author: Patterson, J.

text:
    Rachael Pollock, Resp’t, v. The Brooklyn & Cross-town Railroad Company, App’lt

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1.. Negligence—Proof of—Street railroad—Injury to passenger.
    In an action for personal injuries to plaintiff by one of defendant’s street cars, in which she was a passenger, being thrown from the track in turning a curve, it appeared that at the time the driver was looking at some boys who were quarreling in the street. The testimony on behalf of defendant showed that the railway was in good condition on the day of the accident, and that it was constructed in such a maimer as to reduce materially the chances of derailment, but no explanation was attempted as to what took place. Held, that the question of defendant’s negligence was properly left to the jury.
    2. Same—Charge—Evidence to support necessary.
    In such case, it appeared that the plaintiff was pregnant at the time of the occurrence, and that a few hours afterwards a chüd was prematurely born. A few days after the birth the plaintiff was attacked with peritonitis, and was critically ill for several weeks. The medical witness testified that such an illness as supervened upon the miscarriage might be caused by other agencies, but no evidence was introduced to show that it was caused by such other cause. Held, that the court was correct in refusing to charge that if the peritonitis was caused by the negligence of the physician or nurse, or a consequence of her own poor health, she could not recover for any injury caused thereby, as there was no testimony to’ support such request.
    3. Trial—Error in charge—How cured.
    Where a charge is excepted to as misstating the evidence, and the court thereupon denies that he intended the meaning placed on the charge by counsel, and makes a plain and correct statement of the matter, the error in the charge, if any, is cured.
    Appeal from a judgment for plaintiff, entered on a verdict at circuit.

      Thomas S. Moore, for app’lt; David Tim, for resp’t
   Patterson, J.

—The plaintiff sued to recover damages for personal injuries alleged to have been sustained by her while a passenger on one of the defendant’s cars, and occasioned by the negligence of the defendant’s servant, the driver of the car. At the close of the plaintiff’s case a motion for a nonsuit was made and denied. The appellant insists there was not sufficient proof of negligence to go to the jury. As the testimony stood at that stage of the trial, it appeared that the car was thrown from the track on a curve in the line as it turned from one street into another; that the driver was looking at some boys who were quarreling in the street, and that indicated inattention on his part and supported the plaintiff’s theory that the car “jumped the track ” on turning the curve, for the want of proper guidance of the horse.

There was enough shown prima facie to establish that mismanagement of the driver was the cause of the car leaving the track. The motion to dismiss was renewed when the proofs were closed on both sides and it is strongly urged by the appellant that it should have been granted. The testimony on behalf of the defendant certainly did show that the railway was in good condition on the day of the occurrence, and that the track, at the point at which the car left it, was constructed in such a manner as to reduce materially the chances of derailment. But no explanation is attempted of what took place, and it is quite probable that with a perfect road bed and track, had the driver properly guided his horse and not been diverted by the incident the plaintiff related, the car would not have gone off the rails. The judge was right in leaving it to the jury to find on the whole testimony whether the driver exercised due care in going around the curve.

There is no error in the refusal of the judge to charge as requested by the defendant’s counsel nor are the exceptions taken to the instructions given well founded. The plaintiff was pregnant at the time of the occurrence and a few hours afterwards was delivered of a child. The evidence clearly shows it was prematurely born. A few days after the birth of the child the plaintiff was attacked with puerperal peritonitis and was critically ill for .several weeks. The medical witness testified that such an illness as supervened upon the miscarriage might be caused by other agencies, but there is not a word to show that either of them existed in this case. The judge was correct, therefore, in refusing to charge that if the peritonitis was caused by the negligence of the physician or nurse or a consequence of her own poor health she could not recover for any injury caused thereby. And for the same want of any testimony to support it, the court was also right in refusing to charge that if the child was born after the full period of gestation the plaintiff could not recover. All the testimony showed directly, without a circumstance to impair it, that the child was prematurely born.

The only exception taken to the charge requiring notice relates to an expression of the judge as follows: “You have heard the statement of the doctor that such a jar or jolt as she (the plaintiff) has described might be a producing cause of premature child birth and also that the result might produce peritonitis.” The physician did say in so many words that the miscarriage might have been •occasioned by a jolt or jar, and while he did not use the same exact words as those of the judge in regard to the peritonitis, it is perfectly plain he intended to be understood as testifying that in the absence of what were called the . outside causes of puerperal peritonitis it would be attributable to the miscarriage in this case. Bo prejudice could have resulted in any way from the remark of the judge, even if it were strictly inaccurate, for the matter was subsequently put in a very plain, concise and direct manner. The defendant’s counsel “ excepted to the statement of the court that the peritonitis was occasioned by the premature birth; ” whereupon the court remarked, “ I do not mean to say that. He did not testify that it was absolutely caused by the premature birth. What I mean to say is that the doctor’s evidence tended strongly to show that it was caused by the premature birth. He stated that there were other causes that might produce peritonitus.”

The judgment and order denying the motion for a new trial must be affirmed, with costs.

Barrett, J., concurs; Van Brunt, P. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel. George Steinson, App’lt, v. Board of Education of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June, 26, 1891.)

    1. Mandamus—School teacher wrongfully discharged—Salary.
    The by-laws of the board of education of New York city provide that salaries shall be paid on pay rolls, which must have the approval of and be certified by the school trustees and inspectors, and then audited and certified by the board of education and the finance department of New York city, and mandamus will not lie to compel the board to pay the salary of a teacher, alleged to have been wrongfully dismissed, and afterwards reinstated. All that could be commanded would be that his name be put upon the pay-roll in order that his salary might be paid in the regular way.
    2. Same—Remedy at law.
    In such case mandamus will not lie to the board to pay the relator’s salary which accrued after such discharge, as his claim in such case is nothing but a mere common law demand for money due on a contract, and he has an adequate and complete remedy by action.
    Appeal from special term, New York county.

      E. M. Hawkes, for app’lt; R. G. Beardslee, for resp’t.
   Patterson, J.

—This is an appeal from an order denying a motion for a peremptory mandamus. The relator had been a teacher in a public school in the city of New York and was removed from his position, but as he claims restored thereto by the state superintendent of instruction. He asks in this proceeding that, the board of education be directed to pay to him a sum, he alleged to be due as salary for a period subsequent to his dismissal, but he did not ask for reinstatement in his place as a teacher. It would be sufficient to dispose of this appeal by referring to the-statutes respecting the powers of the board of education and the method by which under the by-laws of that board enacted pursuant to the statutes, salaries of teachers are to be paid.

They would show that-the application, in the first place, is misdirected as to the object sought to be accomplished. The board of education controls the expenditure of moneys raised for the support of public schools in accordance with the provisions of the consolidation act; but it does not actually disburse moneys forth e payment of salaries of teachers. On the contrary, the by-laws-of the board require that salaries shall be paid on pay rolls, which must have the approval of and be certified by the school trustees, and the school inspectors of the wards and districts in which the schools are situated, and then these pay rolls must be audited and certified by the board of education and the finance department of the city of New York. It would be impossible to grant the writ now applied for under the law, and the regulations referred to. All that could be commanded in a clearly established case, and on the assumption that the relator was entitled to some direction by mandamus, would be that his name be put upon the pay-roll in order that his salary might be paid in the regular and usual way, and whether that application should be made against the trustees and inspectors, is a question not necessary to discuss now.

But there is another and radical objection to the relator’s application. He claims to stand in the attitude of one adjudged by the decision of the state superintendent, entitled to his place as a teacher in the public schools. His right and title he therefore assumes as being unassailable. All he asks for now is a mandamus to compel payment of salary; that is, to collect money on a contract by mandamus. His claim is nothing but a mere common-law demand, and it is quite a novelty to seek to collect a debt by the writ applied for. It is true that this court has decided that, in a proper case, mandamus will not be refused, simply because an action for damages might be. It was held in People ex rel. Livingston v. Taylor, 1 Abb. Pr., N. S., 200, that a mandamus is not to be denied only because a relator may have a remedy by action for damages, but that was a case in which the commissioner of jurors refused to strike from the list of jurors the name of a person who claimed and was entitled to exemption from service. It related only to a specific duty imposed upon a public officer. But here the writ is applied for as process to collect a debt. It amounts to that and nothing less. People ex rel. Green v. Fernando Wood, Mayor, 35 Barb., 653.

The granting of a writ of mandamus is discretionary; a discretion tobe exercised not absolutely or arbitrarily, but in ordinary cases only when it appears that the relator is without any other adequate means to redress a wrong or maintain a right. When he has a remedy by action mandamus will be denied. People ex rel. Tenth National Bank v. Bd. Apportimenr,64 N.Y., 627; People ex rel. Lunney v. Campbell, 72 id., 496. In the case last cited the court remarked that the relator had a clear legal right to sue for all damages he had sustained by reason of the refusal of the defendant as commissioner of public works, to execute and carry out a contract which the relator claimed to be entitled to perform as the lowest bidder for the work; and it proceeded to say: “ Ho rule is better settled by the decisions of the courts than that in such a case mandamus will not lie. People ex rel. Perkins v. Hawkins, 46 N. Y., 9 ; Ex parte Lynch, 2 Hill., 45 ; Ex parte Fireman’s Ins. Co., 6 id., 243; Shipley v. Mechanics’ Bank, 10 Johns. 484; People v. Croton Board, 49 Barb., 259.’’ On the relator’s own statement of his case his right to recover his salary is regarded as settled and without saying whether that claim is maintainable or not, we must consider it for the purposes of this application on the basis upon which he himself has put it. On his own showing he has an adequate and complete remedy by action. The court below was right in the conclusion at which it arrived, and the order must be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. The New York Central Under-Ground Railway Co., Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Pleadings—Redundant allegations—Striking out op complaint.
    In an action against two defendants, one is not entitled to have redimdant and irrelevant allegations, which relate only to his co-defendant, stricken out of the complaint.
    2. Same—Complaint—Motion T9 make moke definite—When denied.
    In an action against two railroad companies to vacate the charter of one of them, whose property, rights and franchises thereunder had been transferred to the other, a motion was made by the defendant vendee to require the plaintiff to more definitely set out in the complaint the lines of the tunnel to be constructed by defendants. Held, that the motion was properly refused, as the maps and profiles filed by defendant vendee’s co-defendant, sufficiently showed the lines of the tunnel.
    3. Same—Denied when asking fob conclusions of law.
    The motion also asked that the complaint be made more definite as to details of alleged want of authority and usurpation of right on the part of the defendant. Held, that it was properly refused as asking for conclusions of law drawn from the defendants’ articles of incorporation.
    Appeal from order of special term denying motion to strike out certain parts of the complaint as irrelevant or redundant, and that certain allegations be made more definite and certain.

      Henry D. Sedgwick, George Hoadly and E. Winslow Paige, for app’lt; Theodore Connoly and D. J. Dean, for resp’ts.
   Van Brunt, P. J.

—This action was brought substantially to dissolve the N. Y. Underground Railroad Co.

The substance of the amended complaint is as follows : That the New York Central Underground Railway Co. was incorporated by chap. 230 of the Laws of 1868, and chap. 824 of the Laws of 1869; that by these statutes said defendant was authorized to construct and operate a tunnel and railway over a route specified in the complaint in the city of New York; that by the third section of the act of 1868, chap. 230, incorporating defendant, it was provided that defendant should possess all the powers and privileges and be subject to all the provisions of the General Railroad Act of 1850, and the several acts amendatory thereof and additional thereto, except so far as the provisions of the said act are modified by or inconsistent with the provisions of the present act

It was provided by § 47 of the General Railroad Act of 1850' that if any corporation formed under that act should not within two years after the articles of association were filed, etc., begin the construction of its road and expend thereon ten per cent of the amount of its capital, or should not finish the road and put it in operation in five years from the time of the filing of its articles of association, its corporate existence and powers should cease and determine. By chap. 775 of the Laws of 1867, its provisions were amended, by providing that if any corporation formed under the General Railroad Act shall not within five years after its articles; of association are recorded in the office of the secretary of state, begin the construction of its road, and expend ten per cent thereon of the amount of its capital, or shall not finish its road or put it. in operation in ten years from the time of filing its articles of association, its corporate existence shall cease. The defendant was subject to these provisions, except so far as the same were modified or inconsistent with its charter, and the only modification was that in § 11 of the act of 1868, incorporating defendant, and as amended. by the act of 1869x already mentioned, which provides as follows: That the corporation should commence its tunnel and railway within two years from the passage of the act, and should have three years thereafter to complete the same to Forty-second street, and five years thereafter to complete the same to and along the Harlem river, necessary and unavoidable delay from the pendency of legal proceedings against said corporation excepted, and no omission to construct any portion should work a forfeiture of its franchises in respect to any section of said tunnel and railway which might have been commenced or completed.

That the board of directors of the defendant located the main line of the tunnel railway in the city of New York, but that said tunnel and railway as located by them do not conform as to location to the tunnel and railway authorized to be constructed by the acts incorporating defendant

That defendant never controlled sufficient pecuniary means to-successfully construct the railway and tunnel authorized by its charter or to commence to carry out and complete that construction.

That the said company did not commence the construction of its tunnel or railway as required by its charter, and did not begin the construction of the proposed tunnel and railway or spend ten per cent of its capital thereon, or finish the road, or put it in operation in the time limited by chapter 775 of the Laws of 1867, or by § 47 of the general railroad act of 1850, as amended by chapter 775 of the Laws of 1867.

That the defendant, on or about the 15th day of May, 1872,. executed what purported to be a first mortgage of its property and franchises in favor of certain trustees to secure payment of $35,000,000 to be raised upon its bond, to provide for the construction of its railway and other legitimate expenses, and that on July 1, 1873, defendant executed another mortgage to certain trustees to secure the payment of $20,000,000 to be raised upon its bonds to provide for the construction of its railway and branches and connections.

No bonds were issued upon either of these mortgages.

In connection with the obtaining and securing of the charter of incorporation of this defendant, one Vandenburgh received from said company a large amount of the stock thereof, for which he paid nothing.

In connection with the obtaining of the amended charter of the company, the board of directors acknowledged that Vandenburgh became entitled to receive from the company $80,000 on its first mortgage bonds. In lieu of these bonds the directors delivered to Vandenburgh 150 of its certificates of its indebtedness; thereafter Vandenburgh commenced an action against the company, asking for judgment for the principal of the sum of 153 of such certificates, and, no appearance being entered for defendant, thereafter recovered judgment amounting in all to $78,443.37.

At or about the obtaining of this judgment this defendant suspended its lawful business and no effort was made by it to have the work of constructing said tunnel or railway commenced or proceeded with. All or nearly all the officers resigned or refused to act, and thereafter Yandenburgh commenced an action against the trustees of the first and second mortgages of said company and. the mayor, etc., of the city of New York, in which he claimed an indebtedness contained in said judgment being unpaid. That the company was further indebted to him for $16,800, interest on said indebtedness; that he was entitled to receive mortgage bonds of the company to the amount of said indebtedness, prayed for judgment for the amount of interest claimed by him, and that-it be adjudged that the mortgage of $20,000,000 be foreclosed; that the mortgage, franchises and property of the company be sold, and that the proceeds of the sale be applied to satisfy the aforesaid indebtedness to him.

The amended complaint alleges that the action last mentioned was fraudulent and collusive; that no bonds under said mortgage were ever issued; that by the terms of the mortgage the bonds thereby authorized to be issued expressly provided that in case of non-payment of interest which should be demanded at the office of the company in New York, and which should remain unpaid for the period of six months after demand, the principal and bonds should become thereupon due and payable in the manner and with the effect provided in the mortgage or deed óf trust.

The mortgage or deed of trust provided that until default should be made in the payment of principal and interest of the said bonds, or some of them, or until default should be made in respect to something by the said mortgage required to be done by the company, the company should be suffered or permitted to possess, manage, operate, etc., the described franchises, property, railway, etc., and receive the proceeds thereof, as if the deed had not been made.

That the mortgage or deed of trust further provided that upon a default in payment of any of the coupons or quarterly instalments of interest, and such defaults shall continue for a period of six months after said coupons have become payable and payment thereof has been demanded, that the principal of all the bonds matured thereby should at the election of the trustees become immediately due and payable. But the holders of a majority of the bonds issued might instruct -the trustees to declare the principal to be due, and the trustees were thereupon to enforce the rights ‘ of the bondholders, or the said bondholders might direct the trustees not to take such action.

That there never was any default upon any of the covenants, conditions or provisions of the mortgage or deed of trust, and the trustees were never directed by any bondholder or person claiming the right, with respect to said bonds or any of them, to take any such action as above described, or to foreclose and sell the property.

That said Yandenburgh never acquired, possessed or even pretended or alleged that, under the covenants, terms and conditions of the said mortgage, he had acquired or ever possessed any right, in law or equity, to have the said mortgage of this defendant foreclosed and the property sold and the proceeds thereof applied to the payment of his debt.

In the action of foreclosure last referred to it is claimed by the defendant, the Hew York Underground Railway Company, that the franchises or property rights of defendant were sold to said Vandenburgh and his attorney, who thereafter associated with them a number of persons, who made and filed articles of association incorporating the Hew York Underground Railway Company, and in which were set forth the franchises and property rights so purchased as aforesaid, and which articles of association were duly filed and recorded in the office of the secretary of state.

That before the action last referred to was commenced, the corporate existence and rights of the defendant, the Hew York City Central Underground Railway Company, had ceased, by the failure of' the said company to commence and proceed with the construction of its tunnel and railway.

That the franchises and property rights claimed to be sold in the foreclosure action and set forth in the articles of association of the Hew York Underground Railway Company, are not the same franchises and property rights included and described in the charter and amended charter of the Hew York City Central Underground Railway Company.

Plaintiffs allege further that the incorporation of the Hew York Underground Railway Company was not authorized by law, and the corporate rights, powers, franchises, etc., which it claims to enjoy, have been usurped by it. Further, that said last-named defendant has never assumed a performance of what it claims to be its legal business; that it has constructed no part or portion of the tunnel or railway, or commenced any legal proceedings for the condemnation of the right of way thereof.

That said last-mentioned company never controlled sufficient pecuniary means to construct its works, nor to compensate the public or private interests which would inevitably suffer in the construction and operation of said tunnel and railway.

That the last-named defendant has commenced proceedings, which are now pending for a writ of mandamus to compel the commissioner of public works to allow it to remove the pavement in the city so that it may proceed with the construction of a tunnel and railway authorized by the amended charter of the Hew York City Central Underground Railway Company.

And the complaint sets forth further that the defendant the Hew York City Central Underground Railway Company, by reason of the franchises made to it by the statutes hereinabove recited, has, or claims to have, some interest in the controversy in this action adverse to plaintiffs, and is a necessary party defendant to the complete determination of the question involved herein.

This motion seeks to make the amended complaint more definite and certain in specified particulars, and also to strike out as irrelevant and redundant certain allegations thereof.

In respect to those allegations which it is sought to strike out as irrelevant and redundant, it does not appear that the appellant is particularly interested therein, as those allegations are addressed against their co-defendant, the Hew York City Central Underground Railway Co.

In respect to the allegations of difference in the lines of tunnel mentioned in the complaint which it sought to have made more definite and certain, it appears that the differences complained of are contained in maps and profiles filed by the defendant, the New York City Central Underground Eailway Co., the predecessor of the plaintiff, and that by a comparison between those maps and those set forth in the statutes the difference may be determined.

In so far as it is claimed that the paragraph relating to the foreclosure action is _ concerned, being collusive and fraudulent, the grounds upon which it is claimed to be collusive and fraudulent sufficiently appear in the complaint

The claim to have set forth the details of alleged want of authority of law and of usurpation of rights which were not possessed by the defendant, seems to be asking not for facts, but for conclusions of law derived from the articles of incorporation of the defendants and the procedures by which it was claimed that the appellant had obtained these rights.

After a careful examination of this complaint, and of the claims made upon this motion, there seems to be no reason for interfering with the order made in the court below.

The order should be affirmed, with costs.

Barrett and Patterson, JJ., concur.


author: Bartlett, J.

text:
    Isidor Alkus, Pl’ff, v. Albert Goettmann, Ex’r, etc., Def’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Vendor and vendee—Questionable title—Power oe sale by executor.
    A will, after giving several legacies, provided, " all the rest, residue and remainder of my estate, of whatsoever nature, I direct to be paid ” to certain persons. Defendant was named as executor and trustee, “ for the execution of the trust hereinbefore stated.” Defendant sold part of the real estate, and with the proceeds and the personalty of the estate, he paid ail the legacies. Held, that the defendant’s power under the will to sell the remaining real estate was not free from doubt, and a purchaser of the same from him could recover the purchase money paid and expenses incurred.
    Controversy submitted without action.

      Randolph H. Cole (Albert G. McDonald, of counsel), for pl’ff; Roscoe H. Channing, for def’t.
   Bartlett, J.

—I think the plaintiff in this litigation is entitled to prevail.

He was the purchaser at a public sale in the city of New York of certain real estate which the defendant assumed to sell as executor and trustee under the will of Henry Schreiber. He paid $1,515 toward the purchase money, other expenses of the sale amounting to twenty dollars, and $125 for the examination of -the title. These amounts he now seeks to recover back on the ground that the will of Henry Schreiber does not confer any power of sale upon his executor.

The will first provides for the payment of $500 to the executor, exclusive of his legal commissions, and then gives and be. queaths to him, as trustee, all the rest, residue and remainder of the testator’s property, real and personal, wheresoever situated, in trust, (1) To pay $500 to Henry Booman; (2) to pay $500 to Charles Armann, and (3) to invest $5,000 for the benefit of Minna Piper and her children, and pay the principal over to the beneficiaries in certain proportions at designated times. The will then continues:

“All the rest, residue and remainder of my estate of whatsoever nature, I direct to be paid to my brother August Schreiber, whose present address or whereabouts in the United States is unknown to me; to my sister Christina Budder, wife of Herman Budder, of Stift, Inemhein, Kreis Harford, Whestphalen, Germany, and to the child 'or children of my deceased sister Minna Wilmsmann, formerly wife of Wilhelm Wilmsmann, of Blarshein, near Iubbech, Westphalen, Germany, the same to be divided equally between them or the survivors or survivor of them, the said surviving issue of said Minna Wilmsmann to take the share of their deceased mother.”

Then follows the nomination of the defendant as executor and trustee “for the execution of the trust hereinbefore stated.”

The testator owned the Hew York lot of land to which this controversy relates, a piece of real estate in Brooklyn, and upwards of $10,000 in personal property. Before the sale in question here, the Brooklyn land was sold, and out of the proceeds and the personalty, the executor had paid the legacies and satisfied all demands upon the estate based upon the provisions of the will preceding the residuary clause which has been quoted.

From this "statement, it will be seen, that our determination of this controversy must depend upon the question whether the defendant’s power to sell his testator’s real estate is so free from doubt, as to justify the court in compelling a purchaser to take title from him by a judgment rendered in the absence of the parties who are beneficially interested in the lands devised by the will.

I do not think it is. The will confers no express power of sale -upon the executor. If any such power exists it must be implied from the language of the instrument as applicable to the property and affairs of the testator. The defendant concedes that the will is very inartificially drawn, but invokes the rule that where a testator directs that to be done which necessarily implies that the estate is first to be sold, the executor is vested with power to sell and execute the requisite deeds of conveyance. He argues that the direction in the residuary clause that the remainder of the estate “ be paid ” to the persons mentioned therein, “the same to be divided equally between them or the survivors or survivor of them,” contemplated a transmutation of all the property into money; that the testator could hardly have intended to authorize his executor to make an actual partition of the two pieces of real estate which he owned, among the six beneficiaries, five of whom were aliens; and that the insufficiency of the personalty, without the proceeds of the sale of the Brooklyn lot, to pay the testator’s debts and legacies, shows that he must have intended to have the executor sell all his land. On the other hand, in behalf of the plaintiff, it is insisted that no case can be found in which a. power of sale has been implied on grounds so slight as exist here ;• that the use of the phrase “ to be paid ” is not of controlling significance, inasmuch as there was personal property to which it could apply; and that the words “ the same to be divided equally between them,” import a tenancy in common. Jackson v. Luquere, 5 Cow., 221. Another consideration may be suggested. Even if a power of sale can be implied, so far as was necessary to provide for the payment of the legacies, can it be extended further, so as to authorize the executor to sell for the sole purpose of effecting a division of the residuary estate, after all the legacies have been satisfied ?

It seems to me that we have here presented “ a real question and a real doubt,” such as Andrews, J. spoke of in the case of Fleming v. Burnham, 100 N. Y., 10, as sufficient to prevent the court from passing upon an objection to the title in the absence of the parties in whom the outstanding right is vested. It is easy to-see how residuary devisees might well object to the exercise of a power to sell lands which would place the entire proceeds in the hands of an executor, unless it is perfectly clear that the testator meant to clothe him with such authority. The case cited, and the later case of Abbott v. James, 111 N. Y., 673; 20 N. Y. State Rep., 230, approve the rule that unless all the interested’ parties are before the court a purchaser will not be compelled to take a title which depends upon a doubtful question even of law only; for the adjudication would not be binding upon the absent parties, who could raise the same question in a subsequent proceeding. I think this rule is decisive of the present controversy, and requires us to render judgment for the plaintiff in the terms, of the submission.

Yah Brunt, P. J., and Barrett, J., concur.


author: Haight, .

text:
    Margaret McNally, App’lt, v. The City of Cohoes, Resp't.

      (Court of Appeals, Second Division,

      Filed June 9, 1891.)

    Negligence—Cohoes (city of)—Municipal corporation—Ice and snow-on sidewalk—Notice—Laws 1881, chap. 183, p. 237.
    Under Laws 1881, chap. 183, p. 227, to charge the city of Cohoes with liability for injuries sustained by a person falling on a street rendered' dangerous and slippery by ice or snow, actual information, intelligence- or knowledge of the defective, unsafe or dangerous condition of the sidewalk, by its superintendent answers the requirements of the statute, but the fact that he had been seen to pass over the walk ten or twelve days before-the accident and again a week before, and that he testified that he did not remember the dates when he had passed through, that there was ice there but it was covered with ashes where the people walked, does not justify a finding that he had the notice required by the statute.
    Appeal from a judgment of the general term, third department, affirming a judgment entered upon a nonsuit

      Matthew Hale, for app’lt; D. Cady Herrick, for resp’t.

       Affirming 25 N. Y. State Rep., 65.

   Haight, .

—This action was brought to recover for personal injuries sustained by the plaintiff in falling upon a sidewalk in the city of Cohoes on the 7th day of February, 1885.

The statute provides that: “ The city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk or cross-walk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous or obstructed condition of said street, highway, bridge, culvert, sidewalk or cross-walk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.” Laws 1881, .chap. 183.

Prior to the passage of this act, the liability of the municipality could be established by showing constructive notice, and the evident purpose of the act was to prevent a recovery unless actual notice be shown. The words shall have been given ” are used, but it is not specified how or in what manner notice shall be given. The word notice,” as used in this connection, imports information, intelligence or knowledge. If the defendant’s superintendent had actual information, intelligence or knowledge of the defective, unsafe or dangerous condition of the sidewalk, it would seem to answer the requirements of the statute. Actual notice may be established by evidence either direct or circumstantial the same as any other fact. The trial court appears to have been of the opinion that the evidence did not justify a finding that defendants superintendent had actual knowledge of the condition of the sidewalk at the time of or the place where the plaintiff fell. It, therefore, becomes necessary to determine whether the evidence is of that character which requires a reversal

The plaintiff tells us that she was upon the sidewalk upon Factory street; that it was covered with a glare of ice its entire width up to within a foot of the building, and that it extended lengthwise of the walk about five feet; that she saw it, stopped and looked at it, then stepped upon it, and after walking about three feet upon the ice she slipped and fell, breaking her wrist Evidence was given tending to show that ice had been upon the walk for about three weeks; that on thp 4th and 5th there was rain, snow and sleet turning cold on the morning of the 6th; the temperature going down below'zero; that the defendant’s superintendent had been seen to pass over the walk ten or twelve days before the accident, and again about a week befora He was then called as a witness on behalf of the plaintiff and himself testified that he had passed through the street several times before the accident, but did not remember the dates; thinks he may have passed through the street after the first of the month; that when he passed through the street there was ice upon the sidewalk, the same as on every other walk in the city; that the ice was covered with ashes, on that part on which the people traveled.

This is the evidence in substance bearing upon the question of actual notice. It will be observed that it fails to show any knowledge on the part of the superintendent as to the condition of the walk after the rain and sleet on the 5th and the freezing on the morning of the 6th. We do not understand his testimony to be controverted; and if, as testified by him, the walk was covered with ashes prior to the storm of the 4th and 5th, it is quite apparent that there was a material change in the condition of the walk thereafter rendering it dangerous if it was as described by the plaintiff at the time of her fall on the morning of the 7th; Taylor v. The City of Yonkers, 105 N. Y., 202; 7 N. Y. State Rep., 332, and Harrington v. The City of Buffalo, 121 N. Y., 147; 30 N. Y. State Rep., 719._

_ These views render is unnecessary to consider the question as to whether the defendant was guilty of negligence, or whether the plaintiff upon her own showing was guilty of contributory negligence in going upon the ice after observing its condition.

The judgment should, therefore, be affirmed, with costs.

All concur, except Potter and Vann, JJ., dissenting.


author: ■ Learned, P. J.

text:
    Harmon Houghtaling, Resp’t, v. Harriet L. Lloyd, App’lt

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Admissions in answers—Amendment—Effect of.
    Where, in the original answer, an alleged fact is admitted, and an amended answer is afterwards served which contains no such admission, the fact will be taken as denied by the amended answer.
    Appeal by defendant from a judgment of the Schoharie county court affirming judgment of justice’s court entered on verdict of "a jury.

      L. G. Van Tuyl, for app’lt; J. H. Mattice (Isban Hess, of counsel), for resp’t.
   ■ Learned, P. J.

—The learned county judge in his mem. states that he was at first inclined to reverse this judgment on the ground that there was no proof of the agency of Lewis Lloyd for his wife. But he says the agency was alleged in the answer, 5th defense.

The learned county judge therefore referred to the original answer. That was superseded by the amended answer; and the amended answer contains no- such admission.

Taking the pleadings then as they were at the time of the trial, the agency was not admitted, but was denied. Therefore it was necessary to prove it There is no proof. The plaintiff says he had dealings with Lewis L. Lloyd as the agent of his wife. But this evidence was objected to as no proof of agency and as improper. And nothing is stated by the plaintiff, the only witness, showing that Mr. Lloyd acted or was authorized to act for his-wife.

There is no evidence whatever showing that the defendant was liable.

We need not inquire whether if the original answer had been offered in evidence it would have been competent proof of agency, because it was not so used. The parties on this appeal must rest on the pleadings as they stood at the time of the trial and on the evidence then given.

This is not a case in which we can be satisfied that the judgment is right. Code, § 3063. There is nothing shown which affects the defendant.

Judgment of county court and justice of peace reversed, with costs.

Landon and Mayham, JJ., concur.


author: Learned, P. J. Mayham, J. Landon, J. (dissenting.)

text:
    William H. Tolhurst et al., App’lts, v. Joseph A. Powers, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Statute of frauds — Promise to pay the debt of another—New consideration.
    A verbal promise of defendant to pay plaintiffs a debt which B. owed them, made to induce them to ship to defendant, with B.’s consent, a machine belonging to B., in plaintiffs’ possession, but on which they had no lien, is not binding on defendant, being made without a consideration for the promise moving from plaintiffs to defendant.
    (Landon, J., dissenting.)
    Appeal from judgment on report of referee, dismissing the complaint, with costs.
    The action was to recover $522.13 balance of account originally due to the plaintiffs from Clinton M. Ball for services in the construction and fitting of a dynamo and other electrical appliances, which balance the defendant orally promised to pay the plaintiffs under the following circumstances: In 1883 and prior to December 17th of that year, the plaintiffs, who were proprietors of a machine • shop in the city of Troy, rendered services for Clinton M. Ball in the construction and fitting of a dynamo and other electrical appliances. In August they delivered the completed dynamo to Ball, who having made a sale thereof to one Crane in Hew York, conditional upon its successful operation, directed the plaintiffs to ship the dynamo to Crane, and they did so. Ball had paid the plaintiffs upon account of all their services, but not in full. Owing to some scientific defect in the dynamo, but not in the work done by the plaintiffs, the dynamo did not operate successfully and was sent back to the plaintiffs for further work. The defendant thereupon, with the consent of Ball, assumed the direction of the alterations and further work upon the dynamo; the plaintiffs performed as' defendant requested, and the defendant paid them therefor.
    December 17, 1883, the additional work being completed, and the dynamo remaining in plaintiffs’ shop, the defendant and Ball came to the shop and met the plaintiff, Charles H. Tolhurst. The defendant then requested the plaintiff to ship the dynamo to Hew York. The plaintiff replied that before doing so he wished to know who was going to pay the balance, $522.15, due from Ball to the plaintiffs for work- done upon the dynamo and other things. The defendant said he would pay it. Thereupon at the request of defendant, Ball giving his consent, the plaintiffs shipped the dynamo to the defendant at New York. Subsequently the plaintiffs presented their bill for $522.15 to the defendant, who promised to pay it, but has not done so.

      Davenport & Hollister (Nelson Davenport, of counsel) for app’lts; Frank S. Black,, for resp’t.
   Learned, P. J.

—Leaving out all the unimportant facts, the case in the aspect most favorable to plaintiffs stands thus: On the 17th of December one Ball owed the plaintiffs for work $522.15. There was at that time in their possession a machine which had belonged to Ball, which he had sold and delivered to Crane and which Crane had returned because it did not work. The machine was in plaintiffs’ lawful possession, but they had no legal lien or claim of any kind upon it

Ball, or if not Ball, then Crane, was entitled to immediate possession. The defendant had paid some money for Ball, and Ball and defendant desired that the machine should go into defendant’s possession. He had not, however, at that time any title to it.

Ball and defendant were present at plaintiffs’ machine works in Troy and wished to have the machine shipped to defendant at New York. Plaintiff said they wished to know who was to pay' the balance above mentioned which Ball owed them. Defendant said he would pay it. Thereupon the machine was shipped by plaintiffs to defendant; or, rather, Crane came for it to plaintiffs’ works and had it' sent by express to defendant. There was no written agreement Plaintiffs subsequently called upon defendant for the aforesaid balance. He at first promised verbally to pay but afterwards refused.

The question is whether the verbal promise of defendant to pay plaintiffs a debt which Ball owed them, made to induce them to ship to defendant, with Ball’s consent, a machine belonging to Ball, and on which they had no lien, is legally binding on defendant after plaintiffs have made said shipment . What consideration existed for the promise? The plaintiffs had no lien on the machine, and could not rightfully have retained possession. If their surrender of possession was an act which they were legally bound to do, then they parted with nothing. It would be a premium on wrongdoing to say that the courts would enforce a promise to phy money, made to induce one to surrender to the rightful owner property to which the possessor had no title and no right of possession.

One who has possession, but no right to possession whatever, may possibly delay the rightful owner by refusing to deliver. But to say that such possessor parts with anything of value when he merely does his duty and gives up what he has no right to retain, is very inconsistent with sound principle. Suppose'Ball had not owed plaintiff, and they had insisted that they would not give up the machine unless defendant promised to pay them $500, and he had so promised, would there have been any consideration for the promise ?

There was not here the compromise of a disputed claim. Nothing is shown to establish that the plaintiffs had, or that they even claimed to have, a lien on the machine. Possibly they could have compelled Ball to bring an action, as it would not have been lawful for him to enter on plaintiff’s premises forcibly to get his property. But the voluntary surrender of what one has no right to retain, cannot be a good consideration for a promise. The promisee parts with nothing. He gives up nothing to which he has or claims a right.

This is not a case where the original debtor conveys property to another in consideration of his promise to pay the debt. The defendant made no promise to Ball. Ball conveyed nothing to the defendant. Subsequently, it is true, in the following February, Ball did convey this machine to defendant. But that conveyance was to secure moneys advanced by defendant,, and was not in consideration of any promise to pay this debt to plaintiffs.

Further, this debt was Ball’s, and defendant’s promise was void under the Statute of Frauds. We need not discuss this at length. It is enough to refer to Ackley v. Parmenter, 31 Hun, 476, and 98 N. Y., 425.

The judgment should be affirmed, with costs.

Mayham, J.

—Assuming, as we must, that the plaintiffs had a mere naked possession of this dynamo, with no interest in or lien upon it, so that after a demand by the real owner their possession would be wrongful, I do not see. how its delivery to the defendant, who was entitled to the possession, furnishes any consideration of harm to the plaintiffs or benefit to the defendant, to support the promise of the latter to pay the debt of Ball to the former. I think, therefore, the judgment should be affirmed.

Landon, J. (dissenting.)

—We think the plaintiffs were entitled to a recovery. They had possession of the dynamo, and they intimated their intention to retain possession until they should receive some further assurance that their bill against Ball would be paid, than Ball’s responsibility or credit afforded them. The defendant was interested in the dynamo upon which he had expended both time and money, and desired to obtain possession of it Grant that plaintiffs had no lien upon the dynamo against Ball which they could maintain if a contest should be made, they nevertheless had the possession of the dynamo, and had the physical power to retain that possession and try to defend it in the courts; they thus could retain the possession until some indefinite future time. The defendant desired possession immediately. It does not appear that he had any title to the dynamo or lien upon it; but evidently from curiosity, scientific interest, or in the hope to obtain indemnity for his expenditures upon it, he desired to obtain possession. Ball, the owner of the dynamo, was willing the defendant should obtain possession. It was for him to dispute plaintiffs’ intimation of a lien, if he thought proper; but he did nothing of the kind. The case then is this: Plaintiffs had possession of Ball’s dynamo, claiming to hold it until payment of their bill against Ball should be secured. The defendant desired to obtain possession of the dynamo, and had no title to stand upon. Ball the real owner did not dispute plaintiffs’ claim. He consented that plaintiffs might deliver the dynamo to defendant, but he gave defendant no authority to take it from plaintiffs against their consent. The defendant thereupon by agreeing to pay them the amount of their bill against Ball bought of them their possession, and the abandonment of their claim of lien, and thus obtained possession of the dynamo. The defendant by his promise obtained possession of the dynamo and the plaintiffs parted with it. True, Ball was not released from his obligation to pay the debt, but the defendant in consideration of the benefit now moving to himself from the plaintiffs, added his promise to pay, to the old promise made by Ball. The case falls within the third classification made in Leonard v. Vredenburgh, 8 Johns., 29, “ in which the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties,” and thus is not within the statute of frauds. Mallory v. Gillett, 21 N. Y., 412.

The defendant’s contention that because plaintiffs had no valid lien upon the dynamo, they had nothing to sell or release or deliver to defendant is not tenable. We have already shown that though théy may not have had a valid lien they had possession aixd all the advantages of position, and if the defendant had obtained from Ball or could have obtained from him the means to compel them to surrender what they had, he nevertheless was at liberty to buy them out, and he chose to do so.

Judgment reversed, referee discharged, new trial granted, costs to abide event.

Judgment affirmed.


author: Mayham, J.

text:
    Delia Weinckie, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Constitutional law—New York Constitution, art. 3, § 17—Rail-roads—Municipal corporation—Closing street bv building railroad station.
    Chapter 187 of the Laws of 1884 empowering the common council of the city of Schenectady to pass an ordinance closing part of Liberty street in order that defendant might build a large and commodious depot, as amended by chapter 646 of the same year, which directed that compensation must be made to the adjoining property owners, such damages to be ascertained in the manner provided by article 7 of the act, entitled “ An act to amend and consolidate the several acts relative to the city of Schenectady for appraising damages, and compensation to be made for property taken for public improvements,” is not unconstitutional, as being in violation of § 17 of art. 3 of the constitution of the state of New York.
    2. Same—New York Constitution, art. 3, § 18.
    Neither is it in violation of art. 3, § 18, of the constitution of the state of New York, as the legislature did not undertake to pass a bill discon tinuing the street, but merely to confer authority upon the common council to do so,' which body already had powers in relation to the highways.
    3. Same—New York Constitution, art. 3, § 18, par. 11, 12.
    Neither is it in violation of art. 3, § 18, par. 11 and 12.

      4. Same.
    By said acts the legislature conferred upon the common council the authority to provide by their ordinance to close the street to vehicles, horses and cattle, and provide such safe and reasonably convenient way of passage for pedestrians as could be done consistently with the grant of that part of the street for depot purposes.
    5. Same.
    As a depot for a railroad requires room outside the depot edifice for approaches, passengers, deposit of baggage and the standing of trains, the mere fact that the main depot edifice does not stand on the discontinued streets is not such a failure to comply with the act as can make defendants liable.
    This action was prosecuted by the plaintiff to recover damage alleged to have been sustained by her, in the depreciation of the value of her property in Schenectady, by the act of the defendant in closing up Liberty street in that city and erecting a foot bridge across the railroad track, about twenty feet above the track, parallel or nearly parallel with the original line of the street, which acts are alleged to have been done in connection with the construction of its depot in the city of Schenectady. The plaintiff also asks equitable relief, that the obstruction across such street be forthwith removed.
    The defendant justifies its interference with and obstruction of this street under the authority of chapters 187 and 546 of. the Laws of 1884, and the acts of the common council of the city of Schenectady under the provisions of its charter, and the special authority conferred upon it by the acts above referred to. The action was tried and determined by the judge at the Schenectady circuit, who dismissed the plaintiff’s complaint upon the merits, and ordered judgment for the defendant, which was thereupon entered, and from which the plaintiff appeals.

      R. A. Parmenter, for app’lt; S. W. Jackson, for resp’t.
   Mayham, J.

—The case discloses that the defendant’s railroad crossed Liberty street, one of the streets of the city of Schenectady, on grade. For the purpose of enabling the defendant to construct in that city a large and commodious depot, the legislature passed an act, chap. 187 of the Laws of. 1884, conferring additional power upon- the common council of the city of Schenectady in relation to Liberty street in that city. Sections 1 and 2 of that act are as follows: “ The common council of the city of Schenectady is hereby empowered by a vote of two-thirds of their members to pass an ordinance discontinuing and closing, for the purpose of a railroad depot, and not otherwise, that part of Liberty street, in said city, now crossed by the track of the New York Central & Hudson River Railroad Co. and tracks of the president, managers and company of the Delaware & Hudson Canal Co. to the passage of vehicles, horses and cattle.” By chap. 546 of Laws of 1884, § 2 was amended to read as follows:

“ Section 2. Nothing in this act shall be construed to authorize the common council aforesaid to discontinue and close up any portion of said street without compensating the property owners of the property situate on Liberty street between the Brie canal bridge and Center street in said city, for all lawful damages sustained by them, such damages, in case the common council is unable to settle the same with said owners, to be ascertained and determined in the manner now provided by article 7 of the act entitled “ an act to amend and consolidate the several acts relative to the city of Schenectady, for appraising damages and compensation to be made for property taken for public improvements.”

Defendant claims that under these statutory provisions the common council of the city of Schenectady was authorized to adopt an ordinance, discontinuing the part of Liberty street which was enclosed by the defendant, and that under the statute and ordinances the defendant was justified in doing the various acts for the doing of which this action is prosecuted.

On the part of the plaintiff it is insisted that the provisions of the statute above quoted are in violation of §§ 17 and 18 of article 3 of the state constitution, and are therefore void.

Section 17 of article 3 of the constitution was amended in 1874 so as to read as follows: “No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable except by inserting. it in such act.”-

Is this provision violated by the reference in § 2 of chapter 546, supra, to the act entitled “ An act to amend and consolidate the several acts relative to the city of Schenectady,” without inserting them in it? It would seem that the legislature only intended by their acts to confer an additional authority upon the common council in' the exercise of which if lawful damage resulted to property owners, such damage should be ascertained in the manner now provided by law. It did not make the consolidated act to which it refers a part of this act, but rather by an express provision left the law for ascertaining damages and compensations to the owners of land condemned, as the same existed under the consolidated acts applicable to that city at the time.

I think it can hardly be maintained that the amended provision of the constitution would make it necessary, in order to validate this act, that- the entire text of the act “ to amend and consolidate' the several acts relative to the city of Schenectady ” should be incorporated in it, and that the omission to do that rendered this act unconstitutional. It is also objected* that this statute violates the second paragraph of § 18 of article 3 of the constitution. That paragraph prohibits the legislature from passing private or local acts for laying out, opening, working or discontinuing roads, highways or alleys. It would seem to be an answer to this objection that the legislature did not in this case undertake to pass a bill prohibited by this provision. It assumed by this act to confer authority upon the common council and did not undertake to exercise the power itself. At most it only enlarged the power theretofore existing in the common council, who were vested with power and control over the street by the provisions of the charter.

Nor do we see that this act of the legislature violated the provisions of paragraphs 11 and 12 of § 18 of article 3 of the constitution. The act does not grant a right to the defendant to lay down railroad tracks; nor does it grant to the defendant any exclusive privilege. At most it only confers upon the common council-of Schenectady additional power that is not prohibited by the constitutional provisions referred to. In the case of People v. O'Brien, 38 N. Y., 193, referred to by the plaintiff, the title of the act purported to confer authority upon the board of supervisors to raise money by tax, while the act contained provisions amending the charter of the city, and the court held the act unconstitutional under § 16 of article 3 of the constitution. That case is quite different in principle from this; that act clearly contained more than one subject, and that subject was not.embraced in the title. The act under consideration in the case relates to but one subject, the enabling of the common council to discontinue a portion of Liberty street. It seems well settled on authority that these provisions of the constitution do not prohibit the subjecting of any matter of special legislation to the provisions of other statutes to regulate the procedure to accomplish the purpose of the act.

In People v. Banks, 67 N. Y., 575, where § 17 of art. 3 of the constitution came under discussion, the court says: “It is not necessary, in order to avoid conflict with this article of the constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect the provisions of a special statute; such cases are not within the letter or spirit of the constitution; or the mischief intended to be remedied,” see, also, 36 N. Y. State Rep., 231; People v. Hayt, 7 Hun, 39, and it makes no difference that it relates to a local and not a general act Matter of Lorillard, 36 N. Y. State Rep., 233, supra.

It is also insisted by the plaintiff if these acts are constitutional, still they only conferred authority upon the common council by a vote of two-thirds of their number to pass an ordinance discontinuing and closing for the purpose of a railroad depot, and not otherwise, a portion of Liberty street to the passage of vehicles, horses and cattle; and that this statutory authority did not authorize them to pass an ordinance to discontinue such street so as to prevent the travel upon it by pedestrians. The first section of the ordinance, for the purpose of enabling the H. Y. 0. & H. R R. R Co. to construct a new and commodious passenger depot, closes a portion of Liberty street and discontinues the same, for the passage of vehicles, horses and cattle. The second section of the ordinance of the common council permits and empowers the defendant and the Delaware & Hudson Canal Co. to construct and maintain an iron foot bridge over the railroad track, on the discontinued portion of the street, of a prescribed height above the railroad track and a specified width, and authorizes the defendant, when such bridge is fully completed and ready for use, to construct and maintain a fence on the easterly and westerly line of the discontinued portion of Liberty street when the discontinued portion of the street shall cease to be a street or thoroughfare except for foot passengers over such bridge

The third section of such ordinance provides for the method of ascertaining and determining the damages to which land owners situate on the discontinued street may be entitled, and the appointment of commissioners by the Schenectady county court for that purpose. It is urged by the learned counsel for the plaintiff that the common council exceeded the^authority conferred by the acts of the legislature in providing for the closing of Liberty street to pedestrians by the erection of a fence.

By title 7 of the charter of the city of Schenectady, the common council are made commissioners of highways of the city, and may open, widen, improve or repair any street, highway, lane, walk or alley, and shall have superintendence and control of the streets, highways, lanes, walks and alleys, bridges, culverts and arches, etc., and, in addition to these general powers, the acts of the legislature above referred to, gave them express authority to discontinue and close the portion of Liberty street for the purpose of a railroad depot. The taking of land for a railroad depot is well settled to be a public purpose, and lands for that purpose may be taken by the right of eminent domain, and the rights of all abutting land owners, including those of the plaintiff, if she have any, are protected not only by this act by providing for compensation, but by the general law m the manner prescribed by the constitution. The legislature, in the exercise of its sovereign power, has full control of all public rights in streets, highways, and what it does, or authorizes to be done in regard to them, cannot be legally resisted, provided that no constitutional right is violated. People v. Kerr, 27 N. Y., 209-213. As we have seen, the legislature, in passing the enabling act, chapter 187, Laws of 1884, as amended by chapter 546 of same laws, violated no constitutional provision, and it remains to be considered what power they intended to, and did, actually confer on the common council in relation to the closing of this street. In determining that question we are to consider what purpose the legislature had in view, and give their act such construction as will effectuate their intention, without violating the spirit of the statute. The rule of construction to govern in cases of doubtful language of a statute, is well stated by Ingalls, J., in pronouncing the opinion of the court in Schermerhorn v. The City of Schenectady, 50 Hun, 337; 20 N. Y. State Rep., 311, which was affirmed on the opinion of the general term in the court of appeals. In this case the learned judge adopted the rule laid down in Smith’s Commentaries, § 701, as follows: “ Whenever the intention of the maker of a statute can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contrary to the letter.” In People v. Ins. Co., 15 Johns., 358, the rule was stated as follows: “ When any words are obscure or doubtful, the intention of the legislature is to be resorted to.”

The manifest purpose of the legislature was to confer upon the common council such additional powers as to enable them by ordinance to close so much of Liberty street as was necessary for the construction and occupany of a safe and commodious passenger depot for the public use and convenience in the enjoyment of defendant’s railroad. It would seem a strained and unreasonable construction of this act to hold that the legislature contemplated that this street should be discontinued and closed as to vehicles, horses and cattle, and yet that the entire street on a grade with the railroad track should be open, and not discontinued as to pedestrians. Such a construction would be to leave the way physically open and passable, by vehicles, horses and cattle as well as to pedestrians, and the only restraint upon the free and uninterrupted passage over it by teams, would be the legal effect of the statute and ordinance, without the interposition of any physical barrier and would seem to render the act utterly false, useless and nugatory. To give any effect to the act in harmony with what must have been the legislative intent, we think it must be held that the legislature conferred upon the common council the authority to provide by their ■ordinance to close the street to vehicles, horses and cattle, and provide such safe and reasonably convenient way of passage for pedestrians, as could be done consistent with the grant of that part ■of the street for depot purposes. Section 24 of chapter 140 of the Laws of 1850 provides that when railroad tracks cross a highway, such highway may be carried under or over the track as may be found most expedient, and by § 19 of that act that power is given to all corporations within the state. As provision has been made for discontinuing this street, at this point for vehicles, horses and cattle and a way only left by implication for pedestrians, the common council acting as we have seen as commissioners of highways could prescribe the character and dimensions of the bridge under the powers conferred upon them by title 7 of the charter. Ror do we think any private action by any individual would lie against the defendant for an improper or defective construction of this bridge, as the case discloses that all abutting owners are the defendant and the Delaware & Hudson Canal Co., the city having ■consented, to its construction. But it is not necessary for the decission of this case to determine that question. It is also objected that the depot constructed by the defendant is not on the closed part of Liberty street, but that the depot edifice is between Liberty ■street and State street; and that the acts of the legislature did not authorize the common council to close and discontinue the street except for the purposes of a railroad depot. But it will be observed by reference to the case and maps that some of the depot sheds extend upon the discontinued street; and as a depot for a railroad requires room outside of the depot edifice for approaches, passengers, deposit of baggage and the standing of trains, the mere fact that the main depot edifice does not stand on the discontinued street is not such a failure to comply with the act as can make the defendant liable in this action; on 'he contrary, it seems to be a substantial compliance with its provisions, and the same we think "is true of the location of the bridge. It is quite true, as contended for by the appellant, that when an enabling act confers authority which was not possessed by the individual or corporation before, that authority must be strictly pursued. Farmers' Loan & Trust Co. v. Carroll, 5 Barb., 615. And upon this point it is claimed that the ordinance of the common council required the erection of the foot bridge over the discontinued part of the street. The language of this ordinance upon this subject is: “ The New York Central & Hudson River Railroad Co. and the Delaware & Hudson Canal Co. are hereby permitted and empowered to construct and maintain an iron foot bridge over their railroad track on such discontinued portion of said street.” The permission given here is to construct a bridge over the railroad track, and on the discontinued part of the street. As an elevated bridge could not be literally on the street, we think that the fair construction of the language used is that the bridge was to be constructed at this point with a view of accommodating pedestrians ; and if that is accomplished, the spirit and letter of the ordinance is substantially complied with. The case might be different if the property rights of private citizens were involved; but in this case the defendant erects the bridge on its own land. It is also insisted by the plaintiff that no lawful proceedings have been had to ascertain the lawful damage of property owners, and that the defendant cannot justify the closing of the street and the erection of the foot bridge for that reason.

The case discloses the appointment, on notice and without objection, by the county court of Schenectady of three commissioners to ascertain the damages, if any, by reason of closing this street, and that they duly qualified, took the oath of office, gave notice of hearing, met and made their report. It is not perceived that any act was omitted which was required to confer jurisdiction on the county court for their appointment, and when appointed no jurisdictional act was omitted by them. They qualified, gave notice of hearing, met and made and filed their report. It is urged that only two viewed the premises. No such inference can be drawn from the report, nor does the trial court find that as a fact any of the steps necessary to confer jurisdiction on the commissioners were omitted.

The acts provided that the lawful damage which property owners may sustain in case the common council is unable to settle the same should be ascertained and determined in the manner provided by the city charter; and we discover no particular in which the provisions of title 7 of the charter, which embraces the subject of the ascertainment of damages, has not in all things been complied with. But if any step was omitted which might amount to an irregularity not affecting the jurisdiction of the county court or commissioners, we do not see how it can be raised on this trial for the first time, especially as the plaintiff had notice of the proceedings both before the county court and commissioners, and cannot now attack them collaterally, as such irregularities, if any existed, should have been reviewed on certiorari. At all events, the objections, if any existed, should have been taken at the time of the application for the appointment of the commissioners. N. Y. C. & H. R. R. R. Co. v. Met. Gas-Light Co., 5 Hun, 204; aff’d 63 N. Y., 335; Matter of N. Y., L. & W. R. R. Co., 33 Hun, 152.

It is also contended on the part of the plaintiff that the report of the commissioners appointed by the county court was never confirmed by a two-thirds vote of the common council, and that it was not, therefore, a valid act The Bevised Statute, 2 B. -S., 555, § 27, provides that whenever any power or authority is conferred. by law on three or more persons, such power or authority may be exercised by a majority at a meeting duly convened of the whole number.

The contention of the plaintiff is based upon the provisions of title 3 of the city charter. We do not think that the resolution -confirming this report comes within the provision of § 6 of that title, but rather within the provisions of the revised statute, above referred to. The questions above discussed embrace what appear to be the chief ground of error claimed by the learned counsel for the plaintiff, for which he asks that the judgment in this case should be reversed. We have examined the other numerous objections and exceptions taken by the learned counsel for the appellant on the trial, and to the findings and refusals of the learned trial judge and his conclusion of law, but find no error in them, for which this judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., concurs; Landon, J., not acting.


author: Learned, P. J. Landon, J. Mayham, J. (dissenting).

text:
    Warren B. Collamer, Resp’t, v. Albert H. Farrington, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Evidence—Panol—To taut wbitten.
    In an action by a landlord against the surety on a written lease for rent due, as therein provided, Held, that the defendant could not show as a set-off that the plaintiff had promised by a parol contemporaneous agreement to accept the fixtures placed on the premises by the lease on account of the rent, as such parol agreement was not collateral, but merged in the writing.
    (Mayham, J., dissenting.)
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff in an action brought- upon a contract of .suretyship for the performance of the conditions of a lease by a tenant.
    The tenant’s certificate of hiring was in writing signed by him, and contained covenants to pay rent, and also some other agreements on the part of the tenant, but contained no agreement to be performed by the lessor. The surety contract signed by the defendant purported to be in consideration of the letting of the premises and of one dollar, and provided that the defendant become surety for the punctual payment of the rents and performance of the covenants in the certificate made by the lessee and in default agreed to pay and perform the same himself or any deficiency on the same. The answer alleged payment by the tenant, offsets in favor of the tenant against the plaintiff and the tenant’s insolvency, eviction of the tenant by the plaintiff, and a denial of some of the allegations of the complaint On the trial before the referee various questions as to the admissibility of evidence offered by the defendant were raised and exceptions taken to the ruling of the referee. The referee reported in favor of the plaintiff, and judgment was entered on his report, from which defendant appeals.

      L. Varney (William H. McCall, of counsel), for app’lt; Will W. Smith, for resp’t.
   Learned, P. J.

—This is an action by the landlord against the-surety on a lease. The defense is that the leasee, one Jacob H. Farrington, had been the tenant of the landlord for two years previous; that during those previous years the lessee had put certain fixtures in the premises; that when he was about to take the lease in question the plaintiff, as consideration therefor, promised that he would take said fixtures and pay for the same by allowing the value on the last payments which should come due on the lease.

In $ie trial before a referee, evidence was given by defendant of conversations tending to support this defense. Such evidence was objected to as varying the contents of a written instrument. The evidence was taken subject to this objection and was finally excluded by the referee. The question on this appeal is on the correctness of the referee’s ruling in this respect.

It is claimed by the defendant that this ruling was incorrect on two grounds. First, that the general rule does not apply when only one side of the contract is in writing and the oral evidence tends to affect the other side; and, second, that such general rule-does not apply to collateral agreements.

The first of those grounds assumes that the landlord’s part of the contract of lease was not in writing. The written instrument produced by plaintiff was that which is known as the tenant’s part in a so-called landlord and tenant agreement This is a familiar agreement, one part of which is usually signed by the landlord, another by the tenant; each containing the agreements-of the respective parties. It was not necessary for the defendant, if not called upon, to produce the part of the agreement signed by the landlord, and no copy is in the case. But the objection to this evidence assumed that the landlord’s part of the agreement was in writing. The referee’s report seems to so state the fact. He says a written lease was executed by both parties. Certain findings of fact requested by the plaintiff imply this. It does not distinctly appear what was the response of the referee to these requests, but the defendant excepted to the referee’s finding of the second and third of these requests, from which we may infer that they were found.

How, as it is not probable that the lessee would execute this part of the contract of lease without receiving the landlord’s part executed by him, and as the form of this kind of lease is well known, we think that we must understand from the referee’s report and from these other papers in the case that there was such a landlord’s agreement, although it has not been printed in the case. If there had been no writing signed by the landlord the objection to oral evidence could hardly have been made. For there could have been no agreement in writing on the landlord’s-part which the oral evidence could have tended to vary or contra-diet. In this view of the case the first ground of defendant’s appeal fails.

The second ground is that the alleged oral agreement was collateral and therefore admissible.

Now it is to be noticed that the defendant cannot claim that these fixtures were a payment on the rent. The landlord refused to accept them, and caused them, or at least part of them, to be removed. Jacob H. Farrington testifies that all his fixtures were torn out and were in the middle of the floor. So that, assuming that the plaintiff made the agreement claimed by the defendant, he refused to perform it. While then he may be liable on his refusal for damages caused thereby to the lessee, he cannot be correctly said to have received payment of the rent. Of course if he had received payment, either in money or in anything else accepted as payment, this would have been a credit on the amount payable on the lease. But if he only made an agreement that he would accept certain things in payment, which agreement he afterwards refused to perform, this can give the lease only a counterclaim. The lessee is not bound to assert his damages in an action on the lease. The lessee still has his property and can recover only damages for the breach of the agreement to purchase. Or if the lessor unlawfully retains any of this property and refused to pay the lessee therefor, then the lessor may be liable to the lessee. Hence the surety cannot assert this defense. The plaintiff has not been paid. The surety cannot set up this counterclaim which belongs to the lessee. Gillespie v. Torrance, 25 N. Y., 306. Whether on a proper allegation in the answer of the lessee’s insolvency an equitable set-off of this claim might not be allowed, we need not say. But to such a claim to set off in equity this-.claim of the lessee, the lessee himself would be a necessary party; because the claim belongs to him and he cannot be deprived of it. without his consent or without his being heard.

The judgment, therefore, is right and is affirmed, with costs.

Landon, J.

—I concur. The tenant, in writing, agreed to pay a fixed sum in money for rent. Defendant is his surety. Defendant now claims a contemporaneous' oral agreement to pay part in fixtures; that would substitute fixtures for money and thus vary the writing. Such oral agreement is not a collateral one, and is, therefore, merged in'the written one.

Mayham, J. (dissenting).

—The defendant seeks to establish the defense of payment, by showing a parol agreement between the plaintiff and tenant under which the plaintiff was to take certain improvements and fixtures made by the tenant upon the demised premises, the value of which were to apply on the last installment of rent to fall due under the lease. This evidence was objected to by the plaintiff, on the. ground that the contract reduced to writing was the best evidence, and that all conversations prior to, and at the time of making the lease, were merged in the writing, and could not be used as a defense to the surety.

The ruling was reserved by the referee and the evidence received subject to plaintiff’s motion to strike out. The evidence tended to establish the agreement that the improvements and fixtures put upon the demised premises by the tenant during his term should be taken by the plaintiff, and their value applied upon the last instalment of rent, and that them value was $116.02. The case discloses that. At the conclusion of the evidence the plaintiff moved to strike out all of the evidence to the alleged agreement on the part of the plaintiff to buy any property of J. H. Farrington, or take any of the property or fixtures he had put in the premises, if he would take a lease of the building for another year, and to strike out all testimony of the value of the property. The referee granted the motion, and struck out all such evidence, and the defendant excepted to his ruling. The defendant insists that this was error, for which the judgment should be reversed. It is quite clear that if the fixtures and improvements made by the tenant would have been a good defense or payment as to him, they would enure to the benefit of the surety when he is asked to pay the principal debt Baere & Baere v. Armstrong & Riley, 26 Hun, 19. The surety upon a lease for the payment of rent, can make any defense to the action against him for rent that the tenant could make. Sheary v. Adams, 18 Hun, 181.

This is not in the nature of a right of action arising solely in favor of the tenant, of which the surety, when sued alone, could not avail himself. Springer v. Dwyer, 50 N. Y., 22; Lasher v. Williamson, 55 id., 619. If the value of the fixtures and improvements are available to the tenant for any purpose, they are payments upon the last instalments of rent, and reduce or extinguish alike the liability of the lessee and surety. Was the parol evidence of the parol agreement competent in this case ?

The rule is too well-settled to require the citation of authorities, that where the written contract is, or purports to be complete upon its face, containing the stipulations of both parties, it cannot be altered, modified or varied by any prior or contemporaneous parol agreement between the parties, and that all such parol agreements are deemed to be merged in the writing. But this rule does not apply to writings which purport to express only the agreement of one of the parties, or one side of the agreement, Englehorn v. Reitlinger, 122 N. Y., 80-82; 33 N. Y. State Rep., 275, and cases there cited, nor does it apply to a collateral undertaking, not necessarily a part of the contract. Applying the rules stated in the exceptions to the case under consideration, the evidence offered and excluded would seem to be competent Johnson v. Oppenheim, 55 N. Y., 280; Wilson v. Deen, 74 id., 531; Eighmie v. Taylor, 98 id., 288; Snowden v. Guion, 101 id., 458; Schmittler v. Simon, 114 id., 176; 23 N. Y. State Rep., 160.

In the case at bar the certificate of hiring is only made by the tenant, and contains none of the obligations or liabilities assumed by the plaintiff. We must look outside of it for any obligation on the part of the plaintiff, for quiet enjoyment, or even any possession at all of the premises. It does not purport on its face to express the contract of the lessor. As his part of the contract is not therefore in writing, can it be doubted under the authorities, that they may be proved by parol ? The certificate shows that the lessee agreed to pay rent In the absence of any writing as to what the agreement of the lessor was, may not the defendant prove that he agreed to accept improvements and fixtures at their fair value for the amount of that rent? We think he may. Again, as the plaintiff’s agreement was not reduced to writing, it seems that within these exceptions it would be competent to prove that as an inducement to the lessee to enter into the new lease, the lessor might agree by parol, to allow the last instalment of rent to be paid in the new improvements on the place. That would be an agreement collateral to the lease, and it would seem competent within the authority of the cases. .Batterman v. Pierce, 3 Hill., 172. ISTor does the parol agreement sought to be proved, but excluded by the referee, change the written certificate. It does not relieve the lessee from the payment of rent or reduce the amount of the same; or change the time of payment. The law would apply the fixtures on the rent at the commencement of the last month, and vest the title to them, in the lessor at that time; it is collateral to the certificate but not in conflict with its provisions. Arms v. Arms, 13 N. Y. State Rep., 196; Adams v. Van Brunt, 11 id., 659. If we are right in our conclusion that evidence of this parol agreement to' accept the fixtures and in payment of a portion of the rent; then the exclusion of this evidence was error prejudicial to the rights of the defendant As it would be inequitable and unjust to compel the surety to pay this rent, or the part thereof which would be satisfied by the application of the value of the improvements to the payment of the same. Juilliard v. Chaffee, 92 N. Y., 529.

This case is clearly distinguishable from Costello v. Eddy, 34 N. Y. State Rep., 565. In that case the contract was signed by both parties, and was complete in itself, and the parol evidence offered clearly void in its effect, and the court held that it was properly excluded. In this case, for the reasons above stated, we think it was error to exclude the evidence offered, and to strike out the same on the motion of the plaintiff; and as that ruling prejudiced the legal rights of the defendant, the judgment must, for that reason, be reversed.

This makes it unnecessary to consider the other questions raised by the appellant on this appeal.

I think the judgment should be reversed, referee discharged, and a new trial ordered, costs to abide the event

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    The People, Resp’ts, v. Charles H. Carnrick, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Criminal law—Trial—Intoxication or dependant—Adjournment.
    The minutes returned by a city recorder holding a court of special sessions showed that the defendant was informed of his rights, under §§ 5? and 58 of the Code of Criminal Procedure, to have his case certified for prosecution by indictment, and waived them, and that the defendant's intoxication, if any, was not of such a degree as to incapacitate him from comprehending the statements made to him by the court. Held, that the judgment of conviction would not be disturbed on the affidavit of defendant that he was drunk, and the affidavit of his attorney that the recorder said the defendant was very drunk and that he seemed dazed.
    Appeal from a judgment of Fulton county court of sessions, affirming a judgment of conviction of the recorder’s' court of Gfloversville.

      Clark L. Jordan, for app'lt; William, Green (N. H. Anibal, of counsel), for resp’ts.
   Learned, P. J.

—The questions as to jurisdiction are disposed of in People v. Wilber argued at this term.

The defendant insists that there was an abuse of discretion in the refusal to adjourn on account of the absence of a witness. We think that the affidavit made by defendant for the purpose of obtaining such adjournment does not show so strong a case that we can hold that there was an abuse of discretion upon a matter which necessarily rests largely on the good sense of the trial court.

The defendant also insists that when arrested on the 28th of August he was not in a condition to plead on account of intoxication, and that he did not realize that he was waiving any rights under §§ 57 and 58 of the Code of Criminal Procedure. On the contrary, the minutes returned by the recorder show that the defendant was informed of those rights and waived them; and the recorder makes a special statement in his return that the defendant was informed of those rights, and that his intoxication, if any, was not of such a degree as to incapacitate him from comprehending the statements made to him by the court.

It is, of course, true that one may be in such a mental condition by reason of intoxication as to be incapable of making the request provided for by § 58. But unless there is very strong evidence to impeach the. correctness of the recorder’s return, we should accept it as correct. Here there is only the defendant’s statement and the affidavit of the counsel that the recorder said defendant was very drunk when brought before him, and that after the arrest defendant seemed to his counsel to be in a dazed condition.

No proceedings were taken, under § 758 Code of Criminal Procedure, to compel an amended return.

The evidence of the assault was abundant and was not contradicted. No defense was made by the defendant upon the trial

The judgment óf-the sessions is affirmed.

Landon and Matham, JJ., concur.


text:
    Walter B. Bonney, Resp’t, v. James Paul et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Jurisdiction—Loss or—Justice’s court—Continuance by agreement op counsel.
    In an action brought in a justice’s court, a verbal agreement was made between counsel ihat the cause should be adjourned to a day thereafter to be agreed upon by them, and if such time could not be determined by counsel, then it to be fixed by the court. Plaintiff’s counsel told the justice that they had agreed upon a certain day, and the justice notified defendants’ counsel, and he telegraphed to his client, but could get no reply. On the day so fixed a judgment by default was taken for plaintiff. Held, that the verbal agreement was too loóse to keep the cause in court, and that jurisdiction over the parties was lost, and that the judgment against defendants must be reversed.
    Appeal from a judgment of St. Lawrence county court, affirming a judgment of a justice’s court. Defendant Paul appeals.

      John C. Keeler, for app’lts; Horace D. Ellsworth, for resp’t.
   Learned, P. J.

—The plaintiff sued Paul and Crowe, defendants, in a justice’s court for goods sold and delivered. The defendants appeared and answered, admitting that they were partners and denying the other allegations and setting up payment. The case was adjourned and was finally tried January 26th before a jury, who could not agree and were discharged. On that trial defendant Crowe testified that he was twenty years of age. The cause was then adjourned to such time as should be agreed on by ■counsel for the respective parties ; if the time should not be determined by the counsel, then to be determined by the court.

Subsequently plaintiff’s counsel told the justice that they had agreed to try the cause on the 13th of February. On the 11th of February the justice saw the defendant’s counsel and. told him this, and he said “ all rightthat he was telegraphing his client, Crowe. The next day he told the justice he could get no reply from Crowe.

On the 13th a jury was summoned. Defendant Crowe had been in court. But on calling the case, and after waiting an hour, neither defendant appeared. Plaintiff waived a jury, and a judgment was taken for plaintiff.

On appeal the county court reversed the judgment as to Crowe and affirmed it as to Paul. The ground of reversal according to the opinion is, error of fact, on the ground that Crowe was an infant and did not appeal by guardian. Paul appeals.

We are satisfied that the agreement of the counsel as to adjournment made on the 26th of January cannot be held effectual to keep the cause in court. If the parties had subsequently agreed on a day and had thereupon met at the justice’s office and proceeded with the trial, the case would be very different. But a general and verbal agreement that they would thereafter agree upon a day and that if they did not agree the court might appoint the day is altogether too loose to be permitted. If valid it would enable the justice to appoint any time he might choose and to give such notice, or no notice, to the parties as he might think best.

There was no agreement by the counsel except verbal talk out •of court. It would be quite unsafe to give effect to any such verbal agreements. The case of Flynn v. Hancock, 46 Hun, 369; 15 N. Y. State Rep., 145, in principle applies to this case. And we approve the remarks there made.

As to the other points we have some doubt whether there was any proper evidence before the county court that Crowe was an infant. The matter should have been shown by affidavits or by examination of witnesses before the county court. Code, § 3057. But the plaintiff has not appeared and Crowe is not before us even as respondent. It is, therefore, unnecessary to decide anything on that point.

We are of the opinion that the jurisdiction over the parties was lost. And the judgment of the county court and that of the. justice’s against Paul must be reversed, with costs.

Landon and Mayham, JJ., concur.