text:
    Lavinia Beard et al., App’lts, v. Mary A. Beard et al., Resp’ts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Executors and administrators—Commissions as trustees.
    Executors are not entitled to commissions upon investments and rein-vestments and moneys disbursed and received in the conduct of a business-carried on to produce net income. The moneys paid out upon which commissions may be computed are the moneys paid out of the estate for debts,, expenses of administration and to legatees and other beneficiaries.
    2., Same—Interest.
    While executors or testamentary trustees have no legal right to commissions until they are adjudged and allowed by decree on settlement pf their accounts, yet where they have acted in good faith, honestly believing that they were entitled to take the commissions, and it does not appear that by such taking any injury or damage has been done to the estate, nor that they have made any profit on the moneys so taken, they should not be charged with interest.
    Appeal from judgment of the supreme court, general term, second department, affirming portions of a judgment, entered upon the report of a referee, which charged appellants for the entire amount of commissions withdrawn by them as trustees, with interest thereon.

      George Hoadly, for app’lts; Sanford H. Steele, O. T. Beard and Edward Hinman, for resp’ts.

       Modifying 51 St. Rep., 735.

   Earl, J.

William Beard died January 8, 1886, in the city of Brooklyn, leaving a will by which he disposed of a large estate. Among the property disposed of was what is called the Erie Basin property, and that property he directed his executors, and trustees to keep, improve and manage, and to carry on the business connected therewith as freely and fully as he could if living. The trustees took possession of that property and thereafter managed it and carried on business thereon. The will contained directions as to the disposition of the income from the property and business, which were substantially complied with by the trustees. This action was commenced by the trustees for the judicial settlement of their accounts. In carrying on the business they from time to time paid out large sums of money for expenses of the business, and their gross receipts were upwards of $600,000, and they made a net profit from the business of upwards of $300,000, and from time to time they drew and retained from their commissions upwards of $28,000.

It was held in the court below that the trustees were not entitled to commissions upon the gross receipts of the business, but only upon the net profits; that they were not entitled to take their commissions until they had been allowed by the court upon' the accounting, and that they were chargeable with interest upon the commissions so taken until the date of the final decree in this action. Whether the court erred in so holding is the matter for our determination upon this appeal.

Under the statute these trustees were entitled to receive for their services the statutory commissions for “ receiving and paying out ” the moneys of the estate. What do these words “ receiving and paying out ” mean as used in the statute? They are comprehensive enough if literally construed to embrace all moneys which came into the hands of the trustee as such, from whatsoever source or cause, and all monej's paid out by him as such on any account. If a trustee invests money he pays it out, and when it is repaid to him he receives it again. But it has been held that in such case the money is not received and paid out within the meaning of the statute. Matter of Kellogg, 7 Paige, 265; Betts v. Betts, 4 Abb. N. C., 317, 436 ; Drake v. Price, 5 N. Y., 430, 433. The same rule was laid down in Matter of Hayden, 54 Hun, 197; 26 St. Rep., 911, affirmed in this court, 125 N. Y., 776 ; 36 St. Rep., 1011. In that case the testator authorized his executors, in their discretion, to continue for a year the business of the manufacture and sale of furniture, in which he was engaged at the time of his death, and it was held that the executors were not entitled to commissions on the moneys paid out and expended in carrying on the business. Judge Barker, writing the opinion in the supreme court, which was adopted by this court, said : “ While it is apparent that the money was received and paid out in the execution of the provisions of the will and pursuant to the authority given by it, it nevertheless does not appear that from the business any profit or any advantage resulted' to the estate. The buying and selling incident to the conduct of a manufacturing or other business is at best a species of reinvestment of the trust funds. If commissions were to be allowed each time a stock in trade were purchased or sold, the executors’ commissions would largely consume the body of the estate, especially where the stock in trade is rapidly turned over and no great profits realized from the transactions.” Here many items of money, amounting in the aggregate to about $250,000, were disbursed in carrying on the business, all of which came back again to the trustees in the prices charged by them for the use of the basin and for services rendered by them to the patrons thereof, and in this way some of the money was turned over many times. It is plain that if a trustee, under such circumstances, is entitled to commissions on all the money received and disbursed the commissions might eat up the corpus of the estate, as indicated by the chancellor in the Kellogg case and by J udge Barker in the Hayden case. It is said by the learned counsel for the respondents that the rule laid down in those cases applies only to the investment and re-investment of the capital of the estate. The rule is not thus confined, and it was not so confined in the Hayden case, and the principle underlying the decision in those cases requires that it should be applied to such a case as this. The rule may work harshly in some cases. In the Hayden case, the trustees received no commissions for carrying on the business, as they made no profits. Here large profits were made, and the commissions allowed by the court below gave ample compensation to the trustees for the services rendered by them. We think the true rule for allowance of statutory commissions is this: Trustees are entitled to commissions for receiving all moneys which constitute the corpus of the estate, and any additions thereto from increase of any kind, and thus the moneys upon which commissions are to' be computed can never exceed the gross amount of the estate and its net income, and the moneys paid out upon which commissions may be computed are the moneys paid out of the estate for debts, expenses of administration and to legatees or other beneficiaries, moneys which operate to diminish the estate as it exists in the hands of the trustees and pass out of and away from the estate. This rule excludes commissions upon investments and re-investments and moneys disbursed and received in the conduct of a business carried on to produce net income. In the case of such business, the commissions are to be computed on the net income only which came to the corpus of the estate as an increase thereof. If this rule does not in all cases give adequate compensation to trustees, no great injustice can flow from its operation, as trustees are not obliged to act and thus execute a trust which would be unprofitable or burdensome to them, and that the rule will operate beneficially in most cases and subserve the best public policy cannot be doubted.

The conmissions of trustees are to be allowed on the settlement of their accounts, and the general rule is that they cannot be legally taken before. Code § 2802 ; 2 R. S., 93 ; Wheelright v. Rhoades, 28 Hun, 57; Hancox v. Meeker, 95 N. Y., 528; Matter of Mason, 98 id., 527 ; Matter of Selleck, 111 id., 284; 19 St. Rep., 601. There is an exception to the general rule where the trustees settle with the beneficiaries and pay out the residue of income or of the estate. There they may first deduct and retain their commissions without waiting for a judicial settlement of their accounts. While, therefore, in this case the trustees had no legal right to any commissions until they were adjudged and allowed by the decree in this action, they had earned their lawful commissions at the time they took them. They had then rendered the services for which the law allows the commissions. They acted in good faith, honestly believing that they were entitled to take the commissions. It does not appear, and was not found, that by taking these commissions they caused any injury or damage to the' estate ; and from the situation of the estate, and the nature of their duties, and the character of the business they carried on, an injury or loss to the estate cannot be inferred. It does not even appear that they made a profit from the funds withdrawn for their commissions. They were held liable for the interest upon the sole ground that they took their commissions prematurely. Under such circumstances, we think it was error to charge them in this equitable accounting with the interest, and for this conclusion the case of Price v. Holman, 135 N. Y., 124; 48 St. Rep., 381, is ample authority. There we held that a trustee is not to pay interest solely for the reason that he deposits the trust moneys indiscriminately with his own, nor because he makes use of them in his own business ; that there must be superadded a breach of trust, or neglect or refusal to invest the funds at the time or in the mode which the trust instrument, or the law itself, has pointed out, and we said: The law itself exacts of a trustee fidelity to his trust. If he is guilty of fraud or the mismanagement of the trust fund, or is guilty of a breach of trust, or has used the trust funds for his own purposes, and made a profit therefrom, he may be compelled to pay interest, and in extraordinary cases compound interest, so as to place the cestui que trust in the same situation as if the trustee had faithfully performed his proper duty.” Here all the elements as grounds of liability for interest on the commissions taken are wanting. It was not found, and does not appear, that the trust estate would have gained a dollar if the commissions had not been taken.

Our conclusion, therefore, is that the judgment below should be modified by striking therefrom the charge against the appellants of interest on the commissions allowed to them, and that, as thus modified, it should be affirmed, without costs to either party in this court.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Lena Hahnke, by Guardian, Resp’t, v. Adam Friederich, App’lt.

      (Court of Appeals,

      Filed November 28, 1893

    Animals—Liability of owner of vicious dog.
    When a person keeps a dog for the purpose of guarding his property against trespassers or criminals it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind, and negligence in allowing him to be at large.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

      Charles M. Williams, for app’lt; Norris Bull, for resp’t.

       Affirming 50 St. Rep., 938.

   O’Brien, J.

The plaintiff, a girl of about seven years of age, ¡recovered a verdict of $500 against the defendant for personal injuries inflicted upon her, as she claims, by a vicious mastiff dog kept by the defendant The testimony showed that the plaintiff lived with her parents in a house rented to them by the defendant and in the rear of the defendant’s residence and barn, no fence separating the lots. The defendant was a mason and contractor, keeping several horses and large quantities of tools and other property in the barn, and he procured the dog about a month before the date of the injury to the plaintiff to guard and defend this property in the barn, where he was usually kept chained and muzzled, but escaped from the barn on the occasion in question. On the 3rd of April, 1892, the girl, having returned from school, was passing around to the rear of the house upon a board walk that extended around the house for the use of the inmates. This walk, extending along the side of the house to the rear corner, turns as the house turns towards the kitchen, forming an angle. The dog was lying near the kitchen steps, and could not be seen by the girl until the corner was turned. As the plaintiff turned the corner the dog jumped at her, threw her down and bit her in the face and around the neck, inflicting injuries of quite a serious nature and disfiguring her face and features to some extent. The question in the case arises upon an exception to the denial of a motion for a non-suit on the ground that the proof failed to show knowledge by the defendant of the vicious propensities of the dog. There was no question raised as to the sufficiency of the proof to warrant a finding that he was vicious in fact, and undoubtedly there was evidence upon that question for the consideration of the jury. It is, therefore, unnecessary to refer to any other question save the ruling of the learned trial judge refusing to grant the motion for a non-suit.

The testimony tended to show that the defendant procured and kept the dog to guard his barn and the property therein, and that he considered it necessary to chain and muzzle him.

The purpose for which he was kept and the manner in .which the owner was accustomed to restrain him were circumstances which, with the other testimony in the case, authorized an inference by the jury of knowledge by the defendant of the vicious propensities of the animal. Brice v. Bauer, 108 N. Y., 428; 13 St. Rep., 765; Lynch v. McNally, 73 N. Y., 347; Rider v. White, 65 id., 54; Jacoby v. Ockerhausen, 59 Hun, 619; 37 St Rep., 710; S. C. affd., 129 N. Y., 649; 41 St. Rep., 949.

When a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind, and negligence in allowing him to be at large. The defendant, it is true, had the dog only about a month before the plaintiff was injured, but there is testimony in the case that during that time he attacked and bit' at least one person, knowledge of which was communicated to him. We cannot, therefore, say that there was no evidence for the jury. It was, we think, a fair question of fact whether the defendant knew that the dog was accustomed or liable to attack people, and if he did he was chargeable with negligence in permitting him to be at large, and liable for the injury committed. Quilty v. Battie, 135 N. Y., 201; 48 .St. Rep., 413. The learned trial judge correctly held that the question was one for the jury, and the judgment entered upon the verdict must be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Levi P. Morton, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed November 28, 1893.)

      1. Municipal corporations—Nuisance.
    To entitle a municipal corporation to claim exemption from liability for a nuisance created by its acts done in performance of a public duty by legislative authority, the authority must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have intended and contemplated the doing of the very act in question.
    2. Same—Pumping stations.
    A general authority to raise and expend money for the purpose of extending and enlarging the supply of water and erecting the necessary structures and machinery for that purpose is neither an express nor implied authority to construct a pumping station which adjoins the walls of another house, or block of houses, in such a manner as to render them untenantable by the noise and vibration.
    Appeal from order of the supreme court, general term, first department, reversing judgment dismissing the complaint.

      Charles J. Blandy, for app’lt; B. F. Tracy, for resp’t.

      Affirming 47 St. Rep., 64.

   O’Brien, J.

The municipal authorities of the city of New York were empowered by chapter 386 of the Laws of 1878 to extend and enlarge the distribution of Groton water throughout the city, and for that purpose to raise and-expend a sum of money not to exceed one million five hundred thousand dollars. The authority thus conferred is to be found in the second section of the act, which reads as follows:

“The commissioner of public works of the city of New York, when thereunto authorized by three-fourths vote of all the members elected by the common council of said city, to be approved by the mayor of said city, is hereby authorized to expend for materials and labor and other services, in such manner as the said commissioner shall think for the best interest of said city, in laying pipes to extend and enlarge the distribution of Croton water throughout the city of New York, including the two new wards, and to furnish a sufficient supply thereof to the institutions in charge of the department of public charities and correction, located on Blackwell’s island, Ward’s island and Randall’s island, and in laying mains and erecting or constructing such structures and fixtures as the said commissioner of public works may deem necessary to deliver said water at higher levels and in greater quantities, an additional sum not exceeding one million five hundred thousand dollars.”

The common council and the commissioner of public works proceeded to execute the power conferred by this act, and erected, upon certain lots owned by the city a building, in which were placed pumping engines, tank and other fixtures, and laid the necessary mains and pipes to connect the points to be served with the source of supply. The object of the improvement was to supply water • at higher elevations to the portions of the city built on high ground. The pumping station was constructed sometime after the passage of the act, and in the year 1888 had been in operation some years.

About this time there was erected a row of brick dwelling houses extending from the west wall of the pumping station westerly, twelve in number, which-on the 13th of July, 1888, were all conveyed to the plaintiff. The three houses nearest to the station are known as Nos. 116, 118 and 120, the first having been built close to the west line of the lot upon which the structures of the city had been placed. The injury for which the plaintiff complained was that, by reason of the operation of the pumps and machinery in the station, the noise and vibration therefrom greatly damaged the three houses next adjoining, rendering them untenantable, or at least greatly diminishing the rental value. The vibration and noise affected the three houses in proportion to their proximity to the station. It is conceded by the learned counsel for the defendant that the plaintiff at the trial proved that the three houses were seriously affected by the action of the machinery in use in the pumping station, and that the vibrations and noise therefrom produced actual pecuniary loss to the plaintiff. There is no complaint of negligent management on the part of the municipal authorities, but the plaintiff’s contention is that he was entitled to the use and enjoyment of the property which he owned free from such annoyance or loss. On the other hand the defendant insists that it is not liáble for the results of the injury for the reason that it acted in the exercise of powers for public purposes conferred by express legislative authority. These positions assumed by the respective parties sufficiently disclose the nature of the legal question involved. The defendant’s position was sustained by the trial court, and the complaint dismissed, but the general term has reversed the judgment.

The defendant, by the exercise of the power of eminent domain, could have taken such portion of the adjoining property as would enable it to conduct its operations without damage to what remained, and the owner would then be entitled to compensation. It may be a question worthy of consideration whether upon the facts disclosed the defendant’s acts do not virtually amount to a taking without any compensation to the extent of the damage caused, but a consideration of this feature of the case is rendered unnecessary by recent decisions of this court which, when applied to the facts disclosed by the records, fully sustain the view taken by the learned general term. These cases have grafted upon the principle contended for in behalf of the defendant, that legal liability in damages cannot result from acts done by a corporation in the performance of a public duty by express legislative authority resulting in consequential injury to others, and which, as between individuals would be regarded as a nuisance, an important limitation. It is that the authority which will shelter an actual nuisance must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to-show that the legislature must have intended and contemplated the doing of the very act in question. Hill v. Mayor, etc., 139 N. Y., 495; 54 St. Rep., 797; Bohan v. Port Jervis Gas Light Co., 122 N. Y., 18; 33 St. Rep., 246; Cogswell v. N. Y., N. H. & Hartf. R. R. Co., 103 N. Y., 10; 3 St. Rep., 56.

The authorities cited show that this qualification of the general doctrine is founded in reason and justice, and that it is not by any means a new principle. It only remains to point out its application to this case. The legislature undoubtedly authorized the defendant to construct a building, and to place in it the necessary machinery to accomplish the purpose in view. But that is not the act complained of, or which produced the injury to plaintiff’s-property. The wrong consisted in placing the building and machinery so near to the adjoining property as to injuriously affect it by the noise and vibration. The city has a right to build upon its own land, but there was nothing in the statute that required it to place the structure where it did. It could perform every duty imposed by the statute by building. the pumping station at such distance from the adjoining houses as to avoid the results of which the plaintiff justly complains. If it was not possible or practicable to do that upon the land that the defendant owned, then more could have been acquired for the purpose. The legislature did not select the place for the station, but the defendant did. A general authority to raise and expend money for the purpose of extending and enlarging the supply of water, and erecting the necessary structures and machinery for that purpose, is neither an express nor implied authority to construct a pumping station which adjoins the walls of another house or block of houses in such manner as to render them untenantable by the noise and vibration. It was entirely possible to execute the statute without invading the property rights of other’s. General powers for the accomplishment of a general purpose were conferred upon the defendant, but no express or implied power or authority was conferred to do the very act complained of, nor can it be said that the legislature contemplated it. It is quite likely that all the power intended to be conferred by the statute was to enable the city to raise and expend the money for the purpose indicated. Aside from this power, the city probably could, if it had the means, build the station under existing law, and without any additional legislation. But, however that may be, it cannot be said that the legislature contemplated the selection of such a place for the station that the operation of the pumps and machinery would inevitably expose private property to destruction or injury. The language of Chief Justice Marshall in U. S. v. Fisher, 2 Cranch, 358, is applicable : “ Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

: It is plain, we think, that the specific act of the defendant which resulted in the injury is not within the express words of the statute, or any necessary implication.

- The order appealed from should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs.

All concur.


author: Earl, J.

text:
    The People ex rel. John Copcutt, App’lt, v. The Board of Health of the City of Yonkers, Resp’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Nuisance—Powers of board of health.
    The determination of a board of health as to a nuisance is not final and conclusive, and the members of the board and all persons acting under their authority in abating an alleged nuisance act at their peril.
    3. Same.
    Whoever abates an alleged nuisance and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril, and where his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance.
    3. Same.
    A board of health has a right to act upon its own inspection and knowledge of an alleged nuisance and is not obliged to hear any body. It can obtain its information from any source and in any way and its determination is not reviewable by certiorari.

    4. Board of health of Yonkers.
    Under chap. 184 of the Laws of 1881 “ the supervisor ” was made a member of the board of health. By chap. 54 of the Laws of 1893 the city was divided into five wards and a supervisor elected in each of the wards. Held, that by the act of 1893 the office of “the supervisor” disappeared and the board of health thereafter was composed of the remaining five members.
    Appeal from judgment of the supreme court, general term, second department, affirming the proceedings of the board of health of the city of Yonkers- in enacting an ordinance declaring certain dams and water ponds of relator to be nuisances.
    The Nepperhan river is a small stream of water flowing through the city of Yonkers, and across the stream there were several dams to furnish power to drive machinery. Much complaint having been made to the board of health that these dams created núisances, the members of the board resolved to hold a meeting on the 27th day of March last to consider the condition of the dams, and they ordered notice to be given to the owners of the dams to show cause at that time why the dams should not be removed. In pursuance of this resolution notice was served upon the relator, who owned or was interested in two of the dams and the ponds and water powers thereby created, called the 5th and 6th water powers, and he appeared before the board at the time and place in person and by counsel; and he gave evidence tending to show that the two dams were not nuisances, and did not create nuisances, and there was also evidence in conflict with the case made by him. After hearing the evidence the board made its determination that the dams were nuisances, and ordered them removed.
    The relator then instituted this proceeding by certiorari to review this determination. The board made return to the writ, setting forth all its proceedings and the evidence taken by it, and stated in its return that its determination and action were based u not only upon testimony given by the witnesses, but that the determination of the said board of health, and the members thereof, has been based mainly upon the individual knowledge and experience of the members of said board of health concerning the ponds in the Nepperban stream, and the condition thereof, inasmuch as each member of the board of health, in performance of the duties imposed by law, has personally inspected and has examined and inquired into the condition of said ponds and of said stream, and that the conclusions reached by this board have been reached and depend largely upon personal knowledge and experience of the individual members of this board, and for this reason it is apparent that this board cannot certify to and reproduce before this court all of the proofs, nor all of the grounds of the determination of said board, nor any considerable part thereof.” Upon the return and the papers filed therewith the •general term' affirmed the action of the board, and then the relator appealed to this court.

      Calvin Frost, for app’lt; James M. Hunt, for resp’t.

      Affirming 54 St. Rep., 317.

   Earl, J.

The disposition of this case turns largely upon the effect and the construction of the statutes constituting the board of health, and defining its powers and duties, and we will, therefore, first give attention to the statutes!

By chapter 184 of the Laws of 1881, an act to revise the charter of the city of Yonkers, it is provided in title 9 that the mayor, the supervisor, the president of the common council, the president of the board of water commissioners, the president of the board of police and the health officer shall constitute the board of health of the city, and the board is given power, among other things, “ to suppress, abate and remove any public nuisance detrimental to the public health,” and in addition to other remedies which it may possess by law, it is empowered to issue its warrant whenever necessary to the sheriff of the county of Westchester, or to any policeman of the city, authorizing and commanding him to forthwith suppress, abate and remove such public nuisance, at the expense of the lot whereon the nuisance exists, and of the owner thereof, to be enforced and collected as in the act provided. It is further provided that, in addition to the powers expressly granted in the act, the board shall “ have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities by any general law.” and it is authorized to make ordinances, rules and regulations to carry into, effect its powers, and to enforce observance of them by penalties and by action instituted in its name to recover penalties and to restrain and abate the nuisance.

By chapter 270 of the Laws of 1885, the general act for the-preservation of the public health, it is provided that the board of health in any city of the state, except the cities of New York, Brooklyn and Buffalo, shall have the power, and it shall be its duty, “ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances or causes of danger or injury to life and health within the.limits of its jurisdiction ; to enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and by appointed members or persons to inspect, and examine the same, and all owners, agents and occupants shall permit such sanitary examinations, and said board of health shall furnish said owners, agents and occupants a written statement of results'qr conclusions of such examinations; and every such board of. health shall have power, and it shall be its duty, to order the suppression and removal of nuisances and conditions detrimental to life and health found to exist within the limits of its jurisdiction,” and “ to make, without the publication thereof, such orders and regulations in special and individual cases, not of general application, as it may see fit, concerning the suppression and removal of nuisances.” It is further authorized to abate nuisances, and to impose penalties for the violation of its orders and regulations, and the violation of them is also made a misdemeanor, and it may commence actions to restrain and abate nuisances, and to enforce its orders and regulations.

. A careful examination of the two acts shows that there is no provision for a hearing before the board on the part of any person who is charged with maintaining a nuisance upon his premises. The right to such a hearing is not expressly given and cannot be implied from any language found in either act or from the nature of the subjects dealt with in the acts. Boards of health and other like boards act summarily, and it has not been usual anywhere to require them to give a hearing to any person before they can exercise their jurisdiction for the public welfare. The public health might suffer or be imperiled if their action could be delayed until a protracted hearing could be brought to & termination. There is no provision in the acts for calling or swearing witnesses, and there is no general law giving them power to do so. Section 843 of the Code of Civil Procedure is not applicable to such a case, for the reason that the board is not authorized by law to hear testimony or take the oral examination of witnesses.

'The question may be asked, how can these provisions conferring powers upon boards of health to interfere with and destroy property, and to impose penalties and create crimes, stand with the constitution, securing to every person due process of law before his property or personal rights or liberty can be interfered with? The answer must be that they could not stand if we were obliged to hold that the acts referred to made the determinations of the board of health as to the existence of nuisances final and conclusive upon the owners of the premises where they are alleged to exist. Before such a final and conclusive determination could be made, resulting in the destruction of property, the imposition of penalties and criminal punishments, the party proceeded against must have a hearing, not as matter of favor but as matter of right, and the right to a hearing must be found in the acts. Stuart v. Palmer, 74 N. Y., 183.

As we have said there, is no provision- of law giving any party a right to a judicial hearing before these boards, and there is no provision making their determination final. If the decisions of these boards were final and conclusive, even after a hearing, the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions. Boards of health under the acts referred to cannot, as to any existing state of facts, by their determination make that a nuisance which is not in fact a nuisance. They have no jurisdiction to make any order or ordinance abating an alleged nuisance unless there be in fact a nuisance. It is the actual existence of a nuisance which gives them jurisdiction to act. Their acts declaring nuisances may be presumptively valid until questioned or assailed, for the same reasons which give presumptive legality to the acts of official persons under the maxim omnia prcesumuntur legitime facia donee probetur in contrarium..

What operation then does the order or ordinance of the board of health have under these acts ? The nuisance actually existing and the jurisdiction having been regularly exercised, the order or ordinance has all the operation and effect provided in the act, and the persons who abate the nuisance have the protection which they would not have as private persons abating, not a private nuisance especially injurious to them, but a public nuisance injurious to the general public.

It may be said that, if the determination of a board of health as to a nuisance be not final and conclusive, then the members of the board, and all persons acting under their authority in abating the alleged nuisance, act at their peril; and so they do, and no other view of the law would give adequate protection to private rights. They should not destroy property as a nuisance unless they know it to be such, and if there be doubt whether it be a nuisance or not the board should proceed by action to restrain or abate the nuisance, and thus have the protection of a judgment for what it may do.

It may further be asked, what, under this view of the law, is the remedy of the owner of property threatened with destruction or actually destroyed as a nuisance ? He may have his action in equity to restrain the destruction of his property if the case be one where a court of equity under equitable rules has jurisdiction, or he may bring a common-law action against all the persons engaged in the abatement of the nuisance to recover his damages, and thus he wilPhave due process of law; and if he can show that the alleged nuisance does not in fact exist he will recover judgment notwithstanding the ordinance of the board of health. Thus the views we take of these acts and similar acts conferring powers upon local officers to proceed summarily upon their own view and examination furnish adequate protection to boards of health, to the public and to property owners, and while these views are not supported by all the decided cases upon the subject,, they have the support of the best reasons and of ample authority. In Cooley’s Constitutional Limitations (5th ed.), at page 722, in a note, the learned author, speaking of boards of health, says: “Though they cannot be vested with authority to decide finally upon one’s right to property, where they proceed to interfere with it as constituting a danger to health, yet they are vested with quasi judicial power to decide upon what constitutes a nuisance, and all presumptions favor their actions.” And again, at page 742, in ■a note, citing authorities, he says: “ Whether any particular thing or act is or is not permitted by the law of the state must always be a judicial question, and, therefore, the question what is and what is not a public nuisance must be judicial, and it is not competent to delegate it to local legislative or administrative boards. The local declaration that a nuisance exists is, therefore, not conclusive, and the party concerned may contest the fact in the courts.” Dillon, in his work on Municipal Corporations (4th ed.), § 374, says : “ The authority to prevent and abate nuisances and its summary exercise “ may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which, comes within the legal nature of a nuisance; but such power conferred in general terms.cannot be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such.” In Wood’s Law of Nuisances, § 740, it is said that where the public authorities-abate a nuisance under authority of a city ordinance, “ they are subject to the same perils and liabilities as an individual, if the thing abated is not in fact a nuisance. * * " * It would indeed be a dangerous power to repose in municipal corporations to permit them to declare by ordinance or otherwise anything a nuisance which the caprice or interests of those having control of its government might see fit to outlaw without being responsible for all the consequences ; and even if such power is expressly given by the legislature, it is utterly inoperative and void unless the thing is in fact a nuisance or was created or erected after the passage of the ordinance and in defiance of it.”

In Yates v. Milwaukee, 10 Wall, 497, Mr. Justice Miller said: “ It is a doctrine not to be tolerated in this country that a municipal corporation without any general laws, either of the city or the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or.even by the city itself. This would place every house, every business, and all' the property of the city at the uncontrolled will of the temporary local authorities.” In Hutton v. City of Camden, 39 N. J. L., 122, it was held that the action of the board of8 health could not determine conclusively that a nuisance exists, and that such a conclusive determination could be made only in a regular course of law before an established court of law or equity. In Underwood v. Green, 42 N. Y., 140, the action was to recover the value of dead hogs removed under the direction of the city sanitary inspector, an officer clothed with judicial discretion, and acting under a city ordinance declaring that all dead animals “ be forthwith removed and disposed of by removal beyond the limits of the city or otherwise, so as most effectually to secure the public health; ” and it was held that it must be shown, in order to justify the act, that the dead hogs were or would become in some way dangerous or deleterious to public health. The following are also instructive authorities upon the same subject: Mayor, etc., of New York v. Board of Health, 31 How. Pr., 385 ; Clark v. Mayor, etc., of Syracuse, 13 Barb., 32; Rogers v. Barker, 31 id., 447; Coe v. Schultz, 47 id., 64; Lawton v. Steele, 119 N.Y., 226; 29 St. Rep., 581.

■ The result' of these authorities is that whoever abates an alleged nuisance and thus destroys or inj ures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril, and when his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy and is founded upon fundamental constitutional principles.

The way is now clear to the disposition of this case. The board of health did act, and had a right to act, upon its own inspection and knowledge of the alleged nuisance. It was not obliged to hear any party. It could obtain its information from any source and in any way, and hence its determination upon the question of nuisance is not reviewable by certiorari. People v. Mc Carthy, 102 N. Y., 630.

It is claimed, however, on the part of the relator that the board of health was not properly organized when it made its determination, and that, therefore, the determination was void. Under the act of 1881, above cited, there was but one supervisor for the city of Yonkers, and “the supervisor ” was made a member of the board of health. By an amendment of the charter in 1892 (chapter 54 of the laws of that year), the city was divided into five wards and one supervisor was required to be elected in each of the wards. The claim of the relator is that all these supervisors became members of the board of health, and that, therefore, after the act of 1892 the board of health was composed of ten members instead of six, and that as only four members, to wit, the mayor, the president of the board of police, the health officer and the president of the common council took part in the proceedings under review, the board was not properly constituted; that, in fact, therefore, the board as such did not act; that there was no determination, and that the action taken was a nullity. ^ If this claim be well founded, then there was no judicial determination for review by certiorari. People ex rel., etc. v. Parker, 117 N. Y., 86; 26 St. Rep., 698.

But assuming that the question as to the constitution oí the board of health is before us, we think it was properly constituted. By the act of 1892 the office of “ the supervisor ” disappeared and, therefore, there was no longer any such officer as “ the supervisor.” The five supervisors elected in the wards were not made members of the board, and the board was thereafter composed of but five members, and the four who made the determination in the absence of the fifth were competent to act as the board.

Our conclusion, therefore, is that the judgment of the general term should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    The Board of Health of the City of Yonkers, Resp’t., v. John Copcutt, Appl’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Board of health—Establishment of sanitary code.
    Where the original draft of the sanitary code of a city cannot be produced, the proofs of publication thereof and a printed copy, both purporting to be signed by the secretary of the board of health, authorize a finding that the board established said code, and that'it was signed by its secretary, adopted, approved and published.
    3. Same—Yonkers.
    The city of Yonkers is not exempted from the operation of chap. 370, Laws 1885, except so far as it relates to the composition of the board of health, and under said act and the charter of the city the board of health has power to pass a general ordinance against the maintenance of public nuisances, and to maintain an action for a penalty for a violation thereof.
    3. Same—Nuisance.
    The court found, on sufficient evidence, that the waters of the pond created by defendant’s dam are stagnant and filled with decomposed and decomposing animal and vegetable matters; that when the water is drawn down and the sides exposed there arise noxious and poisonous exhalations which are dangerous to life and health, and that said pond and its contents constitute a public nuisance. Held, no error.
    4. Same.
    Defendant’s dam had been condemned as a nuisance and partially torn down, but he threatened to rebuild it, and had placed obstructions in the stream for that purpose, and refused to remove them. Held, that such refusal would justify the maintenance of an action for the penalty.
    5. Same—Orders—Hearing.
    The fact that an ordinance was passed without notice of hearing or opportunity to the owner to be heard does not invalidate it, as a hearing is not necessary; the person proceeded against is not precluded by the order made, but may try the question of nuisance or not in the courts.
    6. Same—Injunction.
    Where it appears that the owner contributed in some measure to the pollution of the waters of the pond and refused for over a year to clean it, and upon the dam being torn down by order of the board of health, threatened to rebuild it, an injunction to prevent such rebuilding is properly granted.

      Appeal from judgment of the supreme court, general term, second department, affirming in part a judgment in favor of plaintiff.

      Calvin Frost, for app’lt; James M. Hunt, for resp’t.

      Affirming 54 St. Rep., 311.

   Finch, J.

The first cause of action against the defendant, stated in the complaint of the board of health, was for a violation of the sanitary code of the city of Yonkers, adopted in 1881, and the recovery of a penalty imposed for such violation.

The defendant, seeking a reversal of the judgment rendered against him for such penalty, contends that the sanitary code was not proved because not shown to have been subscribed by the secretary of the board of health. The original draft of the code which was before the board for adoption, and upon which that body acted, was not produced and could. not be produced, because it was destroyed by the printers in the process of publication ; but the plaintiff did produce the proofs of such publication filed in the office of the board, and those proofs contain a complete copy of the code as adopted and published. That copy purports to be signed by the secretary of the board, and was attested by such signature as published. There was no proof that the original was not signed, but it was shown that the sanitary code as published was correctly printed in a volume produced, at the end of which appeared the words: “ Adopted by the board of health, September 5, 1881. W. H. Doty, secretary.” On this state of facts the court found that “ the plaintiff, on the 5th day of September, 1881, established its sanitary code, the same being duly subscribed by the secretary of said board, adopted, approved and published.” That finding, having sufficient evidence in the record to support it, is a finding of fact which we may not on this appeal convert into a question of law.

The appellant further suggests the inquiry whether the board ■of health can maintain an action for the penalty upon a general enactment against all public nuisances, such as is § 82 of the code. That section provides that “ whatever is dangerous to human life or to health * * * and whatever renders the air or food and water or drink unwholesome shall be deemed to be nuisances and to be illegal, and every person having aided in creating or contributing to the same, or who may support, continue or retain any of them shall be deemed guilty of a violation of this section.” The manner of enforcing the provision is dictated by § 97, which imposes a penalty for its violation, which may be recovered with ■costs “in an action brought by said board of health in its name in any court of competent jurisdiction.” The charter of the city, chap. 184, Laws of 1881, title 9, § 2, authorized the board to enact a sanitary code', and impose penalties for its violation, and to maintain actions for the recovery of such penalties. In addition the charter gave to the board of health of the city “ all the powers now or hereafter conferred upon boards of health in cities by any general law.” Such a general law was enacted afterwards (Laws of 1885, chap. 270), which authorized the imposition of penalties for the violation of or non-compliance with not only the orders of such a board, but also its regulations, and to maintain actions to collect such penalties. The learned counsel for the appellant maintains that the city of Yonkers was excepted from the operation of the general law. That is true so far as it relates to the composition of the board and appointment of its members (§ 1), but is not true as to the general powers conferred upon the boards of health when organized. ■ (§ 3.) At that point the excepted cities are named, but Yonkers is not one of them. There was ample authority, therefore, for the maintenance of the action.

There is nothing in the defendant’s plea of the statute of limitations. He maintained the nuisance and neglected and refused to abate it down to the time of the destruction of his dam, and this action was commenced a few days later. It is said, however, that the complaint does not allege, and the proof does not show, that the dam and pond in and of themselves had become a nuisance, and so their maintenance down to the time of the commencement of the action does not answer the plea of the statute. The complaint alleges that the defendant maintained the dam and pond in such a condition as to be dangerous to human health, and to render the air and water unwholesome, and continues to support, and retain the same in that condition. The trial judge found that the waters of the pond are stagnant and filled with decomposed and decomposing animal and vegetable matters; that when the waters are drawn down and the sides and bed of the pond are left exposed and bare, there arise noxious and poisonous exhalations which taint the air and are dangerous to life and health; and that “the-said pond with its contents so retained by the said dam is and constitutes a public nuisance detrimental to the public health.” There is evidence to support this finding, even irrespective of the filth contributed by others than the defendant; proof that the stagnant water, and, when drawn off, the exposure of the sides and bed of the stream, tend to produce vile and malarious exhalations, and' these are intensified by the accumulation of filth which no police vigilance could keep out of the stream, and which the dams retained and held. I deem it impossible upon the proof and the findings to exempt the maintenance of the pond and dam from the charge of being a public nuisance.

We come now to the third cause of action, the second having been defeated by the general term, and the plaintiff having submitted to the decision by omitting -to appeal from it. That third cause of action was to recover a penalty for a violation of the ordinance of the board of health, passed December 7, 1892. That ordinance recited that the dam had been partially torn down pursuant to a warrant issued by the board, and that the defendant, threatened and was about to rebuild the dam and re-create the-pond, which, if restored, would be a public nuisance; and then ordered him to refrain from building the dam and re-creating the-pond, and directed him to remove all obstructions to the flow of the water. We have already said that the findings of the court declared the dam and the pond as existing facts to be a public nuisance, and that obstructions at that point could not exist without endangering the public health. As such the dam had been partially torn down, and the defendant had not only threatened to rebuild, but had actually commenced the work by putting obstructions in the stream interfering with the free flow of the water. He was, therefore, engaged in the very act of creating; a nuisance, and was ordered to desist. That order he disobeyed, and now seeks to justify his disobedience, and avert the two remedies of a fine and an injunction, upon several grounds.

The first is quite narrow and technical. It is in substance that the board had no power to declare in advance that a future construction would be a nuisance. It is apparent that the facts do-not raise that question by itself so far as the action for the penalty is concerned, because the board had many times declared a dam and pond in the river at that point to be a nuisance, and the court has so found as a fact So far as defendant had put obstructions' in the stream he had created a nuisance, less in degree than the old dam, but of the same character and effect. He was ordered to remove such obstructions, and refused, and that fact alone will sustain the judgment for the penalty. But beyond that, I think the board had power to prevent a reconstruction and a reinstatement of what it had declared to be, and what the court has found in fact was, a public nuisance. The question, however, may conveniently be reserved until we reach the argument made against the injunction which was granted.

The appellant also objects that the ordinance which was directed against him specially and affected his property rights was invalid, bdcause passed without notice to him and an opportunity to be heard. In another phase of this case, coming to us on certiorari for a review of the action of the board, we have decided that a hearing was not necessary, because the question of nuisance or not lies at the foundation of the jurisdiction, and the party proceeded against may always try that vital and decisive question in the courts, and is not foreclosed by the order made. This case-well illustrates the doctrine in actual operation. The plaintiff' did not rely on its orders or ordinances alone, or the presumptions which they raised, but proceeded to allege and prove that the dam and pond were a public nuisance. The defendant took issue upon that, and the battle was fought out over that question. The defendant has had his day in court, ample and abundant chance to be heard, better and more complete than any hearing which the board could give. But we have already decided the question adversely to the defendant’s contention, and nothing needs to be added to the discussion which it has received.

We come now to the final point of the appellant’s argument, which is a contention that no injunction should have been granted, and that the one allowed should be set aside.

In a large class of cases the writ of injunction is a preventive remedy. It issues often and promptly where the defendant threatens or is about to do some act of such a character that no legal action can furnish adequate redress. It implies the danger of a future injury, and very frequently has been used to check and prevent an apprehended nuisance. Even where a statute provided specially for the removal of a nuisance, the People were not compelled to await its completion, but were awarded an injunction to restrain the further erection, and compel the removal so far as erected. People v. Vanderbilt, 24 How. Pr., 301; 26 N. Y., 287. Beyond the general jurisdiction, we have in this case theffact that both by the charter of the city of Yonkers and the provisions of the General Health Act, the boards may avail themselves of the remedy by injunction. .In that fact is necessarily involved the power of such boards .to prevent the erection and creation of a nuisance, and so their right to determine what will ,be a nuisance and interfere to stop it. Certainly in a matter so ■serious as that of the public health they ought not to wait until some citizen is sick or dead before they prevent or abate the nuisance causing the injurious result.

The appellant, however, further argues that this is not a case in which it is reasonable or just to grant the remedy, and his contention is, in substance, that when he built the dam the stream was clean and the water pure ; that he never did anything to pollute it or máke it dangerous to health ; that it came into that condition from the acts of others, made possible by the negligence of the city authorities ; and that his property is destroyed and he is forbidden to restore it without any fault of his own. But the court below has found as a fact that he did participate in creating the actual condition of things which menaced the public health, ■and there is evidence tending to show that he erected and maintained closets which emptied into the stream. That finding furnishes one answer to his plea of absolute innocence. But this dam and pond were his. He had a right and it was his duty to ■keep them clean and safe, or dispense with them entirely if he could not. His dami was a pocket to catch and hold all filth ■thrown in above. He well knew it and could not sit still and -suffer his own property to become an intolerable nuisance and say it was not his fault. When pestilence is forcing a way into our harbors, and danger and death approach through all rot and filth, it is the condition with which boards of health must grapple, and the condition which must be abated or removed, without regard to the question who caused,the trouble. Thus in Wenzlick v. McCotter, 87 N. Y., 127, it was said by Danforth, J., as to the position of an owner of land upon which a third party should wrongfully enter and erect a nuisance, that “ in such a case the owner would not be liable either for the erection of the nuisance or its continuance until he was requested to abate it. * * * As if the defendant simply suffer a dam, erected upon his land by a former owner, to remain, without being used by him, it is no continuance of the nuisance unless he first be requested to remove it.” Yhat is to say, however innocent he may be in creating the condition or maintaining it, he is bound to abate it upon the proper official request, and, if he refuses, becomes at once responsible for the existing condition as continuing a nuisance which it was his right and his duty to remove and suppress. Again and again the defendant was notified by the board of health that his dam and pond had become a public nuisance and endangered the health of the city.

The trial judge finds that formal notice of the fact was given to the owner in September, 1891, accompanied by an order to abate the evil. In December of that year he was again warned that if the pond was not cleaned before February of 1892, the board would cause the nuisance to be abated. It was not till October of that year that the board ordered the destruction of the dam, and not until December that the order was executed. For more than a year he refused to make, his own property clean and safe, and for the sake of his private interest neglected his public duty, and left the city’s health in peril. And now he complains that •the board should have cleaned his pond and not destroyed the dam. He had the opportunity to clean it himself, but chose to refuse and stand defiantly in the maintenance of his basin of filth, I think there was full jurisdiction to grant the injunction, ample occasion for it and no error in awarding the writ. In City of Rochester v. Simpson, 57 Hun, 36; 32 St. Rep., 732, to which we are referred, there was no proof that the pond contained water which was stagnant or impure, or that the existence of the pond was in any manner detrimental to the public health. In Babcock v. City of Buffalo, 56 N. Y., 268, a slip in the canal was ordered to be filled up because it had become foul, and this court held that, as it could have been dredged and cleaned at moderate expense, the filling should stop. Here the dam has been torn down, whether rightfully or not is a question not before us. If that was a wrongful act, the defendant has his remedy. The Babcock case may have some bearing upon the inquiry whether the mode of abating the nuisance here involved was reasonable or proper, but has very little bearing upon the question whether the defendant should be permitted to rebuild his dam and restore a nuisance already abated. The proof here is that all these dams and ponds in the heart of the city are an inevitable menace to the public health and cannot safely be allowed to exist.

The judgment should be affirmed, with costs.

All concur.


author: Maynard, J.

text:
    Melvin L. Greenfield, Resp’t, v. George W. Getman et al., Ex’rs., App’lts.

      (Court of Appeals,

      Filed November 28, 1893.)

      Í. Contract—Not to practice medicine.
    Defendant in consideration of §500 agreed with plaintiff that he would not practice medicine or surgery in D. or within a radius of five miles under liquidated damages of §1,500. This was defined by a provision in the agreement to mean "to prescribe for, to compound medicine for, advise or visit any person sick or disabled, or to perform any act or service which the laws of the state of New York at present require to be done by a person legally qualified to practice medicine or surgery.” Defendant afterwards entered into the business of selling drugs, books, stationery, law blanks, wall paper, pictures and picture frames and artists’ materials, Plaintiff purchased drugs at the store and made no objection to the business. The defendant at one time attended as counsel with two other physicians upon a person in extremis for which he made no charge, but was paid and accepted a fee, and in other cases prescribed and furnished medicines amounting to ten dollars at the store, but made no charge for the medical 'advice. Reid, that defendant was not restrained-by his covenant from engaging in the business of a druggist; that there was nó evidence-that he made use of that business for the fraudulent purpose of escaping liability for a violation of his covenant, and plaintiff suffered no damage on. that account.
    2. Same.
    The definition of the acts in the agreement did not enlarge the meaning of the term ‘ ‘ practice medicine or surgery” but was regarded by the parties as a specification of the things which, if systematically, or habitually, of frequently done, would be a breach of the agreement.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      P. C. J. De Angelis, for app’lts; R. J. Fisk, for resp’t.
   Maynard, J.

The plaintiff has recovered in this action for an alleged breach of a covenant with defendants’ testator not to practice medicine or surgery within a prescribed territory for a period of five years. For convenient description-the defendants’ testator will be referred to as the defendant. The contracting parties were physicians and surgeons at Durhamville, Oneida county. The defendant had been practicing medicine at that place for ten or twelve years, and the plaintiff had but recently moved there, when, on April 11, 1884, they entered into an agreement by the terms of which they were to practice medicine and surgery as co-partners for the term of one year, at the expiration of which the contract provided that the defendant would execute to the plaintiff a valid written agreement and guarantee that thereafter he would not practice medicine or surgery in Durhamville, or within a radius of five miles thereof, or if he did he would forfeit and pay to the plaintiff a sum double the consideration named in the agreement with an amount double the fees usually charged in such cases. The special consideration of the agreement so to be executed was the sum of $500 then paid by the plaintiff; and it was stipulated that in case of failure to execute such agreement the defendant should forfeit and pay to the plaintiff the sum of $1,500: as liquidated damages agreed on by the parties. At the expiration of the year the further agreement was made by the defendant in which he covenanted that he would not practice medicine and surgery for five years either in'the town of Verona, Oneida county, or the town of Lenox, Madison county, in which towns the village of Durhamville is situated. The agreement then contained the following provision: “ Second. It is mutually agreed by and between the parties hereto that to practice medicine and surgery as above mentioned shall be construed to mean to prescribe for, to compound medicine for, advise or visit any person sick or disabled, or to perform any act or service which the laws of the state of New York at present require to be done by a person legally qualified to practice medicine and surgery.”

The agreement further provided that owing to the impossibility of obtaining sufficient evidence on which to base the measure of damages for a violation of it, the defendant should forfeit and pay to the plaintiff the sum of $1,500, which was not to be regarded as a penalty for such violation, but as a measure of liquidated damages agreed on by the parties.

After the execution of this agreement the defendant remained at Durhamville for nearly a year, but did not practice his profession, and no claim is made for any breach of the agreement during that time. He then removed to the village of Oneida in the town of Lenox, and two miles distant from Durhamville, and entered into partnership there with another in the business of selling drugs, books, stationery, law blanks, wall paper, pictures and picture frames and artists’ materials, in which he was engaged until 1889, when he retired from the business, and died in July ■of that year. The plaintiff purchased drugs at the store, and it is not shown that ho made any objection to the conduct of the business by the defendant After the latter’s death th.e plaintiff presented a claim against his estate to the executors of his will for the sum of $1,500 damages for the beach of the defendant’s ■covenant not to practice medicine and surgery, and upon its rejection brought this action. During the four years and over which intervened between the execution of the agreement and the death of the defendant only nine different acts were proven which it is insisted constituted the breach5complained of and made his estate a debtor to the plaintiff in the sum of ,$1,500. The first of these occurred in April, 1887, when he attended as counsel with two other physicians upon a person in extremis, for which he made no charge, but was paid and accepted a small fee. This was the only professional visit proven. In all the other cases the persons prescribed for came to the drug store and were furnished with medicines suitable for their respective ailments. Some of these medicines were what are known as patented remedies and such as are kept in stock and for sale at all drug stores. No charge was made for medical advice; only the medicines were paid for; and the aggregate of all was less than ten dollars. It is not contended by the plaintiff that his proof is sufficient to establish the fact that the defendant was engaged in the practice of medicine and surgery within the prohibited period or radius according to either the popular or legal signification of these terms, but it is insisted that the parties have, by their agreement, defined what shall constitute such -practice, and that the performance by the defendant of a single act such as is described in the second paragraph of the article above quoted rendered him liable for the full amount of damages recoverable for a breach of its conditions.

Undoubtedly the parties might so stipulate, and they would be bound by their contract and the courts could not refuse to enforce it; but before such a meaning should be given to an agreement of this kind it should appear, upon a fair and reasonable interpretation of its provisions, in the light of the circumstances under which it was made and of the evident intent and object of its execution, that no other inference is justly permissible. While the law, to a certain extent, tolerates contracts in restraint of trade or business when made between vendor and purchaser and will uphold them, they are not treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or business a guaranty against the competition of the former proprietor. When this object is accomplished it will not be presumed that more was intended. Construing this agreement in accordance with its obvious purpose, we think the definition in paragraph two-of the acts which shall be construed to constitute the practice of medicine and surgery did not enlarge the meaning of that term,, but was regarded by the parties as a specification of the things which, if systematically, or habitually, or frequently done, would be a breach of the agreement. If the plaintiff’s contention prevails it would follow that the visitation of a single patient and as an act of charity would render the defendant liable for the full penalty' of the contract. Even the filling of a physician’s prescription would be a breach if this literal and technical construction is to be adopted, for it would be a compounding of medicine for a sick person, and thus within the description of the prohibited acts. It was evidently the purpose of the second paragraph of the agreement to explain and illustrate the meaning of the generic terms employed in the first paragraph and not to subvert or destroy their ordinary signification. Effect should be given to both paragraphs, otherwise the • first was superfluous. A covenant not to do any act described in the second would have been sufficient.

The agreement should also be read in the light of the previous one by which the defendant had bound himself to execute it, and which specifically described the terms of the obligation he was to assume and which supplied the consideration for it. That required a guaranty not to practice medicine and surgery, and nothing more. There was no hint or suggestion of a covenant which would render the defendant liable for an isolated act which would not in law be deemed to constitute the practice of medicine. Unless the language employed in the later agreement imports an irreconcilable variance it will be presumed that the executed covenant was not intended to have a different meaning or a wider scope from that required by the terms of the agreement which compelled its execution.

It was not necessary to wait until the expiration of the five years named in the contract before asserting a claim to the liquidated damages. If the. respondent’s contention is sound the making of a single professional visit, or the giving of medical advice ■ in a single case, constituted a breach of the entire covenant, and rendered the defendant liable for the full sum stipulated. No-more could be recovered if the defendant made daily calls upon the sick, and administered professional treatment to all who applied for relief. Neither reason nor justice favors such a view of the rights of the parties under this contract. The defendant was not restrained by his covenant from engaging in the business of a druggist. At the present day the occupation of a pharmacist and that of a physician are essentially distinct. An agreement not to engage in the one does not preclude the party from engaging in the other so long as the one is not used as a cover for the operations of the other. There is no sufficient evidence in the record to support the conclusion that the defendant made use of his business as a druggist for the fraudulent purpose of escaping liability for a violation of his covenant. The business was conducted in the usual manner, and the plaintiff suffered no-damage on that account.

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

All concur.

      Reversing 47 St. Rep., 934.


author: Follett, J.

text:
    Emery M. Van Tassel, Pl’ff, v. The Greenwich Insurance Co. of the City of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Insurance (fire) — Cancellation of policy.
    Where the original policy provided that it might be renewed “under the original stipulations,” one of which was that a cancellation might be made on five days written notice, the insurer" cannot after issuing a binding slip continuing the insurance, cancel the insurance by a letter declining to renew for the full amount, but offering to renew for a less amount.
    2. Same—Acquiescence in termination.
    Where, however, the assured pays the premium on the lesser amount, and makes proof of loss and brings action for such lesser sum, this will beheld an acquiescence by him of the termination of the original insurance.
    3. Same—Offer to insure—Acceptance.
    An insurer is not bound by an offer to insure unless it is accepted within: a reasonable time. Permitting six days to elapse without accepting such an offer where the parties do business in the same place, where the property is also situated, is an unreasonable delay.
    Motion by defendant for a new trial on exceptions ordered to be heard at general term in the first instance, pursuant to> § 1000 of the Code.
    In consideration of $50, the defendant, by its policy dated January 11, 1889, insured the plaintiff from noon, January 1, 1889, until noon, January 1, 1890, against loss by fire on his building situated on the northeast corner of Thirteenth avenue and West Eleventh street, in the city of New York. Among other provisions, the policy contained the following: “ This policy may by a renewal be continued under the original stipulations, in consideration of premium for the renewed term; provided, that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void. This policy shall be canceled at any time at the request of the insured, or by the company, by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the ’ premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that when this policy is canceled by this company by giving notice it shall retain only theyu-o rata premium.” In consideration of $50 the defendant, by its renewal receipt, dated January 2, 1890, continued the policy in force until noon of January 1¡> 1891. On the first day of January, 1891, Beecher & Benedict, insurance brokers, presented to the defendant the following application :
    “Beecher & Benedict.
    “Hew York,-, 189-,
    “ Insure E. M. Van Tassel.
    “ $10,000 for 12 months
    “On
    “ Building H. E. corner 13th Ave. & W. 11th Street, H. Y. City. “ In Store
    “ Binding this 1st day of January, at noon.
    “ (This memo, to be void on delivery of the policy at the office ■of Beecher & Benedict.)
    “ Company.
    Amount.
    Accepted.
    “ Greenwich.
    10,000.
    “ ¡Renewal.
    “ 559298. not in force.
    Wm. Adams.”
    Afterwards the defendant wrote Beecher & Benedict as follows:
    “ The Greenwich Insurance Company, 161 Broadway.
    “ Hew York, Jan. 7, 1891.
    “Beecher & Benedict, 145 Broadway—Gentlemen: Your application for renewal of insurance for E. M. Van Tassel at n. e. cor. 13th Ave. and West 11th, is declined for $10,000; would renew for $5,000, if wanted. You will therefore consider that the risk is not held binding by this company for more than. $5,000.
    “ Very truly, yours,
    M. A. Stone, Secretary.”

    During the night of January 13, 1891, the building was destroyed by fire, and on the 16th of the same month Beecher & Benedict gave the defendant written notice of the loss, claiming that it was liable on a contract of insurance for $5,000, and on the 31st of that month they offered to pay the premium on that sum for one year, at the rate of seventy-five cents per annum, amounting to $37.50, less twenty-five per cent, their commission, which the defendant refused to receive. On the 20th of February, 1891, the plaintiff served the defendant with proofs of loss, claiming that it was liable on "a contract insuring the property for $5,000, which proofs of loss the defendant returned on the next day. Ho policy or renewal receipt was ever delivered by the defendant to Beecher & Benedict or to the plaintiff. This action was brought to recover $5,000, with the interest thereon. ' The following allegation is contained in the complaint: “ (2) On and before the first day of January, 1891, the plaintiff applied to the defendant for insurance against loss on the building and property situated on the notheast corner of Thirteenth avenue and West Eleventh street, in the city of Hew York,,and the defendant on said day agreed to and did become insurers of said property for twelve months from said first day of January, 1891, for the sum of five thousand dollars, and the defendant further agreed that it would execute and deliver to plaintiff a policy of insurance covering said property in the usual form of policies of insurance issued by it, the defendant, for the sum of five thousand.” The defendant denied that it insured the plaintiff’s property for $5,000, as alleged, and also denied that it agreed to execute and deliver to the plaintiff a policy of insurance on the property for $5,000. At the close of the plaintiff’s evidence the defendant moved that the complaint be dismissed, which was denied, and an exception was taken. The plaintiff thereupon moved that a verdict be directed in his favor for $5,591.86, the amount of his claim, which was granted and the defendant excepted. The defendant’s exceptions were ordered to be heard at the general term in the first instance.

      Henry G. Ward, for app’lt; C. N. Bouvee, for resp’t.
   Follett, J.

There is a distinction between a contract of insurance and a contract to insure. Union Mut. Ins. Co. v. Commercial Mut. Marine Ins. Co., 2 Curt., 524; aff’d 19 How., 318; Franklin Ins. Co. v. Colt, 20 Wall., 560 ; Putnam v. Home Ins. Co., 123 Mass., 324. The complaint was evidently drafted with this difference in mind, and with the view of enabling the plaintiff to recover on whichever kind of contract he should be able to establish, Was there a contract of insurance outstanding January 13, 1891, the date of the fire? The policy provides: “This policy may, by a renewal, be continued under the original stipulations in consideration of premium for the renewed term.” The policy had been once renewed for the year 1890 at the same rate of premium charged for the original policy, and the defendant understood from the application filed that the plaintiff desired not a new policy, but a renewal of the one outstanding for the year 1891. This is apparent from defendant’s letter of January 7, 1891, in which it is said: “ Your letter for renewal of insurance for E. M. Van Tassel,” etc. The binding slip of January 1, 1891, continued the original policy for $10,000 in force, subject •to “ the original stipulation ■” therein contained. It was provided in the policy that' any renewal of it should be subject to its provisions, which is the legal effect of a “ binding slip.” Lipman v. Niagara Fire Ins. Co., 121N. Y., 454 ; 31 St. Rep., 286; Karelsen v. Sun Fire Office, 122 N. Y., 545; 34 St. Rep., 135; May Ins. (3d ed.), §§ 44-59, By the binding slip the defendant contracted to continue its policy in force for $10,000 during the year 1891. This slip bound the company as effectually as the usual renewal receipt issued by insurers, and there was no way in which the defendant could, without the plaintiff’s assent, terminate its contract, except in the mode provided in the policy. This it failed to do. The letter of January 7th was not effectual as a notice of cancellation, and at most it simply informed the insured that, unless he consented to accept a policy for $5,000 and surrender the contract which he then held, the insurance would be canceled, To give this letter greater effect would be permitting the defendant to put an end to its contract in a way not provided for. The letter amounted only to a proposition by the defendant to-the plaintiff to consent to a reduction of the amount insured. He had the right to accept the proposal or to stand by the contract then existing. He was not bound to take further action in the matter. Until the polic3r was canceled in accordance with its-provision it was in force, and the plaintiff was liable for the premium earned while the risk was covered. Had the plaintiff stood on'this contract, it is difficult to see how a recovery for the full amount insured by it could have been defeated. But the-difficulty with the plaintiff’s case is that his conduct shows-that he elected to consider the original policy at an end. This intention was manifested (1) by claiming that the defendant-was liable for $5,000 when he gave notice of loss; (2) by tendering the premium on an insurance for $5,000; (3) by filing proofs of loss for $5,000; (4) by bringing this action for the recovery of $5,000. ‘ This conduct requires us to hold that the-plaintiff acquiesced in the termination of the contract of insurance for $10,000, and it follows that there was no outstanding-contract of insurance at the date of the fire, unless the sentence in the defendant's letter of January 7th can be construed to be such. The sentence is: “You will, therefore, consider that the-risk is not held binding by this company for more than $5,000.” A contract cannot be made without a meeting of the minds of the parties, and an agreement on its terms. The defendant could not impose on the plaintiff a new contract of insurance for $5,000, and at a higher rate of premium, without his assent. It is clear, we think, that the company could not have collected this premium on this sum from the plaintiff without his acceptance of the new contract tendered. He did not manifest his acceptance of the new contract offered by the defendant until after the fire. This was too late, provided a reasonable time had elapsed in which he should have signified his assent. An insurer is not bound by an offer to insure property unless it is accepted, and it ’ cannot be maintained that an owner can delay his' acceptance for six days under the circumstances disclosed by this case, and until the property is destroyed by fire, and then, by an acceptance, bind the company. The plaintiff, his agents, and the defendant were engaged in business in the same city, and the property to be insured was situated in that chy. We think that permitting six days to elapse without accepting the defendant’s proposition was an unreasonable delay. When the facts are undisputed, the question what is a reasonable time is one of law for the court. Wiggins v. Burkham, 10 Wall., 129-132; May Ins., 3d ed., § 368; Thomp. Trials, § 1530 et seg. There was no contract of insurance outstanding when the building was burned. Was there a binding contract to insure the property for $5,000 when the fire occurred? As before stated, an insurance company is not bound by its offer to insure unless it is accepted, which, as we have held, was not done in this ease within a reasonable time. No binding contract to insure existed when the loss occurred. The defendant’s motion for a new trial must be granted, with costs to it to abide the event.

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


author: Per Curiam.

text:
    Maurice Jacobs, Resp’t, v. The Water Overflow Preventive Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Libel—Bill of particulars.
    In an action for libel, where special damages are claimed on the ground that many persons, firms and corporations were intimidated by reason of the libelous publication and canceled contracts made with plaintiff, the defendant is entitled to a hill of particulars stating the names and addresses of such persons, firms and corporations.
    Appeal from order denying motion to compel plaintiff to furnish a bill of particulars.

      Lehmaier & Williams (James S. Lehmaier, of counsel), for app’lt; Lucius McAdam, for resp’t.
   Per Curiam.

This is an action for the recovery of damages for the publication of matter alleged to be defamatory. It is alleged in the complaint that by reason of the publication the plaintiff has been greatly injured in his reputation and business. The following is the allegation of special damages sought to be recovered:

“ That by reason of the sending of said circulars many persons, firms and corporations were intimidated, and canceled contracts already made with him, said plaintiff, and declined and refused to enter into contracts with him for the lease or sale to them of said patent or invention, whereby this plaintiff was put to serious pecuniary loss and injury, to his damage ten thousand dollars.”

It has been several times held that when special damages are sought to be recovered the particulars relating to those damages must be given. N. Y. Infant Asylum v. Roosevelt, 35 Hun, 501; Dwight v. Germania Life Ins. Co., 84 N. Y., 493; Kraft v. Dingee, 38 Hun, 345 ; Childs v. Tuttle, 48 id., 228; 17 St. Rep., 943 ; Peabody v. Cortada, 45 id., 834. The plaintiff should state the names and addresses of the persons, firms and corporations who were intimidated and canceled contracts entered into with him, and who refused to contract with him, by reason of the publication set out in the complaint. The order should be reversed, and the motion granted in accordance with this opinion, with ten dollars costs and disbursements of appeal, and ten dollars costs of motion.

Van Brunt, P. J., Follett and Parker, JJ., concur.


author: Parker, J.

text:
    Dora Dauscha, App’lt, v. John L. Brower et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Appeal — Questions which mat be raised.
    Where there was evidence in an action against a sheriff for an unlawful seizure of goods sufficient to warrant a submission of the question of ownership to the jury, but no request to submit that question is made, a party cannot raise the objection on appeal that the court committed an error in failing to do so.
    (Follett, J., dissents.)
    Appeal from a judgment for $139.71 costs in favor of defendants against the plaintiff, rendered on a verdict of a jury, and from an order denying plaintiff’s motion to set aside the verdict, and for a new trial upon the minutes of such trial and the exceptions in the case.

      Henry F. Lippold (John Fennel, of counsel), for app’lt; Charles De Hart Brower, for resp’ts.
   Parker, J.

August 6, 1889, Fred Buehring executed and delivered to the plaintiff a bill of sale of the personal .property which is the subject of this controversy. It purported to assign “ all the property described in the annexed schedule, and all my rights, title, and interest therein and thereto, as also the good will of and to the American Lithographer & Printer, and the directory of the lithographic and allied directories, etc., now being published, issued and circulated by me under the name of the Lithographic Publishing Company.” Plaintiff entered into possession. Subsequently a creditor of the Lithographic Publishing Company caused an attachment to be levied upon the property described in the bill of sale, claiming it to be the property of its debtor. Thereupon this action was commenced against the sheriff, and has been continued against his indemnitors, who have been substituted as defendants in his stead.

On the trial the defendant proved the incorporation of the Lithographic Publishing Company under the laws of the state of Illinois, and Buehring testified that the property in dispute belonged to that corporation at the time of the execution of the bill of sale. While no oral testimony was presented contradicting Buehring in such respect, there was written evidence, for the creation of which he was responsible, which tended to contradict him; and, after examining and considering all the evidence in the case, the conclusion is reached that it could properly have been submitted to the jury to say whether Buehring or the lithographic company was the owner, with directions to render a verdict in favor of plaintiff or defendant as they should find upon that question. But the case does not appear to have been tried by the plaintiff upon that theory, nor does it appear that his counsel suggested to the court that there were facts and circumstances proven which so far contradicted the testimony of Buehring as to present a question for the jury as to the ownership of the chattels. The counsel for the defendant, on his motion to dismiss the complaint, assumed there was no dispute as to the ownership of the property, and his statement does not seem to have been controverted. Had the plaintiff asked leave to ¿o to the jury on the question of fact 'which we have suggested, a denial of his motion would have been error. If the request had been made, it would doubtless have been granted. Instead counsel said: “ I ask leave to go to the jury on the question of fact as to whether this bill of sale was given by Mr. Buehring individually or in behalf of the corporation.” There was no dispute whatever in that respect., The writing tells the whole story, and the only questions arising from it are for the court. His request continued : “ I also ask for leave to go to the jury on all the issues in the case, and on the issue of good faith of our purchase from Buehring individually or as president of the company. ” The good faith of the plaintiff was not questioned. There was an issue which could have been presented, as we have already pointed out, but it was not ift the mind of the counsel, and therefore not suggested. How, having failed to apprise the trial court of it when the situation called upon him to do so, he cannot insist that the court committed an error. It is a settled rule that on review cases will be considered on the theory on which they were tried. The court may err in its charge in civil cases, but a reversal will not be had in the absence of an exception. Why ? Because the exception would have pointed out the error, and thus the court would have had an opportunity to correct it. So an exception taken to an adverse ruling, where the question was objectionable, and a specific ground of objection, but not the proper one, was assigned, will not avail the objector, for the court is only -chargeable with the duty of rightly determining the points presented. Similar illustrations, all leading to the same result, can be multiplied. Hone in opposition to that general rule can be cited. Oases may be found which have been reviewed where there was only a general request to go to the jury. But they will be found to be cases in which either the point was not taken that the issuable fact was not presented to the mind of the court, or the general request stood alone, and was thus deemed to have raised the presumption that the specific question was presented, a presumption which cannot stand against overwhelming evidence to the contrary. Here it does not stand alone. It forms part of a sentence in which is presented a request to go to the jury on a specific question, and is sandwiched between two specific requests. Clearly it was made use of because a convenient formula to be employed in the absence of ideas. From the beginning to the end of the record there is nothing to suggest that counsel even suspected the issue which we have asserted. Certainly the evidence is overwhelming that he did not suggest it, and it overbears the presumption, if any arose from the general request made, to the effect that the point now relied upon was before the court The judgment should be affirmed, with costs.

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


author: Van Brunt, P. J.

text:
    William H. Flandrow, Pl’ff, v. Henry B. Hammond, Def't.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Contract—Failure of consideration.
    By an agreement in writing, reciting that defendant had procured a judgment against a hank, in an action in which an attachment had heen levied on a judgment recovered by the hank against a third party, defendant agreed to issue execution, direct sale and hid in said judgment, at plaintiffs risk, for the whole amount of his judgment and transfer to plaintiff all the interest which he should acquire in the hank’s judgment on said sale on payment of the amount of the bid. In an action to recover the consideration paid by plaintiff there was evidence that the levy of the attachment was invalid, but there was no evidence that this was the only attempt to levy or that other proceedings may not have been taken by which a valid levy was acquired. Held, that the evidence was insufficient to show that defendant’s representations upon which the contract was founded were untrue, and that plaintiff was not entitled to recover.
    Motion for a new trial on exceptions ordered heard in the first instance at general term, after dismissal of complaint.

      A. Kling, for pl’ff; N. S. Spencer,for def’t.
   Van Brunt, P. J.

In May, 1871, the plaintiff and defendant entered into the following agreement:

“ We, the undersigned, Henry B. Hammond and W. H. Fland" row, do agree as follows : Whereas, said Hammond recovered a judgment against the Marine Bank of Chicago, in the supreme court, on November 2, 1870, for $1,282.62, in which action an attachment was issued and levied by the sheriff of New York county upon a judgment recovered by said Marine Bank of Chicago against Tunis Yan Brunt, on March 1, 1867, for $6,858.-12, which last named judgment said Flandrow is desirous of legally acquiring: Now, the said Hammond,,i'n consideration of $260 to him paid by said Flandrow to cover sheriffs’ fees and other charges, consequent upon the following promises, and further covenants following, doth hereby agree to issue execution forthwith upon the judgment recovered by him against said Marine Bank, and direct the sale by said sheriff thereunder of said judgment levied under said attachment within ten days, or as soon thereafter as said sheriff can legally sell the same; and further, that he. said Hammond, will, at said Flandrow’s risk, bid in said judgment upon said sale for the whole amount of his own judgment, with interest, and will immediately thereafter transfer all the interest which he shall acquire in said judgment under said sheriff’s sale to said Flandrow, on the payment to him by said Flandrow of the further sum of one thousand three hundred and seventy-two 36-100 dollars forthwith. Provided, however, that in case the sheriff shall receive and accept a higher bid at said sale than that of said Hammond, then this agreement shall be void, and said Hammond shall at once repay to said Flandrow said sum of two hundred and sixty dollars; and further provided that, in case said Flandrow shall fail to carry out the provisions of this contract, he shall forfeit to, and said Hammond shall retain, said sum of two hundred and sixty dollars as part of this damages. Witness our hands and seals, this 5th day of May, 1871.
"Signed]' “ Henry B. Hammond, [L. S.]
^Signed] “ W. H. Flandrow, [L. S.]”

Subsequently, upon the application of said Hammond, the court directed the sheriff to sell at public auction, under execution to him issued, the said judgment so levied upon in said warrant of attachment; and on .the 30th of May, 1871, the sheriff sold to said Hammond, for the sum of $1,372.36, the said judgment, and the plaintiff in this action paid to said Hammond said sum of $1,372.36 and $260, making in all $1,632.36. The plaintiff further introduced in evidence the proceedings upon the accounting of the estate of Tunis Van Brunt, the judgment debtor in the action ■of the Marine Bank of Chicago against him, upon which judgment, it was claimed, the attachment in the action of Hammond •against the Marine Bank had been levied. The court dismissed the complaint, which ruling was duly excepted to, and the exception ordered to be heard in the first instance at the general term.

We are of opinion that, under the agreement entered into between the parties to this action which has been heretofore referred to, there was a representation upon the part of the defendant that he had a valid judgment against the Marine Bank of Chicago, and also a valid attachment which had been levied upon the judgment obtained by the Marine Bank of Chicago against Tunis Van Brunt, and that the whole of the agreement rested upon these ■representations; and if it had appeared in the action that no such levy had been made, but that the attempt to levy had been so informal that the defendant Hammond acquired no lien upon said judgment, there was a failure of consideration for the payments made under the agreement, and the plaintiff ought to have been allowed to recover the amount of such payment. But we have ■examined the record in vain to find any evidence showing the invalidity of this levy, or that thgse representations, were untrue. The record, it is true, contained an affidavit made by the sheriff’s •deputy in another court and another proceeding, wherein he does -state the manner of making a levy, and which is not in accordance with the mode pointed out by the decision of the court of appeals, but there is nothing tending to show that this was the only levy attempted to be made, or that other proceedings may not have been taken by which a valid levy was acquired. The plaintiff, to succeed in this action, was required to show that the representations contained in the agreement were untrue, and in respect to the existence of the levy he does not seem to have supported his allegation with proof which necessarily led to the conclusion that no valid levy had ever been made; and it seems, therefore, that there was a deficiency in the establishment of the facts necessary to constitute a valid cause of action. It would seem from a reference to certain cases which have been decided in the court of appeals, involving the validity of this levy, that probably such was the fact; but it has not been proven in the case at bar. The ex•ceptions, therefore, must be overruled, and judgment ordered for the defendant upon the dismissal of the complaint, with costs of this application and in the court below. k

Follett and Parker, JJ., concur.