author: Yan Brunt, P. J.

text:
    John E. Blackman, App’lt, v. Charles Riley, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Evidence—Deeds—Cebtifeed copy of eecoed.
    Section 4 of a colonial act passed October 30, 1710, provides that transcripts of conveyances of land thereafter executed, being duly acknowledged and recorded, shall be as effectual in evidence as if the originals were produced. The colonial act passed February 16, 1771, recites the practice of recording deeds upon the previous acknowledgment of the grantors, or proof made by one of the subscribing witnesses thereto, and § 4 provides that ho conveyance of lands shall thereafter be recorded unless acknowledged by the grantor or proved by one of .the subscribing witnesses, or if they be dead, by proof of their handwriting. The act of February 36, 1788, provides that deeds to be entitled to record or to bo read in evidence, must be acknowledged by the parties thereto, or proved by one or more of the subscribing witnesses. Act of January 39, 1811, provides that a sworn copy of any conveyance executed prior to July 4, 1776, and acknowledged or proven according to law, shall have the same effect in evidence as the original, and this language was substantially in the Revised Laws of 1813. Held, that neither the act of 1710 nor the ancient practice as shown by the subsequent statutes referring to the same, authorized the admission in evidence of a certified copy of the record of an alleged deed_ dated the 33d day of April, 1759, signed by the grantor and two subscribing witnesses, and recorded December 10, 1761, upon an affidavit of a scrivener, to the effect that he drew the instrument, and saw the grantor sign, seal and deliver the same, and that the subscribing witnesses signed their names in his presence.

      Appeal from judgment entered upon the report of a referee.

      George Iloadly, F. It Minrciih and Charles Haldane, for appl’t; Edwin T. Rice (Henry II. Anderson and G. W. Murray, of.counsel), for resp’t.
   Yan Brunt, P. J.

This action was brought to recover possession of a parcel of land on the northeast corner of Fifty-Third street and Broadway in the city of New York. It was prior to 1869 in the Bloomingdale road, which was discontinued and closed as a street by proceedings taken in that year, and shortly thereafter one Adolph Rusch, through whom the defendant claims title, went into possession of the same, it abutting upon land belonging to him, and the said Rusch and his grantees have ever since remained in possession of the same, and the defendant is now in such possession. The plaintiff’s claim to title of the premises in question depends upon an alleged deed dated the 23d of April, 1759, executed. by Cornelius Cosine to his son Cornelius Cosine, Jr., and Balín Johnson Cosine.

This deed was attempted to be proved by the production of a record from the office of the register of the county of New York, and also by a certified copy of such record.

It appears from the records of conveyances in said register’s office, and from a certified copy from such records, that on the 10th of December, 1761, in liber 30 of conveyances, there was recorded a paper which purported to have been, executed by said Cornelius Cosine. This instrument purported to have been signed, sealed, and delivered in the presence of two subscribing witnesses, and the only proof of its execution was an affidavit attached thereto as follows:

City of New York, ss:

Thomas Clement, of the city of New York, scrivener, maketh oath that he wrote the within instrument, as a clerk, and was present and saw the within named Cornelius Cousine, Senr., sign, seal and deliver the within instrument as his act and deed for the uses therein mentioned, and that he saw at the same time the within named Nathaniel Holmes and Henry Green sign their names as witnesses thereto, in the presence of the said Cornelius Cousine, and also of this deponent, and further this deponent saith not.

Thos. Clement.

Sworn the 9th day of December, 1 1761, before me, f

William Smith.

Then follows a certificate signed by said Smith as follows:

“ Be it remembered that on the ninth day of December, in the year of our Lord one thousand and seven hundred and sixty-one, personally appeared before me, William Smith, Esq., one of his Majesty’s Council for the Province of New York, the above named Thomas Clement of the City of New York, scrivener, and made the affidavit above mentioned, and I having perused the within written instrument and finding therein no razures or interlineations, do allow the same to be recorded and to take effect as the law requires. “ Wm. Smith.”

The referee excluded this record upon the ground that the deed of which it purported to be a copy had never been executed so as to entitle it to be recorded and such record to be admitted in evidence.

The only statute which appears to have been in existence in respect to the effect of the record of deeds, conveyances and writings relating to the title or property in lands at the time of the date and record of the alleged deed in question seems to be § 4 of an act passed by the governor, council and assembly of the colony of New York on the 80tli of October, 1710, which section reads” as follows:

“ That all and every deed or deeds, conveyance or conveyances and writings relating to the title or property of any lands, messuages, tenements or hereditaments within this colony which have been already or shall be hereafter executed, being duly acknowledged and recorded in the secretary’s office of said colony, or in the county records where such lands are situate and being, such deed or writing so recorded or transcript thereof shall be good and effectual evidence in any court of record within this colony to all intents and purposes as if the original deed or deeds, conveyance or conveyances and writings was or were produced and proved in court”

The language of this section seems to refer entirely to instruments whose execution had been directly acknowledged by the grantor, but it would appear that by judicial extension the section was made to apply to conveyances which had been duly recorded whether their execution by the grantors had ■ been proved or acknowledged. Hunt v. Johnson, 19 N. Y., 279; Van Cortlandt v. Tozer, 17 Wend., 338.

The question then raised is as to how at the time of the alleged execution of this instrument a deed could be proved so as to entitle it to record. It has been stated in the case of Doe v. Hoe, 1 Johns. Cas., 402, although the question was not properly up for adjudication, that a certified copy of this alleged record was neither a record nor a copy of a deed, it is urged upon the part of the appellant that this adjudication, however, cannot prevail, in consequence of what subsequently transpired in the litigations between the parties upon the question of the title to this property.

But we think that a decision of the question involved need not be based upon any such authority, as the fact that execution of conveyances could only be established by acknowledgment of the grantors, or proof madeb y one of the subscribing witnesses before certain officers, seems to be recognized by legislation and decision. On the 16th of February, 1771, an act was passed to confirm certain ancient conveyances and directing the manner of proving deeds to be recorded. It must be borne in mind that up to this time there had been no legislation except the act above referred to of 1710, giving any effect to the record of a deed. The act of 1771 commenced with the following preamble:

“ Whereas, it has been an ancient practice in this colony to record deeds concerning real estates upon the previous acknowledgment of the grantors, or proof naade by one of the subscribing witnesses of the execution of the instruments before a member of his majesty’s council, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace * * * the purchasers whereof, and those holding under them, ought to be secured, both in law and equity, against the respective grantors, their heirs and assigns.”

And the fourth section of the act reads as follows: “ That no conveyance of lands, executed after the publication hereof, shall be recorded in any of the public offices, unless the same be duly-acknowledged by the grantor, or proved by one of the subscribing witnesses, and if the grantor and witnesses be dead, without proof of the handwriting of the grantor or grantors, or one of the witnesses, before one of his majesty’s council, a judge of the supreme court, a master in chancery, or one of the judges of the inferior court, other than mayor’s courts, for the county where the lands granted lay, who are hereby declared to have lawful authority to take the same in the manner which hath been anciently and constantly used, a certificate of which acknowledgment or proof is to be endorsed on the deed of conveyance."

It will be seen upon a consideration of this preamble that the only ancient practice in the colony referred to was that of recording deeds upon the previous acknowledgment of the grantors or proof made by one of the subscribing witnesses to the execution of the instrument before certain officers, and that in the opinion of the legislative body it would seem there was no legislative authority up to this time even for the record of such instruments, undoubtedly referring to those which were proved and not directly acknowledged, because the stated purpose of the legislation was to secure persons holding under such deeds against any claim which the grantors under such deeds or their heirs or assigns might make.

This view is reinforced by the observations of the chancellor in Van Cortlandt v. Tozer, 20 Wend., 429, in which he remarked as follows: Although the act of 1710 speaks only of deeds duly acknowledged, the recital in the act of 1771 shows that the practical construction of the former act had been to allow deeds to be recorded which had been duly proved by a subscribing witness as well as those which had been actually acknowledged by the grantor in person.

It certainly could not have been the practice to permit de.eds of real estate to be offered in evidence upon slighter proof than obtained in respect to other sealed instruments, and the rule in respect to the necessity of the production of the subscribing witness, where there was one to a sealed instrument, in order that it might be received in evidence, is spoken of in decisions made as early as 1808 as a long settled and familiar rule.

In the case of Fox v. Reil, 3 Johns., 477, it was held in 1808 that where there is a subscribing witness to a bond, proof of confession by the obligor is not sufficient, but the witness must be produced, or in case he is dead or out of the state his handwriting must be proved, Chief Justice Kent stating the rule to be as, follows , “ Here we are certainly concluded by an ancient and uniform rule, that when the defendant has not acknowledged his deed before a competent public officer, or has not expressly agreed to admit it in evidence upon the trial, but has put himself fipon his plea of non est factum, the plaintiE must produce the subscribing witness and give the defendant the benefit of an investigation of the circumstances attending the execution of the deed.”

The same rule was applied in the case of Henry v. Bishop, 2 Wend., 576, where it was attempted to prove the execution of a sealed instrument by the testimony of a person who was present at the execution of the paper, and saw the other witness sign it, but did not subscribe his own name as a witness until the case had been called for trial.

It is true that this decision was made as late as the year 1827, but still it recognizes the rule which was stated by Chief Justice Kent in 1808 to have long prevailed.

It cannot be that a record of an instrument can be admitted in evidence where the execution of the instrument upon the face of the record appears to have been proved in a manner which, if the original instrument had been produced, would have excluded it from evidence. And the fact that this was the method in which the execution of sealed instruments could be provedis recognized by the act of February 26, 1788, which is as follows:

“ All and every deed and deeds, conveyance and conveyances and writings whatsoever relating to the title of property of any messuages, lands, tenements or hereditaments within this state heretofore executed or hereafter to be executed, being duly acknowledged by the party or parties executing the same, or duly proved by one or more of the subscribing witnesses to the execution thereof, and recorded in the office of the clerk of the county in which such lands are situated, shall and may be read as evidence, in any court in this state, without further or other proof of the execution thereof, and the record thereof, or a transcript of the same, shall and may be given and received in evidence.”

On the 29th of January, 1811, an act was passed the first section of which is the following words: “ The record of any conveyance relating to any lands or tenements within this state executed previous to the 4th of July in the year 1776, and acknowledged or proven according to law and recorded in the office of the clerk of any of the counties within the late colony of Hew York, or a sworn copy of such record, shall be evidence in any court of law or equity in the same manner as the original conveyance would be if produced and proven.” This language was substantially incorporated in the revision of the Laws of the state of Hew York made in 1813 (chap. 97, § 6), “a copy of such record certified by any such clerk ” being substituted for the words “ a sworn copy of such record.”

It is suggested by the learned counsel for the appellant that the change of language in the act of 1813, from that contained in the statute of 1788, was unnecessary if the act of 1813 only authorizes proof by subscribing witnesses. But it will be observed that the act of 1811, which was incorporated in the act of 1813, was passed for an entirely different purpose than that suggested. It was for the purpose of validating the record of deeds of lands which had not been recorded in the office of the clerk of the county in which such lands were situated ; which seems to have been a practice which had grown üp, and which was not distinctly recognized by any of the statutes theretofore passed.

But even if this were not so, the legislation cannot be held to. have authorized the introduction in evidence of the record of instruments where, if the instruments themselves had been produced proven in the manner specified in the record, they could not have been offered in evidence. The language of the statute is “ proven according to law,” and the most liberal interpretation of this language could only extend it to the case of instruments which had been proved according to a usage which by its long continuance had obtained the sanctity of law.

None of the cases cited by the learned counsel for the appellant seem to militate against the views hereinbefore expressed. In the case of Jackson ex dem. Hardenberg v. Schoonmaker, 2 Johns., 230, decided in 1807, the validity of the deed was established by an acknowledgment before a proper officer by one of the grantors, all of whom were trustees, and he the only survivor.

In the case of Jackson ex dem. Woodruff v. Gilchrist, 15 Johns., 89, the deed was duly acknowledged, but the grantor being a feme covert it was claimed to be void because the certificate did not contain a statement that a private examination of the wife had been made; and it was held in favor of a party who had been long in possession that as at the time the acknowledgment was taken there was no act requiring the fact of this private examination to be stated in the certificate of acknowledgment, it might be presumed to have been made after such a lapse of time.

Attention is called to the language of the chancellor in the case of Van Cortlandt v. Tozer, 20 Wend., 423. But it will be observed that that language was used in respect to a deed which had been proved by a subscribing witness and thus under the ordinary rules of evidence entitled to bo received.

Our attention has been called to no adjudication in respect to the admission of copies of the records of deeds which can form any basis for the receipt in evidence of the record in question. The discussion has chiefly arisen upon the question whether prior to certain dates the records of deeds proven by subscribing witnesses could be received in evidence; and throughout the discussion it seems to have been conceded that the rule was imperative that a deed or instrument under seal to be received in evidence must be acknowledged by at least one of the parties to the instrument, the others being dead, or proven by a subscribing witness. And in more than one case has it been held that the evidence of a party who claims to have been standing by at the time of the execution of the instrument was not sufficient to prove the same without proof of the death of or inability to procure the subscribing witness. ' . ■

It seems to us therefore upon an examination of the statutes and decisions interpreting the practices and usages existing at the time of the execution of the deed in question, although such practice was exceedingly loose and varied, that the title of a party in possession should never be disturbed by the introduction of the record of an instrument which has not been proved in the manner apparently recognized by the practice prevailing at the time of its execution.

The judgment should be affirmed, with costs."

Patterson, J., concurs ; O’Brien, J., concurs in result.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    The Board of Supervisors of Erie County, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

      A. Eminent domain—Action to recover award—Waiver.
    Ia an action to recover the amount of an award with interest made in proceedings to acquire title to real estate to be used fory street, the defense that, by paying the assessment for grading and paving made on his abutting land, the plaintiff had waived its right to have payment of the award, is not tenable.
    .2. Same—Interest.
    In such case, where the time the award is payable is fixed by statute, interest on the am mnt of the award is to be computed from such time, unless the owner be still in possession of the land.
    Appeal by the defendant from a judgment entered on the findings and decision of the court at special term (Erie, January, 1891).

      Philip A. Laing, for app’it; John Ounneen, for resp’t.
   Dwight, P. J.

The action was to recover the amount of an award, with interest, made to the plaintiff in proceedings instituted by the defendant to acquire title to real estate belonging to the county of Erie, situated in the city of Buffalo. The city required the premises for the extension of one of its most important .streets, and it instituted the necessary proceedings in the superior ■court of Buffalo to acquire the title by condemnation. In those proceedings the award in question was duly made by commissioners, and was duly confirmed by the court on the 2d day of -October, 1876. Immediately thereupon the city took possession ■of the premises, removed whatever structures were upon them, graded and paved the surface for the purposes of a highway, and has ever since been in exclusive possession and control of the .same as a public street of the city of Buffalo.

The expenses of the grading and paving were assessed wholly iipon the residue of the plaintiff’s land, from which the portion ■condemned had been taken, that being the only land then abutting upon the extension, and the assessment (of $2,700) was paid by the plaintiff.

In May, 1885, the defendant moved, in the superior court, to ■set aside the award in question on the ground of irregularities in the proceedings leading up to it. This application was met by the plaintiff with an offer to waive all such irregularities, and was denied by the court. In February, 1886, the defendant gave notice of an appeal from the last-mentioned order, but in the following April withdrew that notice and the appeal was dismissed.

On July 27, 1887, the plaintiff gave notice of its claim to the defendant, and demanded payment of the award and interest, or á surrender of the possession of the premises, and on the 10th day of October of the same year this action was brought; no payment or offer of payment having, in the meantime, been made t0_ the plaintiff, and no assessment of benefits having been made with which to pay for the premises appropriated.

The cases of Sage v. The City of Brooklyn, 89 N. Y., 189; McCormack v. The Same, 108 id., 49; 12 St. Rep., 817, and Donnelly v. The Same, 121 N. Y., 9; 30 St. Rep., 501, furnish undoubted authority for resorting to a common law action for the recovery of the award; also for the proposition that the confirmation of the award was in the nature of a judgment of the superior court of Buffalo, and that an action for the recovery of the award so confirmed may be brought at any time within twenty years from the entry of the order of confirmation. We find nothing in this case which takes it out of the doctrine of the cases cited. The proposition that, by paying the assessment for grading and pavin*', the plaintiff waived its right to have payment of the award is not at all tenable. It may perhaps have been entitled to have the assessment offset against the award, but there is no principle upon which its omission to claim such a disposition of the matter can he construed as a waiver or relinquishment of its claims to the award of $20,000. The time within which the award was payable had not yet expired, and it may well have been supposed that the assessment of the benefits would be made, and a final adjustment of the whole matter be reached within that time.

There seems to us to be no evidence that would have warranted the finding that the plaintiff had dedicated the premises to the use of the public; nor that it was estopped to claim that the award was unpaid and due. Mere forbearance . to press a claim, does not constitute loches, especially on the part of a board of public officers, the composition of -which may be changed every year; and there is no period at which the claim of the plaintiff would outlaw except that prescribed by the statute of limitations.

The only real question here, as it seems to us, under the authorities above cited, relates to the time from which interest is to be computed on the amount of the award. The findings and judgment in this case give interest from a date one year subsequent to the order of confirmation. In the case of Donnelly v. Brooklyn, supra, it was -held that interest did not run until a formal demand of payment or other proceeding on the part of the land owner to fix the period within which damages were payable. But the two cases are distinguished in two very material features. In the Brooklyn case the statute did not in any way definitely fix the time when the award was payable. In this case the statute positively prescribes that the award shall be paid within one year after its' confirmation by the court. Laws> of 1870, Chap. 519, title 8, § 15. Moreover, in the case of Donnelly, it appeared that the claimant had remained all the time, down to the commencement of his action, in the occupation and use of the condemned premises, and that no steps had been taken by the city to obtain the possession; and the case of Hamersley v. The Mayor, 56 N. Y., 533, is cited, where Andrews, J., said, “It would require very clear evidence of legislative intent to warrant such a construction of the statute as would give the owner both the use of the land and the interest on the purchase money.” In this case, as we have seen, the defendant took immediate possession of the condemned premises, and has used and occupied them for its own purposes ever since. It is plain that these facts take the case out of the rule established in the Brooklyn case, and that the latter is, by implication, authority for the rule applied by the court below in the judgment appealed from. In this case the amount of plaintiff's claim was liquidated by the order confirming the award, and the time at which it was payable is fixed by the statute.

The provision of the charter of Buffalo which requires notice of demand before action brought has no effect upon the question of interest, and the required notice was given before the action was commenced.

We do not find that any of the exceptions taken by the defendant indicate error which affects the result - The judgment appealed from must be affirmed.

Macomber and Lewis, JJ., concur.


author: Macombeb. J.

text:
    Noah Lake, App’lt, v. Henry Sweet, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Jurisdiction—County court—Lease.
    A complaint alleged that the plaintiff “ let and rented to defendant for one year the farm, of the plaintiff, together with the stock, tools and implements then on said farm and owned by the plaintiff, in consideration of which letting a .d renting the said defendant agreed to pay over to plaintiff one-half of all the crops raised on said farm, one-half of all the increase of the stock thereon and one-half of the milk of said cows, or the proceeds thereof, and that at the expiration of said term to leave upon said farm ten acres of wheat sown in the ground; ” that defendant failed and neglected to pay over and deliver to plaintiff the one-half of the crops, increase of stock and milk, or the proceeds thereof, and converted the same and proceeds thereof to his own use, and has refused to pay over or deliver the same to plaintiff or any portion thereof, and that defendant wholly failed and neglected to sow and leave upon said farm any portion of said ten acres of wheat, as agreed. Held, that the complaint stated a cause of action at law for a recovery of rent, and not one in equity for an accounting, and the county court had jurisdiction of the subject matter.
    2. Pleadins—Amendment—Refusal to allow—Appeal.
    „ A county court’s refusal to allow an amendment to a complaint, solely on the ground of want of power, is reviewable on appeal.
    Appeal by the plaintiff from a judgment of the county court of Monroe county, entered May 25,1891, dismissing his complaint on the ground that the court had not jurisdiction of the subject matter of the action ; and, also, an appeal by the plaintiff from an ord.er made at the same time denying his motion to amend the complaint, which decision was placed upon the ground that the court had not power to grant such motion.

      O. C. Davy., for app’lt; P. Chamberlain, Jr., for resp’t.
   Macombeb. J.

When this action, which was brought in the county court of Monroe county, came on for trial, and after the empaneling of a jury, a motion was made in behalf of the defendant to dismiss the complaint upon the ground that the court had not jurisdiction of the subject matter of the action. In connection with this motion, the plaintiff’s counsel made an application to the court for leave to amend his complaint in certain particulars. After consideration the court granted the defendant’s motion to dismiss the complaint upon the ground that it had not jurisdiction of the subject matter of the action, and denied the plaintiff’s motion to amend his complaint upon the ground that it had no power to make the amendment asked for.

The argument of the counsel for the defendant, and the position taken in the decision by the county judge is, that the trial of the action would necessarily involve an accounting between the parties, and that the county court has not jurisdiction of such an action under § 840 of the Code of Civil Procedure. Undoubtedly equitable relief, except in special cases where jurisdiction thereof is conferred upon the county court, is not cognizable by that tribunal, and hence if this action were, in reality, an action in equity requiring an accounting between the parties before a. judgment could be pronounced, the decision appealed from would be correct. We, however, incline to the opinion that the action is not of an equitable nature, but is in reality one at-law, and that it was error for the county court to dismiss the complaint

After alleging that the defendant was a resident of the-county of Monroe, the complaint proceeds as follows: “ That in or about the month of March, 1884, he (the plaintiff) let and rented to defendant, for the term of one year from the first day of April, the farm of the plaintiff in the town of Henrietta,. Monroe county, N. Y., consisting of about one hundred and thirty-seven acres, known as the Lake farm, together with the-stock, among which were four horses, eighteen cows and five hogs, and the tools and implements then on said farm and owned by the plaintiff, in consideration of which letting and renting the said defendant agreed to pay over and deliver to plaintiff the one-half of all the crops raised on said farm during said term, the one-half of all the increase of the stock thereon and the one-half of the milk of said cows, or the proceeds thereof, and that at the expiration of said term to leave upon said farm ten acres of wheat sown and in the ground. And this plaintiff further alleges, that said defendant entered into possession of said premises under said agreement and occupied said premises during said term.” Thence follow allegations of the several quantities of produce raised, their values, and the increase of the stock and its value, and the quantity of milk obtained and its value. The complaint then proceeds as follows: “ And plaintiff further alleges, that the defendant wholly failed and neglected to pay over and deliver to plaintiff the one half of said crops of said farm, the one-half of the increase from said stock and the one-half of the milk from said cows or the proceeds thereof,. and converted the same and proceeds thereof to his own use, and has ever since refused to pay over or deliver the same to plaintiff or any portion thereof, although plaintiff has duly demanded the portion thereof agreed to be delivered over and paid to him.

“ And this plaintiff further alleges that at the expiration of said term, said defendant wholly failed and neglected to sow and leave upon said farm sown and in the ground any portion of said ten acres of wheat, as agreed, to plaintiff’s damage in the sum of seventy-five dollars.” This is followed by an allegation that the whole damage sustained by the plaintiff was $1,000. The prayer of the complaint is for a judgment, that the defendant account to the plaintiff for the crops, etc., and that plaintiff have judgment for the value of one-half of the crops, etc., “together with seventy-five dollars damages for said failure to sow and leave sown añd in the ground on said farm said ten acres of wheat”

These averments in the complaint, it appears, were made by counsel under such information as he could obtain of the transaction between the parties without the aid of the written agreement, which existed between the parties. This sufficiently appears in the opinion of the county judge, where it is in substance stated that on the argument the lease itself was handed up to the court on the application to amend the complaint

We are of the opinion that under this complaint the conventional relation of landlord and tenant existed between the plaintiff and defendant, although there are doubtless some insufficiencies in the averments as a complaint upon a demand for rent reserved in a lease. As - we construe them, the defendant took the absolute possession of the farm, and of such stock as is above mentioned, to the entire exclusion of the plaintiff from the possession of either the land or the stock. In this respect, the case pointedly differs from the decison relied upon, namely, Taylor v. Bradley, 39 N. Y., 129. In that case, the proceeds of the farm, over and above the keeping of the stock thereon and the use of certain specified articles in the plaintiff’s family, were, by agreement, to be divided between the respective parties equally, share and share alike, both as to the expenses and profits arising from said farm. In this respect, also, the case before us is materially different from the one cited.

If we understand these averments correctly,.the division of the property was to be a payment to the owner of the farm, not as property held in common with the-lessee, but as rent reserved to him as landlord payable to him by his tenant, who had laken exclusive possession of the property. It was but a mode of pavment, hence the right of the plaintiff in this action is essentially different in kind from that possessed by the owner of the land which was tilled in the case of Taylor v. Bradley, supra. There the main thing decided was, that in the particular agreement then before the court the relation of landlord and tenant was not created, but that it was an agreement for work and labor, the legal possession of the farm being still in the owner. But here the ■averment in the complaint is, that the plaintiff “ let and rented to the defendant for the term of one year,” the farm, etc. In the absence of evidence and without other allegation of fact to the contrary this averment must be deemed controlling for the purposes of the motion to dismiss the complaint

It is true that the relief asked is in part for an accounting. But this is no essential part of the complaint The plaintiff was required only to state the facts, and if from such facts a sufficient cause of action appeared the complaint ought not to have been dismissed simply because the legal effect of such facts is not stated, or because the proper form of relief was not demanded. Hemmingway v. Poucher, 98 N. Y., 281. Where an answer is interposed, the court will grant the judgment which will be consistent with the case made by the complaint and embraced within the issues,- irrespective of the relief demanded. Bell v. Merrifield, 109 N. Y., 202; 14 St. Rep., 796. Imperfect or informal averments in a pleading, and indefiniteness therein, or an argumentative ■statement thereof, is not sufficient ground for dismissing the complaint. Milliken v. Western Union Telegraph Co., 110 N. Y., 403; 18 St. Rep., 328.

For these reasons we think that the complaint has the substance of an action at law for a recovery for rent reserved in the lease.

Though necessarily covered by the foregoing views, it may be well to state, that, in any event, there was a cause of action at law properly averred for the sum of seventy-five dollars for a breach of the contract to sow, and leave upon the ground, ten acres of wheat. This allegation alone would preclude a dismissal of the complaint without opportunity to offer evidence in support thereof.

The ground upon which the plaintiff’s motion to amend the •complaint was denied is stated in the order to be that the court had not power to grant the motion. The learned county judge states in his opinion that the lease itself, which was handed up as a part of the application, showed that the pleader who drew the complaint must have been ignorant of the contents of that paper at the time of framing that pleading. It is stated in the opinion that such agreement does not provide for a division of the products of the farm, but that the party of the second part shall market all the products and give one-half of the proceeds arising from such sales to the party of the first part at the time of such sales; and the county judge says therein that such instrument constituted between the parties the technical relation of landlord and tenant, and did not make the parties tenants in common of the crops. We have not in the appeal- book the benefit of a perusal of this lease. But judging from the tenor of it, as briefly referred to by the county judge, it confirms the general idea which we had found to exist in the mind of the pleader in the complaint as actually written. ¡Nevertheless, we think that in view of the liberality with which courts are accustomed to grant amendments to pleadings, where such amendments do not create any new action or defense, but are in furtherance of the aver-merits already existing in the pleadings, the application of the plaintiff’s counsel should have granted, or at least should have been entertained by the court If, as a matter of discretion, the court had refused to make such an amendment, we should not undertake to review the exercise of such discretion; but the decision being placed solely upon the ground of want of power to make the order applied for, the error is one not arising from the improper exercise of discretion, but rather from an erroneous decision upon a question of law, and hence is reviewable by this court

For the foregoing reasons we think the judgment appealed from should be reversed, and the application to amend the complaint should have been entertained upon its merits by the county-court.

Judgment and order appealed from reversed and a new trial granted in the county court, with costs to abide the event

Dwight, P. J., and Lewis, J., concur.


text:
    Alpheus N. Smith, App’lt, v. The Pennsylvania Coal Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1, Negligence—Question for jury.
    In an action to recover for personal injuries, it appeared that plaintiff, mate of a vessel engaged in transporting coal for defendant, which was unloading at a wharf, was in the hold with some deck hands, when the order was given preparatory to unloosing the vessel from the wharf, and plaintiff starting up a ladder was struck by a descending bucket used in unloading; the buckets were operated by an engineer on the wharf, and a boy was stationed on deck to signal the engineer when to hoist, and also to warn the men in the hold when a bucket was coming. Held, that the jury were properly instructed that the question of the negligence of defendant, and of the contributory negligence of plaintiff, might depend on their finding whether the unloading was completed before the bucket was sent down, and whether it was sent down out of time, and when the plaintiff had a right to assume that no more buckets were coming.

      2. Same—Charge to jury.
    The court properly refused plaintiff’s request to charge, which required a verdict in his favor upon a finding of negligence on the part of the defendant, and excluded the evidence of contributory negligence.
    Appeal by the plaintiff from a judgment entered on the verdict of a jury at the Erie circuit, and from an order denying his motion for a new trial made on the minutes of the court.

      S. A. Simons, for app’lt; J. Q. MiUburn, for resp’t
   Dwight, P. J.

The action was to recover damages for a bodily injury sustained by the plaintiff, and caused, as alleged, by negligence of the defendant

The plaintiff was second mate of a vessel engaged in transporting coal for the defendant from Buffalo to Chicago. The accident, occurred at the latter place, where servants of the defendant were engaged in unloading coal from the vessel. .This was done by means of buckets and hoisting machinery driven by a steam- engine on the wharf alongside of which the vessel was tied. The buckets when filled by men in the hold were hoisted through two hatchways, one in the main deck and one in the hurricane deck, and were then run out by the same machinery to the dumping place, «dumped automatically, run back empty and lowered again to the hold. The engineer in charge of the hoisting apparatus being unable to see or hear from the men in the hold when a bucket was tilled, a boy was stationed at the hatchway on the hurricane deck whose business it was to signal to the engineer when to hoist; he was also to see to it that the descending bucket cleared the combing of the hatchway, and if he saw any of the men in the hold standing under the bucket as it went down he was accustomed to call out to them to stand from under.

At the time of the accident the unloading of the coal was nearly completed, and the plaintiff was in the hold .with some ■deck hands for the purpose of sweeping up the floor. At this time the captain gave the order to “ stand by the lines,” preparatory to unloosing the vessel from the wharf, and the plaintiff and his men started for the main deck in response to the order. There was a ladder at each side of the hatchway which extended across the main deck. The buckets were lowered at the side next the wharf, and most of the men went up the ladder at the other side, but the plaintiff, apparently assuming that no more buckets were to be lowered, started to go up the ladder which was nearly under the fall, when he was struck by a descending bucket and thrown back to the floor of the hold, sustaining the injury complained of.

The principal question of fact submitted to the jury was whether the unloading of the coal was completed before this bucket was sent down, and whether it was sent down out of time, •and when the plaintiff had a right to assume that no more buckets were coming, and that it was safe for him to go up the ladder under the fall; and the jury was instructed that upon that question might depend their finding in respect to negligence on the part of the plaintiff as well as of the defendant

The charge was, in our judgment, very liberal to the plaintiff •and no exception was taken by him to any portion of it, as at first delivered. But at its close his counsel made a request in the ■following language: “I ask your honor to charge the jury that if they find the defendant had habitually kept a person at the hatchway oh the hurricane deck leading to the hold in which the plaintiff was injured, charged with the duty of giving warning when the bucket was to be lowered into the hold, and which person had habitually performed that duty, and at the time of the injury that person was absent from his post of duty and failed to give such warning when the bucket which struck the plaintiff was lowered upon him, and that the injury to the plaintiff would not have happened if the usual warning had been given, then their verdict must be for the plaintiff.”

The Court: “I do not think that the evidence in this case would warrant the jury finding that the boy was absent from his place of duty.”

The Counsel: “I will take an exception to your refusal to «charge and to the charge as made.”

The Court: “ The only evidence that tends to show at all that the boy was not there is the evidence of the plaintiff, as I remember it, and he said simply that as he looked up he did not see him. The boy swears that he was there and the engineer swears that he was there, and I do not remember that any one else speaks upon the subject. Now, to have the jury find that the boy was not there simply because the plaintiff did not happen to see him, when both of these witnesses swear that he was there, I think they would not be justified in coming to that conclusion.”

The Counsel: “ I will except to the refusal to charge in the specific language requested, and to the charge as given.”

The exception cannot avail the plaintiff. The proposition of law embraced in the request was too absolute, even if the facts were to be found in accordance with the hypothesis. That proposition excluded from the consideration of the jury the issue of negligence on the part of the plaintiff, which was concededly in the case, and required a verdict in his favor upon a finding only of negligence on the part of the defendant It would have been error to charge as requested. The remark of the court to the effect that the hypothesis of fact was not warranted by the evidence was, we think, entirely justified, and that a finding by the jury that the boy was not at his post would have been contrary to evidence. It is true that one witness besides the plaintiff testified that he did not see the boy at the hatchway at the time the plaintiff was hurt, but he does not testify that he was in a position to see whether he was there or not, nor whether he looked to see; his testimony on this point was entirely immaterial. But even if it liad been otherwise and the court, by inadvertence, had failed to mention it, the remedy would have been by calling the attention of the court to the testimony, and not by an exception to the charge.

There is no other exception in the case, and there can be no doubt that the evidence fully sustains the verdict upon the questions submitted to the jury.

The judgment and order appealed from must be affirmed. Macombeb, J., poncurs; Lewis, J., not sitting.


author: Macomber, J.

text:
    Jacob Henning, Administrator de bonis non of Fredericka Henning, Deceased, Resp’t, v. Daniel W. Caldwell, Receiver of the New York, Chicago & St. Louis Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Negligence—Contributory—Railroad crossing.
    Plaintiff’s testatrix was driving a wagon, and had partly passed over defendant’s i ailroad crossing and arrived at a safe position between the tracks, but where her view was shut off by defendant's freight cars standing near, when she was summarily directed by defendant’s flagman to go forward. Acting under his direction she went forward, a train of defendant’s passed by, the horse became unmanageable and collided with a freight train moving on another track and she was killed. Held, that a motion for a non-suit on the ground of contributoiy negligence was prop- . erly refused.

      2. Same—Charge to jury.
    Because the flagman must have known that defendant’s testatrix could not see the approach of the train, and because of the uncontradicted testimony of his direction to go forward, a suggestion of the trial court that the situation of defendant’s freight cars might have some bearing upon defendant’s negligence is immaterial.
    Appeal by the defendant, Daniel W. Caldwell, receiver of the New York, Chicago & St. Louis Railway Company, from a judgment entered in Erie county, September 29, 1891, on the verdict of a jury at the circuit; and also from an order of the special term denying the defendant’s motion for a new trial made upon a case and exceptions.

      John dr. Milhurn, for app’lt; O. M. Bushnell, for resp't
   Macomber, J.

This action was brought by Christian Henning, as administrator of the estate of Frederieka Henning, to recover damages sustained by the next of kin through the negligent killing -of the deceased by steam cars operated by the defendant. The accident happened on the 2d day of May, 1885. Christian Henning, however, died in the month of June, 1887, and this plaintiff was accordingly substituted in his place.

Besides the husband, now deceased, Frederieka Henning left as her next of kin six children.

On the day when the deceased received her injuries, which proved immediately fatal, she was driving a one horse market gardening wagon along what was known as the Abbott road, within the corporate limits of the city of Buffalo, and was proceeding westerly, having her daughter with her in the vehicle. At or near the point where the woman was killed, the Abbott road was crossed, at an angle of about seventy-five degrees, by eight tracks running in a northerly and southerly direction. The first three tracks belonged to the New York, Chicago & St. Louis Railway Company and were operated by the defendant. These three tracks terminated in a single track leading to a round house a short distance south of the Abbott road. Sixty-one feet west of these three tracks was a single track also belonging to the defendant called the Nickel Plate track; forty-five and one-half feet west of this single track was the defendant’s main track, called the Nickel Plate main track; seven feet westward of the-defendant’s main track was the track of the Buffalo, New York & Philadelphia railroad; seventy-eight and one-half feet beyond this last named track was the first track of the Buffalo Creek railroad, and seven feet west of the first track of the Buffalo-Creek railroad was its second track.

As the deceased approached this crossing she stopped her horse before reaching any track for' a train or a locomotive of the defendant to pass. Her daughter alighted from the wagon with a clock in her hands and carried the same across the tracks. Thereupon the deceased passed over the first three tracks, and again paused in the sixty-one foot space between the defendant’s three tracks and its side track. Upon either side of and close to this highway there were box-cars standing, which belonged to the defendant. The train, mainly of box-cars, had been cut in two and the cars thus placed in order not unnecessarily to block the street. The second stop made by the deceased was just west of the track upon which these cars were.

Evidence of a satisfactory character is given showing that a person at a point where the deceased was shown to be could not see a train going south on the main line of the defendant’s track. While the woman remained in this spot, which was a place of safety, a flagman, who was stationed at the two tracks running parallel with each other, and who, it is shown, was standing on the easterly side of these two tracks, signalled her in a very urgent manner to pass on over the remaining tracks, telling her to come .along “ lively.” As the deceased came across these tracks, a passenger train was going out on the defendant’s track westerly of these two tracks at a rapid rate of speed. The deceased had just got across the track upon which the train was running as the engine passed in behind her wagon; that at that time the engineer of the locomotive gave a startling sound, a “popping noise,” as the witness described it, which so frightened the horse as that he became unmanageable and ran against a freight train that was backing up upon the track of the Buffalo Creek railroad, and there plaintiff’s intestate was killed.

The position of the flagman at the time mentioned, the conduct of the horse of the decedent, the rate of speed of the passenger train and its mode of approach, were subject matters of some dispute in the evidence. But the jury was warranted in finding the facts as above stated.

Evidence was also adduced to show that the horse was one of a safe, gentle and amiable disposition, accustomed to the ordinary hazards of crossing railroad tracks, and that the deceased herself was familiar with this crossing, and that she had been engaged four or five years in market gardening, using the same horse, and in the prosecution of such business had frequently passed over this crossing. The woman was fifty-four years of age, in good health, and was large and muscular.

When the deceased was signalled by the flagman to cross, it is ■shown that she proceeded in a proper, ordinary and safe way, at a slow gait, described by one of the witnesses as between a trot and walk; that the horse showed no special symptoms of fright until .after crossing the track immediately ahead of the locomotive which made the startling noises, and it was only from that instant that the animal was shown to be unmanageable.

These facts, we think, made out a case that was properly submitted to the jury.

It is argued by the learned counsel for the appellant from some of the testimony in the case that the plaintiff herself must have been able to see the approach of the passenger train, and that she •could have seen it if she had used her senses. This argument would be more persuasive had the woman undertaken to make this crossing depending entirely upon her own observation of the ■danger. When the summary direction was given her by the flagman she had a right to assume that the man who had been placed there was competent to give the direction, and to observe accurately whether or not it was safe for such direction to be then given. The question is not whether the woman exercised proper care of her person by choosing to obey the direction of the flagman rather than to obey the evidence of her own eyes. Had it been shown that she actually did see the approach of the train under circumstances indicating that it was to cross the highway, she could not, of course, absolve herself from the imputation of contributory negligence upon the flimsy excuse that she chose rather to obey the summons of the flagman than the admonition of her own senses. But the case presents' no such situation as this. It is rather one whether, at the very instant of the direction given by the flagman, the deceased was shown to exercise reasonable and proper caution for her own safety in her endeavors to make this crossing.

Yery little need be said in regard to the negligence of the flagman which is imputable to the defendant. In the motion for a non-suit no claim was made that the flagman was not guilty of negligence. The ground of the motion was, exclusively, that the deceased herself was guilty of acts which contributed to her injuries. This applies, however, only to the negligence of the defendant in respect to the acts of its agent at the moment of the collision with the train, and leaves open the question of negligence ascribable to the defendant irrespective of this particular act of the flagman; and this question we will now consider.

The learned trial justice, in a somewhat doubting way, submitted to the jury, as is claimed by the learned counsel for the appellant, the question whether it was negligence on the part of the defendant to have its box cars, which composed a train, standing on each side of the highway in such proximity to the highway as to obscure the approach of the passenger train. The learned justice in his charge said to the jury; “ There is, perhaps, another fact that the plaintiff claims has a bearing, especially upon another question in this case, and that is the fact that this freight, train on the single track, the switch track, the freight cars were standing so near to the highway that they impeded the view of the deceased as she passed along.” At the conclusion of the charge, the defendant’s counsel requested the court to charge the jury that they could not hold the defendant negligent by reason of the movement of the cars on any other track except on this track upon which the passenger train came, and in respect to that passenger train.

“By the Court—Yes, that is the only one, except contiguity of these cars to the highway, that may be taken into consideration in judging of her negligence.

“ By defendant’s counsel—But not in judging of defendant's, negligence ?

“ By the Court—Well, I do not know quite about that. It may be a question for the jury as to those cars being so near the track as bearing upon the defendant’s negligence somewhat.”

To this charge, and to the court’s refusal to charge as requested, the counsel for the defendant duly excepted.

If by this portion of the charge it was intended to instruct the jury that- the defendant was guilty of negligence in having the cars stand in these places, we think it would be error, except as it is in tins instance directly connected with the act of the flagman. If the situation was such that the flagman must have known that the traveler could .not see the approach of the train, and that she would necessarily be dependent wholly upon his direction for guidance in getting across the tracks, unquestionably the duty of greater diligence on his part was owing to the traveling public. In this view of the case, the suggestion of the court that the situation of these cars might have some bearing upon the defendant’s negligence was wholly immaterial, in view .of the uncontradicted testimony relating to the order given by the flagman to the woman to go forward.

Another question is argued by the counsel for the appellant relating to the influence upon the amount of the verdict of the death of the husband ; but we regard the point as somewhat speculative and as not requiring discussion.

The verdict in this case was $3,000. ' The next of kin consisted of six children. The woman was fifty-four years of age, ■strong, active, and was conducting the general business of market gardening. With these six children to a greater or less extent dependent upon her for support, the v.erdict does not appear to us to be in any way excessive, and, consequently, we think it should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., concurs; Lewis, J., not sitting.


author: Follett, Ch. J.

text:
    Ebenezer S. Cady, Resp’t, v. The Springville Water Works Co., App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1ÍA8EMENT—RIGHT TO DRAW WATER FROM SPRING.
    Plaintiff was the owner of a lot, appurtenant to which was an easement of a right to draw water from a spring on another lot across the highway. By conveyances between him and the owner of said lot, plaintiff released his interest in .the spring and the owner conveyed to him the privilege of taking from the main pipe leading from the spring all the water necessary for the use of his family, which conveyances were duly recorded and the connections made. Subsequently the owner quit-claimed all his interest in the spring to the defendant, and it, knowing of plaintiff’s water rights, took up the old pipes and laid mains of its own and cut plaintiff off. II Id, that pla'ntiff’s was not a personal right or a right in gross, hut one which was annexed to the plaintiff’s lot existing by a grant of a specific part of the water amounting to an easement, and the fact that the owner was under an obligation to convey the water part of the distance to plaintiff's house, or that plaintiff’s lot and the lot on which the spring was situated were separated by a street, did not affect, the rights of the litigants.
    Appeal from a judgment of the general term of the supreme ■court, in the fifth judicial department, affirming a judgment entered on the decision of a special term.
    This action was begun to (1) restrain the defendant from interrupting the flow of water from a spring to the plaintiff’s premises; (2), compel it to restore the spring and the conduits connecting it with the plaintiff’s premises to their former condition ; (3), recover the damages sustained.

      Matey & Close, for resp’t; 1Y. Id. Ticknor, for app’lt.

       Affirming 32 St. Rep., 17.

   Follett, Ch. J.

Elkstreet, which is three rods in width,, extends northerly and southerly through the village of Spring-ville, and is crossed at right angles by Main street, which is four rods in width. On the southeast corner of these streets is a. lot of land owned since July 26, 1880, by John P. Myers, on which there is a valuable spring of potable water. A lot on the southwest corner of these streets was conveyed March 12, 1867, by David Oyer to this plaintiff, which he has ever since owned. The deed by which he acquired his title contains the following provision: “And said first party conveys-to second party all of the right, title and interest which was conveyed by Orpha Brooks to Phineas Scott by a deed bearing date the 20th day of February, 1841, to a certain spring of water on lands formerly owned by Jacob Rushmore.” pThe spring referred to in this grant is the one on Myers’’ lot Prior to 1882 there were no pipes connecting the plaintiff’s premises with the, spring, and the only use which he made of it was to carry water in pails from it to his house. About 1877 a wooden conduit was laid by the then owner of the Myers lot from the spring westerly to Elk street, thence northerly to Main street, thence westerly along Main street past the plaintiff’s premises, from which several dwellings were supplied with water. July 15, 1882, Ebenezer S. Cady, by an instrument in writing, under seal, and duly acknowledged, released all his interest in the spring to John P. Myers, the owner of the lot on which it was situated,' in consideration of which Myers, on the same day, executed, acknowledged and delivered an instrument under seal by which he granted and conveyed to “ Ebenezer S. Cady, his heirs and assigns the right and privilege of taking and conveying by a half inch pipe from the main pipe leading from the spring of water aforesaid (referring to the one conveyed by Orpha Brooks to Phineas Scott, February 20, 1841,) along Main street in said village of Springville, all the water that may be necessary for the family use of the said Ebenezer S. Cady or the heirs or assigns of the said Ebenezer S. Cady, holding and occupying the said lot so sold and conveyed by David Oyer to the said Ebenezer S. Cady, to have and to hold the said right and privilege to the said Ebenezer S. Cady, his said heirs and assigns, forever.” The grant from Myers to the plaintiff was duly recorded September 25,1882, and the release from Cady November 18, 1887.

Shortly after the date of these instruments the plaintiff connected his house with the street conduit by an iron pipe through which, he was supplied with water until October 20, 1887, when the defendant took up the old conduit in the street and laid a new one, which it refused to allow the plaintiff to connect with. The defendant was incorporated about 1886, for the purpose of supplying the village of Springville and its inhabitants with water, and June 8, 1887, John P. Myers quit-claimed to it all of his interest in the spring and thereafter the defendant laid a pipe from the spring to Elk street, thence along Elk, Main and other streets in the village, cutting off the plaintiff’s supply, which the defendant seeks to justify under the aforesaid grant to it

It is found as a fact that the defendant knew of the existence of the plaintiff's water rights when it received its deed from Myers. The contention of the defendant is, that the right acquired by the plaintiff was a mere personal one, a right in gross, but not an easement. Reference is made in the release and in the grant of July 15, 1882, to the deed from Oyer to the plaintiff of March 12,1867, and to the water right thereby conveyed, and for the purpose of ascertaining the intention of the parties, the nature and extent of the plaintiff’s water right, the three instruments must be construed together.

Under these instruments the plaintiff acquired the right to use a definite part of the water flowing from the spring for the purpose of supplying the occupants of the plaintiff’s lot with water forever. This is not a personal right or a right in gross, but it is one which is annexed to the plaintiff’s lot, and by the express terms of the instrument creating it passes with the lot in whosesoever hands it may come. The right did not originate nor does it exist by virtue of an executory contract, but by grant of a specific part of the water for the., use of the plaintiff’s premises, which amounts to an easement. The fact that Myers was under an obligation to convey the water part of the distance between the spring and plaintiff’s house does not change the nature of the right granted. As was well said .at general term, this relates to the mode of enjoyment and is no limitation upon the right to use the water

An easement may be created though the dominant and servient estates are not contiguous, and the fact that the plaintiff’s lot and the lot on which the spring is situated are separated by Elk street is not one which affects the rights of the litigants. Perrin v. Garfield, 37 Vt., 312 ; Wash. Eas., 3.

The judgment should be affirmed, with costs.

Ail concur, except Haight, J., not voting.


author:
Bradley, J.
      1A-L Lett, Ch. J.,

text:
    The Barrow Steamship Co. (Limited), Resp’t, v. The Mexican Central Railway Co. (Limited), App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Contract—Transportation op passengers by steamers — Guaranty as TO NUMBER IN PARTY.
    Defendant applied to plaintiff for the transportation of Mexican pilgrims from New York to Rome. The negotiations were mainly made by letters between them. Defendant’s agents wrote that they were advised from their people in Mexico that the latter c-mid secure a party of 175 or S90 and possibly more, in various classes, to which plaintiff’s agents responded that they were prepared to take them, stating the rates of fare and offering two free passes for each hundred passengers. Subsequently defendant wrote that there was a probability that there would be 250 people or more, but insisting upon five free passes and five reduced fare tickets-as a condition for closing the agreement. In response to this plaintiff wrote that if defendant would ship not less than 250 passengers at specified rates they would give the passes and reduced fare as demanded. Defendant’s agent wrote on the same date accepting rates and stating that latest advices were that there was a probability that the party would exceed 250. Other letters passed and about the time the vessel was td sail plaintiff was notified of a falling off in numbers of the party, hut insisted on holding defendant to the original terms. Only 137 passengers were furnished by defendant, and the vessel made the voyage with that number. Held, that the expression of defendant of the probability that the party would exceed 250 could not.be construed as an undertaking that there would be at least that number, and did not constitute a contract on its part to furnish such a number of passengers.
    (Follett, Oh. J., Parker and Lardos, JJ., dissent.)
    Appeal from judgment entered on order of the general term of the supreme court in the first judicial department, affirming' judgment entered on verdict in favor of the plaintiff. ■
    The plaintiff, a corporation owning the steamship Bolivia, alleged that the defendant, a corporation of the state of Massachusetts, having (by transfer) a charter from the Republic of Mexico,, owns and operates railroads in that republic, entered into an agreement with the plaintiff for the transportation by the latter of certain Mexican pilgrims from the port of New York to the city of Rome, Italy, and return, and undertook that the number should not be less than two hundred and fifty, to be divided into classes not less than seventy-five first class, seventy-five second class and 100 third class passengers at the price of $140 for first, $90 for second and $50 for third class for each passenger. And as breach the plaintiff alleged that the defendant failed to furnish that number, but furnished a much less and specified number of passengers for the trip, to the plaintiff’s damage, etc.
    The defendant, admitting that an arrangement for the transportation of Mexican pilgrims -from New York to Rome was made, denies that it undertook that the number should be 250 passengers. The negotiation on the subject of the transportation of the passengers took place between the New York agents" of the parties, and is mainly represented by letters between them. The first in order was a letter from the defendant’s agent of date March 24,. 1888, to the plaintiff’s agents, in which he says :
    “ Gentlemen: Referring to the subject of our conversation regarding the pilgrimage from Mexico to Rome, 1 beg to say that our people in Mexico advise that upon favorable terms they can secure a party of about 175 or 200 people, with a possibility of increasing the number. These people will be divided into classes-about as follows : 75 first class ; 75 second class; 50 steerage.”
    To which the plaintiff’s agents by letter of 27th March, answer as follows:
    “ Dear Sir: Referring to your favor of the 24th insti, we now beg to say that we are prepared to convey the Mexican pilgrims from New York to Naples by our steamer Bolivia to sail about-the 16th April, forwarding them from Naples to Rome; return by rail to their respective classes, leaving Naples again for New York about thirty days after landing, for the following rates of passage : First class one hundred and forty dollars ; second class, ninety dollars; third class, fifty dollars. We will in addition grant two free passes to Naples and return with each hundred passengers.”
    The next is the following letter from the defendant’s agent of date March 31, 1888:
    “ Gentlemen : Again referring to the subject of the pilgrimage from Mexico to Borne, I have to say that I am in receipt of a. telegram from Mexico advising that all arrangements have been made so that this party can leave there at an early date next month, and there is a probability that there will be 250 people or more. Our people, however, are not entirely satisfied with the terms offered by you, since the railroad companies have been obliged to agree to give ten free passes to parties in charge of the pilgrimage, and before we can close with you it will be necessary for you to agree to make provision for the above mentioned Jen organizers and conductors by allowing five free passes, and by selling five first class tickets at rate of $100 each, New York to Borne and return. Owing to the fact that our through rate for steerage passengers has been fixed so low, it will be necessary for you to make a rate of $45 each, New York to Borne and return for this class, the same figure as the through rate advertised by us was originally based upon. If you are willing to make the above arrangement, I am prepared to close immediately for the party from here the 16th prox.”
    » Then came the following letter from the plaintiff’s agents of .the same date:
    “ Dear Sir—Beferring to your favor of the 31st inst and conversations had with you by our representative, Mr. Martin, regarding transportation of Mexican pilgrims from New York to Borne and return by our S. S. Bolivia, to sail from this port for Naples about the 16th proximo, and to return from that port about thirty days after'their arrival there, we beg to confirm the-understanding arrived at between us, viz.: that you will ship not less than 75 first class, 75 second class and 100 third class passengers for the round trip, for which we agree to furnish transportation from New York to Borne and return at the following rates: For first-class, $140; second class, $90, and third class, $50, subject to a commission of five per cent; and further we agree to furnish five free passages to Borne and return, and five for $100 each, and we promise to endeavor to secure free transportation for these five people from Naples to Borne and return; and we further promise that if we can see our way to reduce the-steerage or third class rate, by reason of any concession in rail fares which we may procure from the Italian Bailway Co., that we will do so. We also understand that prior to the sailing of the steamer one-half of the passage money for the round trip will be paid to us. ■ Please confirm this and much oblige.”
    Then follows of the same date this letter from the defendant’s agent:
    “ Gentlemen—I beg to acknowledge the receipt of your favor of this date regarding transportation of pilgrims from Mexico to Rome and return, and I beg to accept rates quoted therein from New York to Rome and return for said party to be transported per steamer Bolivia, on the 16th prox. Regarding the numbers of the party, I beg to say that my latest advice from Mexico, as mentioned in my previous letter of this date, that there is a probability that the party will exceed 250, but I have not been furnished with information as to the exact number of each class. I have telegraphed the first and second class capacity of Bolivia, and of course if our people exceed those numbers in either class, such excess numbers will have to adapt themselves to the accommodations which can be furnished.”
    Letters of date April 3, 1888, passed between the agents in which no reference is made to the subject of number of passengers. They contain nothing essential to the question in controversy.
    The plaintiff’s agents having been verbally advised by the defendant’s representative of the number of pilgrims who would constitute the excursion party, sent to the defendant’s agent the following letter of date April 12, 1888:
    “ Dear Sir—We were very much surprised to learn from your representative this morning of the great falling off in numbers of the Mexican excursion party from what were guaranteed in your letter of the 31st ult.' to us and for which we have been making preparations, namely : 75 first class, 75 second class and 100 third class passengers. Every other consideration having been sacrificed by us to accommodate this party, we beg to notify you that we shall hold you responsible for the passage money due to us on the number originally arranged for.”
    To which the defendant’s agent responded by letter of date April 13, 1888, as follows:
    “ Gentlemen—Upon my return I find your favor of 12th inst. regarding pilgrimage from Mexico to Rome. I beg to correct the impression which you seem to have, that my letters of 31st ult. guaranteed you 75 first class, 75 second class and 100 third class passengers; those letters contained information as to the size of the party exactly as I received it from Mexico, namely, ‘ that there is a probability that the party will exceed 250,’ and in fact one of the letters distinctly stated that no information had been received as to the number of people in each class. Your Mr. Martin has seen all recent telegraphic correspondence between our people at Mexico and this office upon the subject of this pilgrimage, and while I have expected that the numbers would be in accordance with the indications contained in such telegrams, I have made no definite guarantee either verbally or in writing, and moreover had you been guaranteed 250 people it would have been unnecessary for you to have made daily inquiries during the present week as to the number in the party as you have done. As shown in the telegram of which a copy was left at your office yesterday this pilgrimage has proved a partial failure, ami can result in no profit to the Mexican Central Railway or any of the other railways in interest.”
    The Bolivia sailed on the 16th of April, and the number of pih grims furnished by the defendant was sixty-four first class, thirty second class, and forty third class passengers. In the event the plaintiff was entitled to recover as for breach of contract the damages amounted to $5,471. The court refused to direct a verdict-for the defendant, and directed a verdict for that sum for the plaintiff. Exceptions were taken by the defendant to such refusal and direction.

      S. F. Kneeland and J. Lewis Stackpole, for app’lt; Joseph B. Shoudy, for resp’t.

       Reversing 32 St. Rep., 1092.

   Bradley, J.

The question at the trial was treated by the parties as one of law merely. If, therefore, the evidence warranted the recovery by plaintiff, the verdict as directed may be sustained,, although the result may have required the determination of a question of fact. Kirtz v. Peck, 113 N. Y., 222; 22 St. Rep. 733 The parties evidently expected that the number of pilgrims from Mexico to be by the plaintiff transported on its steamship Bolivia from the city of New York to Naples, thence by railroad to the city of Rome, Italy, and in like manner returned to New York, would be at least two hundred and fifty. The plaintiff charges-that the defendant, by agreement, undertook to furnish for such purpose that number, to consist of seventy-five first class, seventy-five second class, and one hundred third class passengers, which would enable the plaintiff to receive as fare for each, in the first, class one hundred and forty dollars, in the second class ninety dollars, and in the third class fifty dollars. The interest of the defendant was apparently in the transport of passengers over its railroad in Mexico, and with a view to that sought the means of conveyance for the pilgrims the round trip to and from Rome. The defendant contends that it did not undertake that the plaintiff should have that or any definite number of passengers, or of any specific number of each or any one of the classes from Mexico for its steamship. And the determination of this controversy is dependent upon the import of the correspondence between the agents representing the parties in the city of New York.

It seems from the letters that the matter had been the subject of some conversation between them, but what that was does not appear. The earliest letter was March 24, 1888, from the defendant’s agent, to the effect that he was advised by his people in Mexico that upon favorable terms they could secure a party of about 175 to 200 people, with a possibility of increasing the number. In the answer of March 27, to this, the plaintiff’s agents, without further reference to number, gave the rates at which the passengers would be transported the round trip as $140 for first class, $90 for second class and $50 for third class. No definite number had then been mentioned. But for evidence of the alleged contract reliance is had upon the correspondence of March 31, which was opened by the defendant’s agent, to the effect that he was advised by telegram from Mexico that “ there is a probability that there will be 250 people or more ” in the party. Then follows the letter of same date to him. from the plaintiff’s agents, in which they say, “ referring to your favor of 31st inst. and convernations had with you by our representative regarding transportation * * * we beg to confirm the understanding arrived at between us, viz.: that you will ship not less than 75 first class, 75 second class and 100 third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return at the following rates.” Then they proceed to state the rates as before mentioned with some further matters of detail, and close the letter with the words: “ Please confirm this and much oblige.” By this letter the plaintiff's agents assume to state an understanding between them and the defendant’s agent. But as no evidence of any definite understanding in respect to the number of pilgrims to constitute the party for transportation prior to that letter appears in the record, the statement in the letter must be treated as a proposition on the part of the plaintiff. And to give it the effect of a contract between the parties the acceptance or adoption of it by the defendant was essential. Hough v. Brown, 19 N. Y., 111.

By letter of the same date in reply the defendant’s agent says: I beg to accept rates quoted therein from New York to Rome and return for said party to be transported by Steamer Bolivia on 16th prox. Regarding the numbers, I beg to say that my latest advice from Mexico mentioned in my previous letter of this date that there is a probability that the party will exceed 250, but I have not been furnished information as to the exact number of each class.” He does not in terms comply with the request in the letter of the plaintiff’s agents to confirm the understanding there expressed, but makes reference to and repeats-what lie had said in his previous letter in respect to his advice from Mexico on the subject of the number of passengers and disclaimed information of their classification as such.

This is not a case of conflict in evidence.' The question is one of construction and effect of the written correspondence between the representatives of the parties, and the plaintiff in support of its recovery is entitled to the benefit of any inferences which may legitimately arise in that behalf. While the entire ■correspondence is the subject of consideration for that purpose, the question whether the defendant’s agent accepted, adopted or assented to the proposition of the plaintiff is dependent mainly on his last letter of the 31st of March. He did there accept the rates. But is the inference permitted that he intended to assent to the proposition in respect to the number which should constitute the party of pilgrims for transportation by the plaintiff? There does not seem to be anything equivocal in expression for interpretation as there was in Justice v. Lang, 52 N. Y., 323, 326. His reference to “ said party ” was applicable to the persons "who should come from Mexico to be so transported.

It seems that he had only such information on the subject of the number constituting it as he had received by communication from there, and his statement in that respect was a qualified one. His expression of probability that the party would exceed 250 cannot bo construed as an undertaking that there would be at least that number. It indicated only an expectation derived from advices he had received from Mexico on" the subject This is the rational and only meaning which can fairly be given to it. Such expectation Was undoubtedly also entertained by the plaintiff. And in its behalf it is contended that some effect must be given to the reference in the letter of its agents to prior conversations in support of the understanding expressed in such letter; and that assent to it may be inferred by the omission of the defendant’s agent in his letter to specifically controvert the statement so made of an understanding. But it may be observed that in the same letter the defendant’s agent is requested to confirm what was asserted in the letter to him. Without evidence that this statement in that letter was strictly in accordance with some prior verbal arrangement, it did not tend to prove that such was the fact. It follows that without any answer to the letter, or with one, unless by it the terms so expressed were adopted, no contract would be consummated between the parties to that effect. The acceptance without qualification of the plaintiff's proposition was essential to such result. Hough v. Brown, 19 N. Y., 111; Brown v. N. Y. C. R. R. Co., 44 id., 79; Myers v. Smith, 48 Barb., 614; Eliason v. Henshaw, 4 Wheat., 225; National Bank v. Hall, 101 U. S., 43; McCotter v. City of New York, 37 N. Y., 325.

In Chicago, etc., Ry. Co. v. Dane, 43 N. Y., 240, the defendant by letter agreed to receive from the plaintiff in the port of New York and transport to Chicago not exceeding 6,000 tons of railroad iron at a specified price during certain months mentioned. The plaintiff by letter to the defendant stated that it assented to the agreement and would be bound by its terms. It was there held that the partiés had made no binding contract, because, although the plaintiff had assented to the proposition it had not undertaken to deliver any iron for transportation. In that respect there the promise was treated as unilateral. In the present case the plaintiff’s proposition embraced the elements of a contract between the parties, and the adoption of it by the defendant would impose upon it the obligation which its terms purported to create. But the difficulty is that the defendant’s letter did not supply the requirement to constitute a contract on its part to furnish for transportation the number of pilgrims specified in such proposition, nor of the respective classes there mentioned. There was no •ambiguity in the language employed by the defendant’s agent in his letter on the subject. The expressed probability in that re.spect at most imported only supposition or belief founded upon expectation as to the number of pilgrims or that it would equal or exceed that which the plaintiff had in view. Something more, either expressed or implied, was requisite for an undertaking that any specific number would be furnished to take passage in the plaintiff's steamship. The purport of it was that the defendant’s agent gave those of the plaintiff the information he had received from Mexico, and nothing appears here tending to show that it was not correctly and in good faith given by him to them. He gave them the same expectation he had derived from communications received on the subject If he had been willing to do so he may have given a guaranty to that effect But no such intent is furnished by anything appearing in any of his letters. He wanted to advance on their pilgrimage those brought over the defendant's railroads, and the negotiation was had in that view with the plaintiff’s agents. . The latter desired to be informed of the number in the party. The defendant’s agent first said he was advised by communication from Mexico that there could on favor-' able terms be secured 175 or 200 pilgrims, with probability of increasing the number; and later that he was in like manner advised that there was a probability that there would be 250 or more for the trip. Immediately following this last communication to the plaintiff’s agents their proposition was made, and in reply the information so received by him was referred to and repeated.

We find in this or in all the correspondence together no evidence of intent on the part of the defendant through its agent to-undertake or guarantee that any specific number of Mexican pilgrims should be furnished for transportation by the plaintiff, or to assent to any understanding to that effect. And so far as related to the numbers of each class, the plaintiff’s agents were advised that the representative of the defendant had no information. And afterwards by letter on the part of the plaintiff, of date April 5thr this was recognized and the defendant’s agent was requested to ascertain by wire “ the numbers in each class and the numbers of women in each class, and if possible the number of half fares.” The adoption in all respedts of the proposition of the plaintiff was; essential to its conversion into a contract between the parties.

There is no opportunity for the purposes of the contract to distinguish between the specific number referred to and the excess of it. By the statement of his information received, that there was a probability that the number would exceed 250, the defendant’s; agent cannot be deemed, upon any construction to which his language was entitled, to have intended to enter into contract to furnish such number of passengers, nor is it open to interpretation which would justify inference to that effect.

In the view taken of it there is in the evidence presented by the record no support for the contract alleged in the complaint. Although the expectation founded upon the statement so made by the defendant’s agent may have led to preparations prejudicial to the plaintiff, it is not seen that defendant (assuming it acted in good faith) is chargeable with the consequences. Nor does it follow that, as suggested by the court below, the plaintiff was bound to proceed with the number of such passengers who' did appear for transportation. By having made the proposition the plaintiff, if so advised, may have required compliance with it as a condition of proceeding on the voyage to Naples, or of carrying those passengers at any special rates.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event.

1A-L Lett, Ch. J.,

(dissenting).—It is apparent from the correspondence, that the rate to be charged per passenger by the plaintiff was largely dependent on the number to be carried, that both parties so understood it, and that the negotiations between them were conducted on that basis. This being the understanding, the plaintiff’s agents wrote to defendant’s agent, as follows:

March 31st, 1888.

G. W. Keeler, Esq., General Eastern Agent, Mexican Central Ry.

Co., Ltd., New York:

“ Dear Sir: Referring to your favor of the 31st inst, and conversations had with you by our representative, Mr. Martin, regarding transportation of Mexican pilgrims from New York to Rome and return, by our S. S. ‘Bolivia,’ to sail from this port for Naples about the 16th proximo, and to return from that port about thirty days after their arrival there, we beg to confirm the understanding arrived at between us, viz: that you will ship not less than 75 first class, 75 second class, and 100 third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates: for first class, one hundred and forty dollars; second class, ninety dollars, and third class fifty dollars, subject to a commission of 5 per ■cent., and further we agree to furnish five free passages to Rome and return, and five first class passages to Naples and return to New York for one hundred dollars each; and we promise to endeavor to secure free transportation for these five people from Naples to Rome and return; and we further promise that if we can see our way to reduce the steerage or third class rate, by reason of any concessions in rail fares, which we may procure from the Italian Ry. Co., that we will do so. We also understand that prior to the sailing of the steamer, one-half of the passage money for the round trip will be paid to us. Please confirm this, and much oblige. Yours truly,

“ Henderson Brothers.”

It is said that the following language amounts to a proposition ■only. “We beg to confirm the understanding arrived at between us, viz: that you will ship not less than 75 first class, 75 second class, and 100 third class'passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates.” I think it is more than a proposition. It asserts the existence of an understanding arrived at between the parties, by letters “and conversations.”

If the defendant did not concede the existence of the understanding, it was its duty to have denied it. Gibney v. Marchay, 34 N. Y., 301-305; Whart Ev., § 1136; Green. Ev., § 197,. et mj. It is now in the same position as though it had stood bv and heard the other party assert that a material fact existed ami had failed to deny it. After having contracted with the plaintiff without denying the truth of the assertion of the existence of this material fact, the defendant cannot now say that the assertion was untrue. But if it be assumed that there is •no evidence of a previous understanding as to the number of passengers to be furnished by the defendant and that the plaintiff’s letter of March 31st, amounted to a proposition only, the result is not changed. The plaintiff’s proposition was an entire one, and the acceptance not being qualified or limited in its terms, should be held to be an acceptance of the proposal as-made. I think the correspondence shows that the rates per passenger were agreed to upon the understanding that not less than 250 were to be furnished. It cannot be said that had the defendant offered fifty or one hundred passengers, the plaintiff' could have been required to carry them at the rates named.. I think the supreme court correctly 'construed the contract and that its judgment should be affirmed, with costs.

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

All concur, except Follett, Oh. J., Parker and Random, JJ.,, dissenting.


author: Haight, J.

text:
    Smith Ryder, App’lt, v. The Bushwick Railroad Co., Resp't.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Corporations—Action to compel issue of stock—Specific performance.
    Defendant’s directors appointed five of their number to act as an executive committee to have general direction of the affairs of the company, hut no power was §iven to them to issue stock. The president, however, upon their authority issued certificates of stock. The board of directors did not authorize or ratify this action and plaintiff was not purchaser in good faith for full value. Held, that- plaintiff could not compel defendant to issue the stock to him upon said certificates, account for dividends, etc.
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a decision dismissing the plaintiff’s complaint upon the merits.

      Charles S. Simpkins, for app’lt;. Thomas S. Moore, for resp’t..

       Affirming 33 St. Rep., 1105.

   Haight, J.

This action was brought to compel the defendant to issue to the plaintiff certificates for thirty shares of its capital stock and to place his name on its books as the owner thereof,, and to account of and concerning the dividends declared by the defendant thereon and the interest on such dividends from time-to time, and to pay the same over to the plaintiff; and that in default thereof the plaintiff have judgment in the sum of $5,190,. with interest thereon, etc., together with the value of the dividends, declared, etc.

The defendant is a corporation organized under the laws of this state and is engaged in operating a railroad in connection with its main line known as the Tompkins Avenue Branch in the city of Brooklyn. By its articles of incorporation it was authorized to-issue stock to the amount of $500,000, all of which has been issued.

In the months of March ' and May, 1868, its president, F. W. Kalbfleisch, issued the five certificates in question. They are in. form ás follows:

“ Bush wick Railroad Company,

“ Tompkins Avenue Branch,

“ Brooklyn, March 25, 1868.,

“ This certifies that- -is entitled to five (5) shares

of the capital stock of the Bush wick Railroad Company upon surrender of this certificate at the company’s office.

“F. W. Kalbfleisch, President

“$500.

“ Shares $100 each.”

The plaintiff claims to have purchased these certificates in the open market, and on the 3d day of February, 1886, presented them at the defendant’s office, and demanded that new stock should be issued to him and that his name should be entered upon the books of the company as the owner. The defendant, through its secretary, refused, and this action was brought.

It appears that the directors of the defendant consisted of thirteen stockholders ; that they had appointed of their number five to act as an executive committee who were to have the general direction and superintendence of the affairs of the company and were vested with full authority for constructing, repairing, equipping and operating the road, etc. But no power was given to them to issue stock.

The certificates in question, however, were issued by the president upon the authority of the executive committee.

The trial court has found, as facts, that such certificates were not issued by the authority of the board of directors; that they had not ratified such issue, and had not authorized the executive committee or the president to issue the same, and that the plaintiff was not a purchaser in good faith for full value.

Our examination of the case leads us to conclude that the findings are supported by the evidence.

We regard these findings as disposing of the case, for if the certificates were not legally issued and the plaintiff is not a bona fide holder, he is pot entitled to the relief demanded. Barnes v. Brown, 80 N. Y., 527, 534; Burrall v. Bushwick R. R. Co., 75 id., 211; N. Y. & N. Y. R. R. Co. v. Schuyler, 34 id., 30.

"The judgment should be affirmed, with costs.

All concur.