author: Hardin, P. J.

text:
    City of Syracuse, Resp’t, v. Richard M. Stacey et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    1. Condemnation proceedings — Petition—Amendment.
    The petition in a condemnation proceeding may be amended.
    2. Sam Application.
    Chap. 23 of the Code, as amended by chap. 249 of 1890, applies and governs a proceeding by the city of Syracuse to condemn water rights in the Skaneateles Lake under chap. 291 of 1889, as amended by chap. 314 of 1890.
    3. Same — Description.
    In a condemnation proceeding where a permanent appropriation is sought to be had of either land or water, the quantity must be definitely ascertained and described.

      4. Same.
    The description, in this case, was held not to be sufficient within section 3360 of the Oode.
    Condemnation proceeding by the city of Syracuse against Richard M. Stacey,'Mary R. Stacey, Leonard H. Earll, Harriet E. Earll, the Genside Woolen Mills, the Central New York Electric Light k Power Company, Simon D. Paddock, George Barrow, Caroline M. Barrow, the Skaneateles Paper Company, the Lakeside Paper Company, Forest G. Weeks, and Sarah A. Weeks, impleaded, etc. An order was entered “confirming the award of the commissioners of appraisal herein, and directing compensation to be made to the several defendants as therein stated, and from the whole of said order, except that part thereof which directs that certain of the defendants who appeared, answered, and defended herein recover of the plaintiff, each, a bill of costs, * * * and that each of said defendants be allowed the sum of five percent, on the amount of the award.” From said order the defendants above named appeal, specifying in the notice of appeal “that there will be brought up for review upon this appeal by said defendants the judgment of condemnation entered in his proceeding in the clerk’s office of Onondaga county, on January 28, 1893, and the order appointing commissioners of appraisal, etc., herein, entered in said clerk’s office on January 30, 1893, together with all the proceedings herein antecedent to said judgment and order, including the decision herein on which said judgment was entered.
    The plaintiff, by the Syracuse water board, made its petition, bearing date the 14th day of November, 1892, for the purpose of instituting condemnation proceedings against the property of the appellants and several others, and annexed to the petition were nineteen schedules, in which were described the properties of the defendants. Accompanying the petition was a notice bearing date November 14, 1892, signed by the attorneys-for the Syracuse water board, “representing the city of Syracuse upon said application,” to the effect that the petition would be presented to a special term in Onondaga county on the 3d day of December, 1892. On that day parties appeared in the said term, and on motion of the attorneys for the petitioners, several amendments and corrections to the petition were made by an order that the court granted on that day; and on the 4th day of January, 1893, in said term, a further amendment was allowed to amended petition by inserting after the word “watershed” the words, “not required by the state of New York for the Erie Canal,” after the word “ watershed,” where the same first occurs, and immediately preceding the words, “ as the same flow, or might otherwise flow,” in each of the several schedules annexed to the petition. Numerous objections were taken to the petition, and overruled by the special term, and several answers were filed by the defendants to the petition, and the proceedings were adjourned from time to time. The special term found, after hearing the parties, among other things, as matter of fact: “In order to accomplish the purpose indicated, it is necessary that "the city of Syracuse should condemn and acquire all the property, rights, title, and interest of the defendants, and each of them, of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the use of Brie Canal, and which shall not be discharged for such use from said lake into the outlet thereof, and which may not in times of high water, or from other causes, actually escape from said lake and be discharged into the outlet thereof.” Also: “That in the year 1843 the state of New York, under the resolutions of its canal board and canal commissioners-next hereinafter recited, appropriated the waters of SkaneatelesLake and its outlet as a reservoir and feeder for the Brie Canal.” Also: “ The Brie Canal, upon this level, is open for navigation from about the 1st day of May until the 1st day of December in every year; varying a few days from the dates mentioned, accord-as the weather may be at the time. These periods of navigation, average seven months in a year. During the five months of December. January, February, March, and April of every year, the-canal is closed to navigation, and there is no water supplied or required therefor from Skaneateles Lake." Also: “During; the-season of canal navigation, covering an average period of seven months in each year, the quantity of water heretofore discharged by the state from the lake for the use of the canal has varied more or less according to the condition of the lake. The average-quantity thus taken from the lake for the uses of the canal during these seasons has been seventy million (70,000,0000) gallons per day. Except at times of high water and overflow of the dam, the quantity thus permitted to flow has at all times been regulated and determined by the gate tender under direction of superior state officers in charge of the canal." Also : “ During the seasons of closed navigation, averaging five months in every year, with the exception of times when, by reason of low water in the lake, or apprehensions of such, the state officers in charge of the canal have-withheld the water wholly, for the purposes of storage, the state authorities have permitted a flow and discharge from the lake, through the outlet, upon an average about forty-eight million (48,000,000) gallons per day.” Also: “The water thus discharged from the lake into the outlet during the seasons or periods of canal navigation", together with that supplied by the watershed' of the outlet during the same periods, has ordinarily been more than sufficient to supply the mills upon the outlet with the water-used for their machinery and other purposes. A considerable quantity, the amount of which cannot be definitely ascertained, ordinarily flows over the crest or spillways of the dams at the-several mills upon the outlet, and, so far as the mi'llowners are-concerned, has gone to waste, not being used by them." It was-also found that: “ The available supply of water 'from the entire watershed of Skaneateles Lake, which finds its way into and becomes a part of the lake, upon the average for a series of years, is an amount equivalent, if equally distributed, to sixty-one million (61,000,000) gallons every day. The maximum carrying capacity of the proposed thirty-inch conduit from Skaneateles Lake to the-reservoir at or near Syracuse is fifteen million gallons per day. A drought of fifteen million gallons daily from Skaneateles Lake would lower the level of the lake at the rate of two inches per month, or twenty-four inches in, a year, provided no supply was in the meantime furnished or discharged into the lake.”
    Among the conclusions of law, it was found that the state of New York “ has acquired the use, and the right of use, of Skaneateles Lake, as a reservoir, and of its outlet, as a feeder, for the purpose of supplying the Erie Canal with water. It has the right to, at any and all times, withhold within the lake, for storage purposes, so much of the waters thereof as may be reasonably necessary to provide for the requirements of the canal. It has the right to discharge therefrom, during the seasons of navigation, so much thereof as may be reasonably necessary for the supply of the canal. This right of storage on the part of the state is not inconsistent with the right of storage sought by the city of Syracuse in this proceeding. Upon making compensation therefor, the city of Syracuse is entitled, in this proceeding, to condemn and acquire or extinguish all the right, title, and interest which the defendants, and each of them, respectively have, of, in, and to the waters of Skaneateless Lake and its watershed, and to any and all use and enjoyment thereof, by reason of their ownership of or interest in the premises severally described in the amended petition herein, and as appurtenant or incident to said premises, for the purpose of supplying said city and its inhabitants with water, excepting only such and so much water from said lake as may be permitted or caused to flow from said lake into the outlet thereof, from time to time, by the state of New York, its officers and agents, for the purpose of supplying the Erie Canal with water. And excepting also such water as may from time to time, from any cause, escape from such lake, and be discharged therefrom into the outlet.” The special term further found and decided, as conclusion of law, “ that the acquisition and extinguishment of the defendants’ rights, as above defined and set forth, is the acquisition or extinguishment contemplated and required by chapter 314 of the Laws of 1890; that the condemnation hereby authorized is for a public use, and for the purposes contemplated by the laws hereinbefore referred to.” It was also found that the plaintiff was entitled to the appointment of three commissioners, “ who shall ascertain, determine, and report the compensation which ought justly to be made to the owners and persons interested in the property and rights to be taken for the public use specified.” The findings of fact and law were signed on the 26th day of January, 1893, and on the 28th of January a judgment thereon was entered, among other things, adjudging that upon making compensation therefor the city is entitled, in this proceeding, “ to condemn and acquire or extinguish all the rights, title, and interest which the defendants, and each of them, respectively have, in and to the waters of Skaneateless Lake and its watershed, and to any and all use and enjoyment thereof, by reason of their ownership of or interest in the premises severally described in the amended petition herein, and as appurtenant or incident to said premises, for the purpose

      of supplying said city and its inhabitants with water, excepting only such and so much water from said lake as may be permitted or caused to flow from said lake into the outlet thereof from time to time by the state of New York, its officers and agents, for the purpose of supplying the Brie Canal with water. And excepting only such water as may from time to time, from any cause, escape from said lake, and be discharged therefrom into the outlet.” And it was adjudged that the city is entitled in this proceeding, as against the defendants, “ to condemn and acquire the right to increase the storage capacity of Skaneateles Lake sufficiently to retain therein all the ordinary flow from the watershed, and to at all times store and retain therein so much thereof as shall not be required for the Brie Canal, and, subject to the rights of the state to use the same for the supply of the Brie Canal, to divert therefrom at all times so much thereof as may be necessary to supply the city of Syracuse.and its inhabitants with water.” And it was also adjudged “that the acquisition and extinguishment of the defendants’ rights, as above defined and set forth, is the acquisition or extinguishment contemplated and required by chapter 314 of the Laws of 1890.” And it was further adjudged “that the plaintiff is .entitled to condemn and acquire and extinguish, all and several, the rights, title and interest of the defendants * * * of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the Brie Canal, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous, and appurtenant to the lands and premises adjacent to said outlet, described as follows.” Similar language is used as to each parcel, and following the language is a description of the premises owned by the defendants. On the 30th of January, 1893, the special term granted and order designating the commissioners. That order was amended by the special term on the 8th of February, 1893, by striking out the name of Dyer, as one of the commissioners, and inserting the name of Palmer, as one of the commissioners qualified, and proceeded to hear the parties and take voluminous proofs in respect to the several rights and ownership of the parties, and on the 7th of May, 1894, executed and delivered their report, in which they certify that having viewed the premises, and heard the proofs and allegations of the parties, after the testimony was closed, and being present they did, “ without any unnecessary delay, ascertain and determine the compensation which ought justly to be made by the city of Syracuse to the owners of such property and water rights, and the persons interested therein,” and in their report stated the amount which should be paid to the several owners of property, as will more fully appear by reference to their report.

      George Barrow, Knapp, Nottingham & Andrews, and Charles A. Hawley, for app’lt; Charles Stone, William A. Beach, and George N. Kennedy, for resp’t.
   Hardin, P. J.

Chapter 291 of the Laws of 1889 contains an act “ to establish and maintain a water department in and for the* city of Syracuse.” The third section of the act authorizes and directs the water board, for and in the name of the city of Syracuse, “to acquire, construct, maintain, control and operate a system of water works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” In the fourth section of the act it was provided that in case the water board shall be unable to acquire by purchase “any property necessary for the acquisition, construction, maintenance, control and operation of the system of water works contemplated by this act, including the property, rights of property, privileges and franchises owned or possessed by any corporation it is hereby authorized to acquire the same in the manner following.” In the fifth section it is provided that the board may present its petition to the supreme court, at a general or special term' thereof, praying for the appointment of commissioners of appraisal to ascertain and determine the amount of compensation which ought justly to be made to either or any of the owners or persons interested in any or all of the property, rights, privileges, and franchises deemed necessary by the board. The section contains a further provision, viz.:

“ It shall contain a description of the property sought to be acquired, and must state in effect that the property is requisite to the acquiring, construction, improving, maintaining, controlling or operating said water works.”

The section also provides for several other details to be inserted in the petition. Section 6 of the act provides how the petition shall be served. Section 7 confers upon the court power to appoint special guardians for infants and idiots. And section 8 provides:

“Any of the persons whose estates or interests are to be affected by the proceedings may show cause against granting the prayer of the petition, and may to that end disprove any of the facts alleged therein.”

And it also provides :

“ The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders * - * to ascertain and determine the compensation which ought justly to be made to the owners or persons interested in the property so to be acquired.”

Further provisions are found in the act of regulating further proceedings. Section 18 of the act of 1880 was amended by chapter 814 of the Laws of 1890, and in the section, as amended, it was provided, viz.:

“ Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water. The city of Syracuse shall at all times protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles lake in accordance with the provisions of this section.”

Plaintiff’s petition was prepared and verified on the 14th day of November, 1892. Chapter 95 of the Laws of 1890 contains “ An act to amend the Code of Civil Procedure,” and is known as chapter 23 of the Code of Civil Procedure, and the first section of the chapter provides, viz. “ This title shall be known as the Condemnation Law.” The chapter contains twenty-eight sections, which are numbered as sections 3357 to 3397 of the Code, inclusive, and in the last section of chapter 95 it is provided, “ This title shall take effect May first, one thousand eight hundred and ninety ” In section 3383, as amended by chapter 247 of the Laws of 1890, it was provided that “ so much of all acts and parts of acts as prescribe a method of procedure in proceedings for the condemnation of real property for a public use is repealed,” except such acts and parts of acts as prescribe a method of procedure in certain specified cases, not important to be considered, as they do not relate to the case in hand. It was expressly provided in chapter 247 that that act shall take effect immediately, and it was passed on the 30th day of April, 1890.

In Dansville, etc. Railroad Co. v. Hammond, 77 Hun, 41: 59 St. Rep. 49, it was said, “ A complete system of practice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure.” In re New York & B. Bridge, 137 N. Y. 97; 50 St. Rep. 182, chapter 23 was assumed to be a revision of the condemnation law. Inasmuch as the plaintiff’s proceedings were instituted subsequent to the time when the provisions of the general condemnation law took effect, the provisions found therein should be applied to, and control and govern, such proceedings.

Plaintiff, with a fixed purpose of acquiring benefits and privileges conferred by section 18, as amended in 1890, instituted the proceedings for the purpose of complying with that part of the section found in the following language :

“ Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water.”

In Sweet v. City of Syracuse, 129 N Y. 333 ; 38 St. Rep. 933, O’Brien, J., said:

“ Between the lake and the canal numerous mills are situated,, along the outlet, being supplied with power from the running water; and these are some of the water rights referred to in the statute, which the city is bound to purchase or extinguish.”

In the same case, at page 339, 129 N. Y, Earl, J.t said:

11 Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

In further elucidation of the provisions of section 18, the same learned judge said:

“The city of Syracuse shall at all times protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet, for loss or occasioned act or structure authorized thereby.”

To avail of the provisions of the statute, as thus interpreted, it was the purpose of the city, in preparing the petition in this case, to the end that the rights of the several defendants might be condemned, and, upon payment being made therefore, that the same be extinguished or acquired by the plaintiff. After the petition was prepared and served, and the parties were given notice thereof, and appeared in court, an application was made to amend the petition. Section 3368 of the condemnation law provides that title 1 of chapter 8 of this act shall also apply to proceedings had under this title. Upon turning to that chapter, we find that it embraces sections 721, 722 and 723, which confer upon the court power to correct mistakes, omissions, defects, and irregularities, and to amend any pleading or other proceeding by inserting an allegation material to the case. The court, in granting the amendment asked for to the petition, did not exceed its power. Upon turning to the petition, as amended, we find it contains language inserted therein, as it must be assumed, for the purpose of describing, pursuant to section 3360 of the Code, the property, rights, and interests sought to be condemned. That section provides that the proceedings shall be instituted of a the

“Setting forth the following facts: * * * (2) A specific description of the property to be condemned, and its location by metes and bounds, with reasonable certainty. * * * (8) A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken.”

In re Water Com’rs Amsterdam, 96 N. Y. 360, it was said:

“It has been uniformly held that, in proceedings of this character, extréme accuracy is essential for the protection of the rights of all parties. In re N. Y. C. & H. R. R. Co., 70 N. Y. 191. There must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired.”

Section 18 of the act of 1890, already alluded to, confers upon, the water board power, “ under the restrictions and conditions mentioned” in the statute—

“ To take and conduct water not required for the Erie canal, from Skaneateles lake, to said city, through a pipe or main not «exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water shall be taken, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. * * *' The dam and all structures connected therewith, together with the regulation at all times of the flow from said lake into the aforesaid pipe, shall be and continue in the exclusive .charge and control of the superintendent of public works.”

Further provisions are made as to the power of the state officers, and then it was declared, viz.:

“ It being understood that the rights of .the city of Syracuse hereby conferred in and to such surplus waters, are to be subject always to the superior claims of the state thereto.”

The act then provides further “restrictions and conditions” upon the power given to the city to take and conduct water not required for the Brie canal “through a pipe not exceeding, thirty inches in diameter,” in the following words:

“ Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire and extinguish all water-power rights upon the outlet of said lake to-be affected by the proposed storage of water.”

Riparian owners upon the outlet have rights and privileges “affected by the proposed storage of water,” and those rights the act-authorized and required the city “to acquire or extinguish” before taking any water from the lake under the provisions of this act. The terms of the statute received construction in this court in Hall v. City of Syracuse, 71 Hun, 466; 54 St. Rep. 378, and it was there said:

“ By chapter 291 of the Laws of 1889, the Syracuse water board was created, and power was conferred upon it to acquire, by purchase or condemnation, for and in the name of the city of Syracuse, any property necessary for the acquisition, construction, maintenance, control, and operation of the system of water works-contemplated by the act. By section 18 of this act, as amended in 1890 (chapter 314), it was authorized, under certain conditions, to take water from the Skaneateles lake. One of the provisions of this section is that: ‘Before any water shall be taken from Skaneateles lake, under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake, to be affected by the proposed storage of water.’ It was also provided that the powers granted to the water board to acquire property under the act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary and proper to enable the city to obtain water from the lake under the provisions of the amended section.”

It may be observed that the act does not, in terms, define the, water rights and privileges of the owners upon the outlet, but carefully provides that whatever rights they have affected by the storage or taking authorized shall be “acquired or extinguished before any water shall be taken" under the provisions of the act. According to this compact entered into by the city with the state, by accepting the provisions of the act, it becomes clearly the imperative duty of the city to acquire and extinguish “all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.” As we have already mentioned, one of the restrictions and conditions imposed upon the city, precedent to the right to take any of the surplus waters, was the requirement that the city increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. To enable the plaintiff to comply with the requirements of the act, its petition shotild describe and specify all the water-power rights affected by the proposed storage and taking of water from the lake. It seems reasonable to suppose the legislature contemplated the necessity of extinguishing all the water powers and rights upon the outlet, and, because of the necessity. required, among the restrictions and conditions imposed upon the city, the one which could be complied with only by acquiring or extinguishing such rights and powers. The petition, as it was after being amended, and as it was precisely when the special term pronounced its judgment in which it was determined that the property named therein was required for public use, and that the city was authorized to condemn, did not describe in clear and definite language all the water-power rights of theseveral defendants owning property upon, the outlet mentioned in the petition and the schedules thereto. In the seventh subdivision of the petition the following language is found :

“The city of Syracuse hereby asks to condemn and acquire all the property, rights, title, and interest of the defendants, and every of them, of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of Mew York for the Brie Canal, and to any part and use thereof as the same flows, or might flow, through the outlet of said lake, along, over, upon, contiguous, and appurtenant to said parcels, respectively, except for the use, diversion, and storage thereof for the uses and purposes of the city of Syracuse and its inhabitants, as a source of water supply, as aforesaid.”

In the prayer of the petition it was asked that it may be adjudged that the public use requires the condemnation of—

“All the right, title, and interest of the defendants, respectively, and every of them, of, in and to the waters of Skaneateles Lake and its watershed, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, among, over, contiguous, and appurtenant to the several, parcels of land described in the schedules hereof, owned by them, respectively, or in which they have any interest, except so much thereof as from time to time, by lawful authority of the state of Mew York and its representatives, may be discharged from said lake, and permitted to flow through the outlet thereof for the purpose of suppling the Erie Canal; and the plaintiff is entitled to take, hold, and forever enjoy the right to store, divert, and use the waters of Skaneateles Lake as a reservoir and source of water supply for the city of Syracuse and its inhabitants as aforesaid, except so much thereof as from time to time, by lawful authority of the state of Mew York and its officers, may be discharged from said lake, and permitted to flow through the outlet thereof, for the purpose of supplying the Brie Canal.”

In the schedules, after referring specifically to the property of each defendant, it was said :

“The plaintiff asks to condemn and acquire, all and several, the rights, title, and interest of the defendants * * * of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the Erie Canal, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous, and appurtenant to the land and premises adjacent to said outlet described.”

Then follow descriptions of the sundry parcels owned by the several defendants against whom the proceedings were instituted.

Notwithstanding the interpretation given to section 18 of the act of 1890 at the trial term, and the construction of the amended petition found in the judgment entered upon the decision made at the trial term, extensive discussions were held before the commissioners as to the meaning of the language used in the petition, so far- as it relates to the description of the property and water rights specified and required to be obtained by the provisions of the act. The commissioners, before closing their awards, - inserted therein the following language:

“The foregoing awards of compensation are based upon an appropriation by the city of Syracuse of all water rights of the several claimants of, in, and to the waters' of Skaneateles Lake and its watershed, with the right to store in said lake, and to divert therefrom, as may at any time be authorized by law, so much of the waters of said lake and its watershed as shall not be required by the state of New York for the Erie Canal.”

As already stated, section 3360 of the Code requires the petition to contain “a specific description of the property to be condemned and its location, by metes and bounds, with reasonable certainty and subdivision 3 provides that the demand for relief shall be for the condemnation “of the real property described,” and that commissioners of appraisal be appointed to ascertain the compensation to be made “to the owners for the property so taken.” It was the duty of the plaintiff to obey the provisions of the statute, and implicitly' and accurately follow its requirements. In doing so, it was its duty to insert an accurate, specific description, with reasonable certainty, of the precise property rights to be condemned, to the end that the proceedings should comply with the statute, and the defendants be enabled by the petition to understand just what is taken from them, and just what is left, if anything, after the taking has been had under the proceedings instituted by the petition. The ownership which the defendants have in the water flow and water rights is a corporated right, — “an incident of property in, and parcel of the land owned by them. Scriver v. Smith, 100 N. Y. 471; Ang. Water Courses, § 90. In Re New York C. & R. R. Co., 70 N. Y. 191, it was said there must be no uncertainty in the description, nor in the degree of interest to be acquired. To the same effect is In Re Water Com'rs of Amsterdam, 96 N. Y. 361. In Hayden, v. State, 132 id. 533 ; 44 St. Rep. 911, .it was held that, where a permanent appropriation is sought to be had of land or water, “the quantity must be definitely ascertained and described, so that the owner may know how much has been taken, and what he is entitled to be compensated for.” And in the course af the opinion it was said:

“If the water to be appropriated is described as all in a certain lake, or all flowing in a particular stream, such would, undoubtedly, be a sufficiently definitely description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it, was appropriated, and the description was too indefinite to effect a legal appropriation.”

In People ex rel v. Board of Trustees, 137 N. Y. 89 ; 50 St. Rep. 185, a statute authorizing condemnation proceedings was under consideration, and Andrews, C. J., observed, “the statute can only be satisfied by a reasonably accurate description by boundaries or fixed monuments;” and in that case it was intimated that the difficulty was not cured because in the course of the hearing the claim of the petitioner was limited “to a strip of land ninety feet in length.” In Matter of Met. E Ry. Co. v. Dominick, 55 Hun, 199; 27 St. Rep. 576, condemnation proceedings were brought in review, and it was there said that, in a proceeding “ to condemn property rights, extreme accuracy is required in the description of the property sought to be acquired, and there must be no uncertainty in such description, or in the degree of interest sought to acquired." In the course of the opinion in that case it was said “ the property owner’s rights should not be- left even to doubtful, though plausible, construction.” It was claimed by the learned counsel for the plaintiff before the special term, and before the commissioners, and has been argued before this court, that the “ appropriation by the state in 1843 of the Skaneateles waters cut off the right of riparian owners along the outletand a similar claim was made by the attorney-general, in behalf of the state, in the case of Waller v. State, 144 N. Y. 579, 593 ; 64 St. Rep. 220. That claim has been refuted by the court of appeals since the decision of this case at special term, and that court has held “ that the rights of the owners on the stream below were not included in the words of appropriation in the resolution of the canal board, and so they had no grounds upon which to base an appearance, and claim any permanent damage to their rights.” In the course of the opinion of Peckham, J., delivered in that case, he said:

“ We do not think that by the action of the canal board or the canal commissioners, or their combined action, these rights of the owners upon the stream below were included in the words of appropriation in the resolution of the canal board. Therefore, neither they nor their predecessors had any ground to base an appearance upon before the canal appraisers, and attempt to prove any pertinent damage to their rights by virtue of the resolution of appropriation. The appropriation did not touch them or their rights. * "x" * ' This policy on the part of the state not to then take the rights of the riparian owners further down the stream was not unwise at the time. For more than twenty years after the appropriation, as stated, there was no trouble with these owners, and the state had all the water it required. And for more than twenty years in addition the occasions have been few for withholding the water to the damage of the owners. It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present. The state continued on, therefore, and when, the necessity arose for temporary withholding water it was done, its liability for the damage it thus caused was acknowledged, and it was paid by legislative action. It is conceded that the state-has never, in fact, paid for the permanent appropriation of these-rights, and we find no hardship in making it liable for causing them temporary damage since the last payment on that account. * * * The act itself, however, which enabled the city of. Syracuse to take the water upon conditions specified, recognizes that there might be important rights on the part of these lower owners on the stream; and indeed the act seems to assume that there were, dnd it provides that the city shall not go on with the construction of the work unless, under certain circumstances, those rights are extinguished as provided for in the act.”

That opinion comes to the conclusion that “ the claimant made out a good cause of action against the state for damages sustained by them by the withholding of the waters of the Skaneateles. creek ” (or outlet) in 1892, as described in their claims. It seems, as between the plaintiff and the defendants, the defendants, as owners, were entitled to a free and uninterrupted flow of the water in the outlet, without any interference, diminution or depreciation thereof on the part of the state,- until the water-power-rights and privileges were acquired and extinguished by the city. The legislature is the sole judge of the expediency of allowing an interference with the natural rights of the citizens of the state in water powers and rights owned by them, and as to the expediency of exercising the right of eminent domain for any public purpose. Varick v. Smith, 5 Paige, 137. In Re Poughkeepsie Bridge Co., 108 N. Y. 490; 13 St. Rep. 770, Andrews, J., said .-

“ The power of eminent domain, which resides in the state, as an attribute of sovereignty, is nevertheless dormant until called into exercise by an act of the legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient; and the state can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore, it is that wherever an attempt is made, either by the officers of the state, or by a corporation organized for a public purpose, to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to the statute conferring it. In the absence of statutory authority, private property cannot be invaded by this power, however strong may be the reasons for appropriation. In construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict, rather than a liberal, construction is the rule. Such statutes assume to call into active operation a power which, however essential to the existence of the government, is in derogation of the ordinary rights of private ownership, and of the control which an owner usually has of his property.”

tinder that wholesome doctrine, it is not unreasonable to exact of the petitioner in this case that it should fulfill and carry out all the conditions and restrictions imposed upon it by the legislative .acts under which it seeks to derive important and valuable rights .and privileges. So far as the conditions and restrictions found in the statute relate to the rights of the defendants, they are entitled to have the full benefit thereof. Nor does the fact that the legislature authorized the plaintiff to take by means of a conduit with 80-inch carrying capacity, which would be about 15,000,000 gallons per day, deprive the defendants of the right to have the full benefit of the restrictions and conditions named in the act carried out, and that the acquisition or extinguishment shall be of all water powers and water rights upon the outlet. Earl, J., in speaking of the acts authorizing the city to acquire water, says, in Sweet v. City of Syracuse, supra:

“ The right given to the city of Syracuse to draw water from the lake is, as we have seen, in its very largest extent, a mere license, to be exercised under the constant supervision of the state, and subject to its paramount right and control. * * * This is not a gratuitous appropriation. The city is to increase the storage capacity of the lake, and erect and maintain at its own expense a dam, and the structures connected therewith. There are two parties to the bargain, each of which gets some advantage.”

And it was competent for the legislature to enact that, “ before any water shall be taken from Skaneatles Lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water.” Judge Beckham, at page 599,144 N. Y., of Waller v. State, distinctly assumes that the state had not acquired the rights of riparian owners upon the outlet. He says:

“ This policy on the part of the state not to then take the rights of riparian owners further down the stream was not unwise at the time. * * * It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present.”

It was competent for the legislature in 1890, in amending section 18, to declare the necessity, and by imperative requirement, as a condition of the license then given to the city, to burden it with the duty to “ acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water. ”

Neither the petition, the findings of the trial court, the judgment, or the award of the commissioners, “ specify” or describe” definitely and certainly the quantity of water necessary for the Erie canal. The canal is some nine miles from the lake, and it is supposed that the water that passes from the lake goes down along the outlet before it reaches the canal, requiring a lapse ot something like twelve hours’ time. • In the language used by the learned attorney general in another forum, it may be properly said “ the quantity of water used for the canal is necessarily uncertain, depending on the volume of commerce, and incidents to the canal banks." The theory of the plaintiff, as evinced by its petition, and announced at the trial term, and as indicated by the decision and judgment thereof, as well as the special language found in the awards, seems to be based upon the idea that the state, by virtue of the resolution of 1843, worked an invasion of and an acquisition of, the original water rights and privileges of the owners of the lands upon the outlet. The logic and theory of the opinion in Waller v. State, supra, are adverse to the theory, as in the latter case the court held “ the rights of the owners upon the stream below were not included in the words of appropriation! in the resolution of the canal board.” It has been repeatedly held that the right to divert the waters from a natural stream “ can only be acquired under and by virtue of the sovereign right of eminent domain, and upon making just compensation.” Varick v. Smith, 5 Paige, 137 ; Clinton v. Myers, 46 N. Y. 511; Scriver v. Smith, 100 id. 471; Smith v. City of Rochester, 92 id. 465. and cases cited in the opinion of Ruger, C. J. The doctrine of the cases just mentioned was referred to with approval in Hardin v. Jordan, 140 U. S. 394. The acts of 1889 and 1890 authorized the plaintiff, in furtherance of its system of water works, to bring to its aid the power of eminent domain, it being competent for the legislature to give such power. In re Union Ferry Co., 98 N. Y. 153. The proceedings instituted by the plaintiff rest upon those acts and the general condemnation law found in the Code.

The logic and doctrine of the opinion delivered in Waller v. State, supra, since the trial and decision of these cases at special term, and the views herein expressed, lead to the conclusion that, under the peculiar circumstances of these cases, the judgment at special term, and the awards and order confirming the same, should be reversed, as to the appellants. However, the petitioner may be able to supply the necessary averments, and may also be able to cure the defects of description; aud it should therefore have leave, if so advised, to apply at special term, with the proper papers, for the amendment of the present petition and proceedings. If such amendment be granted, the present proceedings-may stand, and be continued, as to the appellants. The order so far as appealed from is reversed, with $10 costs and disbursements- and appraisal vacated, and judgment reversed, with costs of the appeal to the appellants, and a new trial granted, if plaintiff elects, within thirty days after the entry of an order upon this decision, to proceed with the proceedings, and applies for leave to amend its petition. If such leave is not applied for or granted, the peti-. tian is dismissed, with costs of this appeal and the trial court.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    City of Syracuse, Resp’t, v. Skaneateles Paper Company et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Appeal from an order made on the 19th day of May, 1894, “denying the motion of said defendants and others to vacate and: set aside the decision, judgment, and order in said proceeding, and the appointment of commissioners therein, and dismissing the proceedings and petition therein, and for other and further relief, and from the whole of said order.”

      George Barrow Knapp, Nottingham & Andrews, and Chas. A, Hawley, for app’lts ; Charles L. Stone, W. A. Beach, and George N. Kennedy, for resp’t.
   Per Curiam.

Inasmuch as the conclusion lias been reached by this court in the case of City of Syracuse v. Stacey, 67 St. Rep. 704, for the reasons stated in the opinion of Hardin, P. J., therein, that the judgment and order appointing commissioners, and the order of confirmation of their report, should be reversed, and the appraisal vacated, as will more fully appear by reference to the order made in accordance with the opinion in that case, it is deemed unnecessary to consider the merits of the appeal from the order denying the motion made by the defendants to vacate' and set aside the decision and judgment and orders in said proceeding; and therefore the appeal from the order herein referred to is-dismissed, without costs to either party.

Appeal dismissed, without costs to either party.


text:
    City of Syracuse, App’lt, v. Richard M. Stacey et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Appeal from “so much of the order made in said proceeding at a special term held in Syracuse on May 19, 1894, and entered in Onondaga county clerk’s office on June 20, 1894, confirming the award of commissioners of appraisal herein as allows or directs the recovery of costs against the plaintiff by the defendant herein, or any of them, and also from so much thereof as allows or directs recovery against the plaintiff of an individual allowance by the defendants herein, or any of them.”

      C. L. Stone, W. A. Beach and Geo. N. Kennedy, for app’lt; Knapp, Nottingham & Andrews, George Barrow and Charles A. Hawley, for respt’s.
   Per Curiam.

Inasmuch as we have reached the conclusion at this term, for the reasons stated in the opinion of Hardin, P. J., in City of Syracuse v. Stacey, 67 St Rep. 704, that the order of confirmation and the judgment of the special term appointing commissioners should be reversed, and the appraisal vacated and set aside, it follows as a sequence that the order awarding costs to-the respondents against the plaintiffs, and an extra allowance, in so far as *it is appealed from, should fall and be vacated.

Order, so far as it awards costs and an extra allowance to any of the respondents against the plaintiff, vacated and set aside.


text:
    City of Syracuse, Resp’t, v. Skaneateles Paper Company et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Appeal from so much of an order as amended the petition and schedules.

      Knapp, Nottingham & Andrews, for app’lts; C. L. Stone and W. A. Beach, for resp’t.
   Per Curiam.

Inasmuch as our opinion in the principal case leads to a. reversal of a preliminary judgment, and vacating the appraisals and reversing the orders of confirmation, and as it will become necessary, if the plaintiff further prosecutes this proceeding, to amend its petition and schedule, it is therefore unnecessary to pass upon the question of the propriety of the discretion exercised by the special term in granting the order appealed from. We may therefore properly vacate the order without prejudice to either party, and without costs to either party, so far as it is appealed from. The portions of the order of the special term of June 17, 1893, entered June 30, 1893, directing an amendment of the petition and schedules, so far as appealed from, vacated, without prejudice to either party, and without costs to either party.


text:
    City of Syracuse, Resp’t, v. Richard M. Stacey et al., App’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Appeal from “ an order made in said proceeding at a special term of said court held in Syracuse on May 19, 1894, * * * denying, motion of said defendants and others to send back to the commissioners of appraisal herein the report made and filed by them on May 7, 1894, and requiring and directing them to make a further or supplemental report, and from the whole of said order.”

      George Barrow, Knapp, Nottingham & Andrews, and Charles A. Hawley, for app’lts; C. L. Stone, W. A. Beach and Geo. N. Kennedy, for resp’t.
   Per Curiam.

Having at this term reached the conclusion, for the reasons stated in the opinion of Hardin, P. J., in City of Syracuse v. Stacey, 67 St. Rep. 704, that the judgment and order appointing the commissioners should be reversed, and appraisal vacated, and the order of confirmation reversed, it is unnecessary to pass upon the questions presented by the appeal herein, and the order should be vacated and set aside. Order denying motion to ' send back to the commissioners of appraisal herein the report made by them on May 7, 1894, vacated and set aside without costs to either party upon this appeal.


text:
    City of Syracuse, App’lt, v. Skaneateles Paper Company et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 4, 1895.)

    Appeal from an order denying a motion to amend the notice of appeal from final order of confirmation nunc pro tune as of July 9, 1894, defendants appeal; and from other parts of the' order, amending the notice of appeal from the final order of confirmation.

      Knapp, Nottingham & Andrews, for app’lt; C. L. Stone, W. A. Beach and Geo. N. Kennedy, for resp’t.
   Per Curiam.

The result reached in Gityof Syracuse v. Stacey, 67 St. Rep. 704, as evidenced by our opinion and decision in that •case, seems to supersede the necessity of considering and deciding the questions presented by the order involved in this appeal.

Order vacated and set aside, without costs to either party.


author: O’Brien, J.

text:
    National Pipe-Bending Company, Resp’t, v. George E. Fisher, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Pleadings — Amendment.
    Though the original answer admits the contract sued on, an amended answer, denying such contract, may be served.
    2. Same — Delay.
    The delay, in asking for leave to serve an amended answer, until the cause was set down for trial, was held to have been fully and satisfactorily explained.
    Appeal from an order, denying an application for leave to serve an amended answer.

      O. P. Buel, for app’lt; Frederic B. Kellogg, for resp’t.
   O’Brien, J.

The action is "brought to recover the value of certain goods, wares and merchandise, and certain services furnished and rendered upon the express promise of the defendant to pay therefor. From the complaint it appears that the order for the goods was originally received by the plaintiff from one A. Perry Bliven, but that, prior to the acceptance of the order and the manufacture and delivery of the goods, the plaintiff required the express promise or guaranty of the defendant that he would pay the plaintiff therefor, and that, thereupon, the defendant did so agree. The answer denied that the goods were made in reliance on defendant’s promise, or that they were to the satisfaction of Bliven, but seemingly admitted the statements as to the promise of the defendant that he would pay for the goods, and as to the requirement of the plaintiff of this promise before it would accept the order for or manufacture them. The difference between this and the proposed amended answer would result, as urged by the plaintiff, in permitting the defendant to change his admission of the contract set forth into a denial of it in its entirety, and would permit him further to amplify the affirmative defense by alleging' that a party other than Bliven was the purchaser, and that the purchase .was made, not from plaintiff, but from another company.

There is no question as to the power of the court to allow the ■ amendment either of a complaint or answer, and the practice has-been to exercise such power liberally when in furtherance of justice, so as to permit either a fuller statement of a cause of action, or an opportunity to make a proper defense ; and when the application is made in good faith, without delay, an amendment should be allowed upon such terms as to the other party are just. Here the complaint was served on November 16, 1894, and the original answer in .January, 1895. Shortly after the last date the case was-set down for trial, on the special calendar for short causes, on March 22, 1895. The original answer was drawn and verified by one of the defendant’s attorneys during the absence of the defendant from the city, and, as he swears, without full opportunity to consult with the defendant as to his defense; such opportunity having been presented only on the 21st of March, when the defendant came to the city to attend the trial of the case. The trial, which was set down for the 22d of March, was adjourned, at plaintiff's request, to the second Friday of April; and thereupon the plaintiff’s attorneys were immediately requested to accept service of the amended answer, which was refused, and the motion was made for the 29th of March for leave to serve the proposed amended answer. The attorney, in the affidavit in support of the-motion, states how the original answer failed definitely to set forth the defense, and that the failure to move earlier was due to the-defendant’s absence from the city, and - we have his sworn statement that the application was not made for the purpose of delay. The motion was opposed, and, we must presume, upon the same-grounds that are urged upon this appeal, viz., that the defendant had been guilty of loches, that the application was not made in good faith, and that the defendant should not be permitted, after admitting the contract, to set up facts in avoidance thereof. We can find no evidence, upon the facts here presented, either of loches or want of good faith in making the application. The delay that-occurred is fully explained, and it is uncontradicted, and the suggestion that the application was made to obtain delay, or to have the case consume more than an hour, is met by the sworn statement that no delay of the trial was asked or expected; and it was-within the power of the court to affix, as one of the conditions for the granting of the motion, that the defendant should stipu- ' late to try the case when reached upon the day fixed by the plaintiff. The strongest argument to support the claim of bad faith is in the suggestion that the defendant made an offer to pay something in settlement of a liability upon a contract, which by the proposed amended answer is denied. And, while this is not without force, we think it would be going too far to hold that where one, desiring to buy his peace, or for any other reason, may make an offer, this can be subsequently resorted to to prevent his obtaining relief which otherwise he would be entitled to. In other words, the court, while favoring settlements, should not seize hold of an offer, and, because of it, refuse to grant relief which, but for such offer, would have been accorded.

As to the third objection urged, that a party who has admitted a contract should not be permitted subsequently to set up facts in avoidance, it is sufficient to say that, if this rule were to be strictly adhered to, it might impair the right of the court to permit an amendment; for unless it is necessary, in some respects, to change the pleading, there would be no need to apply for an amendment. It is true that in Smith v. City of Athens, 74 Hun, 26; 57 St. Rep. 743, where the answer expressly admitted the execution of the contract, and where it was sought to amend by setting up certain defects in the execution thereof by the amended answer, the court, in affirming the order of the special term refusing to permit such amendment, said:

“ The alleged defects in the execution of the contract, if they existed, must have been well known to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them and defend the action upon the merits. To such election it should be held. To allow it first to admit, and then, after reflection, to deny, facts upon which the rights of parties rest, would not be in furtherance of justice.”

This case, however, differs from the one cited, in that the original answer, upon insufficient information, was interposed by the defendant through his attorney, it having been verified by such attorney in the absence of the defendant himself; and the amendment sought, unlike that in the case cited, is not upon a mere matter of technical defect in the execution of the contract, but goes to the denial of the contract itself. We think that the application was one which, upon terms that were just, should have been granted. The order is accordingly reversed, with $10 costs and disbursements, and the application granted, upon the condition that the defendant pay all the costs of the action up to the time of the application, and stipulate to try the case when reached on the short-cause calendar.

All concur.


text:
    H. Claflin Company, App’lt, v. Eugene Arnheim et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Fraudulent conveyances — Confession of judgment.
    A judgment, confessed in favor of one creditor for the purpose of defrauding another creditor, is void as to the creditor intended to be defrauded.
    2. Same.
    Where a debtor, against whom an action is brought, secures an extension of time to answer upon the promise to pay the claim, and, in the meantime, not to permit, any change in his property, nor entry of judgment against him, nor plaintiff to be prejudiced by the delay, but, upon obtaining the extension, confesses judgment in favor of other creditors, the judgments so confessed are fraudulent and void as to plaintiff, though the persons in whose favor they are confessed do not participate in the fraud.
    Appeal from an order, denying a motion for an injunction.

      Kneeland & Stewart, for app’lt; Joel M. Marx, for resp’ts.
   O’Brien, J.

This action is brought to restrain the defendants, who are judgment creditors, from collecting the proceeds of certain executions issued against one Eugene Arnheim, and to have plaintiff’s judgment, which was subsequently obtained, declared to be a prior lien upon the proceeds in the hands of the sheriff. The motion for an injunction to restrain the sheriff from paying out the proceeds until a determination of the action was made upon the complaint and affidavits, from which it appears that plaintiff had commenced an action against Arnheim, the debtor; that before the latter’s time to answer had expired, an extension of time to answer was granted upon his promise to pay the plaintiff’s claim, and not to dispose of his property in the meantime; that, notwithstanding the representations thus made,— that if the extension were granted “there would be no change in his (the debtor’s) property in the meantime, that no judgments would be entered against him, and that the plaintiff would not in any way be prejudiced by the delay; that its righis would be preserved, and that he, the defendant Eugene Arnheim, would pay the plaintiff’s claim in installments,” — the defendant, in violation of his promise, and with a view to defraud the plaintiff, and to prevent its obtaining a preference, confessed judgments in favor of five other creditors. It is neither alleged nor claimed that the- confessed judgments are fraudulent, nor that the judgment creditors were parties to ’any fraud. There is no law which prevents a failing debtor from giving any creditor that he may choose a preference by means of a confession of judgment for any valid debt. It is insisted, however, that the right to enter judgment which plaintiff had secured could not be postponed by the fraud of Arnheim, the debtor, in favor of the judgments confessed to the other defendants for antecedent debts; and to support this contention reference is made to 'the cases of Clark v. Taylor, 37 Hun, 312, and Jacques v. Greenwood, 12 Abb. Pr. 232. In Clark v. Taylor, the plaintiffs were about to enter judgment against one Taylor, whose time had expired. If such judgment had been then entered, the amount thereof could have been collected upon the execution issued thereon. To induce the plaintiffs to refrain from so doing, Taylor agreed that he would pay the claim by frequent partial payments before Hovember 1st, and that, if he concluded to make a general assignment, he would give the plaintiffs notice of his intention to do so. Taylor also made a false statement as to his assets and liabilities. The proposition having been accepted on the 27th of September, Taylor, on the 28th, without giving any notice to plaintiffs, made a general assignment.' Upon the trial the -court found that Taylor intended to make the assignment at the time of entering into the agreement, and that he made the agreement for the purpose of preventing the plaintiffs from exercising their legal rights, and to gain time in which to make the assignment. It was held that the assignment was frauduleni as to the plaintiffs, and as to them should be set aside. In the course of the opinion it was said:

“It is settled in this state that an assignment for the benefit of creditors is not voidable because it prevents a creditor from acquiring "a lien by an impending judgment, attachment, or exeeucution. * * * Whether this assignment is fraudulent and voidable as against the plaintiffs depends upon the intent of the assignor. If it was conceived and executed for the purpose of depriving the plaintiffs of a valuable legal right, it is voidable as against them. * * * An assignee is not a purchaser in good faith, but stands in the shoes of the assignor.”

And in Jaques v. Greenwood, a judgment having been taken by default against the firm, they obtained a stay of proceedings on the pretense that they had a defense to the action (which they failed to show), and on the assurance of their attorney that they would not make any assignment. Meanwhile they made an assignment for the benefit of creditors, giving preferences thereby, and preventing the judgment creditors from realizing anything upon their execution. Held, that the assignment was void as against such judgment creditors, as being made with 'intent to hinder and delay them.

The weight to be given to these cases as authority is not lessened by the case of Wood v. Mitchell, 44 St. Rep. 694. for there no promises or agreements were made by the judgment debtor; all that appeared being that in the ordinary way, in pursuance of a legal right, an extension of time was procured in which to answer, and before the expiration thereof judgments upon just and legal debts were confessed. It was therein held that upon those facts tlie action of the attorneys could not be held to be a fraud on the plaintiff in the action in which the extension was obtained; and it was therein said : “ There was here no agreement, express or implied, that pending the extended time the existing status should not be changed by any act of the defendant. The case therefore is not analgous to Jaques v. Greenwood,” supra; and, we might add, nor is it analogous to the case of Clark v. Taylor, supra. They are authority for the proposition that by fraudulent promises or agreements one cannot succeed in depriving a plaintiff in an action of a benefit which, but for such fraud he would have obtained. It will be noticed that the cases referred to, Clark v. Taylor and Jaques v. Greenwood, were brought to set aside general assignments for the benefit of creditors, upon the ground that, as to the creditor induced to refrain from entering a judgment by the fraudulent representations of the assignor, they were invalid. And upon this circumstance the respondents base a claim that a distinction is to be observed between the rights which creditors secure under an assignment and those that are obtained upon confessions of judgment, and to support this alleged distinction our attention is directed to many decisions which are like, or dispose of questions similar to, those involved in Manning v. Beck, 129 N. Y. 1; 41 St. Rep. 199 ; Abegg v. Bishop, 142 N. Y. 286, 289 ; 58 St. Rep. 788; and London v. Martin, 79 Hun, 229 ; 61 St. Rep. 24. In the latter case it was said by this court :

“ A failing debtor may now practically prefer his creditors to as great an extent as his property permits, provided he does it by giving mortgages and bills of sale, or confessing judgments, instead of putting it in the general assignment, which it is said the statute alone condemns.”

This is a correct statement of the law, and the error into which the respondents have fallen is in confusing the statute therein referred to (which was the act of 1887, relating to general assignments for the benefit of creditors) with the statute of frauds.

Upon an examination of these cases it will be found that no 1 such question was involved as the distinction between the case of an assignment and a judgment suffered as affected by the statute relating to fraudulent conveyances. That statute was not under consideration and the language used was not intended to apply tc it, but to another statute, viz. the statute of 1887, prohibiting the making of preferences in an assignment beyond a certain portion of the estate. And the court held in these cases, in regard to that statute, that a judgment obtained was not invalidated by such action of a debtor who confesses judgment to a creditor who in good faith acts for the purpose of obtaining security for the payment of an honest debt due from the debtor to himself. A reading of the opinion in Manning v. Beck, supra, shows that the only question discussed was the statute in respect to preferences in assignments, and there is no determination of any question upon the statute of frauds. It is true the court says:

“ It does not seem to us that either the letter or the spirit of our statute covers a case where the creditor is ignorant of any intended violation of the statute by the debtor. ”

The statute being discussed was that in respect to assignments, and it was the alleged attempt to circumvent that statute that was under consideration. We think, therefore, that there is no authority for the position that a distinction is to be made between the rights of a party holding under an assignment and one obtaining a lien by a confessed judgment. The statute of frauds makes no distinction. An assignment and judgment suffered are placed in the same section and in the same category; and in both the intent' of the debtor controls the validity of the action, entirely independently of the knowledge or intent of the debtor. It provides that :

‘‘ Every conveyance or assignment in writing or otherwise of any * * * goods or things in action * * * made with intent to hinder, delay or defraud creditors or other persons * * * and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent as against the persons so hindered, delayed or defrauded shall be void.” 2 Rev. St. p. 137, § 1.

Where, then, is there any distinction to be made between an assignment of goods or things in action and a judgment suffered by which a creditor obtains a lien through execution upon such goods or things in action ? If the .assignment is made or the judgmerit suffered with intent to hinder, delay, or defraud creditors, such assignment and such judgment are both void. The statute leaves no ambiguity upon the subject. There is no ground for ■distinction; the one comes under the ban of the statute just as well as the other.

It is said that in the case of an assignment for the benefit of ■creditors the assignee stands in the shoes of the assignor. In the case of the confession of a judgment, does the creditor do.any more? By the fraudulent act of the debtor machinery is set in motion for the obtaining of a lien, and such lien is of no greater dignity than if an assignment of the thing had been made and the thing transferred to the assignee for the purpose of defrauding creditors. There is no distinction between an assignment to a trustee for the benefit of the creditor and a direct assignment to the creditor. The statute certainly intimates none; and the evils to be obviated require no such distinction to be made. The language is:

“ Every bond or other evidence of debt given, suit commenced, decree or judgment suffered with the like intent.”

If the statute had stopped there, even if a party paid value for the property, without notice of the fraudulent intent of the debtor, the conveyance to him would necessarily be held void. And it was to save innocent purchasers that section 5 of the statute of frauds was enacted. That section reads:

“ The provisions of this chaptrr shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.” 2 Bev. St. p. 137, § 3.

What was the necessity of this portion of the enactment if it was only necessary, in order to escape the previous provisions of the law, to show that the. creditor had no notice of the fraudulent intent of his assignor or of his judgment debtor? The section in question expressly impeaches the title of a person who bujrs for value with notice of such intent, and the purchaser for value without notice is the only person that is protected from the operation of the statute. If a debtor does these things, — makes an assignment or conveyance, or suffers judgment with intent to hinder, delay, and defraud creditors, — -his act is voidable at the instance of -creditors as against all the world except a bona fide purchaser for value; and he cannot be a bona fide purchaser unless he is ignorant of the fraudulent intent. It does not seem necessary to multiply words upon this proposition, as the statute is so explicit that it needs no discussion for its elucidation, and words in such a case would tend only to obscurity. If any other authority be needed, the case of Starin v. Kelly, 88 N. Y. 418, is directly in point

It will thus be seen that we reach the conclusion that the distinction sought to be made between an assignment and a judgment-suffered is illusory, and that the statute is not so solicitous as to the manner in which the fraud is accomplished as it is in determining the question of whether actual fraud was intended and consummafed to the injury of another. The mode or character in which the transfers are made can make no difference; the suffering of a judgment, or the transfer or insolvent act, being voluntary, and in each the third parties not parting with any thing upon the faith thereof. The results obtained are the same, although the methods may be different. In both the debtor voluntarily puts liens upon his property, and neither the creditors under the assignment nor the judgment creditors part with any thing on the strength of the confessions or the making of the assignment from which they may receive benefit, and neither the confessions nor the making of the assignment requires any act on the part of either class of creditors. Our conclusions, therefore, is that the right to enter judgment which the plaintiff had secured could not be postponed by the fraud of Arnheim to the judgments confessed to the other defendants for antecedent debts. The judge at special term, though not disputing the existence of the facts set forth in the papers upon which the motion for an injunction was made, denied the motion upon the ground that he did not think the action could be maintained. In this, we think, for the reasons stated, the learned judge erred. The plaintiff, therefore, having a right to-maintain the action, and having made a showing entitling him to an injunction, we think the order should be reversed, with $10-costs and disbursements, and the motion granted, with $10 costs.

All concur.


author: Follett, J.

text:
    The People ex rel. Frank Schaeffler, App’lt, v. Edward P. Barker et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Taxes — Assessment—Bank stock.
    An assessment of bank stock in the name of the person appearing on the-list of stockholders as owner is valid, as against the real owner, to whom, the shares were transferred before the assessment was made.
    2. Same — Certiorari.
    The owner of shares of bank stock, listed by the bank in the name of the previous owner, and assessed in sucli name, is “aggrieved,” within the meaning of chapter 269 of 1880.
    Appeal from an order quashing the writ of certiorari.

    Joseph Schaeffler, in his lifetime, was the owner of twenty shares of the stock of the German Exchange Bank in the city of Hew York. May 15, 1898, he died at said city, leaving a last will, which was probated June 2, 1893, and letters thereon were issued by the surrogate’s court of the county of Hew York, to Frank Schaeffler and Joseph Schaeffler, of said city. Hovember 15, 1893, the cashier of said bank, pursuant to section 313 of chapter 714 of the Laws of 1892, furnished the commissioners of taxes and assessments with a list of the names and residences of the shareholders of the bank, with the number of shares held by each. In this statement Joseph Schaeffler was set down as the owner of twenty shares, of the par value of $100 each. January 5, 1894, the aforesaid executors transferred said twenty shares to Frank Schaeffler, which transfer was registered on the transfer book of the bank. On the second Monday of January, 1894, which was the 8th day of the month, the assessment roll of the city was completed, on which Joseph Schaeffler was assessed for twenty shares of stock in the German Exchange Bank, valued at $6,200. Due notice of this assessment was given, and, on the 11th day of April, 1894, Frank Schaeffler appeared before the commissioners of taxes and assessments, and filed his affidavit, in which he stated the foregoing facts. He also testified that all of his personal estate, including said shares, did not exceed in value $15,000, and that his debts amounted to $46,000, and asked that the assessment upon the shares be stricken off, which the commissioners refused. None of the foregoing facts are 'disputed, and the affidavit of Frank Schaeffler was not controverted. Upon a petition stating the facts a writ of certiorari was issued, pursuant to chapter 269 of the Laws of 1880, returnable on the first Monday of October, 1894, on which a hearing was had February 11, 1895, and the writ was quashed. From the order quashing the writ the relator appeals.

      Frank Schaeffler, in pro. per.; George S. Coleman, for resp’ts.
   Follett, J.

In a case assessable personal property is in the possession and control of its owner, the policy of this state is that it shall be assessed to and the taxes paid by the owner, at his legal residence. On the date fixed by the statute for the assessment of personalty in the city of New York, the relator was the owner of the.shares of bank stock, and he should pay the taxes thereon,, subject to legal exemptions. The first question presented is, was the assessment of the shares to Joseph Schaeffler, who was then dead, legal ? It is clear that under the general statutes relating to the assessment of personal property requiring it to be assessed to the legal owner, its assessment to a dead man would impose no liability on any one to pay the tax assessed. But chapter 409 of the Laws of 1882 creates an exception to the general rule in respect to the assessment of shares of banking corporations. Section 313 of this chapter, as amended by chapter 714 of the laws of 1892, requires that incorporated banks shall keep a correct list of the names and residences of stockholders, the number of shares-held by each, and that banks in the city of New York shall, on or before the 1st day of December in each year, furnish the taxing officers with a certified copy of such list. The section further provides :

“And the names of the holders of such shares appearing upon such list shall be deemed the names of the owners of such "shares as are set opposite them respectively for the purposees of assessment and taxation, as provided for in this chapter.”

Section 314 of this chapter, as amended by chapter 714 of the Laws of 1892, provides :

“And the tax on the shares of said stock shall be and remain a lien thereon from the day when the property is by law assessed, till the payment of said tax, and it transferred after such day, the transfer shall be subject to such lien.”

By section 315 of this chapter, as amended by chapter 714 of the Laws of 1892, it is made the duty of the bank to pay the taxes on said shares out of the dividends declared on them. Section 312 of chapter 409 of the Laws of 1882 provides :

“Bat in the assessment of said shares, each stockholder shall be allowed all the deductions and exceptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of the state, and the assessment and taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state.”

The clause quoted from section 313 does not provide that the persons whose names appear on the bank list shall be deemed to be the owners of the shares set opposite their respective names, but that the names of the holders of such shares appearing upon such list shall be deemed the names of the owners of such shares as are set opposite them réspectively. ‘Under this provision, if John Doe owns ten shares, and the bank should by mistake return the name of Robert Roe as the owner of the shares, and the assessment should be made in his name, that name — Robert Roe — would be deemed the' name of the true owner, John Doe, for the purpose -of assessment and taxation, and the assessment of the shares would be valid. An error in the name does not invalidate the assessment of the shares as against the true owner, whoever he may be. By section 314, above quoted, it is provided that the tax on the .shares shall be and remain a lien thereon from the day when the property is by law assessed until the payment of said tax;, and, if the shares are transferred after such day, they shall be subject to such lien. In this city the assessment is deemed to be levied on the second Monday of January in each year, and changes in ownership subsequent to that date have no effect upon the validity of assessments. Sisters of St. Francis v. Mayor, etc., of New York, 51 Hun, 355; 20 St. Rep. 985 ; affirmed, 112 N. Y. 677 ; In re Babcock, 115 id. 450, 454 ; 26 St. Rep. 382 ; People v. Commissioners, of Taxes and Assessments, 91 N.Y. 593, 602; Austin v. Telegraph Co., 73 Hun, 96; 56 St. Rep. 79. Under the provision' of the section last referred to, an assessment of shares in the name of the person appearing on the bank list as the owner is in effect an assessment upon the shares against whoever owned them on the second Monday of January of the year in which the assessment is laid, and any subsequent transferee takes the shares subject to the lien of the assessment. The purpose of the statutory provisions under •consideration was to prevent the owners of shares in banking corporations from escaping taxation by making transfers after the lists of the banks have been returned to the taxing officers. By this construction of the statutory provisions exact justice is promoted as between the taxing power and the owtiers of shares, whoever they may be.

The second question involved in this appeal is whether the person who is the legal owner of the shares on the second Monday in January, — the date when the assessment is deemed to have been laid,- — -though not the apparent owner by the bank list, has the legal right to have the assessment stricken off in the case his indebtedness exceeds the value of his personalty. By section 9, art. 2, tit. 2, chap. 13, of the first part of the Revised Statutes, as amended by chapter 202 of the Laws of 1892, the just debts owing by persons and corporations assessed are to be deducted from the assessed valuation of personal property; and, if the debts exceed the value of the personalty, no assessment can be levied on account of the personalty.

It is urged that the relator was not aggrieved within the meaning of chapter 269 of the Laws of 1880. The act provides :

“ Sec. 1. A writ of certiorari may be allowed by the supreme court on petition, duly verified, of any person or corporation assessed and claiming to be aggrieved, to review an assessment of real or personal property for the purpose of taxation made in any town, ward, village or city of this state, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of over valuation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and* that the petitioner is or will be injured by such alleged illegal, erroneous or unequal assessment.”

It is urged that, because the assessment is not against the relator by name, he is not within the class of persons entitled to the remedies provided by the act. This construction, we think, is too narrow and technical. The act was passed to provide a remedy for illegal, erroneous, and unequal assessments in whatever form -or manner they are levied. The assessment under review is just as effectual for the purpose of taking the property of" the relator as though levied against him by name. By section 818 of the consolidation act (chap. 410, Laws of 1882), an assessment against real estate is not void because the name of the true owner is not entered on the assessment roll. If the construction contended for prevails, and a piece of real estate should be assessed at many times its value, but the name of some person not its owner entered •on the roll as the owner, the true owner would be remediless, and compelled to pay an unequal tax. The statute must be construed so as to suppress the mischief aimed at by its authors, and it cannot be that a person is to be deprived of the right to review an assessment on his property because, without his fault, the name of a person not its owner is entered against it. The order quashing the writ should be reversed, and the assessment vacated ; but, as it does not appear that the assessing officers “ acted with gross negligence, in bad faith or with malice,” without costs.

All concur.


author: Van Brunt, P. J.

text:
    Joseph Mitchell, Resp’t, v. Sara J. Keane, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Negligence — Elevator.
    The facts in this case, were held sufficient to authorize the jury to infer negligence upon the part of the person in charge of the elevator and a want of negligence upon the part of the plaintiff.

      Appeal from a judment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      De Lagnel Berier, for app’lt; G. A. Moses, for resp’t.
   Van Brunt, P. J.

The evidence upon the part of the plaintiff shows that he was a messenger boy working for the American District Telegraph Company; that the premises in question were known as the 11 Windemere Flats,” or the “ Windemere Hotel,” situated on the southwest corner of Fifty-seventh street and Ninth avenue ; that the plaintiff, on the 6th of June, had two telegrams to deliver to persons who were resident in said flats. There was an elevator in the building, and upon entering the building the plaintiff went to, and stepped into, the elevator. The man in charge of the elevator was there. The boy handed him the telegrams, and he took them, and handed them back. When he had handed the telegrams back, he pulled the rope, and let the elevator go up, and it stopped at the third floor. The boy approached the door way of the elevator, and stood with his left foot out, waiting for the door to be opened. The elevator.man then pulled the rope again, giving no notice to the boy. The elevator went up, and the boy’s foot was caught between the floor of the elevator and the top of the door of the elevator shaft, and injured. Upon these facts the jury found a verdict in favor of the plaintiff, and from the judgment thereupon entered, and from the order denying motion for a new trial, this appeal is taken.

It is claimed, the complaint should have been dismissed because no negligence had been proven against the defendant. It is urged that the stoppage of the elevator by the elevator man without saying anything, or having said a word to intimate that it was the floor at which the plaintiff was to alight, and without opening the door of the elevator shaft, should not and could not have been considered by the plaintiff as an intimation that he had arrived at the floor at which he was to get out of the elevator. We think, however, this is error. There were no other persons in the elevator. The elevator man knew the persons whom the plaintiff desired to see for the purpose of delivering the dispatches, and when he stopped the elevator the plaintiff had a right to assume that he had arrived at the floor upon which he was to alight. It was not negligence upon his part to place himself in a position to leave the elevator as soon as the door of the shaft should be opened. After such stoppage it was the duty, before starting the car again, of the elevator man, to see that there was no danger in starting the car, or to give the plaintiff some notice that he had not arrived at his destination. This he utterly failed to do. He started the car, the car itself having no door to protect the parties who were riding in it, and the plaintiff’s foot was caught and crushed. We think the jury had a right, from these facts, to infer negligence upon the part of the person in charge of the elevator,, and a want of negligence upon the part of the plaintiff.

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

. All concur.


text:
    Charles L. Eidlitz, Resp’t, v. Jacob Rothschild et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Pleadings — Reply.
    A reply cannot be resorted to for the purpose of amending a complaint, or introducing a new cause of action.
    Appeal from an order, denying a motion to strike out a portion of the reply.

      Charles B. Reid, for app’lts ; Ernest F. Eidlitz, for resp’t.
   O’Brien, J.

This action was brought to foreclose a mechanic’s lien. The plaintiff, who was an electrical contractor, entered into a written contract with the appellant Rothschild on or about October 25, 1893, whereby he agreed to furnish the electrical light plant for the Hotel Majestic for a certain price. The complaint alleges, performance of this contract, with the exception of certain work which plaintiff was prevented from doing, owing to his wrongful ejection from the premises by the defendant. The written contract is annexed to the complaint, market “ Exhibit A,” and made a part thereof. The defendant, by bis answer, puts in jssue almost all the material allegations of the complaint, admitting only the making of the contract, and also annexes the written /contract, marked “ Exhibit A,” and specifications, marked “ Exhibit B.” The answer further sets forth a counterclaim, in which defendant alleges:

“ That an agreement was made between the plaintiff aud this defendant, dated on or about the 25th day of October, 1893. That said agreement was duly executed by the parties thereto on or .about its date, and was the only agreement between said parties relative to the work to be done on or about the premises referred to in said agreement.”

The damages in the counterclaim are based upon the nonperfomance and defective performance of certain work by the plaintiff, To this counterclaim plaintiff made a reply, alleging that the contract contained a provision that, should the owner request any .alterations, he should be at liberty to do so; that during the progress of the work defendant desired certain changes in the specifications and drawing, and in many instances such changes were rendered necessary by reason of errors in the said drawings and specifications; that on or about tlie 21st of February, 1894, defendant directed plaintiff to make such changes as he should find necessary for the improvement and perfection of the work ; and that by the direction and with the consent of the defendant, and in accordance with the contract, a number of alterations, which are set forth, were made; that the contract set forth in the amended answer was the only contract made by the plaintiff with the defendant ; but “ that, as to the specifications and drawings, they were changed as provided in said contract and as above stated.” So much of the reply as is thus indicated defendant moved to strike out, upon the grounds (1) that such portion is irrelevant and redundant; (2) that it is new matter inconsistent with the complaint; and (3) that it is new matter not constituting a defense to the counterclaim.

By Code Civ. Proc. § 514, a reply may only set forth new matter not inconsistent with the complaint, constituting a defense to the counterclaim. Here the countelclaim is for damages for fail- . ure of the plaintiff to carry out his contract. The new matter contained in the reply sets up that, under a provision of the contract permitting it, the specifications were modified by an arrangement between the parties by which alterations consisting of additions and omissions were made in the work, for the failure to supply which omissions the defendant in his counterclaim seeks to-recover damages. It may well be that, had the defendant Rothschild brought an action for damages against the plaintiff for failure to perform his contract, the new matter contained in the reply would be a good defense. But where, as1 here, the plaintiff sues upon a definite contract, which is in writing, and is made a part, of the complaint, and then alleges performance óf this contract, with certain exceptions which are not material in this discussion, without any allegation as to alteration or modification in the specifications of the work to be done thereunder and the deféndant answers, and by way of counterclaim seeks to recover damages for a failure so to perform the contract, new matter in a reply which seeks to change the contract sued upon, and to plead an entirely different contract, is clearly inconsistent with the com-., plaint and the theory upon which the plaintiff’s cause of action is based. We have been referred to no authority permitting it, nor in any system of pleading having regard to logic would it be permitted to amend a complaint by means of a reply. Here the complaint alleges performance of one contract, and the defendant counterclaims, alleging a failure to perform certain provisions thereof ; and it is inconsistent for the plaintiff then to come in by way of reply, and set up another and different contract. As said, a reply cannot be resorted to for the purpose of amending a complaint, nor is it within its province thereby to introduce a new cause of action. This, if desirable, is to be secured by an amendment'of the complaint. We think that the criticisms made to the reply are justified, and that the motion to strike out the portion referred to should have been granted.

The.order is accordingly reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

All concur.


text:
    American Distributing Company, App’lt, v. Edward W. Ashley, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Pleading — Answer—Amendment.
    In an action for goods sold and delivered, the answer, which denies that the goods were sold at a price agreed upon and that they were of the value alleged in the complaint, may he amended upon the trial, so as to make it more specific in this respect.

      Appeal from a judgment entered oh a verdict in favor of the plaintiff for part of the sum sued for, and from an order denying a motion for new trial, made on the minutes.

      Henry Thompson, for app’lt; Hamilton R. Quier, for resp’t.
   Per Curiam.

It is conceded that the plaintiff sold and delivered to the defendant, doing business under name of Stark-weather & Co., 2,626.64 gallons of spirits, on the following specified dates, on the credit of thirty days :

April 23, 1894............... ............. 432 80 gallons it 30, U ............. 487 68 it May 5, U ............. 452 10 U (Í 10, u ............. 432 76 u ÍÍ 25, a ............. 435 30 u June 1, u ............. 436 00 <t
2,626 64 “

It is alleged in the complaint that the plaintiff sold and delivered to the defendant “spirits of the value and at the agreed price in all of $3,216.78,” less an allowance of three cents per gallon, amounting to $78.77; and that there is due the plaintiff $3,138.01, with interest thereon from July 1, 1894. On the trial it was conceded that the defendant had returned to the plaintiff sixty empty barrels, for which he was entitled to credit in the sum of sixty dollars, leaving plaintiff’s claim $3,078.01, the interest on which from July 1, 1894, to December 24, 1894 (the date of the trial), is §87.-21, making the total amount due as claimed by the plaintiff §3,165.22. The jury rendered a verdict for §2,864.90, which is $300.32 less than the plaintiff’s claim. The defendant admitted in his answer the sale of the goods, but denied that they were of the value alleged, or that they were sold at the price alleged. On hhe trial the answer was amended so as to make it more specific in this respect. When the plaintiff rested, it had not proved a cause of action. It had simply shown a sale and delivery of the goods, but it had not proved that they were sold at a price agreed upon, or that they were of any value. The plaintiff showed that it had, through a clerk, presented a bill for some part of the items which the defendant refused to pay, unless the plaintiff would deduct five or six hundred dollars. The defendant was called as a witness in his own behalf, and testified that he purchased the. goods on the dates specified, upon an agreement to pay one-half of one per cent, per gallon above the market rate in consideration of a credit of thirty days. No witness was called in behalf of the plaintiff to contradict the evidence. Evidence was then given that the market value of such spirits on the dates when they were sold was from §1.06 to $1.22-2- per gallon. At the close of the evidence, the court submitted two questions to the jury: (1) Were the goods sold at an agreed price ? (2) If not sold at an agreed price, what was their fair market value? And the jury returned a verdict for $1,864.09. 2,626.64 gallons, at 1.06-|- per gallon, equal $2,797.37, less sixty dollars, for barrels returned, equal $2,797.37„ the interest on which from July 1, 1894, to the date of the verdict is $77.52, amounting to $2,814.89, which is $50.01 less than the verdict. No exception was taken to the charge, and no exception was taken by the plaintiff, except to the overruling of two objections to the admissibility of evidence, no grounds of objection being stated; and besides, the evidence was competent. No error was committed by the court in permitting the answer to be made more definite. The answer as served denied the goods were sold at a price agreed upon, and denied that they were of the value alleged in the complaint.

The judgment and order should be affirmed, with costs.