text:
    The New York Central & Hudson River Railroad Company, Resp’t, v. The City of Rochester, Impl’d, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Municipal corporations—Sewers—Injunction.
    In 1875 defendant constructed a sewer which discharged into an open ditch on plaintiff’s lands. No right to do so was acquired by the city, but it was done by permission of plaintiff. The city now threatens to connect it .with another sewer, the result of which will be to increase the discharge into said ditch. Held, that the license to discharge from this sewer

      did not authorize the discharge of sewage from a much larger territory, and that plaintiff was entitled to an injunction to restrain the same.
    2. Same.
    The city should not be absolutely prohibited from connecting such sewers, but the injunction should be limited to restraining it from discharging more sewage upon the plaintiff’s lands, or its continuance restricted to such time as it shall provide a place for discharge other than upon such land.
    •3. Appeal—Question not baisbd below.
    Where the question of title was not raised on the trial or motion made to dismiss on the ground that plaintiff failed to establish title to the land in question, and defendant preferred no requests to find facts, the objection that plaintiff did not establish a paper title, or any except such as is presumed from possession, cannot be raised on appeal. ■
    Appeal from a judgment of the general term of the fifth judicial department, which affirmed a judgment entered on a decision of the special term.

      Edward Harris, for resp’t; John Van Voorhis, for app’lt.

       Modifying 17 N. Y. State Rep., 805.

   Follett, Ch. J.

Prior to 1875 the city of Rochester constructed a sewer extending from East Avenue northerly through a street known as Upton Park, which received the contents of several sewers lying westerly of and emptying into it. In 1875 the' city constructed another sewer, beginning at a point in East Avenue forty feet east of the west line of land then owned by Henry E. Hooker, extending easterly in said avenue about one.half mile to Culver street; thence northerly in that street about fifteen hundred feet to the land of the New York Central & Hudson River Railroad Company, where it discharged into an open ditch maintained by the railroad, which ditch passed by a culvert under and to the north of the railroad tracks; thence easterly along the north side of the tracks about eighty rods to Thomas creek, where it discharged. The expense of constructing this sewer, known as East Avenue sewer, was paid by taxes collected from the property directly benefited by it No right-was acquired by the city to discharge the contents of East Avenue sewer into the ditch on the lands of the railroad, but the railroad permitted it to be done. In 1880 the city began to construct a sewer for the purpose of uniting the two sewers mentioned, so as to cause the sewage which had theretofore been discharged northerly through Upton Park sewer to flow through East Avenue sewer and be discharged into the ditch of the railroad.

This action was begun by the railroad and several persons whose buildings were drained into East Avenue sewer, to restrain the city from making the connection, and thereby greatly increasing the quantity of sewage flowing in this sewer and ultimately on to the lands of the railroad.

The court found that there was no natural right of drainage from this part of the city through the railroad ditch; that no right had been acquired to discharge this additional sewage on to the lands of the railroad; and that when this action was begun the railroad had revoked the license by which it had permitted the contents of East avenue sewer, as originally constructed, to be discharged on to its land. It is plain that a city cannot empty its sewers upon private property without acquiring the right so to do, Noonan v. Cily of Albany, 79 N. Y., 470, and it is equally plain that a paroi license that the sewage from a particular district may be discharged on to private property does not authorize the discharge of the sewage from a much larger territory upon the property. Wheelock v. Noonan, 108 N. Y., 179; 13 N. Y. State Rep., 110. The trial court so held and restrained, in behalf of the railroad, but not in behalf of the individual plaintiffs, the city from connecting Upton park sewer with Bast avenue sewer, and turning the sewage from the former into the latter. A judgment was entered upon this decision, which was affirmed at general term.

When a municipal corporation discharges or threatens to discharge sewage directly on to private lands from the outlet of a permanent sewer without having acquired the right, the owner is entitled to restrain the injury committed or threatened, by the judgment of a court of equity, and is not confined to a recovery of his damages in actions of trespass. Beach v. City of Elmira, 22 Hun, 158: Chapman v. City of Rochester, 110 N. Y., 273; 18 N. Y. State Rep., 133; Stoddard v. Village of Saratoga, 127 N. Y., 261; S. C., 38 N. Y. State Rep., 683; Campbell v. Seaman, 63 N. Y, 568; Murdoch v. Prospect P. & C. I. R. Co., 73 id., 579; Poughkeepsie Gas Co. v. Citizens' Gas Co., 89 id., 493; Wheelock v. Noonan, 108 id., 179; 13 N. Y. State Rep., 110; Snell’s Eq. (9th ed.), 687, 689; 2 Story’s Eq. Jur., § 928.

The defendant excepted to the finding that the railroad company owned the land occupied by it, and upon which the ditch was constructed, and insists that there is no evidence to sustain the finding. On the trial it was assumed, in the questions put to, and in the answers given by, the witnesses, that the lands occupied by the railroad were owned by it, and in the resolutions of the defendant’s common council relating to this sewer the lands are referred to as belonging to the railroad. The question of title was not raised on the trial, nor was a motion to dismiss the complaint made on the ground that the railroad company had failed to establish title to the land on to which the sewage was emptied. The defendant preferred no requests to find facts, and the objection that the defendant did not establish a paper title, or any, except such as is presumed from possession, cannot, under such circumstances, be successfully raised on appeal.

It is urged that the decision of the court and the judgment following it, which restrains the city from making any connection between Upton Park sewer and Bast Avenue sewer and turning the sewage from the former into the latter, is too broad. It is said that the effect of this provision is to prevent the city from constructing such sewers and making such connections between them as may be found necessary. The whole purpose of the action was to restrain the city from discharging more sewage upon the lands of the railroad than it had consented to receive. To such a judgment the plaintiff established a right, and beyond that we do not think the supreme court intended to go. Revertheless, the judgment, by its terms, goes further. It may well be that some place other than the lands of the railroad will be found for receiving the contents of these sewers; in which event the city should be free to make such connections as may be found expedient

The judgment should be modified by inserting before the final clause the following: The provision in this judgment restraining the city of Rochester from connecting the Upton Park sewer and East avenue sewer, and from turning the sewage from the former into the latter, shall not continue in force after the city shall provide a place for its discharge other than on the lands of the railroad company.”

As modified, the judgment should be affirmed, without costs to either party.

All concur, except Bradley and Haight, JJ., not sitting.


source: Caselaw Access Project

author: Vann, J.

license: Public Domain

text:
    Lewis J. Powers, App’lt, v. Henry D. Clarke, Resp't.

      (Court of Appeals, Second Division,

      Wiled October 6, 1891.)

    Guaranty—Limitation of liability.
    Defendant, in response to a letter from plaintiffs, asking him to guar- . anty bills of D. & Co. for $1,000, answered: “ I do not care to make myself liable for so large an amount as one thousand dollars. I am perfectly willing, however, to guarantee the amount of the bills thus far purchased, which I understand amount to about six hundred dollars.” Whereupon plaintiff shipped D. & Co. ten cases of paper amounting to $919.15. Held, that defendant intended to become responsible for the firm to the amount of $GUU, not by way of continuing guaranty, but for goods already purchased; and that he did not intend to annex any other condition to his contract, or otherwise limit his liability.
    Appeal from an order of the general term of the supreme court in the first judicial department, reversing a judgment entered, upon a verdict for the'plaintiff, rendered under the direction of the court at circuit.
    Action upon a guaranty by the defendant to pay for certain goods sold by the plaintiff to a third party.
    The plaintiff is a paper manufacturer at Springfield, Massachusetts, having a sales office in the city of New York in charge of an agent. On May 14, 1886, he agreed to sell to the firm of Dikeman & Co. ten cases of paper at 15^- cents per pound, upon a credit of three months, provided they would furnish him a satisfactory guarantor. On the same day he learned from Dikeman & Co. that the defendant would guaranty payment for them, and thereupon wrote to him as follows: “ Messrs. Dikeman & Co., of Brooklyn, refer to you and say you will guaranty their bills. Will you kindly give such a guaranty, say for one thousand dollars. It is not likely they will want as much as that, but in case they do, would like to have it. Kindly return same by bearer.” * * * “ We are glad to give them long time on purchase, but at close margins we would like your guarantee.” The defendant answered this letter on the same day, and after acknowledging receipt thereof, said: “ While I have no doubt of the integrity and reliability of Messrs. Dikeman & Co., still I do not care to make myself liable for so large an amount as one thousand dollars. I am perfectly willing, however, to guarantee the amount of the bills thus far purchased, which I understand amount to about six hundred dollars.”
    The terms of sale were agreed upon at the New York office, but the paper was then at Springfield. It had been manufactured, but was not ready for shipment, as it was lying loose in the factory, and there was no means of ascertaining the exact amount the purchase would come to.
    Upon receipt of the guaranty the goods were arranged in parcels, wrapped up, -weighed and delivered as fast as they were ready, but not all at one time. A case of paper, as known to the trade, varies in weight from four hundred to six hundred pounds, and ten cases, at the price agreed upon, would ordinarily amount to from $600 to $900. The ten cases in question, however, averaged five hundred and ninety-three pounds each, and came to $919.15.
    When the bill for the paper became due it was not paid, and the plaintiff at once gave notice of the default by mail to the defendant, who thereupon telegraphed back as follows: “Your at-, tention is called to the fact that my guaranty only covered bills purchased previous to the date upon which it was written, and does not hold me for any purchases after that date, and said guarantee was limited to $600.”
    There was no evidence of any further sales by the plaintiff to Dikeman & Co.
    After an ineffectual effort to collect the amount of his claim from Dikeman & Co. by judgment and execution, the plaintiff brought this action to recover the same from the defendant. The complaint was based upon the foregoing facts, and the answer was in substance a general denial.
    Upon the trial the facts were established by undisputed evidence substantially as stated. At the close of the evidence for the plaintiff, a motion for a nonsuit was made on various grounds, but it was denied. The defendant then testified that; he had no previous acquaintance with the plaintiff or his agent, and that his knowledge of the transaction was confined to the correspondence in evidence and a statement made by his brother-in-law, Mr. Dike-man, of the firm of Dikeman & Co., at the time that the letter containing the guaranty was written, to the effect that he did not know how much the goods would amount to, “but it would not be more than $600.”
    At the close of the testimony the plaintiff moved that a verdict be directed in his favor for the entire amount of his claim and interest, amounting to $1,045.07. At the same time the defendant moved that a verdict be directed in his favor, whereupon the court ordered a verdict for the plaintiff for the sum of $600 and interest, or $702.20 in all. Exceptions to these rulings present the only questions relied upon by the defendant, whose appeal to the general term was sustained. The plaintiff brings the case here.

      D. J. Dean, for app’lt; Isaac B. Potter, for resp’t

       Reversing 24 N. Y. State Rep., 795.

   Vann, J.

The learned judges of the general term, were of the opinion that the letter of guaranty was notice to the plaintiff of an understanding, on the part of the defendant, that all the purchases which had. been made by Dikeman & Co. would amount to but about $600, and as they exceeded that sum that he had acted upon an erroneous statement of the facts. They based their order of reversal upon the theory that the defendant had been deceived ; that the plaintiff knew it and hence had no right to rely upon a guaranty procured by misrepresentation. Ho such issue, however, was raised by the pleadings, for the defense of fraud, or the reliance of defendant upon an erroneous statement of the facts, is not suggested in the answer, which contains simply admissions and denials, but nothing by way of confession and avoidance. The defendant did not ask that any such question should be submitted to the jury. Moreover, the nature of the contract and of the subject matter thereof was such that neither party could know 'what the ten cases would amount to until the last parcel had been weighed, or not until partial delivery had been made, when it was too late for the plaintiff to recede, or to refuse further performance. The contract was for ten cases • at fifteen and one-half cents per pound and according to the usage of the paper trade, with reference to which the parties are presumed to have contracted, that number of cases would vary in price from “ about $600, ” which is the language of the guaranty, to about $900. The defendant had notice that the amount of the purchase was uncertain, because Dikeman told him that he did not know what it would come to, and his remark that it would not amount to more than $600 was in the nature of an estimate, rather than the assertion of a fact.

The letter of the plaintiff asking for a guaranty, was also indefinite as to the amount of the purchase, for while he named $1,000 as the limit of liability, he added that it was not likely that Dike-man & Co. would “want as much as that” The defendant, in answering this letter, seems to distinguish between the amount that he expected said firm might buy and the amount that he was willing to guaranty, for after speaking of his confidence in the integrity and reliabity of Dikeman & Co., he says “ still I do not care to make myself liable for so large an amount as one thousand dollars.” He was willing, however, to become personally liable for $600. The plain intimation seems to be that while it would be safe for the plaintiff to give the credit asked for, he was unwilling, himself, to guarantee the payment of more than the smaller sum named. His allusion to the bills “ thus far purchased,” also implies an expectation that further purchases would be made.

While the law requires the creditor to act in good faith toward the guarantor, it does not hold him responsible for any deception practiced by the principal upon the latter, without the knowledge of the former, nor require him to make any disclosure or explanation, the withholding of which would not amount to a fraud. The Western N. Y. Life Ins. Co. v. Clinton, 66 N. Y., 326; Casoni v. Jerome, 58 id., 315; Baylies on Sureties and Guarantors, 214; Burge on Suretyship, 218.

We do not think that there was any evidence to support the conclusion that the plaintiff knew when he received the guaranty that it had been procured by misrepresentation of the facts. Indeed, it is very doubtful whether the facts were intentionally misrepresented to the defendant at all. He did not so claim when notified of the default of Dikeman & Co., nor in his answer to the complaint, nor in his testimony on the trial. But even if he was deceived, the plaintiff did not know it, for he had no information on the subject aside from that conveyed in the letter of guaranty, which we consider inadequate for that purpose. The amount named was so qualified by the word “about” as to render it too indefinite to require the plaintiff to volunteer information. A failure to correct that which purported to be merely an approximation is no evidence of bad faith, especially as the plaintiff did not at the time know whether the purchase would exceed the sum mentioned or not.

Moreover, as each party moved that a verdict be directed in his favor and neither asked to go to the jury upon any question, a finding that there was no fraud will be presumed, because the evidence warranted it Sutter v. Vanderveer, 122 N. Y., 652 ; 34 N. Y. State Rep., 211.

The learned counsel for the defendant insists that the order of the general term should be affirmed, aside from the question of fraud, because, as he further claims, the guaranty was made upon the condition that the purchases should not exceed $600. This position depends upon the construction to be given to the last sentence of the letter of guaranty, in which the writer, referring to “ the bills thus far purchased,” says that he understands they amount to about $600. The defendant contends that the real meaning is as if the paragraph read “ provided the bills do not exceed $600.” On the other hand, the plaintiff claims that this clause is not a limitation of the credit of Dikeman & Co., but of the extent of defendant’s liability.

A contract of guaranty, as all the authorities agree, should receive a reasonable interpretation, according to the intent of the parties as disclosed by the writing, which, in a case of ambiguity, may be read in the light of surrounding circumstances. The People v. Lee, 104 N. Y., 441; 5 N. Y. State Rep., 777; Fuansville National Bank v. Kaufmann, 93 N.Y., 273; Brandt on Suretyship, 106; Fell’s Law of Guaranty, 43. Some of the cases go farther and hold that if the doubt is not thus dispelled, it should be resolved against the guarantor, because the words used are his own and he is responsible for the ambiguity. Belloni v. Freeborn, 63 N. Y., 383, 388; Walrath v. Thompson, 4 Hill, 200; Crist v. Burlingame, 62 Barb., 851.

It is not reasonable to suppose that the defendant, in writing this mercantile instrument to aid his friends in obtaining credit, intended to limit their credit, especially when he was so careful to throw no doubt upon the responsibility of the firm, of which his brother-in-law was a member. On the other hand, it is reasonable to suppose that he intended to limit his own liability, because his interest would thereby be promoted.

_ The words of limitation should, therefore, be applied to his liability rather than to that of the firm, especially as he had already written that he did not care to make himself liable for so large an amount as $1,000. The limitation of his own liability to $600 is thus made emphatic by contrast with what might be the liability of the firm. This seems to have been the construction that the defendant himself placed upon his words, because he said in his telegram to the plaintiff, when notified of the failure of Dikeman & Co. to pay, that “said guarantee was limited to $600.” He did not suggest that it was conditional, or that if the purchases exceeded $600 he was not to be bound. It is apparent that he had in his mind.his own liability when he wrote the contract and the telegram and not the liability of the firm in excess of the amount assumed by him. This practical construction of the guaranty by the guarantor himself accords with our own, as it is, the most reasonable and, therefore, the most probable. If he intended to effect such a strange purpose as to place a limitation upon the credit of Dikeman & Co. and thus impair their ability to protect him from liability on his guaranty, he should have made his meaning plain, so that the plaintiff could have understood it and withheld his goods. Because he was unwilling to bind himself beyond a certain sum, why should he restrict his principals to an unreasonable condition in which he had no concern ? An instrument designed to further a business transaction should be so construed as to promote rather than retard its general purpose, and a construction that would operate as a useless restriction upon trade should be avoided, if. possible, as not within the design of a reasonable man.

We think that the defendant intended to become responsible for the firm to the amount of $600, not by way of a continuing guaranty, but for goods already purchased, and that he did not intend to annex any other condition to his contract, or otherwise limit his liability.

The following authorities, more analogous in principle than similar in their facts, are cited in support of this construction : Stillman v. Northrup, 109 N. Y., 473 ; 16 N. Y. State Rep., 417; Melcher v. Fisk, 67 N. Y., 607; Rindge v. Judson, 24 id., 64; Gates v. McKee, 13 id., 232; Union Bank v. Coster's Ex’rs, 3 id., 203 ; Pratt v. Matthews, 24 Hun, 386; Parker v. Wise, 6 Maule & S., 239.

The order of the general term should be reversed, and the judgment entered upon the verdict affirmed, with costs of both appeals.

All concur.


author: Parker, J.

text:
    In the Matter of Hubert O. Thompson, as Commissioner.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Appeal—Question op pact.'
    The fact that an appeal to this court is permitted does not bring up for review a question of fact arising upon conflicting evidence, and this court

      has no jurisdiction to review the decision of the general term unless error of law in the proceedings he found.
    .2. Evidence — Award of commissioners for land taken — Value of
    WATER POWER.
    The value of property, such as a water power, which is dependent upon locality, adaptability for a particular use, as well as the use of property immediately adjoining, may not be shown by evidence of the price paid for similar property.
    Appeal from an order of the general term of the supreme -court, second department, entered May, 1889, affirming an order of the special term, which confirmed the report of Gideon W. ■ Davenport, Matt H. Ellis and Charles C. Leary, commissioners appointed to assess the damages causad to claimant by reason of the diversion of the waters of the Bronx river by the mayor, aldermen and commonalty of the city of New York.

      William Allen Butler and Willard Parker Butler, for app’lt; Arthur H. Hasten, for resp’t.
   Parker, J.

— This proceeding was brought pursuant to the powers conferred on the commissioner of public works of the city of New York, by chap. 445 of the Laws of 1877, and the various acts amendatory thereof, to acquire the right to divert, and keep diverted from the Bronx river, all the water of the river north of and above the dam at Kensico.

The commissioners awarded to the claimant, who was the owner of a large and valuable farm through which the river ran, damages in the sum of $7,270.

From the order confirming such report, and award,, successive appeals have been taken by the claimant to this court, the latter appeal being especially authorized by the act of 1877.

But the fact that an appeal to this court is permitted does not bring up for review a question of fact arising upon conflicting evidence, and this court has no j arisdiction to review the decision of the general term, unless error of law in the proceedings be found. Matter of Thompson, 121 N. Y., 277 ; 30 N. Y. State Rep., 998.

That case had its origin in proceedings taken under chap. 490' of the Laws of 1883, but the provision permitting an appeal to the court of appeals is the same as in the act authorizing the proceedings before us, and the decision cited is therefore applicable and controlling.

Unless then some error of law requires a reversal, the decision of the general term must stand.

The only exception to which our attention is called relates to an effort on the part of the owner to prove what had been paid by the petitioner for water rights appurtenant to a neighboring parcel,.on the same river. At folio 7467 the counsel for the owner offered to prove that the city of New York purchased from Bobert White the right to divert the. waters from one-half of the water shed of the Bronx river, and paid him the sum of $21,991.66, for such rights, and his privileges in connection with a certain mill, upon what is known as the Powder Mill property at Scarsdale. The commission declined to rule on the offer, at the same time, "by its chairman, saying, in effect, that a ruling would be made as the evidence should be presented. In that connection no other evidence was offered, and the exception then taken is of course not available. But in view of the stipulation making the evidence as to all parcels applicable to any other, it is claimed that this appellant is entitled to the benefit of any exception taken to the rejection of evidence bearing on the question of the value of his water power. We shall assume without deciding that this claim is well founded.

Robert White was vested in fee with the riparian ownership in such premises at the time of the commencement of the proceedings to acquire title by the city. Pending the proceedings he died. Subsequently, pursuant to an agreement with his heirs, a conveyance was made to the city.

Respecting the manner in which the proof was sought to be made, the owner offered in evidence the deed, which expressed a consideration. But for the purpose of proving the price paid, it was not competent. People ex rel. Mayor v. McCarthy, 102 N. Y., 630; 2 N. Y. State Rep., 546.

One or more witnesses were asked to state the sum paid, and as the objection went solely to the competency of the evidence for any purpose, it must be assumed that the witnesses were competent to answer the question.

And the question then is, was the rejection of the evidence as to the amount paid by the city for the White water power error for which a reversal should be had? This question has been presented to the courts of last resort in several of the states, but not with the same result.

In Massachusetts, New Hampshire, Illinois, Iowa and Wisconsin it is held that actual sales of other similar land in the vicinity, made near the time at which the value of the land taken is to be determined, are admissible as evidence for the purpose of arriving at' the amount of compensation. Gardner v. Brookline, 127 Mass., 358; Culbertson & Blair Packing Co. v. City of Chicago, 111 Ill., 651; Town of Cherokee v. S. C. & I. F. Town Lot & Land Co., 52 Iowa, 279; Concord R. R. Co. v. Greely, 23 N. H., 242; Washburn v. Milwaukee & Lake Winnebago R. R. Co., 59 Wis.,. 364.

While in some of the other jurisdictions, notably Pennsylvania, New Jersey, Georgia and California, it is held that sales of simi lar property are not admissible for the purpose of proving the value of property about to be taken. East Pa. R. R. Co. v. Hiester, 40 Pa. St., 53 ; Pa. R. R. Co. v. Bonnell, 81 id., 414; Pa. S. V. R. R. Co. v. Ziemer, 124 id., 560; Montclair R. R. Co. v. Benson, 36 N. J. Law, 557; C. P. R. R. Co. v. Pearson, 35 Cal., 247-262; Selma, etc., R. R. Co. v. Keith, 53 Ga., 178.

The reasons assigned for the conclusion reached in the cases-last cited are, in the main, that the test in legal proceedings is, what is the present market value of the property which is the subject of controversy. It may be shown by the testimony of competent witnesses, and on cross-examination, for the purpose of testing their knowledge respecting the market value of land in that vicinity, they may be asked to name such sales of property, .and the prices paid therefor, as have come to their attention. But & party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit •of cross-examination to show that one or both were mistaken.

If some evidence of value, then prima facie a case may be made out so far as the question of damages is concerned by proof of a single sale, and thus the agreement of the parties, which may have been the result of necessity, or caprice, would be evidence of the market value of land similarily situated, and become a standard by which to measure the value of land in ■controversy. This would lead to an attempt by the opposing party to show, first, the dissimilarity of the two parcels of land, and second, the circumstances surrounding the parties which induced the conveyance. Such as a sale by one in danger of insolvency, in order to realize money to support his business, or a .sale in any other emergency which forbids a grantor to wait a reasonable time for the public to be informed of the fact that his property is in the market Or, on the other hand, that the price paid was excessive and occasioned by the fact that the grantee was not a resident of the locality nor acquainted with real values, and was thus readily induced to pay a sum far exceeding the market value.

Thus each transaction in real estate claimed to be similarly .situated might present two side issues, which could be made the subject of as vigorous contention as the main issue, and if the transactions were numerous, it would result in unduly prolonging "the trial and unnecessarily confusing the issues, with the added disadvantage of rendering preparation for trial difficult.

Our attention has not been called to a case in this court where •the question has been passed upon in the manner here presented, but there are a number of decisions indicating the tendency of the court to be against proving value by evidence of the selling price of similar property.

In Huntington v. Attrill, 118 N. Y., 365 ; 29 N. Y. State Rep., 5, the defendants attempted to prove the value of certain seaside property by showing the value of other property of the same general character situated in different places, and Judge Bradley, •speaking for the court, said, “ It may be that such evidence would have furnished some guide for estimate of the value of the prop•erty, but might not. Such evidence would present collateral issues, which might, and very likely would, involve a variety of considerations having relation to similarity or difference and to •■advantages and disadvantages of the different properties in numerous respects as compared with that in question. It is quite well settled that evidence of that character is not admissible upon the •question of the value of property in controversy.”

The question was not necessarily before the court in Mayor v. McCarthy, 102 N. Y., 630, 638; 2 N. Y. State Rep., 546, but Ch. J. Euger, referring to the question whether the price paid on sales of real estate between individuals is admissible as evidence of value, said: “ We think it quite clear, however, that such price is not in any view competent evidence of value.”

In Blanchard v. N. J. Steamboat Co., 59 N. Y., 292, the defendant attempted to show the value of a sunken steamboat by proving the value of other steamboats with which she could be compared, and it was held that the evidence was not competent..

In Langdon v. The Mayor, 59 Hun, 434; 37 N. Y. State Rep.,. 99, the objection was that other evidence should be produced to establish the fact sought to be proven (page 439), so that the question of the relevancy of the evidence was not before the court. We are of the opinion that the value of property which depends upon the presence or absence of inherent qualities not necessarily present or absent in other and similar property cannot be proved by showing the price paid for such other and similar property.

The value of property having a recognized market value, such as number one wheat and corn, may of course be proven by showing the market prices; but the value of property which is dependent upon locality, adaptability for a particular use, as well as the use made of property immediately adjoining, may not be shown by evidence of the price paid for similar property.

Even under the Massachusetts rule, a reversal would not be justified because of the extent of the discretion vested in the judge or officer presiding at the trial to determine whether such evidence is admissible, depending, of course, on various elements, such as the nearness or remoteness of the time of sale; whether the premises are far separated; the condition of the property about the parcel sold, and the use made of it, which may have operated to enhance or diminish its selling value; the similarity of the property, not only as to description, but as to its availability for use. Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass., 305; Gardner v. Brookline, 127 id., 358-363, and cases cited.

In point of time, the White sale was a year and one-half prior to the date when the offer was made to prove it.

The White water power was in actual use in the operation of a mill, while the water power of Mr. Butler had not been utilized in any degree whatever. True, as much water will be diverted from the Butler property as the White property, but it does not follow that the respective water powers are of equal value.

The value of a water power depends on its availability for use. And, as a matter of common observation, at certain points along a stream the water power can be more readily and cheaply made available for industrial purposes than at others.

So if appellant’s contention as to the admissibility of evidence of that character could be allowed, we should necessarily reach the conclusion that the nature of the evidence offered as to similarity was not of such a character as to authorize a court to hold, as a "matter of law, that the commission improperly exercised then-discretion in refusing to admit proof of the price paid for the White parcel.

The appellant asserts that the commission refused to award damages for the injury to the claimant’s water power, and insists that in so doing they committed an error in principle which may be reviewed in this court.

After a thorough examination of the record and a careful consideration of the argument in behalf of appellant, the conclusion is reached that this court is not warranted in determining that an award was not made for such damages as, in the judgment of the commission, the claimant will sustain because of injury to his water power.

The claimant owned about 358 acres of land, coveting 4,238 feet on the east bank of the Bronx river, and about 4,636 feet on the west bank, and for the reduction in the volume of water which naturally flows over this course, occasioned by the diversion on the part of the city, the commission awarded to him $7,270. This award was made in gross, no items being given, and it is, therefore, impossible to determine what portion of it was allowed for injury to the tract, because of the lessening of the flow of the stream, or what part of it was an award for damages to the waterpower.

Neither in the report, nor in the conduct of the trial, is there any indication that it was determined that the water power was of no value. On the contrary, the commission received a large amount of expert testimony, offered by the claimant, tending to-show that the water power was of considerable value.

No evidence in that direction was rejected, save that which tended to prove the price paid by the city for the White waterpower. And it should be assumed that they gave to this evidence such weight as it was entitled to. Claimant’s experts, it is true, testified that the water power alone was of far greater value than the entire amount of the award, but on the other hand the evidence on the part of the city tended to show that it had little or no value.

In making their appraisal they were not required to adopt the estimate of claimant's experts, but were manifestly called upon to base their award upon all the information obtained “not only from the evidence produced before them, but from their view of the real estate.” Matter of Thompson, 121 N. Y., 277 ; 30 N. Y. State Rep., 998. This we are bound to assume in the light afforded by the record was done.

Our attention is called to the expressions of opinion both at-special and general term, to the effect that the water power has no apparent value. But it does not follow that such was the determination of the commissioners nor can it be assumed because of the opinion of the judges sitting in review that the commission entertained the same view.

There are no other questions requiring consideration. The order should be affirmed.

Order affirmed, with costs.

All concur.

       Affirming 14 N. Y. State Rep., 522; 24 id., 433.


author: Brown, J.

text:
    Alrah Fowler et al., Resp’ts, v. Ada Ingersoll et al., App’lts.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Will—Suspension of power of alienation.
    By the will in question the legal estate was vested in I. to collect rents, make repairs, pay taxes, etc., and after deducting commissions to divide the balance, one-fourth to A., and three-eighths to M. and G-. respectively, three cousins of testator. The trust was to continue during the life-time of the three cousins and upon the death of either the share-of the rents of the one so dying was to be paid over to the survivors, and the estate was not to vest in the children of the testatrix’ cousins until the death of the last survivor. Held, that as the trust created was to continue during the life of the three cousins, and such constas had a joint estate in the income, the last survivor taking the whole, there was an unlawful suspension of the power of alienation and the trust estate was void.
    2. Same.
    To render such future estates valid they" must be so limited that the prior estate will absolutely terminate within the period prescribed by the statute, otherwise they are void.
    3. Same.
    By the tenth clause of her will the testatrix directed, “in case either of said cousins shall die, the share of the rents of such one or more dying shall be paid over to the survivor for life. Held, that she intended to refer to a death whenever it occurred and not to a death before her own.
    Appeal from an order of the general term of the first judicial department, which reversed a judgment in favor of the plaintiffs, entered upon the decision of the court, without a jury, and ordered a new trial.

      C. E. Rushmore, for app’lts; Isaac N. Miller, for resp’ts.

       Affirming 19 N. Y. State Rep., 214.

   Brown, J.

This action was in ejectment for the possession of two lots of land on Twentieth street, in the city of New York.

The complaint alleged that John B. Fowler died December 5, 1885, seized of the premises in question, which, allegation was denied by the answer.

It appeared that prior to November 24, 1888, Mr. Fowler owned and occupied said premises, and upon that day, by a sufficient deed, conveyed the same to his only daughter, Mary E. Henry. Mrs. Henry died prior to the death of her father, leaving no husband or children surviving her and leaving a will which was duly admitted to probate May 2, 1885. John B. Fowler died December 5, 1885, leaving the plaintiffs as his heirs-at-law.

Mrs. Henry’s will contained the following provisions:

Third. I hereby direct my executor to keep my real estate in "West Twentieth street, conveyed to me by my father, John B. Fowler, * * * in good order, repair and condition, and to that end * * * I direct that the sum of four hundred dollars a year be set aside and kept and expended for such purpose.

Fourth. After making the reservation for the repairs provided for in the last preceding clause, and after paying all the taxes, assessments, water rates and insurance on said real estate, and out of the remaining net proceeds my executor shall pay one hundred dollars a year to my cousin Mary Ingersoll for and during her natural life, also fifty dollars a year to each of my cousins Ada Ingersoll and Grace E. Ingersoll during their natural lives, etc., etc.

“Ninth. * * * The remainder of my property (and this included the property in question) I will and devise as is hereinafter mentioned and provided, and I then appoint (my husband being dead) Ada Ingersoll and Mary Ingersoll executrices of this my last will and testament, and after provision shall be made for the payment of taxes, assessments and repairs as provided for in the preceding clauses of this will then said net income from said New York city property shall be disposed of as follows : Ten per cent of the amount of rents collected shall be paid to Ada Ingersoll as- and for her trouble and commissions for collecting said rents. The said Ada Ingersoll is to have the sole supervision of collecting the rents, and of the care and management of the property, and said Ada shall be entitled to use one-fourth of the remainder of the net rents received, which shall be in lieu of all commissions as executrix of this will. Three-eighths of the remainder of said net rents shall be paid to Mary Ingersoll, which shall also be in lieu of any commission that she might be .entitled to as executrix of this will, and the remaining three-eighths of said net rents shall be paid over to Grace E. Ingersoll.

Tenth. In case either of said cousins shall die, the share of the rents of such one or more dying shall be paid over to the survivors for life.

“Eleventh. Upon the death of said cousins one-third of my real estate shall go to the children of Mary Ingersoll, one-third to the children of Ada Ingersoll, and the remaining one-third to the children of Grace E. Ingersoll, and should either of said cousins die without children, then the share of such cousin dying shall go to the children of the survivor.”

By other provisions of the will the executrices were empowered and authorized to sell said real estate during the existence of the life estate, provided the supreme court, upon petition made to it, should permit and direct such sale to be made, and in the event of a sale the proceeds thereof were directed to be invested and the income disposed of in the same manner as was directed as to the rents, and the principal in the same manner as was directed as to the land.

The plaintiffs contend that the effect of the provisions of the will just quoted was to suspend the power of alienation of the land and the absolute ownership of the proceeds of a sale thereof for more than two lives in being at the death of the testatrix, and that consequently such provisions were void, and that upon the death of Mrs. Henry the title to the land in question vested in her father, John B. Fowler, as her only heir at law, and upon his death passed to the plaintiffs as his heirs at law, and the determination of this appeal rests upon the solution of the question thus presented.

The effect of the provisions of the will quoted was to vest the legal estate in Ada Ingersoll in trust, first, to set aside $400 annually for repairs upon, the property; second, to pay taxes, assessments, water rates and insurance; third, after deducting ten per cent of the amount of rents collected as commission, to divide the "balance as follows: one-fourth to Ada, and three-eighths to Mary and Grace respectively.

The trust thus created was to continue during the lifetime of the three cousins, and upon the death of either the share of the rents of the one so dying was to be paid over to the survivors, and the estate was not to vest in the children of the testatrix’ cousins until the death of the last survivor.

That this was the intention of the testatrix is clear from the difference between the share of the income given the parent and the share of the principal given her children.

Ada’s share would always be less and the share of Grace and Mary more than one-third, so that if Ada died first, leaving children, these children could not take one-third of the real estate under the eleventh clause, as Grace and Mary would have vested life estates in six-eighths of the land.

This difference in interest, though slight, would prevent the vesting in possession of any of the remainders, as the trust would still be active as to the whole estate during the lifetime of any of the cousins. The trust thus created rendered the division of the property impossible during the lifetime of any of the three cestuis que trust. It could not terminate therefore within the period of two designated lives after the death of the testatrix, and was void.

The power of sale given to the executrices could only be exercised by permission of the supreme court. Such permission might not be given, and unless it was the power of alienation was suspended until the estate vested in possession in the children of the cousins. To render such future estates valid they must be so limited that the prior estate will absolutely terminate within the period prescribed by the statute; otherwise they are void. Schettler v. Smith, 41 N. Y., 828 ; Knox v. Jones, 47 id., 889.

The appellants claim, however, that the contingency provided for in the tenth clause refers to a death during the life of the testatrix, and having thus eliminated the tenth clause of the will, •contends that there "is, under the ninth clause, a separate trust created for each cousin, and that the words “ upon the death of said •cousins,” in the eleventh clause, should be construed to mean “upon the death of each cousin,” and that under this construction one-third of the property would, upon the death of any of the cousins, vest either in the children of the one dying, if she should leave any, or in the children of the survivor, or if none such then in the heirs-at-law of the testatrix.

The rule is well settled by authority and precedent that when there is a devise or bequest simpliciter to one person and in case of his death to another, the contingency referred to is a death in the lifetime of the testator.

So when there is a devise to A., and in case of his death without issue or without children then to B., the weight of authority is that the words refer to a death without issue in the lifetime of the testator, and that the primary devisee surviving the testator takes an absolute estate in fee simple.

The words of contingency are substitutionary merely, and are intended to prevent a lapse in case the first devisee is not living at the death of the testator, and do not create an executory devise or a remainder over upon the death at any time of the first taker.

But this rule has no application when the first devisee or legatee takes a life estate and is applied only when the prior - gift is absolute and unrestricted.

The reason assigned for the rule is that as death is the certain event and time only is contingent, the words of contingency can only be satisfied by referring them to a death before some particular period, and none being mentioned, the time referred to must be presumed to be the testator’s own death. Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 89; 6 N. Y. State Rep., 851; Vanderzee v. Slingerland, 103 N. Y., 47; 2 N. Y. State Rep., 732. But this reason fails in the case of a life estate, as in such case the presumption would be that the words of contingency referred to the event which would determine the life estate.

The rule is so stated in Jarman on Wills, vol. 2, p. 749 (5th ed.). And many cases could be cited where the courts, having construed the prior estate to be less than an absolute fee, have-held that the words of contingency referred to a death whenever it may happen. Matter of N. Y., L. & W. R. R. Co., supra; Buel v. Southwick, 70 N. Y., 581; Nellis v. Nellis, 99 id., 505. Moreover the construction contended for by the appellants is •only given to the words when the context of the will affords no indication of an intent on the part of the testator other than that indicated by the words of absolute gift followed by a gift over in case of the death of the first named devisee. Vanderzee v. Slingerland, supra; Matter of N. Y, L. & W. R. R. Co., supra; Nellis v. Nellis, supra ; O'Mahoney v. Burdett, L. R., 7 H. L., 388.

The rule is an arbitrary one, and has often been said to rest more upon precedent than upon reason, and in Vanderzee v. Slingerland Judge Andrews said that “the tendency is to lay hold of slight circumstances in the will to vary the construction and give effect to the language according to its natural import.”

We find ample evidence in the will before us that the testatrix intended by the tenth clause to refer to a death whenever it occurred and not to a death before her own.

The scheme of the will was to give to the testatrix’s husband the use during his life of the whole estate, subject to the payment of several small legacies and annuities to her cousins, and upon the husband’s death the principal of the estate was to go to such persons as he should appoint.

The ninth, tenth and eleventh clauses were to become operative only in case she survived her husband.

By the fifth clause it was provided that in case of the death of any of the cousins the annuity provided for such one should go to the survivor.

But for this clause it would have gone to the husband, and the contingency here provided for was a death either before or after the testatrix. The annuity to each cousin was small. It was to begin at the death of the testatrix, and its gift preceded the gift to the husband, which was of “all the rest, residue and remainder of the income.”

The tenth clause is substantially identical with the fifth.

It must be presumed that the testatrix intended to refer in each of these provisions to the same event. It shows, we think, that a joint estate was intended, and by the eleventh clause the children of the cousins, or of the survivor of them, were to take the estate-after all the cousins were dead.

But the fact already adverted to, of the difference between one-third of the estate and the share produced by the income to which each cousin is entitled, is an unanswerable objection to the appellants’ contention, as it would be impossible for one-third of the estate to vest in possession upon Ada’s death, assuming her to die first.

We are of the opinion that the trust created was to continue-during the life of the three cousins, and that such cousins had a. joint estate in the income, the last survivor taking the whole.

. There was, therefore, an unlawful suspension of the power of alienation, and the trust estate was void.

The order appealed from should he affirmed and judgment absolute rendered against the appellants, with costs.

All concur, except Haight, J., absent.


author: Follett, Ch. J.

text:
    Ella L. Rigney, Resp’t, v. Thomas G. Rigney, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Divorce—Jurisdiction—Judgment for costs and alimony.
    A judgment which awards a divorce, alimony and costs, while valid as-affecting the marital status of the plaintiff, does not bind the defendant as to sums allowed for alimony and costs in case the judgment be recovered in the state in which the wife is a resident citizen, against her non-resident husband, who has not appeared in the action nor has been served with process in the state in which the action was brought.
    3. Same—Chancery court of New Jersey.
    'In an action brought in the court of chancery of the state of New Jersey, by a wife there resident against her husband, a resident of New York, the latter appeared and filed an answer, hut the issue was never brought to trial. Later plaintiff renewed the charge by a supplemental bill, which was served by publication and personally in New York. Plaintiff did not plead to this and judgment was entered by default. Held, that defendant’s appearance in the court of chancery, in obedience to the subpoena issued upon filing the original bill of complaint, gave that court no jurisdiction to render a personal judgment against him on the supplemental bill which alleged the commission of a matrimonial offense subsequent to the issue joined on the original bill.
    3. Same—Estoppel.
    Defendant, by his subsequent marriage and motion to correct the judgment, did not recognize its validity so as to estop him from questioning-the right of the court of chancery to render a judgment for alimony and costs.
    Appeal from an order of the general term of the supreme court of the first department, reversing a judgment which dismissed the complaint on the merits, without costs, entered on the decision of a special term.
    February 12, 1873, the parties intermarried at Poughkeepsie, N. Y., and continued to reside in this state until January, 1877, when they removed to Elizabeth, 1ST. J., where both resided until January, 1883, when the defendant abandoned his wife, and thereafter resided in the city of New York; but the plaintiff has continued to reside at Elizabeth. On the 23d of April, 1883, the plaintiff filed a bill in the court of chancery of New Jersey wherein she alleged that the defendant had committed adultery with several persons on different occasions in the city of New York, and prayed for a judgment divorcing her and awarding to her the custody of the children of the marriage, with alimony and costs. On the 4th of August, 1883, the defendant appeared in the suit and filed an answer denying the allegations, of adultery, but the issue so joined was never brought to trial. April 21, 1886, the plaintiff verified a supplemental bill wherein she alleged that the defendant had committed adultery with a person named at the city of New York at various times since the commencement of the suit, and prayed for the same relief asked in the original bill. On the 2d of May, 1887, an order was made by the court of chancery directing that a certified copy of the order and supplemental bill be served on the defendant personally; or in default of such service, by publication, and requiring the defendant to plead on or before May 18,1887. It is recited in this order that the defendant was then a resident of New York. On the 4th day of May, 1887, the defendant was personally served with a certified copy of the supplemental bill and order at the city of New York. May 18, 1887, the supplemental bill was filed, and on the next day, the defendant having failed to plead, as required, his default was entered and the case referred to a master to take proof and report. June 11, 1887, the master’s report was filed, in which he reported that the defendant had committed adultery as alleged in the supplemental bill; and that all the material allegations in the bill and supplemental bill were true.
    On the 13th of June, 1887, a final decree was entered whereby it was found: “That the said defendant has been guilty of the crime of adultery charged against him in the said bill of complaint and the supplemental bill thereto,” and it was in said decree: “ Ordered, adjudged and decreed that the said complainant, Ella L. Eigney, and the said defendant, Thomas Gk Eigney, be divorced from the bond of matrimony for the cause aforesaid, and the marriage between them is hereby dissolved accordingly, and the said parties, and each of them are, and is hereby freed and discharged from the obligations thereof.” It was further adjudged that the custody of the children be awarded to the mother and that the defendant pay alimony for the support of his wife and children at the rate of $100 per month from the filing of the bill to the entry of the decree; and thereafter at the rate of forty-five dollars per week, with the costs of the suit. September 18, 1887, the defendant assumed to contract a marriage with one A. H,, and they are now living together as husband and wife.

      On the 9th of September, 1887, the solicitors who filed the defendant’s answer to the original bill served upon the solicitor of the complainant a notice that he would apply to the chancellor for an order striking from the final decree the words: “ Bill of complaint and the,” so that the decree would read: “The said defendant has been guilty of the crime of adultery charged against him in the said supplemental bill thereto.” No modification was asked for as to alimony or costs, and the solicitors limited their appearance for the purpose of the motion only. On the 81st of January, 1888, the motion was granted, the final decree amended as asked and was re-enrolled and re-entered. A subsequent motion in behalf of the, plaintiff 'to restore the decree as originally entered, was, April 2, 1888, denied. On the 4th of August, 1887, this action was begun in the supreme court of this state to recover the amount awarded by the decree of the court of chancery for alimony and costs, no part of which has been paid.

      Joseph A. Shoudy, for resp’t; Hamilton Wallis, for app’lt.

       Reversing 35 N. Y. State Rep., 179.

   Follett, Ch. J.

The courts of this state are commanded by the constitution and statutes of the United States to give such faith and credit to the judgment of the court of chancery of New Jersey as the judgment has, by law or usage, in the courts of that state. Const. U. S., art 4, § 1; U. S. E. S., § 905. The ' jurisdiction of the court of chancery to render the judgment against this defendant for costs and alimony may be inquired into by the courts of this state, and whether it had or not is the only question presented by the record.

A suit for a divorce, though not strictly a proceeding in rem,, Cole v. Cunningham, 133 U. S., 107, 116; Mankin v. Chandler, 2 Brock., 127; 2 Bish. Mar., Div. & Sep., § 20 ; Drake Att., § 5, is of the nature of such a proceeding, or quasi in rem, in so far as it affects the marital status of the parties; but as to alimony and costs it is a proceeding in personam. People v. Baker, 76 N. Y., 78 ; 2 Bish. Mar., Div. & Sep., § 23; 2 Black Judg., §§ 925,, 933. The courts of the United States and those of most of the-several states, including New York and New Jersey, hold a. divorce to be valid, so far as it affects the material status of the-plaintiff, which is granted by the courts of a state pursuant to its. statutes to one of its resident citizens, in an action brought by such citizen against a resident citizen of another state, though the defendant neither appears in the action nor is served with process in the-state wherein the divorce is granted. Cheever v. Wilson, 9 Wall.,, 108 ; Pennoyer v. Neff, 95 U. S., 714; People v. Baker, 76 N. Y., 78; Doughty v. Doughty, 28 N. J. Eq., 581; Cooley Con. Lim., 400; 2 Bish. Mar., Div. & Sep., § 150, et seq. But the courts of this and some of the states hold that the marital status of such non-resident defendant is not changed by a judgment so recovered, he or she remaining a married person. People v. Baker, 76 N. Y., 78: O'Dea v. O'Dea, 101 id., 23; Jones v. Jones, 108 id., 415; 13 N. Y. State Rep., 838; Cross v. Cross, 108 N. Y., 628; 13 N. Y. State Rep., 470; Cook v. Cook, 56 Wis., 195; Doughty v. Doughty, 28 N. J. Eq., 581; Flower v. Flower, 42 id., 152; 2 Bish. Mar., Div. & Sep., § 153, et seq; 2 Black Judg., 926. In case a defendant is a resident of the state in which the action is brought, and amenable to its substantive laws and its laws of procedure, his marital relation may be changed by an ex parte judgment of divorce if constructive service of the process be duly made. Hunt v. Hunt, 72 N. Y., 217; Hood v. Hood, 11 Allen, 196; 2 Black Judg., § 926; 2 Bish. Mar., Div. & Sep., §25.

It has been several times held, and the decisions rest upon principle, that a judgment which awards, (1), A divorce; (2), alimony; (3), caste, while valid as affecting the marital status of the plaintiff, does not bind the defendant as to sums allowed for alimony and costs in case the judgment be recovered in the state in which the wife is a resident citizen against her non-resident husband, who has not appeared in the action, nor has been served with process in the state in which the action was brought. Beard v. Beard, 21 Ind., 321; Lytle v. Lytle, 48 id., 200; Middle-worth v. McDowell, 49 id., 386; Prosser v. Warner, 47 Vt., 667; Harding v. Alden, 9 Grreenl., 140; Garner v. Garner, 56 Md., 127 ; Van Storch v. Griffin, 71 Pa. St, 240; People v. Baker, 76 N. Y., 78, 87; Van Voorhis v. Brintnall, 86 id., 18; DeMeli v. De Meli, 120 id., 485; 81 N. Y. State Rep., 704 ; 2 Bish. Mar., Div. & Sep., §§ 35, 36, 79; Cool. Con. Lim., 406; 2 Black. Judg., § 933, Freem. Judg., §§ 584, 586.

No final process is required to enforce that part of the judgment which decrees the divorce; but the sums allowed for costs and alimony can only be collected in New Jersey by a process against the defendant or his property; and, like other money judgments, it is not binding on a non-resident defendant unless he is served with process in the state, or appears in the action. A judgment for a deficiency arising upon the sale of mortgaged property is not binding on a non-resident defendant who has not been served with process, nor appeared in the action, Schwinger v. Hickok, 53 N. Y., 280, and such is the rule in respect to personal judgments rendered against non-resident defendants in actions begun by substituted service in which property is attached. Oakley v. Aspinwall, 4 N. Y., 514; Durant v. Abendroth, 97 id., 132; Cooper v. Reynolds, 10 Wall., 308; Drake Att, § 5. A judgment for alimony and costs cannot be supported on the ground that they are mere incidents of and subordinate to the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff will not necessarily sustain a judgment for alimony and costs. This brings us to the question whether the defendant’s appearance in the court of chancery in obedience to the subpoena issued upon filing the original bill of complaint gave that court jurisdiction to render a personal judgment against him on the supplemental bill, which alleged the commission of a matrimonial offense subsequent to the issue joined on the original bill. This question must be determined by the law of New Jersey, for no greater effect can be given the judgment in this state than would be given to it in the state where rendered. U. S. R. S., § 905; Board of Public Works v. Columbia College, 17 Wall., 521; Suydam v. Barber, 18 N. Y., 468. Each state has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire by judgments recovered in its tribunals. The practice arid' procedure may be established by statute, or by the rules and decisions of the courts, and the courts of a sister state cannot give greater effect to the procedure adopted than is given to it by the courts of the state in which the judgment was recovered.

At the date of the filing of the supplemental bill the defendant had ceased to be a resident of the state of New Jersey, as was found by the trial court, and had become a resident of the state of New York, as was alleged in a petition filed by the plaintiff. The trial court found upon undisputed evidence that under the law of New Jersey and the practice of its court of chancery, that jurisdiction to render a judgment for alimony and costs on the supplemental bill, enforceable in that state, against the defendant, could not be acquired without service'of a new subpoena in the state, or by his appearance in the action subsequent to the filing of the supplemental bill. The practice of the plaintiff’s solicitor, and sanctioned by the court of chancery, was strictly in accordance with this finding. The defendant’s solicitors resided in the state of New Jersey, but no notice was given them of the application to file the supplemental bill, or any of the proceedings taken after it was filed. The plaintiff’s solicitor procured a new subpoena to be issued and obtained an order for its service by publication, or personally without the state. It does not appear that the solicitors for the defendant were served with the subpoena, or with a copy of the supplemental bill, or had notice that one had been filed. If the defendant was deemed to be in court for the purposes of the supplemental bill and the proceedings thereunder by virtue of his appearance and answering the original bill, his solicitors would have been entitled to notice of the proceedings subsequent to the filing of the supplemental bill and the entry of a pro confessa judgment would not have been authorized.

It is" urged that the omission to serve the defendant with a subpoena within the state, after the supplemental bill was filed,. was a mere irregularity and not jurisdictional. The difficulty i with this position is that it was not so found. On the contrary, \ service within the state was found to be, under the law and prac- J tice of the court of chancery of New Jersey, an indispensable prerequisite to the rendition of a personal judgment An act or omission which would be held only an irregularity under the laws of one state, may, by the laws of another, be fatal to the right of the court to proceed to judgment.

By the rules and decisions of the English court of chancery, which have been generally adopted and followed by the equity courts of the United States and of the several states, facts occurring after the filing of an original bill, which, if proved, would entitle the complainant to the relief prayed for in the orignal bill, cannot be introduced therein by amendment, but mnjr be brought before the court, if at all, by a supplemental bill, Story’s Eq. Pldgs., § 332, and when a supplemental bill is filed the defendant must be brought into court by the service of a new subpoena within the state, unless he voluntarily appears after the supplemental bill is filed, Barber v. Beers, 3 Stew. N. J. Dig., 252, p. 400 ; Lawrence v. Bolton, 3 Paige Ch., 294.

It is urged that the defendant, by his subsequent marriage and motion to correct the judgment, recognized its validity in all its parts, and is estopped from questioning the right of the court of chancery to render a judgment for alimony and costs. We fail to discover on what principle these facts can be held to create an estoppel by conduct, as the plaintiff neither did, nor omitted to do anything by reason of these acts.

The order must be reversed and judgment absolute rendered against the plaintiff, with costs.

All concur.


text:
    Anna C. Kley, App’lt, v. John W. Healy, Impl’d, Resp't.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Trial—Dismissal of complaint on opening.

       Where the opening of the plaintiff does not appear in the appeal book it should be presumed to comprise- the substance of the complaint, and any offer to prove made in connection with the opening, unless objected to as inadmissible under the pleadings, should be regarded as a part thereof.
    2. Judgment—Action to cancel satisfaction—-Fraud.
    The complaint alleged that plaintiff had recovered judgment against defendant which was a lien on his real estate, and that she was induced to satisfy the, same by the false representations made by him, with intent to deceive, that he was a member of a mercantile firm doing a business that would soon enable him to pay, and that if the recovery of the judgment became known to his partners they would dissolve the firm and entail ruin upon him; that being misled by these statements she agreed to satisfy the judgment on his paying her attorney his fees, which was done, and then satisfaction given without consideration, and that no payment lias been madé. Her counsel offered to prove that she was misled by these false representations and thereby induced to execute the satisfaction piece, and that defendant was not interested in the firm, and that the representations were false. Held, that the complaint and offer construed together showed every fact essential to a cause of action to set aside a written instrument on the ground that it was procured by fraud, and that it was error to dismiss the complaint on the plaintiff’s opening.
    8. Same—Tender.
    In such an action it is not necessary for the plaintiff to restore the sum paid to her attorney, in order to maintain the action.
    Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment entered upon the decision of said court at special term.
    Action to cancel the satisfaction of a judgment upon the ground that it was obtained by fraud, and for other relief. The facts appear in the opinion.

      Hector M. Hitchings, for app'lt; Christopher Fine, for resp’t.

       Reversing 23 N. Y. State Rep., 1007.

   Vann, J.

Upon the trial of this action the complaint was dismissed “ on the opening of the plaintiff’s attorney and on the ■ground that the complaint did not state facts sufficient to constitute a cause of action.” The appeal book, however, does not disclose what was said in opening the case, but certain “ offers to prove,” made in behalf of the plaintiff apparently as a safeguard against the motion to dismiss, are specifically set forth.

It has recently been held by this court that “ where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings.” Clews v. The Bank of New York Nat. Banking Association, 105 N. Y., 898, 404; 7 N. Y. State Rep., 868.

This court has further held that where, after the plaintiff has opened his case, the complaint is dismissed on the ground that it states no cause of action, it must be treated on appeal as if it had been demurred to, and that the sole question to be considered is whether it sufficiently states a cause of action. Sheridan v. Jackson, 72 N. Y., 170, 172. In the supreme court the practice has been laid down by the learned judges of the general term in the first department as follows: “ There is no finding of facts or con- " elusions of law in the court below; no part of the opening of counsel is given; the dismissal of the complaint must, therefore, be regarded as made upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because we must assume that the counsel in his opening stated substantially the same facts alleged in the complaint.” Linde v. Bensel, 22 Hun, 601

The opening, in behalf of the plaintiff, is a brief statement of the nature of the action, the issues to be tried and the facts that he expects to prove. Tisdale v. President, etc., 116 N. Y., 416, 419 ; 26 N. Y. State Rep., 857; Elwell v. Chamberlin, 31 N. Y., 611, 614; Ayrault v. Chamberlain, 33 Barb., 229,233. As the proof must conform to the pleadings, it is reasonable to presume that when such statement is not set forth in the appeal book it follows the pleading under which it was made. It cannot be assumed, even to support a judgment on appeal, that the opening contained either a fatal admission or anything inconsistent with the allegations of the complaint, as that would be opposed to its nature and a departure from the usual practice. We think that where the opening of the plaintiff does not appear in the appeal book it should be presumed to comprise the substance of the complaint, and that any offer to prove made in connection with the opening, unless objected to as inadmissible under the pleadings, should also be regarded as a part thereof.

The substance of the complaint in question is that the plaintiff, having recovered a judgment against the defendant Healy that was a lien upon certain lands belonging to him, was induced to satisfy the same and countermand an execution issued thereop, by the false and fraudulent representations m:: !o to her by said

Healy, with intent to deceive, that he was a member of a certain mercantile firm carrying on business in the city of New York, and had a lucrative interest therein that would soon enable him to pay said judgment, and that if the recovery of said judgment became known to his co-partners they would dissolve the firm, eject him from the business and entail upon him financial ruin. She further alleged that, being misled by such misrepresentations, she “ consented to comply with his request upon condition that he would pay her attorney his fees in said action, which he did,” and that “relying upon the truth of said representations and trusting to his promises to pay said judgment,” she gave him “a general release and satisfaction ” of the same “without receiving any consideration therefor whatsoever; ” that Healy failed to pay and had no property except his interest in said premises. She demanded that the release and satisfaction be cancelled and the judgment restored as a valid lien, with leave to issue execution to enforce the same against said Healy.

Upon the trial, after the motion to dismiss was made, the counsel for the plaintiff offered to prove that she “ was misled by these false representations and thereby induced to execute the satisfaction piece and the release as alleged in the complaint, and that at the time these representations were made Healy was not interested in said firm, and that those allegations made by him were false.” No objection was made by the defendant to the offer to prove, but the court did not permit the proof to be given, and an exception was taken to the ruling.' When the complaint and offer are construed together, according to- the rule already announced, every fact appears that is essential to a cause of action to set aside a written instrument upon the ground that it was procured by fraud. Those facts, briefly stated, are that the plaintiff was induced to sign the paper in question by certain false statements made to her by the defendant with intent to deceive. A complaint that sets forth successful deception intentionally practiced by the defendant upon the plaintiff to his injury, alleges a good cause of action, according to all the authorities. Brackett v. Griswold, 112 N. Y, 454, 467; 21 N. Y. State Rep., 791; Arthur v. Griswold, 55 N. Y., 400, 410; State of Michigan v. Phænix Bank, 33 id., 1, 25.

Even if reliance is placed upon the mere promises of the defendant, as well as upon his false representations, still a cause of action for fraud may be maintained, provided the representations had a material effect in accomplishing the deception. Addington v. Allen, 11 Wend., 374; Shaw v. Stine, 8 Bosw., 157; Matthews v. Bliss, 22 Pick., 48 ; Cooley on Torts, 502. It is not necessary that they should be the sole inducing cause. The cases cited by the defendant to the effect that fraud cannot be founded solely upon a promise not performed,- even if the promisor never intended to fulfil, are, therefore, not applicable.

The main ground upon which this appeal is resisted is the failure to allege any return or tender of the money paid by the defendant to the attorney for the plaintiff in the former action Even if this point were otherwise tenable, it is doubtful whether it could be successfully taken here, because the motion to dismiss was not based upon that ground; and if it had been, the defect, if any, might have been cured by amendment. A more satisfactory answer, however,'may be found in the principle that one who attempts to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain either by virtue of the contract sought to be set aside, or of the original liability. Fisher v. Bishop, 108 N. Y., 25, 30; 13 N. Y. State Rep., 466; Gould v. Cayuga Co. Nat. Bank, 86 N. Y., 75, 81; Guckenheimer v. Angevine, 81 id., 394; Allerton v. Allerton, 50 id., 670; Nichols v. Michael, 23 id., 264; Imp. & Trad. Bank v. Peters, 21 N. Y. State Rep., 98, 102; 123 N. Y., 273 ; 33 N. Y. State Rep., 182; Pierce v. Wood, 23 N, H, 519, 534; Hay v. Hay, 13 Hun, 315.

While the sum retained should be taken into account in the award cf relief, an offer to restore it is not a condition precedent to the bringing of an action to set aside the fraudulent release. Assuming, as we do for the purpose of this appeal, that all the allegations of the complaint are true, the plaintiff would be entitled to retain the costs that she indirectly received, whatever might be the result of her action for a rescission. Vail v. Reynolds, 118 N. Y., 297, 302; 28 N. Y. State Rep., 707, If her action failed, she was entitled to the sum received by virtue of the transaction itself. If she succeeded, the sum was less, than she was concededly entitled to by the original judgment. In any event, therefore, she had only that which, without dispute, belonged to her, and a restoration, or the offer thereof, was unnecessary prior to the commencement of the action, for such conditions as might be essential to the protection of the defendant could be inserted in the judgment ultimately rendered.

For these reasons, we think that the court below erred in its disposition of the case, and that the judgment appealed from should be reverged and a new trial granted, with costs to abide the final award of costs.

All concur.


text:
    John C. Mahr et al., Resp’ts, v. The Norwich Union Fire Insurance Society et al., Appl’ts.

      (Court of Appeals, Second Dimson,

      Filed October 6, 1891.)

    1. Insurance (fere)—Partees—Rights of pledgee of policy—Assignee of policy should be made party.
    Where there are conflicting claimants to the same obligation, each insisting upon it as exclusively liis own, all should be made parties before the question of title is determined by a court of equity in favor of either against the one from whom the obligation is due.
    3. Same.
    Defendant issued its policy to B. on his stock of goods in Iowa. B. sent the policy to plaintiffs in New York as collateral security to a loan made to him by them, but did not assign it in writing. The property was destroyed by fire, and B. afterwards assigned the policy to one Kelly.
      Held, that in this action by plaintiffs upon the policy Kelly was a necessary party, and the court erred in rendering a judgment restraining the payment of the loss to B. or Kelly, and ordering the company “to pay to the plaintiffs such moneys as shall he found to he payable under and by virtue of ” said policy of insurance.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon the decision of the court at special term.
    Action by the plaintiffs, claiming to be the equitable owners of a policy of fire insurance, to restrain the insurer from paying the amount of a loss to the insured, or to his alleged assignee.
    On the 21st of April, 1886, the Norwich Union Fire Insurance Society, a corporation organized under the laws of Great Britain, with agencies in New York, Iowa and other states, issued the policy in question to one Bartlett on his stock of goods at Muscatine, Iowa. The policy was countersigned by the agent of the company at that place. Three days later Bartlett, who resided at Muscatine, sent the policy by mail to the plaintiffs, who resided in the city of New York, as collateral security to a loan of $2,000, concurrently made to him by them. The policy, as written, was payable to Bartlett only and it was never assigned to the plaintiffs. July 3, 1886, the property insured was destroyed by fire, and on the 16th of August following Bartlett made an absolute assignment of the policy to one Kelly, of Muscatine aforesaid.
    This action was commenced against the insurance company and Bartlett by the due service of process in this state upon the former, August 12, 1886, and on the latter about one month later. The company answered, alleging, among other defenses, a defect of parties defendant in that said Kelly, although a necessary party to the action, had not been joined. March 12, 1887, Kelly commenced an action at law in a court of the state of Iowa to recover from the insurance company the sum of $2,000, the amount of the policy, with interest from July 3, 1886. March 15, 1887, on motion of the company, an order was made by the supreme court of this state in this action requiring said Kelly to be made a defendant therein,' and that he be brought into court by a supplemental summons.
    A supplemental summons and complaint were issued accordingly, and the ■ same were served on Kelly in the state of Iowa pursuant to an order of publication based upon an affidavit alleging that “ the defendant S. G% Kelly claims to have property in the state of New York, to wit: an interest in the insurance policy ” in question. No service was made upon Kelly within this state and he did not appear in the action. The insurance company, by its answer to the supplemental complaint, pleaded the pendency of the action in the Iowa court; that Kelly was a necessary party and that the supreme court had by its order directed that he be brought in as a party defendant, and demanded judgment that the complaint be dismissed “ unless said S. Gr. Kelly be brought in so as to be bound by any judgment herein.”
    These facts appeared upon the trial of this action, where Kelly’s default was noted, and were, in substance, found by the trial judge, who also found that Kelly had no interest in the policy “ superior to that of the plaintiffs, * * * and that the alleged assignment * * * by the defendant Bartlett to said S. Gr. Kelly of the date August 16, 1886, * * * was void, and in
    no wise affected the prior interest obtained by the plaintiffs in said policy on or about the 24th day of April, 1886.”
    Judgment was directed restraining the insurance company from paying any money under said policy to Bartlett or Kelly, and although there was neither allegation nor evidence of any proof of loss as required by the terms of said policy, the defendant company was ordered “ to pay to the plaintiffs such moneys as shall be found to be payable under and by virtue of ” said policy of insurance.

      David Welch, for resp’ts; William Allen Butler, for defendant Company, appl’t.

         Reversing 25 N. Y. State Rep., 481.

   Vann, J.

Upon the argument of this appeal the learned counsel for the plaintiffs, with great fairness, admitted that the supreme court never acquired jurisdiction over Kelly, the alleged assignee of the insurance policy that is the subject of this action. The main question left for decision is whether Kelly was a necessary party, as the defendant company alleged in its answers and urged upon the trial. It is not claimed that he should have been joined as a plaintiff, but his presence as a defendant is insisted upon as essential to “ the complete determination or set-, tlement ” of the questions involved. The Code of Civil Procedure provides that “ the court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.” Code Civ. Pro., § 452.

While the statute does not in terms prohibit the court from determining the controversy unless all the necessary parties are brought in, that is impliedly commanded and is the established practice in all equitable actions. Peyser v. Wendt, 87 N. Y, 322; Sherman v. Parish, 53 id., 483; Webster v. Bond, 9 Hun, 437; Shaver v. Brainard, 29 Barb., 25; Sturtevant v. Caldwell, 4 Bosw., 628; Van Epps v. Van Deusen, 4 Paige, 64.

It is not enough for the court to direct that the necessary parties be brought in, but it should refuse to proceed to.a determination of the controversy so as to affect their rights until they are in fact brought in. Peyser v. Wendt, supra; Sherman v. Parish, supra; Powell v Finch, 5 Duer, 666.

The plaintiffs did not appeal from the order of the court requiring Kelly to be brought in, and as long as it remained in force it was an adjudication establishing as the practice if not the law of the case that Kelly was a necessary party. Riggs v. Pursell, 74 N. Y., 370.

Moreover, the object of this action was to establish the equitable title of the plaintiffs to the policy and to prevent the company from paying the proceeds to any one except themselves. The proceeds, however, were also claimed by Kelly, who not only held the legal title to the policy, but had actually commenced an action upon it against the company in another state. Clearly the company should not be required to pay the entire amount of the policy both to the plaintiffs and to Kelly, or, without fault on its part, to be placed in a position where it would run any reasonable risk of being compelled to make a double payment But how is such a result to be prevented when an action at law, brought by -the legal owner to compel the company to. pay the amount of the policy to him, is pending in one state, and an action in equity by the equitable owner to prevent such payment is pending in another state, unless all interested persons are parties to the latter ? Could the court of equity safely proceed to judgment against the company unless the legal owner was before it as a party ? If it should enjoin the company from making payment to anyone except the equitable owner, it could not prevent the legal owner from prosecuting his action to collection in the other jurisdiction. It could not enjoin a person over whom it had no jurisdiction, nor make any decree affecting his rights.

The general rule in equity requires that all persons interested in the subject of the action should be made parties, in order to prevent a multiplicity of suits and secure a final determination of their rights. Osterhoudt v. Superisors, 98 N. Y., 239 ; Derham v. Lee, 87 id., 599.

There is an essential difference between the practice at law and in equity in determining who are proper and necessary parties. Story in his work on Equity Pleadings, § 72, says that two general principles control courts of equity in this respect: 1. That the rights of no man shall be finally decided unless he, himself, is present, or at least has had a full opportunity to appear and vindicate his rights. 2. That when a decision is made upon any particular subject matter, the rights of all persons whose interests are immediately connected with that decision, and affected by it, shall be provided for as far as they reasonably may be. The learned author adds: “ It is the constant aim of courts of equity to do complete justice by deciding upon and settling the rights ■of all persons interested in the subject matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented.” As Lord Hardwicke once said, all persons ought to be made parties who are necessary to make the determination complete and to quiet the question. Poore v. Clark, 2 Atk., 515. Not only all persons whose rights may be affected by the judgment should be brought into .court, but all whose presence is essential to the protection of any party to the action. Gray v. Schenck, 4 N. Y., 460; Russell v. Clark, 7 Cranch, 69, 98; Piequet v. Swan, 5 Mason, 561; Fell v. Brown, 2 Brown Ch. Cas., 276.

The burden is on the plaintiff to secure the presence of all such persons and it is his misfortune if he is unable to do so.

When there are conflicting claimants to the same obligation, each insisting upon it as exclusively his own, all should be made parties before the question of title is determined by a court of equity in favor of either against the one from whom the obligation is due. Otherwise payment or performance may be exacted as many times as there are separate claimants. It follows that the title to a chose in action, such as the policy in question, cannot be settled unless all those who claim any interest therein, whether legal or equitable, are joined as parties, plaintiff or defendant. As it is conceded that Kelly, although nominally, is-not really a party to the action, he has not had his day in court,, and the decree in favor of the plaintiff, being void as to him on that account, is powerless to affect his rights, or to afford protection to the defendant company in obeying its command. The-absence of jurisdiction over a party is the absence of power to render judgment against that party. While the court assumed to-pronounce judgment against Kelly, and to restrain him from receiving the money due upon the policy, and from suing for its recovery, its action in that regard was coram non judice and void as to him. It could not exercise judicial power over one who-was not subject to its jurisdiction, nor compel him to obey a decree that was rendered without due process of law. W hile its command to the company not to pay Kelly could be enforced by punishment for disobedience, its command to Kelly not to sue the company could not be enforced by punishment or otherwise, because it was made without authority. Hence Kelly could compel the company to do what the judgment prohibited it from doing. Aside from the question of power to proceed without jurisdiction over Kelly, such a judgment is unreasonable, and hence inequitable. A court of equity should not restrain a party from doing an act, when it has no power to protect that party from being compelled by another court of competent jurisdiction to do the act thus prohibited. A forcible illustration of this appears in a case recently reported, which lacks no element of complete analogy, as it was the judgment of the court of last resort in Iowa, in the action brought by Kelly against the defendant company, and set forth in its answer in this action. Kelly v. Norwich Union Fire Insurance Co., 47 Horthwestern Rep., 986; 79 Iowa, 452.

While the judgment in that case is not before us as evidence, the reported decision therein is just as valuable to illustrate what might reasonably be expected to take place, as if it were officially known to us as a record of what had taken place. The learned court, in affirming a recovery by Kelly upon the policy in question for its whole amount, said : “The record of the Hew York court was rightly rejected, for the reason that, as against Kelly,, the party claiming in this case to hold the policy and all rights under it, the decree and proceedings are void, for the reason that he was not served with process subjecting him to the jurisdiction of the Hew York court. Kelly was served with process in this' state, and did not appear in the case. The Hew York court failed to acquire jurisdiction of his person by service of process in this state. The judgment, therefore, as to him, is void.”

We regard the case cited as a practical demonstration that Kelly is a necessary party to this action, and that a court of equity should not have proceeded to judgment against the company without first acquiring jurisdiction over him. If this were an action at law brought by the plaintiffs to recover upon the policy, a different question would be presented, involving a conflict between the courts of Hew York and Iowa. As it is an action in equity, however, it is not necessary for us to now consider that subject.

Having in view our form of government, the comity due from the courts of one state to those of another, and the necessity for freedom of commercial transactions between citizens of different states, such questions should not be hastily entertained, but should be avoided when the rights of parties can be satisfactorily determined upon other grounds. Story on Conflict of Laws, § 9.

We think that further argument is not required to show that Kelly was a necessary party to this action, and that the trial court erred in rendering the judgment appealed from without first ac-quiring jurisdiction over him.

The judgment should, therefore, be reversed and a new trial .granted, with costs to abide event.

All concur.


author: Potter, J.

text:
    Charles McKeown et al., Resp’ts, v. Johh Officer, Ex’r, et al., App lts.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Appeal—Must be from a final judgment.
    Where the special term hy its judgment required an accounting to he had in accordance with certain principles of law declared therein, and appointed a referee for that purpose, an appeal cannot he taken to this court from an affirmance of such judgment hy the general term, where no report of the referee has heen made and no judgment entered upon such report.
    '2. Same.
    The objection to the taking of such appeal may he raised and decided upon the main appeal or hy motion to dismiss the appeal upon that ground.
    This is an appeal from the affirmance of a judgment in favor of plaintiffs entered upon a decision of the court at special term.

      Jacob Brenner (Charles J. Patterson, of counsel), for resp’ts; Henry Marshall, for app’lts.

       Affirming 25 N. Y. State Rep., 319.

   Potter, J.

respondents upon the argument of the appeal raised the preliminary objection that the judgment of the general term affirming the judgment of the special term was not apoealable to this court, that the judgment required an accounting to be had in accordance with certain principles of law declared in the special term judgment, appointed a referee for that purpose and required him to make a report thereof to that court.

The appeal to this court was taken before the coming in of the referee’s report, and so far as appears from the record presented to this court, no report of the referee has been made and no judgment has been entered upon any report by the referee.

The first question to be considered upon this appeal is whether the judgment of the general term is appealable to this court and the determination of that question depends upon the nature and character of that judgment, whether it is interlocutory or final.

The rule limiting appeals to this court to final judgments has-prevailed for a long time, and the provisions of the various Codes,, while shifting in many, has been steady in this respect, and this-proposition is supported by an unbroken current of authorities, as. is illustrated in a few of the cases herein cited.

In the case of Victory v. Blood, 93 N. Y., 650, the decision as: expressed in the syllabus of the report is as follows: “ An appeaL may be taken to the general term from an interlocutory judgment, but such judgment can only be reviewed in this court on appeal from the final judgment.” In King v. Barnes, 107 N. Y., 645; 11 N. Y. State Rep., 764, this court held: “An appeal may not be taken to this court from an interlocutory judgment. A judgment which, although it finally determines certain matters in controversy, orders an accounting before a referee, is an interlocutory judgment.”

The judgment under review contains or presents both features of that proposition, viz.: the determination of certain matters of law in controversy between the parties, and orders an accounting before a referee upon the principles laid down or declared in the. judgment.

Judge Earl, in writing the opinion of the court in Raynor v. Raynor, 94 N. Y, 248, uses this language: “There is, however, no provision anywhere authorizing such appeals to this court,”' and adds, “ we are not concerned with the wisdom or utility of the provisions which we have referred to. They are plain and must control.”

The last case was an action for the admeasurement of dower requiring, and the interlocutory judgment required, proof to be taken before a referee and a report thereof to be made to this, court.

In Walker v. Spencer, 86 N. Y., 162, the judgment of the special term required an accounting to be taken before a referee in accordance with the provisions of the judgment of the special term. Before the accounting had been made, the report of the-referee filed, or any judgment had been entered upon such report,, an appeal was brought from such judgment, to this court and Judge Rapallo, in delivering the opinion of the court, uses this-language: “ This appeal cannot be entertained. There is no provision of law which authorizes an appeal to this court from an interlocutory judgment, or from an order affirming such a judgment. The appeal on this ground must be dismissed.”

In Cambridge Valley National Bank v. Lynch, 76 N. Y., 516, Judge Miller, in delivering the opinion of the court, uses this: language: “An interlocutory judgment is an intermediate or incomplete judgment where the rights of the parties are settled but-something remains to be done. As when there is an accounting to be had, a question of damages to be ascertained, or a reference required to determine the amount of rent due for use and occupation.”

The case of Clark v. Brooks, 2 Abb., N. S., 385, and Tompkins v. Hyatt, 19 N. Y., 534, hold the same proposition. In the latter . case Judge Denio, in delivering the opinion of this court, held “that a judgment is not final so long as there may be further litigation under its provisions,” and cites numerous cases in support of that proposition.

In Tilton v. Vail, 117 N. Y, 520; 27 N. Y. State Rep., 842, the court held that this principle applied also to actions for partition and that the court of appeals had no jurisdiction to review an interlocutory judgment even under the provisions of the Code applicable to actions for partition.

From the cases cited and other cases upon the subject, or question under consideration, I feel constrained to hold that the judgment in this case is in its nature an interlocutory judgment and not final, and is not appealable to the court of appeals. I am also constrained to hold, in view of the circumstances under which this question has arisen, that the objection that it is not appeal-able may be raised and decided upon the main appeal or by motion to dismiss the appeal upon that ground. The cases in which the course of raising the question upon the argument of the appeal was adopted are quite, if not more, numerous than those in which a motion was resorted to to raise the question and the cases above cited illustrate the correctness of this statement.

As the appeal must be dismissed for this reason and in accordance with the respondent’s contention, there is no use or propriety in examining and deciding other numerous and interesting questions upon the merits of the case.

The appeal, therefore, should be dismissed, with costs.

All .concur.