text:
    William Georgeson, Resp’t, v. James S. Caffery, Treasurer, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Corporations—Incorporation—-When it will be presumed.
    Plaintiff was the president and manager of a mutual aid union; he and four others had duly executed and acknowledged a certificate purporting to be one of incorporation; it was approved by a supreme court justice and filed in the county clerk’s office of the county where the society’s office was situated; thereafter plaintiff sued the treasurer of the society for his sglary, alleging that the society was unincorporated; on the trial itjWas not shown whether or not the certificate was ever filed in the office of the secretary of state. Held, that the trial court erred in presuming that the certificate was not filed as required by law.
    3. Associations—Action against treasurer—What proof necessary to RECOVERY.
    On the trial of such case it appeared that the members, besides their admission fees, were required to pay certain monthly dues; nothing else was required of them, and if they did not so pay they ceased to be members; the trustees were by their by-laws authorized to employ a manager at a reasonable salary, but payment of this and other expenses was provided for out of a fund raised in a particular way. Held, that plaintiff had not proven that all the members of the association were liable, either jointly or severally, to pay his claims, and therefore that he could not recover, although the association was an unincorporated one.
    Appeal from a judgment entered in Onondaga county on "the 29th November, 1892, upon a verdict rendered at the Onondaga circuit on die 21st November, 1892, for $749.42 in favor of the plaintiff. In the notice of appeal it is stated that ■“the appellant intends to bring up for review upon such appeal the order denying a motion for a new trial, errors in the judgment and all other questions of irregularity, law or fact ■disclosed by the record.”
    The action when commenced on the 5th January, 1892, was against Frederick H. Ebeling as treasurer of the Empire Mutual Union. In the complaint it was alleged that said union was an unincorporated association, composed of seven or more persons, and that Ebeling was at the time of the commencement ■of the action the treasurer of the association; that the plaintiff "was its general manager from the second day of December, 1890, to the 20th November, 1891, at an agreed compensation of twenty-five dollars per week, and that at the commencement of the action there was due and unpaid to the plaintiff on account, of such services the sum of $683.37, with interest from November 20, 1891. The answer contains a general denial.
    Upon the trial, it appeared that on the 26th September, 1890,,. the plaintiff and four others duly executed and acknowledged a certificate purporting to be a certificate of incorporation of the Empire Mutual Union of Syracuse, N. Y. This certificate stated a desire to form a society for social, mutual benefit and benevolent, purposes, pursuant to chapter 267 of the Laws of 1875, entitled “An act for the incorporation of societies or clubs for certain lawful purposes,” and the acts amendatory thereof, and that the particular business and objects of the society were as follows: “ To-gather together in social and friendly union persons of good character and standing; to assist the members of said society in obtaining help, aid and employment, both outside and among themselves; to join together the members in mutual efforts to assist each other in economic and benevolent purposes and enterprises r. to provide regular relief, aid and benevolence among the members, and to promote in every manner possible the interests of the members among themselves. ” The number of the trustees was five, and as named for the first year they were the same persons who executed the certificate. This certificate was approved by a justice-of the supreme court, and was, on the 26th September, 1890, filed and recorded in the office of the clerk of Onondaga copnty, that being the county where the office of the society was situated. It was not shown whether or not the certificate was ever filed in the office of the secretary of state. The court below assumed that* it was not By-laws were adopted which stated that the purpose of the union “is to join together the members in mutual union and encouragement, to enable them to gather together in one sum which can be used to some advantage the little savings which-members are able to contribute.” It was provided that any person might become a member by making application and paying - the admission fee, and $1.25 per month thereafter on each certificate held by him or her during the continuance of membership. The admission or membership fee was $2.50 for one certificate and $1.25 additional for each additional certificate, no member to have-more than four. The form or contents of this certificate do nob appear in the case. The manner of payment of the monthly dues-was provided for, and in case of non-payment the certificate lapsed- and became void, and all moneys paid forfeited to the union. A. general fund and a benefit fund were provided for, the general, fund to consist “ of the admission fee and other fees and fines, and-the first month’s dues, twenty per cent, of all monthly dues and ten per cent, of benefit fund for collection,” the benefit fund to-consist of “ one dollar per month from each certificate, less ten percent. commission collections, and be used exclusively for members on their certificates.” It was provided that “ on the fifth day of-each month all moneys deposited in the benefit fund shall he applied to the payment of maturing certificates after deducting: fifty dollars, less the monthly dues previously paid and readmission fees.” There was also a provision that “the trustees shall appoint one as general manager, who may be removed for cause, at a salary consistent with his duties, who shall have general supervision of the business of the union.”
    At a meeting of the board of trustees on December 1, 1890, at which the plaintiff and four others were present, a resolution was adopted that the plaintiff “ be made general manager of the Empire Mutual Union at a salary of twenty-five dollars a week.” From this time to ¡November 19, 1891, the plaintiff continued to be manager, and this action is for the balance due him for such .services. It was shown that at the time of the commencement of this action there were about 600 members of the association. At the close of the trial, the defendant moved for a non-suit upon the grounds, among others, that there was a de-facto corporation and it could not be treated as an association ; that the plaintiff- being a promoter of the company, its president and actively interested' and engaged in its organization, is estopped from denying that it is a corporation ; that it had not been proved that the association was an unincorporated one consisting of seven or more individuals, as required by § 1919 of the Code. This motion was denied and defendant excepted.
    In the course of the trial, it appeared that Ebeling had ceased to be treasurer about the time of the commencement of the suit and that James S.-Caffrey had been elected in his place and was treasurer at the time of the trial. At the close of the evidence, the court directed the entry of an order substituting Caffrey as treasurer, etc., as defendant in place of Ebeling. To this the defendant excepted.

      Geo. H. Sears, for app’lt; D. F. McLennan, for resp’t.
   Merwin, J.

The appellant claims that the order substituting Mm as defendant was erroneous. ¡No appeal, however, is taken from the order itself, it is not specified in the notice of appeal, and no motion appears to have been made by him to set it aside. He is not, therefore, in a position to review it.

There is no evidence in the case that the certificate of incorporation was not filed in the office of the secretary of state. Proof of filing and recording in the county clerk’s office and of user would ordinarily be sufficient proof of incorporation without proof of filing in the office of the secretary of state. Leonardsville Bank v. Willard, 25 N. Y., 574. If the plaintiff sought to show that the certificate never became effectual, it was for him to show the omission which produced that result. The court, I think, erred in presuming it was not filed as required by law. And it looks to me very doubtful whether the plaintiff can, for the purpose of throwing a personal liability upon members, himself claim that the incorporation or attempted incorporation is invalid by reason of the circumstance that he and his associates engaged in a business that the act did not allow. See Foster v. Moulton, 35 Minn., 458.

Assuming, however, that the Empire Mutual Union was an unincorporated association, having seven or more members, and that the plaintiff is in a position to take advantage of the fact, it does not follow from that fact alone that the plaintiff is entitled to the benefit of the provisions of § 1919 of the Code. According to the ruling in McCabe v. Goodfellow, 133 N. Y., 89; 44 St. Rep., 253, the plaintiff, to maintain the action, must allege and prove, and it must be found that all the members of the association were liable either jointly or severally to pay his claim. Does the evidence in this case authorize the finding that all of the members are personally liable to the plaintiff ? The plaintiff was himself one of the members, and his associates did not become liable for his claim unless they in effect agreed to become so. There is no evidence of any such agreement on their part. The members besides their admission fees were required to pay certain monthly dues. Mothing else was required of them, and if they did not pay as required they ceased to be members. True, the trustees were by the bylaws authorized to employ a manager at a reasonable salary, but the payment of this and the other expenses of the society was provided for out of a fund raised in a particular way, and called the general fund. Concerning this, the plaintiff testified: “ The general fund was the expense fund; there was no separate expense fund, but the expenses were paid out of the general fund; * * * officers were paid out of the general fund; that includes me as general manager. The general fund was created in this way; admission fees and fines and first month’s dues, 20 per cent, of all monthly dues and ten per cent, of benefit fund for collection.” It is very clear that the trustees were not authorized to pledge the individual credit of the members, nor did the plaintiff have the right to expect any such thing, and there is no evidence that he did expect any such thing. He and his associates had formed, or attempted to form, a corporation, and the inference is that on the 1st December, 1890, when plaintiff was appointed manager, they supposed that a corporation existed.

As between the members, no partnership existed, for there was no agreement expressed or implied to that effect. See Lafond v. Deems, 81 N.Y., 514. The failure to incorporate did not make the members partners. Merchants’ N. Bk. v. Pendleton, 29 St. Rep., 891; affirmed, 129 N. Y, 662; 42 St. Rep., 945, and cases cited. There was no capital or stock, and no basis for saying that it was a joint stock company. It was apparently a mutual aid association, with a fluctuating membership liable to be diminished by lapsing and increased by new members. The case shows that when plaintiff was appointed manager there were about 200 members, and at the commencement of the suit about 600.

If these views are correct, the plaintiff failed to make a case within the rule laid down in the McCabe case, and the motion for nonsuit should, therefore, have been granted.

Judgment and order denying motion for new trial reversed on the exceptions, and new trial ordered, with costs to abide event.

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


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Catharine Tobin, Resp’t, v. James B. Sykes et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed Sept. 23, 1893.)

    1. Libel—Justification.
    The foundation, of a suit for libel was an article published in defendants’ newspaper that “ a miserable, drunken brute of a mother on Utica street sends her children for beer daily and cruelly beats them. Last evening their cries brought out the neighbors,” etc. Plaintiff’s name was not mentioned, but on the trial evidence was given sufficient to justify the jury in finding that it was published concerning her. No evidence was given sho wing that prior to the special occasion referred to in the article the plaintiff had ever been drunk, nor that she had been drinking on the day named, although it appeared that on such day she was punishing one of her children and the neighbors were interfering. Held, that the word “drunken,” as used in the article, did not refer to the condition of plaintiff on a particular day, but wap-used generally, and the court properly charged that no justification was shown as broad as the charge.

      2. Same—Evidence.
    In such case, evidence of the condition of plaintiff some time after the publication was properly excluded.
    8. Same.
    _ It is proper in such case to allow plaintiff to testify to the transaction upon the date specially referred to in the article and as to the circumstances leading directly to 'it.
    4. Same—Dama&es.
    In such case a verdict of $400 for plaintiff will not be set aside as excessive.
    Appeal from a judgment entered in Oneida county on the 15th January, 1892, upon the verdict of a jury at the Oneida circuit in favor of plaintiff for $400. Appeal also from an order denying a motion on the minutes for a new trial.
    Action for libel. The article published did not name the plaintiff, but she claimed that in fact it referred to her. It was as follows : “A miserable, drunken brute of a mother on Utica street sends her children for beer daily and cruelly beats them. Last evening their cries brought out the neighbors, and one of them threatened to arrest her if the beating was repeated.” The defendants in their answer set up a full justification and also matter of mitigation.

      L. M. Martin and D. P. Searle, for app’lts ; W. J. Shields and Charles R. Carruth, for resp’t.
   Merwin, J.

The main question on this appeal is whether the court erred in holding that the evidence was not sufficient to authorize the jury to find that the defendants had established a justification for the use of the word “ drunken ” in the manner in which it was used in the article published. The plaintiff was not named in the article, but the jury upon sufficient evidence found that the article was published concerning her. By the terms of the article, the word “ drunken ” did not simply refer to the condition of the party on a particular occasion, but was used generally. It substantially charged that the party was habitually drunk. There was no evidence that, prior to the special occasion referred to in the article, the plaintiff had been drunk or intoxicated. Nor was there any evidence that she had been drinking on the day named. One witness testifies that she appeared to be intoxicated, but on his cross examination he testified he had never seen her intoxicated. There is evidence that she was very excited, did not act rational; she had been punishing one of her children and the neighbors were interfering. We think the court did not err in holding that no justification was shown as broad as the charge.

At the close of the charge the plaintiff’s counsel asked the court to charge that if-the defendants fail to establish a justification the jury must determine whether or not it was set up in good faith, and if they find it was set up in bad faith they can take that into ■consideration in establishing the damages. To this the court replied, “ Yes, that is the rule correctly stated,” and the defendants excepted. This exception is not well taken. Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379. The case cited also disposes of the exception of the defendants to the reading from the answer to the jury by plaintiff’s counsel in summing up. It does not appear that any improper use was made of the answer. The record also shows as follows: “ Defendants objected to plaintiff’s counsel reading from the Bible, ‘ No drunkard shall inherit the kingdom of heaven.’ Overruled, exception.” We fail to see any ground for reversal in this ruling. The counsel had a right to comment in a reasonable manner upon the character of the charge made in the libel.

The evidence of the condition of plaintiff some time after the publication was properly excluded. It was competent for the plaintiff to testify to the transaction upon the date specially referred to in the article, and as to the circumstances leading directly to it. Perhaps, strictly speaking, the evidence was not in order at the time it was given, but no objection on this ground was taken. We discover no error in regard to it prejudicial to the defendants.

The defendants claim the damages are excessive. This depends upon the view that is taken of the evidence. The jury apparently took a view favorable to the plaintiff. We have no right to say that that was improper. It was the province of the jury to fix the damages, and upon the evidence, as they had a right to look. at it, no sufficient reason is apparent for us to interfere.

These considerations lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

Hardest, P. J., and Parker, J., concur.


text:
    Barnet Hill, App’lt, v. James Bartholomew, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Tbesfass—Easement.
    In an action for trespass upon real estate the complaint alleged that defendant at various times wrongfully went upon plaintiff’s premises and wrongfully opened and left open the gates thereon. On the trial it appeared that years before defendant had been given, by deed of a prior owner, a right of way across plaintiff’s lands, he to maintain gates and keep them closed, except when passing through; the deed was recorded, and shortly after defendant and such prior owner, entered into an unsealed, unwitnessed and unacknowledged written agreement, whereby it was provided that as long as defendant should keep in repair a certain fence the gate in question could be done away with; the agreement was not recorded. Defendant kept such fence in repair until it was taken down by plaintiff. Held, that defendant did not wrongfully enter or trespass upon plaintiffs lands, and the complaint was not proven.
    '3. Same.
    In such case it appeared that defendant’s fault, if any, was his omission to close the gate, and plaintiff’s remedy, if any, would be by an action for damages for breach of the covenant.
    Appeal from a judgment in favor of defendant entered in Otsego county, on 20th January, 1892, upon the decision of the •court after a trial at the Otsego circuit before the court without a jury.
    The action is for trespass upon real estate and was brought in justice’s court. A plea of title was put in and the action then was brought in the supreme court. In the complaint it is alleged that the defendant at various times during the months of May and June, 1888, wrongfully went upon the lands and premises of the plaintiff and wrongfully and wilfully opened the gates and fences of plaintiff on plaintiff’s premises, and wrongfully and wilfully left the gates and fences open and thereby exposed plaintiff’s crops, and caused plaintiff’s cattle to go out, and that in consequence thereof the plaintiff was put to great trouble and expense in looking after his cattle and in shutting his gates.
    In the answer it is among other things alleged that the defendant had a right of way across the-plaintiff’s premises, and that all he did was in the exercise of this right, and that he had a right to have the gate open, and all other entries are denied.

      O. F. Matterson and Albert C. Tennant, for app’lt; H. H. Harrington, for resp’t.
   Merwin, J.

The controversy in this case is over the use of a right of way granted by Phineas Persons to the defendant on 17th July, 1869. Persons owned lands fronting upon a highway, and defendant owned lands in the rear. Thereupon Persons, for a consideration therein named, duly executed and delivered to defendant a deed by which he conveyed to defendant, and to his heirs and assigns forever, “ a right of way in and over a strip of land on the north side of the dwelling-house of said Persons in said town of Pittsfield, for the use of the said party of the second part, his heirs and assigns, and his and their servants and tenants, in passing from the highway running past the house of said Persons to the house of said Bartholomew, and from said house and premises of Bartholomew to said highway, said strip of land to be of the width of two rods, and commencing at the gate between the lands of said parties, and running westerly to said highway, passing over the same track heretofore used as a passage-way by William Hamilton.

“ Said Bartholomew and his heirs and assigns are to forever maintain a gate where the one now is on the line between said parties, .and another gate at the other end of said right of way, where the same intersects said highway, and keep the same closed, except when passing through same. Said Bartholomew to have the right to work said right of way so that it may be and remain in good travelling condition.” This instrument was duly recorded, and defendant immediately went into the occupancy of the right of way and erected gates at each end thereof, and kept the same closed except when passing through the same, as required by said deed, until June 8, 1870. At that date Persons and defendant entered into an agreement in writing signed by both, by which it was provided “ that the gate at the road should be done away with as long as James Bartholomew makes and keeps in repair a line fence on the north side of the road that leads to the highway.” This agreement was not sealed, acknowledged or witnessed, or recorded. The gate mentioned in it is the gate mentioned in the deed of 1869 to be maintained where the way intersects the highway. Soon after this agreement was made, the defendant, in pursuance of it, erected a line fence upon the north side of the way and kept and maintained it until the spring of 1888, when it was removed by the plaintiff, and during this time the defendant used the way without a gate at the highway. Persons died in December, 1879, being then the owner of the lands through which the right of way passed. In 1881 the plaintiff became the owner by purchase at a partition sale in an action brought by the heirs of Persons for partition. The deed to plaintiff contains the clause “subject to the right of way across the same, as deeded by Phineas Persons to James Bartholomew.” From this time until the spring of 1888, the use by defendant of his right of way without a gate at the highway was with the knowledge and consent of plaintiff. In the spring of 1888 the plaintiff, for his own convenience and without the consent of defendant, removed the fence on the north side of the way and erected a gate at the highway and closed the same. The defendant thereafter at divers times, as he opened the gate in passing from his farm to the highway and back, did not close it, and these are the same occasions referred to in the complaint. The defendant claimed he had the right to have the gate open or done away with under the agreement of 1870.

As to this agreement the plaintiff claims that as it was not attested or acknowledged it was invalid as to him. 4 R S., 8th. ed., 2451, § 137. He was a purchaser from the heirs of Persons. In Strough v. Wilder, 119 N. Y., 530; 30 St. Rep., 86, it is said and seems to have been held that the title under an unacknowledged and unattested deed is good as between the parties and also against the heirs of the grantor or one claiming under them. The plaintiff also claims that he had no notice of the agreement of 1870, and should not be bound by it, and also that it was revocable. It is found by the court below that the plaintiff, when he purchased, did not have any notice, knowledge or information of the agreement of 1870 or of any easement except as specified in his deed. He, however, knew that the right of way was in use without any gate at the highway, and that this was a change from the original instrument, the contents of which he is presumed to have known. Whether the circumstances were such as to put plaintiff on inquiry or whether the agreement was revocable are, however, questions not necessary now to determine. There is another question that seems to be fatal to the present action.

This action is in trespass, and the gist of it is the alleged wrongful entry. The other averments are in aggravation of the wrongful entry and relate to the matter of damages. Whatling v. Nash, 41 Hun, 580 ; 5 St. Rep., 189, and cases cited. The action is in tori and is not on contract. Ho wrongful entry by the defendant is shown. He had a right to pass over the right of way; had a right to open the gate. The fault, if any, upon his part, was his omission to close the gate. An act of omission will not make a man a trespasser ab initio. Adams v. Rivers, 11 Barb., 390; Hale v. Clark, 19 Wend., 498. It is found by the court below that the defendant opened the gate and intentionally and wilfully left it open, thereby letting plaintiff’s cattle into the street and causing him trouble. It is not, however, found that the defendant at any time opened the gate when not in the exercise of his right of way under his deed. He testifies that he never opened it except when he was exercising his right of passage. He left it open because he supposed he had a right to have it open.

If the plaintiff is correct in his theory that the agreement of 1870 is invalid and inoperative as against him, then defendant, under the covenant in the deed of 1869, which inured for the benefit of plaintiff, would be liable for leaving the gate open. An action for damages for. breach of the covenant would lie, as in the case of Beach v. Crain, 2 N. Y., 86. But that is not this action.

It follows that the court below was correct in holding that the defendant did not wrongfully enter or trespass upon the lands of the plaintiff and that the. plaintiff’s complaint was not proven.

Judgment affirmed, with costs.

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


text:
    The People ex rel. R. A. Fraser, Resp’t, v. The Board of Auditors of the Town of Hamden, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Justice of the peace—Mandamus to compel payment of fees—Laws 1845, chap. 180, § 26.
    Relator, in 1889, was a justice of the peace in and for Delaware county, residing in the town of Delhi; in that year, upon proper application, he issued warrants for the arrest of certain parties who were charged with the commission of offenses in the town of Hamden in Delaware county, the parties were arrested, brought before the relator and the proceedings continued before him to their determination. Relator’s claim for fees in such cases was rejected by the board of auditors of Hamden solely on the ground that § 26, chap. 180, Laws of 1845, as amended in 1847, giving the right to make the warrant, issued by a justice resident of another town then where the offense was committed, returnable before a justice of the town wherein it was committed, is still in force, and that under it he had no legal claim against the town for any fees, at least beyond those for issuing the warrants. Held, on appeal from an order directing that a peremptory writ of mandamus issue requiring that relator’s claim be allowed, that the right given by the act of 1845 to make the warrant returnable before a justice of the town wherein the offense was committed was taken away by the provisions of "the (Jode Criminal Procedure, and that the prohibition as to fees therein was not applicable to the present case.
    3. Saits.
    Belator had no remedy by action, and the fact that he mignt have appealed to the board of supervisors is not, under the circumstances of this case, a good ground for reversal.
    Appeal from an order of the Delaware special term, entered in Delaware county on the 10th May, 1890, directing, that a peremptory writ of mandamus be issued, requiring the defendants, at their next annual meeting, to audit and allow in full the claim of the relator against the town of Hamden.

      Abram C. Crosby, for app’lt; R. A. Fraser, for resp’t.
   Merwin, J.

In the year 1889 the relator was a juotice of the peace in and for the county of Delaware, residing in the town of Delhi. In January of that year, upon proper application, he issued warrants, in due form of law, for the arrest of certain parties who were charged with the commission of offenses in the town of Hamden in said county. The parties were arrested and brought before the relator and the proceedings i-i each case were continued before him as a court of special sessions to their determination. The claim of the relator in question in this case is for his fees in those cases. He presented his account in due form to the board of auditors of the town of Hamden, at their annual meeting in November, 1889, but the board rejected it and refused to audit and allow the same or any part thereof. The present proceeding was commenced about January 1, 1890. There was no dispute at the special term about the facts. Nor is the correctness of the bill of plaintiff disputed, assuming that it is a proper one to be allowed.

By § 26 of chap. 180 of the Laws of 1845, as amended by chap. 455 of the Laws of 1847, it is provided as follows : “And whenever any criminal warrant or process shall be issued by any magistrate residing out of the town or city wherein the offense shall have been committed, it shall authorize the officer executing the same to carry the person charged with an offense under this act before any magistrate resident and being in the town or city wherein such offense shall have been committed, to be proceeded against according to the provisiors of the fifteenth section of this act; but the magistrate issuing such warrant or process shall not lose any jurisdiction over the trial and proceedings against such persons by reason of anytning herein contained, nor shall such magistrate be allowed any compensation for any further proceedings in any such case beyond issuing such warrant or process.”

The claim of the appellant is that this statute is still in force, and that under it the relator had no legal claim against the town, at least for any fees for services beyond the issuing of the warrants. v

This precise question was fully considered by Justice Parker in the case of The People ex rel. Fraser v. Board of Auditors of Bovina, 17 St. Rep., 872, and it was there held that the authority and requirement, in the act of 1845, to make the warrant returnable before a magistrate of the town where the offense was committed were in effect repealed by the provisions of the Code of Criminal Procedure, and that with such repeal the prohibition as to fees became inoperative.

For the reasons stated in the opinion in that case, we are inclined to concur in the view that the right given by the act of 1845 to make the warrant returnable before a justice of the town where the offense was committed was taken away by the provisions of the Code of Criminal Procedure.

The prohibition as to fees applies only®to the cases within the scope and under the control of the quoted provision of the act. The phrase “ any such case ” refers only to cases where the power is given to transfer to a justice of the town where the offense was committed. That was an essential element to the prohibition, and that element being absent, the main reason and ground for the prohibition fail.

We think that the prohibition is not applicable to the present case. It is not necessary to consider the effect of § 165 of “ the Town Law,” as that was not in force when the account of plaintiff accrued.

The appellant further claims that the motion of the relator should have been denied because he had another legal remedy, in that he had a right to appeal to the board of supervisors, under the provisions of chapter 832 of the Laws of 1866.

Tliis objection does not appear to have been taken at the special term. If not, it should not be available here. Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.

In People ex rel., &c., v. Town Auditors of Shawangunk, 1 How., N. S., 224, it was held in a case like the present one that the remedy by mandamus was proper although the relator had the right of appeal to the board of supervisors. In People ex rel., &c., v. Auditors of Westford, 53 Barb., 555, a writ of mandamus was allowed although the statute of 1866 was then in force. So it has been held that as to corporations and ministerial officers, the existence of another and an adequate remedy is no objection to awarding the writ. People v. Steele, 2 Barb., 418; Buck v. Lockport, 6 Lans., 251. The relator had no remedy by action and the fact that he might have appealed to another board is not under the circumstances of this case a good ground for reversal.

It follows that the order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., concurs.


text:
    Lucretia M. Whitaker, Resp’t, v. Almon T. Burrows, App’lt.

      (Supreme Court, General Term, Fourth, Department,

      Filed September 23, 1893.)

    1. Contract—Breach.
    In 1882, defendant received from P. and H., a conveyance of certain real estate upon which plaintiff resided, the consideration for which was . made up by $1,500 advanced by defendant, $300 advanced by plaintiff, and $600 to $700 in accounts, which, she held by assignment against P. and H. The sum advanced by defendant was the amount needed by plaintiff to complete the purchase of the property by her, and defendant agreed verbally with her to advance the same, take the title and convey to her when she paid him the sum and interest. In 1885 defendant sold the the property to third parties for $2,600. Plaintiff having refused consent to the sale, defendant demanded the money of her, and not receiving it, sold the property next day, and refused to give plaintiff any of the consideration received. Held, that, plaintiff not having been in default at the time of the sale, defendant must pay to her the amount received hy him, less the $1,500 and interest, with interest after the date of demand.
    8. Same—Evidence.
    In such case, it is proper to receive proof of the repairs done by the plaintiff to the dam upon the premises after her agreement with defendant and before he sold, one of the issues being, whether the agreement between the parties continued in force until the sale by defendant.
    Appeal from a judgment entered in Delaware county on the 23d July, 1890, upon the report of a referee in favor of plaintiff for $830, and interest from August 11, 1888, besides costs.
    ■ The action was commenced about August 11, 1888. In the complaint it is alleged that the defendant on 14th August, 1882, purchased and took from Charles M. Putnam and Benjamin Hathaway a conveyance of certain real estate, describing it; that the purchase was made and conveyance taken by defendant at the request and for the benefit of plaintiff; that of the purchase price the plaintiff paid about the sum of $840, and the defendant paid the sum of $1,500; that it was expressly agreed by and between the defendant and plaintiff that upon the payment by plaintiff to defendant of the balance of the purchase price, being $1,500 advanced and paid by defendant, he would convey the premises to her by a good and sufficient warranty deed ; that on or about August 14, 1883, the plaintiff paid defendant to apply thereon the sum of $90; that in or about July, 1886, the defendant, neglecting and refusing to perform said contract upon his part, conveyed the premises to other parties for the consideration of $2,600, and ejected or caused plaintiff to be ejected from the premises, and although requested so to do neglects and refuses to repay to plaintiff the moneys so paid and advanced by her and had and received by him as aforesaid ; that said agreement between plaintiff and defendant was in full force and effect at the time of such conveyance by defendant, and the plaintiff is still willing and ready to perform on her part, but that the defendant has thereby put it out of his power to perform on his part. Judgment is demanded for $930 and interest. The answer admits the conveyance to defendant and denies all the rest of the complaint.

      Alex. Cummings, for app’lt; More & Scott, for resp’t.
   Merwin, J.

The facts of this case, as authorized to be found from the evidence, are substantially as follows:

On the 14th August, 1882, the defendant received from Charles M. Putnam and Benjamin Hathaway, 2d, a conveyance of certain real estate, upon which the plaintiff resided with a Mr. Rood. Mrs. Rood was a sister of plaintiff, and the defendant is their brother. Putnam and Hathaway acquired their title on foreclosure of a mortgage, Eood being the owner of the equity of redemption. The consideration of the deed to defendant was made up as follows: $1,500 advanced by the defendant, $300 advanced by the plaintiff, and the balance was accounts to the amount of $600 to $700 which Eood had, or claimed to have, against Putnam and Hathaway, and which they were willing to allow on the purchase price. These accounts Eood had previously transferred to plaintiff. The negotiations ?for the purchase were between Putnam and Hathaway and the plaintiff or her agent. Putnam and Hathaway were willing to sell the property to the plaintiff, and the amount of the consideration was agreed on. After applying the accounts and the $300 which plaintiff had, she needed $1,500 in order to complete the purchase. She had made an arrangement with one Wheeler to advance this $1,500, but this arrangement fell through, and then the defendant was applied to. He evidently knew the situation that plaintiff was in, and the character of the proposed arrangement with Putnam and Hathaway, and that plaintiff had not sufficient means of her own to carry it out. He thereupon agreed verbally with her that he would advance the necessary $1,500, take the title to the premises, and convey the same to the plaintiff or any other person she wished when she paid him, or he received the $1,500 and interest In pursuance of this arrangement the deed was given to the defendant, and the consideration paid as above stated. The time of payment of the $1,500 was left indefinite, there being evidence that defendant said to plaintiff that she should not be disturbed as long as he lived. The plaintiff remained in possession and managed the property as owner. In 1883 she paid defendant ninety dollars, being one year’s interest on the $1,500. On the 24th June, 1885, the defendant contracted in writing to sell and convey the premises to other parties for the price of $2,600, and he subsequently conveyed to them the premises and received the consideration. The plaintiff refused to consent to this sale, or leave the premises, and she remained thereon till the summer of 1886, when she was dispossessed by the parties to whom the defendant sold. The defendant before making the sale did not give the plaintiff a reasonable opportunity to raise the money. According to her evidence he demanded the money one day and sold the property the next. He had previously induced her to believe that the money might remain as it was. The plaintiff, therefore, was not in default when the defendant made the sale and placed it out of his power to convey a good title. He knew that the plaintiff, or those she represented, paid all the original consideration except the $1,500 he advanced; that plaintiff paid the' $300, and that accounts were allowed as part of the price. After he made the sale he stated that morally he ought to pay the plaintiff all that he received over and above the $1,500 and interest, but denied his legal liability to do so. After a demand this action was brought.

This being the situation upon the evidence, it would seem to be a case for the application of the familiar doctrine that a party who refuses to go on with an agreement void by the statute of frauds, after having derived a benefit by a part performance,, must pay for what he has received, the other party not being in default. Lockwood v. Barnes, 3 Hill, 128 ; Erben v. Lorillard, 19 N. Y., 304; Day v. N. Y. C. R. R. Co., 51 id, 590. Under the arrangement between plaintiff and defendant and relying on defendant’s promise, the plaintiff made the payments which she did to Putnam and Hathaway, and the defendant in receiving the title-received the benefit of them as effectually as if they had been made to him, and then he passed them over to the grantors. The value was in the land, and the defendant had the title. The price he obtained when he sold was $2,600, while the price to Putnam and Hathaway did not exceed $2,500. The decision of the referee treats the interest of the defendant in the property as the amount of his advance and interest, and the plaintiffs interest as. $830, which is in fact the balance of $2,600, and does not exceed the payments of plaintiff. Interest is allowed from the time of the demand and the commencement of the suit

After the defendant sold the property it was not necessary for the plaintiff to make a tender, nor to resort to a remedy of specific performance against the purchasers from defendant. Smith v. Rogers, 42 Hun, 110; 3 St. Rep., 380; affirmed 118 N. Y., 675; 28 St. Rep., 981.

So that upon the merits the defendant has no good ground of complaint

The defendant further claims that the referee erred to the defendant’s disadvantage in several rulings upon evidence. ~ty& find, however, nothing that calls for a reversal. The contract called exhibit A. between plaintiff and Putnam and Hathaway was properly received in evidence. It was known to the defendant, he heard it read over, and it related to the transaction resulting in the deed to defendant At the trial, when it was admitted, no question was raised as to its execution. It was proper to receive the proof of the repairs done by the plaintiff to tire dam upon the premises after her agreement with defendant and before he sold. One of the issues under the pleadings was whether the agreement between them continued in force until the conveyance by defendant, and her acts as owner upon the property were competent to-be proved upon this subject. The defendant gave in evidence a lease to Mr. Rood from the purchasers from defendant after their purchase; for what purpose does not appear. It reflected upon Rood’s situation; he was a witness for plaintiff. It was not improper to allow Rood to be asked, by way of explanation, how he came to take the lease or what were his reasons for taking it. It is not necessary to refer to the other exceptions.

We think that substantial justice is accomplished by the judgment and that it should be affirmed.

Judgment affirmed, with costs.

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


author: Peckham, J.

text:
    Anna B. White et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Railroad—Elevated—Consent to operation.
    When an abutting owner consents in writing to the construction and operation of an elevated railroad in the street fronting his property he voluntarily abandons his easement of light, etc., in the street to the extent to wliich it will necessarily be affected by the building of the road.
    2. Same—Partnership.
    One of the members of a firm to which plaintiffs’ predecessor in title, belonged, gave a written consent in the name of the firm to defendants to construct and operate a road in front of their premises. Held, that in the absence of authority, or of circumstances from which an inference off authority might fairly be drawn, the owners of the land other than the one who signed it, and his grantees with knowledge or implied knowledge», would be wholly unaffected by the execution of the paper.
    3. Same—Construction op consent.
    The consent given was to the “ construction and operation of an elevated railway over, through and along said street.” Held, that this would not authorize the building of a solid structure as high as the top of the buildings fronting on the street and completely covering the same from building to building.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon a decision rendered by the special term upon the trial of the issues presented by the pleadings.

      Brainard Tolles, for app’lts; Leo C. Dessar, for resp’ts.

       Reversing 45 St. Rep., 760.

   Peckham, J.

On the 28th day of July, 1887, the plaintiffs-became owners of certain land, with the buildings thereon, situated on Chatham square, in the city of New York. They are respectively the widow and daughter of one James H. White, who died on the above date in the possession and ownership of the premises, and who devised the same to the plaintiffs.

The railroad of the defendants was at that time in operation in Chatham square, and on the 30th day of July, 1888, the plaintiffs commenced this action for the purpose of recovering damages which they alleged had been already sustained by them from the operation by defendants of the railroad in front of the plaintiffs’ premises without having obtained the right to do so from the owners thereof, and also for the purpose of enjoining the defendants from the further operation of the road unless they paid the-damage which such operation of it would thereafter occasion to the plaintiffs as the owners of the premises in question. They recovered judgment for both kinds of relief. Upon the trial the defendants proved that in 1875 the premises were owned by the firm of W. M. Seymour & Co., hardware merchants, and the firm was then composed of William M. Seymour, James H. White and Jonathan E. Brush. In February, 1877, Brush conveyed his-interest in the premises to his partners, Seymour and White, and in March, 1882, the executor of Seymour, under due authority in the will of the testator, conveyed the interest in the premises of which testator died seized to James H. White, the plaintiffs’ testator.

The defendants further proved that in October, 1875, while the premises were owned by and in the possession of the firm, one of the members thereof. Jonathan E. Brush, signed a paper which reads as follows:

“We, the undersigned, owners of land bounded on Chatham street, east side, between Roosevelt and East Broadway, hereby respectively consent to the construction and operation of an elevated railway over, through and along said street, the said railway to be constructed and operated by either the New York Elevated Railroad Company, or a company to be organized under chapter 606 of the Laws of 1875.
“Dated New York, October, 1875.
'“ Street number.................................. 4
“Ward number................................... 781
“ Street "front................... 34.4
“ Owners.................................. Seymour & Co.
“ Residence....................................... .
“Valuation...................................... $20,000
“ Signature......................... W. M. Seymour & Co.”

The railroad was constructed subsequent to the execution of this paper, and has been operated as alleged in the complaint.

The court was requested to find the fact as to the execution of this paper, and the subsequent construction of the railroad in accordance with the proof, which was uncontradicted, but the request was refused and an exception duly taken. The principal question in the case arises upon the materiality of this exception.

The plaintiffs insist that the paper was of no more effect than a parol license to do work on the land of the licensor would have "been, and that it was revocable at the pleasure of the licensor, and that a revocation was effected by the conveyance of the land, and by the commencement of this action by the devisees of the former owner, James H. White.

There is no finding or proof that the plaintiffs have any title to any portion of the street or square upon which their building fronts, but there is a finding that they acquired with their title to the premises the right to have Chatham square kept open' as a public street, “and to have a free and unobstructed right of way, access and passage to and from said premises, and over and upon said street, together with all the use and benefit of the light and air coming in and upon said lot and premises through and from said street, free and unobstructed.”

I think the proof shows without contradiction that all the rights in the street they had were what has been termed property rights in the nature of easements of light, air and access. Story case, 90 N. Y., 122; Kane case, 125 id., 164; 34 St. Rep., 876, and cases cited.

The defendants, therefore, insist that as the plaintiffs or their predecessors had no title to any portion of the street, the consent of their predecessors, while in the possession and ownership of the abutting land, that the defendants might construct and operate the railroad in the square in front of their land, was more than a mere license to do an act on the land of the licensor, and that it amounted in law and in fact to an abandonment of their rights or easements in the street so far as was necessary for the construction and operation of the railroad, and that the consent to such construction having been acted on and large amounts of money expended on the faith thereof, the plaintiffs as the successors of those who gave the consent are themselves estopped from making any claim 'for damages arising from such construction and operation. It has been the law in this state for a number of years, that an easement to do some act of a permanent nature on the land of another can be- created only by a deed or conveyance in writing, operating as a grant, and that a consent in writing on the part of the landowner is no more valid than if it were by parol.

Thus a parol agreement by the owner of the land that a person may abut and erect a dam on such land, not for a temporary purpose, but for a permanent use such as the creation of a water power for the use of mills, is void, and the agreement being a mere license may be revoked even after it has been acted upon by the other party. Also a permanent easement to drain through the land of another is not created by a license so to do, even when in writing and made upon a good consideration. Mumford v. Whitney, 15 Wend., 381; Wiseman v. Lucksinger, 84 N. Y., 31 ; Cronkhite v. Cronkhite, 94 id., 323; Babcock v. Utter, 1 Abb. Ct. App. Dec., 27, and cases cited; Eckerson v. Crippen, 110 N. Y., 585 ; 18 St. Rep., 698.

The question of the establishment of an easement by adverse user, which may authorize the presumption of a grant, is not involved, nor is the ability to thus prove its existence denied. Hammond v. Zehner, 21 N. Y., 118. It is, however, held, (what would otherwise seem to be plain enough) that there can be no adverse user where the right to use exists and is exercised under a license. 84 N. Y., 31, supra.

The reasoning upon which these decisions as to the insufficiency of a license are based is that the right which is claimed under a license amounts to an interest in land, and that such interest cannot be created and cannot pass to another without a proper conveyance or grant of such interest in writing and under seal as required by our statute. It is said that a license is mere authority to enter upon the land, and is a sufficient protection to the licensee while it lasts, but that it may be revoked at any time, and after its revocation it cannot be used as a protection for any future acts. It is held there can be no equitable estoppel which will operate to prevent the revocation of the license ■grounded upon the fact that the licensee has entered upon the laud of the licensor and expended thereon labor and money upon the faith of the license, because it must be held that the licensee-knew that the license gave him no interest in the land, and that he must rely only upon the indulgence of the licensor, and if that be withdrawn he must himself withdraw from the land. Otherwise, it is said, the statute in regard to the creation and conveyance of interests in land would be in great part abrogated. The easements of abutting owners in. Hew York city, who are without, title to any portion of the streets upon which their lands abut,, differ somewhat in their origin from ordinary easements. They have not been created'by grant or covenant, but it is said of them that it is easier to realize their existence than to trace their origin that they arise from the situation, the course of legislation, the-trust created by statute, the acting upon the faith of public-pledges and upon a contract between the public and the property-owner, implied from all the circumstances, that the street shall be-kept open as a public street, and shall not be devoted to other and inconsistent uses. Kane case, 125 N. Y.; 34 St. Rep., 876,. supra. Whatever the means by which the easements were created,, they are in their nature the same as if they had been created by grant. The owners thereof cannot be divested of them without, their consent, unless they are compensated therefor. Although it. may generally be said, under the authority of the cases already cited,, that an easement in the nature of an interest in the land of another can. only be created by a grant, yet after it has been created and while it is in existence it may be abandoned and thus extinguished by acts showing an intention to abandon and extinguish, the same. This has been many times decided and by many different courts. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as. a release without reference to time. Snell v. Levitt, 110 N. Y., 595 ; 18 St. Rep., 611, and cases cited in opinion of Earl, J., at p. 603. The intention to abandon is the material question, and "it may be proved by an infinite variety of acts. If a third, party interested in the servient estate has acted upon such abandonment, and in regard to whom it would operate unjustly if the exercise of the easement should be resumed in favor of the dominant estate, added force is given to the claim of abandonment. Id.

The railroad company having procured the consent of the-authorities of the city to the construction of the railroad in the street or square in question upon the terms agreed upon, such company obtained an interest in and to a certain extent a title to-the street for the purpose of the construction and operation of its railroad, which was in the nature of property, and which was-sufficient to enable it to treat with abutting property owners in the character of one who had an interest in the servient estate.. People v. O'Brien, 111 N. Y., 1; 19 St. Rep., 173.

The case before us is, therefore, different from those cases where an easement has been claimed to have been created in the land of a third person by reason of his mere license to enter upon his-land and do some act of a permanent nature which would amount,, if the right should continue, to an interest in the land of such person. This interest in land, the cases hold, requires a grant. In this case the owners or the abutting land had no title to the street. They had an easement in it only, and their consent purported to carry no title to land. There can be no question that they had the right to release, abandon or otherwise extinguish that easement, and upon such terms as they should think fit. The question before us is, whether they have done so and to what «extent by the execution of the paper proved upon the trial.

Assuming that it was executed by each of the parties who «owned an interest in the abutting land at that time, what was its effect ? The parties were under no obligation of a legal or moral nature to give this consent. There was nothing in the law, nor, so far as appears, in the circumstances surrounding the parties, which called upon the owners to give their consent upon any condition other than that which operates in all strictly and purely business transactions, the consideration of benefit to themselves. These owners occupied no public position with regard to their property ; they were in no sense trustees either for the public or for any human being. They represented only themselves and their own interests, and in deciding whether to consent to the building of the road or not they had legally or morally no possible reason for consulting any but their own interests, as they thought they might be affected by the construction and operation of the road. Under such circumstances, when an abutting landowner is confronted with the question whether he will or will not consent to such construction and operation, and he gives in writing a full, unconditional and absolute consent thereto, where is the reason for saying he did not mean it, but only meant to consent to its construction upon payment of the damages which he might sustain by reason of such construction and operation ?

That is clearly in direct contradiction of the language used in the instrument here proved. If such had been the intention, it may be asked why it was not so stated. If not so stated, and in the absence of any evidence that such was the understanding of the parties, and that there was a mutual mistake, it seems to me quite plain that effect must be given to the language which was actually used, and that such effect is to create a full and unconditional consent to the building and running of the road, without any claim for damages consequent therefrom.

It is urged that the provision of the constitution that no railroad can be built in the public streets without the consent of the owners of one-half in value of the property in the street, or in lieu thereof, the determination of three commissioners appointed by the general term, after a hearing of all parties interested, and confirmed by the court, that the road might be built, has and should have a most material effect upon this written instrument. It is said that the consent is nothing but a kind of public act designed to give the necessary legality to the acts of the company in commencing to construct the road, and that it cannot be held to mean that the owner consents thereto without the right to claim the damage which he may prove as the result of the very acts which he has consented to.

I can see no sound foundation for any such construction. The provisions of the constitution are a protection to the abutting landowner so far as they go. They are not absolutely a condition precedent to the construction of the road. If the requisite consents are not given, the company may have recourse to the alternative of a commission appointed by the general term.

But, in giving the consent, the owner has no public function to perform. It is, as I have already said, an entirely private consideration for himself. Will I or will I not be benefited by the construction and operation of the road, is the only question that he is called upon to decide, and there is nothing in the nature of that question which calls for its decision on any but purely private and individual grounds. If he think he will on the whole be benefited, he will in all probability consent, and if he think the contrary, he will be quite as likely to refuse. If he consent, and subsequently find that he has been mistaken as to the probable benefits, no cause or ground for the recovery of damages from the company arises as the result of his error. When, therefore, an abutting owner consents in writing to the construction and operation of an elevated railroad in the street fronting his property, what other possible meaning can be placed upon such act than that he voluntarily abandons his easement of light, etc., in the street to the extent to which it will necessarily be affected by the building of the road ? The act is capable of but one construction as it seems to me. He might have consented conditionally, as, for instance, that a majority should also execute such consent, or upon payment of a certain sum, or upon condition of the payment of such damages as he might prove he would sustain from the existence of the road.

In this case, however, there is absolutely no condition stated or claimed. There is the unconditional consent to the building of the road, and upon the assumption that it was signed by all the owners, or duly authorized by them, it must be regarded as an abandonment pro tanto of the easement in that street "as already described, especially after the consent has been acted upon by the company, with the possible limitation hereinafter to be mentioned.

Perhaps the consenting party might withdraw his consent if he had given it without any valuable consideration, and if the other party had done nothing under it so that its position would not be unfavorably affected by such withdrawal. This is not such a case, because the company have proceeded to build their road, and they would be unfavorably affected by just the amount they must pay if the consent be regarded as withdrawn.

The case here shows that the consent in question was not signed by all the owners of the land. The land was owned by these persons as tenants in common, and they were also partners in business. The evidence shows that the name of the firm was signed to the consent by Mr. Brush, and the stipulation of counsel was that in case of the failure to produce certain exhibits used on the trial, upon the argument at general term or in this court, such failure, together with the other evidence in the case, should be taken to establish the genuineness of the signature of the firm upon the consent in question. The exhibits were not produced, and the defendants’ counsel claims not only that the genuineness of the signature of the firm.to the paper is thus admitted, but he also claims that the proper construction of the stipulation is that the partner who signed the firm name was authorized by the other members thereof so to do. I do not think so. The defendants were endeavoring to prove that the signature of the firm name to the paper was placed there by Mr. Brush, one of the partners, and witnesses were called who knew his handwriting and had seen him write the signature of the firm to other papers, to show by them that in their opinion he had written the signature in question. The exhibits in question were the books of different banks where the firm kept their accounts, in which the firm name had been written by each of the partners, and also their individual names, as aids to enable the bank officers thereafter to identify the firm signature when signed by the different members. All that the stipulation effected was to concede (in the absence of these exhibits) that the firm signature was genuine, that is, was placed there by on,e of the members of the firm (Mr. Brush), as defendants were endeavoring to prove. I can see no reason for giving a greater weight to the absence of these exhibits than could possibly be given to them and the other evidence by their presence. If present, all that could have been inferred therefrom was that the defendants upon the whole evidence had proved that Mr. Brush, one of the partners, had signed the firm name. We do not think that the defendants have proved that it was signed by the authority of the rest of the firm. It was not a firm matter in regard to which each partner would in his action represent himself and the rest of the firm, but actual authority would have to be shown or inferred from acts and circumstances in proof. In the absence of evidence of authority, or of circumstances from which an inference of authority might fairly be drawn, we think the owners of the land other than the one who signed it and his grantees with knowledge, or implied knowledge, would be wholly unaffected by the execution of this paper. We leave this question open for proof upon another trial as to authority.

It is also claimed that the actual occupation of this square by the defendants for their railroad is much greater and more exclusive than any fair construction of the consent would permit. It is said to be unreasonable and excessive under cover of such a license to in fact completely cover the whole street and to render the latter much less valuable for purposes of light, etc., than could reasonably have been in the contemplation of the parties. Possibly this may be true. We do not now pass upon that question. The courts below, however, have denied all validity to the written consent and have not confined themselves to a refusal to give effect to it beyond a reasonable extent. We think the consent should have a reasonable construction and we ought not to hold that such a paper would authorize the building of a solid structure as high as the top of the buildings fronting on the street and completely covering the same from building to building. This would certainly be regarded by all as not within the contemplation of the parties to the paper. We will not now and in advance decide whether the use actually made of the street is or is not unreasonable with reference to this consent. Further evidence may be given upon another trial on this point, from which the question may be more readily determined.

We think the courts below, in refusing all possible effect to the consent in question as an abandonment to any extent of the owners’ easement in the street, committed an error which requires a reversal of the judgment and a new trial.

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

All concur, except Maynard, J., not voting.


author: Andrews, Ch. J.

text:
    S. Fleet Speir, Resp’t, v. The City of Brooklyn, App’lt.

      (Court of Appeals,

      Filed Oct. 3, 1893.)

    Municipal corporations—Nuisance—Fireworks.
    The mayor of the city of Brooklyn gave a permit, under the authority of a city ordinance, for the discharge of fireworks, to take place at the junction of two narrow streets, completely built upon, and where any misadventure in managing the discharge would be likely to result in injury to persons or property, The display was of considerable magnitude and the explosives, especially the rockets, were heavily charged, and when exploded were carried with immense velocity. It was managed by private persons under no official responsibility and no municipal or public interest was concerned. Held, that under the circumstances it was an unreasonable, unwarranted and unlawful use of the streets, exposing persons and property to injury and was properly found to constitute a public nuisance for which the city washable.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment for plaintiff entered upon the decision of the court.
    One Amartrano obtained a permit from the mayor’s office, Brooklyn, for the discharge of fireworks at the corner of Montague and Clinton streets, adjacent to the Academy of Music in that city, which permit recited that it was granted under chap. 3, art. 4, § 2, of the city ordinances. Under this permit, on the night of November 1, 1887, there was a display of fireworks, consisting of rockets, shells, bombs, balloons and colored fire, conducted by one Bidwell (who had been employed by Amartrano), in the streets at the place mentioned, on the occasion of a political meeting. A copy of the permit was sent from the mayor’s office to the chief of police (as was the custom when such permits were granted), and in consequence of the permit the police did not interfere with the display. The display was extensive and the rockets used were large and powerful. During the display one of the rockets entered the window of plaintiff’s house, within sixty or eighty feet from the point where it was discharged, setting fire to the house and occasioning the damage for which the action was brought.
    It had been customary for the mayor to grant similar permits for the discharge of fireworks in the streets on occasions of political meetings under the assumed authority of the ordinance referred to.
    The city ordinances relative to fireworks are as follows :
    Chapter 3, article 4, § 2:
    “ lío person shall fire or discharge any cannon, gun, pistol, fowling piece or firearm of any description, or store or sell or offer to sell, explode or set off any firecracker, rocket, squib or combustible fire works of any description, within the city limits ; provided, that nothing in this section contained shall be construed to extend to any fireworks exhibited by order of the common council, or by any exhibitor who shall be authorized by a permit from the mayor to exhibit the same for public amusement, under a penalty of twenty-five dollars for each and every offense.”
    Chapter 3, article 5, § 14:
    “ The use of fireworks of all descriptions is prohibited within the city limits, except on the whole of the fourth day of July in each and every year; provided, however, that this section shall not apply to such public displays as may be authorized by the city authorities, or such private displays as may be allowed under permit from the mayor granted for such purpose; and any person violating any of the provisions of this section shall forfeit and pay a sum not exceeding five dollars for each and every such offense."
    Further facts are stated in the opinion.

      Almet F. Jenks, for app’lt; Wm. C. DeWitt, for resp’t.

       Affirming 46 St. Rep., 561.

   Andrews, Ch. J.

The finding of the trial judge that the use •of the street for the discharge of fireworks constituted a public nuisance is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village is a nuisance per se, and subjects persons engaged in the transaction to responsibility for any injury to person or property resulting therefrom. Jenne v. Sutton, 43 N. J. L., 257; Conklin v. Thompson, 29 Barb., 218. It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the display of fireworks a part of the entertainment furnished by municipalities on occasions of the celebration of holidays or the commemoration of important public events is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose, under the supervision of municipal authorities, due care being used both as to the place selected, and in the management of the display, without subjecting the municipality to the charge of sanctioning-a nuisance and the responsibility of wrong doers.

But the circumstances in the present case do not take the transaction in question out of the category of nuisances, or relieve the parties who conducted or promoted the affair from liability for the injury occasioned. The discharge of fireworks in a city under any circumstances is attended with danger. In the present case the danger was greatly enhanced by the location. It was at the junction of two narrow streets of a large city, completely built upon, and where any misadventure in managing the discharge would be likely to result in injury to persons or property. The display was of considerable magnitude and the explosives, especially the rockets, were heavily charged, and when exploded were carried with immense velocity. It was managed by private persons under no official responsibility, and no municipal or public interest was concerned. Under the circumstances, in view of the place, the danger involved and the occasion, the transaction was an unreasonable, unwarranted and unlawful use of the streets, exposing persons and property to injury, and was properly found to constitute a public nuisance.

The judgment below adjudges that the city. of Brooklyn is liable for the injury sustained by the plaintiff and this is the only question in the case. That a municipal corporation may commit an actionable wrong and become liable for a tort is now beyond dispute. If the city directed or authorized the discharge of the fireworks which resulted in the injury complained of, it is, we think, liable. The inquiry is whether the city of Brooklyn did anything which as to this plaintiff placed it in the attitude of a principal in carrying on the display. The mayor of the city, its chief executive officer, expressly authorized it, assuming to act, in so doing, under an ordinance of the common council. In so r doing and in construing the ordinance as authorizing-him to grant a permit to private persons to use the public streets for the discharge of fireworks, he was following the practice which had long prevailed, and so far as appears no question had been raised that such permits were within the ordinance. The permit when given and communicated to the police was understood as preventing any police interference with the act permitted, and it had that effect in the case in question.

The city had power to prohibit or regulate the use of fireworks within the city and to enact ordinances upon the subject. The ordinances passed were not ultra vires in the sense that it was not within the power or authority of the corporation to act in reference to the subject under any circumstances. See Dillon on Mun. Corp., § 968 et seq. -

It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons, nor could the mayor bind the city by a permit, for the granting of which he had no color of authority from the common council, and which was not within the general scope of his authority. Thayer v. City of Boston, 19 Pick., 511. If the permit was in fact authorized by the ordinance the city would, as we conceive, be liable, although the particular act authorized was wrongful. For a mistake in the exercise of its powers, or by acting in excess of its powers upon a subject within its jurisdiction, whereby third persons sustain an injury, there seems to be no reason in justice which should deny the injured party reparation. The common council is the governing body. It represents the corporation, and its acts are the acts of the corporation when they relate to subjects over which the corporation has jurisdiction. It is true that the power to pass ordinances and to regulate the use of fireworks did not embrace a power to authorize or legalize nuisances. But if the ordinance transcended the power of the common council in this respect, the misconstruction of the common council of the extent of its powers in dealing with the subject, which was concededly within its power of regulation, does not, we think, within any just view of municipal exemption from the consequences of unauthorized and wrongful acts of the governing body, exempt the city from liability. See Cohen v. Mayor, 113 N. Y., 532 ; 23 St. Rep., 509.

But it is claimed that the ordinance did not by its true construction authorize the mayor to grant permits to use the streets, for the discharge of fireworks. The contention is that there is an implied limitation that the permit should extend only to proper and suitable places other than the public streets. But there is no such limitation in terms in the ordinances, and the streets are not excepted from the power granted, and the case shows that the ordinance has been acted upon for many years, and has never been construed as now claimed. We are not prepared to say that the legal construction of the ordinance is not that which is now claimed by the counsel for the city, or that there is not to be read into it the limitation claimed. But the ordinance is at least indefinite and ambiguous. It might well be construed by laymen as it has been construed by the executive officers of the city. The ordinance was in fact the reason for the granting of the permit in this case. We think that as to the plaintiff, who has suffered the injury, the city is bound by the construction of the ordinance placed upon it by the mayor, which was not only possible, but plausible, and upon which for years the mayor had acted.

We think the judgment is sustainable and it should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Isabel S. Tripler, App’lt, v. The Mayor, Etc., of New York, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Municipal corporations—Assessments—Recovery, where illegal.
    The owner of land incumbered by an assessment for a local improvement, apparently valid, enforceable in due course and at the will of the municipality by_ a sale of the premises, may in good faith pay the assessment and relieve the land from the incumbrance, and thereafter, on discovering that the assessment was unauthorized and illegal, may recover back the money paid.
    2. Same.
    If he had notice or was put on inquiry before the payment was made, and failed to pursue it, and there was no coercion in fact, he occupies a different position.
    (Earl and Gray, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon direction of verdict for defendant.

      George G. Munger, for app’lt; George L. Sterling, for resp’t.
   Andrews, Ch. J.

This case was before this court on a former appeal by the defendant from an affirmance by the general term of the judgment of the special term rendered on the first trial in favor of the plaintiff, on which appeal the judgment was reversed and a new trial ordered upon the grounds stated in the opinion. 125 N. Y., 617; 36 St. Rep. 141.

In determining the present appeal, we must be guided by the former decision upon any question there decided applicable to the case as now presented. We held on the former appeal that the assessment, though valid on its face, was void for the reason that the work of constructing the sewer, for which the assessment was laid, was done by day’s work, and not by contract, without the requisite authorization of the common council, following the cases of Blodgett, 91 N. Y., 118, and French, 93 id., 634, which involved the validity of similar assessments. But the court further held that the imposition of the assessment, and the published notice requiring payment, given by the city in 1881, did not constitute coercion in fait so as to make the payment of the assessment in 1887 involuntary, no steps having been taken by the city, subsequent to the publication of the notice in 1881, to collect or enforce the assessment.

The court further held that the mere fact that the assessment was an apparent lien on the plaintiff’s land, which might be followed by proceedings for its sale, where the city had remained passive for six years, did not constitute coercion in law so as to make a payment made in 1887, for the purpose of clearing the title, involuntary, unless the payment was made in ignorance of the facts which made the assessment illegal. The court held that the burden was upon the plaintiff to prove that, when the payment was made, she did not know that the assessment was void, and that this element of the case was wholly absent, and the learned judge who wrote the opinion referred to many circumstances appearing in the record which justified an inference that she knew when she paid the assessment that it was invalid.

The court, therefore, reversed the judgment and directed a new trial, for the reason, as stated in the concluding sentence of the opinion, that the “ law required the plaintiff to prove that she authorized the payment in ignorance of the facts, and there is no such finding and no evidence in the case on'which to base it.” The case went back to a new trial pursuant to the order of the court, and on the new trial the plaintiff sought to meet the point on which the reversal in this court proceeded, and gave evidence tending to prove that neither she herself, nor the purchaser who paid the assessment under her authority out of the purchase money reserved, knew or had any notice when the payment was made of the facts invalidating it The learned trial judge on that occasion, following the principle of our former decision, submitted the question of notice to the jury, who found for the plaintiff, and a verdict was rendered in her favor for the amount of the assessment paid, with interest. The general term on appeal reversed the judgment entered on the verdict on the assumption that the evidence was the same as on the first trial.

The case was tried, a third time, on which trial the court directed a verdict for the defendant and denied the plaintiff’s motion for leave to go to the jury on the question of knowledge, and the plaintiff appealed from the judgment entered on this direction to the general term, where the judgment was affirmed, without an opinion.

We think the general term was in error in supposing that the case was the same on the question of knowledge as on the first trial. It was radically different, the defect then existing being supplied by evidence on the part of the plaintiff, that neither she nor the purchaser had any knowledge of the infirmity which affected the assessment when payment was made.

There are strong circumstances tending to an opposite conclusion, and a jury might well hesitate to accept the view sought to be established by the testimony of the plaintiff and her witnesses. But the question belonged to the jury and not to the court, who were the judges of the credibility of the witnesses, and the tribunal to make the inferences of fact deducible from all the circumstances and the whole evidence. The general principle that the owner of land incumbered by an assessment for a local improvement, apparently valid, enforcible in due course and at the will of the municipality, by a sale of the premises, may in good faith pay the assessment and relieve the land from the incumbrance, and thereafter, on discovering that the assessment was unauthorized and illegal, may recover back the money paid, is consonant with the sentiment of justice. The rule doubtless is attended with some public inconvenience, and in many cases technical defects are relied upon to escape a just share of public burdens. But on the other hand it is very important that taxation should find its warrant in the strict letter of the law, and that municipal burdens on property shall only be imposed upon a compliance with all the substantial safeguards enacted for its protection. The ordinary citizen is not advised of the steps which precede the imposition of an assessment. He finds his property assessed and liable to be sold for non-payment of the assessment, and having innocently and in ignorance paid the charge, there is no injustice in requiring a return to him of the money. If he had notice or was put on inquiry before the payment was made, and failed to pursue it, and there was no coercion in fact, he occupies a different position.

The question of the knowledge of the plaintiff should have been submitted to the jury, and for the error in refusing such submission the judgment should be reversed and a new trial granted.

All concur, except Earl and Gray, JJ., dissenting.


author: Per Curiam.

text:
    James Saxton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed October 3, 1893.)

    Railboad—Elevated.
    It is error for a referee in an action against an elevated railroad for damages to confine his consideration of benefits to those which were peculiar to the premises in question.

      Appeal from judgment of supreme court, general term, first department, affirming judgment for plaintiff entered upon report of referee.

      Brainard Tolles, for app'lts; E. W. Tyler, for resp't.

       Reversing 47 St. Rep., 186.

   Per Curiam.

It is impossible to distinguish in many material matters the errors appearing in this case and in the case of Book-man against the same defendants, decided by this court and reported in 137 N. Y., 302; 50 St. Rep., 703. We have looked at the original record on file in the clerk’s office in that case. The court there found the fact of injuries resulting to plaintiff’s property by reason of the building and maintenance of the road and over and above any benefit resulting from it and peculiar to the premises.

The court had been requested by the defendants’ counsel in that case to find that the benefits resulting from the road and peculiar to the premises should be set off, and the court granted the request and so found. And it also found there were no benefits peculiar to such premises.

It refused to find that the easements taken or affected, aside from any consequential damages to the premises from the taking of such easements, had in themselves only a nominal value. The same request was made in this case and the same refusal followed. In this case another request was granted and the fact found that the only property rights taken were easements of light, air and access in and over the street, while in the Bookman case the request was refused.

We cannot, however, see that this one difference in the two records is enough to call for a different result when a perusal shows so many material points in which they are precisely similar. There are many identical and material errors in the two records, and the judgments in both should be the same.

In Sixth Avenue R. R. Co. v. Met. El., etc., Co., lately decided, we held that where it was apparent the court had adopted the true rule of damages, an error of an abstract nature in the description of the injury sustained would not be ground for a reversal.

The referee in this case, like the court in the Bookman case, has confined his consideration of benefits to those which were peculiar to the premises in question. This we have held is error. Sutro case, 137 N. Y, 592; 50 St. Rep., 701. And the request made to the referee in this case regarding benefits peculiar to the premises should not prevent our consideration of the exception taken to the rule as adopted, any more than did the same kind of a request made by defendants in the Bookman case. It was in neither a request to the referee to adopt that theory as the true one in regard to damages, but it was placed among a number of other requests and so worded as to show that the defendant’s claim was that at least and at all events special benefits should be deducted. There was a plain exception to the finding which confined the rule to peculiar benefits.

At any rate there is no distinction which can fairly be taken between the two cases, and the same judgment should prevail in each so far as this court is concerned.

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

All concur.