author: Landon, J.:

text:
    JAMES MacNAUGHTON, on Behalf of Himself and Others, Appellant, v. RALPH R. OSGOOD, THE OSGOOD DREDGE COMPANY and Others, Respondents.

      Contract by the trustees of a corporation with themselves — when an action to set it aside may be brought by a stockholder— what he must establish — presumption as to good faith on the part of the trustees.

    Although a resolution, adopted by the three trustees of a manufacturing corporation fixing the salaries and compensation to be received by them respectively as secretary, treasurer and vice-president of the corporation, is not binding upon the corporation, and may, at the election of the corporation, be set aside, yet an action, brought by a stockholder of the corporation against the trustees and the corporation to set aside the said resolution and compel the repayment of the salaries received thereunder, cannot be maintained unless the plaintiff shows that the corporation ought to exercise its right to avoid the resolution or contract so made by its trustees, in which they were personally interested.
    In such an action by a stockholder, there is no presumption that the trustees have acted dishonestly, which they are required to overcome by affirmative evidence; although the burden of so doing would rest upon them, in an action brought by the corporation, itself to attain the same end.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a motion for a nonsuit granted at the Albany Circuit.
    The action was brought to restrain the officers of a corporation from paying to themselves salaries fixed by them in their own favor, and to compel them to refund the amount already received.

      G. L. Stedman, for the appellant.

      George Richards, for the trustees, respondents.

      Dickinson W. Richards, for the Osgood Dredge Company, respondent.
   Landon, J.:

We assume that the directors of a corporation are trustees; that the corporation is their cestui que trust; that for any violation of their duty to the corporation, whereby it is injured in its estate, the directors are personally liable to it; that a stockholder may, in case the corporation refuses to enforce its remedy, or is prevented from doing so by the control of the directors who have done the wrong, bring it and the wrong-doing directors into court, and thus have the remedy enforced.

The statute (Code Civ. Pro., § 1781, subs. 1, 2) sanctions such an action, and a previous demand of the corporation to bring the action is unnecessary when it is wholly under the control of the directors whose wrong is complained of. (Brinckerhoff v. Bostwick, 88 N. Y., 52-59.) The directors cannot lawfully so control the corporation as to make it a party to a contract with themselves, wherein their personal interests are involved upon one side and the interests of the corporation on the other. (Hoyle v. Plattsburgh and Montreal R. R. Co., 54 N. Y., 314; Blake v. Buffalo Creek R. R. Co., 56 N. Y., 486.) Since the corporation is unable to negotiate, decide, act or think except through its officers and agents, such officers and agents are bound to negotiate, decide, act and think for it with entire fidelity to its best interests. Such fidelity is not presumed when the private interest of the officer or agent is in conflict with the interest of the corporation. The authorities in support of this proposition, and most of those above set forth, are collected and discussed in the able opinion of Judge Yan Brunt, in Metropolitan Elevated Railway Company v. Manhattan Railway Company (14 Abb. N. C., 103). If, however, such a contract - should be made between the directors and the corporation, the contract is not absolutely void, but it is void or valid as the corporation, when freed from the control of its interested directors, may elect. (Barnes v. Brown, 80 N. Y., 527.) It is possible that a contract so made may be in the highest degree beneficial to the corporation, and the law does not disable it from adopting its benefits.

It follows that the resolutions adopted by these three directors, fixing the salary of one of them as president, and of the other as secretary and treasurer, and providing somewhat indefinitely for the compensation of the third as vice-president, are not binding upon the corporation. The corporation is under the control of these three directors, and has thus presumably been disabled from exercising its right to exercise its election to adopt or avoid these resolutions.

The plaintiff, by this action, brought the corporation and its three directors into court, and asks, upon substantially an undisputed state of facts, that the resolutions be avoided and the salaries paid under them be restored to its treasury. Under the circumstances, the corporation should be adjudged to do and receive what the evidence shows it is just that it should do and receive. The plaintiff, by bringing the action, undertakes to make out a case. He contends, however, that having shown the fiduciary relation of the directors, and that they adopted these resolutions to their own advantage, and have received their pay in pursuance of them, that the presumption is that they acted dishonestly, and that the burden rests upon them to overcome, by affirmative evidence, this presumption.

Now, if the corporation had elected to rescind these resolutions and had brought its action to recover the salaries paid under them, doubtless the burden would have rested upon the directors to overthrow the presumption, if, in any aspect of the case, it would be material to do so. But the plaintiff is a volunteer champion of the cause of the corporation. The court does not interfere in the management of a corporation, except in a clear case demanding such interference. (Barnes v. Brown, supra; Chautauqua Co. Bank v. Risley, 19 N. Y., 381; Hawes v. Oakland, 104 U. S., 460.)

It is not clear, from the simple fact that the directors voted themselves salaries and received them, that the corporation has been injured. It is conceivable that this action was beneficial to the corporation. The corporation has received, in consideration, the valuable services of these officers. If these officers had not rendered these services others would need to have been employed, and from the nature of the services, especially those of Mr. Osgood, the inventor of the machines which constitute the principal value of the enterprise and business, it might not have been able to employ any one who could so efficiently perform them; besides, there is a manifest propriety in a corporation employing those who are most interested in its success, and are also best able to promote it, and hence follows the duty to render them reasonable compensation. (Jackson v. N. Y. C. R. R. Co., 2 Sup. Ct. [T. & C.], 654; Talcott v. Olcott Mfg. Co., 11 W. Dig., 141.) The corporation may avoid such a contract with its trustee, but cannot do so except upon equitable terms, and must restore to him what it received from him. (Duncomb v. N. Y., H. and N. R. R. Co., 84 N. Y., 190.) Hence the corporation, upon rescinding, ought to pay the reasonable value of the services of these officers, rendered in a department of labor beneficial to it, and outside of the duty of direction which the office of director implies. See Metropolitan Elevated Railway Company v. Manhattan Railway Company (14 Abb. N. C., at pages 258, 259), where the case of Jackson v. New York Central Railroad Company (2 Sup. Ct. [T. & C.], 653; affirmed, 58 N. Y., 623) is commented upon, and the cases are cited in which the right of a director to recover for such services is shown to rest solely upon a qucmtum meruit, and such we have no doubt is the law.

The plaintiff is not the corporation, his right to champion its interests must rest upon his showing affirmatively that it needs him somewhat in the character of its guardian ad litem to bring it into court for its proper protection, and hence the burden rests upon him to make such a ease as will show that the corporation ought to exercise its right to avoid the resolution or contract made by its directors, in which they were personally interested.

There is a plain distinction between a case in which the corporation may, at its own option, avoid such a contract, and a case in which the corporation, from the fact that it is despoiled and in the hands of its spoilers, ought to be adjudged to avoid it. The plaintiff made the former case, but ndt the latter, and hence the judgment should be affirmed.

Parker, J., concurred; Bocees, P. J., not voting.

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THE NATIONAL ULSTER COUNTY BANK, Appellant, v. MICHAEL J. MADDEN, Respondent.

      Evidence — when an abstract of a check made at the time of its delivery is admissible— when it is admissible to corroborate the testimony of the person making it — the alteration of a check invalidates it.

    This action was brought against the defendant, as the payee and indorser of several checks drawn on a bank, which contained the words “ payable January 22, 1883.” The defense was that these words were fraudulently inserted in the checks, after their indorsement and delivery, without the knowledge or consent of the defendant. The defendant testified to these facts, and, also, that his recollection as to them was clear and positive. He was then allowed, against the objection and exception of the plaintiff, to testify that at the time he indorsed the checks, and bofore he delivered them, he made an entry in a book, which he kept for that purpose, of the date, amount, maker, indorser, time and place of payment of every check. He produced the book and read these entries with respect to every check, and testified that these entries corresponded with each check as it stood when he indorsed it.

      Eeld, that the evidence was competent, and that the court did not err in receiving it.

      Guy v. Mead (22 N. Y., 462) followed.
    That the rules relating to memoranda, used to supply or refresh the memory, did not require its exclusion.
    That as the truth of the defendant’s testimony, denying that the words fixing a future day of payment were in the original checks, was contradicted by the checks themselves and by the testimony of the drawer, the evidence was admissible as corroborative of the defendant’s testimony.

      Plainer v. Plainer (78 N. Y., 90).
    That it was proper for the court to instruct the jury that the single question upon which their verdict depended was whether or not the check had been altered.

      Weyerhauser v. Bun (100 N. Y., 150) followed.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury at tbe Ulster Circuit.

      M. Schoonmaker and F. L. Westbrook, for tbe appellant.

      E. 8. Wood and A. Schoonm,aker, for tbe respondent.
   Landon, J.:

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

“ Rondout, N. Y., October 18, 1882.

“ No. 1. The National Bank of Rondout.

“ Pay to the order of M. J. Madden seventy-five dollars. Payable Jan. 22, ’83.

“$75. “S. M. FOWKS,

II. F. Attyl

“ Indorsed: M. J. Madden.”

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

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

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

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

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

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

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

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

The judgment should be affirmed, with costs.

Bocees, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    WILLIAM H. McCAFFREY, Respondent, v. SAMUEL J. SMITH and ORVILLE J. WING, Appellants.

      Hack stands, in a public highway — when the right to establish them cannot be granted without the consent of the owner of the fee of the highway.

    In this action, brought by the plaintiff, a hotel-keeper, against the defendants, liverymen, to recover damages for injuries sustained by reason of the defendants’ horses and carriages having been kept standing in front of the plaintiif’s hotel, a judgment was entered in plaintiff’s favor for the damages sustained and also perpetually restraining the defendants from standing horses, carriages and hacks in front of the premises of the plaintiff for the purpose of letting the same for hire. Upon the trial the defendants offered in evidence a by-law of the village of Saratoga Springs providing for the granting of licenses to the proprietors of hacks, carriages, etc.; and another by-law declaring that portion of Broadway in the said village which adjoined the plaintiff’s premises a stand for hacks, and another authorizing them to stand on the said street as therein prescribed.

      Held, that the court properly refused to receive the evidence as neither the legislature nor the village authorities had power, as against the adjoining owners, to confer upon any person the right to make use of the highway for any other purpose than to pass or repass without the consent of the owner of the fee.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tlie verdict of a jury rendered at the Saratoga Circuit.

      Wm. H. McCall, for the appellants.

      Chas. 8. Lester, for the respondent.
   Parker, J.:

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

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

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

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

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

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

These by-laws are claimed to be in accordance with authority conferred by chapter 220, Laws 18(56, as amended by chapter 230, Laws 1885. These by-laws were excluded by the court, and we think rightfully. ’ The legislature undoubtedly had the power to authorize the village authorities to pass ordinances and by-laws (which they might enforce), limiting and restricting the use which the public might make of the streets beyond their rights of travel. Ordinances which could be enforced as against the adjoining owners themselves, for the purpose of keeping the streets open to free and lininterrupted travel.

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

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

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

Landon, J., concurred; Bockes, P. J., not acting.

Judgment affirmed, with costs.


text:
    JAMES TIERNEY, Appellant, v. THE CITY OF TROY, Respondent.

      Liability of a city for injwries received by one passing over a bridge at a railroad crossing — the city is not relieved from liability by the duty imposed by law upon the railroad to Iceep the bridge in repair.

    Upon the trial of this action, brought by the plaintiff to recover damages for the loss of the services of-his minor son, occasioned by injuries received by the son in falling through a bridge over the Troy Union Railroad, in the city of Troy, the plaintiff was nonsuited upon the ground that, assuming that the locus in quo was, at the time of the accident, a public highway within the limits of the city of Troy, yet the Union Railroad Company, and not the city, was liable for the neglect to repair the bridge.

      Held, error; that the statutory obligation of a railroad company to restore to their former state streets which it crosses in the process of constructing its road and to keep in good repair a bridge which it is obliged to erect for that purpose, did not relieve the city from its duty to keep such bridge in a' safe condition for public travel nor from liability to persons sustaining injuries by reason of its defective condition.
    Motion for a new trial upon a case and exceptions, ordered to be beard in the first instance at General Term, after a nonsuit had been ordered at the Rensselaer Circuit.
    The injuries, to recover damages for which this action was brought, were alleged to have been sustained by the plaintiff’s son on the 31st of August, 1882, while walking upon abridge crossing railroad tracks in Liberty street, in the city of Troy. The motion for a nonsuit was granted by the court on the ground that it was the duty of the railroad company, and not the city, to keep the bridge in repair.

      Henry A. Merritt, for the appellant.

      H. A. Parrnenter, for the respondent.
   Parker, J.:

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

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

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

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

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

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

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

Bookes,'P. J., and Landon, J., concurred.

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


text:
    FRANK SECOR, by His Guardian ANNA H. SECOR, Respondent, v. ABNER TAYLOR, Appellant.

      Civil damage act — when evidence to show that another judgment has already been recovered against the defendant for the same act is inadmissible.

    This action was brought by the plaintiff, a minor, by his mother as his general guardian, to recover damages for injury to his means of support occasioned by the death of his father by means of intoxicated liquors sold to him by a lessee of the defendant. Upon the trial the defendant offered, but was not allowed, to prove that the mother, who was the general guardian of the plaintiff, had already recovered a judgment against the defendant for the sum of $2,000 for damages sustained by the death of the same party, caused by the same intoxication, and that the said sum had been paid to her.

      Held, that the evidence was properly excluded, as no claim was made in this case for any exemplary damages.

      Mullen v. Christian (22 W. Dig., 59) followed and explained.
    Appeal from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried, and from a judgment in favor of the plaintiff, entered upon a verdict of a jury at the Schoharie Circuit for $400.
    The action was prosecuted under the civil damage act to recover for injury to the means of support of the plaintiff, by reason of the death of his father, on the 21st day of September, 1882, which was alleged to have been caused by the intoxication of the father, produced, in whole or in part, by liquors drank by him in premises alleged to have been leased by the appellant.
    The answer was a denial of the allegations of the complaint. The answer also set up the fact that Anna M. Secor, the mother of the plaintiff and the guardian of the plaintiff in this action, had prosecuted an action in the Supreme Court for the same alleged cause of action mentioned in the plaintiff’s complaint, and had recovered a judgment against the defendant of $2,000 and costs, which judgment had been, before the commencement of this action, paid by the defendant and which was more than equal to the full pecuniary value of the life of the deceased to his family, and was a full satisfaction for all damages, for the loss of means of support of the said family, including this plaintiff.

      S. L. <Jb F. M. Mayham, for the appellant.

      Krum & Grant, for the respondent.
   Parker, J.:

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

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

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

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

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

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

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

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

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

Bockes, P. J., and Landon, J"-, concurred.

Judgment and order affirmed, with costs.


author: Peckham, J.:

text:
    ISAAC GREYSTON, as Administrator, etc., of FRANCIS CONNORS, Deceased, and Others, Respondents, v. JAMES J. CLARK, as Executor, etc., of MARY CONNORS, Deceased, CATHARINE McELRONE and Others, Appellants.

      Limitation of an estate upon a precedent estate, the owner of which has power to dispose of it — invalid, a,t common law — valid since the adoption of the Revised Statutes — 3 R. B. (7th ed.), 217, secs. 32 and 33 — construction of a power of disposing of an estate given to a widow — when a valid expectant estate may he limited thereon.

    This action was brought by the administrator with the will annexed of one ■Francis Connors against the executors of one Mary Connors, the widow of Francis, and other persons interested in Mary’s estate, to obtain a judicial construction of the will of Francis and determine whether Mary took thereunder an absolute title to all his property with full power of disposition, or whether she took a life estate only, with remainder over to persons named in the will of Francis.
    The jurisdiction of the court being denied upon the ground that there was no personal estate unadministered, and no trust relating to any real estate, it was admitted by one of the appealing defendants that she had received personal property from the widow of the testator which once belonged to him, and which was not disposed of by the widow for her support and maintenance.
    The Special Term.held that the widow could not dispose of the property coming to her from her husband for any purpose other than for her support and maintenance.

      Held, that the court had jurisdiction over the action.
    The common-law rule, held by the Court of Appeals to be applicable in this Slate to wills taking effect prior to the adoption of the Revised Statutes, that a provision in the will disposing of real property to A in such terms as to convey a fee, and with power to dispose of it in his lifetime, was inconsistent with a‘ further provision that in case A did not dispose of it during his lifetime, then, and in that case, the estate should go to B, and that the limitation over was for that reason void, was altered by the adoption of the Revised Statutes.
    The possibility of enjoying the estate, on the failure of the precedent owner to dispose of it, is “an expectant estate ” within the meaning of that term, as used in section 33 of 1 Revised Statutes, 725 (3 R. S. [7th ed], 2178), which provides that the preceding section, which prevents the defeating or barring of an expectant estate by any act of the owner of the precedent estate, or any destruction of that estate, “ shall not be construed to prevent an expectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have provided for or authorized; nor shall an expectant estate thus liable to be defeated be, on that ground, adjudged void in its weation."

      Van Horne v. Campbell (100 N. Y., 287) distinguished.
    The will of the plaintiff’s testator contained the following provisions:
    “ First. After all my lawful debts are paid and discharged, I give, devise and bequeath all my real and personal property of every name, nature and description, and wherever situated, to my wife, Mary Connors, absolutely, to have and to hold the same for her own use and benefit forever, and with full power and authority to sell or mortgage as she thinks proper.
    “ Second. It is my will that, on the death of my said wife, whatever property that she may die seized of that belonged to me, and remains in her by virtue of this will, shall be divided” between the testator’s brother, Patrick, his three sisters and a nephew, share and share alike.

      Held, that the estate given to the wife was of such a nature that she could dispose of it all during her lifetime for any purpose she should judge to be for her use or benefit, and that she was not restricted to a disposition for her support and maintenance only.

      That she could not dispose of any portion of the husband’s estate by her will, and that so much thereof as remained in her hands undisposed of at the time of her death belonged to the persons named in the husband’s will.

      Campbell v. Beaumont (91 N. Y., 464) distinguished; Terry v. Wiggins (47 id., 512) followed.
    Appeal from a judgment, rendered at the Albany Circuit in favor of plaintiff, construing Francis Connors’ will.
    Francis Connors died August 17, 1883, and was the owner of certain real estate in the city of Albany. He made a will August 9, 1883, which was duly probated, which provided:

      “First. After all my lawful debts are paid and discharged, I give, devise and bequeath all my real and personal property of every name, nature and description, and wherever situated, to my wife, Mary Connors, absolutely, to have and to hold the same for her own use and benefit forever, and with full power and authority to sell or mortgage as she thinks proper.”
    “ Second. It is my will that on the death of my said wife whatever property that she may die seized of that belonged to me, and remains in her, by virtue of this will, shall ” be divided between testator’s brother Patrick and his three sisters and a nephew, named in the will, share and share alike, and appoints his wife sole executrix.
    Mary Connors, his widow, died January 9,1884, leaving a last will, which was admitted to probate May 8, 1884, in which she directed the sale of her real estate, and makes various bequests, including her household furniture and wearing apparel, and appoints defendant, James J. Clark, executor thereof.
    It was claimed that the plaintiff, as administrator with the will annexed of Francis Connors, sold all the personal property which was left in the possession of Mary Connors at her death, and used the proceeds in settling the estate of Francis. There was no money or other personal property. The only property remaining that Francis owned in his lifetime is the real estate. No debts or claims were shown to be outstanding against the estate of Francis.
    The executor of Mary Connors claims that all the property of which Francis, her husband, died seized, passed to her absolutely by his will.
    Plaintiff, as administrator with the will annexed of Francis Connors, brings this action to obtain a judicial construction of such will, and makes the claim that Mary Connors took a life estate merely.

      Isaac Lawson, for the appellant McElrone.

      Eugene Bv/rhingam,e, for the appellant Clark, executor.

      J. H. Chute, for the respondent.
   Peckham, J.:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The child mentioned was the son of the mother but not of the testator. Here the beneficiaries are the brother and sisters of the testator, and language which in the one case might be regarded as acquiescence in a natural devolution of property from mother to son, may, very properly in this case, be held as a disposition thereof by the testator, after the wife has finished her use for it with her life. Thus distinguishing the two cases, I think that within the reasoning of the case of Terry v. Wiggins (41 N. Y., 512) the will in question, taking all its language, renders it necessary that the disposition of the property by the widow should be during her lifetime and not by will. (See, also, Flanagan v. Flanagan, 8 Abb. N. C., 413.)

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

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

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

JBookes, P. J., and LaNdou, J., concurred.

Judgment modified as per opinion and affirmed as modified ; to be settled by Peokham, J.


author: Pabeee, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EUGENE VAN RENSSELAER and Others, Appellants, v. WILLIAM J. WEAVER and Others, the Assessors of the City of Albany, Respondents.

      Assessment — what lands in the city of Albany are entitled to be assessed as “fa/rming lands ” under section 2 of chapter 139 of 1870, as amended by chapter 402 of 1877.

      Gertiorari to review tlie action of tlie board of assessors of tbe city of Albany in assessing certain lands owned by the relators, as city lots, instead of assessing them at a valuation no greater than the valuation of similar farming lands in the town adjoining, as required by section 2 of chapter 139 of 1870, as amended by chapter 402 of 1877. The lands in question were situated in that portion of the town of Watervliet which was annexed to the city of Albany by the aforesaid act of 1870. The act of 1870, as amended, provided that “the farming lands lying within said district, and used exclusively as such,” should not “be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining.”
    Prior to and at the time of the annexation the lands in question, containing about nineteen acres, had been, and then were, treated, used and rented as a farm, and for no other purpose. They were rented to one tenant Krug, who used the lands as a farm, living in the hrick-house which then stood, and still stands, upon a portion of the land. Krug continued in possession of the entire premises until 1881, since which time he has occupied between eight and nine acres thereof, using the land and raising crops in the same manner and of the same character as is usual among small farmers, his lease requiring the premises to bo used for farming purposes, and for no other use or purpose whatever.
    Since 1881 one Blackburn has used some four acres, and one Ryan about two acres, under leases containing the same restrictions, for the same purposes. The relators have never*sold, or attempted to sell, any portion of the property as city lots, neither have they made, or caused to be made, any map showing its separation by streets or its division into lots.
    After the annexation of this district a portion of the land was taken by the city, by involuntary proceedings, for streets, some of which were opened and used, but not paved, nor was any drain laid in any portion thereof which adjoined the remaining land of the relators. Other lands in the vicinity owned by other persons have been sold in lots and built upon, and the neighborhood is well settled and receives the general benefits of the police, fire and school departments of the city.

      Held, that the lands were entitled to the privileges conferred by the said act upon farming lands used exclusively as such, and should not be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining.
    Appeal from an order, made at the Albany Special Term, affirming tlie action of the respondents in assessing the lands of the relators and denying the relief demanded by them.
    The matter was brought before the court upon a certiora/ri, issued under chapter 269 of 1880, to review the action of the board of assessors. The lands in question were brought within the boundaries of the city of Alban}', in 1870, by chapter 139 of the Laws of that year.
    The lands upon which are imposed the assessments which are sought to be reviewed in this proceeding are owned by the relators and form a part of a farm known as the Harper farm, which was formerly bounded on the north by lands belonging to the New York Central and Hudson River railroad; on the south by Clinton avenue; on the west by a farm formerly belonging to the relator and others, and formerly known as the Hunter farm, and on the east by a tract of land formerly known as the Bleecker tract. All of the farm was situated in that portion of the town of 'Watervliet which was annexed to the city of Albany by chapter 139 of 1870.

      In 1871 the city acquired title to the land lying in those portions of Second and Third streets and Livingston avenue, which run through the relator’s lands, and in 1872 it acquired title to that portion of New York Central avenue which runs through the said lands. It acquired title to the said lands in legal proceedings instituted under the provisions of its charter, and not by grant or voluntary conveyance from the relators.
    Those portions of Second and Third streets, and of New York Central avenue which run through the lands of the relators, have, since the city acquired title to them, been opened, to and used by the public as streets, but no portion of any of the said streets adjoining relators’ lands has ever been graded, paved or flagged, nor has any public drain or sewer been constructed in those portions thereof which adjoin the relators’ lands. Up to the line of relators’ lands Second and Third streets and Livingston avenue are drained, and flags, curbs and sidewalks are laid, and houses built on each side of the streets. It is a well settled and thickly populated neighborhood. Livingston avenue, in so far as it runs through the lands of the relators, has never been opened for public use, and the land lying in the same has been used and cultivated by the tenant to whom the adjoining portions of the old Harper farm have been leased in connection therewith.
    The assessors of the city of Albany, in assessing these lands upon the assessment-rolls for the year- 1885 at the values and assessments above stated, assessed them as they would other city lots, and did not assess them as “ farming lands ’’.lying within the district annexed to the city by the act of 1870, “ and used exclusively as such,” as those terms are used in section 2 of chapter 139 of 1870, as amended by section 1 of chapter 402 of 1877. After the passage of chapter 139, Laws 1870, the annexed district received generally the benefits of the police, fire department, school and other urban arrangements and measures.

      Leonard G. Hwn and W. B. Van Rensselaer, for the relators.

      D. Cady Herriok, for the respondents.
   Pabeee, J.:

This is an appeal from an order of the Special Term, confirming and approving an assessment of certain real estate belonging to the relators and situate in tlie city of Albany, as made by the assessors of said city in the year 1885.

Prior to April 6, 1870, the lands in question were situate in that portion of the town of Watervliet, Albany county, which was, by chapter 139 of the Laws of 1870, annexed to the city of Albany.

By said act, as amended by chapter 402 of the Laws of 1877, it is provided that the districts of country now comprising parts of the towns of Bethlehem and Watervliet, and mentioned in section 1 of this act, and the inhabitants residing therein, shall not be liable for any taxes, assessments and charges heretofore assessed, levied or imposed upon the city of Albany, nor shall such districts or its inhabitants be liable to assessment or taxation for the reimbursement of any debt heretofore contracted by the city of Albany; nor shall the farming lands lying within said.district, and used exclusively as such, be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining.”

The relators contend that their lands are farming lands, and used exclusively as such and must, therefore, be assessed not upon the basis of their actual value, but at a valuation no greater than the valuation of similar farming lands in the town adjoining. The defendants admit that the property has been assessed by them as city lots, and claim that it must be so regarded and treated by them and the courts. It is not claimed that the assessment is greater than the actual value of the property, but that the property has not received the benefit and protection which the legislature intended it should receive as one of the conditions of annexation.

The power of the legislature to impose upon the city of Albany, when it applied for this increase of territory, as a condition precedent, that it should not impose upon the property annexed, while its character remained unchanged, any greater burden of taxation than it was compelled to bear in the town, cannot be questioned. Upon such terms as the legislature imposed the city sought to, and did, obtain the territory, including the lands in controversy. With those conditions, however unjust and inequitable they may now appear, it must comply.

The language of the statute is plain and the intent, clear. The farming lands embraced in the annexed district, while they remained such and were so used exclusively, should bear no greater burden of taxation than as if they were not included in the city limits. No increased assessment was to be permitted, based upon a prospective value of the lands as lots for building purposes.

To secure an absolute compliance with this provision, the act further fixed the standard of comparison to be made by the assessors. They were not authorized to appraise it, to determine its actual value or to use their individual judgment in determining its value as farming lands, but they were commanded to fix a valuation not greater than the assessed valuation of similar farming lands in the town adjoining,” i. e., the town of Watervliet. The question then is, were the lands in controversy, at the time of the making of the assessment under review, farming lands and used exclusively as such ? If they were the relators are entitled to the relief asked for, if not, the assessment must stand.

It is admitted that prior to and including April 6,1870, the whole of the land in question had been treated, used and rented asa farm, and for no other purpose. It was rented to one tenant who used the land as a farm, living in the brick-house which then stood and still stands upon the portion of the land which lies north of Livingston avenue.

The number of acres was about nineteen. Beyond dispute or cavil, therefore, the relators, in the year 1870, were entitled to have the premises in question assessed as farming lands, and at a valuation not greater than the assessed valuation of farming lands in the town adjoining.” The relators were then, as now, the owners of such lands. They had control over them. Had the right to determine whether or not any use should be made of them. If any, what use. If it were determined that the lands should be and remain farming lands, and be used exclusively as such, there did not exist, outside of the relators, the right or the power to gainsay it.

In 1870, one Leopold Krug was in the possession of the entire premises, and so continued until 1881, since which time he has occupied between eight and nine acres. Since 1883 his lease has required the demised premises “ to be used for farming purposes and for no other use or purpose whatever,” and from 1870 to the present he has worked the land and raised and gathered crops, in the same manner and of the same character as is usual among small farmers.

In 1881, between three and four acres were leased to Blackburn, and he is now in possession under a lease containing the same restriction as the lease to Krug, and lie has used the land to raise potatoes and oats on and for pasture, and for no other purpose whatever. Ryan went into possession of about two acres of the land in 1881, and now holds under a lease containing the same restriction as the Krug lease. He has used the land for pasture, and for sowing and planting corn, and for no other purpose.

It appears, therefore, that so far as the use of the land is concerned, there has been no act on the part of the relators or their lessees to change its character since 1870, when it was confessedly a farm and used for farming purposes exclusively, and the terms of the lease show a determination on the part of the relators to avoid every possibility of a change in its character and use. This precaution may have, and doubtless was taken, for the purpose of avoiding an increase in the tax levy against their property, but it was a privilege which the law afforded, and their perfect right to take advantage of it cannot be questioned.

The relators have never sold or attempted to sell any portion of the property as city lots, neither have they made or caused to be made any maps showing its separation by streets or division into lots. True, the city has acquired title to the land lying in those portions of Second and Third streets and Livingston and New York Central avenues, which run through the relators’ lands, but the title was acquired by means of legal proceedings, instituted under the provisions of its charter, and not by grant or voluntary conveyance from the relators. It is clear, therefore, that by no act of the relators has the character of the lands been changed and the city did not change it by acquiring title for highway purposes to some portion of it, by which a separation of parcels resulted. (Saunders v. Springsteen, 4 Wend., 429; Commonwealth v. Carmalt, 2 Binney, 235.)

In Gillette v. City of Hartford (31 Conn., 351) the statute of annexation, construed by the court, provided that no city tax exceeding a certain rate should be assessed so long as “ said land is or shall be used exclusively for farming purposes or is vacant or unoccupied land.” In the statement of facts it appears that streets had been laid and made out through the land, and some building lots sold, and that all of the pieces of land assessed border on streets made or projected. That the land was used by the plaintiff Gillette, a farmer, to raise farm crops until sold as lots, and the court held that the lands were to be regarded as “used exclusively for farming purposes,” or as vacant and unoccupied lands ” within the meaning of the statute.

The assessors erred in assessing the lands in question as city lots. The order of the Special Term must, therefore, be reversed, with costs and printing disbursements, and case remitted to Special Term for reassessment and correction as provided for by chapter 269 of Laws of 1880, with liberty to take or direct further proof as may be deemed necessary. Order of reversal to be settled by Parrer, J.

BooKes, P. J., and LaNdoN, J., concurred.

Judgment reversed, and case remitted to Special Term for reassessment and correction as provided for by chapter 269 of the Laws of 1880, with liberty to take or direct further proof as may be necessary.

Order 'to be settled by Parker, J.


author: PecKham, J.:

text:
    MARY DOWD and Others, Respondents, v. THE AMERICAN FIRE INSURANCE COMPANY OF PHILADELPHIA, Appellant.

      Policy of insurance against fire— when rendered void by the failure of the insured to haw his interest in the property truly stated in the policy.

    This action, brought upon a policy of insurance issued by the defendant upon buildings belonging to the plaintiffs, was defended upon the ground of a breach of a provision of the policy requiring that if the property to be insured was a leasehold, or other interest not amounting to absolute or sole ownership, or if the buildings insured stood on leased ground, it must be so represented to the company and expressed in the policy in writing, otherwise the insurance was to be void.
    Upon the trial of the action it appeared that, the plaintiffs’ title to the land upon which the building stood was derived from a person to whom the owner of the fee had granted the premises, by an instrument by which he demised and leased and to farm-let the premises unto the grantee, his heirs and assigns, forever, reserving a perpetual rent and a right of re-entry in case of condition broken.

      Held, that the building was built upon leased ground, and that as that fact was not represented to the company nor expressed in the policy no recovery could be had upon it. *

      Van Schoick v. Niagara Fire Insurance Company (68 N. Y., 434) distinguished.

      Appeal from a judgment in favor of the plaintiff, entered in Saratoga county upon the report of a referee.
    The action was brought upon a policy of fire insurance for $1,500 for one year, issued by the defendant to the plaintiffs May 17,1884, “ on their two-story frame shingle roof dwelling and saloon, and the additions attached, situated on the north-east corner of South and Second streets in the village of Waterford, New York.”
    The insurance under this policy was, by the terms thereof, made subject, among others, to the following conditions, limitations and requirements, and in consideration thereof, as well as of the premium of seven dollars and fifty cents paid, viz.: “ Property not covered by this policy unless specifically mentioned. If the property to be insured * * * be a leasehold or other interest, not amounting to absolute or sole ownership, or if the building insured stands on leased ground it must be so represented to the company and expressed in the policy in writing, otherwise. the insurance as to such property shall be void.”
    March 3,1885, the building mentioned in the policy was destroyed by fire. At the time of the issuing of the policy, and at the time of said fire, the only title the plaintiffs had to the property mentioned in the policy was derived under a perpetual lease, reserving to the lessor an annual rent, and containing a provision authorizing a re-entry by the lessor in case of the non-payment of the rent.

      Alden Chester for the appellant.

      J. C. Armsby, for the respondents.
   PecKham, J.:

It seems to me plainly proved that the building which was insured under the policy, put in evidence in this case, stood on leased ground, and it was not so represented to the company nor expressed in the policy in writing, and the policy contained a provision that otherwise the insurance as to such property should be void. The instrument, under which the plaintiffs’ title accrued, stated that John House, who was the original owner of the land demised, leased and to farm let unto the assignor of the plaintiffs’ the land upon which the building in question was erected, and to .his heirs and assignees forever, and provided for perpetual payment of an annual rent, with a clause of re-entry for condition broken.

It was proved that at the time when the policy was executed the rent had been in arrears for a number of years. The ground was leased ground within the meaning of the language used in the policy. (Tyler v. Heidorn, 46 Barb., 439; Van Rensselaer v. Barringer, 39 N. Y., 1, at 18.) The first cited case shows the view taken by the General Term in this department, of the character of those instruments which reserved rent, even when in the language used they were, in terms, conveyances in fee, subject to the payment of rent; the court saying that the parties to the instrument were landlord and tenant, even when the language was as above stated. The language in the instrument in question is technically that which is used in leases, demise, lease and to farm let,” “ yielding and paying therefor ” * * * “ the annual rent,” etc.

I think it must be held that it was proved the building stood on leased ground. In regard to such a condition as is contained in this policy, making it necessary to be stated, etc. Folq-hb, J., said: “It is to be observed of this condition, that it is not one of those which are subsequent to the formation of the contract, a breach of which may occur after there had been a valid contract made and entered into, and continued in existence for a part of its prescribed term. It is a condition precedent, lying at the threshold of the making of the contract, and which, if not then performed or not then obviated, prevents the formation of an enforceable contract. It is obvious that this building, being on leased ground, the very moment that the policy passed from the defendant to the plaintiff the insurance on it was void if the condition holds.” (See Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434, at 436.)

It appeared, in that case, that the agent of the defendant, who procured the insurance, knew the state of the title before the policy was executed or delivered, and knew the building stood on leased ground. It was held that the defendant was liable on the ground that it must be presumed to have waived that condition, as to presume otherwise would be to impute to defendant a fraudulent intent in issuing a policy known by it to be invalid. This knowledge of the fact by the agent of the company prior to the delivery of the policy was the plaintiffs’ reply, in above case, to the defense based on that condition of tbe policy and its breach. No such knowledge is shown in this case, and in the absence of such proof no reply is made to the defense of defendant founded upon that condition in the policy and its breach.

For these reasons the judgment must be reversed, new trial granted, with costs to abide event, and referee discharged.

Bookes, P. J., and Landón, , J., concurred.

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


author: Bockes, P. J.:

text:
    THE METROPOLITAN LIFE INSURANCE COMPANY, Respondent. v. S. B. McCOY, Appellant.

      Unauthorized placing of a seal upon an executory parol agreement — when it discharges the parlies thereto — authority to affix the seal cannot he implied from the presence at the end of an unsealed instrument of the words ‘'sealed with our seals.'’

    This action was brought against the defendant upon a bond, signed by himself and another person, conditioned for the faithful performance by one George Sherman of his duties as agent of the plaintiff. One of the defenses interposed by the defendant was that the paper counted on as a bond was not sealed when signed by the defendant, and that the seal was placed thereon thereafter without his knowledge, permission or authority. Upon the trial proof tending to establish these facts was given, and a request was made by the defendant that the questions pertaining thereto should he submitted to the jury.
    The court refused this request, holding that, inasmuch as the paper on its face, when signed by the defendant, was in the form of an ordinary obligation or bond and it contained the words ‘ ‘ sealed with our seals,” and that it passed, from his hands without dissent or remark as to the seal or its omission, it should be held in law that he impliedly assented to the putting on of a seal to answer an intent manifest on the face of the instrument; that such should he held in law the natural prima facie intent of the party, and that this should control in the absence of evidence expressly showing a different and contrary intent, and so holding he directed a verdict for the plaintiff.

      Held, error.
    That as the instrument was complete, valid and binding upon the defendant without the seal, no inference would necessarily arise against an intention on his part that it was to remain unchanged.
    That the presence in the paper of the words “ sealed with our seals ” did not support the infereuce drawn therefrom by the court; that such words alone, and without any proof aliunde to give them significance, were mere surplusage, neither invalidating the instrument nor raising any legal implication of an intent to have it changed, in its legal effect, in the future.

      Barnet v. Abbott (58 Vt., 120) approved.
    Motion by defendant for a new trial on exceptions ordered at the Albany Circuit to be heard in the first instance at the General Term.
    The defendant was sued as surety for George W. Sherman, upon an indebtedness existing against Sherman as plaintiff’s agent, alleged to have accrued between September, 1870, and January, 1872. The complaint alleged that on the 9th of March, 1870, the plaintiff being about to employ Sherman, the defendant executed a bond, a copy* of which is set up in the complaint. There was no allegation that the bond was sealed, and the copy set forth merely concluded with the letters “ L. S.,” three times repeated. The answer denied that defendant executed any bond, a copy of which was set forth, and pleaded the statute of limitations and various other defenses and counter-claims. On the trial the question was raised whether under the pleadings the defendant could prove that the bond was not sealed, and to obviate any further question upon that point the defendant availed himself of an amendment to his answer, allowed by the court, by which he expressly denied that the bond was sealed. The bond offered in evidence by the plaintiff had on it, at the time Mr. McCoy signed it, the printed letters “ L. S.,” repeated three times. The subscribing witnesses to the bond did not actually witness either the signing or sealing of the bond. The defendant testified that he signed the bond opposite to the letters L. S. ; did not put any seal on, nor did he authorize any to be put on.

      If. O. Moak and Worthington Frothingham, for the appellant.

      W. H. Arnoux, for the respondent.
   Bockes, P. J.:

Case and exceptions ordered to be heard in the first instance at General Term, a verdict having been directed for the plaintiff by the court.

The action was against the defendant as surety for George "W". Sherman on his bond securing his faithful action as plaintiff’s agent. The condition of the bond was, in substance, that if Sherman, who was appointed plaintiff’s agent, should faithfully conform to all instructions and directions which he, as agent, might receive from the plaintiff, and should remit all moneys received by him, less his commission, together with his account, then the obligation to be void, otherwise to remain of full force. We are of the opinion that aprima facie case was made by the plaintiff on its proof, for a recovery as claimed, for the sum of $1,636.89, with interest, not, however, to exceed in the aggregate for principal and interest $2,000, the penalty of the bond, for which latter sum the verdict was directed.

One of the defenses interposed was that the paper counted on as a bond was not sealed when signed by the defendant, and that the seal was placed thereon thereafter without his knowledge, authority or sanction. The proof tended to establish, if indeed it did not conclusively establish, those facts. The learned judge held, in substance, that inasmuch as the paper on its face, when signed by the defendant, was in the form of an ordinary obligation of a bond, read “ sealed with our seals,” and so passed from his hands without dissent or remark as to the seal or its omission, it should be held in law that he impliedly assented to the putting on of a seal to answer an intent manifest on the face of the instrument; that such should be held in law the natural prima facie intent of the party, and was controlling in the absence of evidence expressly showing a different and contrary intent, and so holding, refused the defendant’s request to have the questions pertaining to the subject, or any question submitted to the jury, and directed a verdict for the plaintiff. To these rulings the defendant entered exception.

It is, of course, not disputed that the affixing a seál to a simple contract after its execution by a party, without his knowledge, consent or approval, is an alteration of the instrument, and invalidates it as against him in the absence of all proof, that it was affixed by mistake or by a stranger thereto.

So it has been well said that the seal converts a simple contract into a specialty, and makes it an obligation of different grade and character. This doctrine of the law is too familiar to require citation of authorities in its support. The question in this case was made to depend upon an implied consent on the part of the defendant to the subsequent affixing of the seal. The learned judge held that there was such implication on the face of the instrument, whereas the defendant insisted and now insists to the contrary, and that in any event the question of defendant’s consent was one of fact for the jury on all the evidence in the case. The learned judge put great stress on the form of the instrument that it also contained the words “sealed with our seals,” and therefrom himself drew the inference, as matter of law, that it was the intention of the defendant that seals should be thereafter attached, which was equivalent to a consent that this might be done. In this we are of the opinion he was in error. The instrument was complete, valid and binding upon the defendant without the seal, and consequently no inference would necessarily arise against an intention on his part that it was to remain unchanged. It is suggested that it was plainly his purpose that the instrument should have validity against him. But this purpose was answered by the paper as signed. It was operative and binding without the seal; and the legal inference in the absence of all proof to change it, would be that the defendant intended that the instrument should remain in form and in legal effect as when it passed from his hand on its execution.

The learned judge, however, held to the contrary. Then did the words “ sealed with our seals ” support the implication declared, as matter of law? Alone and without any proof aliunde to give them significance, these words were mere surplusage. They, of themselves, neither invalidated the instrument, nor raised any legal implication of an intent to have it changed in its legal effect in the future. This subject, in all its bearings under the proof in the case, was considered by Judge Redfield in Barnet v. Abbott (53 Vt., 120, 128, 129), and the decision in the case is directly and flatly against the ruling here challenged for error.

It should, perhaps, be observed that the case is entirely unlike those where blanks are left in the instrument and after its execution filled in without the knowledge or consent of the person ostensibly bound by it. Here the instrument was complete in -form and perfect in its legal effect when signed, and its alteration was equivalent to a forgery, unless the change was made under the authority or appi’oval of the defendant.

If the evidence on this subject, submitted on the part of the defendant, was to be credited, and this was for the jury to determine, the seal was affixed to the instrument after he had signed it, without his knowledge, authority or approval; hence it was inoperative as to him, and it was error for the judge to hold, as matter of law, against, this proof, that consent to the affixing of the seal was a necessary legal inference from its form and contents, and to direct .a verdict for the plaintiff.

The motion for a nonsuit must be granted; new trial granted, .costs to abide the event.

Present — Bocees, P. J., Landon and Parker, JJ.

New trial granted, costs to abide event.