duty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this state to be a question of fact to be determined by the jury.”

The cases of McCabe v. City of Buffalo, 45 St. Rep., 456, and Splittorf v. State of New York, 108 N. Y., 205; 13 St. Rep., 472, are clearly distinguishable from the present.

The foregoing considerations lead to an affirmance of the judgment.

Judgment and order affirmed with costs.

Hardin, P. J., concurs.


text:
    The New York Central & Hudson River Railroad Co., Resp’t, v. Paul S. Maine, Supervisor of the Town of Fenner, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed Sept. 23, 1893.)

    1. Municipal corporations—Action to prevent waste.
    An action by a taxpayer to prevent waste of or injury to the property of a municipality cannot be maintained where it is shown that the officer of the municipality acted in good faith, and with no intent or purpose to injure or defraud any taxpayer, unless the act complained of was beyond his authority and wholly illegal and void.
    2. Same—Submission oe controversy.
    An appeal in an action by a taxpayer to restrain the submission to the general term of a claim of a town against a county upon an agreed statement of facts, on the ground that the statement was fraudulent and collusive and all defenses not raised, it appeared that whether the facts were taken as stated in the submission or as found in the special term, the county received from the town the same amount that it was not entitled to have, or would not have had if the law had been carried out, and that no fraud or collusion existed. Seld, that although the facts brought out at special term raised a possible new defense, the submission on the facts as agreed should not be restrained.
    Separate appeals by the defendants from a judgment entered in Madison county on 16th May, 1892, upon the decision of the Madison special term. The judgment restrained the defendants from further proceeding in the matter of the submission to the general term of a certain controversy between the defendants, and from presenting any amended or other submission which does not contain a statement of certain facts found in the decision.
    The action is brought by the plaintiff, as a taxpayer of the county of Madison, to restrain the submission to the general term of a claim of the town of Fenner against the county upon an agreed statement of facts. It is alleged that the statement of facts is false and collusive in divers particulars, and that the alleged grounds of resistance do not fully or truthfully raise the defense as it in fact exists, and that the submission was drawn and was proposed to be submitted by collusion and in fraud of the taxpayers of the county. The submission bears date January 24, 1891, and was filed January 27,1891.
    On the 1st day of February, 1869, pursuant to the provisions of chapter 140 of the Laws of 1868, entitled “An act to authorize the village of Oanastota and the towns of Cazenovia and Fenner, in the county of Madison, to issue bonds and take stock in the Cazenovia & Oanastota Eailroad Co.,” the commissioners of the town of Fenner, duly appointed for that purpose, borrowed upon the credit of the town the sum of twenty thousand dollars, and issued bonds therefor, and with the money so borrowed took and paid for stock to the same amount in the said railroad company. In the year 1882 the assessed valuation of the said railroad company for that year in the town of Fenner was $24,350, and the state tax assessed against and collected from the company was $243.50, which was divided as follows: for state purposes, $51.16, for county purposes, $61.52, for town $130.82. In the following years up to and including 1889, similar assessments were made against the railroad company in said town, and a tax each year collected. The submission states in detail the amount of the tax each year, and what part of it was for state purposes, and what for county purposes. It then states that such sums, specifying the items each year for state and county taxes, “ were duly collected from said railroad company, by the collectors of said town, ■on or before the first day of February of said years respectively ; and were duly paid over by said collectors to the county treasurer of Madison county; and were paid out by him for general county purposes, including state taxes, on the first day of June of said years respectively.
    “Ro part of said sums have ever been refunded to said town of Fenner, or been applied by the county treasurer to the creation of a sinking fund for the payment of the bonded indebtedness of said town.
    “ In each of said years, from 1882 to 1888 inclusive, there was raised by taxation upon the taxable property of the town, a sum equal to the railroad’s share of the entire tax, in excess of the amount required to be raised by said town for the ordinary expenses of said town." These sums were set apart by the county treasurer of-Madison county as a sinking fund for the payment of ■said bonded indebtedness of the town, and were afterwards duly applied to that purpose.
    “In fixing and determining the equalized value of the property of said town of Fenner for said years 1882,1883,1884,1885,1886, 1887, 1888 and 1889, for the purpose of ascertaining the amount of property in said town liable to taxation for state and county purposes, and for the purpose of apportioning the tax to be paid by said town, no reduction was made on account of the property of said railroad company, or any part thereof, and the same was treated as any other taxable property of the town, and as liable to taxation for state and county purposes.”
    The submission then states the proceedings of the board of supervisors with reference to the statute of limitations and the position of the town in regard thereto. These need not be detailed here. • The town claimed to recover of the county certain specific sums, which were the same in amount each year as the amount of the state and county taxes in the tax paid by the railroad company, and in each case interest was asked from the first day of J une following the payment. The questions submitted were, first, whether the plaintiff therein] as supervisor of the town of Fenner, was entitled to recover of the defendants therein those sums, specifying them for each year; second, whether the board of supervisors of the county of Madison was liable for the payment of those sums or any part thereof; third, whether the statute of limitations barred the items claimed for the years 1882 and 1883, and fourth, whether the act under which the claim was-made was constitutional.
    At the special term it was, among other things, found as follows :
    “4th. Such case and submission were executed and entered into-by and between the defendants in this action in good faith, and in the belief that the same contained a full, fair and truthful statement of all the facts upon which the controversy between them depended. There was no intent or purpose on their part to injure or defraud the plaintiff in this action, or any citizen or taxpayer in said county.”
    “ 6th. In each of the years from 1882 to 1888 inclusive (except the year 1884), the supervisors of said county apportioned against the town' of Fenner its share of the state and county tax, without talcing out the assessed valuation of the said railroad property therein. The supervisor of the town thereupon added to the share-so fixed the amount to be raised for the town expenses, and divided the sum so ascertained by the assessed valuation of the property of the town, less the assessed valuation of such railroad property, and in that manner acquired the rate per cent, to be-levied against all the taxable property of the town.
    “He then multiplied the total assessed valuation of the property of the town by such rate per cent, and the sum so ascertained he caused to be levied and collected against the taxable property of the town, including the railroad property.
    “Such method caused to be collected in each year, not only the-amount of taxes needed for state, county and town expenses, but also a sum in addition thereto, just equal to the amount of the tax levied upon and collected from the railroad company.”
    “ 7th. In each year from 1882 to 1889, inclusive, the tax levied against the property of said railroad company was paid by such company directly to the treasurer of Madison county, and was received by such treasurer before he received from the collector any portion of the taxes collected by him.
    “ Upon receiving such taxes from the railroad company, the-treasurer in each year made the credit and entry in the ‘Railroad Sinking Fund Account/ as stated in the next finding.”
    “ The county treasurer in 1871 opened with the town a sinking fund account which has been continued to the present time, and in each year the treasurer “has credited the town of Fenner therein with a sum equal to and identical in amount with the tax levied against and paid to him by the said railroad company in the town of Fenner, and stated in such account that it was the-railroad tax from such railroad. Such credit was made as soon as the amount was received in each year from the company,, but never before it was received. The money itself was not kept in separate deposit, but was deposited in bank in his general account as county treasurer. Such amount so credited was also (except in the year 1884) exactly equal to the sum raised in each year by thé town of Fenner in excess of the amount needed for the state, county and town taxes of such year.”
    “The sums so credited the town were used by the treasurer solely for the purchase o„r the redemption and cancellation of the bonds issued by the town in aid of the railroad, and in each year a committee of the board of supervisors examined and reported upon and approved the sinking fund account so kept.”
    “ 12th. In the year 1884 the supervisor of the town of Fenner ascertained his rate per cent, without deducting the value of the railroad property from the assessed valuation of the town, and for that reason no greater sum was raised that year than was needed for state, county and town expenses; nevertheless the treasurer of the county placed to the credit of said town, in such sinking fund account, the precise amount of taxes that were paid to him that year by said railroad company as the tax levied against its property, and applied the same to the purposes of such sinking fund, thereby creating a deficiency in the taxes needed for that year; such deficiency was supplied by borrowing, and the following year a tax was levied against the town of Fenner to repay the same.”
    As matter of law it was decided that all the facts contained in the 5th to the 15th findings of fact, both inclusive, should be presented to the court, and the submission in that respect was insufficient and defective, and did not fully and fairly leave to the decision of the court all of the facts which fix and determine the rights of the respective parties.
    The material portions of the fifth to the fifteenth findings of fact are above stated.

      Henry B. Coman, for app’lt, Maine; John E. Smith and Charles A. Hitchcock, for app’lt, board of supervisors; C. D. Prescott, for resp’t
   Merwin, J.

In Talcott v. City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871, it wasuheld that the provision of the Code of Civil Procedure, § 1925, authorizing an action by a taxpayer to prevent waste of or - injury to the property of a municipality, as supplemented by the acts of 1881 and 1887, is confined to cases where the acts complained of are without power, or when corruption, fraud or bad faith amounting to fraud is charged.. This was approved in Ziegler v. Chapin, 126 N.Y., 342 ; 37 St. Rep., 490, and it is said by Finch, J., p. 348: “ If the officer is honest and faithful, no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud, and the courts are open for his protection and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act and persists in carrying out the wasteful contract, that an action against him is needed; and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved.”

Under these cases, and the finding at special term that the defendants acted in good faith and in the belief that the submission contained a full, fair and truthful statement of all the facts upon which the controversy between them depended, and that there was no intent or purpose on their part to injure or defraud any taxpayer of the county, the present action is not maintainable, unless the acts complained of were beyond the authority of the board and wholly illegal and void. Ziegler case, p. 349.

It is not claimed that the board had no power to make a submission of the controversy, but that the facts were not so stated as to present all the questions in the case.

The submission stated that the taxes against the railroad company were duly collected from the company by the collectors and paid over by the collectors to the county treasurer; that they were paid out by him for general county purposes, including state taxes, and no part have been applied by the county treasurer to the creation of a sinking fund for the payment of the town bonds; that in each of the years in question there was raised by taxation upon the taxable property of the town a sum equal to the railroad’s share of the entire tax in excess of the amount required to be raised by the town for ordinary expenses, and those sums were set apart by the county treasurer for a sinking fund for the payment of the bonded debt and were so applied.

The facts as found by the special term are that the railroad company paid its taxes directly to the county treasurer before the treasurer received from the collector any portion of the taxes collected by him; that upon receiving such taxes from the railroad company the county treasurer credited the town in the sinking fund account with a sum equal to and identical in amount with the tax levied against the company and stated in such account that it was the railroad tax from such railroad, and that the amount so credited was used and applied in the sinking fund account; that there was raised by the town each year except one, and then the deficiency was afterwards collected, an excess equal to the railroad’s share of the entire tax as stated in the submission, and the amount credited to the sinking fund each year was" exactly equal to this excess; that the moneys credited by the treasurer to the sinking fund account were not kept in separate deposit, but were deposited in bank in his general account as county treasurer.

The act under which the sinking fund was created, § 4, chap. 907 of the Laws of 1869, as amended by chap. 282 of Laws of 1871, does not provide for the payment directly from the railroad company to the county treasurer. It provides that the taxes “collected” upon the assessed valuation of any railroad, etc., shall be paid over to the county treasurer. This recognizes the idea that the moneys are supposed to go through the hands of the collector. The submission, therefore, when it stated that the moneys were collected by the collector and paid over by him to the treasurer stated the legal effect of the transaction. So it is to be observed that if the moneys paid in by the railroad company were set apart to the sinking fund, there was no separation of funds by the county treasurer. So that, when the excess raised by the town came in, the county had the benefit of the full amount of the tax levied against the town, and the town had no benefit from the application of the railroad taxes. It in effect made up to the county the deficiency occasioned by the application of the railroad taxes as the law required. In regard to such a case, it is said in Bridges v. Board of Supervisors, etc., 92 N. Y., 580 : “ The county is neither entitled to these moneys nor to an equivalent amount from the town of Liberty. It is entitled to receive from the taxpayers of that town only that proportion of such amount which its assessed valuation bears to the aggregate valuation of the taxable property of the whole county, and this amount is collectible only through the general tax levy.” St would, therefore, seem if the county received and used the excess so called, it received and used an amount it was not entitled to have from the town, and this amount was exactly equal to the tax against the railroad company.

It is quite manifest that whether we take the facts as stated in the submission, or as found at the special term, the county received from the town the same amount that it was not entitled to have, or would not have had if the law had been carried out. The whole was raised under one warrant and the one important fact was whether the county had too much.

The counsel for the plaintiff, however, claims that the facts as found by the court upon the trial raise a new and material question which should appear by the case upon submission, and that is: When a town has had the benefit of the railroad taxes as provided by the statute, and by its own independent act has provided for and paid any deficit arising thereon, can it recover such amount from the county ?

In other words, the town has voluntarily raised and paid to the county more than it was bound to pay, and therefore, it is argued, it cannot recover it back although the county has had the full benefit of it.

The first mistake was made by the board of supervisors when, in making the apportionment of state and county taxes among the several towns, it failed to deduct the assessed valuation of the railroad property. Bridges v. Board, etc., above cited. This mistake, it might be argued, induced the action of the town, and if so there would at least be a strong equity in favor of the town.

In Woods v. Supervisors, etc., 136 N. Y., 403, 411; 49 St. Rep., 685, which was a submission like the present, it is said that it cannot be doubted that the board of supervisors could have most effectually waived the defense of the statute of limitations by honestly and without collusion refusing to plead it. If so, can it here be doubted that the board had power to waive the defense, if it existed, that the payment by the town was voluntary, it being found that there was no fraud or collusion, and the county having had the benefit of the moneys?

In substance, taking the facts as claimed by the plaintiff, there was no controversy between the town and countv on the subject of the voluntary payment, but on other questions which then seemed of more importance than they do now by reason of subsequent decisions of the courts. We are in effect asked to compel the county, if it makes any submission at all, to make it in a way that will raise a defense and litigate a question that it does not care to raise and litigate. It seems to me. that we cannot fairly say that .the board acted beyond its power or that its action was illegal or fraudulent.

The court to which the submission was to be made was only to be called on to pass on the questions raised by the facts as agreed on. It was immaterial to it whether the county raised all tl*e defenses possible.

The remarks of Judge Andrews in Osterhoudt v. Rigney, 98 N. Y., 282, are in principle quite pertinent: “Whether the claim is a proper town or county charge, in a case where it is doubtful and rests upon disputed evidence, and what amount shall be allowed, when not fixed by statute, are questions which the statute commits to the determination of the board of audit, and however much it may err in judgment upon the facts, so long as it keeps within its jurisdiction, and acts in good faith, its audit cannot be overhauled, but is final as well as to the taxpayers as to the claimant. Supervisors v. Briggs, 2 Denio, 26; People ex rel. v. Supervisors, etc., 45 N. Y., 196, 200.

“ It would be intolerable to permit a tax-payer, upon a mere allegation of error in the course of the proceedings of boards of audit in matters within their jurisdiction, to compel the supreme court in a collateral action to re-examine claims allowed upon their merits, and to approve or reverse the proceedings upon its own view of the justice or equity of the claim. The adjudication of a board of audit proceeding regularly within its jurisdiction, establishing a claim against a town, although the allowance may be excessive, or although it may err in its conclusion upon the" facts, does not constitute waste or injury to the property of the town, within the act of 1872.”

The foregoing considerations lead to a reversal.

Judgment reversed, and new trial ordered, costs to abide the event.

Hardin, P. J., concurs.


author: Merwin, J. Hardin, P. J.

text:
    William E. Dorwin et al., Resp’ts, v. James B. Westbrook, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    Contract—Waiver of provisions.
    Defendant, having a railroad building contract, entered into a written contract with plaintiffs whereby the latter were to do certain excavating, solid rock at $1.00 per cubic foot, and hard pan at thirtv-two cents; provision was made in the contract that the work should be supervised by the railroad company’s engineer, monthly payments to be made for work done as estimated and certified by the engineer, less ten per cent., and at the completion of the contract a final statement made of all the work done as estimated and certified by the engineer, and that in comparing the final estimate, and giving the final certificate, the engineer need not be bound by the preceding ones. Plaintiffs entered upon the work, and soon after, to facilitate matters, the engineer fixed the classification at seventy-five per cent, solid rock, the balance to be classified later, which arrangement was assented to by both parties. In giving his final certificate the engineer classified the solid rock at forty-five per cent, only, and at such rate only would defendant pay. Plaintiffs brought suit on the contract to recover the difference in price. Reid, that none of the parties intended to waive any of the provisions of the contract, and that a recovery was not warranted by a promise of the engineer that the classification was or should be at a certain rate.

      Appeal from a judgment entered in Tioga county, on the 21st December, 1892, upon a verdict at the Tioga circuit, in favor of plaintiffs, for $8,706.64; also from an order denying a motion for a new trial upon the minutes.
    The action is for a balance claimed to be due plaintiffs for work, labor and materials done and performed and furnished under a written contract dated May 13, 1891.

      S. Halliday and Thomas D. Husted, for app’lt; Sears & Lynch, for resp’ts.
   Merwin, J.

On the 13th May, 1891, the plaintiffs and the •defendant entered into a written contract, in and by which the plaintiffs, being the parties of the second part in said contract, agreed to construct, build and in every respect complete all the grading and masonry and other work required for a single track railroad on a certain portion of the Mohawk Valley & Northern railway, commencing about five miles from the town of Malone and extending thence southwardly about one and a half miles. This was to be done in accordance with specifications annexed and made part of the contract, and all was to be done “ under the direction and inspection of the company’s engineers appointed to superintend the same, and to the full satisfaction and acceptance of the company's chief engineer." The work was to be completed by September 1, 1891. The defendant agreed to pay therefor, among other things, as follows: For solid rock excavation one dollar per cubic yard; for loose rock excavation forty-eight cents per cubic yard; for hard pan excavation thirty-two cents per cubic yard; for earth excavation nineteen cents per cubic yard. Provision was made for monthly payments for the work done as certified by the chief engineer, less ten per cent, and at the completion of the contract the defendant agreed “to have a final statement made of all the work done as estimated and certified by the said engineer together with all amounts due, including any percentage retained, and this amount so found as being due shall be paid to the said party of the second part within thirty (30) days after the completion of said work and payment for the same shall have been made by the Mohawk Valley & Northern Eailway Company to said party of the first part, provided said parties of the second part shall give satisfactory security for the payment of any and all unpaid claims against said work.”

The contract had, among others, the following clauses: uThird. And it is understood and agreed that the said chief engineer, in comparing the said final estimate and giving his final certificate, need not be bound by the preceding estimates and certificates, but such preceding estimates and certificates shall be held to be only approximate to the final estimate, and the said monthly estimates and certificates on unfinished work shall in no case be taken as an acceptance of the work or a release of. the parties of the second part from responsibility therefor until the final estimate is made and the work in its. entirety is accepted as complete under this contract.”

Twelfth. All questions, differences or controversies which may arise between the parties hereto, under or in reference to this agreement and specification, or its performance or non-performance, or the work to which they relate, or in any way whatever pertaining to or connected with said work, shall be referred to the-engineer of the company, and his decision shall be final and conclusive to both parties.”

In the specifications there is a provision that “ the work will be executed under the direction and constant supervision of the engineer of the railway company, by whose measurements and calculations the quantities and amounts of the several kinds of work pei'formed shall be estimated, and whose determination shall be conclusive on both parties.” In the contract it is provided that “whenever the word engineer or chief engineer is used therein it shall be understood to refer to the chief engineer of the Mohawk Valley & Northern Railway Company.” In the specifications it is provided that “whenever the word engineer or chief engineer is used in these specifications, it is to be understood as applying to the engineer in chief of the company, or in his absence his duly appointed assistant engineers and inspectors representing him, limited by the special duties entrusted to them.”

Thereupon the plaintiffs entered upon the performance of the contract and made excavation to the amount of 35,491 yards. There is no dispute about this or about the final completion and acceptance of the work. The controversy is over the classification of, the excavation and the consequent price. The plaintiffs claim that soon after the work was commenced, the chief engineer or the engineer in charge fixed the classification at seventy-five per cent solid rock and the balance hard pan, and that both parties, plaintiffs and defendant, agreed to this arrangement. This the defendant denies, and claims that the final certificate or estimate of the chief engineer is conclusive, which classifies the work at about forty-five per cent solid rock, forty-five per cent earth and ten per cent loose rock. If this classification is correct, the plaintiffs have concededly been fully paid. The defendant also claims a settlement and release on the 8th April, 1892. The plaintiffs claim there was no settlement, and that the release never became operative. The recovery is upon the basis of the. classification as claimed by the plaintiffs, and the absence of any settlement or operative release.

The excavation was mainly in a rocky cut for the line of the track, and the balance was in a borrow pit. Soon after the work was commenced in the cut the plaintiffs made complaint to the defendant’s agent that the engineer or assistants, who under the contract and specifications were required to take measurements, were absent and there was likely to be delay. Thereupon, the plaintiffs or their agent and defendant’s agent called on the chief engineer, Mr. Roberts, with a view of obviating the difficulty. They to some extent looked over the work in the cut, and upon the surface it appeared to be mainly large boulders with the spaces between filled with hard pan. The evidence tends to show that then the engineer told the parties that he would classify it at seventy-five per cent solid rock and that would do away with all dispute about measurement, and that the balance of twenty-five per cent would be classified by his assistant as the work progressed ; that this arrangement was assented to by both parties, the defendant’s agent saying that he was satisfied, or was satisfied if the plaintiffs were. A similar arrangement was made with the assistant engineer as to the borrow pit. There is no evidence that the remaining twenty-five per cent was classified as hard pan except that the assistant engineer told the plaintiffs or their agent, at the time of the arrangement for the classification for solid rock, that, the whole of the balance was hard pan.

The court charged the jury in substance that if the engineer made the classification then and there, when they were about to enter upon the work, and said that would take the place of any further measurement, and the plaintiffs relied on it supposing that was to be the final estimate, then the plaintiffs, so far as that part of the case wa's concerned, could recover. To this, exception was duly taken. The court had previously stated that if the material taken out of the pit and cuts was classified by the engineer, in the presence and with the consent of the defendant, before the work began, or about the time, and that the work progressed under that classification, the plaintiffs could recover the price for such classification.

Assuming then that, the engineer or his assistant, in the presence and with the consent of the defendant, stated verbally that, he classified the excavations in the manner claimed, and that this-would take the place of any further measurement and that plaintiffs relied on it supposing it to be final, is this sufficient to-authorize the recovery ?

The defendant was not personally present, but was represented by Mr. Carroll. The evidence does not warrant the conclusion that either party intended to make or consent to any arrangement outside of the contract or inconsistent with it No new contract, was contemplated or any change in the original instrument. Whatever was said or done was rather designed to be in furtherance of the contract as made and supposed to be within its scope. The conclusion is not warranted that the parties themselves assumed to make a classification. It was the act or statement of the engineer under the power given him by the contract. The engineer and his assistants were not the agents of the defendant any more than they were the agents of the plaintiffs. They were not in fact the agents of either. When, therefore, the plaintiffs, as testified to by one of them, relied on the verbal statement of the engineer, they did not rely on any act or statement made by the defendant, or for which the defendant was responsible any more than the plaintiffs were. They were not misled by the conduct of the defendant. I fail to see, therefore, how the arrangement, for classification can be held to bind the" defendant upon any theory of estoppel. The cases cited by the plaintiffs’ counsel do not, I think, apply.

The defendant was a contractor with the railway company and the plaintiffs were sub-contractors with the defendant. It was important for the defendant to have the kind and amount of work ascertained in such a way that it would be satisfactory to the company upon his settlement with them. He apparently was to settle with the company upon the basis of the same estimates and ■certificates of the engineers that were provided for settlement with ■the plaintiffs. Under the contract, the final payment for the work, from the defendant to plaintiffs, was not due until after the defendant had received payment for the same from the company. In ascertaining the amount, a final statement was to be made of all the work done “as estimated and certified by said engineer,’’ and it was expressly provided that the engineer in making his final estimate and certificate need not be bound by the preceding estimates and certificates, but that they should be held to be only approximate to the final estimates. These provisions were vital to the defendant in view of his .relation to the company, and an intent on the part of the defendant to waive them should be clearly established.

It is not to be supposed that any of the parties believed that the verbal arrangement with the engineer would take the place of the certificates called for by the contract. In effect then the arrangement was that the engineer, when he came to make his preliminary and final estimates, would treat the excavation as seventy-five per cent solid rock. He failed to keep his promise. Does it follow that the defendant is responsible the same as if he had kept it, thereby nullifying the provisions of the written contract, and that too without evidence that the solid rock was as much as the proposed classification would make it ?

It is quite evident that none of the parties intended to waive any of the' provisions of the contract. The trouble arises from the failure of the engineer to carry out his promise. He denies he made it, but assuming that he did, as the jury have found, it was not a certificate such as the contract called for as a basis for payment, and the evidence is not sufficient to show that the parties agreed or intended it should be. It may be that if the engineer in his final certificate did not give as large a percentage of solid rock as in fact there was, or the final certificate was made under circumstances thát amounted to a fraud, the plaintiffs, under proper allegations, would have a remedy. This action, however, is on the contract, and upon the evidence a recovery is not warranted based simply on a verbal agreement or promise by the engineer made before the work was done that the classification was or should be at a certain rate and which was not in fact carried out in the final estimates.

The defendant also claims that the plaintiffs are barred by a release given by them on the 8th April, 1892. The plaintiffs claimed that they did not knowingly or intentionally execute it, but were induced to sign it on the representation of the agent of defendant that it was a receipt for money they were then receiving and that there was not in fact any settlement. The question whether it was executed under the circumstances, claimed by plaintiffs was left to the jury, upon the charge in substance that if so executed it would not be a bar, and the court declined to charge that if they might have read it they could not avoid it on the ground that they did not read it Whether the questions as to the release were properly given to the jury it is not necessary here to discuss in view of the conclusion on the other branch of the case.

Hardin, P. J.

While concurring in the foregoing opinion, I •deem it not inopportune to add that the evidence tends very strongly to support the release and settlement, and in respect thereto the verdict seems to be against the weight of the evidence. 119 N. Y., 86; 22 St. Rep., 418.

I think there should be a new trial.

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