text:
    The City of Schenectady, Resp’t, v. Robert Furman, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 9, 1891.)

    1. Municipal corporations—Resolution to widen stream.
    The common council of the city of Schenectady passed a resolution declaring that there were obstructions and deposits in a stream running through defendant’s premises; describing a proper grade or width thereof; declaring that all earth, etc., outside of those limits were obstructions and deposits, and directing their removal. This was confirmed upon notice given as required by § 61 of title 7 of the charter. Thereafter the resolution was amended as to the width of the stream without notice, and the work was done by the city, under the resolution as amended, Held, that the common council had no power to amend the resolution without notice to the parties interested.
    2. Same.
    In doing the work it became necessary to remove a portion of the banks of the stream and the trees growing thereon. In an action for the expense of such work, Held, that they were not obstructions or deposits, and that the city could not take action to remove them under § 51 of title 7 until they had been established as such by a jury.
    3. Same—Defining boundaries.
    The common council has no power, under § 16 of title 3 of the charter, to declare the boundaries and grade of a stream where the effect of such declaration is to take away a portion of the original banks, which are the property of the riparian owner.

      4. Same—Counterclaim:.
    In an action to recover the expense of doing such work, where the owner failed to do so, the owner cannot counterclaim for injuries caused to the land by the doing of said work.
    Appeal from judgment in favor of plaintiff, entered on verdict directed by the court

      Robert J. London, for app’lt; S. W. Jackson, for’resp’t.
   Learned, P. J.

—This action is brought to recover the expense of work done by the plaintiff, through its superintendent of streets, in removing alleged obstructions and deposits in that part of a certain stream called Mill Creek which runs through defendant’s land. The stream is a natural watercourse, not navigable, and the part in question is wholly within defendant’s land. The bed of this stream therefore is his, and he is the riparian owner. As such he has a right to the use of the water, being also under obligations to the owner below him in respect to the manner of its use. The plaintiff is not shown to be a riparian owner of any part of the stream,- or to have any rights whatever therein. Although this part of the stream is within the boundaries of the city, still it is not a public highway, but belongs to the several riparian ownérs, according to the settled rules of law in respect to such streams. Bickett v. Morris, L. R., 1 House of Lords Scotch Appeal Cases, 47. The plaintiff claims no right as riparian owner. But it claims authority under the charter of the city. The impor-" tant sections are to be found in chapter 97, Laws 1889, the sixth section of which amends the charter by adding on § 61 to title 7; in chapter 62 of the Laws of 1873, the thirty-second section of which amends title 7, of which amended title §§ 48, 52 and 53, on pages 135 and 136, are material; in chapter 146 of Laws of 1877, § 2 of which amends title 3 by adding a new § 16, and § 3 . amends the fifty-first section of title 7, as it has been enacted by the law of -1873 aforesaid. .

Section 16, above mentioned, declares that the common council-shall have power to establish and define the boundaries and grades of the natural watercourses and streams in said city, and to provide for and compel the removal of obstructions, encroachments and deposits. The section contains this proviso: “ Provided, that none of the rights of any of the owners of lands bounded or abutting upon such watercourses or streams shall be impaired or affected by this act.”

On the 16th of April, 1889, the common council passed a resolution of several clauses. The first declares that there are obstructions and deposits in' a certain part of Mill Creek; the third describes a certain grade or width of said creek (being generally a width of eight feet at the bottom and with side banks sloping one and one-half to one) for a certain distance. This „ it declares to be the “ natural and normal grade of the said portion of said creek, and all earth and other matter lying in and above such grade and channel, as so described, are obstructions and deposits in said stream.”

The fourth clause directs the owners and occupants of land adjoining said portion of said creek to remove said obstructions and deposits on or before eertain days; and the fifth directs the superintendent of streets to do the work if the owners and occupants fail, and declares that the expense shall be assessed on the lot.

A notice of five days was given pursuant to § 61, and the resolution was confirmed April 23d.

On the 7th of May the common council amended the resolution so adopted and confirmed by making the width of the bottom of the creek less and the slope of the banks different.

On the 9th of July the common council ordered the superintendent of streets to enforce these resolutions, including that of May 7th, and to do the work which the parties had neglected to do.

On the 8th of October the common council audited his account for doing such work, and ordered the city attorney to sue for and collect the accounts remaining unpaid. Therefore, this action was brought.

It will be seen that the resolution of July 9th directed the superintendent to do this work under the resolutions of April 16th, April 23d and May 7th. The superintendent testifies that he did the work under the resolution as amended. It does not lie with the plaintiff to say, therefore, that the amendatory resolution of May 7th was of no effect. The plaintiff treated it as valid, and the work was done accordingly.

How § 61, above mentioned, is explicit on this point. After the common council has passed a resolution of this kind it must give five days notice; and at the time and place mentioned in the notice shall hear all parties interested, and after such hearing shall consider the ordinance and may confirm, modify or rescind. “Ho such ordinance or resolution shall create any duty or obligation until it shall be confirmed or modified as aforesaid. ” The common council did, on the 23rd of April, confirm that resolution. They then, on the 7th of May, amended it, without notice to the parties interested. This they had no right to do. All their subsequent action was based upon that amendment. They did not cause the alleged obstructions and deposits to be removed according to the resolution of April 23rd, but according to that of May 7th.

There is no force in saying that the resolution of May 7th diminished the amount to be removed. The parties interested had a right to be heard as to the matter. They might have good reason for desiring that the resolution, as originally passed, should be carried out. The plaintiff cannot urge that the defendant was not injured by the change. The notice of five days was jurisdictional ; and when the common council had acted, they could not change the resolution ; at least not without again giving the .required notice.

Probably after the resolution of April 23rd the common council were not bound to do the work. But if they did proceed with the work they must proceed under that. resolution and under no other; if, indeed, they had any right to proceed at all.

A more important question is upon the right of the plaintiff to do the acts for which it claims compensation, even supposing that the resolution had been properly passed and confirmed and had not been affected by any subsequent resolution.

Section 16, tit. 3, of the charter says that the common council may remove encroachments in the manner thereinafter provided. Section 51 of tit. 7 uses the same language, but says that no action shall be taken based on alleged encroachments until the encroachment shall have been established as provided in §§ 4, 5, 6 and 7 of that title. Now it is not pretended that any proceedings were taken under these §§ 4, 5, 6 and 7 to establish that there was an encroachment. For these proceedings provide for a trial by jury. And the plaintiff, on this argument, has insisted that its action was not taken under the clause against encroachments, but under the clause of § 51, to remove deposits and obstacles.

Now if the plaintiff’s action was not to remove encroachments it follows that plaintiff could not lawfully remove any of the existing banks of the stream. For if such banks were in any respect an interference with the flow of the stream, then they must be encroachments thereon and could not be deposits or obstructions in the stream. A bank is not a deposit in the stream nor is it an obstruction, as distinct from an encroachment. It appears from the evidence that there were trees along the banks where the stream passed through defendant’s land, which trees the plaintiff cut down and the roots of which plaintiff dug out. This fact shows that these trees and the banks on which they stood could not have been deposits or obstructions in the stream. If these banks and these trees were nearer to the center of the stream than the original banks were, then they might be encroachments. If they were claimed to be encroachments then the plaintiff could not act in respect to them except under the sections above cited giving a jury trial, etc. But no such proceedings were taken.

Very plainly the plaintiff cannot by calling an encroachment a deposit deprive the defendant of his right to a jury trial. Ahd the words deposits and obstructions plainly designate different things from the word encroachments.

But the plaintiff claims under § 16 above cited the right to establish and define by resolution the boundaries and grade of this stream, and claims that by its resolution it did this. The first objection to this is that defendant had no opportunity to be heard. There is no provision in § 16 for publishing a notice and for giving a hearing to the parties interested. That provision is found in § 51 above cited of another title and refers fo the resolution directing the removal of deposits and obstructions. Section 51 says nothing about establishing the boundaries and the grade. If there is any authority to do this, it is found only in § 16; and that section does not provide for a hearing. If that section is valid, therefore, the common council may, by resolution, declare the boundaries and grade of this stream. It may thus make new boundaries and a new grade, and may cause the natural boundaries to become encroachments in violation of the rights of the riparian owner, and contrary to the provisions of §§ 4, 5, 6, and 7 above .cited respecting encroachments.

But the natural boundaries and grade of this stream as it passes through defendant’s land, limit and define the defendant’s right of property. He is the owner of the banks as they naturally stand. To widen the stream and take away his banks is to deprive him of his property. The plaintiff cannot do this by resolution. The plaintiff cannot, without depriving defendant of his property, make the stream wider than it naturally was. It needs no argument to show that, to declare a stream to be ten feet wide which' was originally only five, takes, if the declaration has any force, a strip of land from the riparian owner.

The legislature seems to have appreciated this. For in this § 16 they provided that none of the rights of the owners of land bounded or abutting upon such watercourse or stream should be impaired or affected by .this act. Hence, it is apparent that no resolution passed under this section could deprive the defendant of his rights as riparian owner, or take away any of his property. The legislature might as well authorize the common council to establish and define the boundaries of defendant's land on all sides.

What rights the plaintiff may have to remove deposits and obstructions in the actual channel we need not decide. It did much more. It cut away the existing banks of the stream on defendant’s land and the trees which stood thereon. And it did this on the pretended authority of a resolution which attempted to establish a different width and a different grade of the stream from 'those which actually existed. If the width and grade had not been different from those which existed, the banks and trees would not have been disturbed.

It is no answer to this that defendant had notice of the second passage of the resolution. The last clause of § 16 limited plaint-tiff’s power, notice or no notice.' And, as has above been shown, the charter provides for no notice of the establishment of boundaries and grade. Hven if there were no such clause in § 16, the law makes such a clause. Ho common council can by resolution take away private property under the pretence of establishing its boundary.

If this be defended as the taking of private property for public use, the answer is that no compensation is provided. Worse still, the defendant is made to pay for being deprived of his property. If the public good required a wider watercourse and a different grade and for that purpose defendant’s property was needed, then he should have been compensated.

The resolution sBows plainly its faulty character. It lays down a certain grade and a certain width of the bottom and a certain slope of the bank and then declares that all earth and other matter lying in and above such grade and channel are obstructions and deposits in the stream. Evidently therefore the common council assumed the right to make a new channel of different dimensions from the old and to call everything above such channel deposits and obstructions. The common council could with equal propriety have made a new channel in a new place through defendant’s land and have called the earth 'syhich it would be necessary to remove “ deposits and obstructions.”

It cannot be necessary to cite authorities to show that the defendant was owner of the land over which the stream flowed, and had a right to the use of the stream, subject only to the similar rights of the upper and lower proprieters. The common council is' not a tribunal to determine these rights. And defendant offered to show that after the passage of the resolution he cleaned out the stream so that it was of the same width and depth that it had been for many years prior thereto, but this evidence was excluded. This was in effect holding that the common council had a right to make by resolution the width and depth of the stream greater than they had been; that is, to establish and declare boundaries other than they originally were.

After the work had been done the superintendent of streets returned the amount to the common council and that body audited it under § 48. If we look at the charter as amended by chapter 62, Laws of 1873, we find that title 7, containing sixty sections, is re-enacted with amendments. Section 51 of that title is again amended by chapter 146, Laws of 1877. Section 53 authorizes the expense to be audited and enforced as specified in reference to paving streets. And the provisions as to enforcing the expense of paving are found in the previous § 48. This declares that the city may recover from the owner or occupant the sum audited, with twelve per cent interest; and that the account certified as audited shall be presumptive evidence to entitle the city to recover. Now, this auditing is done without any notice to defendant. He is not in any way a party. The work may be done without his knowledge; the superintendent states the amount expended without defendant’s knowledge. He determines what the extent of defendant’s property is and how much labor was expended in front of it. On this ex parte statement the common council, without giving defendant an opportunity to be heard, audit and allow the account. And such audit and allowance is presumptive evidence against defendant. The defendant urges that under Stuart v. Palmer, 74 N. Y., 183, and similar cases, this provision is unconstitutional. In the view we have taken of other questions it becomes unnecessary to decide this point We are, however, inclined to think that, as the audit is only presumptive evidence, the defendant has his day in court by having the right to show the value and extent of the work done in front of his land. Hagar v. Reclamation Dist., 111 U. S., 701.

The defendant set up a counterclaim for injury done to his land. And the question arises whether, if-plaintiff cannot recover, defendant may be allowed to prove this counterclaim in this action.

By an amendment of 1877, § 501 of the Code contains the words: “ Must tend in some way to diminish or defeat plaintiff’s recovery.” These were not in the section when the case of Glen & Hall Mfg. Co. v. Hall, 61 N. Y., 226, was decided.

Flow if the plaintiff is entitled to recover in this case on the cuase of action alleged, then plaintiff committed no trespass and defendant has no right of action. This counterclaim cannot tend to diminish or defeat plaintiff’s recovery. It is entirely inconsistent with any cause of action on plaintiff’s part In Carpenter v. Man. L. I. Co., 93 N. Y., 552, the plaintiff had a cause of action against the defendant for the conversion of the wood. Defendant’s counterclaim arose out of its equitable right as mortgagee to insist that its security should not be changed by plaintiff’s cutting the wood. The counterclaim therefore tended to defeat plaintiff’s legal claim.

This present action is brought under the charter to recover for money expended by plaintiff; and is in the nature of an action for money paid for the benefit of defendant. Section 48. Although we are not disposed to say that it is an action on contract. The counterclaim is for trespass committed by plaintiff by the acts in doing which the money was expended. It probably could not be said that this counterclaim for trespass arose out of the transaction set forth as the foundation of plaintiff’s claim. People v. Dennison, 84 N. Y., 272. The work done by plaintiff on the land would not constitute the claim. That must arise on the previous resolutions and the subsequent audit. If plaintiff is correct in its claim the audit is evidence, without proof of the work.

At any rate the work alone is not the foundation of plaintiff’s claim. And however this may be, we think that the clause above cited from the section shows that the allegations of defendant’s answer cannot be allowed as a counterclaim. For it is evident that they could not be proved as a claim until it was decided that plaintiff had no claim. Hence they could not diminish or defeat plaintiff’s recovery.

The judgment should be reversed, new trial granted, costs to abide event.

Mayham, J. concurs; Landon, J. not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Supreme Court—General Term—First Department.
    Filed June 12, 1891.
    Henry Rosellen, Assignee, Resp’t, v. Henry Henrich et al., App’lts.
   Order affirmed, with ten.dollars costs and disbursements, on opinion of court below.


text:
    James T. Leavitt et al., Resp’ts, v. Gustave M. Miller et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John Parker et al. v. Maria Linden et al.

   Motion denied, with ten dollars costs. ’


text:
    The German-American Title Guarantee Co. v. G. J. W. Van Slingerlandt et al.

   Motion granted.


text:
    James Abbott v. The Petersburg Granite, etc., Co.
   Motion denied, with ten dollars costs.


text:
    The People v. Henry G. McGonegal.
   Motion denied.


text:
    The People v. William N. Loew.
   Motion denied.


text:
    In the Matter of the Application of Janet Kingsland, Ex’rx, of Henry Foster Topping, Deceased.
   Motion denied, with ten dollars costs.


text:
    Filed June 26, 1891.
    James Graley, an Infant, v. The Harlem Bridge, etc., R. Co. et al.

   Order affirmed, without costs.


author: Van Brunt, P. J.

text:
    Walter Langdon, Pl’ff, v. The Mayor, &c., of New York, Def’t.
    Motion to confirm referee’s report and for judgment.

      W. H. Peckham, W. J. Marrin and T. L. Ogden, for pl’ff; T. P. Wickes, for def’t.
   Van Brunt, P. J.

—A similar motion upon the former report of the referee

herein came before this court upon a previous occasion and at that time the court being of opinion that the valuation of the referee was too low and the claim of the plaintiff too high, and that the referee had excluded competent testimony which might have afforded a fair ground upon which an estimate of value might he founded, referred the case hack to the referee to take such additional proof as might be offered by the parties. Upon such rehearing before said referee such additional testimony was taken, and founding his decision thereon the referee has reported what seems to this court to he a fair valuation of the rights of which the plaintiff has been deprived by the action of the defendant.

It is not necessary in the present disposition of this motion to discuss the evidence at length which was introduced on either side, as such evidence upon the previous motion was examined and considered and a conclusion come to in respect thereto. It was there plainly intimated in the opinion of the court that if the testimony which was excluded had been received a basis would have been formed upon which a proper award by. way of damges might have been made to the plaintiff.

It is claimed upon this motion by the plaintiff that the valuation of the referee is too low, and by the city that it is too high. But we think upon a consideration of the whole case that the referee’s report should now be confirmed and judgment given to the plaintiff based upon the valuation found by him at the time of the appropriation of the said property by the city and interest thereon.

There is also a motion for an extra allowance, which motion in our opinion should he granted and the plaintiff allowed five per cent upon the amount, recovered.

Barrett and Patterson, JJ., concur,


text:
    Marion Langdon, Pl’ff, v. The Mayor, &c., of New York, Def’t.
    W. H. Peakham, W. V. Martin and Thos. L. Ogden, for pl’ff; Thos. P. Wickes, for def’t.
   Referee’s report affirmed and the plaintiff recover judgment as stated in opinion in Walter Langdon v. The Mayor, decided herewith, with interest upon the amount of award from the time of the appropriation of said property by the city, with $3,000 extra allowance.


text:
    John H. Riker, Ex’r, Resp’t, v. Sampson S. Leo et al., App’lts.
    Appeal from judgment entered upon decision after trial at special term.

      Louis Marshall and A. L. Sanger, for app’lts; John E. Parsons, for resp’t.
   Van Brunt, P. J.

—This case has been before this court upon a previous appeal, and also before the court of appeals, in which court the conclusion arrived at in this court was reversed.

We do not see that the case occupies any different or other position from what it did upon the previous appeal, and the decision of the court of appeals is therefore conclusive upon us; and it is not necessary to again discuss the questions which appear to have been definitely determined by the court of 1-st resort. Upon the trial which resulted in the judgment from which this appeal is taken the directions of the court of appeals were followed and the judgment, should, therefore, be affirmed, with costs.

Barrett, J., concurs.


author: Dykman, J.

text:
    General Term—Second Department.
    Filed July 2, 1891.
    Margarethe Renderle, Resp’t, v. Elizabeth Finken et al., Impl’d, App’lts.
    Appeal from judgment in favor of plaintiff.

      G. W. Wickersham, for app’lts; F. P. Trautman, for resp’t.
   Dykman, J.

John H. Riker, Ex’r, Resp’t, v. Sampson S. Leo et al., App’ltsaction was commenced to procure the nullification and cancellation of a deed made by the plaintiff to the defendant Elizabeth Finken, and have the deed from Elizabeth Finken to Lizzie Haviland adjudged to have been taken subject to all the eq.dties existing between the plaintiff and Elizabeth Finken.

The plaintiff’s claim to relief was based upon the fraud of the defendant Elizabeth Finken exerted in the procurement of a deed of conveyance of all her right, title and interest in and to the property and estate of her sister Treno-Yung, deceased.

The facts and circumstances constituting the fraud upon which the plaintiff relies for relief are set out fully in the complaint, and after a trial at the-special term the facts were found by the trial judge substantially in accordance whith the allegations in the complaint.

Two-of the defendants have appealed from the judgment entered upon the findings of the judge, and also from an order denying a motion for a new trial upon a case, but the appeal is entirely destitute of merit.

The testimony introduced by the plaintiff upon the trial made a plain case of fraud and over-reaching, and it was entirely unanswered.

The findings of the trial judge are strongly in favor of the plaintiff, and they could not well have been otherwise without a disregard of convincing testimony and circumstances, the most material and satisfactory of which stands undisputed.

The judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Joseph H. Colyer, App’lt, v. Mary Louise Williams et al., Resp’ts.
    Appeal from judgment dismissing complaint.

      James Troy, for app’lt; Carpenter & Roderick and W. M. Benedict, for resp’ts.
   Dykman, J.

—This action was commenced to compel the specific performance of a contract for the sale of land to the plaintiff by Mary Louise Bragaw and John Bragaw, her husband.

The title to the land was in the wife and she is dead, and the trustee under her last will and testament and the other defendants who answered set up the incompetency of Mary L. Bragaw to attend to business or understand or com, prehend the purport and meaning or effect, character or contents of the contract upon which the action is based.

The trial judge found all the facts set up by way of defense substantially as they were alleged and dismissed the plaintiff’s complaint.

The testimony fully sustains the findings, and all the facts and circumstances surrounding the transaction show plainly that it is not a case where a court of equity will decree a specific performance of the contract.

The exception to the exclusion of testimony is not well founded and the record discloses no error.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs.


text:
    Levi P. Rose, App’lt, v. David Hawley et al., Resp’ts.
    Appeal from judgment sustaining demurrers to complaint.

      James M. Hunt, for app’lt; Theodore Fitch and Joseph F. Daly, for resp’ts.
   Dykman, J.

-We cannot see that the statement of facts in the ninth paragraph of the complaint makes a new case.

All decisions are based upon some reason, and frequently the difficulty which caused the defeat might have been obviated if suggested, but such oversight does not deprive the decision of finality.

So we conclude that the decision of the court of appeals in the former action is conclusive and that the judgment must be affirmed, with costs.

Pratt, J., concurs.


text:
    James E. Hartwick, Resp’t, v. John McGinnis et al., App’lts.
    Appeal from judgment in favor of plaintiff.

      John McCormick, for app’lts; Arthur S. Tompkins, for resp't.
   Dykman, J.

—The plaintiff in this action recovered a judgment against the defendants in a court of a justice of the peace for the sum of $100,

The defendants appealed to the county court where the judgment was affirmed, and now they have appealed to this court.

The action was for services, and the evidence fully sustains the conclusion of the justice.

There were no errors committed which affect the merits, and the case requires no elaboration.

The opinion of the county judge is full and satisfactory, and the appeal is destitute of merit.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    Rafael Pentlarge, Resp’t, v. George B. Eddy, App’lt.
    Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for new trial.

      George Wilcox, for app’lt; Hugo Hirsh, for resp’t.
   Pratt, J.

—The cause was submitted to the jury on a single question which was determined in plaintiff’s favor. We think it was properly submitted and the verdict decisive of the case.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Thomas Kitson, Resp’t, v. Frederick D. Blake, Impl’d, App’lt. Thomas Kitson, Resp’t, v. Sarah F. Blake, App’lt.
    Appeals from orders denying motions to open defaults and set aside the judgments in each case.

      C. Bainbridge Smith, for app’lts; Carlisle Norwood, Jr., for resp’t.
   Dykman, J.

—These are appeals from orders denying a motion in each of the cases to open a default taken at the circuit.

The actions are brought upon promissory notes, and there have been several other actions of the same kind in which defaults have been taken under similar circumstances and appeals have been taken from orders denying motions to open such defaults.

One of those appeals was decided at the last general term and our examination satisfied us that the defendants were destitute of defence to the actions, and that no sufficient reason was presented to the trial court for a postponement of the trial.

These appeals present substantially similar questions and we find no reason for any different conclusion.

The orders should he affirmed, with ten dollars costs, and disbursements. Barnard, P. J., and Pratt, J., concur.


text:
    Herman Weiler v. Dominick P. Sweeney.
   Order affirmed for non-service of papers on appeal, with costs.


text:
    Eleanor J. Mattice v. Richard B. Mattice.
   Order affirmed for non-service of printed papers according to order.


text:
    In the Matter of the Accounts and Annual Statement of James Williams, County Treasurer of Orange County.
   Order granted.


text:
    In the Matter of the Application of The Seaside & Brooklyn Bridge El R. R. Co.
   Order confirming report of commissioners granted.


text:
    General Term—Third Department.
    Filed July 11, 1891.
    Charles Oberle, Resp’t, v. The Lang Mfg. Co., App’lt.
   Motion to go to court of appeals, or for re-argument, or to modify. Judg ment reversed and new trial ordered, with costs to abide event, unless plaintiff stipulates to allow ten dollars, and if allowed then affirmed, with costs.


text:
    General Term—Fourth Department.
    Filed July 7, 1891.
    George Oster, App’lt, v. James Tolman and Rebecca Tolman, Impl’d, Resp’ts.
   Judgment affirmed, with costs, on the opinion of H. V. Howland, referee.


text:
    In the Matter of the Application of Mary Walker, App’lt, for Relief from an Order that she make Payments to The Superintendent of the Poor of Oneida County, Resp’t.
   Order affirmed. Mem. by Hardin, P. J.


text:
    Edwin R. Briggs, Resp’t, v. Elmina L. Hart, App’lt.
   Judgment of the county court of Madison county, affirming a justice’s judgment, affirmed, with costs. Mem. by Hardin, P. J.


text:
    The People ex rel. Morris A. Young, Resp’t, v. Charles Straight, Clerk of the Village of Wellsburg, App’lt.
   Order affirmed, with costs.


text:
    Ann Tucker, Resp’t, v. The United Life & Accident Ins. Ass’n, App’lt.
   Judgment and order affirmed, with costs. Mem. by Hardin, P. J.


text:
    Joseph Pailca, Resp’t, v. David J. Hamburger, App’lt.
   Judgment and order of the county court of Onondaga county affirmed, with costs. Mem. by Hardin, P. J.


text:
    The Knickerbocker Co., Resp’t, v. Alfred G. Burnham, App’lt.
   Judgment affirmed, with, costs, on the opinion of Williams, J., delivered at special term.


text:
    John A. Muldoon, Resp’t, v. Jerusha Deline, App’lt.
   Judgment and order affirmed, with costs. Mem,, by Hardin, P. J


text:
    Edwin E. Cole, Resp’t, v. Orson D. Clark, App’lt.
   Judgment of the county court of Madison county, affirming a justice’s judgment, affirmed, with costs.


text:
    Edwin E. Cole, Resp’t, v. William Richards, App’lt.
   Judgment of the county court of Onondaga county, affirming a justice’s judgment, affirmed, with costs. Mem,, by Hardin, P. J.


text:
    Fanny H. Hamilton (in behalf of herself and all other stockholders of the defendant corporation), Resp't, v. The Courier Printing Co. and Milton H. Northrup, App’lts.
   Interlocutory judgment affirmed on the opinion of Kennedy, J., delivered at special term, with leave to defendants to answer upon payment of the costs of the demurrer and one bill of costs on this appeal.


text:
    Frederick C. Friess, an Infant, by John Friess, his guardian, ad litem,, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.
   Order modified by striking out the words “ with costs to abide the event” and substituting in place thereof “ upon the payment of costs,” and the order as modified affirmed, with costs to the appellant. Mem. by Hardin, P. J.


text:
    Frank Lamereaux, Resp’t, v. Jonas Rivenburgh, App’lt.
   Judgment and order affirmed, with costs.


text:
    Hiram Gilmore, Resp’t, v. The Warren-Scharf Ashphalt Paving Co., Impl’d, App’lt.
   Order modified so as to allow the appellant §36.99 disbursements, and as modified affirmed, without costs to either party on their appeal.


text:
    The Bank of Syracuse, Resp’t, v. The Wisconsin Marine & Fire Ins. Co. Bank, App’lt.
   Motion for leave to go to the court of appeals denied.


text:
    Lydia O. Burland, Admr’x, Resp’t, v. Samuel Clare et al., App’lts.
   Appeal from order dismissed and judgment affirmed, with costs.


text:
    Jennie L. Lines, Resp’t, v. Hector B. Johnson, App’lt.
   Judgment and decree affirmed, with costs.


text:
    Andrew J. Feck, Resp’t, v. John Wooley, App'lt.
   Order modified so as to allow new trial on condition that the plaintiff pay the costs of the former trial, and as modified affirmed, with costs of this appeal.


text:
    Charles E. Crouse and Daniel Ackerman, App’lts, v. Frederick Reichert, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles Gilbert et al., Resp’ts, v. Philip Schram, App’lt.
   Judgment affirmed, with costs.


author: Per Curiam.

text:
    New York Superior Court—General Term.
    Filed June 1, 1891.
    William L. Cole, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    Appeal by defendants from judgment entered on findings, etc., at special .term.

      Davies & Rapallo, for app’lts; Peckham & Tyler, for resp’t.
   Per Curiam.

—Judgment affirmed, with costs.


text:
    Elizabeth J. Haynes, Resp’t, v. Elizabeth W. Aldrich, Appl’t.
    Appeal from judgment entered on verdict directed by trial judge in favor of plaintiff.

      O. E. Bright, for app’lt; S. L. Olin, for resp’t.
   Per Curiam.

—The judgment herein will be affirmed, with costs.


text:
    Eliza McKernan, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from judgment entered upon the decision of a judge after a. trial of the issues at special term.

      Davies & Rapallo, for app’lts; Jeroloman & Arrowsmith, for resp’t.
   Per Curiam.

—Judgment affirmed, with costs.


author: Landon, J.

text:
    National Ulster County Bank, App’lt, v. Michael J. Madden, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed June, 1886.)

    1. Evidence—Bills and notes—When abstract or check admissible to PROVE ALTERATION-NOT WITHIN THE RULES EXCLUDING MEMORANDA.
    Where the defendant was sued upon his indorsement upon certain separate checks of different dates and his defense was that the words and figures, “ payable January 32, ’83,” were fraudulently inserted in each check after defendant had made his indorsement and delivered the checks. He testified to these facts and under objection and exception was permitted to testify that at the time he endorsed each check and before he delivered . it, he made an entry in a book which he kept for the purpose; of the date, amount, maker, endorser, time and place of payment of every check. He produced the book and under objection read these entries with respect to every check, testifying that these entries corresponded with each check as it stood when he endorsed it. Held, that the entries were competent evidence and properly received. Guy v. Mead, 22 N. Y., 462, followed.
    2. Same—Corroborative evidence admissible.
    The truth of the defendant’s testimony denying that the words fixing a future day of payment were in the original checks was contradicted by the checks themselves, and later, by the testimony of the drawer. Held, that any relevant circumstance corroborative of the defendant’s testimony was admissible and this evidence being corroborative is admissible.
    8. Same'—Instruction to jury.
    The court was right in> holding and instructing the jury that the single question upon which their verdict depended was whether or not the check . had been altered.
    ' Appeal from a judgment in favor of defendant entered upon the verdict of a jury at the Ulster circuit.

      M. Schoonmaker and F. L. Westbrook, for app’lt; F. S. Wood and A. Schoonmaker, for resp’t.
   Landon, J.

The defendant was sued upon his indorsement upon eighteen separate checks of different dates, of seventy-five dollars each. Ail are similar to No. 1, of which the following is a copy:

No. 1. Rondout, N. Y., October 18, 1882.
The National Bank of Rondout.
Pay to the order of M. J. Madden, seventy-five dollars.
Payable January 22, ’83.
$75.00. S. M. FOWKS.
H. F., Att'y.
Indorsed : M. J. Madden.

The sole defense was that the words and figures “payable Jan. 22, ’83,” and similar words and figures in each of the other checks were fraudulently inserted, after the defendant had made his indorsement and delivered the check. The defendant testified that when he indorse'd and delivered the checks, none of them contained such words and figures, and that he never consented to such alteration. He also testified that in this respect his recollection was clear and positive. He was permitted, in opposition to the objection and exception of the plaintiff, to testify that at the time he indorsed each check, and before he delivered it, he made an entry in a book, which he kept for the purpose, of the date, amount, maker, indorser, time and place of payment of every check. He produced the book and, the objection of plaintiff being overruled, read these entries with respect to every check. He testified that these entries corresponded with each check, as it stood when he indorsed it. The admissibility of this evidence is here for review. No point is made with respect to the manner in which the entries were proved, but their competency as evidence, whether read or described, is challenged. Their materiality is conceded. We think they were competent.

In Guy v. Mead (22 N. Y., 462) the question was whether an indorsement upon the promissory note in suit was made February, 1849, or February, 1847. 'If on the earlier date, the statute of limitations was a bar. It was conceded that the indorsement was made when the payment was made, and there was a suggestion that the date had been altered. A witness was called in order to establish the later date; he testified that he, on the 1st of April, 1848, computed the interest upon the note, and he produced the original paper containing his figures. No account was therein 'stated of the indorsement in question; but assuming theie was then no such indorsement, the computation was complete. The witness testified that, though he had no recollection, he did not doubt that the indorsement did not then exist. He was not permitted to read the paper in evidence, and the court of appeals held that to be an erroneous ruling. It is true that that case differs from this in the single fact that, independently of the paper, the witness had no recollection, of the then non-existence of the writing in dispute upon the note. But the court does not place its decision upon that ground. The court remarks: “If this computation of interest was actually made, as stated, in April, 1848, for the purpose of ascertaining the amount due on the note, the memorandum of it then made is one of the most satisfactory pieces of evidence which could be adduced as to the existence of the indorsement. * * * It furnishes written evidence of the most authentic character, * * * more persuasive than any amount of oral statement.”

The case cited and the case at bar are clearly distinguishable from the many cases in.the books, some of which are reviewed in Waldele v. New York Central and Hudson River Railroad Company (95 N. Y., 274), in which it is held that an oral or written narrative of a transaction already past is not admissible. It is plain that the subsequent declaration of a fact is no part of the fact itself. The case is also distinguishable from that class of cases in which a memorandum, sworn to have been truthfully made, is used as a substitute for a lost memory, or in which any memorandum is used to refresh a failing recollection.

This abstract is from the face of the check itself. A declaration or memorandum of a transaction, unless it is the spoken or written part of the transaction itself, and thus the res gestee, proceeds from the memory. This memorandum did not so proceed. The original face of the check is the question in dispute. Suppose the defendant, with the check before him, and before he delivered it, had made an exact copy,of it. The check itself contributes its face, and the defendant transcribes it. The contribution and transcription are simultaneously made, while the check is still a true check. Have we not here something like the res gestee of the true qheck itself ? A true copy diners from a true abstract only in degree. If a photographic copy had been taken, it would probably have been admissible. Cozzens v. Higgins, 3 Keyes, 206. Could not the stub of a check be read as evidence of the alteration of the check itself and as part of the res gestee of the transaction of making the original check? If so, this abstract made upon indorsement is the res gestcB of the indorsement. The defendant, while the check was before him, examined it and at the same time wrote this abstract of its face. The abstract thus becomes part of the res gestee of his examination. Now, it may be true enough that the indorsement is not in question, and that the defendant’s examination of the check is not in question, but it does not thence follow that the res gestee of either are immaterial; the indorsement and examination are evidentiary facts, in which the fact required, namely, the true face of the check, could not fail to speak the truth of itself, and that truth then and thus spoken is what we seek. But upon whatever ground we place it, the evidence is obviously of so high a character that it ought to be received, and we are satisfied that it does not come within the exclusion of the rules relating to memoranda used to supply or refresh the memory.

Again, the truth of defendant’s testimony denying that the words fixing a future day of payment were in the original checks, was contradicted by the checks themselves, and later by the testimony of Fowks. Any relevant circumstance corroborative of the defendant’s testimony was admissible. Platner v. Platner, 78 N. Y., 90.

The court properly held and instructed the jury that the single question upon which their verdict depended was, whether or not the check had been altered ?

If the check, when delivered to the drawer with the indorsement of the __ defendant, was a complete instrument in the ordinary form, no right existed in the drawer, without the consent of the indorser, to insert words of future day of payment, even though there was left a blank space large enough for the purpose.

The maker or indorser who delivers his note or check to a third party does not thereby authorize him to fill existing blanks therein unless it is obvious that such blanks must be filled to make the note or check operate as the instrument for which it was intended. Weyerhauser v. Dun, 100 N. Y., 150. This rule makes some of the objections urged by the appellant unimportant. ‘ We have examined them ail and find none which call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Bockes, P. J., and Parker, J., fconcur.


author: Peckham, J.

text:
    Isaac Greyston, as Adm’r, etc., of Francis Connors, dec’d, et al., Resp’ts, v. James J. Clark, as Ex’r of Mary Connors, dec’d; Catharine McElrone et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed June, 1886.)

    1. Will—Construction of—Action for—Jurisdiction of court—Personal PROPERTY UN ADMINISTERED.
    Where an action was brought by the administrator with the will annexed to obtain a construction of the will of F. 0., and it appeared that one McE., who was a party to the action, had received personal property from the widow of the testator, which once belonged to said testator and which personal property was not disposed of by the widow for her support or maintainance. McE. maintained her right to appeal from the construction of the will claiming if the widow had no right to dispose of said property but for her support and maintainance she, McE, was in danger of being called to account for it. Objection was made that the court had no jurisdiction to construe said will, because there was no personal'estate which was not fully administered before the bringing of the action and that there was no trust relating to estate owned by ihe testator in his lifetime.^ Held, that in one aspect of the case and upon one construction of the will there was personal property unadministered and in the hands of a third party, which it might be the duty of the administrator to collect and and distribute according to the provisions of the will. That in such an event it is proper to bring an action for the construction of a will in order to advise the executor or administrator what disposition to make of the personal estate and jurisdiction having been acquired for that purpose it will remain for all other purposes.
    2. Same—Jurisdiction does not depend on the way toe question is DECIDED.
    The jurisdiction does not depend upon which way the question may he decided, but upon the existence of the question, and exists even though it were decided there was no personal property upon which to administrate.
    3. Same—Limitation op estate—1 Rev. Stat., 725, §§ 32, 33.
    The rule adopted by the common law, and which governed in the case of Van Home v. Campbell (100 N. Y., 287), which held that a provi ion in a will disposing of real property to A, in such terms as to convey a fee and with power to dispose of it in his lifetime was inconsistent with a further provision that in case A. did not dispose of it during his lifetime that then the estate should go to B. was void as to theTimitation over; wa, abrogated by 1 Rev. Stat., 725, §§ 32, 38.
    4. Same—What is ^ expectant estate.
    Such a possibility of enjoying an estate as rests with the individual entitled to enjoy it only on failure of the preceding owner to dispose of it, is’an expectant estate and is saved by 1 Rev. Stat., 725, § 32.
    5. Same—Effect of such limitation.
    The fact that the contingency upon which the estate is limited to take effect rests in the will or volition of the first taker does not alter the character of the contingency, though it may make it more remote.
    6. Same—Construction of power of disposing of an estate given to widow.
    Where a will provided first, “ after all my lawful debts are paid and discharged, I give, devise and bequeath all my real and personal property of every name, nature and description, and wherever situate, to my wife, Mary Connors, absolutely to have and to hold the same for her own use and benefit, and with full power and authority to sell or mortgage as she thinks proper. Second, it is my will that on the death of my said wife, whatever property that she may die seized of that belonging to me and remaining in her by virtue of this will shall be divided between certain relations named in the will share and share alike.” Held, that Mrs. Connors took a fee, but that it was subject to the condition that the estate should be disposed of by her during her lifetime,for of such as was not disposed of thus, the will gives to the testator’s brother and sisters.
    7. Same—Not restricted to her support and maintainance only.
    The estate given to the wife was of such a nature that she could dispose of it all during her lifetime that she should deem to be for her use and benefit, and she is not restricted to a disposition for her support and maintenance only; but she could not dispose of any portion of the husband's estate by her will
    Appeal from a judgment rendered at the Albany circuit, in favor of plaintiff, construing the will of Francis Connors.
    Francis Connors died in 1883, owning real estate in the city of Albany. He made a will less than a month before his death which was duly probated; it provided:

      “First. After all my lawful debts are paid and discharged I give, devise and bequeath all my real and personal property of every name, nature and description and wherever situated to my wife Mary Connors, absolutely to have and to hold the same for her own uge and benefit forever, and with full power and authority to sell or mortgage as she thinks proper.”

      Second. It is my will that on the death of my said wife whatever property that she may die seized of that belonged to me and remains in her by virtue of this will, shall be divided ” between five of the testators relatives (a brother, three sisters and a nephew) named in the will, share and share alike. _ He appointed his wife sole executrix. Mary Connors, his widow, died early in 1884, leaving a last will, which was admitted to probate. This will disposed of her real and personal property, and appointed James J. Clark, one of the defendants herein, executor thereof.
    The executor of Mary Connors claimed that all the property of which Mary Connors’ husband died seized became her absolute property under her husband’s will.
    This action was brought by the administrator, with will annexed of Francis Connors, to obtain a judicial construction of said will, the claim made by him being that she took a life estate merely.

      Isaac Lawson, for appl’t McElrone; Eugene Burlingame, for appl’t Clark, ex’r; J. H. Chite, for resp’t.
   Peckham, J.

This action is brought to obtain a construction of the will of one Francis Connors, deceased. It is objected that the court has no jurisdiction to construe the will, because there is no personal estate wdrich was not fully administered before the bringing of the action, and there is no trust relating to any real estate owned by the testator in his life-time.

It appears, however, by the admission of the counsel for McElrone, who appeals from the judgment' herein and seeks to have it reversed, that his client received personal property from the widow of the testator, which .property once belonged to him, and which personal property was not disposed of by the widow for her support or maintenance. And the counsel maintains his right to appeal .and to ask for a reversal of the judgment because his client, having received this personal property from the widow in her life-time, stands in danger of being called to account for it if the widow had no right to dispose of it, but for her support or maintenance.

This shows that in one aspect of the case, and upon one construction of the will, there is personal property unadministered and in the hands of a third party, which it might be the duty of the administrator of the estate of Francis Connors to collect and pay over as trustee to the person designated in the will. In such event it is proper to bring an action for the construction of the will of an individual, in order to advise the executor or administrator what disposition to make of the personal estate, and jurisdiction being acquired for that purpose it remains for all others. Wager v. Wager, 89 N. Y., 161, and cases cited.

The jurisdiction does not depend upon which' way the question may be decided, but upon the existence of the question, and hence it exists, even though it should be be decided that the gift of the personal property of Catharine McElrone, by the widow in her life-time, was valid, and that thus in reality there was no personal property upon which to administer. By the decision at special term the right of the widow to dispose of the property coming to her from her husband, for any purpose other than for her support and maintenance, was denied. We think, therefore, that the court has jurisdiction over the subject-matter of the action, which must be decided upon the construction of the will of Francis Connors. •

The court of appeals has held that in regard to a will which took effect prior to the adoption of the Revised Statutes, a provision in such will disposing of real property to A, in such terms as to convey a fee, and with power to dispose of it in his lifetime, was inconsistent with a further provision, that in case A did not dispose of it during his life, that then the estate should go to B, and it was held that the limitation over was void. See Van Horne v. Campbell, 100 N. Y., 287.

The rule adopted by the common law was the simple and arbitrary one of holding it illegal to allow a remainder or other legal estate to be limited after a fee. Van Horne v. Campbell, (supra), opinion of Andrews, J., at page 291. Such being the rule adopted, with or without reason, nothing need be said about its propriety. But when it was subsequently attempted to evade or avoid, to some extent, such hard and fast rule, for the purpose of supporting the intention of a testator, as evidenced in his last will, the courts, while establishing the validity of a fee limited upon a fee, refused even then to admit the validity of what may be called the remainder fee, if the devisee of the prior fee had been especially invested with the power of disposition during his lifetime, and the remainder fee was limited to take effect only upon the failure of the prior owner to exercise his power. This result was brought about by reason of what the courts called the repugnancy of the limitation over as against the prior disposition of the fee and the power of disposition connected therewith. It is, of course, true that any condition is repugnant to an absolute and unqualified fee, but the plain answer in such a case is that it is not an absolute and unqualified fee that is created, but a qualified and conditional one, and why such a limitation over, founded upon such a condition, should not be sustained, is very illogically stated, as it seems to me, by' saying that the limitation over is repugnant to a fee. It is repugnant to a fee, but as a fee was not absolutely and unqualifiedly given, but only a conditional one, as therein stated, no repugnancy existed, for no-such fee existed as to create the repugnancy, provided due effect were given to all the words used by the testator in the creation of the estate.

Such, nevertheless, was the English rule which was adopted by our courts, as is shown in Van Horne’s case, supra, and the plain intention of the testator was prevented from taking effect, because it violated a wholly artificial and technical rule, founded, as I think, neither upon any public policy or sound reasoning. The modern idea is much stronger than the past in the direction of carrying out the plain intention of the testator if it can be done without violating some plain rule of law or an express statute. Before the adoption of the Revised Statutes, such a rule existed as against a will like the one before the court, and unless those statutes have altered the rule, the limitation over must, in this case, be held void. The question then is, has the rule been abrogated by the Revised Statutes? I think it has. See 1 R. S., 725, §§ 32, 33; 3 R. S. (7th ed.), 2178, same sections.

The thirty-second section provides for not defeating or barring expectant estates, and the next section provides that the preceding one “ shall not be construed to prevent an expectant estate from being defeated in any manner or by any act or means which the party creating such estate shall in the creation thereof have provided for or authorized, nor shall an expectant estate thus hable to be defeated be on that ground adjudged void in its creation.”

Can such a possibility of enjoying an estate, as rests with the individual entitled to it only on the failure of the precedent owner to dispose of it, be called an expectant estate, and is it saved by the sections above quoted? Such an interest in property answers the definition given of an expectant estate by the Revised Statutes.

It is a future estate limited to commence in possession at á future day on the determination by lapse of time or otherwise of a precedent estate created at the same time. It is also a contingent future estate, for the event upon which it is limited to take effect remains uncertain, and may never occur. It seems to me that it falls properly within these definitions, although the contingency upon which it is limited to take effect rests in the will or volition of the first taker. The only effect of such a limitation is, I think, to render the happening of the contingency more remote, but still not to alter its character as a contingency upon the happening of which the estate is to vest. And I am the more inclined to take this view of the case as the result is to bring us a step nearer towards carrying out the intention of the testator, while it does not run counter to a statute or any rule of law or public policy. Being then an expectant estate, the thirty-third section of the statute saves such an estate from being adjudged void in its creation, because of a liability to be defeated by an act or means which the party creating the estate provided for or authorized in the creation thereof. Here, it seems to me, is just such a case.

Before the adoption of this statute this expectant estate, called such by way of description, would have been held void in its creation by reason of its liability to be defeated by an act or means provided for or authorized by the party creating the estate, and in the creation thereof, viz., by the act of the first taker disposing of the estate during his lifetime, this act being authorized and provided for by the party (the testator) creating the estate and in the very instrument (the will) creating the same.

It is meant to apply to that interest in an estate which, before the adoption of the Revised Statutes, would have been adjudged void in its creation; if it would have been adjudged void in its creation, then, as the counsel for the defendants contend, the statute would not apply, for it cannot be. said of it that it was an expectant estate.

This construction of the statute would render it meaningless and absurd. The plain meaning is, that such an interest in property as would be termed an expectant estate, if it could otherwise be legally created, shall not be adjudged impossible of creation, because the creator of the estate in its creation provided for or authorized an act or means to defeat it. Having reached the conclusion that the Revised Statutes alter the rule as stated in Van Horne case (supra), the only remaining question is whether the estate given by the testator to his wife was of such a nature that she could dispose of it ah during her fife-time for any purpose she should judge to be for her use or benefit, or was she restricted to a disposition for her support and maintenance only, and did all of the estate of Francis Connors, not thus used, belong to his brother and sisters, as spoken of in his will?

This question is important to the defendant McElrone, as she admits the receipt of property from Mrs. Connors in her life-time, once belonging to the estate of Francis Connors, and not given her for the support or maintenance of Mrs. Connors.

Under the authority of Campbell v. Beaumont (91 N. Y., 464), I think Mrs. Connors took a fee, but it was subject to the condition that the estate should be disposed of by her during her life-time, for of such as was not disposed of, this will gives it to testator’s brother and sisters. In Campbell v. Beaumont (supra), the language there used to create a limitation over as claimed, was held not to accomplish such purpose, the court saying, “it was insufficient to hmit the wife’s estate or interest, and seems rather to have been intended to express the natural anticipations of the testator that his property, or some of it, would, as matter of course, go from the mother to the child and his acquiescence in such devolutions,” etc.

The child mentioned was the son of the mother but not of the testator. Here the beneficiaries are the brother and sisters of the testator, and language which in the one case might be regarded as acquiescence in a natural devolution of property from mother to son, may, very properly in this case, be held as a disposition thereof by the testator, after the wife has finished her use for it with her life. Thus distinguishing the two cases, I think that within the reasoning of the case of Terry v. Wiggins (47 N. Y., 512) the will in question, taking all its language, renders it necessary that the disposition of the property by the widow should be during her life-time and not by will. See, also, Flanagan v. Flanagan, 8 Abb. N. C., 413.

But I regard the construction of the court at special term as too narrow in holding that, the widow had only power to dispose of the estate to such an extent as was necessary for her support and maintenance. See Flanagan v. Flanagan, supra. The language used in the will, as held in Campbell v. Beaumont (supra), is such as to create a greater interest in the estate than simply for her support and maintenance. It would give an unconditional and unqualified fee, were it not for the use of subsequent language, which, in last above cáse was held not sufficient to change such estate in the case of a step-son of testator, and which, we think, may properly be held to change it in the case of a brother and sister, to the extent of fimiting the disposition of the estate during the life-time of the widow, and not by will. But during such life-time, we think the widow could dispose of the property, although it were not for her maintenance and support.

The court in the Van Horne case [supra) treats the question as not yet decided in this state, as to whether the Revised Statutes have altered the common law in regard to the matters herein discussed and we, therefore, assume that such question is open for discussion in this court, and we have accordingly discussed and decided it.

The judgment oí the special. term should be modified as to the provisions declaring the right of the widow to dispose of the property in her life-time, but only for her maintenance and support, and it should be declared she had an unlimited power to dispose of it during her lifetime, but not by will. In other respects the judgment should be affirmed. Costs of all parties out of the estate.

Bocees, P. J., and Landon, J., concurred.

Judgment affirmed as modified; to be settled by Peck-ham, J.


author: Parker, J.

text:
    William H. McCaffrey, Resp’t, v. Samuel J. Smith and Orville J. Wing, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed June, 1886.)

    Highways—Evidence—Hacks—Right of village to pass by-laws permitting THEM TO HAVE STANDS IN STREET—SUCH BY-LAWS NOT ADMISSIBLE IN EVIDENCE.
    The plaintiff, who was the proprietor and lessee of a hotel, brought this action against the defendants, who were hackmen, for damages, and for a perpetual injunction against the defendants’ horses and carriages standing in front of the plaintiff’s hotel for the purpose of letting them for hire. On the trial defendant offered in evidence a by-law of the village requiring all vehicles carrying passengers or freight for hire to be licensed, and fixing the fee; also one establishing as a stand for hacks, etc., the street running in front of plaintiff’s hotel under certain restrictions. Held, that neither the legislature nor the municipal authorities had the power as against the adjoining owner to confer upon any person the right to make use of the highway for any other purpose than to pass and repass without the consent of the owner of the fee. That as the by-laws in question afforded no protection to the defendants for the acts of trespass committed as against the plaintiff, this evidence was properly excluded.
    Appeal from a judgment in favor of plaintiff entered upon tho verdict of a jury rendered at the Saratoga circuit.

      William H. McCall, for app’lts; Charles 8. Lester, for resp’t.
   Parker, J.

In the court below judgment was rendered in favor of the plaintiff for fifty dollars damages for injuries sustained by reason of the defendants’ horses standing in front of plaintiff’s hotel, and by said judgment a perpetual injunction against a continuance thereof by the defendants was granted.

The plaintiff is the proprietor of the Adelphi hotel, in the village of Saratoga Springs. The defendants, who are liverymen, caused horses and carriages to stand for hire in the highway adjoining plaintiff’s premises, and in front thereof, to such an extent as to interfere somewhat with access to the hotel and premises of the plaintiff. Plaintiff also claimed that the urine and droppings from the horses produced an offensive odor which penetrated the parlors and other rooms of the hotel.

The plaintiff is the lessee of the hotel and premises, and as such was in the actual possession and occupation thereof at the time the acts complained of were committed, and he was entitled to have the highway adjoining and in front of such premises kept free from all obstructions and nuisances. White’s Bank of Buffalo v. Nichols, 64 N. Y., 73. The public interest in the highway is nothing but an easement which gives to individuals the right to pass and repass on foot or with animals and conveyances, and, as an incident, they may do all acts necessary to keep the highway in proper repair for traveling purposes. Kelsey v. King, 33 How. Pr., 39. Any use of a highway except for the purposes of traveling, and the making of necessary repairs under the direction of proper authorities, constitutes a, trespass against the adjoining owner Jackson v. Hathaway (15 Johns., 447); Adams v. Rivers (11 Barb., 390), and actions of trespass or ejectment may be maintained therefor. Bloomfield Gas Light Co. v. Calkins, 62 N. Y., 386.

The case was properly submitted to the jury by the trial court in accordance with the foregoing well-established legal principles, and the finding of the jury must be treated as final and the judgment affirmed, unless some of the defendants’ objections shall be found to have been well taken.

On the trial the defendant offered in evidence a by-law of the village of Saratoga Springs, as' follows: On the payment of the sum hereinafter mentioned a license shall be issued, signed by the president of the village and countersigned by the clerk, to the proprietor of every hack, carriage, cab, cart, wagon, omnibus or Every stable, engaged in carrying passengers, baggage, freight or other property in the village of Saratoga Springs, authorizing them to carry passengers and property for hire. Any violation of the license by the licensee, or any one employed by him while engaged in soliciting or carrying passengers, baggage or freight in the village of Saratoga Springs, of any rule, regulation, ordinance or by-law of said village, shall forfeit such license, and the price or sum of money paid therefor, and the board of trustees may discontinue and annul such license for cause shown. The price to be paid for such license shall be as follows: By each proprietor of every horse used by him in his business in said village, before any vehicle or under the saddle, the sum of two dollars;' the term of said license to expire in each year on the thirty-first day of May;” also a by-law passed July 10, 1883, as follows:

‘ ‘ Resolved, That Broadway, from the north corporation line to the south corporation line, is hereby established as a stand for hacks, carts and other vehicles running for passengers, baggage and other property. Such vehicles shall stand twelve feet from the curb, and but one row deep on each side of the street, and ample spaces shall be left in front of each building for the free ingress and egress of vehicles. No cross-walks shall be encumbered, nor shall any horse or vehicle stand within five feet of the same. All droppings and other refuse from horses or vehicles shall be removed by the owner or person in charge of the horse or vehicle, causing the same; any violation of this section shall render the person violating the same liable to a penalty of ten dollars for each offense, to be recovered by the village in a civil action.”

These by-laws are claimed to be in accordance authority conferred by chapter 220, Laws 1866, as amended by chapter 230, Laws 1885. These by-laws were excluded by the court, and we think rightfully. The legislature undoubtedly had the power to authorize the village authorities to pass ordinances and by-laws (which they might enforce), Hmiting and restricting the use which the public might make of the streets beyond their rights of travel. Ordinances which could be enforced as against the adjoining owners themselves, for the purpose of keeping the streets open to free and uninterrupted travel.

But the legislature had not the power, neither had the municipal authorities, as against the adjoining owner, to confer upon any person the right to make use of the highway, for any other purpose than to pass and repass, without the consent of the owner of the fee. Williams v. N. Y. C. R. R. Co., 16 N. Y., 97; Henderson v. Same, 78 id., 423; Knox v. The Mayor, 55 Barb., 404; People ex rel. O’Reilly v. Mayor, 59 How., 277. As the by-laws in question afforded no protection to the defendants for the acts of trespass, committed as against this plaintiff, the evidence was properly excluded.

There are no other objections to the evidence nor exceptions to the charge entitled to consideration. The judgment further perpetually enjoined and restrained the defendants from standing horses, carriages- and hacks in front of the premises of plaintiff for the purpose of letting the same for hire. We see no occasion for interfering with the judgment in that repect. An injunction is proper to restrain,the continuous unlawful use of plaintiff’s land. Corning v. Lowerre, 6 Johns. Ch. 439; Murdock v. The Prospect Park and Coney Island R. R. Co., 73 N. Y., 579; Milhau v. Sharp, 27 id., 611.

The judgment and order appealed from must be affirmed, with costs.

Landon, J., concur; Bocees, P. J., not acting.


text:
    Frank Secor, by his guardian, Anna M. Secor, Resp’t, v. Abner Taylor, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed June, 1886.)

    OrvTL Damage act—Evidence of a recovery by others of the family— WHEN MOT ADMISSIBLE.
    An action was brought by the plaintiff,'who is a minor, by his mother, as guardian, under the civil damage act, against the lessor of the person who sold the liquor, to recover damages for injury to plaintiffs means of support occasioned by the death of his father. The trial court refused to allow the defendant to prove that the mother of the plaintiff had recovered of the defendant a judgment of $2,000 for damages sustained by the death of the same party caused by the same intoxication, held, that the evidence was properly excluded, as no claim was made for exemplary damages Mullen v. C/irisiian (22 Week. Big. 59) followed and explained.
    Appeal from an order denying a motion for a new trial made on the justice’s minutes and from a judgment in favor of the plaintiff entered upon the verdict of a jury at the Schoharie circuit.
    Action under the civil damage act to recover for injury to the means of support of the plaintiff (a minor) by reason of the death of his father, alleged to have been caused by the intoxication of the father produced by liquor- drank by him in premises alleged to have been leased by defendant. The answer denied the allegations of the complaint and alleged that Anna M. Secor, the mother and guardian of the plaintiff in this action, had prosecuted an action for ■the same alleged cause, and had recovered a judgment against this defendant for $2,000 and costs, which judgment had been paid by the defendant, and which was more than equal to the full pecuniary value of the life of deceased to his family, and was a full satisfaction for all damages for loss of means ©f support of the said family, including plaintiff. Ho claim was made for exemplary damages.

      S. L. & F. Mayham, for appl’t; Krum & Grant, for resp’t.
   Parker, J.

The action was brought under the civil damage act to recover damages for injury to plaintiff’s-means of support occasioned by the death of his father.

The jury, under the directions of the trial court, have-found that the death resulted from intoxication caused in. whole or in part by intoxicating liquors sold by the lessees-of the defendant, and that the damage sustained by the» plaintiff was the sum of $400.

The evidence is sufficient to sustain the verdict of the-jury, and the judgment must, therefore, be affirmed, unless-error, sufficient to justify reversal, was committed by the-court in refusing to allow the defendant to prove that-the mother and guardian of the plaintiff had recovered of" the defendant a judgment in the sum of $2,000 for damages-sustained by the death of the same party, caused by the-death of the same party, caused by the same intoxication.

The court permitted the defendant to show the amount-of money which had come into the mother’s hands after-the death of her husband, so that all the facts bearing upon the ability of the mother to support the plaintiff, were before the jury. It declined, however, to permit the defendant to show that the money was recovered and received, from the defendant.

In Mullen v. Christian (22 Week. Dig., 59), the trial court: refused to receive in evidence the judgment-roll in an action brought by the mother against the same defendant. The general term of the fifth department affirmed the decision of the court below, and in the opinion said: “We cannot take notice of the mother’s former judgment; nor would that fact be important if it appeared in evidence.”

With that decision, if limited to cases where exemplary damages are not sought, we concur. Punitory damages are not given to the plaintiff as a matter of right, but are awarded against the defendant, as a matter of punishment. The law uses the suit of a private party as an instrument of public protection, not for the sake of the suitor, but for that of the public. ■

We are of the opinion that the one act of permitting lessees to sell a person intoxicating liquor does not render a party liable to have awarded against him in civil actions damages, as and for punishment, but once. That if a half a dozen actions be brought, each jury cannot be permitted, in addition to compensatory damages, to add such sum as suit their fancy by way of punishment. Even should it be hold that, under such circumstances, exemplary damages could be awarded in every action relating to the same transaction, no matter how many might be brought, still the defendant would be entitled to have the prior judgment or judgments before the jury, in order that the jury might know how much punishment had been already inflicted, as an aid in determining how much more, it any, ought to be meted out to him.

In this case, however, it nowhere appears that the plaintiff asked for exemplary damages. The court, in its charge, expressly limited the plaintiff’s right of recovery to “loss of means of support,” and did not read the statute to them, so that the subject of exemplary damages was not even suggested to the jury. As the evidence could only be material in the event of a claim for punitive damages, the defendant’s case has not been harmed by its exclusion.

The judgment and order appealed from must be affirmed, with costs.

Bocees, P. J., and Landon, J., concur.


text:
    James Tierney, App’lt, v. City of Troy, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed June, 1886.)

    1. Municipal corporation—Liability op city for damages resulting-prom DEFECTIVE BRIDGE OVER RAILROAD.
    Where in an action for damages for injuries resulting to a miner while walking upon a bridge over a railroad forming part of a public highway within the city of Troy (the bridge being out of repair), a non-suit was granted. Held, that assuming that the locus in quo was at the time of the accident a public highway within said city, it was error to direct a non-suit on the ground that the railroad company and not the city were liable.

      2. Same—Liability op bailboad does not believe city.
    The statutory obligations of a railroad company to restore streets, crossed by it in the process of construction, to their former state and to keep in, good repair bridges which it has been obliged to erect for that purpose does not relieve _ tile municipality from the obligation to keep such bridges in a safe condition for public travel, nor from liability to the person susstaining injuries by reason of its defective condition.
    Motion for a new trial upon a case and exceptions ordered heard in the first instance at general term, non-suit having been ordered at the Rensselaer circuit.
    The plaintiff sues for the value of the services of his minor son who was injured by falling through the bridge crossing the railroad tracks of the Union Railroad Company in Liberty street, in.the city of Troy. The non-suit was granted on the ground that it was not the duty of the city but of the railroad company to keep the bridge in repair.

      Henry A. Merritt, for app’lt; JR. A. Parmenter, for resp’t.
   Parker, J.

The plaintiff was non-suited in the court below, as appears by the remarks of the justice presiding, upon the ground that the Union Railroad Company, and not the city of Troy, was hable for the neglect to repair the bridge through which the plaintiff’s little son fell. That the liability to keep a bridge forming part of a highway over a railroad track in repair is, by statute, enjoined upon the railroad company, and for any damages sustained by reason of their failure so to do the company must respond, and not the defendant.

• In the consideration of that proposition here, it must be assumed, as it was by the court below, that the locus in quo was, at the time of the accident, a public highway within the limits of the city of Troy; that prior thereto the Union Railroad Company constructed its road across said highway, below grade, and by reason thereof was compelled to, and did, build a bridge over its road, which bridge formed a part of the highway or street. The court was undoubtedly right in holding that the railroad company was, by statute, required to keep the bridge in repair, and, therefore, became primarily liable to respond to the plaintiff, but we think the court erred in holding that by reason thereof the defendant was absolved from liability. Municipal corporations, such as the defendant, are required to keep the streets within their corporate limits in a safe condition for public travel, and the duty to make necessary repairs is imperative and ministerial. Hyatt v. Rondout, 44 Barb., 385; Clark v. City of Lockport, 49 Barb., 580.

If this bridge then formed a portion of one of defendant’s public streets or highways, it was bound to keep it in repair, unless the statutory liability of the Troy Union Railroad Company to “maintain such bridge and keep it in good repair,” relieves the defendant from all liability to the public as to so much of the street as the bridge constituted.

It is well settled that the statutory obligations of a railroad company to restore streets, which it crosses in the process of construction, to their former state, and to keep in good repair a bridge which it may be obliged to erect for that purpose, does not relieve the municipality from the obligation to keep such bridge in a safe condition for public travel, nor from liability to the person sustaining injuries by reason of its defective condition. Wilson v. City of Watertown, 3 Hun, 508; People ex rel. Markey v. City of Brooklyn, 65 N. Y., 349.

There is no hardship in that rule, because the city had ample authority to compel the railroad company to make needed repairs. People ex rel. Schaghticoke v. The Troy and Boston R. R. Co., 37 How., 427; and in Wilson v. City of Watertown (cited, supra), the court, at page 513 of opinion, say: “But if the injury of which the plaintiff complained was caused by their (i. e., the railroad company’s) neglect of duty, they are primarily Hable, and in case of a recovery against the defendants, they wiH have a right of action against the railroad company.”

Assuming that the place where the injury occurred was a pubHc street of the city of Troy, the non-suit was clearly error, and upon the question as to whether or not it was a public street, the evidence entitled the plaintiff to go to the jury as requested by him.

The order granting a non-suit must be reversed and a new trial granted, costs to abide event.

Bocees, P. J., and Landon, J., concur.


author: Daniels, J.

text:
    James Talcott, Resp’t, v. Moses G. Rosenberg et al., Appl’t.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)

    1. Arrest—False representations—When credit can be annulled AND AMOUNT SUED FOR.
    Where it appears that one of the defendants whose firm made an assignment for the benefit of creditors had made false representations as to the assets and liabilities of said firm to plaintiff herein, for the purpose of obtaining credit, which was given, Ileld, that the misrepresentations annulled the credit given by plaintiff, and the said firm having had the goods under a contract of purchase, the seller was authorized to at once sue for and recover the price.
    2. Same—When payments to friends suspicious.
    While it might be lawful for a firm, just before making an assignment for tile benefit of creditors, to sell their goods, collect their accounts and pay the proceeds upon bona fide debts due to their relatives and friends, to the exclusion of other creditors, if there was no intent to defraud other creditors, still it affords ground for veiy grave suspicion that the purpose was fraudulent.

      Appeal from an order denying motion to vacate an order of arrest.

      Frank E. Smith, for appl’ts; Adams & Boothby, for resp’t.
   Daniels, J.

The defendants have been arrested in an action to recover the price of goods sold and delivered, for removing, disposing of and secreting their property with intent to defraud their creditors, since the making of. the contract of purchase, and in contemplation thereof. The goods were sold upon credit, and the terms for which the credits were given had not ended when the action was commenced. But to avoid the credits, the plaintiff relies upon proof of the fact that the debt'was fraudulently contracted by the defendants. And proof has been produced by the affidavits to establish that fact. This has been met by other affidavits made by the defendants denying the making of such representations. But the preponderance of the evidence concerning this fact is decidedly with the plaintiff. For Trowbridge, who was in charge of the credit part of the plaintiff’s business, swears positively that the defendant Rosenberg represented to him that the defendants’ firm of Rosenberg & Co. had on the 1st of January, 1885, a surplus capital of $45,000, owing no more than $15,-000, and no borrowed money, and carried a stock of from $20,000 to $25,000. This representation is denied by Rosenberg. But his denial is not of equal force to the statement of Trowbridge, by reason of his interest and his direct contradiction by Choate, Valentine & Wood, to each of whom similar representations are stated to have been made near the same time. Then added to that is the fact that dealers in goods would be indisposed to open accounts with new customers without information exhibiting a favorable financial condition. No other view is supported by the case than that the representations were made as they are stated to have been. And as it is not pretended that they were truthful, the facts were disclosed from which an intent to deceive is to be inferred, and that avoided the credits obtained in that manner. The action, as the legal rule has been often applied, could be well brought for the price of the goods purchased by the defendants from the plaintiffs, inasmuch as .their delivery is stated by Trow-bridge to have been induced by these representations, and they were in fact made in such a manner and at- such a time as very naturally to be attended with that result. The misrepresentations annulled the credit, and the fact * that the defendants had the goods under a contract of purchase authorized the seller at once to sue for and recover the price.

That the debtors did dispose of their property intending to defraud their creditors, has already been considered and held in the case of Schoff v. Rosenberg, which was heard and decided in the early part of the present year. And the facts now presented do not differ so much from those then appearing as to render that decision inapplicable to this appeal. Another examination of the affidavits, and the facts maintained by them, fail to expose any infirmity in that decision. About the middle of July, as the facts are stated by the defendants, the intention was formed of selling their goods and collecting their accounts and paying the proceeds upon debts alleged to be owing to their relatives and friends to the exclusion of other creditors. That plan is stated to have been adopted after advice ob- " tained as to its feasibility from counsel. And while it might have been lawful to do that, if the debts were bona fide, and there were no intent intermingled to defraud the other creditors, it still afforded ground for very grave suspicions that part of the purpose was to place the property in friendly hands, from which the debtors could afterwards obtain advantages which would not be expected from mere general creditors. The design in part would then be to promote their own interests at the expense and loss of those who might afterwards feel indifferent towards them. And that such was their object, and that they did in fact dispose of their property to defraud the creditors not specially friendly to them is further sustained by the affidavits. They continued to buy goods on credit until the intention was formed of selling what they had, and collecting what was owing to them, and paying or delivering the proceeds to their relatives and friends to whom the defendant Eosenberg states they owed about the sum of $20,000. At this time he states the value of their merchandise at about the sum of $18,000 or $19,000. The debts owing them at the sum of $19,985.80, of which $9,574.89 was uncollectable and worthless. The defendant further states that their goods brought $17,307,97, and they discounted the debts owing them by deducting the interest upon them, and paid the entire amount realized to creditors named, amounting to the sum of $25,574.05, and being more than the debts he said they owed. In the amounts paid is $8,082.45 to Theresa Eothschild, the wife of one and sister of the other defendant, to whom it is stated the firm was indebted for items of money loaned in 1882 amounting to $5,696.79. • This part of this alleged indebtedness was directly discredited by the representations of Eosenberg, made to induce the sales of goods in the year 1885, when it was stated that the firm owed no borrowed money. And the same thing was repeated in the statement made to the commercial agency of Wood & Co. And so it was by the manner in which the judgment was afterwards entered in favor of Theresa Rothschild against the firm. That was recovered upon a summons served in the office of the attorneys commencing the action, and an offer and acceptance made and served the same time. An execution followed immediately, upon which about $1,500 of the firm’s unsold merchandise, and being all that then remained, was levied. The course of the proceedings was such as to characterize it throughout as designed to place the proceeds of the debtor’s property wholly in the hands of relatives and friends for the probable future benefit, to a great extent, of the debtors themselves. And the' removal of their books, and the valueless papers locked in their safe, were in strict accordance with that object. The whole scope of action taken by them is suggestive of unfairness in their dealings with their creditors to secure an expected and untimate benefit for themselves. The object of the law is to insure a just and fair application of the property of insolvent debtors to the payment of their creditors. That has been defeated by the conduct of these debtors, which has been attended with the effect of defrauding their creditors by placing a considerable part of their property in friendly hands to benefit themselves in future. The order in this case, and in that of William Turnbull and others against the same defendants, depending on the same material facts, was right. And as nothing was levied upon or realized under the attachments, these orders should be affirmed, with costs, and the disbursements attending the appeals.

Brady, J., concurs.