text:
    Frederick Storck, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Railroad—Elevated—Adjoining premises—Damages—Benefits.
    In an action to enjoin an elevated railroad company from running their road in front of plaintiff’s premises and for damages, the defendants alleged special and peculiar benefits conferred on plaintiff’s premises by reason of its station being at the corner by the premises; it was sustained only by the opinion of a single witness, and opposed by the plaintiff, who testified that his trade was not increased thereby. Meld, that the court properly refused to find that a benefit had been conferred on the premises by the railroad station.
    Appeal by defendants from judgment entered upon findings and conclusions at special term.

      Julien T. Davies & Brainard Tolles, for app’lts; Charles Gibson Bennett, for resp’t.
   Per Curiam.

—The action was to enjoin the defendants from running their elevated railroad in front of plaintiff’s premises, and for damages.

The learned counsel for appellant argues that the court below erroneously refused to find certain matters as requested in behalf of defendants, that concerned, as is maintained, special and peculiar benefits, conferred on plaintiff’s premises by the railroad.

The evidence, on the subject was not so undoubted or so strongly in favor of the defendants as to require finding for the defendants. The supposed special and peculiar benefit arises mainly, as is sup-1 posed, from the relation of the station at the corner to the plaintiff’s house. The state of the evidence on this point is illustrated1 by the following parts of the testimony given. A witness for defendants said: “There is a special value given to the property ¡ situated at the station ; I believe the corners are benefited at least twenty-five per cent from the fact of the station being there.” A just criticism of this testimony would be that at least the witness 1 confounded an increase of value from general causes- with an increase caused specifically by the station. But this evidence was ¡ opposed by the plaintiff, himself using the property, who testified, 1 “ a good many people come and go from the station near by me , there. Yery few people going to the station in the morning, or ' leaving in the evening, leave me orders for bread; that has net much to do with my business; they pass without looking at my 1 business.”

On evidence of this kind the court was not incorrect in refusing to find as requested.

The effect of the defendant’s road was not to make the two avenues and streets connected with it thoroughfares. They were, 1 or would have become thoroughfares, irrespective of the railroad.

There was nothing in the evidence which required the judge to - find that the general rise in value of real estate in the second avenue was attributable largely to the operation of defendant’s railroad, or that the population in the neighborhood was increased greatly by that operation.

The measure of damages was the decrease of rental value. ¡ Most of the requests alluded to concerned matters of evidence-relevant to the issue, but did not call for any determination of the ¡ issue.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concur.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Henry W. Droge, Resp’t, v. Eugene H. Cree, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Verdor ard verdee—Marketable title.
    In an action brought to recover back a deposit, made ■ on a contract j for the purchase of real estate, upon the ground that the defendant was unable to give a good title, it appeared that the former owner of a part of the property had deeded the same as cemetery lots to persons who entered ; into possession, but never properly recorded the deeds. After the grant- or’s death his executors, mistakenly supposing that power was given them by the will, executed a deed of the property to defendant’s grantor. Held, that in default of such power in the executors, the defendant, not having i established title by adverse possession in himself and his predecessors for at least twenty years, could not give a good marketable title.
    Appeal by defendant from judgment entered in favor of the plaintiff upon the decision of a judge at special term, a trial by ; jury having been waived. 1

      Ashbel P. Fitch, for app’lt; Poor & Puffy, for resp’t.
   Freedman, J.

—This action was brought to recover back the deposit made by the plaintiff on a contract for the purchase and sale of real estate, and to recover the cost of searching the title, upon the ground that the defendant was unable to give a good title to the premises according to his contract. The only question on this appeal is, whether or not the defendant was able to give a good marketable title. The plaintiff was entitled to a good marketable title within the rule laid down by the court of appeals in Hellreigel v. Manning, 97 N. Y., 56; The Methodist Episcopal Church Home v. Thompson, 108 id., 618; 13 N. Y. State Rep., 127, and Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259.

It appears that one Robert H. Elton was the common source of title. He laid out a cemetery and filed a map thereof, and parts of two of the lots of said cemetery are a part of the premises the title to which is in question. These two lots Elton conveyed by warranty deeds, and with reference to the map to James Stillman and James L. Parshall, and the said grantees entered into use and occupation under said deeds. The plot laid out for a cemetery was enclosed and. divided into lots, and there were paths between the lots. There is no proof that the cemetery was ever incorporated. The deeds for these two lots were left with the proper officer for record, and were recorded in a book of deeds kept in the office of the proper recording officer, but they were not recorded in the book prescribed by statute for the record of deeds under the statute, but in a book entitled “ Record of Deeds, Ho. 1, Rural Cemeteries, Westchester County.”

Robert H. Elton died, leaving a will, which gave his executors no title to his real property, but which contained the following power, viz.:

“I authorize, empower and direct my executors hereinafter named at such time or times and in such" manner and parcels as they shall deem for the best interest of my estate, to sell and convey all my real property and estate. And I also empower my said executors to carry out any and every contract which I have made for the sale of any part or parcel of my said real property, and to execute and deliver such deed or deeds as shall be necessary and proper to convey the premises as contracted on the compliance with the terms of such contract by the party contracted with.”

On the 31st day of December, 1873, more than twenty years after the conveyances to Stillman and Parshall above referred to, the executors of Robert H. Elton, assuming to act under the power in the will as quoted, executed a quit-claim deed, conveying the premises in question to Mary Beck, under whom the defendant claims title. It is conceded that the lots conveyed to Stillman and Parshall cover the fronts ofthe lots which the defendant agreed to sell to the plaintiff.

The facts being as stated, and the defendant not having established title by adverse possession in himself and his predecessors for at least twenty years, there can be no doubt of the correctness of the judgment, even if it be assumed that the deeds to Stillman and Parshall were not recorded as prescribed by statute. The power of the executors attached only to real estate of which their testator died seized. It did not attach to real estate' which the testator had conveyed. Stillman and Parshall having acquired title to their respective lots by warranty deeds from the testator himself, and having entered thereunder, the executors had no more right or power to sell the said lots, or any part thereof, than the testator would have had at that time, if he had lived and had undertaken to do so, for there is not a particle of evidence that the testator or the executors ever regained title or possession from Stillman and Parshall. It is unnecessary, therefore, to determine with precision thé effect to be given to the recording of the deeds to Stillman and Parshall. Attention may be called, however, to the fact that there are authorities to the effect that leaving an instrument required by law to be recorded in the proper office for record, is all that a party is bound to do, and that the failure of a public officer to perform his duty will not prejudice a party who has complied with a statute made for his protection. The Mutual Life Ins. Co. v. Dake, 87 N. Y., 257 ; Manhattan Co. v. Laimbeer, 108 N. Y., 578; 13 N. Y. State Rep., 869.

Upon the whole case it is clear that the defendant cannot give such a marketable title as the plaintiff has a right to demand.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


text:
    James C. Duff, Pl'ff, v. Lillian Russell, Def't.

      (New York Superior Court, Special Term,

      Filed March 9, 1891.)

    Injunction—Contract for services.
    By a written contract defendant agreed to appear in the soprano roles of » plaintiff's operas during the seasons of 1887-89, in such cities as he might select, plaintiff to supply the costumes; season to last eight or ten months, with the right to terminate it on two weeks’ notice by plaintiff; defendant to receive $800 per week. Plaintiff, relying upon his contract, announced the defendant, at a large expense, in the papers as a member of his company until end of the season of 1889. Defendant refused to perform in plaintiff’s opera in New York in 1889. because the contract was inequitable and because plaintiff had refused to substitute a more healthful costume for the tights in which she appeared in a certain opera. It appeared that such costume was necessary, not unhealthful, and that the plaintiff had a right to prescribe the costume, and that defendant had not objected until another engagement was offered her. Meld, that plaintiff was entitled to an injunction restraining defendant from appearing as a singer in any opera company than his own, during the period of her contract with him.
    Action for injunction

      Vanderpoel, Cuming & Goodwin, for pl’ff; Howe & Hummell, for def’t.
   Freedman, J.

—This action is brought by the plaintiff, a theatrical and operatic manager, to restrain the defendant from appearing as a singer or an actress upon the stage of the Casino in the citv of New York during the period of her contract with the plaintiff.

A prelimininary injunction having been granted, and it appearing, upon the hearing of the motion for the continuance of the injunction during the pendency of the action, that the defendant had made a contract in writing with the mana■ger of the Casino, and had been extensively advertised to appear at that theatre within a few days thereafter, it was arranged between the parties, but without prejudice to the rights of either, that the defendant, upon giving an undertaking in the sum of $2,000 conditioned to pay that sum as liquidated damages in case it should be finally determined that the plaintiff is entitled to an injunction herein, might go on and fulfil her contract at the Casino.

The undertaking having been given as agreed, and the rights of both parties having been expressly preserved, the fact that plaintiff’s contract with defendant has since that time expired, is not to be considered, and the case still calls upon the court to determine plaintiff’s original right to injunctive relief.

The material facts, as they appear from the pleadings and the evidence, are that by written contract the defendant agreed with the plaintiff to appear in the soprano.roles of such operas as the plaintiff might produce during the seasons of 1887-8 and 1888-9, and in such cities in the United States as he might-select; that in the production of each opera the plaintiff was to supply the costumes ; that in New York seven performances were to be given each week, exclusive of Sundays; that each season was to commence in the month of October or November of each year and to last until May or June of the following year; that the plaintiff was to have the right to terminate each season by giving two weeks’ notice, and that the defendant, for the faithful performance of her part of the said contract, was to receive the sum of $800 per week: that the defendant was and is an actress and singer distinguished in her profession, and a great artistic acquisition, both in name and dramatic and operatic service, to any theatre where comic operas are produced; that the plaintiff, relying upon his contract, announced the defendant at large expense in the daily newspapers of this city and widely throughout the United States as a member of his company to the end of the season of 1889; that the defendant refused to perform in plaintiff’s opera which was produced at the Standard Theatre in the city of New York on Monday evening, January 7, 1889, and which was to be continued for some weeks; that at that time the defendant had agreed to perform as an actress and singer at the Casino, a rival of, and competitor with, the theatre, so far as the production of operas are concerned which the plaintiff had engaged for his company, and had been announced, with her consent, to appear at the said Casino on Monday, January 14, 1889, and to continue to the end of the operatic season; that the plaintiff unsuccessfully protested against it; that it was not possible for the plaintiff to replace the defendant for the remainder of the season by any other actress and singer of equal repute, and that in consequence thereof the plaintiff was likely to, and in fact did, sustain irreparable damage. The proof on the part of the plaintiff that in this and other cities he did sustain large damages in consequence of defendant’s act,, and that the extent of such damages cannot be accurately meas-1 ured, is unusually clear and convincing.

The facts so far referred to contain all the elements necessary; to sustain, within the rule laid down in Daly v. Smith, 38 N. Y. Super. Ct., 158, and followed in several cases since that time, an injunction against defendant’s appearance at the Casino. ' 1

It, therefore, remains to be seen whether there is anything else in the case which calls for a different conclusion. ¡

The defendant’s counsel insists that, inasmuch as there is no negative stipulation in the contract by which the defendant agreed not to appear elsewhere, the court cannot interfere. But, as was 1 shown in Daly v. Smith, supra„ the court is bound to look to the substance and not to the form of the contract. As the defendant had agreed to appear in seven performances in each week (exclusive of Sundays), which the plaintiff’s company might give in ; Mew York, it was not possible for her to perform elsewhere in Mew York without a violation of her contract with the plaintiff, and a negative clause was unnecessary to secure to the plaintiff 1 exclusively the services of the defendant.

It is also insisted that the contract is inequitable in its terms, , because it provides that two weeks’ notice of the termination of the season might be-given by the plaintiff. It did not enable the ; plaintiff to discharge the defendant on two weeks’ notice, but a 1 notice of two weeks of the termination of the season was to bo given. So long as the company remained together and performances were given, the plaintiff was ¿bound to pay to the defendant the $300 per week, provided the defendant fulfilled her part of the contract. By the pleadings it stands admitted that the season of 1888-9 was to close about June 1, 1889 ; and in point of fact the plaintiff, by letter, notified the defendant that the season would terminate not before the middle of May, or June 1, 1889. The point is, therefore, untenable.

And, finally, it is insisted that the defendant was justified in breaking her contract with the plaintiff, because the plaintiff had refused to substitute a more healthful costume for the tights in which the defendant had appeared in a certain opera and the wearing of which she had objected to on the ground of danger to her health. It appears that the opera in question was called The Queen’s Mate.” In this opera the defendant was to appear in a part which required her to wear tights. Before the production of the opera she was consulted by the plaintiff with regard to it, and informed that it would be necessary for her to wear tights, and she agreed that she would so appear. This has been admitted by her, but at the same time she claimed that she agreed to-do so only during the summer. But in point of fact* the plaintiff did appear in tights during cold weather, and never claimed exemption by agreement during such weather, and inasmuch as the plaintiff had not only the right to prescribe the costumes, but also the duty to furnish them, and no evidence has been adduced that the costumes of an-opera change with the seasons of the year, or that the defendant ever claimed any right to such a change, I cannot find that the claim now advanced by the defendant in this respect has any foundation in fact. In point of fact, the defendant did appear in this part and in tights for at least 150 nights, and from twenty to thirty chorus girls appeared in the same costume during each performance. Any change which might have been made in the costume of the defendant would have necessitated a corresponding change in the costumes of from twenty to thirty other persons.

The controversy is, therefore, narrowed down to the question whether the plaintiff so unreasonably insisted upon his rights under the contract to the detriment of the health of the defendant that, in equity and good conscience, the defendant was justified in breaking off her engagement Upon a careful consideration of all the facts and circumstances, as disclosed by the evidence on both sides, I cannot find that he did. The defendant undoubtedly at several times caught cold, but the real cause has not been proved. When, in answer to her claims that the cold was caused by the wearing of tights, she was advised by her own physicians, who, however, were not informed of the fact that she wore them only for about ten minutes during each performance, that she should wear something underneath them which would protect her, she refused at once, not because the plaintiff objected to it, but because in her judgment it would ruin her outlines to do so. In fact, she never discussed the matter with the plaintiff with a view to compromise the difficulty, if any there was. If she had done so, and had made an honest attempt to convince the plaintiff that the wearing of tights, for ever so short a time, seriously affected her health or voice, it is reasonable to suppose that the plaintiff, who had a direct interest in her appearing as often as possible, would have met her half way. She made no such attempt.

But the proof in this case goes much further. It justifies the conclusion that this excuse of the defendant was in a great measure a mere pretense.

It was shown by the testimony of Mr. Aronson and the plaintiff, and finally admitted by the defendant, that while the defendant played for the plaintiff in the city of Chicago, during the latter part of October, 1888, Mr. Aronson, manager of the Casino, communicated with her hy telegram, offering her an engagement with his company. Thereafter, Aronson went from Hew York to Chicago, and had an interview with the defendant, without the knowledge of the plaintiff, and of which the latter was never informed. During that interview, Mr. Aronson was informed by the defendant that she was at liberty to accept an engagement from the 1st day of May, 1889, but that she might be able to begin her engagement earlier, if it was in his power to make an earlier engagement with her. From that time the defendant tried to bring about a change in her relations with the plaintiff. Up to that time no difficulty had arisen concerning the wearing of tights.

On Thursday, Hovember 22, 1888, at the city of Philadelphia, the defendant addressed a note to the plaintiff, in which she said: “1 will leave on this coming Saturday night and rest two weeks. My voice shows wear, and as that is my first consideration, I must not trifle with it.” At the same time she complained of having a cold, and with reference to that she said: “ I attribute my cold almost entirely to wearing tights and you must arrange some other costume in place of them. I shall never appear in tights again.” And in the same note she suggested a change of costume so great and radical as to necessitate,' if an attempt had been made to carry it out, a change of the costumes of the entire company. Moreover, the proposed change involved great expense and great loss of time. This was the first distinct notice which, according to the testimony which I find worthy of belief, the plaintiff received as to the objection of the defendant to wear tights, and the defendant, without waiting for an answer or seeking an interview with the plaintiff, on Saturday, November 24, 1888, left Philadelphia and came to New York, and on the same day entered into a contract with Mr. Aronson to appear at the Casino. That contract, on its face, appears to have at first been made to commence May 6, 1889. It was subsequently altered to commence January 14, 1889. The defendant undertook to state that that alteration was not made until after the injunction had been granted in this case, but finally she conceded it was probably before. Mr. Aron-son declared that it was made at least as early as December 24, 1888. Defendant’s own communication, admitted to be in her handwriting, dated December 24, 1888, states that she had made arrangements to play with Mr. Aronson at the Casino. That contract made it her duty to give her services gratis at rehearsals for a period of four weeks prior to the commencement of her regular engagement at the Casino, and to furnish her own tights, wigs, shoes and stockings, but costumes and boots were to be furnished to her. A further circumstance of great significance is that on December 5, 1888, the defendant wrote to the plaintiff that she was ready and willing to assume her part in the said opera in Boston for two weeks, and to appear in tights for that period, provided the plaintiff would pay her the additional sum of $150 per week. Other incidents might be referred to, but it is not necessary to go any farther. The conclusion is unavoidable that the excuse now advanced by the defendant for the breach of her contract with the plaintiff should not be sustained.

Upon the whole case the plaintiff is entitled to judgment, with costs.


author: Beckwith, J.

text:
    In the Matter of Taking the Fee of The Terrace.

      (Superior Court of Buffalo, Special Term,

      Filed June 1, 1891.)

    Eminent domain— Opening street—Abutting owner—Ifominal damages.
    Although nominal damages may be a sufficient and proper award to an owner where a city has simply laid out and opened a street or highway over a piece of land previously offered by the owner in the way of dedication for public use, it cannot be taken as a rule of law that when the fee of land within the limits of a street is taken that the owner is only entitled to nominal damages. The commissioners should ascertain as a fact what a just compensation would be, regard being had to the effect of a deprivation of the fee upon the value of the owner’s property.

      Application for an order confirming the report of commissioners.

      William, F. Mackey, for the city of Buffalo ; Franklin D. Locke, for P. P. Pratt, owner; Frank Ferguson, for owners.
   Beckwith, J.

—This is a proceeding instituted by the city to ■ take the fee of the lands within the boundaries of the street called The Terrace and a portion of Washington street. The commissioners heretofore appointed “ to ascertain and report the just compensation to be made to the owners ” of the lands to be taken have filed their report. The corporation counsel now moves the confirmation of the report, which is opposed by lot owners. Mr. Locke, of counsel for Mr. Pratt, who is the owner of premises fronting two hundred and fifteen feet on The Terrace,, opposes the confirmation upon the ground, among other objections, that a just compensation has not been awarded him by the , commissioners. The court does not assume to supervise the judgment and conclusions reached by the commissioners as to values, but if it appear that the commissioners adopted or were influenced by an erroneous principle of appraisement, the court may send the report back for further consideration.

It is conceded by the counsel for the respective parties that Mr. Pratt is the owner of the fee to the center line of The Terrace,, and in making my decision I have assumed that fact to be indisputable.

The commissioners have awarded six cents as a just compensation to Mr. Pratt for taking away from him the ownership of the fee to the center line of The Terrace. The commissioners report that “ after carefully considering the law bearing upon the matter of taking the fee of land long occupied and used as public streets in a municipality, they find the question not free from doubt and difficulty, but reach the conclusion that with a just regard to the rights of all, the sum of six cents should be awarded to each of the owners.” The commissioners have evidently adopted a doctrine which has been too extensively entertained to be treated indifferently; namely, that when public authorities lay out and open a highly over a strip of land which has been dedicated for street purposes, by the original owner, or which has been used a great many years by the pubic as a highway, the abutting lot owners are entitled to nominal damages only. That is now the contention on the part of the city, and it is urged on the court as containing the correct rule. A great many cases decided in this and other states have been cited, which it is claimed support the rule of nominal damages. It will be found upon examination, I think, that the rule that nominal damages are a sufficient and proper award to the owner, originated and has had its usual and appropriate application in those cases in which a city or other public authorities have in the ordinary manner simply laid out and opened a street or highway over a piece of land previously offered by the owner in the way of dedication for public use. In such cases it might well be held that nominal damages are a sufficient allowance, for, when the public authorities accept and open for travel the proffered highway, they only do what the donor requested, and those persons who purchase lots bounded on such contemplated highway, do so, recognizing the anticipated public easement; and in such cases only an easement is taken. But ownership of the fee by the public is not essential to a highway nor any way material to the public easement.

I cannot avoid the conclusion that the man who owns the fee of the land in front of his premises to the middle line of the street is the owner of property of more than nominal value. It is. of value to him, and may be of great value, as a protection and security against encroachments, which assume at the present day many unexpected forms, and necessarily interfere with his enjoyment of privileges which belong to him as the owner of land fronting on a street. This is the more apparent, in view of certain rules of law which have been definitely settled by the courts cin recent times. For instance, and only in the way of illustration, it has been settled that a railroad cannot be laid upon a street where the fee belongs to abutting lot owners without making the owners compensation. Williams v. New York Central Railroad Co., 16 N. Y., 97; Craig v. Rochester City & Brighton R. R. Co., 39 id., 404. -

And it has been quite as firmly established that if the fee is not in the adjoining lot owner, he sustains no legal injury from the construction at grade, with legislative consent, of a railway in the street in front of his premises. Fobes v. R. W. & O. R. Co., 121 N. Y., 505; 31 N. Y State Rep. 828.

If the owner of land fronting upon a street does not own also the fee of the street, he finds himself in this precarious situation that encroachments and obstructions may, with legislative authority, be placed upon the front of his premises, which will greatly” diminish the value of his property, but against which the law affords him no remedy. Without the fee, under some circumstances, railroad tracks could be laid close to the curb line, interrupting constantly his access to his premises, and though public traffic required a train every twenty minutes, he would be remediless. The right of actibn which the owner would have for an abuse of the railroad franchise, as by standing cars in front of the owner’s premises, is an entirely different matter. Bail-road tracks only illustrate, for it 'is impossible to conceive of all the demands invention and science will hereafter make upon the public streets upon the pretense of a public benefit or for the s&ke of the public convenience. Improvements may be encouraged, but it is a principle of justice that private property cannot be taken for public use without compensation.

When the courts determine', as they have, that if a lot owner also owns the fee of the street, railroads and other additional burdens beyond those for ordinary street purposes cannot be put upon his front without making ,him compensation, I must assume that it is, meant that compensation must be made equal to the diminution in value of the owner’s land; and it was a fruitless labor the courts carried on in trying to determine exactly what are the rights of the owner of the fee of a street if the result is a conclusion of law that he is entitled to the nominal sum of six cents. It is argued, in this case, that the city only proposes to take the fee for street purposes, and that it cannot be assumed, or permitted to be proved, that the city will ever suffer any extraordinary burden to be put upon the street. Admit those things °fco be so, yet it is not toward the intentions of the city we must look, but it is the situation of the private land owner that must be taken into view. It is the fee that affords protection to the lot owner against legislative encroachments. It is true that the abutting lot owner may never be injured by legislative sanctions of extraordinary uses of the street, nevertheless the security in the convenient use of the property which arises from the protection of the fee is something of value. If the fee keeps off extraordinary uses and burdens from the street and protects the owner from interferences with the convenient use of his property in connection with the street, then the fee, as it seems to me, is of substantial value.

It is useless to extend the discussion, or to review the authorities and decided cases. In some respects what are the rights of the public and what the rights of abutting owners in the streets of our cities seem to be imperfectly determined. We deduce, however, from the two well established doctrines or rules which have been mentioned respecting the effect of ownership of the fee, the conclusion that it cannot be taken to be a rule of law, as the commissioners seem to have assumed, that when the fee of land within the limits of a street is taken by the city, the owner is entitled only to nominal damages. The commissioners should ascertain it as a fact, what a just compensation would be, regard being had to the effect of a deprivation of the fee upon the value of the owner’s property.

Entertaining those views of the subject the court is unable to confirm the report. The matter must be referred back to the commissioners for further consideration.

Counsel opposing the confirmation of the report make the further objection that the charter under which the proceedings were instituted having been repealed, this proceeding can go no further but must fall, citing Nash v. White’s Bank of Buffalo, 105 N. Y., 243; 8 N. Y State Rep., 31.. In that case the cause of action for a penalty had its origin in the statute and depended upon the statute which was repealed.

The power of eminent domain is absolute in the People and always exists, and statutes are but legislative directions as to the mode and conditions of its exercise.

The power was delegated to the city of Buffalo to take lands for streets and the fee of existing streets. The charter gives the conditions upon which the power may be exercised and the procedure. This proceeding was begun under the charter lately repealed and jurisdiction obtained by an observance of the preliminary conditions prescribed in that charter. The proceeding was carried on down to the making of their report by the commissioners. Then the former charter was repealed and a new charter given, to come into operation in January, 1892, except certain chapters or titles and sections which were to take effect immediately, one of which was the title relating to eminent domain.

There is no difficulty in applying the provisions of the new charter to the further steps required for completing this proceeding. There is, perhaps, some conflict of authorities upon the subject whether proceedings commenced under a charter which is subsequently repealed may be continued to completion under the new charter. The provisions of both charters except, possibly, conditions attached to the initiation of the proceedings, being mere procedure, the right of eminent domain being absolute, I see no reason why this proceeding may not be completed under the provisions of the new charter, and whether, upon this application, the directions of the new charter have been complied with is not material now, since the report must be sent back to the commissioners upon the grounds first considered. Let the order be prepared ana submitted for the approval of the court.


author: Hatch, J.

text:
    Domenico Campanelli, by Guardian, Pl’ff, v. N. Y. C. & H. R. R. R. Co., Def’t.

      (Superior Court of Buffalo, Special Term,

      Filed June 1, 1891.)

    Hew tbial—Interruption of counsel by the coubt.
    When plaintiff’s counsel is engaged in making his closing address to the jury, and the court suddenly requests him to abridge, and he is disconcerted, makes a iew halting remarks, and, overlooking important facts he had intended calling attention to, closes, Held, that a new trial would he granted.
    Motion for a new trial by plaintiff upon affidavits.

      Simon Fleischmann, for pl'ff; James Fraser Gluck and Ganson Depew, for def’t.
   Hatch, J.

—The moving affidavits disclose that the motion for a new trial herein is based upon the ground that substantial justice was not had or done upon the trial of this action. The particular facts upon which plaintiff relies are quite novel, and no case is found where the question presented has been considered. Briefly they show that after the evidence was all in, defendant’s counsel addressed the jury, arguing his case to them as fully and completely as he desired, without interference by the court or interruption of any character. After he had finished, plaintiff’s, counsel commenced his address to the jury, and had proceeded but a short time when he was handed a note, by his assistant, written by" the counsel for defendant, at the instance of the court, stating in substance that the court was desirous of finishing the case as quickly as possible, and requesting that the counsel abridge his argument as much as possible.

Thereupon said counsel applied to the court and learned that the court was anxious to adjourn. That such notice disconcerted the counsel so much that he was unable to collect his-thoughts, and was unable to proceed with his argument; that many sugggestions which he had originally intended to make he was unable to state, and that by reason thereof he could not and did not make any substantial or logical argument upon the evidence adduced, by reason of which, claim is made that injustice was done, which requires the interposition of the court to correct. The opposing affidavits raise a question as to the length of time the respective counsel addressed the jury, but it must be taken as the fact that counsel for defendant had full opportunity to say, and said, all he desired to say to the jury, while counsel for plaintiff had not finished his argument, and the note and request ended it for all practical purposes. The charge of the court was somewhat hurried, but no complaint is made but that the law applicable to the case was fully stated, and sufficient of the evidence referred to, to make the legal propositions plain. It is, however, claimed that undue haste was made, and that the due deliberation which should attend upon legal proceedings was not had, and the jury obtained the impression that the case of plaintiff was of little importance. The rule to be observed in disposing of motions of this character is to grant the same unless the court be satisfied that the merits of the case have been fairly considered, and a determination had, based thereon. If there is reason able doubt that this has not been had the application should be granted, the test being, whether or not substantial justice has been done. Barrett v. Third Avenue R. R. Co., 45 N. Y., 632; Huson v. Egan, 25 N. Y. State Rep., 906; Graham & Waterman, New Trials, 2, p. 47.

“ It is the duty of courts of justice to secure the trial and disposition of legal controversies appearing before them, in conformity to the legal rights of the parties, so far as that may be practically done.” Chamberlains v. Lindsay, 1 Hun, 236.

And where the court can see that the particular departure from the ordinary course of legal procedure, may have resulted in injury, it will ordinarily not stop to consider whether injury has in fact resulted, but will res'tore the parties, so far as practicable, to their original position. Watertown Bank v. Mix, 51 N. Y., 558; Taylor v. Betsford, 13 Johns., 486.

It remains, therefore, to be seen, whether the interference of the court with the counsel in summing up, violated any legal right which the party possessed, and if so, whether such interference may have affected the result of the trial. At common law in the trial of a cause before a jury, it was the right of a party to appear by counsel, and the right of counsel to be heard in argument upon the evidence adduced. Chase’s Blackstone’s Com., 795.

This right has been preserved in this country, 2 Kent’s Com., 13 ; Taylor v. Porter, 4 Hill, 140, and finds a place in the constitution of the state. Const., art. 1, §§ 2 and 6.

The right of counsel to address a jury in support of a client’s case, where the case presents a question of fact, is a substantial right, and does not rest in the discretion of the court. Garrison v. Wilcoxson, 11 Ga., 158; Douglass v. Hill, 29 Kan., 528; Houck v. Gue, 46 N. W. Rep., 280; Abbott’s Trial Brief, 133.

Rot only is the right substantial, but the order of its exercise is equally so, and where counsel holding the affirmative of the issue, and in consequence entitled to the final reply, is deprived of such right, it is error, for which a new reply will be granted. Conselyea v. Swift 103 N. Y., 604; 4 N. Y. State Rep., 278; Millerd v. Thorn, 56 N. Y., 405.

In view of the foregoing, authorities, the dictum to the contrary in People v. Cook, 8 N. Y., 76, 77, must be regarded as unsound. The theory upon which the argument of counsel is allowed is, that, it is an aid to the court .and jury in reaching a correct conclusion. It is at all times within the discretion of the court to regulate and limit the time, which shall be occupied by counsel in a given case, and where such discretion is not abused, complaints will not be entertained People v. Kelly, 94 N. Y., 533; Rehberg v. Mayor N. Y., 1 Eastern Rep., 185 : Sup. Ct. Rule, 29.

It is also the duty of the court to keep within proper limits the-discussion of the evidence received, and the inferences legitimately arising therefrom. Koelges v. Ins. Co., 57 N. Y., 638; Fry v. Bennett, 3 Bosw., 241-42.

This power to limit, as to time and subject-matter, rests in the ■sound discretion of the court, but the right to address the jury upon a question of fact for their determination, is the legal right of the party, not resting in discretion. Making application of these rules to the present case, we see from the record that the case presented a question of fact, upon which the verdict of the jury might well have been either way, and found support in the evidence. It was quite evenly balanced, small items, therefore, became of importance, and the rights of each party require that care should be observed in determining whether any right possessed by either party has been trenched upon, from which injury may have resulted. Baird v. Daly, 68 N. Y., 548-9.

If the court had refused to permit the counsel to proceed with ' his argument after defendant’s counsel had addressed the jury, it is plain that a legal right would have been violated. If the court, after having permitted one counsel to argue his case fully,had imposed a limitation upon the other which did not permit of a full presentation of the case, it would doubtless have been an abuse of discretion. Is not the latter what practically happened ? Counsel was engaged in his address, logically presenting his facts, and deducing the inference which he claimed arose therefrom. Suddenly the thread of his argument is broken in upon by a request from the court to abridge; he has made no previous preparation for it, is surprised and confused, being desirous of obliging the court, it presses upon his mind that further argument might not be well received, he does not collect himself, makes a few halting remarks, and overlooking for the moment the importance of the facts he had intended calling attention to, sits down, and finds the opportunity gone forever. I am unable to see any difference in this, position from one where the court had by order directed counsel to stop, in its practical result, except that the order would be less likely to work injury. The jury are unenlightened as to the cause of the abrupt termination, and subsequently receive no-light from the court. It is not improbable that they may have drawn inferences therefrom unfavorable to plaintiff, as that the counsel had little faith in his case, that the argument upon the facts was weak and inconclusive, and from the impression thus received overlooked facts and inferences which would have legitimately arisen, had they been called to their attention as intended. We are unable to say that such was the result, neither are we able to say that it was not, but the doubt that arises seems to make a case for relief.

It is true that counsel may be said to have consented to suspend farther argument, and rested content with, what he had said, and, therefore, waived any right he possessed. But this does not weaken the fact that injustice may have been done. It was quite evident that he was disconcerted, and practically unable to continue his argument; his actions may not now be judged by what he ought to have done, or with his present light, what he would now do, but taking his condition at the time, and all the surroundings, is it so clear that injustice was not worked that no relief should be granted ? I think not; on the contrary, I am of opinion that the unwarranted act of the court may have resulted in injustice' to the party. In other respects thd plaintiff fails to make out a case for relief. The newly discovered evidence is clearly cumulative, and the affidavit of King is in the nature of impeachment; besides it is abundantly answered.

For the foregoing reasons the verdict is set aside and a new trial ordered.


author: Titus, J.

text:
    Henry Meisner, Pl’ff, v. Michael B. Brennan, Def’t.

      (Superior Court of Buffalo, General Term,

      Filed February 2, 1891.)
    Pleading—Answer—Counterclaim.
    In an action for work and materials furnished defendant at an agreed price, the answer admitted that plaintiff did the work and furnished the materials, but alleged as a counterclaim that plaintiff agreed to do the work in a workmanlike manner and to furnish suitable material, but that he had not done so, to defendant’s damage of $200. On the trial the court held that defendant could not make proof of the counterclaim, inasmuch as it was a claim for damages arising out of the same transaction alleged in the complaint, and that no denial of the allegation of the complaint was made by the answer, and that therefore the cause of action was admitted under § 523, Code Civ. Pro. Held, that the verdict of the jury would be set aside, and a new trial granted, as a material allegation of the complaint was denied by the answer.
    Motion for a new trial upon the minutes of the judge, who presided at the trial by jury.

      George Wing, for pl’ff; William L. Jones, for def’t.
   Titus, J.

—The complaint in this action is for labor performed and materials furnished the defendant, for which he agreed to pay the sum of $740.55, and the labor, together with the materials furnished, are alleged to be reasonably worth $740,55, and that no part of the same has been paid, except $328.49, and a judgment is demanded for $412.06.

It is claimed by the plaintiff’s counsel that the answer contains no general or specific denial of the material allegations of the Complaint, but it in terms admits that the plaintiff at the request of the defendant performed quite a large amount of labor for the defendant, as a plumber and gas fitter, and furnished quite a large quantity of materials, which he used in said work.

The answer then alleges, by way of counterclaim, that the plaintiff agreed to do said work in a good and workmanlike manner, and to furnish good and suitable materials therefor, but that he did not do the work in a good and workmanlike manner and furnished poor material, and claims damages in the sum of $200.

On the trial the court held that the defendant could not make proof of this part of his counterclaim inasmuch as it was a claim for damages arising out of the same transaction alleged in the complaint as the basis of the plaintiff’s claim, and no denial of the complaint had been made, and the cause of action was, therefore, admitted. Section 522, Code of Civil Procedure; Fleischmann v. Stern, 90 N. Y., 110.

I have examined the authorities bearing upon the question, and after some hesitation, have come to the conclusion that the defendant must prevail on this motion.

The answer admits one proposition of the complaint in express terms, that the defendant furnished the labor and materials; but the plaintiff’s counsel claims that by not specifically denying any portion of the complaint, the plaintiff’s whole cause of action is admitted.

I do not think this is the correct view of the matter. If that part of the answer which admits the furnishing of the labor and materials had been omitted, the question presented would have been precisely the same as now, not being denied, must, under § 522 of the Code, be taken as true. With this admission eliminated from the answer, we have left only what the defendant sets up by way of denial and counterclaim. He proceeds with “ that the plaintiff did not do the said work in a good and workmanlike- manner, or furnish good or proper materials therefor, but furnished poor and improper materials for said work,” and that much of the work was improperly done. This, it is claimed, is the “ statement of new matter constituting a defense or counterclaim,” under § 500 of the Code.

It by no means follows that because the defense arises out of the transaction alleged in the complaint it is not “new matter.” New matter consists of some fact which the plaintiff is not bound to prove to establish his cause of action, and which goes in avoidance or discharge of the cause of action alleged in the complaint. Stoddard v. The Onondaga Annual Conference, etc., 12 Barb., 573.

I do not think, however, that there is a lack of specific denial of a material allegation of the complaint. While the answer is not so perfectly drawn and elegantly expressed as it might be, yet I think it does deny that the work was done in a good and workmanlike manner and that the materials furnished were good and suitable. Thus an issue is raised b)^ the answer which I think-should have gone to the jury, if the defendant, which must be assumed he was, was prepared to substantiate it by competent evidence.

The verdict must, therefore, be set aside, and a new trial ordered, with ten dollars costs to abide the event of the action.


text:
    Harrison B. Mixer et al., Pl’ffs, v. Nickolaus Schreiner, Def't.

      (Superior Court of Buffalo, Special Term,

      Filed February 2 1891.)

    Pleading—Frivolous answer.
    In an action on a note, the answer did not deny any of the allegations of the complaint, but alleged that plaintiff ought not to maintain the action as to the claim for protest fees, as the defendant was the maker of the note. Held, that the answer raised no issue of fact, and was not the proper mode of raising the question of protest fees, and that judgment would be given plaintiff for the amount claimed, less the protest fees.
    Motion by the plaintiffs for judgment j on the defendants answer on the ground of frivolousness.

      Williams & Potter, for pl’ffs; Albert Schelling, for def’t.
   Titus, J.

—Section 537 of the Code of Civil Procedure provides that: “If a demurrer, answer or reply is frivolous, the party prejudiced thereby * * * may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly.”

The answer does not deny any of the allegations of the complaint, but alleges that the plaintiff ought not to maintain this action as to the moneys claimed to have been incurred by them for protest fees, as stated in said complaint, in that the defendant was and is the maker of the note described in said complaint

I shall dispose of this question upon the theory that the plaintiff did not necessarily incur the protest fees, the defendant being liable without that formality, as he was the maker of the note.

The complaint, upon its face, claims $1.30 for the protest, and the,; plaintiffs’ right to recover depends upon the complaint itself, and became a question of law and not one of fact.

The answer alleges no new matter, but objects to the plaintiffs’ right to recover more than the amount of the note and interest Ho issue of fact is raised, there is nothing for a court or jury to try, and consequently the answer, which is a pleading designed to raise an issue of fact, is not the proper mode of raising the question on the complaint. The only pleading on the part of the defendant is either a demurrer or an answer. Sec. 487, Code.

The answer must contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or a statement of any new matter constituting a defense or counterclaim. Sec. 500, Code.

The answer in this case does neither; it is not a denial of any of the allegations of the complaint and does not contain a statement of any new matter constituting a defense or counterclaim. The other pleading mentioned in the Code is a demurrer, and among the several grounds specified in § 488 of the Code of Civil Procedure, the eighth is the only one having any application here. It provides as a ground of demurrer that the complaint does not state facts sufficient to constitute a cause of action. A liberal construction of this section might possibly enable the defendant to demur, for the reason that the facts stated in the complaint do not legally warrant the amount of judgment claimed in the prayer for relief; but it seems to me the better practice would be for the defendant to offer to allow the plaintiff to take judgment for the hum which he concedes himself to be liable for. No additional burden is imposed upon the defendant if the plaintiff accepts, and if he fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Sec. 738, Code.

This would be so no matter what steps the defendant might be compelled to take to protect himself against an unwarranted demand by the plaintiff in his complaint; the statute discourages litigation and punishes the party with costs who unnecessarily causes it.

I think, therefore, the plaintiff must have judgment for the amount claimed, less the sum of $1.30 claimed as protest fees; this without costs of this motion.


text:
    The Niagara Falls Cider and Vinegar Company, Pl'ff, v. Lewis Knell, Def't.

      (Superior Court of Buffalo, Special Term,

      Filed February 2, 1891.

    1. Pleading—Amended answer—When stricken out.
    The payee of a note brought an action against the maker, alleging that the note was due and unpaid. The answer did not deny the making of the note, but alleged that plaintiff delivered to defendant a quantity of cider which was not to be paid for until sold, and that until then the title was to remain in the plaintiff; that it had not been sold, and that there was nothing due plaintiff on the note, as it was delivered to him as an accommodation, and was not to be paid unless the cider was sold. Defendant served an amended answer, in substance the same as the original, except that it alleges, by way of set-off or recoupment, that owing to plaintiff's delay in refusing to take back the eider he has become indebted to defendant, by way of storage, in the sum of sixty dollars. Held, that no new cause of action was set up by the amended answer, and that the counterclaim could not be maintained as a matter of law, and that it wras for the purpose of delay, and would be stricken out under § 538 of the Code Civ. Pro,
    3. Contract—Goods on sale—When seller liable for storage.
    In a contract, where the property is to remain with the prospective buyer until such time as he shall sell it before he is liable to pay, and in the meantime the title remaining in the seller, the seller is entitled to a reasonable time after notice to remove his property before there is any liability to the purchaser for storage.
    Motion by the plaintiff to strike out the defendant’s amended answer.
    Wm. C. Fitch, for pl’ff; O. C. DeWitt, for def’t.
   Titus, J.

—The complaint alleges the giving of a note by the defendant, on August 19, 1890, to the plaintiff for ninety-eight dollars, payable in two months from date; that the note was not paid at maturity, and that the whole amount is now due.

The answer does not deny the making of the note, but alleges that the plaintiff delivered to him a quantity of cider under the agreement that he was to pay the plaintiff when the cider was sold, and in the meantime the defendant was to store and take care of the cider until it was sold, and that the title should remain in the plaintiff; that the cider has not been sold, and, therefore, nothing is due the plaintiff.

It is further claimed that the note was given for the accommodation of the plaintiff, and was not to be paid unless he sold the cider, which he alleges he has not done.

The amended answer of the defendant is in substance the same as the original answer down to the sixth paragraph, in which the defendant alleges, by way of “set off or recoupment,” that owing to the plaintiff’s delay in refusing to take back the cider, the plaintiff has become indebted to him in the sum of sixty dollars for storing and caring for it while it remained in the possession of the defendant, and demands judgment against the plaintiff for that sum, with costs.

The plaintiff’s counsel claims that no new cause of action is set up by the amended answer, and that the counterclaim cannot be maintained as a matter' of law, and that it is for the purpose of delay. I am inclined to think that the plaintiff’s counsel is correct in this view, and that the answer should be stricken out as sham, under the provisions of § 538 of the Code of Civil Procedure. In both of the defendant’s answers he alleges that he was to store and take care of the cider until it was sold, at which time it was to be paid for; he does not name any time when he offered the cider back to the plaintiff, or that he has unreasonably neglected to take 'it away. In a contract, when the property is to remain with the prospective buyer until such time as he shall i1j before he is liable to pay, and in the meantime the title remaining in the seller, the seller is entitled to a reasonable time after notice to remove his property before there is any liability to the purchaser for storage; this must necessarily be so, otherwise a cause of action might exist against a party without his fault, or without giving him an opportunity to remove his property; this would be unjust to an innocent party, and should not be allowed.

It, therefore, seems to me that the amended answer sets up no additional matter of defense and no legal and proper statement of a counterclaim against the plaintiff.

The motion to strike out the amended answer is granted, with ten dollars costs to the plaintiff, to abide the event of the action.


text:
    In the Matter of the Application of the City of Buffalo, to Acquire Lands for Park Purposes, etc.

      (Superior Court of Buffalo, Special Term,

      Filed March 10, 1891.)

    Eminent domain—Commissioners—Power over their proceedings by COURT OF LOCAL JURISDICTION.
    Article 1, § 7, of the State Constitution, provides that "when private property shall he taken for any public use, the compensation to be made therefor * * * shall he ascertained by a jury or by not less than three commissioners appointed by a court of record, as shall he prescribed by law.” Where an act of the legislature provided for the taking of lands in the town of West Seneca, fora public park for the city of Buffalo, and for the appointment of three commissioners by the superior court of Buffalo, a court of local jurisdiction, Meld, that the constitutional power to appoint such commissioners necessarily included such power and jurisdiction over their proceedings as may be prescribed by the act authorizing their creation.
    Motion to confirm, awards of commissioners in nine separate proceedings to take lands for park purposes.

      William F. Mackey, for city of Buffalo, submits confirmation to the court, with advice that proceedings be dismissed; Spencer Clinton and John Cunneen, for motion as to lands lying within the city of Buffalo; Norris Morey and Herman Hennig, for motion to confirm all proceedings; John G. Graves, for park commissioners and motion to confirm; Stephen Lockwood and A. C. Calkins, for dismissal of proceedings.
   Hatch, J.

—Upon the motion to confirm the reports of the commissioners preliminary objection is made that the court is without jurisdiction to entertain the proceedings, and motion is made to dismiss the whole proceeding for that reason. Two grounds are assigned why the motion to dismiss should prevail.

First. It is claimed that the act condemns land, for public use, situate in the town of West Seneca, and that such locality is without the territorial jurisdiction of this court.

Second. That the act contemplates an entire scheme to establish a park or-system of parks, and that each provision is so dependent upon the other that should one part fail the whole must fall, and in consequence that the court is without jurisdiction over such lands taken as lie within the city of Buffalo. The act under which the proceedings are instituted is found in chap. 557, Laws 1887, § 1 of which authorizes the park commissioners of the city of Buffalo to select and locate grounds for a public park in the Thirteenth ward of said city, and in the town of West Seneca, adjoining said city, as in their opinion shall be proper and desirable to be set apart for one or more public parks, and to locate and lay out streets and approaches thereto, as may be necessary to connect said park or parks with the existing public parks. Section 2 provides that before the lands shall be taken the common . council of said city shall, by resolution, declare that said city has determined to take and approj)riate the said lands or so much of the same as the said council shall determine to take, for the purposes aforesaid. Said act then provides for notices, etc., appointment of three commissioners by this court to ascertain the just compensation to be paid to the several persons whose land shall be taken, and vests the said court with jurisdiction of the subsequent proceedings, confirmation of the report, etc.; also to direct to whom the money awarded shall be paid, or in what bank deposited, and in the event that there be conflicting claimants, to determine the person or persons entitled to the money, by reference, or otherwise, and direct payment when found to the person entitled. Other provisions of the act provide for amendment of the proceedings, and the raising of money to pay for the lands taken. They are not of present importance.

The purpose of this act, as expressed in its title, is to authorize the location of land for park purposes, and its provisions authorize the park commissioners to select and locate lands for such purposes as in their opinion may be desirable. Two places are given in which to select and locate: the thirteenth ward of the city, and the town of West Seneca. Where they shall select and locate is thus left wholly in their discretion. The land selected may be located all in the ward, or all in the town, or in both. The exercise of this discretion is not binding upon the council, nor does it absolutely designate $ the lands which shall be taken, for it is still reserved to the common council to declare, by resolution, what lands so located shall be taken, and until such determination be made no lands are taken. In the exercise of this power the the council may designate, of the lands located, what portion shall be taken, and it is clearly within their power to take the lands selected within the ward or the town, or in both.

It is quite easy, therefore, to see that the whole purpose of the act may be accomplished without .a foot of land being taken outside of the limits of the city of Buffalo, and if this result may be reached, it is quite within the power of the court to support it. That the court in such contingency, would be vested with jurisdiction of the subject matter is not questioned.

In People ex rel. etc., v. City of Rochester, 50 N. Y., 525, it was held that if an act may be completely executed without violation of the constitution, then it is not repugnant to the constitution, even though other portions of the act, if executed, would have been.

Cooley on Const Lim., 212, 213 (5th ed.), thus lays down the rule: “ If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent wholly independent of that which was rejected, it must be sustained. * * * But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object, without the aid of the invalid portion." This language has been adopted, as stating the true rule, by the court of appeals. In the Matter, etc., Village of Middletown, 82 N. Y., 196; People v. Briggs, 50 id., 565, 566; Angerstein v. Kenney, 96 id., 294.

That the act may be executed is plain. Assuming that the court is vested with no jurisdiction over the lands located in West Seneca, are they so essential to the establishment of the park or parks as an entire scheme that the purpose of the act must fail ? The land taken wholly within the city consists, 'practically, of one hundred acres; those outside of the city, practically, of one hundred and eighty-three acres.

The act contemplates the location of parks; the language is “ lands for public parks,” and in speaking of the construction of streets, and approaches, it uses the words, “such park or parks;” in speaking of the lands taken it says, “ for the purposes of a park or parks.” It also denominates the steps to be taken as proceedings in the act and amendment thereto, Laws 1890, chap. 142, § 6, and in the latter provision is made for discontinuing the proceedings. In carrying out the provisions of the act a separate proceeding was instituted for each parcel of land taken; the award made, and report of the commissioners is separate upon each parcel. . No suggestion is made but that the land taken within the city may be and is available for the contemplated purpose, independent of the other parcels. Certainly there is nothing appearing, from which the court can see, that the land is not so available. It is the duty of the court, always, to presume in favor of the validity of a law until the contrary is proved beyond a reasonable doubt Weismer v. Village of Douglas, 64 N. Y., 91-99 ; Matter of N. Y. Elevated R. Co., 70 id., 343.

Independent of other considerations, it seems to follow that the law can be upheld, so far as it deals with lands within the limits of the city of Buffalo, and to that extent the court has jurisdiction of the subject matter, treated as a judicial proceeding. I am, however, of opinion that the whole act is a valid exercise of legislative power. The power to exercise the right of eminent domain is legislative, not judicial. Judge Denio, in People v. Smith, 21 N. Y., 598, says: “ The exercise of the right of eminent domain stands on the same ground with the power of taxation ; both are emanations of the law-making power. They are the attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts.” There is no restraint upon the exercise of this power, save that the property must be taken for a public use, and compensation must be made. Matter Union E. R. Co. of Brooklyn, 112 N. Y., 74 ; 20 N. Y. State Rep., 498; The Brooklyn Park Com. v. Armstrong, 45 N. Y., 244.

The legislature may exercise this right or it may delegate the power to public officers or a public or private corporation. People v. Smith, supra.

And when the power is exercised notice of hearing being provided for, the taking of the land thereunder constitutes due process of law. People v. Smith, supra; Stuart v. Palmer, 74 N. Y., 183.

These authorities seem to prove that the power exercised by the court does not take the property in any sense, but that such taking is solely by virtue of the statute. What the authority is that is exercised by the court, and how it is obtained, is stated by Judge Denio: “ It is not necessary for the legislature, in the exercise of the right of eminent domain, either directly or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process. * * * The appropriation of the property is an act of public administration, and the form and manner of its performance is such as the legislature shall, in its discretion, prescribe.” People v. Smith, supra, 599.

Judge Finch says : Modes of procedure and forms of remedy are within the legislative discretion.” Matter Mayor, etc., N. Y., 99 N. Y., 582.

Judge Gray says : “A right is given to acquire it (the property) in invitum * * * by proceedings before a tribunal especially authorized and empowered by the legislature.” Matter E. R. Co. of Brooklyn, supra.

The utterance oí authority, therefore, is that the tribunal ■charged with the duty of conducting the proceedings required by the act rests in the legislative discretion. •

The provision of the constitution regulating the exercise of this sovereign power is found in art. I, §§ 6 and 7. So far as important here § 6 reads: “Nor be deprived of * * * property without due process of law; nor shall private property be taken for public use without just compensation.” No complaint is made but that the act in question provides for making just compensation, and the authorities quoted show that the act itself is due process of law.

Section 7 provides: “ When private property shall be taken for any public use, the compensation to be made therefor * * * shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.”

It is not denied that this court is a court of record, nor is it denied that the language of this section, if unlimited, embraces this court, and would confer jurisdiction of the proceeding. It is also clear that the language of judicial construction as we have seen, is sufficiently broad, if unlimited, to embrace this court. It follows, therefore, that we must find, residing somewhere, a limitation upon this constitutional power and judicial utterance, or jurisdiction is conferred. It is conceded that the limitation does not exist in express words.

What is claimed is that the quoted sections are limited and controlled by § 12 of article 6 of the constitution, which provides that the superior court of Buffalo, and other local courts, “ are continued with the powers and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law,” that this clause limits article 1, § 7, to courts of record having jurisdiction of the subject matter territorially and otherwise. So for as the jurisdiction of the court, under the last quoted section to entertain an action, or judicial proceeding, is concerned, it has received judicial construction, Landers v. Staten Island R. R. Co., 53 N. Y., 450; where it is held that the construction to be placed upon the words “ and such further civil and criminal jurisdiction as maybe conferred by law,” relates and is limited to the object of the jurisdiction, and not to the territory, or persons of suitors.

In that case the cause of action arose outside the territorial jurisdiction of the court, the process was served outside, and the defendant did not reside therein; the court of appeals held that the •city court of Brooklyn, named in § 12, was without jurisdiction of the person or subject matter. The contention now is that the doctrine of that case is controlling here and that the language of article 1, § 7, “as prescribed by law,” relates and is limited to, a court of record having jurisdiction of the subject matter, and as so qualified excludes this court from the tribunals having jurisdiction of this proceeding. If this were an ordinary action or special proceeding, instituted by a party who sought to invoke the judicial powers of the court and procure an adjudication to be made, with respects to the rights and interest of the parties in the land, it would, without doubt, fall within the construction laid down in the Landers case and the proceeding would be void for the reasons there assigned.

It is to be observed, however, that the court in the Landers case, as well as in the numerous cases which have followed it, speaks of the jurisdiction of local courts with respect to the power to adjudicate upon questions involved in a cause of action or proceeding between parties. In this proceeding no such question' arises; there is here no cause of action to adjudicate upon, nor' does the act aim to create one, nor does it take cognizance of a, cause of action or judicial proceeding.

The court takes no land or property by force of the exercise of any judicial power, and determines no right with respect to such, taking beyond exercising supervisory control of a proceeding instituted by the sovereign power and seeing that the delegated power to take, and the commissioners to award compensation, perform their duties as the act prescribes, and to perform such other duties as are incidental to the taking. The power thus exercised is not judicial, but administrative. In proceedings to punish for misconduct in refusing to pay a tax assessed upon personal property, involving a similar exercise of legislative power, the proceedings have been held to be administrative and not judicial. McMahon v. Palmer, 102 N. Y., 189; 1 N. Y. State Rep., 406; Matter of Fowler, 53 N. Y., 62.

But if the judicial power of the court be invoked to the fullest extent, the power to so invest it in this proceeding, I think, rests in the discretionary power of the legislature. The right to resume the possession of lands for a public purpose is a sovereign right, and all grants made to individuals are subject to its exercise. In an independent state this power is vested in the legislature as the representative of the people; its exercise is not dependent upon constitutions, but existed before they were made, and can be exercised whether the right be preserved therein or not. Heyward v. City of New York, 7 N. Y., 324; Taylor v. Porter, 4 Hill, 143.

Under the constitution of our state this sovereign right is preserved but limited, and the power may not be exercised except upon compliance with its terms. These limitations are the observance of due process of law and provision for compensation, the amount to be determined by a jury or three commissioners appointed by a court of record as prescribed by law. The limitation thus imposed is not alone a limitation upon the legislature, but upon the people as well.

In People v. Draper, 15 N. Y., 549, it is said: “Independent of these limitations, the legislative power is omnipotent within its proper sphere. The legislature in this respect is the direct representative of the people, and the delegate and depositary of their power. Hence, the limitations of the constitution are not so much limitations of the legislature as of the power of the' people themselves, self-imposed by the constitutional compact. When the court declares a law unconstitutional, it in effect declares that the sovereign power of the people has so far been abdicated by themselves. This consideration has led the courts in all governments which are based on the theory that all power resides in the people, to give a strict construction to compacts which deprive the people of this sovereign power. It will not be presumed that they intended to abdicate their power, unless they have so declared in express terms or by necessary implication.”

Judge Cooley has said: Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.” Cooley on Const. Lim. (5th ed.), 155. _

_ It is a familiar rule of law that power delegated by one person to .another is to be strictly construed and limited to its express terms. Craighead v. Peterson, 72 N. Y., 284.

Where large general powers exist, the instrument which takes them away must be subject to like interpretation. In ordinary judicial proceedings, this court acts under and by virtue of the authority conferred by the judiciary article of the constitution. In this proceeding it acts by virtue of an authority entirely independent of it. Ho limitation upon the power of the legislature to exercise the right of eminent domain is found in the judiciary article, nor is any right preserved therein relating thereto. The power existed before the constitution. As restricted, it provides that the commissioners to award compensation may be appointed by a court of record, as prescribed by law.

The legislature designates the court upon which it desires to confer the power of appointment, in the particular case, and there is no express limitation or restriction in the constitution in respect to the court which the legislature is required to select except that it be a court of record. As the power of the legislature is absolute to take the lands, and as the constitution is for the protection of the property owner, such limitation upon the power, and such only, as is prescribed in the article should be heeded. The constitutional power to appoint the commissioners necessarily includes such power and jurisdiction over their proceedings as may be prescribed by the act authorizing their creation, or, in other words, “ as may be prescribed by law.” The legislative power to designate the particular court authorizes making of such provisions as it may deem fit and proper for the supervision of the commissioner’s proceedings, and to direct to whom the awards shall be paid when made. Within the authorities cited this construction is not strained; as it should receive a strict construction that which places the least limit upon the exercise of the power should obtain. These views would seem to find support in Matter Mayor City of New York, 99 N. Y., 569.

That was a proceeding to take lands for a public park lying partly in Hew York city and partly in Westchester county. Jurisdiction to entertain the proceedings was vested in the supreme court of the first department, while the land to be taken in Westchester county lay within the second department. Objection was made that the act was in violation of art. 3, § 18 of the constitution, which prohibits change of venue in civil or criminal cases. The court said: “The venue of such proceeding falls, of course, within the legislative discretion.” If this had been a judicial proceeding, subject to the exercise of judicial power alone, it is difficult to see why it was not violation of the constitution, but being the exercise of the power of eminent domain, it was within the discretion of the legislature to prescribe such tribunal as it chose.

In Matter of the Application of Church, 92 N. Y., 1, the precise question herein announced was decided, and the words as prescribed by law ” construed. The court says: “ The jurisdiction of the supreme court to appoint the commissioners of estimate is assailed upon the ground that its sole authority to act came from the mandate of the county board, which was ineffectual for that purpóse. But the constitution gave to the supreme court general jurisdiction in law and equity, and, by the specific provision requiring the damages for property diverted to the public use to be ascertained by a jury or commissioners appointed by a court of record, conferred upon all such courts the necessary jurisdiction. The mode .and manner of its exercise was put within the control and regulating power of the legislature because it was to be exercised 1 as prescribed by law.’ In that respect the legislature could not delegate its authority except by the permission of the constitution. Such permission was given. Art. 3, § 23. The legislature was allowed to transfer a power of local legislation, so far as it should deem necessary or prudent, to the county boards. * * * Thereby the local legislature, acting within the authority conferred, could create the occasion for and call into exercise the power of the supreme court to appoint commissioners, and that appointment, when made, was ‘ as prescribed by law.’ The county board did not create the jurisdiction. That came from the fundamental law.” Id., 6-7. These views lead to a determination that the court possesses jurisdiction of the proceedings.

The motion to dismiss, as well as the motion to limit the exercise of jurisdiction to lands within the territorial limits of the city, is denied, and motion for the confirmation of all the reports is entertained.


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    William H. Granger, Pl’ff, v. Margaret Ann Lyman, Def't.

      (Superior Court of Buffalo, Equity Term,

      Filed March 10, 1891.)

    Judgment—Confession of—When will not be set aside.
    N. and L., copartners in business, finding themselves unable, to pay their debts in full, confessed judgment to M., upon which execution was levied upon their entire property. The debt upon which judgment was confessed was a bona fide one, to the full amount of the judgment. In an action by a judgment creditor of N. & L. to set aside the judgment as in effect a general assignment, made to secure one creditor a preference over the other, and therefore in violation of the general assignment act, Held, that such remedy was authorized by law, and that the judgment would not be set aside.

      Action brought to vacate and set aside a judgment obtained by confession and for the appointment of a receiver.

      Harry D. Williams, for pl’ff; Frank Murray, for def'
   Hatch, J.

—Plaintiff is a judgment creditor of Nathan F. and Livingston J. Lyman, co-partners in the business of retail grocers-in the city of Buffalo, said firm having succeeded to a like business carried on by Nathan and a deceased brother, William G. Lyman. Defendant is the mother of the persons who constituted said firm, and from time to time has advanced moneys to carry on said business, both before and after the death of William. Upon the formation of the last named firm, it assumed the debts of the old firm, including defendant’s. Said firm finding itself unable to pay its debts, and desiring that defendant should be repaid the moneys advanced by her, confessed the judgment which is sought to be set aside herein, upon which execution was issued and levied upon the stock of goods owned by the firm, being their entire property. No question is raised but that the debt upon which judgment was confessed was a bona fide debt to the full amount of the judgment confessed. It is, howéver, claimed that as the firm was insolvent, unable to pay its debts in full, the confession of judgment and the levy thereunder evidenced an intention to surrender dominion and control over all their property, and thus to secure to one creditor a preference .over the other creditors, and that" such act is in violation of the provisions and spirit of the act with respect to general assignments by insolvent debtors for the benefit of creditors; that the confession of judgment is in legal effect a general assignment, as the result is an absorption of all the property owned by the debtors.

If this doctrine is to obtain, it very seriously cripples a vigilant creditor, with a debt due, in securing his pay, and practically nullifies some of the remedies authorized by law, among which is obtaining judgment by confession, and offer; if, at the time, the debtor be in failing circumstances, at least such is quite likely to be its. effect, to the extent that a preference is prohibited by the act. It-is certain that the act itself does not, in terms, prohibit a creditor having a bona fide debt from making use of all the remedies provided by law to secure his pay. No case is found where the statute has been held applicable to such a state of facts. It is only where the judgment confessed, or the transfer of property is made, accompanied by a general assignment, or so closely attending it, that the whole is to be regarded as one transaction and a part of the assignment, that the provision of the act is offended.

This judgment is in all respects regular in form, and such remedy is authorized by law. Code, § 1278.

In Knapp v. McGowan, 96 N. Y., 86, Earl, J., says: “That any creditor, whether solvent or insolvent, may, acting in good faith, mortgage a portion or the whole of his property, to secure one or more of his creditors for any indebtedness, cannot be doubted.’’ If the creditor may secure by mortgage, he can secure by any other remedies authorized by law. And where the claim is just and bona fide, no court will deprive a person of the right to enforce a judgment regularly obtained. Trier v. Herman, 115 N. Y., 163; 24 N. Y. State Rep., 552.

In the following cases the courts have held that a confession of judgment, or other instrument, which secures to the creditor all the debtors property, in the absence of a general assignment, made at or so near the time as to be said that all is a part of one scheme, is not within the provisions of the act, and is not void as providing for an unlawful preference. Stein v. Levy, 29 N. Y. State Rep., 87; Boessneck v. Cohn, 7 N. Y. Supp., 622; 26 N. Y. State Rep., 969.

The reasoning in Spellman v. Friedman, 27 N. Y. State Rep., 302, I think leads to the same result, i, e.: That when the confession of judgment is independent of the assignment, or none is made, and it is based upon a valid debt then due, it will be upheld.

This view is in harmony with a decision of the same court in First National Bank of Jersey City v. Bard, 10 N. Y. Supp., 634; 32 N. Y. State Rep., 1010, where the court held that a judgment by confession does not necessarily make it a part of a general assignment, even though confessed at or about the time of the assignment, but that regard must be had to other circumstances, and if the judgment was not confessed for the purpose of hindering, delaying or defrauding creditors, and was supported by a just debt, it could be upheld as independent of the assignment In the present case no assignment was made, and the judgment possesses none of the elements of a general assignment. Brown v. Guthrie, 110 N. Y., 441; 18 N. Y. State Rep., 311. Counsel for plaintiff relies upon White v. Cotzhausen, 129 U. S., 329.

It is not to be denied that much of the reasoning contained in the opinion delivered in that case, supports plaintiff’s contention, for the evidence herein shows that the levy made covered the debtors' entire property and that they contemplated surrendering their property and retiring from business; yet, notwithstanding this fact the courts of this state have distinguished it in its application to a state of facts similar to those now under consideration.

In First National Bank of Jersey City v. Bard, supra, stress is laid upon the fact that in the While case there was a finding that the judgment there confessed was without adequate consideration and that it was confessed with intent to hinder, delay and defraud creditors. None of these elements existed in the Bank case, and they are not found here.

In Trier v. Herman, 115 N. Y., 163; 24 N. Y. State Rep., 552, Judge Earl in speaking of the White case, and upholding the judgment then under consideration, says: “ There was but one statute regulating the matter, and that was violated.” As before observed the reasoning in Spellman v. Friedman, supra, also distinguished and limits the White case, as already pointed out. I am aware that the doctrine of the latter case has been quoted with approval in Manning v. Beck, 26 N. Y. State Rep., 483, but in that case, the facts were entirely different from those now under consideration, as the court found that the transfer and assignment were a part of one scheme. The White case was an appeal from the state of Illinois, and construed the provisions of the state’s insolvent act which prohibited preferences. It followed and construed the decisions of the state court basing its decision substantially upon the case of Preston v. Spaulding, 120 Ill., 208, and was decided in January, 1889.

Subsequent decisions in the same state have not only not followed it, but have expressly repudiated its doctrine. Farwell v. Nilsson, 24 H. E. Rep., 74, decided March 31, 1890.

The court there held that a failing debtor may give judgment notes, although all his property be taken upon execution to satisfy the judgments, and that such notes were not assigments, nor within the provisions of the act. This was precisely the same security held bad in the White case. See Hanford v. Prouty, 24 H. E. Rep., 565, where the Preston case is distinguished. Id., 569. These cases seem to establish that the doctrine here contended for has never obtained in the state of Illinois, notwithstanding the language of the White case. It seems quite clear that the facts now before us are distinguishable from those before the court in the latter case, and -that the decisions of the courts of this state have regarded such distinction of fact as sufficient to remove this case from the application of the doctrine therein announced. As this view must now obtain, judgment is ordered in favor of defendant, dismissing plaintiff’s complaint, with costs.


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    The People of the State of New York, Pl’ffs, v. Edward W. Rose, Def’t.

      (Superior Court of Buffalo, Criminal Term,

      Filed May 10, 1891.)

    Indictment—Several degrees oe crime charned—Construction.
    In an indictment, the first count charged the defendant with burglary-in the third degree, alleging that the offense was committed on a certain day, by entering a building in which was kept certain property belonging to B, with intent, feloniously, to take, steal and carry away such property. The second count charged the defendant with the commission of petit larceny, committed on the day and in the year aforesaid, with intent to defraud the true owner, took certain articles of personal property belong to B. The third count alleged the receiving of precisely similar property, knowing it to be stolen from B. Held, that the offenses alleged related to one and the same transaction, and were intended to charge but one offense.
    Demurrers filed to two indictments.

      G. T. Quinby, for the People; Armstrong & Witcher, for def’t
   Hatch, J.

—The defendant is arraigned upon two indictments, and files a demurrer to each. The first charges the defendant, in separate counts, with the crime of burglary, third degree, petit larceny, and receiving stolen property, respectively. The second charges the defendant with tne crime of burglary, third degree, and petit larceny, stated in separate counts.

The demurrers are alike in each case, and the grounds specified are, first, that more than one crime is charged; second, that the ■court in which the indictment was found had no jurisdiction of the crime alleged in the second count, and that this court is without jurisdiction to try the same. The third ground is like the second, except that it refers to the third count. The indictments were found in the court of oyer and terminer, and sent to this court for trial. No complaint is made but that the count alleging burglary is good in all respects; but the claim is that the court has no jurisdiction of the crime of petit larceny, and that said crime, as well as the count alleging the crime of receiving stolen property, is improperly joined with the count charging burglary. It is well settled that an indictment may embrace a count charging a felony, and also a count charging a misdemeanor, when the misdemeanor is a degree of the felony charged, or when the facts constituting the crime alleged arose out of the same transaction. People v. Emerson, 6 N. Y. Supp., 274; 25 N. Y. State Rep., 466; State v. Lincoln, 49 N. H., 464; Stevens v. State, 66 Md., 202.

It is equally well settled that counts charging burglary, larceny and receiving stolen property are properly joined in one indictment where the offenses, so alleged relate to the same transaction. People v. Baker, 3 Hill, 159; Hawker v. The People, 75 N. Y. 487.

It is no objection that such counts constitute different grades of offense and call for the imposition of different penalties. The •distinction made in pleadings of this character seems to be that when the offenses alleged are for different and independent felonies, then the joinder is bad, and an attempt to try in one indictment, for such separate offenses, will not be permitted; but where the different offenses charged in the separate- counts arose out of the same transaction, and are so charged, or from the allegations, it may be fairly inferred that it relates to but one offense, then the .allegations and different counts are to be treated as allegations calculated to meet defects in the evidence, and are properly joined. Taylor v. People, 12 Hun, 212 ; People v. Emerson, supra.

Sections 278 and 279 of Code of Criminal Procedure have not changed this rule of pleadings but continued it. People v. Callahan, 29 Hun, 580; People v. Infield, 1 Crim. R., 146.

It may be conceded that standing alone, as an independent offense, this court would have no jurisdiction to try a charge of petit larceny alleged as a first offense, but when it is coupled with-a count charging a crime of which the court has jurisdiction, and it is of a degree of such crime or arose out of the same transaction, then the court has jurisdiction to try, and the allegation is proper. It is, however, insisted that the allegations of this indictment do not show that the counts of petit larceny and receiving stolen property arose out of the same transaction. It is quite true that there are no words used showing that the two counts arose out of the same transaction and the pleading is fairly open to this criticism. The lack of such allegation is not to be commended and good pleading requires the insertion of words expressive of the fact. We are, therefore, relegated to the consideration whether, upon the face of the indictment, the allegations fairly show that it relates to the same transaction and constitutes really but one offense. The count charging burglary in the third degree alleges that the offense was committed in the county of Brie on the 28th day of December, 1890, by entering the building of Robert Hague, in which was kept certain property of Myron S. Bailen, with intent, feloniously, to take, steal and cany away such property. The second count charges the defendant with the commission of petit larceny committed “ on the day and in the year aforesaid * * * in the county of Brie ” with intent to "defraud the true owner, took certain articles of personal property belonging to Myron S. Bailen from the possession of Robert Hague. The third count alleges the receiving of precisely similar property, knowing it to be stolen on the .date and. in the county first alleged, being the property of and stolen from Myron S. Bailen. I think the fair inference arising from these allegations shows that the offenses alleged relate to one and the same transaction, and were intended to • charge but one offense; that the pleader, to meet any variance of proof, has made the allegations to that end. This is supported by the authorities. In People v. Callahan, 29 Hun, 580, Judge Smith said: “It is to be inferred from the identity of description, time and place, that the counts referred to are one and the same transaction.” If such inference appear with reasonable clearness it satisfies all the requirements. People v. Rose, 22 N. Y. State Rep., 390; People v. Crotty, 30 id., 44.

In California, where the section of the Code is similar to ours, the supreme court held, in a like case, that the identity of the transaction was sufficiently apparent where the second count of the indictment referred to the same time and gave the same names as to person and house. People v. Thompson, 28 Cal., 214.

These views lead to the conclusion that the demurrers must be overruled, and the defendant directed to plead to the indictment.