text:
    Harrison P. Bishop, Resp’t, v. Gilbert S. Mosher et al., App’lts.

      Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    ■Constable—Sale of exempt property under execution an official act.
    The taking and selling by a constable by virtue of an execution property exempt therefrom, is so far an official act as to render his bondsmen liable for damage.
    Appeal from an interlocutory judgment entered in Cattaraugus -county, overruling a demurrer to the complaint.
    This action is against the defendants, as sureties upon the official bond of Joseph C. Cole, a constable of the town of Little Yalley. The complaint alleged the recovery of a judgment in the justice’s court against the plaintiff, Harrison P. Bishop, the issuing and delivery of an execution to Gole, as constable, directing him to satisfy the judgment out of the personal property of this plaintiff (the defendant therein), within the county of Cattaraugus, not exempt from levy and sale by virtue of an execution; Dole, acting under and by virtue of the execution, levied upon a large amount of personal property belonging to the defendant in «aid execution; some of the property so levied on was exempt from levy and sale by virtue of an execution; the plaintiff duly claimed said exemption, and forbade the sale of the exempt prop•erty; Cole, notwithstanding such claim of exemption, sold all of the property, including that which was claimed to be exempt.
    The exempt property consisted of a pair of horses, double harness, a drag, mowing machine, one pair heavy bob-sleds, and one heavy set of trucks used as a wagon. The defendant in said execution was a householder; the described property was necessary for the carrying on of his business. The exempt property was worth $250. A judgment was recovered against the constable, for the value of said exempt property, in a justice’s court. An ■execution was duly issued on said judgment, and returned wholly unsatisfied. Cole was, at the time of the levy and sale under the ■execution, a constable of the town of Little Yalley. The defendants had duly executed under their hands and seals a bond whereby they jointly and severally agreed to pay to each and every person who might be entitled thereto, all such sums of money as the said -constable might become liable to pay on account of any execution which should be delivered to him for collection; and also pay «each and every person any damages which he might sustain from •or by any act or thing done by said constable, by virtue of his office of constable. A demurrer was interposed to the complaint, the objection thereto being that it failed to state facts sufficient to «constitute a cause of action; the demurrer was overruled and an interlocutory judment entered, and from that judgment an appeal was taken to this court.

      W. S. Thrasher, for app’lts; Charles Z. Lincoln, for resp’t.
   Lewis, J.

The defendants contend that it having been ad-' judged that the constable had no right under his execution to sell the exempt property, he committed a trespass in so doing, and that they as sureties are not liable for his act The constable did not commit a trespass in levying upon the exempt property; the exemption was a privilege personal to the defendant in the execution ; he could claim it or not, as he wished. Sullivan v. Farley, 63 How., 371; Brooks v. Hathaway, 8 Hun, 290.

Hpon being notified by the defendant that he claimed the exemption, it was the duty of the constable to investigate the facts, and determine as well as he could whether it was in fact exempt property. He was required to determine whether the defendant in the execution was a householder, or had a family for which he was providing, and whether the articles mentioned were necessary for defendant as such householder, etc. The determination of this question was in the line of his duty as a constable. When he carne to the conclusion that the property was not exempt, and determined to sell, he assumed to proceed by virtue of his office as constable. It was thereafter determined by the judgment of the court that the property was in fact exempt from levy and sale, and that the constable had no right to sell it and that he was liable in an action for trespass for the value of the property. Every act performed by him he claimed to do in his official capacity as constable; he applied the proceeds of the sale, we ■assume, to the satisfaction of the execution.

The question here presented has been much litigated in the •courts of this and other states, and it is difficult to reconcile all of the decisions, the weight of authority m this state sustains the plaintiff’s contention that the selling of this exempt property was an official act, an act done by virtue of his office as constable.

It was held in Cumming v. Brown, 43 N.Y., 514, that the taking by a deputy sheriff of the property of another by virtue of an attachment against the debtor’s property, and selling the same under execution, to satisfy a judgment in the action, were official acts.

In the People v. Schuyler, 4 N. Y., 173, the defendants were sureties of a sheriff upon a bond conditioned for the faithful performance of the duties of his office, etc. The sheriff, by virtue of an attachment against the property of an absconding debtor, seized and sold the goods of another person. It was held that the act constituted a breach of the official bond of the sheriff, and that an action on the bond would lie against him and his sureties • in behalf of such owner. It is difficult to distinguish between the liability of sureties upon an official bond conditioned for the faithful performance of the duties of an office, and one conditioned to pay damages which may be sustained by any act or thing done by virtue of the office of an official. In either case,, when committing a trespass, it may with considerable plausibility be argued that he was not performing an official act; that the act was beyond and outside of his office.

The doctrine of the case of the People v. Schuyler has been approved by the courts of this state, and of the United States.

In Lammon v. Feusier, 111 U. S., 17, Justice Grey in an elaborate opinion reviews the authorities, and holds that a marshal and his sureties are liable, where the marshal levies upon the property of another on a process against defendant.

A justice of the peace, sued for malicious prosecution, is sued for an act done by virtue of his office. 6 Johns., 109

The appellants’ coúnsel claims that the case of the People ex rel. Comstock v. Lucas, 93 N. Y., 585, is in conflict, with the doctrine of the People v. Schuyler, supra. The condition of the bond in the Lucas case was that the constable would pay over to the persons entitled thereto all such sums of money as he should become liable to pay on account of any execution delivered to him for collection. . The alleged breach consisted in seizing the goods of a third person under an execution against the property of another. The court held that the sureties were not liable, because of the special and limited language and purposes of the bond. This case does not disturb, we think, the doctrii w of the People v. Schuyler.

The officer in this case and the officer in the Schuyler case were both attempting to carry out their instructions. In doing so they performed acts which gave a cause of action against tlx m, but what each did pertained to the duties of his office; he was attempting to perform an official .duty. It is not alleged in the complaint that Cole acted in bad faith in selling the exempt property of the plaintiff.

Although the question here presented is perhaps not free from doubt, we are of the opinion that the selling of the exempt property by Cole was an act done by virtue of his office of constable, and that his sureties are liable upon their bond to the plaintiff for the damages he sustained thereby.

The judgment appealed from" should be affirmed, with costs, with leave to'the defendants to answer the complaint within twenty days after service of a notice of the entry of judgment upon payment of the costs.

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of the Application of The City of Rochester, to acquire Lands for Park Purposes.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    2. Eminent domain—Park act—Chap. 193, Laws op 1888—Provision to sell.
    The provision of chap. 193, Laws of 1888, authorizing the city of Rochester to acquire lands for a park, that the city may sell at any time at public auction any lands purchased or condemned for that purpose which may be found to be unnecessary, is usual in park acts and does not render the act void. It cannot be construed to authorize the purchase or condemnation of land with the view of selling it.
    3. Same—Setting aside award by appellate court.
    When commissioners appointed to ascertain and report the just compensation that should be paid for lands taken by a city for park purposes hear witnesses of the owner and of the city in regard to the value of the proper, y and view the same themselves, an appellate court will not set aside their award or reverse the decision of the special term confirming the report, unless it is made to appear that the sum awarded was grossly inadequate and unequal in comparison with other valuations.
    Appeal by William H. Robinson from a special term order granted March 26,1891, appointing three commissioners to ascertain and report the just compensation that should be paid for lands of the appellant and others, and from an order of said court made August 31, 1891, confirming the report of said commissioners.

      John Desmond, for app’lt; Edward Harris, for resp’t.
   Lewis, J.

By chap. 193 of the Laws of 1888, the city of Rochester was authorized to acquire lands for a park for said city. Commissioners for that purpose were named in the act. The act contains the usual provisions found in the various park .acts passed from time to time - for other cities of the state. An examination of the records shows that all the proceedings were complied with which were required by the act to be taken for the •purpose of condemning the appellant’s lands. The act contains adequate provisions for compensation for lands taken. The fee ■does not vest in the city until it is paid for. The provision that the city'may sell at any time, at public auction, any lands purchased or condemned for purposes of the park which may be found to be unnecessary, is usual in park acts. The power is given to procure land for park purposes only.

In laving out and arranging the lands that may be acquired into ■a park, if it be found that land taken is not needed for park purposes, the act provides that the city may dispose of it at public auction. It is not apparent why such a provision should be held to make the act void. It will not bear the construction that it gives authority to the commissioner to purchase or condemn land with a view of selling it. The principal contention of the appellant is that the commissioner did not award him what his land was worth. His exceptions relate solely to that question. The appellant’s testimony before the commissioners tended to show that there was a quantity of clay on the portion of his land selected by the city which was adapted to the manufacture of brick and mineral paints. His witnesses entered into a detailed estimate of the quantity of clay found upon the land which was suitable for the purposes mentioned. They gave hypothetical calculations as to what could be produced by converting the clay into brick and mineral paint, and from these calculations drew inferences as to the value of the land; and in the same manner they estimated the value of a portion of the appellant’s land because of the presence therein of some layers of rock. Such evidence is nofc very convincing, and is frequently quite unsatisfactory and misleading. . These theories were combatted by witnesses called by the-city; their evidence tended to show that the appellant’s witnesses-were in error as to the quantity and quality of clay and stone found upon the appellant’s land, and as to its adaptability to the manufacture of brick or paint. A number of witnesses were called by the city, who placed the value of appellant’s land at much less than -the amount awarded by the commissioners. The commissioners viewed the premises, as the act required they should, and they thereby presumably acquired important information, which aided them in fixing values.

_An appellate court will not set aside an award of commissioners in such cases or reverse the decision of the special term confirming their report, unless it is made to appear that the commissioners adopted some wrong principle in arriving at the value: of the land, or unless the sum awarded be grossly inadequate and unequal in comparison with other valuations. Matter of Boston Road, 27 Hun, 409; Matter of N. Y., L. & W. R. Co., id., 116.

We are satisfied from a perusal of the evidence that this is nob a case for reversal because of inadequacy of compensation. The appellant’s exception to the admission of the evidence that the quality of clay upon his land existed in large quantities upon other lands in the vicinity, was not well taken. One of his witnesses, in describing the quantity and quality of clay upon the appellant’s land, stated that he did not know of any other similar deposit of clay in that locality; and when the counsel for the city proposed to controvert this evidence by showing that there were hundreds of acres of better clay and better stone in the vicinity of Rochester, the appellant’s counsel objected.

This evidence was proper not only because it controverted material and competent evidence introduced by the appellant, but for the further reason'that it tended to show that the clay upon appellant’s land was so common, and found in such large quantities in the neighborhood, that the theories and calculations of the appellant’s witnesses were erroneous and misleading. And it further negatived the claim that the appellant had a practical monopoly of that quality of clay.

We have examined all the exceptions taken by the appellant, and find nothing in them justifying a reversal of the orders appealed from. The report of the commissioners was fully sustained and justified by the evidence. The orders appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    In the Matter of the Application of The Lake Shore & Michigan Southern Railway Company to Appraise Certain Lands of Frederick Brinkman et al.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    2. Eminent domain—Title 1, chap. 33, Code Crv. Pro.—Power of court to grant additional allowance—Trial fee.
    In condemnation proceedings instituted under title 1 of chapter 33 of the

      Code, the defendants interposed an answer, but, by stipulation, it was withdrawn. On application at special term for confirmation of the commissioner’s report, delendants asked for costs as in an action where a trial had been had, and for an additional allowance. It was conceded that no offer' had been made by plaintiff to purchase the property at a specified price. The court denied defendanis’ application, on the ground that it had not the power to grant it; allowing him twenty-five dollars, defendants’ cost of course before trial. Held, that the court has power to grant an additional allowance of costs where no offer to purchase has been made, even where no answer has been interposed, and the proceeding was not difficult or extraordinary, but that the hearing was not a trial, and that defendant was not entitled to a trial fee.
    3. Same.
    In such proceeding the amount of costs to be recovered is not controlled by subdivision 3 of § 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a reference, nor is it controlled by § 1015, for it is not the taking of an account.
    Appeal from so much of the order of the Erie special term, confirming the report of commissioners, as denies the application for .a direction that the defendants recover of plaintiff the costs of the proceedings as in an action where a trial has been had, and as •denies the application of defendants for an additional allowance of •costs.

      Norris Morey, for app’lts; Daniel H. McMillan, for resp’t.
   Lewis, J.

This is a proceeding instituted under title 1 of chapter 23 of the Code of Civil Procedure, entitled “ Proceedings for the Condemnation of Real Property. ”

On presentation of the petition, the defendant Brinkman interposed an answer, but by stipulation of parties the answer was withdrawn and the proceeding thereafter was continued practically as if no answer had been interposed. Mo testimony was given before the commissioners nor considered by them except the question as to the value of the premises to be acquired, and they thereafter made their report that there should be paid to the defendants for the property condemned the sum of $550. On the application at special term for confirmation of the commissioners’ report, the defendants appeared and made no opposition to the confirmation, but asked that the order direct that defendants recover of the plaintiff costs of the proceeding as in an action where "trial has been had, and for an additional allowance of costs. It was conceded upon the hearing of the motion that no offer had been made by the plaintiff to purchase the property at a specified price. The report was confirmed. The defendants’ application was denied for the alleged reason that the court had not the power to grant it. There was allowed by the order, to the defendant Brinkman, twenty-five dollars together with disbursements.

Title 1 of chapter 23 of the Code of Civil Procedure was passed in 1890. It provides a new and complete system of practice for the condemnation of real property, which resembles in its main features the practice in ordinary actions. The proceeding is instituted by the service of a petition upon the owner of the land .sought to be condemned in the same manner as an ordinary summons is served, with a notice of a time and place that it will be presented to a special term of the supreme court. On presentation of the^ petition, the owner may appear and interpose art answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, or a statement of new matter constituting a defense to the proceeding. The issues thus'raised are tried by the court, or referred to a referee to hear and determine. Exceptions may be filed and reviewed in the same manner as in ordinary actions. If judgment, is in favor of the defendant, the petition will be dismissed with costs, to be taxed by the clerk, at the same rates as áre allowed, of course, to a defendant prevailing in an action in the supreme court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition-that the petitioner is entitled to the relief demanded, judgment, shall be entered adjudging that the condemnation of the real property described is necessary for public use, and commissioners-are thereupon appointed. Section 3372 makes provision for cases-where answers are not interposed. It provides that the petitioner may, before he serves his petition and notice, make a written offer to the owner to purchase the property at a specified price, and the owner may, at the time of the presentation of the petition, or at any other time previously, give written notice of his-acceptance of the offer, and upon filing the petition, with proof of the offer and its acceptance, an order may be entered that upon payment of the compensation agreed upon the petitioner may enter into possession of the property and hold the same for public use.

If the offer is not accepted, and the compensation awarded by the commissioners does not exceed the amount of the offer, with interest from the time it was made, no costs shall be allowed to-either party. If the compensation awarded shall exceed the amount of the offer, with interest from the time it was made, or if no offer be made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding,, to be taxed by the clerk, at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before- and after notice of trial, and the court may also grant an additional allowance of costs not exceeding five per centum upon the-amount awarded.

The legislature obviously intended by this section to provide-indemnity to an owner who has been subjected to the expense of an investigation in case of the failure of the petitioner to make a. preliminary offer for the property. The steps in the proceeding are similar to those for the commencement and prosecution of an ordinary action. The petition is served in place of a summons. The owner is required to appear and look after the appointment of the commissioners. He is subjected to the trouble and expense of preparing for the hearing by procuring witnesses.. There is the same necessity for counsel as in oruinary actions. The hearing in such cases frequently consumes considerable time. The questions involved are sometimes intricate, especially in cases where the land taken forms a part of a larger tract owned by the defendant, and the question, therefore, of damages to the remaining land is involved. The provision as to an allowance of additiirnal costs does not depend, as in § 3253, upon an answer having ■been interposed, or upon the proceeding being difficult and extra■ordinary. No such condition is contained in the section, but the court is given the discretion to grant an additional allowance of costs when no offer has been made, as in this case. This provision was undoubtedly inserted with a view of giving the court the discretion of granting an additional allowance of costs for the purpose of compensating the owner in a proper case for the expense •he may have been subjected to in summoning witnesses and attending the hearing before the commissioners with his counsel.

In ordinary real estate purchases, the would-be purchaser negotiates with the owner as to the price to be paid for the land. When, lands are to be condemned for public use, the petitioner is required by § 3372 to enter into negotiations with the owner, and make a reasonable offer for the property, or incur the liability ■to pay costs to the owner. The amount of costs to be recovered is not controlled by subdivision 3 of § 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a reference. Neither is it controlled by § 1015, for it is not the taking of an account. Defendant was clearly entitled to the items Of ten and fifteen dollars allowed him for proceedings before and after notice of trial. They are expressly mentioned as items of ■costs to which he was entitled. In ■ the memorandum of decision of the court at special term,- printed in the case, the learned justice states: “ I think this is a proper case for allowance of costs, including trial fee as in an action, and for extra allowance, if the court had the power to grant it.”

We think the court had the power to grant an extra allowance ■of costs, and should have allowed to the defendant as an additional allowance of costs the sum of $27.50, being five per centum upon the amount awarded.

Whether the defendant is entitled to a trial fee is a more difficult question. There was no issue of fact or of law in the proceeding. Sections 3367 and 3372 speak only of trials in connection with issues raised by an answer. Strictly speaking, the hearing before the commissioners is not a trial. It is more like an assessment of damages in an ordinary action where no answer has been interposed. While the question is not free from doubt, we are inclined to think that the appellants was not entitled to a 'trial fee. The portion of the order appealed from should be modified so as to give the defendants, in addition to the twenty-jive dollars and the disbursements, the sum of $27.50 as an additional allowance of costs, and the defendants should recover of the plaintiff costs of the appeal.

Dwight, P. J., and Macomber, J., concur.


author: O'Brien, J.

text:
    Walter V. Wilson, Resp’t, v. The City of Troy, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Municipal corporations—Negligence.
    Tiie system of water works in Troy is the property of the municipalitr and is under the management and control of a board of water commissioners, whose rules prohibit any person except the superintendent and his employees from tapping a mom. An owner who wished water employed a. firm of _ plumbers, wno applied to the superintendent for men to open the trench in the street, and that officer directed laborers in the employ of the city to do so. The city paid them, the plumbers refunding the sum paid. In an action for damages sustained through a horse falling into the unguarded ditch, Held, that the question as to whether the men who dug it were under the control and direction of defendant or subject to the orders, of the plumbers was one of fact for the jury.

      2. Same—Damages—Interest.
    In an action to recover damages to property by reason of negligence on. the part of the defendant it is within the power of the jury in the exercise-of discretion to include in their award of damages interest on the sum. found to represent the diminished value of the property in consequence o£ the injury from the time that .the cause of action accrued.
    (Earl, Oh. J., Finch and Gray, JJ., dissent.)
    Appeal from judgment of the supreme court, general termr third department, affirming judgment in favor of plaintiff entered on verdict and order .denying motion for new trial.

      William J. Roche, for app’lt; Charles E. Patterson, for resp’t.

       Affirming 38 St. Rep., 382.

   O'Brien, J.

The record in this case presents two questions ^ First, whether the finding of the jury that the damage was the result of the defendant’s negligence is sustained by any evidence, and, secondly, whether interest could legally be allowed by the jury in estimating the amount of the damages.

On the night of the 13th of November, 1879, a valuable horse belonging to one Learned, while being driven through South, street in the city of Troy, fell into an open ditch or unguarded excavation, made during that day, and was permanently injured. There is little, if any, controversy with respect to the value of the horse, the extent of the injury or the amount of damages. The night was dark and it is not denied that there was evidence for the jury sufficient to sustain a finding of negligence on the part of some one by reason of the failure to protect a place of danger,, in a public street, by proper guards and lights. It was not shown, that the city had any actual notice of the existence of the excavation if made by private parties without its permission, and a. sufficient period had not elapsed between the time of opening it, and the accident to render the city liable on the ground of implied notice. The excavation was made for the purpose of conducting the water from the principal main in the street, through lateral pipes, into a private house. The owner of the house employed a firm of plumbers to do the work, which included the-digging of the trench as well as laying and connecting the lateral pipes with the main in the street. The firm applied to the superintendent of the water works for men to open the trench in the street, and that officer directed laborers in the employ of the city to do so.

The opening in the street was made by them and they were paid for the work by the city, the plumbers refunding to it the sum so paid. The question is whether the men who dug the ditch were under the control and direction of the defendant, or subject to the orders of the plumbers engaged in performing a piece of work for the owner of the house.

The system of water works in Troy is the property of the municipality and is under the management and control of a board of water commissioners, which may be regarded as a department, of the city government The commissioners are by law required to nominate and the common council of the city to appoint a superintendent of the water works, who is the executive officer in that department and who in this case directed the men in the employ and pay of the city to make the excavation in the street The board is authorized by law to extend the distributing pipes of the water works wherever they might think proper, and to-make such alterations and improvements in the works, and in the management and preservation thereof, as they might deem necessary and expedient, and to employ such persons and assistants as they might require to execute any of these purposes, which employees were to be paid for their services from the city treasury. The commissioners were also empowered to enact such by-laws, regulations and ordinances as they should deem necessary for the protection of hydrants and water pipes and the preservation, protection and management of the water works. These by-laws, unless disapproved by a vote of two-thirds of all the members of the common council of the city, were to have all the force and effect of law. In pursuance of the power thus conferred by the statute, the board of water commissioners enacted by-laws and ordinances on the subject which were in force at the time the excavation in question was made. They, in effect, prohibited any person except the superintendent, and those employed by him of by the commissioners, to tap, or make any connection with the main or distributing pipe, or permit the same to be done, unless by the permission and under the direction of the superintendent.

The learned counsel for the defendant contends that this regulation simply forbids the act of connecting the lateral pipes from the house with the main, and did not prohibit private persons from digging the necessary trenches and uncovering the main or distributing pipe, and hence that part of the work was done by the contractors, who were employed by the owner of the house to-make the connection, and not by the city. But a private individual had no right to dig in the street for this or any other purpose without the permission of the proper municipal authorities, and the obvious purpose, as well as the language of the ordinance, indicates that it was intended to prevent the uncovering of the main or any interference with the street, in which it was placed, by private parties. At all events the water board and its chief executive officer, the superintendent, in the discharge of the duties imposed upon them by the statute, might very properly give to it that construction and act accordingly. To hold that such a by-law did not embace within its object and purview the evils ¡that might result from unguarded and unregulated interference with the bed of the street by private parties,.in order to reach the .main, would be giving to it a construction altogether too narrow. 'The evidence tends to show that the water board gave to it the broader and more comprehensive meaning,; as it was the custom •and practice for years before the accident in question to make application to the superintendent for men to do the digging, and they were always furnished as in this case. As between the •owner of the house and the plumbers, employed by her to introduce the water into her house, the digging was undoubtedly a part of the contract or work of the latter. If no main had been placed in the street at that time they could also have contracted with her to procure its extension, but that part of the work would •be subject to the action and regulations of the water board, and while the contractors might be obliged to pay the city for the whole or some part of the expense, it would be none the less the work of the city. One of the plumbers testified that while he agreed with the owner of the house to do all the work, yet he knew then that it was the practice and custom to apply to the superintendent of the water works for men to do the digging and to make the connection, and acted upon the assumption that he had no right to do it. He also says that the men who made the excavation were not employed by him, but by the city.

We think that, upon the proof, it could not be held as matter •of law that the men who dug the trench and left it unguarded ceased for the time being to be the servants of the city and subject to the directions of the superintendent, and became, while doing this job of work, the servants of the parties employed to put in the lateral pipes into the house, as is urged by the learned counsel for the defendant. What party sustained the relation of master to the men who dug the trench and had the control and •direction of them, and was charged with the duty of directing them to properly guard the ditch, whether the plumbers on the one hand, or the city, through the superintendent of the water works, on the other; was the important question to be determined, •and the trial court submitted it to the jury. Under all the cir•cumstances the question became one of fact, and this disposition of it was not error. Ward v. New England Fibre Co., 154 Mass., 420. This finding of the jury is conclusive upon us, and imports that the city itself, through one of its officers or departments, •caused the trench to be dug and left it unguarded, resulting in the damage complained of. In such a case the negligent act is imputable to the city, and the doctrine of actual or implied notice has no application, or at least is unnecessary, where one injured by the neglect of the city to properly guard a place made dangerous by its own act brings the action. Pettengill v. City of Yonkers, 116 N. Y., 558; 27 St. Rep., 531; Walsh v. Mayor, etc., 107 N. Y., 220 ; 11 St. Rep., 401; Turner v. City of Newburgh, 109 N. Y, 301; 15 St. Rep., 93 ; Brusso v. City of Buffalo, 90 N. Y., 679 ; Russell v. Village of Canastota, 98 id., 496; Nelson v. Village of Canisteo, 100 id., 89 ; Ehrgott v. Mayor, etc., 96 id., 273 ; Barnes v. Dist. of Columbia, 91 U. S., 540.

The amount demanded in the complaint, on account of the injury to this horse, was $3,000, and the court instructed the jury that they could not, in awarding damages, go beyond that sum, with interest. The defendant’s counsel excepted to this in so far as it authorized interest, and requested the court to charge that, the jury could not allow interest in the action. The court declined to so charge, and the defendant’s counsel excepted. The-jury afterwards came into court and announced that they had found a verdict for the plaintiff for $3,000 and interest. The court then said: “ You must compute the interest if you give; interest; you will have to render your verdict in dollars and cents.”

This direction was complied with and the verdict as entered included interest from the date of the injury, which result has been modified by the general term by striking out the interest awarded prior to the date of the presentation of the claim to the city, which was held to be a prerequisite to the maintenance of the action. The fair construction of the charge is that the jury could include in the damages interest upon the sum found to represent the diminished value of the horse in consequence of the injuryr and not that the plaintiff was entitled to interest as matter of right. The exception, therefore, presents the question whether in an action to recover damages to property by reason of negligence on the part of the defendant it is within the power of the jury,, in the exercise of discretion, to include in their award of damages interest on the sum found to represent the diminished value of the property, in consequence of the injury, from the time that the cause of action accrued. When interest may be allowed as part of the damages, in actions of this character, is a question which in the present state of the law is involved in much confusion and uncertainty, and in regard to which the decisions of the courts are not harmonious. It is perhaps impossible from the decisions to formulate a general rule embracing every possible case. The tendency of courts in modern times has been to extend the right to recover interest on demands far beyond the limits within' which that right was originally confined. What seemed to be the demands of justice did not permit the principle to remain stationary, and hence it has been for years in a state of constant evolution.

. This, in some measure, accounts for many of the apparently contradictory views to be found in the adjudged cases. There are certain fundamental principles, however, established by the decisions in this state which, when properly applied, will aid in the solution of the question. There is of course a manifest distinction, always to be observed, between actions sounding in tort and actions upon contract. In the latter class of actions there is not much difficulty in ascertaining the rule as to interest until we eome to unliquidated demands. The rule in such cases has quite recently been examined in this court and principles stated that will furnish a guide in most cases. White v. Miller, 78 N.Y., 393. We are concerned now only with the rule applicable in actions of tort. 'The right to interest, as a part of the damages, in actions of trover and trespass de bonis asportatis was given first in England by •statute third and fourth William IV. .The recovery was not, however, allowed by that statute as matter of right, but in the dis•cretion of the jury. The earlier cases in this state followed the rule thus established in England, and permitted the jury, in their •discretion, to allow interest in such cases. Beals v. Guernsey, 8 Johns., 446; Hyde v. Stone, 7 Wend., 354; Bissell v. Hopkins, 4 Cow., 53; Rowley v. Gibbs, 14 Johns., 385. The principle that the right to interest in such.cases was in the discretion of the jury "was, however, gradually abandoned, and now the rule is that the plaintiff is entitled to interest on the value of the property converted or lost to the owner by a trespass as matter of law. The ¡reason given for this-rule is that interest is as necessary a part of a complete indemnity to the owner of the property as the value itself, and in fixing the damages is not any more in the discretion of the jury than the value. Andrews v. Durant, 18 N. Y., 496 ; McCormick v. Penn, C. R. R. Co., 49 id., 315; Buffalo & H. T. Co. v. Buffalo, 58 id., 639; Parrott v. Knickerbocker Ice Co., 46 id., 369.

It is difficult to perceive, any sound distinction between a case ■where the defendant converts or carries away the plaintiff’s horse .•and a case where, through negligence on his part, the horse is injured so as to be valueless. There is no reason apparent for a -different rule of damages in the one case than in the other. In an early case in this state the principle was recognized that interest might be allowed, by way of damages, upon the sum lost by the plaintiff in consequence of defendant’s negligence. Thomas v. Weed, 14 Johns., 255.

We think the rule is now settled in this state that where the value of property is diminished by an injury wrongfully inflicted, the jury may in their discretion give interest on the amount by which the value is diminished from the time of the injury. That is the rule laid down in the elementary books, and sustained by the adjudged cases. Sedgwick on Damages, 8th ed., vol. 1, §§ 317, 320; Walrath v. Redfield, 18 N. Y., 457, 462; Mairs v. Manhattan R. E. Ass’n, 89 id., 498; Duryea v. Mayor, 96 id., 477, 499; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182, 188; Moore v. N.Y. El. R. R. Co., 126 N. Y., 671; 37 St. Rep., 777; P. S. V. R. Co. v. Ziemer, 124 Penn. St., 560.

There is a class of actions sounding in tort in which interest is not allowable at all, such as assault and battery, slander, libel, ■seduction, false imprisonment, etc. There is another class in which the law gives interest on the loss, as part of the damages, •such as trover, trespass, replevin, etc., and still a third class in which interest' cannot be recovered as of right, but may be allowed in the discretion of the jury according to the circumstances •of the case. This action belongs to the latter class, and as we have construed the charge as a direction that the jury might in their discretion allow interest on the diminished value of the horse, it was not erroneous.

Our attention has been called to the case of Sayre v. The State, 123 N. Y., 291; 33 St Rep., 156, and it is urged, upon the authority of that case, that interest cannot be allowed in any case for the recovery of unliquidated damages arising from negligence. We think that the case, when correctly understood, does not sustain the contention, but in effect holds the contrary. In that case a party appealed from the decision of the board of claims upon .an award in his own favor, and the only question was whether, upon the evidence and findings, the claimant had been allowed all the damages that he was entitled to, and this court not only affirmed his right to all the damages that the board had awarded him, but increased the award from $3,000 to $8,136. The claim was based upon the negligent act of the state in overflowing the lands of the claimant, from which the damages claimed resulted. The board of claims allowed no interest; hor did this court. In adding to the award a sum of over $5,000 this court acted in some sense as a court of original jurisdiction, and in making up the-sum which was to constitute the final award it refused to allow an item of interest claimed.

Now it is admitted that a court or jury, charged with the duty of making up the amount of damages in such cases, may refuse to allow interest, and that is precisely what this court did and nothing more, and, therefore, the case is in harmony with the rule above stated and with the cases from which we have deduced it. It is far from holding' that it is error when, in such a case, the jury, or the original court, after considering all the facts and circumstances bearing upon the loss, allows interest, in the exercise of discretion, as part of the indemnity to which the party is entitled. It simply recognized the rule that interest in such cases was not a matter of right, but of sound discretion, and held that the claimant was fully indemnified for his loss without adding interest. It is true that the learned judge who gave the opinion -cited the cases arising upon contract in which it has been held that interest is not allowable, and remarked that he found no case justifying an allowance of interest. That was probably an inadvertance, but the decision refusing interest was right, though the reasons may have been based upon a principle applicable to another class of actions. It must be remembered that the court was not reviewing any question decided below in regard to interest, but seeking to make up for itself a new award from the items of the claim appearing in the record, and whatever was said by way of argument, and as the reason for throwing out an item of interest on a sum claimed to have been expended in restoring or reclaiming the land, cannot be considered as the judgment of the court on the question now under consideration. That question was not noticed in the argument and was not involved in the case except, perhaps, as a matter of discretion. For these reasons'the judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Earl, Ch. J., Finch and Gray, JJ., dissenting.


author: O’Brien, J.

text:
    William Collins, App’lt, v. J. Bartlett Hydorn et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Res adjudicata—Parties plaintiff.
    One Wiswall began, as judgment creditor, an action against the defendant to set aside real estate transfers. Wiswall made an assignment for the benefit of creditors to the plaintiff, who continued the action as such assignee. It was tried and the plaintiff was defeated on the ground that no fraud was shown. About the same time the plaintiff had commenced in his own right as a judgment creditor this action against the same defendants, attacking the same transfers, and judgment was entered declaring the conveyance void as to creditors, ¿eld, that plaintiff was a party to the former suit in his representative capacity, while here he prosecutes in his own right, and is not concluded by the prior judgment against him in. a representative character.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment setting aside certain transfers of real estate as fraudulent as to creditors.

      G. B. Wellington, for app’lt; Chas. E. Patterson, for resp’ts.

       Reversing 42 St. Rep., 241.

   O’Brien, J.

The plaintiff, as a judgment creditor of one Elisha W. Hydorn, brought this action against the judgment debtor and his son and son’s wife, with others, for the purpose of setting aside certain conveyances and transfers of real estate, made on the 27th day of July, 1885, and a few months before the recovery of the judgment, by the father to the son, and through the son to his wife, the defendant Hattie W. Hydorn, on the ground that the conveyances were made for the purpose and with the intent of hindering, delaying and defrauding ..creditors. The facts and circumstances connected with the transfers, which the plaintiff claimed constituted evidence of fraud, are quite complicated and a particular statement of them is not necessary to the determination of the question presented by this appeal. It is enough to say that the court at special term after a trial found that the conveyances were made by the grantor therein with the fraudulent, intent alleged, when insolvent, and that the defendants, who bring this appeal, participated in the fraud, and judgment was entered declaring the several conveyances and transfers void as to creditors. The general term reversed the judgment and granted a new trial and as there is no statement in the order of reversal that it. was upon the facts, it must be deemed to have been upon some question of law. It appears from the opinion that but a single question was considered and the judgment of reversal was ordered upon that ground. This question is the principal one discussed at the bar upon the argument of this appeal, and involves the legal effect of- a former judgment, not pleaded by the defendants-in bar, but claimed to be conclusive evidence for them on the - question of fraud. Mansion v. Swett, 66 N. Y., 206, 211. The findings with respect to this judgment, as well as the requests to find, are very imperfect and it will, therefore, be more favorable for the defendants to take the facts in regard to it from the opinion of the general term. The only parties that appealed to that •court were the defendants J. Bartlett Hydorn and his wife, the son and the daughter-in-law of the judgment debtor.

This action was commenced in January, 1877. About the same time one Wiswall, another judgment creditor, brought an action against these same defendants for the same purpose, and upon the same allegations as are disclosed by the complaint in this case. The answer tendered the same issue, namely, a denial of all fraud, and an allegation that the same conveyances as are attacked in this case were made in good faith and without any fraudulent intent. Pending the action, the plaintiff Wiswall made an assignment -for the benefit of his creditors to William Collins, the plaintiff in this action, who was substituted as plaintiff in his representative capacity in the place of his assignor, the original party. The cause was brought to trial, and in March, 1890, the court rendered a decision in favor of the defendants. The court found as matter of fact, that the conveyances were made upon a good consideration and without fraud, and received by the grantees therein without any fraudulent intent, or knowledge of any such intent on the part of the grantor, and upon a good consideration, and the special term directed the dismissal of the complaint.

Upon these findings judgment for the defendants and for costs was entered. On appeal, the judgment was affirmed at the general term, and subsequently in the second division of this court There is no doubt that the question decided in that case is identical with the one presented by the pleadings in this, and decided at special term the other way, and if the parties are in law the same the general term was unquestionably right, and this appeal cannot be sustained. But the plaintiff was a party to the former suit in his representative capacity as trustee for creditors, while in this he prosecutes in his own right. In the former suit he represented and acted for the creditors of Wiswall In this he is seeking, as an individual, to enforce collection of a debt of his own. When the plaintiff became the statutory assignee of Wiswall he found the suit pending and could have continued its prosecution in the name of the original plaintiff, without making any change in the record. Would it be. held then, after the same result, that the judgment would -operate as a bar to this suit, or as evidence, simply because, in the discharge of his duty as a trustee for others, he stood behind the litigation ? And if not, how is the result changed by the fact that he became on his own motion, or on that of the defendants, a party to the record in his representative capacity ? A party may be bound by a former judgment on the principle of representation though not a party by name. Ashton v. City of Rochester, 133 N. Y., 187; 44 St. Rep., 526. But the mere fact that the same persons are litigants in the two actions is not always sufficient to satisfy the rule of res adjudicata. The same person may in law be considered another person, and consequently another party, by suing in another capacity. Wells on Res Adjudicata, p. 16, § 21.

' It was held by this court in Rathbone v. Hooney, 58 N. Y., 467, that a judgment against a party, sued as an individual, is not an estoppel in a subsequent action in which he sues or is sued in another capacity or character. In the latter case he is in contemplation of law a distinct person and a stranger to the prior proceeding and judgment. This proposition is sustained by the authorities there cited. Subsequently the same point was decided in a more recent case, where it was held that a bankrupt’s equity of redemption in land was not barred by a judgment of foreclosure of a mortgage, to which it was subject, though his assignee was a party to it in his individual but not in his official or representative capacity. Landon v. Townshend, 112 N. Y, 93;, 20 St. Rep., 223. The rule is that a former judgment concludes-the party only in the character in which he was sued and, therefore, a judgment for or against an executor, administrator, assignee or trustee as such presumptively does not preclude him,, in a different cause of action affecting him personally, from disputing the findings or judgment, though the same questions are involved. Bigelow on Estoppel, 5th ed., 130, 131.

Had the plaintiff in this case succeeded as assignee for creditors^ in the former suit, upon a finding that the conveyances were fraudulent, the judgment would not conclude the defendants in this-case, in which the plaintiff prosecutes in another character or capacity, and, therefore, the plaintiff is not concluded by a judgment against him, as estoppels must be mutual. The plaintiff now prosecuting in his own proper person, representing only his-interest as an individual, is not concluded by the prior judgment against him in a representative character because he must now be regarded in law as a different person and a stranger to the former-suit 2 Black on Judgments, § 536; 2 Phillips on Evidence, 3d ed., pp. 8, 9, ch. 1, § 1, sub. 1; Duchess of Kingston's case, 2 S. L. C., 7th ed., p. 792, note; Leggett v. The G. N. R. Co., L. R., 1 Q. B. Div., 606 ; Lander v. Arno, 65 Maine, 26.

The judgment of reversal cannot therefore bé upheld upon 'the-ground taken at the general term. It is suggested that the finding of fraud by the trial court is not sustained by any evidence,, and as the court below should have reversed upon that ground-the point is available here to support the judgment. We think that the facts and circumstances proved at the trial justified the findings and conclusion. It would be difficult in the absence of' explanation to hold that the numerous and complicated transfers of property by the judgment debtor when insolvent to members, of his own family, followed by agreements and instruments on their part by which the use or income of the property, or at least-a portion of it, was secured to him, were made in good faith and without any intent to hinder, delay or defraud creditors. What-evidence was before the court on the former trial, upon which contrary findings were made, we are not informed by the record. It, is possible that the defendants in this case may have relied upon the record of the former judgment as conclusive in their favor, and omitted evidence in explanation of the transactions that was before the court on the other trial.

However that may be, we cannot hold that the findings in this case are without any evidence to sustain them. Nor do we think that the rule applicable to judgments in rem can be invoked to uphold the decision below. With respect to such judgments the general rule no doubt is that they are conclusive upon all the world as they adjudge the status of some particular thing. Without attempting to define the cases to which the ruléis applicable it is clear that the judgment against the plaintiff, as assignee, is not one of them. It was not a judgment in rem. It adjudged a disputed question of fact, namely, that certain conveyances to the defendants by the judgment debtor were made in good faith. It determined the intent of the parties to certain written instruments when they were made, and from this followed the legal conclusion that the plaintiff had no cause of action, and is governed by the ordinary rule applicable to former judgments in courts of law and equity.

The judgment of the general term should be reversed and that of the special term affirmed; with costs.

All concur.


author: Peckham, J.

text:
    The New York Central & Hudson River Railroad Co., App’lt, v. Thomas Aldridge, Resp't. (Four cases.)

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Ejectment—Railroad—Land grant.
    The New York Central & Hudson River Railroad Co. acquired no title to lands in the town of Fishkill and county of Dutchess, formerly under water, by reason of any assumed, modification or alteration of its original course under the statute of 1848, and the filing of a map indicating such alteration.
    2. Same.
    Such alteration did not in any manner affect the power of the commissioners of the land office to make a grant to an upland proprietor of the land under water, although it was included in the proposed alteration.
    3. Same—Upland owner.
    Although the company received a grant which took in a strip partly below and partly above high water mark, it takes the land for the use of its road and for that only, and a grantor deeding a strip of land to it along the river does not cease to be an upland owner within the meaning of the statute.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for defendant upon trial before the court without a jury.

      Robert F. Wilkinson, for app’lt; H. H. Hustis, for resp’t.

       Affirming 42 St. Rep., 18.

   Peckham, J.

The plaintiff has brought these actions to recover the possession of certain lands in the town of Fishkill and county of Dutchess, of which it claims to be the owner, and it alléges the defendant wrongfully withholds the same from it. The cases were tried at Poughkeepsie before one of the justices of the supreme court without a jury, and the court found that the plaintiff was not the owner of the lands, but that the defendant was, and thereupon judgments were entered in favor of defendant as owner and against the plaintiff for costs. These judgments were upon appeal affirmed by the general term of the second department, and from that affirmance the plaintiff has appealed to this court.

The land was, prior to the year 1846, under the waters of the Hudson river, and. on the east side thereof. The title to one portion of the adjacent upland was at that time in the executors pf the will of John Yan Yliet, deceased, and the title to the other portion was in one Isaac Brinkerhoff.

The Hudson Eiver Eailroad Company was incorporated by virtue of chapter 216 of the Laws of 1846, for the purpose of constructing a railroad along the east side of the Hudson river from Hew York to Albany. Pursuant to the provisions of law the Hew York Central Eailroad Company and the Hudson Eiver Bailroad Company were duly consolidated in 1869, under the name as given.in the title of this action, and such corporation has succeeded to all the rights, powers and privileges which the Hudson Biver Eailroad Company was possessed of. Pursuant to the provisions of § 4 of the act of 1846, above cited, examinations, surveys and maps were made in order to provide for the most advantageous line for the location of the road, and after such examinations and surveys were made the directors of the company duly designated the line for the road as it passed along through the town of Fishkill in the county of Dutchess, and the proper certificate thereof was duly - filed in the office of the clerk of Dutchess county, as provided by law.

The statute provided further that this course so selected and certified should be the line on which the corporation should construct its road. The land in question, after the course of the road had been duly selected and adopted, lay outside and west of the west line of such course, and under the waters of the Hudson river. The railroad company obtained the strip of land along and upon which it finally built its road, by a conveyance from the executors of John Yan Yliet, deceased, and from Isaac Brinkerhoff and wife, the executors owning the north, and Brinkerhoff and wife the south portion of such strip.

By chapter 30 of the laws of 1848, the legislature amended the act of 1846, and by § 5 of such amendment it gave power to the directors to adopt a new and altered location for the road if at any time they thought it best to adopt one in place and as a substitute for-the old location, and a map of the course as altered was to be filed in accordance with the provisions of that section. The railroad company built and operated its road on the land conveyed to it by the executors of Yan Yliet and by Brinkerhoff and wife, and so continued for about twenty years without alteration or amendment of its line. After the expiration of that time,-and on the 30th of September, 1868, the company assumed, under the amendment of 1848, to modify its location and alter its line, and filed a map thereof as provided by law. The modification and alteration consisted simply in carrying or pushing its original westerly exterior line some distance further to the west. Subsequently, and on the 10th of Hovember, 1868, an additional alteration and modification of its westerly line was made by the com-pony, and a map thereof filed, by which that line was carried still further to the west These so-called modifications and alterations of the westerly line of the location, course or route of the railroad would include the land in question, and the plaintiff claims title thereto under the provisions of the charter and its amendments* and also by virtue of a conveyance from the commissioners of the land office. Prior to this time the title to the lands was in the state.

We think the plaintiff acquired no title to the lands in question by reason of these alleged alterations.

By the original act of 1846 the railroad company was to adopt a certain line, course or way for the railroad, and such as the directors should declare most advantageous, and this course so selected, the statute said, should be the line on which the road should be built. The state, however, did not in any of the statutes relating to the railroad convey any land to the company which belonged to the state, either above or under water. The act of 1846 gave no such title. Reither did §§ 1 or 5 of the amendment of 1848. The most that could be urged was, perhaps, a mere implied license to the company to build along the course .selected, even though lands of the state were included therein. This gave no title to the land embraced in such course. The land was to be acquired subsequently.

As to lands belonging to individuals the company secured no title by selecting and adopting a course and filing a map. It still had to purchase such lands or else obtain them by the exercise of the right of eminent domain. • There is no provision in the law which makes a different result where the lands belong to the state. Under the general railroad act of 1850, the commissioners of the land office are empowered by § 25 to grant to any railroad company formed under that act any land belonging to the people of the state which may be required for the purpose of the road, upon such terms as may be agreed on by them. And by § 49 of the same act, all railroad companies within the state are granted all the powers and privileges contained in the act, so that plaintiff had the right thereunder to apply for a grant of land under water, belonging to the state, if the same were required for the purposes of its road, and upon terms to be agreed on betwéen the company and the commissioners of the land office.

The fifteenth section of the act of 1846, incorporating the railroad company, contemplates the building of a bridge over the Spuyten Duyvil Greek by the company, and also bridges over other creeks and navigable streams and inlets, and the act also-assumes that the company will cross the bays along the river. But there is no grant by the state of any land under the water of these bays or inlets, and no title is conveyed by any statute that I have seen. The state has permitted the building of the road across these waters, and probably through its commissioners of the land' office it has granted in most instances the title to such lands under water as were used by the company.

There is nothing, however, in the statutes themselves which operates as a transfer of the title. When the alterations made under the act of 1848 called for lands belonging to the state, the title thereto was not conveyed by the making of such alterations or by the filing of a map thereof. In addition to this view it would seem that the act of 1848 applies only to what is in reality an alteration and not to that which is a mere addition to the original location or course. The part added is not a new course and is in no sense a substitute for the old one, as the statute unquestionably contemplates it should be. There are thus two difficulties with the plaintiff’s contention as to the effect of the alleged alteration. The statute in the first place does not contemplate a mere addition where there is to be no alteration and substitution. In the next place if the alteration claimed was within the purview of the statute the company would thereby be clothed with a power to so locate its route, and the necessity would still remain of acquiring the land contained in the proposed alteration, either by purchase or condemnation if from private individuals, or by grant if from the state.

It is too clear for more extended argument that the company acquired no title to the lands in question by reason of any assumed modification or alteration of its original course and the filing of a map indicating such alteration.

The plaintiff, however, does not rely alone upon these alterations. On the 26th of December, 1873, the commissioners of the land office, pursuant, as is stated, to § 25 of the general railroad act already referred to, granted to the plaintiff all the land under water embraced within the boundaries of its amended locations of 1868.

The plaintiff now claims that by virtue of the locations made by the railroad company in 1868, and of the grant from the commissioners of the land office in 1873, it has acquired title by legislative grant to the land in question and that such title is paramount to that of the defendant. The decision of this question requires a statement of some additional facts.

The conveyances from the executors of Yan Yliet and from Brinkerhoff and wife to the railroad company embrace a strip of land wide enough for its tracks to be laid on, and the eastern boundary of this strip was above high water mark and ran along the front of the farm as it had been bounded by the river, thus taking in the front of the farm so bounded, and thereby, as is claimed, wholly divesting the grantors of their character of riparian or adjacent owners.

It is through conveyances made by these grantors that the defendant claims title to the farm lands immediately east of the strip of land so granted to the company, and it is by reason of such conveyances that the defendant claims to be owner of the adjacent uplands, and hence a proper party to receive a grant from the state of the adjoining lands under water.

The deed from the- executors to the railroad company contained this declaration: “ The said parties of the first part, however, hereby reserve to the estate of said John Yan Yliet, deceased, and for the benefit thereof, all rights to all land lying below high water mark of the Hudson river, except such portion as is taken for the use and occupation of said road as laid out and located as aforesaid, and as particularly described in said map.” The deed from Brinkerhoff and wife contained a similar declaration. Both deeds conveyed the respective lands to the company as a strip of land (using the language of the deéd) through the lands and premises of the grantors, as laid out and located as part of the route of the railroad as then located and more fully shown on the map annexed.” The deed from the executors of Van Yliet, dated April 1, 1851, to defendant was made “ subject, nevertheless, and hereby especially excepting and reserving from the within described lot of land the line of the Hudson River Railroad as now in the use and occupation of the said Hudson River Railroad Company.” The deed from Brinkerhoff and wife to defendant, and dated January 2, 1354, contained substantially the same exception. The defendant having thus become the owner of the upland farm from which this strip was taken for the purposes of and by the railroad company, made application to the commissioners of the land office and filed his petition to them on the 14th of May, 1867, asking for a grant of land under water adjacent to his upland. This application would seem to have been opposed by the railroad company, and while it was pending before the commissioners the company, on the 30th of September and the 10th of November, 1868, assumed to make the alterations in its course as already described.

On the 5th of May, 1869, the commissioners of the land office granted the application of the defendant and issued a patent to him for the lands under water, which are the same lands embraced in the complaint herein. This patent was made “subject to all rights and privileges in and to said premises, or any part thereof, which the Hudson River Railroad Company may have acquired under its charter.”

The patent from the commissioners of the land office to the plaintiff bears date December 26, 1873, more than four years subsequent to that of the defendant. The patent to the defendant being prior in point of time to that granted to plaintiff would seem to make the title of the defendant the better of the two. The plaintiff answers this by stating that the defendant was not the owner of the adjoining upland and consequently could not legally obtain a grant of these lands under water. It is further stated that the patent to defendant was granted expressly subject to all rights and privileges in and to the premises or any part thereof which the railroad had acquired under its charter. The act, chap. 283 of the Laws of 1850, while providing for the granting of lands under water to the proprietor of the adjacent upland, also prohibits the commissioners from making any grant to interfere, with the rights of the Hudson River Railroad Company. What those rights were must be determined. The simple claim that the patent of the defendant is void because he was not the upland proprietor (even if well founded in fact) could not be urged in this action, which is a purely legal one to obtain possession of real estate on the ground that plaintiff is the owner thereof. There is no fact set up in the complaint calling for the exercise of the equitable powers of the court, and the plaintiff must succeed by showing the better legal title.

It has been frequently held that a patent such as this which is not void on its face and which requires evidence dehors the instrument to show its invalidity, can only be assailed in a direct proceeding to review the action of the commissioners or by an action iq equity to set aside the patent. Blakeslee Co. v. Blakeslee’s Sons Iron Works, 129 N. Y, 155 ; 41 St. Rep., 178, and cases cited.

The claim that defendant could not legally obtain a grant of these lands because not the owner of the upland is thus disposed of so far as this action is concerned.

We have seen that the plaintiff, by assuming to make the alterations alluded to, acquired no legal title to the land embraced within the limits of the proposed alteration. If it be conceded that the company had power to alter its course in the manner it assumed to do, the alteration did not in any manner affect the power of the commissioners of the land office to make a grant to an upland proprietor of the land under water, although it was included in the proposed alteration. A private owner of land, prior to the purchase or condemnation thereof by a railroad, would not be precluded from selling it because it was included within the terms of the original or altered location of the road. And the commissioners of the land office would not, on that ground, be prevented from granting such lands any more than an individual owner. The right is given to the commissioners, by § 25 of the railroad act of 1850, to grant to the company any land belonging to the people of the, state, which may be required for the use of the railroad, on such terms as may be agreed upon by them.

The fact that the lands are included in a proposed alteration of the course of the road may be evidence that they are needed by the company for its use, and when the company makes its application to the commissioners, if the lands still belong to the state, the commissioners may grant them on terms to be agreed upon. There is nothing in the statute, however, which in any way affected the power of the commissioners to grant the lands toan upland proprietor after the proposed alteration has been surveyed and mapped, as well as before. If the commissioners have so conveyed, the company must negotiate with their grantee. If they have not conveyed, then the terms upon which the conveyance is to be made must be agreed upon between the commissioners and the'company, and there is nothing in the statute from which it, is to be inferred that the commissioners are under any obligation .to convey for less than the value of the land, or upon any more favorable terms than they would impose upon the owner of the upland.

At the time of the granting of the patent to the defendant, there 'were no rights or privileges properly so called vested in the company to which the patent to the defendant was subject. The right to apply to the commissioners for a grant of land belonging to the people was not touched. And the right to prevent the commissioners from granting land under water belonging to the people to the upland proprietor did not exist, and hence was not invaded. It is thus apparent that neither claim of the plaintiff is adequate as an answer to priority of the patent to the defendant.

As the case is here, however, we think it proper to decide the other question before us, whether the defendant at the time he took the grant from the commissioners was an upland owner • within the meaning of the statute upon that subject. This point has been fully argued by counsel for the respective parties, and we think it should be met and decided now.

The case of Rumsey v. Railroad Co., 114 N. Y., 428; 23 St. Rep., 928, would seem to be nearly decisive of this. It is true there is some difference in the facts. In the Bumsey case the railroad was built partly on an embankment, and partly on piles, through the waters of the river, and at some distance from the shore, and the tide ebbed and flowed in the intervening space. In this case the company received a grant which takes in a strip partly below and partly above high water mark. This fact the plaffitiff urges is most material, for it is claimed it is thereby made a riparian owner, and even if it could not itself receive a grant as such (which it does not admit), it prevents the owner of the land adjoining its own from being regarded as a riparian owner, and hence prevents the granting of a patent for lands under water to him. The fact that a small quantity of water intervened between the shore and the railroad was, not regarded in the Rumsey case as very material. The fact was adverted to as bringing the plaintiff directly within the class of persons indicated by the statute to whom grants of land under water might be made. But the character of the occupation of the land by the railroad company, whether it fairly could come within the meaning of the statute as an owner of upland to which a grant of adjacent lands under water could be made, were the two main points discussed in the opinion, and upon which the strength of the reasoning was expended.

It was said that it could not be so regarded, and the reasons given are, we think, quite satisfactory. It is unnecessary to here repeat them. The counsel for the plaintiff does not claim the lands by virtue of its own ownership of the upland, but under a different statute. General Railroad Act of 1850, §§ 25 and 49. It is said, however, that by the deeds to the company the defendant’s grantors destroyed their rights to a grant and put such a grant forever beyond the reach either of themselves or their grantees, and that by virtue of such deeds they vested the company with rights inconsistent with any right to a grant on their part.

We have held that the power conferred by statute upon the commissioners of the land office authorizes them to convey lands under water to the owners of the adjacent uplands, and that those owners when they conveyed the uplands could not reserve the right to obtain a grant of the adjoining lands under water. This was because the right or privilege conferred by the statute is regarded as appurtenant to the upland and vests in the owner thereof, and it cannot exist severed from such ownership. Blakeslee Co. v. Blakeslee's Sons, etc., Co., 129 N. Y., 155 ; 41 St. Rep., 178.

If the defendant’s grantors by their deeds to the railroad company ceased to occupy the position of owners of the adjoining uplands within the meaning of the statute, it would probably follow that the patent to the defendant was illegal. We do not, however, so regard the effect of these conveyances. The company took the lands for the use of its road, and for that only. The deeds conveyed the land for that purpose only. At the time when the strip was conveyed to the company it had determined and located its line, and the conveyance simply granted that which was included in such location. The company received and holds such land in fee simple by the voluntary grant of the former owners, and by the provisions of the statute it holds such real estate and can use it only for the purposes expressed in its charter, that of the maintenance, construction and accommodation of the railroad. For this purpose only the land can be used, and although the title granted to the company is a fee, yet as thus burdened and restricted, we think the grantor in conveying the strip did not thereby cease to be the owner of the upland within the meaning of the statute.

The conveyance to the railroad of the strip in question is in its effects entirely unlike the conveyance to a private individual in fee simple. In the latter case it may well be the grantor, even of so narrow a strip, would lose his character of riparian owner and the grantee would acquire it. But when we consider the purpose of the conveyance to the railroad and the limitations to its use which the statute itself placed upon the company, it becomes entirely plain that the grantor ought not to lose his character of riparian owner where he retains the property immediately adjoining that which he conveys. Chap. 216, Laws of 1846, § 9 ; chap. 30, Laws of 1848, § 9. Grants of land under water were authorized to be made to the upland proprietor for the purpose of promoting the commerce of the state. A railroad company authorized only to do the business provided by its charter as a railroad could certainly not promote the commerce of the state, and hence would not come within the class of persons named by the acts conferring power to convey lands under water for the purposes named in the acts. This has been so stated by Judge Brown in his opinion in the Rmnsey case, and I fully concur therein.

The limitation placed by the statute upon the use of this strip of land by the railroad company precludes the ordinary consequences from attaching to a conveyance in fee of land. The grantor still remains the owner of the adjoining upland within the meaning of the statute, and he or his grantees are the persons to whom a grant of land under water may properly and legally be made. The defendant having received his patent prior to that granted to plaintiff, and the plaintiff then having no rights or privileges to which the defendant’s patent was subject, it follows that a defense to this action was established.

Upon a review of the whole case we are persuaded the plaintiff failed to make out any title, and that the defendant duly proved that he was himself the owner of the land in controversy. We have looked at all the questions presented and argued by plaintiff’s counsel, and we think no error was committed on the trial, and the judgment of the general term should, therefore, be affirmed, with costs.

All concur. ■


author: Earl, Ch. J.

text:
    Alexander Saunders, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.

      Robt. F. Wilkinson, for app’lt; Calvin Frost and Ralph E. Prime, for resp’t.

         Affirming 42 St. Rep., 952.

   Earl, Ch. J.

The main questions of law underlying this case have just been decided by us adversely to the defendant in its actions against Aldridge, and they need no further attention. The plaintiff, therefore, stands before us with a perfect record title, and the defendant without any. The defendant, however, claims that it has two defenses to this action founded upon the facts. The first defense is that at the time of the grant to the plaintiff it was in the actual possession of the lands, claiming under a title adverse to that of his grantor, and hence that the grant to him was void. 1 R. S., 732, 2d ed., § 147. The facts do not sustain this •defense, and so the trial judge found. There was evidence tending to show, that in 1882, when the plaintiff took his deed of the lands, they were not in the actual possession of the defendant. A minute analysis of the evidence now is not needed, and would serve no useful purpose. The finding of the. trial judge concludes us.

The other defense is that of adverse possession. The evidence is abundant to show that the defendant had not been in the adverse possession of any part of the land claimed in this action for twenty years, and so the trial judge found; and even if we had the power, we see no reason to disturb his finding.

The judgment should be affirmed, with costs.

All concur.