text:
    Benjamin B. Conable, Resp’t, v. Edgar K. Smith, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Bills and Notes—Alteration—Estoppel.
    In an action against the endorsers of a note, the defense was that it had been altered by inserting a provision for the payment of interest. It appeared that the maker became insolvent and his assignee in procuring a compromise obtained defendants’ consent to the maker’s release from liability on the note, on payment of twenty-five per cent, thereon, and they executed an instrument to that effect, setting out a copy of the note as it now appears and covenanted that such release should not affect their liability. It was admitted that plaintiS was the owner of, the note in good faith. The court submitted to the jury the questions whether there was an alteration, and if so, whether it was ratified or objection waived by defendants. Held, that this was quite as much as defendants were entitled to ask, and that the verdict in plaintiff’s favor was conclusively supported by a finding in his favor on the second question of fact.
    Appeal by the defendant, Smith, from a judgment entered on the verdict of a jury at the Brie circuit.

      L. W. Thayer, for app’lt; Byron Healey, for resp’t.
   Dwight, P. J.

The action was against the two endorsers, the defendant Smith and one Brown, of a promissory note made by one Garretsee and delivered to the plaintiff before due, for value. Two -defenses were set up by the answer, one of a material alteration in the note after its endorsement, the other of usury. The latter ■defense was abandoned on the trial, and the case seems to have been submitted to the jury on two questions of fact. (1) Was there a material alteration in the body of the note after its indorsement by the defendants; (2) if so, was that alteration ratified or objection on account thereof waived by the defendants ; or were the defendants estopped from alleging such alteration as a defense to the plaintiff’s action.

The alleged alteration consisted of the addition of the words and interest after the first day of March next,” at the end of the note. The note was dated February 1, 1871, and was drawn and ■executed by both maker and endorsers about that time, but was not negotiated until about the last of that month when, as the allegation is, the words in question were added.

There was no motion on the part of the defendants for a non-suit nor for the direction of a verdict, so that the defendants are not in position to question the propriety of the submission of either of the questions of fact to the jury. Those questions were not ■separately submitted; so that it cannot be certainly affirmed whether the jury found in favor of the plaintiff upon both or upon which of the questions submitted, but even if it were to be .assumed that the finding was in favor of the, defendants on the question of the alteration of the tíote, we think the verdict in favor of the plaintiff was conclusively supported by a finding in his favor on the second question of fact above stated, viz.: of conduct on the part of the defendants constituting a ratification, a waiver or an estoppel.

The undisputed facts bearing upon this branch of the case are that, within the year after the note was made, Garretsee the maker became bankrupt, and his assignee took measures to procure a compromise with his creditors at the rate of twenty-five cents on the dollar of his indebtedness. Accordingly, application was made to the defendants, as endorsers of the note in question, to consent to his release from liability on that note, on payment by or for him of the agreed percentage of the amount due thereon, and they thereupon executed an instrument in writing, under seal, which set out a copy of the note in the same terms as those in which the note sued upon is set out in the complaint, including the alleged alteration or addition, whereby they gave their consent, in the most formal and explicit terms, to the release and discharge of the maker of the' note from all liability thereon upon the receipt and endorsement by the holder of twenty-five per cent, of the amount due thereon; and covenanted that such release and discharge should not in any manner affect or modify their liability as endorsers for the remaining seventy-five per cent, of such amount due, etc. And thereupon the plaintiff as the owner and holder of the note did accept from the assignee of Garretsee the percentage agreed upon and endorsed the same on the note, and executed a full and formal discharge of the maker from all liability thereupon. Of course this transaction on the part of the defendants constituted a complete ratification or adoption by them of the.contract as represented by the note as it was set out in the instrument executed by them, unless they have in some way overcome the presumption which arose upon their execution of that instrument, that they knew its contents including the terms in which the note was set out therein, and that question seems to have been submitted to the jury. This was quite as much as the defendants were entitled to ask; because, as we suppose, upon the question of estoppel there was no question at all for the jury. The defendants expressly admitted on the trial that the plaintiff was the owner of the note in good faith; that is, without any knowledge or reason to believe that the note did not truly represent the contract both of maker and endorsers.

Such being the case, the defendants, in order to induce the plaintiff to release the maker of the note from liability for seventy-five per cent, of the amount for which it stands, unite in a solemn and formal instrument under their hands and seals, by the terms of which they represent the note endorsed by them to have been in the terms of that in his hands, and consent and request him to release the" maker from liability thereon to the extent mentioned, and declare that such release, if made, shall not in any manner affect their liabilit)r as endorsers thereon. And thereupon, and in reliance thereupon, the plaintiff does release the maker as requested, and surrenders the security of the contract of the latter to the extent of seventy-five per cent, of the note. It is impossible to entertain the proposition that the defendants can escape the effect of this instrument as an estoppel on the ground that they did not know what the instrument contained unless the plaintiff himself is in some way responsible for their ignorance, and of that there is no pretense.

The defendants execute the instrument of their own accord so' •far as the' plaintiff is concerned, and thereby induce him to relinquish his claim upon the maker of the note in reliance upon their representation that they are liable as its endorsers, and their promise to pay it notwithstanding his release of the maker. The case presents all the features of nn estoppel, and its effect is not dependent upon the question whether the defendants knew what the instrument contained. It was their business to,know, they had every opportunity to know, the plaintiff was not responsible if they did not know, and the effect upon his rights and interests was the same whether they knew or not. We think the plaintiff would have been entitled to the direction of a verdict in his favor if it had been asked for. Certainly upon the finding of the jury that the defendants were not ignorant of the contents of the instrument signed by them the verdict was undoubtedly correct.

There was no motion for a new trial, so that we are not per- • mitted to inquire as to the sufficiency of the evidence upon any question submitted to the jury.

The judgment appealed, from must be affirmed.

Judgment affirmed.

Macomber and Lewis, JJ., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Charles C. Bigelow, App’lt, v. Joseph Garwitz, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Verdict—Contrary to instructions.
    In an action for the contract price for drilling a well there was no dispute as to the amount earned by plaintiff, if the contract was as he alleged, and the court charged that if the contract was as alleged by plaintiff, he was entitled to a verdict for $224.80; whereas, if it was as alleged by defendant, the latter was entitled to a verdict. The jury returned a verdict in favor of plaintiff for $100. Held, that this was in direct contravention of the instructions and manifesily the result of a compromise, and was properly set aside.
    Appeal by the plaintiff from an order at the circuit granting the defendant’s motion, on the minutes, to set aside the verdict of a jury and for a new trial.

      A. C. Calkins, for app’lt; W. H. Tichnor, for resp’t.
   Dwight, P. J.

The order seems to us to have been properly made on grounds other than those assigned by the court below in a, brief memorandum accompanying its decision.

The action was for the contract price of drilling a well and furnishing the necessary casing, piping and other fittings therefor. The complaint alleged an oral contract which fixed the price per foot of the drilling and of each of the necessary fittings, but left the depth to which the well should be sunk to be thereafter •decided and directed by the defendant. It further alleged that when the drilling had proceeded to the depth of 121 feet the defendant decided and directed that it should not go any further, whereupon the plaintiff furnished and put in all the necessary fittings for the well at that depth, and that the price of all the labor and material supplied amounted, at the contract price, to the sum'of $249.80, no part of which had been paid, and which the plaintiff claimed to recover.

The answer averred a contract by which the plaintiff should •drill till he procured a sufficient supply of water for all domestic "purposes and for the stock then on defendant’s farm ; and that when such a supply of water was obtained the plaintiff should be paid at the prices stated in the complaint, but that until such supply "of water was obtained he should receive no pay either for work done or material furnished.

And this was the issue tried and submitted to the jury, with the variation that the plaintiff was permitted to give evidence to the effect that when the work was stopped he agreed that if the supply of water did not prove adequate he would return and drill.the well to a greater depth.

There was no dispute as to the amount earned by the plaintiff if the contract was as he alleged, viz.: $249.80, and there was an undisputed offset due to the defendant of twenty-five dollars for keeping the plaintiff’s horse. Accordingly the court charged the jury that if the contract was as alleged by the plaintiff he was entitled to a verdict for the sum of $224.80, whereas if the contract was as alleged by the defendant the latter was entitled to a verdict. The jury rendered their verdict in favor of the plaintiff for $100. It was properly set aside. It was in direct contravention of the instructions of the court, and was manifestly the Tesult of a compromise. It was a verdict which the jury had no right to render, and which the court might well have set aside on its own motion. Without considering, therefore, the question of supposed error in the admission of evidence as to the terms of the ■contract, we are quite satisfied to affirm the order granting a new trial, on the ground that the verdict was in clear violation of the unquestioned law of the case.

Order granting a new trial affirmed, with costs of this appeal to abide the event of the action.

Macomber and Lewis, JJ., concur.


text:
    Samuel Wilder, Resp’t, v. William O. Stace, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Landlord and tenant—Void lease—Tenancy from year to year.
    Defendant agreed by paroi to rent certain rooms in a building being erected for the term of five years and paid a sum down to bind the bargain, to be applied on the first month’s rent. He had certain improvements made which had been agreed upon and had his name put on the windows, but upon the rooms being completed did not move in or take possession and notified plaintiff that he had no use for them. Held, that the agreement was void under the statute of frauds and imposed no obligation upon either party and that as there was no entry into possession by defendant or any further payment made by him, a tenancy from year to year was not created.
    Appeal from a judgment of the Monroe county court entered on the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the minutes, in an action first tried in the municipal court of Rochester.

      J. M. Dunning, for app’lt; J. P. Bowman, for resp’t.
   Dwight, P. J.

In January, 1888, the plaintiff, being engaged in the erection of the Wilder Building in Rochester, agreed with the defendant, by paroi, to lease to him certain rooms therein, on the first floor (2d story), for a term of five years at a rent of $1,325 a year, to be paid monthly, at the expiration of each month. No time was agreed upon for the commencement of the term for the reason that it was uncertain when the building would be completed, and the rooms ready for occupancy, but it was expected by both parties that the defendant might get in on the first day of April. At the time of the agreement the defendant paid the plaintiff $100 “to bind the bargain,” which was to be applied on the first month’s rent. The defendant desiring a more elaborate finishing of the rooms than was in Mr. Wilder’s plan, it was agreed that he might have an oalc floor put in at his own expense,, and a paneled oak wainscoting of the expense of which, if exceeding $300, the plaintiff should allow one-third to be applied on the rent. The extra work was procured to be done -by the defendant. He also in March had his business sign, “ Stace, Tailor” put on the glass of the windows in gold letters. On the 28th day of April the plaintiff notified the defendant that the rooms would be ready for occupancy on the 1st of May. The defendant never moved, either goods or furniture, into the rooms, never had a key, nor ever occupied or took possession of them in any manner, except as above described. On the 24th of May he informed the plaintiff that he should have no use for the rooms, and the latter removed his name from the windows, and in July rented theyrooms to another person for the remainder of the year, from the first of August, at the rate of $900 a year. This action was bi'ought and a recovery had for a year’s rent after allowing the amounts paid by and to be allowed thereon to the defendant and the amount received by the plaintiff from the other tenant.

Whether the recovery can be sustained manifestly depends upon the question whether, on the facts above stated, a tenancy for one year was created in the defendant. Under the doctrine of Laughran v. Smith, 75 N. Y., 205; and Talamo v. Spitzmiller, 120 id., 37; 30 N. Y. State Rep., 186, it seems very clear that this question must be answered in the negative. Á11 the cases agree that under the statute of frauds a yearly tenancy is not created by force of the void agreement for more than one year. That agreement is void, as the statute declares ; and as was said by Earl, J., in Thomas v. Nelson, 69 N. Y., 118, it is difficult to see how such a contract, declared void by the statute, can be held valid for a single hour. The question did not arise on the record as made in that case, but in Laughran v. Smith, supra, Andrews, J., quoted the dictum with approval, and the court gave it authority; holding that such a lease “ created no estate or interest in land, and imposed no obligation upon either of the parties, ” although “ a tenancy was created by the entry of the lessees under the void agreement;” the question being of the character of that tenancy, .and the conclusion that in such a case the law would imply a new contract between the parties corresponding wi-th the void agreement so far as it was not in conflict with the statute.

In Talamo v. Spitzmiller, supra, the second division of the same court further developed the doctrine of the case last considered, and held that there must be a new contract to create a yearly tenancy, and that there must be evidence go establish it; that the paroi agreement for five years was not effectual to create it, nor did the mere fact that the supposed lessee went into possession have that effect; that he having remained in occupation a part of a year only, something more was required to create a tenancy for a year; that while it was not required that a new contract be made in express terms, there must be something from which a contract may be inferred, something which tends to show that it was within the intention of the parties, and they say “ the payment and receipt of an instalment or aliquot part of the annual rent is evidence of such an understanding, and goes in support of yearly tenancy, and, without explanation to the contrary, it is controlling evidence for that purpose.” We must regard the case last cited as controlling authority against the contention of the plaintiff in this ■case. So far from there being any circumstances in this case from which a new contract for a yearly tenancy can be inferred, all the evidence seems to demonstrate that the minds of the parties never met in any understanding except the paroi agreement for a lease for five years, which was absolutely void and imposed no obligation upon either of the parties. No possession was ever taken under that agreement. The commencement of the term was postponed to the first day of May, and after that date there is no evidence that the defendant ever set his foot within the premises to be demised. The extra work which, with the consent of the owner, he caused to be done in the finishing of the rooms, was merely preparatory to his occupation and the lettering on the windows was to the same purpose only. He never paid any “ instalment or aliquot part ” of the rent reserved; the $100 paid in January was “ to bind the bargain ” under the void contract, and it was to be applied on the rent only when a payment of rent should become due. In short, during the term contemplated by the void agreement no act of possession was exercised by the defendant, nor any payment made upon any contract, new or old.-

It is impossible to find in this case any evidence from which a new contract for a yearly tenancy may be inferred, and the exception to the charge of the court in that respect was well taken.

The judgment and order appealed from should be reversed.

Judgment and order reversed and a new trial granted in the Monroe county court, with costs to abide the event

Lewis, J., concurs; Macomber, J., takes no part.


author: Haight, J.

text:
    Harriet S. Rumsey et al., Resp’ts, v. The New York & New England Railroad Co., App'lt.

      (Court of Appeals, Second Division,

      Filed October 27, 1891.)

    1. Statutes — Presumption as to legislative vote — Laws 1842, chap. 306.
    While the presumption raised by the statement in the session laws that a bill was passed by a two-thirds vote of the members elected to each branch of the legislature may be overcome by the production of the original certificate of the presiding officer of either house showing the contrary, yet where that certificate merely states that it was passed and that two-thirds of the members elected to the assembly were present it would not overcome such presumption.
    2. Same.
    The court may refer hack, in case of such a clerical error, to the journal of the assembly for the purpose of ascertaining the fact as to whether there was a two-thirds vote.
    8. Constitutional law—Commissioners of the land office.
    The Constitution Art V, §§ 5, 6, gives the legislature in express terms the authority to prescribe the powers and duties of the commissioners of the land office as has been done in chap. 283, Laws 1850.
    Appeal from a judgment of the general term, second, department, affirming a judgment entered upon a decision made at the Dutchess special term.

      W. C. Anthony, for app’lt; H. H. Hustis, for resp’ts.

       Affirming 28 N. Y. State Rep., 984.

   Haight, J.

This action was brought to restrain the defendant from operating its railroad upon lands claimed to belong to the plaintiffs.

The defendant’s road at the village of Fishkill Landing was constructed in the year 1881, in the Hudson river, upon lands-under water in front of uplands owned by the plaintiffs. On the 3d day of March, 1885, the governor of the state, pursuant to a resolution of the commissioners of the land office, issued to the plaintiffs a patent of the lands under water in the Hudson river in front of their uplands, being about one thousand feet on the shore line and along the bank of the river, and about two thousand feet from high water mark to the channel bank of the river, excepting therefrom the rights of the New York Central & Hudson River Railroad Company.

It is contended that the plaintiffs obtained no valid title to the lands under water by reason of this patent, for the reason that it was issued under and pursuant to chapter 283 of the Laws of 1850, which act provides for the appropriation of public property to a private use, and because it is not certified to have passed the assembly by a two-thirds vote.

The act provides that “ The commissioners of the land office shall have power to grant in perpetuity or otherwise so much o£ the lands under the waters of navigable rivers or lakes as they 'shall deem necessary to promote the commerce of this state, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner, but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.”

No question is made but that the certificate of the presiding officer of the senate is in due form. That of the assembly is as, follows:

“State op New York, )

“ In Assembly, April 10, 1850. j “ This bill was read the third time and passed; two-thirds of all the members elected to the assembly being present on its final passage.

“ By order of the Assembly,

“ F. C. Dininny, Speaker pro temí

The statute provides that the assent of two-thirds of the members elected to each branch of the legislature is requisite to every bill appropriating the public moneys or property for local or private purposes; and no bill shall be deemed to have passed by the assent of two-thirds of the members elected to each house unless so certified by the presiding officer of each house. 1 R. S., 7th ed., 432, §§ 2, 3.

The act in question is doubtless one which required the assent of two-thirds of the members elected to each branch of the legislature, and the certificate of the presiding officer of the assembly is defective in not showing whether it received the assent of a majority or two-thirds of the members elected.

The act, as published in the Session Laws, states that it was by a two-thirds vote. This statement is made in accordance with the provisions of chap. 306 of the Laws of 1842, which makes the same presumptive evidence that the bill was certified by the presiding officers as having been passed by the assent of two-thirds of the members elected to each house. This presumption, however, may doubtless be overcome by the production of the original certificate. The certificate produced, however, does not state that it was not passed by a two-thirds vote. It merely states that it was passed; that two-thirds of the members elected to the assembly were present. The certificate, therefore, independent of the statute referred to, would not overcome the presumption created by the statement appearing in the Session Laws. Under the statute the act shall not be deemed to have been passed by the assent of two-thirds unless the presiding officer so certifies, but this statute evidently contemplates that the certificate be made in due form, free from defects and clerical errors. Such a certificate would doubtless be conclusive; but to hold that a defective certificate, one that fails to state the fact either way, is, under the statute, conclusive, and overcomes the presumption created by the statement appearing in the Session Laws, is giving the statute an interpretation which we think was never intended. May "we, under these circumstances, look at the journal of the assembly for the purpose of determining the fact?

In the case of The People v. Purdy, 2 Hill, 31-34, Bronson, J., in delivering the opinion of the court said : “It has not been denied that the judicial tribunals of the state may in some way look behind the printed statute book for the purpose of ascertaining whether bills coming within the two-thirds clause of the constitution have received the requisite number of votes, and although I have felt a good deal of difficulty on that question I am inclined to the opinion that such an inquiry may be instituted. The question is no doubt one of great delicacy, but if the courts have the right to entertain it the duty is imperative and we are not at liberty to shrink from its performance.”

These views were approved by the court of errors on the review of the case. 4 Hill, 384.

And to the same effect is the case of Purdy v. The Commissioner of Highways of the Town of Marlborough, 54 N. Y., 276.

It is quite possible, however, that the courts would not be justified in going back of the original act on file in the secretary of state’s office, and the certificates thereto attached, for the purpose of impeaching them. The People v. Devlin, 33 N. Y., 269.

But in this case, as we have seen, the certificate of the presiding officer of the assembly is not in due form. It shows that the bill was passed, but not whether it was passed by a majority or a two-thirds vote. The omission to state that fact was evidently a clerical error, and under these circumstances we are inclined to the opinion that we may look back to the journal for the purpose of ascertaining the fact

Upon an inspection of the journal of the assembly for 1850, volume I, page 1268, it appears that the act in question was passed unanimously by the assembly; 101 votes in the affirmative and none against it, more than two-thirds'of all the members voting therefor.

It is claimed that the act of 1850 contravenes the constitution, because it tends to delegate the powers and functions of the legislature. As we have seen the act gives to the commissioners of the land office the power to grant lands under the waters of navigable rivers or lakes to promote the commerce of the state, or for the purpose of beneficial enjoyment by the adjacent owner.

The constitution provides that the lieutenant governor, speaker of the assembly, secretary of state, comptroller, treasurer, attorney general and state engineer and surveyor shall be the commissioners of the land office, and that their powers and duties “shall be such as now are or hereafter may be prescribed by law.” Constitution, Article Y, §§ 5-6.

This appears to give to the legislature in express terms the authority to prescribe the powers and duties of the commissioners of the land office, which has been done by the act in question.

It is also claimed that the state holds a qualified title to the lands under the waters of navigable rivers open to the sea, and that it has no right to appropriate them to a private use inconsistent with that of the people of the United States for the purpose of commerce and navigation. Suppose this to be so. The United States, however, is not here complaining of any encroachment upon the rights of inter-state commerce, and there is no-pretense that the grant in question operates to interfere with the navigation of the river. Under the findings of. the trial court the grant only extends to the channel bank of the river, and it could not, therefore, well interfere with the navigation thereof even though the land granted should be covered with buildings. We do not understand that the United States has ever made any claim to the low, flat lands covered with shallow water outside of the deep channel of navigable rivers, or that it has interfered with, the right of the state to control and dispose of the same. Willson v. The Black Bird Creek Marsh Company, 2 Peters, 245; Kerr v. The West Shore Railroad Company, 37 N. Y. State Rep., 913— 916.

Chapter 140 of the Laws of 1850, which gave, to railroad corporations the right to construct their roads across, along or upon any stream of water, water course, street, highway, plank road, turnpike or canal, excepts from the provisions of the act the right to obstruct any navigable stream or lake.

Chapter 565 of the Laws of 1890, removing such exception, was passed since the patent was issued by the state to the plaintiffs herein, and that act consequently could not divest the plaintiffs of any previously acquired rights to the lands in question.

This case has already been considered in this court upon a former appeal, 114 N. Y, 423; 23 N. Y. State Rep., 928, in which the questions not herein considered were disposed of. See also, same parties, 125 N. Y., 681; 34 N. Y. State Rep., 454.

The judgment should be affirmed, with costs.

All concur.


author: Potter, J.

text:
    Mary E. Hughes, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed October 27, 1891)

    1. Railboads—Elevated — Damage to easement — Title oe abutting owneb—Evidence as to.
    On the trial of an action for injury to plaintiff’s premises, she introduced without objection four deeds, by which the lot was conveyed to her. She showed that she had resided thereon since March, 1879, and defendants called forth on cross-examination that one Hughes had previously owned the lot and that it had been conveyed to plaintiff. Defendants also found that one of the predecessors in plaintiff’s title had given a mortgage thereon, and by paroi that the house and lot was sold by the said mortgagor to plaintiff’s grantor and by the latter to plaintiff. Held, that there was evidence sufficient to sustain a finding that plaintiff had title to the lot in fee simple.
    3. Same.
    The right of an owner of a lot abutting on a public street in a city to use and enjoy the light, air and access afforded by the street is an appurtenance of his lot and is property for which, in case it is taken for purposes inconsistent with street uses, such as an elevated road, compensation must be made.
    15. Same—“Abutting lot.”
    An abutting lot is one bounded on the side of a public street in the bed or soil of which the owner of the lot has no title, estate, interest or private rights except such as are incident to a lot so situated.
    •4. Same.
    The fact that for three years before plaintiff acquired title the light, air and access had been continuously interrupted by the M. El. road, and that said road had begun proceedings to condemn said property, is no rebuttal of the presumption of plaintiff’s title.
    5. Same.
    In the petition filed by said M. El. road, it set forth that it had been unable to agree upon a price as the owner would not sell for a reasonable price, etc. Held, that this was a very clear admission upon the part of the defendants that they d:d not own the easements or have the right to interfere with their use or enjoyment by plaintiff.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of .the plaintiff entered on a decision of a special term.

      This action was begun November 16, 1887, to recover a judgment (1) for the damages to the rental value of No. 138 West Fifty-third street, alleged to have been occasioned by the construction and operation of the defendants’ elevated railroad in the street in front of the premises, and (2) restraining them from thereafter continuing their road in front of the premises. The construction of the road was begun in this street in July 1878 ; it was finished in that street in November of that year and was put in operation in June, 1879. It does not appear who owned or was in possession of the premises when the road was begun and completed.
    In 1838 the city of New York acquired the title to the land upon which West Fifty-third street was in that year opened as one of the public streets in the city, pursuant to chap. 115, Laws of 1807, and chap. 86, Laws of 1813.
    Lot No. 138 is bounded on the north by the south side of Fifty-third street, and its owners have never had any title or estate in the soil of that street and no interests or private rights therein except such as are incident to lots so situated. December 31, 1878, Augusta A. Eising assumed to convey No. 138 West Fifty-third street to James R. Breen, Alfred G. Nason and George W. Hughes. In March, 1879, the plaintiff entered into possession and has since remained in possession of the premises. October 4, 1880, Breen and Nason conveyed their interest in the lot to George W. Hughes, plaintiff’s husband, who, November 29, 1881, conveyed his interest in them to Fitzsimmons, who, on the same day, conveyed his interest to the plaintiff. Such is the paper title. The record does not disclose who assumed to own or was in possession of the lot at any time prior to December 31, 1878, the date of the deed of Augusta A. Eising.
    The answer in the main is a denial upon information and belief of the allegations of the complaint, and presents as affirmative defenses that on the sixth day of March, 1868, Augusta Eising executed a mortgage upon the premises to Henrich Wiener, and which said mortgage is owned by Eliza Wiener. The answer further alleges that the defendants’ road was constructed and operated before the plaintiff owned or occupied the lot and house and while they were owned and occupied by another, “ and that if any damages were inflicted upon said premises, or if any destruction or loss of easements has been occasioned ” * * * the said damage was then inflicted, or said loss or destruction of easements then took place, and that the plaintiff herein is not the owner of the cause of action for such damages. The answer also sets up the six and ten year statutes of limitations, and that plaintiff and her predecessors in title made no objection to the construction or the running of the road. The answer also sets up that on April 14, 1888, the Metropolitan Elevated Railroad Company began proceedings to acquire by condemnation the rights appertaining to the premises, and belonging to the plaintiff, which were interfered with by the construction and operation of the road. The pendency of these proceedings was set up in the answer as a defense to this action. The cause was tried in December, 1888, and upon the decision rendered a judgment was entered June 7, 1889, awarding (1) $8,500 damages for the injury caused to the rental value of the premises between November 16,1887 (the date when the action was begun); and (2) and a perpetual injunction restraining the continuance of the road in front of the premises, unless the defendants paid to the plaintiff $9,000, found to be the value of the rights appurtenant to the lot which had been entered on by the road.

      Edwin M. Felt, for resp’t; John F. Dillon and Julien T. Davies, for app’lts.

       Affirming 29 N. Y. State Rep., 516.

   Potter, J.

There are two questions to be considered and decided upon this appeal. The first relates to the plaintiff’s title to the premises described in the complaint, including the easements of access, air and light, or her right to damages in consequence of the alleged interference therewith by the structure and operation of the railroad by the defendants, and the second relates to the nature and measure of the damages the plaintiff may legally recover of the defendants, and the mode of enforcing the judgment for any damages that may be awarded to the plaintiff.

It is quite manifest from a study of the record in this case that the question of damages formed the main contention in the court below. Still the question of title may be said to fairly arise upon this appeal and was fully discussed in the very able and elaborate brief of the appellants’ counsel.

It is insisted in behalf of the appellants that the courts below erred in holding the following propositions:

(1) That the plaintiff established title to the lot and to the rights in the street appurtenant to the lot; (2) That the plaintiff

is entitled to compensation for the diminution ($9,000) of the market value of the lot caused by the completion of the road before she purchased the premises, and that the defendants be restrained from continuing the road unless that sum is paid.

The trial court found as facts: First, That the plaintiff is now and has been since the 29th day of November, 1881, seized of an estate of inheritance in fee simple absolute in premises Number 138 West Fifty-third street in the city of New York, and in all the easements and hereditaments thereunto appertaining.” To this finding the defendants filed the following exception: “ To so much of the first finding of fact as finds that the plaintiff is seized of an estate of inheritance in fee simple absolute in the premises there mentioned.” This finding is now challenged as one “ without any evidence tending to sustain it.” Code Civil Proc., § 993.

The question upon the record before this court is not simply whether the plaintiff had proved her title when she rested upon the trial of the case, but whether there was sufficient evidence introduced by plaintiff or defendant, or by both, when the evidence was finally closed and submitted, to support the finding of title in the plaintiff made by the trial court.

Four deeds, the first "from Mrs. Eising, dated December 31,1878, by which the grantor assumed to convey the' lot in fee with the appurtenances, and under which the plaintiff claims to have acquired title, were received in evidence without objection being taken that the grantors were not shown to have had title or possession of the subject of their grant at the date when they assumed to convey. Indeed none of the evidence written or oral, relating to the plaintiff’s title or possession, was objected to by either of the defendants. It was proved and it remained undisputed that the plaintiff had resided on lot Mo. 138 since March, 1879.

The learned counsel for the defendants proved by his cross-examination of George W. Hughes that he, Breen and Mason bought the lot from Eising in December, 1878; that they owned it; that Breen and Mason afterwards conveyed their two-thirds to him, and to quote the language of the witness: “ I became then the sole owner of the premises.” This witness having title, conveyed the lot to Fitzimmons Movember 29, 1881, who, on the same day, conveyed it to the plaintiff. Besides this evidence, the defendant introduced in evidence a mortgage upon the premises described in the complaint, made by Augusta Eising (one of the predecessors in the plaintiff’s title) to John W. Stevens on December 31, 1878, to prove that said mortgage was a lien upon said premises. Of course it could not be a lien unless the mortgagor had some title or interest in the premises. On the same day that the mortgage was made, and presumptively subsequent to the making of it, Augusta Eising gave the deed in the chain of plaintiff’s title to Breen, Mason and Hughes.

The defendant proved the mortgage no. doubt for the purpose ■of raising the question that” the holder of the lien of the mortgage was a necessary party to the action.

But, when this evidence was in the case, it was in for any other-purpose it might legitimately serve.

It served to show title in plaintiff’s grantors about a month before the road was completed, and several months before it was ■operated by the defendants, or either of them. And the defendants also proved that this house and lot was sold by Stevens to Eising in 1868, and that Eising was the grantor of Hughes. It is true this was proved by paroi, there being no objection by plaintiff to that mode of proof. It does not lie in the mouth of the defendants upon this appeal to raise any question as to then-own mode of proving facts, nor to the facts proved by their method. This sale of the lot in question to Eising, grantor of Hughes and Nason, was ten years or so before the defendant began toy construct the road. The plaintiff proved by witness John W. Stevens, without objection, that he owned the lot, built and sold the house in question in 1867 or 1868.. This was some ten or ■eleven years before the defendants built or run the road, and even before the road was chartered, which was in 1875 or 1876. This witness also testified, without objection, that he bought the lot, and built the house in question, and sold all his lots, including this one in question, previous to 1871.

In the face of this undisputed evidence and in the absence of any assertion during5 the trial, or request to find that the plaintiff was without title to Ho. 138 or that any other person owned or claimed to own it, it cannot be held that the finding that the plaintiff had title to the lot in fee simple was without any evidencetending to sustain it.

The finding above quoted contains two independent propositions : one relating to the title to the lot, and the other to the title to the street rights appertaining to the lot. The exception above quoted, which was the only one filed to this" finding, relates solely to the title to the lot. But the court also found as facts, Sixth.. That attached to the plaintiff’s premises above described, and as a part thereof, was and is an easement of light, air and access, over said Fifty-third street and appurtenant thereto, in front of and adjoining said premises, of which easement the plaintiff has been, possessed since Hovember 29, 1881.”

11 Seventh. That plaintiff acquired with said premises the right to have said Fifty-third street kept opón and used as a public street and highway.” The defendants filed exceptions to these findings and requested the court to find the converse, which was refused, to which refusal the defendants excepted. These exceptions raise the question whether there is any evidence tending to sustain the finding that the plaintiff acquired title to the rights in the street. Roberts v. Tobias, 120 N. Y., 1; 30 N.Y. State Rep., 189.

The right of an owner of a lot abutting on a public street in a city to use and enjoy the light, air and access afforded by the street is an appurtenance of his lot and is property for which, in case it is taken for purposes inconsistent with street uses, compensation must be made; and in case it is not taken but is injured by such uses, the damages sustained, if any, may be recovered. The use of a street by an elevated road for carrying passengers within the city is held to be a use which is inconsistent with the purposes for which city streets are designed. Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 N. Y. State Rep., 876. These street rights of an abutting owner are not originated by grant in terms of such incidental rights, and their existence need not be established by conveyances in specific terms conveying such right, for there are none, nor by adverse possession by an abutting owner, for the right is incapable of such possession as against the city. Driggs v. Phillips, 103 N. Y., 77; 3 N. Y. State Rep., 69; Elliott R. & S., 665,et seq.

The private rights appurtenant to abutting lots arise by operation of law from contiguity, like rights for the adjacent and subjacent support of land, and their existence is presumed. Kane v. N.Y. El. R. R. Co.,125 N. Y, 164, 185; 34 N. Y. State Rep., 876. To prevent a misapplication of this rule it will be well to define the term “abutting lot.” It denotes a lot bounded on the side of a public street, in the bed or soil of which the owner of the lot has no title, estate, interest or private rights except such as are incident to a lot so situated. The presumption existing in favor of the abutting lot may be rebutted by showing that the rights have been parted with in any of the modes by which incorporeal hereditaments may be transferred, surrendered or lost. The burden of rebutting the presumption is on him who claims to have acquired such right. Haight v. Price, 21 N. Y., 241; Wash. Ease., 221 (2d ed.), 283. To rebut this presumption the defendant proved that for three years before the plaintiff acquired title to the lot the light, air and access from the street had been corf3, tinuously interrupted by the Elevated roacPAi the smne mamf"' •and substantially to the same extent as it was, when the actum was begun. They also proved that the Metropolitan Railway Company had begun 'proceedings which were tl,1R fk. • to acquire from the plaintiff by condemnation the rigtíi/'as lot, to maintain and ppr ate the Elevated road in frai ■premises. In the petition filed, which was served on t1 ntiff, the right sought to be acquired by condemnation is thus ' bribed: “Also so much of the privilege, easement or other interest in said Eifty-tliird street as is interfered with by the construction and maintenance of the elevated road of the petitioner herein, belonging to or claimed by Mary E. Hughes and Henry Wiener, or appurtenant to the lot and premises known as No. 138 West Fifty-third street, and bounded and described as follows: * * * being the same premises conveyed to said Mary E. Hughes by a deed of Thomas Fitzsimmons,' dated the 29th day of November, 1881; * * * that your petitioner, upon information and belief, has not been able to acquire title to the aforesaid lands, tenements, hereditaments and appurtenances.” The petition was signed by the Metropolitan Elevated Railway Company and verified by the assistant secretary and treasurer of both corporations and was introduced in evidence in behalf of both defendants. Under this state of the evidence it cannot be held that there is none tending to sustain the finding that the plaintiff owns the street rights.

The petition also set forth that the defendants had been unable to agree upon a price for the purchase of these easements from the owner of them for the reason that the owner would not sell them to the defendant for a reasonable price. The defendants set forth fully these proceedings and their pendency in a court having jurisdiction to transfer the title to these easements to the deiendants upon payment or deposit of the compensation to be awarded to the plaintiff for the deprivation of them.

The trial court found as a fact that such proceedings had been taken by the defendant; that the plaintiff had been duly served and brought into court in the proceeding and that the proceeding was pending at the time of the trial of this action.

This it seems to me is a very clear admission upon the part of the defendants that they did not own these easements or have the right to interfere with their use or enjoyment by the owner; for it is not usual or reasonable that either individuals or corporations should take legal proceedings to compel a sale to them of property and the payment of an award by them for property they already own, and justifies the remark of the court in its opinion in Watson v. The Met. El. Co.. 29 N. Y. State Rep., 513: “This is an admission that the railroad holds their position in front of the plaintiff’s premises in subordination to the right of plaintiff to compensation.”

The real and substantial contention in this case was whether the plaintiff was entitled to recover the $9,000 awarded to the plaintiff for the damages to the fee of the premises as a condi- ■* on of defendants being allowed to continue the structure and e operatiup, of the .ilroad.

The injury from which this species of damage arises was cominea ed when the defendant began to erect the structure and has been cry "'‘¿l increased by subsequent use of the easeménts " T<f ' _,,b ffa.... There is no occasion for any further discus- . 'jS. grantee’s right to recover tíi« permanent or fee damages . the time of the erection of the structure and the operation ó.; , .road to the time of the trial of this action.

This court has recently affirmed such right in the case of Lena Pappenheim v. The Met. E. R. Co., 40 N. Y. State Rep., 445, in a very able and exhaustive opinion by Judge Peckham in which all the members of the court concurred. The action in that case was the same in form, brought for the same relief, and involved "the same questidns as the case under consideration.

The appellants’ counsel have not discussed any exceptions to the rulings in relation to the reception or rejection of evidence and I do not think any of them require consideration.

The judgment should be affirmed, with costs.

All concur.


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    George E. Mathews et al., Resp’ts, v. The Associated Press of the State of New York et al., App’lts. George Bleistein, Pres’t, Resp’t, v. The Associated Press of the State of New York et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    News agencies—By-law prohibiting publication by its members op DISPATCHES OP OTHER AGENCIES—VALIDITY OF.
    The by-law of the defendant prohibiting its members from receiving or publishing the regular news dispatches of any other news association covering a like territory, and organized for a like purpose as defendant, is not invalid as being a contract in restraint of trade or as a violation of the constitutional provision intended to secure liberty of speech and of the press.
    Appeal by the defendants in both cases from an order of the Erie special term, continuing a temporary injunction, previously granted by a judge out of court, during the pendency of the action.

      S. E. Payne, for app’lts; C. B. Wheeler, for resp’ts in No. 1; A. Wilcox, for resp’t in No. 2.
   Dwight, P. J.

The plaintiffs in No. 1 are the publishers and proprietors of the Buffalo Express, a daily newspaper published in the city of Buffalo. The plaintiff in No. 2 is president of the Courier Company, a joint stock association, which is the publisher and proprietor of the Buffalo Courier, also a daily newspaper published in the same city. The plaintiffs in both cases are members of the defendant, the Associated Press of the State of New York, a corporation organized under a special act of the legislature of this state, being chapter 754 of the Laws of 1867, among the objects of which, as declared by the act, are “ the mutual protection of members of the press ” and “ procuring and supplying its members with telegraphic news.” The other defendants are the persons composing the executive committee of the defendant association.

The action in each case is to restrain the defendants from proceeding to enforce against the plaintiffs one of the by-laws of the defendant association, which is in the following terms:

“25. No member of this association shall receive or publish the regular news dispatches of any other news association, covering a like territory and organized for a like purpose with this association. Any member violating this by-law shall be suspended by the executive committee from all the rights and privileges of the association, as provided in § 24, subject, however, to reinstatement by a two-thirds vote of the association, upon written agreement to conform to all the by-laws and contracts of the association.” 0

By-law 24, referred to in the above, prescribes the mode of its enforcement, viz.: by suspension by the executive committee, “ after an examination of the offense charged,” on notice to the offending member; the decision of the committee being, however, subject to the approval or disapproval of the association at its next meeting.

On the 23d of April, 1890, the plaintiffs in each case were served by the defendants with a notice, of which the following is a copy:

“You are charged by the Associated Press of the State of New York with the violation of the by-laws of said association, and particularly of § 25 thereof, in both receiving and publishing the regular news dispatches of the United Press Association, which is another news association covering a like territory and organized for a like purpose with this association. It is charged by this association that you are violating and have, since the first day of January, 1890, violated said by-laws in the manner aforesaid.”

And thereupon these actions were commenced to restrain the proceedings • thus initiated and foreshadowed on the part of the defendant, and a preliminary injunction was obtained in each case, which was continued by the order from which this appeal is taken.

The two cases, as presented by the moving and opposing papers, are in all respects the same, except that the plaintiff in No. 2, representing the Buffalo Courier, voted in favor of the by-laws 24 and 25, the enforcement of which is sought to be restrained; but it is not seriously contended by either party that the presence of this-circumstance in the one case or its absence in the other creates any real distinction between the cases. The plaintiffs in the two cases are equally members of the defendant association, and are equally amenable to its by-laws, whether adopted with or without their individual concurrence. We shall,^ therefore, in our discussion of the two cases, treat them as if they were one.

There is no controversy about the facts of this case. The plaintiffs had, as charged, both received and published the regular news dispatches of the United Press Association, and had thus become liable to suspension from the rights and privileges of members of the defendant association, unless it appears either that the act complained of was not within the terms of the bylaw which prescribes that penalty, or that the by-law itself was inoperative, because contrary to law.

That the act was within the prohibition of the by-law, we think, sufficiently appears. The United Press Association covers the same territory as that covered by the defendant, viz.: the state of New York; and the fact that it also covers other territory -does not, we think, take it out of the purview and intention of the by-law in question. It is, as to the state of New York, and in respect to news collected within this state, a competitor of the defendant, and is thus within the plain intent and purpose of the by-law, which was to prevent the encouragement of such competition by members of the defendant The question whether such purpose is an unlawful one, and one against which a court of equity will interfere, is a somewhat more serious question, and, as we think, the only substantial question in this case.

The business of collecting the news of the day and furnishing reports of it to the press for a compensation has become a very well-known and important industry. It can scarcely be called a branch of trade. There is no right of property in the news itself. That is neither bought or sold. Any man who hears it may make such use of it as he can, for his own advantage, or may communicate it to others. So he may make a business of collecting news and furnishing reports of it to the newspapers, or to such of them as will compensate him for his trouble. The work is commonly done in the locality of each newspaper by its own reporters, employed and paid for that purpose. In remote localities the same system might be, and no doubt was formerly much employed, viz.: of special reporter or correspondent engaged to supply to the particular newspapers reports, by post or by telegraph, of occurrences in his locality. But of late publishers have availed themselves of the obvious advantages of combination for the procurement of . news, and so have organized themselves by voluntary association, or by incorporation, and by this means have shared at once the news collected and the expense of its collection. But, whichever' the system made use of, whether of separate reporters and correspondents or of reporters and correspondents employed by syndicate or corporations, it is plain that the employment is that of agents to do the work of collecting news in their several localities for one or more newspapers.

In this case the agents are employed by the defendant, “the Associated Press of the State of New York,” acting for all the publishers who are comprised in its membership. As to all these, the charter and by-laws of the corporation constitute the contract between themselves and between them and the association. Among the provisions of that contract is one to the effect that none of the members shall contract with any other news association to employ for them agents for the procurement of news within the same territory as that in which agents of the defendant association are employed. This contract between the-members of the association is mutual and is for the common benefit, and so is supported by a sufficient consideration. It is for the-common benefit, because the efficiency of the association depends upon the number and activity of its agents, and these, largely, upon the extent of its revenues from which salaries are paid, and that, in turn, upon the number of its patrons; so that the building up of competitors, which must draw off from its-patronage, will necessarily detract from the extent and value of its work.

The contract, therefore, of the associates with each other and of these with the association, which is embodied in the' by-laws-in question, seems to us not to exceed the proper bounds of self protection, and not to be unreasonable nor obnoxious to any principle which has been invoked for its condemnation. Even if the news of the day is to be regarded as a commodity which the plaintiffs are engaged in selling and which they purchase of the-defendant association, the contract is no more in restraint of trade-than the thousand contracts by which dealers in certain classes of goods agree to sell no other than the products of certain mills or manufactories, in consideration of the reciprocal agreement of the manufacturer not to furnish his goods to other dealers of the same vicinity. That such contracts in restraint of trade are not invalid if they impose no restriction upon one party which is not beneficial to the other, and are induced by considerations which make it reasonable for the parties to enter into it, is well established by repeated adjudications of our own court of last resort. Hodge v. Sloan, 107 N. Y., 244; 11 N. Y. State Rep., 770; The Diamond Match Company v. Roeber, 106 N. Y., 473 ; 11 N. Y. State Rep., 47; Leslie v. Lorillard, 110 N. Y., 519; 18 N. Y. State Rep., 520. Nor is the contract necessarily detrimental to the public interests, in the respect that whatever tends to increase the efficiency of the defendant association as a collector of news is, so far, in the interests of the public as readers of the newspapers.

The objection that the contract is in violation of that provision of the constitution of the state which is intended to secure liberty of speech and of the press seems rather fanciful than real. The first clause of that valued provision declares that “ every citizen may freely speak, write and publish his sentiments on all subjects,, being responsible for the abuse of that right,” and the second forbids the passage of laws “to restrain or abridge the liberty of speech or of the press.” There is nothing in these provisions-which forbids the publisher of a newspaper to contract in respect-to the source from which he shall obtain his news for publication.

There are no facts in the case which seem to us to present the-question of the violation of vested rights in third persons. Whenever a-subscriber to either of the journals published by the plaintiffs,- or any person advertising therein, shall present to the court a case of the violation by the plaintiffs of a contract with him to enhance the value of such paper, either as a repository of news or as an advertising medium, by publishing the matter furnished by the United Press Association, it will become the duty of the court to inquire as to the measure of damages or other relief to be awarded to the plaintiff in such an action.

In this case it is conceded that the plaintiffs have intentionally violated a by-law of the defendant association, of which they are members, and we are of opinion that no case has been made by them calling for the interference of a court of equity to prevent the enforcement of that by-law in the manner prescribed.

The order continuing the injunction should be reversed and the motion denied, with costs.

Order appealed from in each case reversed, and the motion denied, with ten dollars costs and disbursements of the appeal, and ten dollars costs of opposing the motion.

Macomber and Lewis, JJ., concur.


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    Edward Michael et al., App’lts, v. Anna M. Eley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Vendor and purchaser—Authority oe broker to make contract.
    A mere special employment to effect a sale does not confer on the agent authority to agree with the purchaser upon any possible, or even reasonable, terms which he may see fit to prescribe and the purchaser to accept.
    2. Same.
    A person dealing with such an agent with knowledge that his authority is special and specifies none of the terms of sale except the price,is bound to inquire whether he has received further instructions as to terms of sale and whether they correspond with those of the contract which the agent assumes to make.
    3. Same—Deviation prom instructions.
    The instructions to the agent provided that a mortgage should be given for the balance of the purchase price, payable in ten annual instalments, with interest semi-annually, and for the release of one acre of land on payment of each or any §1,000. The contract as made by the agent provided for a mortgage payable in ten years with interest and that it should contain a clause permitting payments to be made sooner in sums not less than §1,000, and for an equitable release of parts of the premises commensurate with the amounts paid. Held, that the deviations from the instructions were radical and important and that the contract could not be upheld.
    Appeal by the plaintiffs from a judgment dismissing their complaint entered on the findings and decision of the court at special term (Erie, December, 1890.)

      A. Moot, for app’lts; W. H. Cuddeback, for resp’t
   Dwight, P. J.

This was a bill in equity to obtain specific performance of an alleged contract of the defendant to convey land.

The contract declared upon was signed on the 21st day of April, 1890, in the name of the defendant, by one Hagan, for himself and one Wiser, under the firm name of Hagan & Wiser, as her agents. The question in the case is of the authority of the agents to sign such contract.

On the 17th day of April, 1890, the defendant, at the request of Hagan & Wiser, consented to employ them as her agents to sell the property in question, and as evidence oí such employment executed to them a contract in writing, which was drawn by' Hagan, and of which the following is a copy :

“Buffalo, H. Y., April 17, 1890.

“ I, the undersigned, do hereby engage and authorize Christ. Hagan and Henry P. Wiser, of Buffalo, H. Y, my lawful authorized agents,'for the purpose of selling my farm, situated on Main street and Eley road, in the city of Buffalo and the town of Tonawanda, and containing seventy-five acres, more or less, and I authorize them to sell the whole, but reserving the new dwelling built on said premises, with sixty feet front on Main street, going back to the back end of the barn, at the price of five hundred (500) dollars per acre; and I further agree to pay to said Hagan & Wiser a commission of two and one-half per cent on said purchase price, and I further agree that any amount above five hundred dollars per acre paid for said premises is to go to said Hagan & Wiser in addition to the regular commission.

“(Signed) Anna M. Eley.”

This, it will be observed, was a mere contract of employment to make a sale, fixing the compensation of the agents, but, beyond the price per acre, prescribing none of the terms upon which the sale was to be made. Clearly, in the absence of any other authority conferred upon the agents, this would be construed as authority merely to find a purchaser and refer him to the owner for the terms upon which the sale would be made. A mere special employment to effect a sale does not confer upon the agent the authority to agree with the purchaser upon any possible, or even reasonable, terms which the agent may see fit to prescribe, and the purchaser to accept. It is only a general agency evidenced either by a power of attorney or other writing to that effect, or by a course of dealing recognized and ratified by the principal, which, in the absence of express authority to agree upon the term's of sale, can confer such authority.

In this case the court finds, by its second general finding of fact, that at the time the contract of employment was made, the only terms of sale fixed by the defendant, to be secured by the agents, were that $10,000 of the purchase price was to be paid down and that the purchaser should give back a mortgage for the balance payable in ten equal annual instalments, and that the question of releasing lots upon being paid a portion of the purchase price was left to be arranged between the purchaser and the defendant. By its third special finding of fact, in response to the request of the plaintiff, the court adds to the terms agreed upon by the defendant with her agents, on the 17th-of April, the stipulation that she would give a warranty deed to the purchaser of the land, and, on the 21st of April, that the purchasers should have the privilege of paying, at any time, the sum of $1,000, and obtaining therefor a release of one acre of the mortgaged premises.

These then were the terms of sale which the agents were authorized to make in their contract with the purchaser of the plaintiff’s land, and if we are correct in the application already made of the elementary doctrine of principal and agent to this case, they could not bind the defendant by any contract which did not comply in all substantial particulars with the terms thus imposed. Unquestionably a third person who deals with an agent acting under special authority is put upon inquiry as to the extent of that authority; and the principle is especially applicable in this case because, as the court has found, at the request of the plaintiffs, they dealt with the agents of the defendant, in making the contract in suit, with full knowledge of the written authority above set forth, and relying thereupon. They knew therefore that the authority of the agents was special, and that the writing which conferred it specified none of tne terms of sale beyond the price per acre of the land, and, therefore, that if the agents had authority to agree upon any further terms of sale, such authority must have been conferred by special instructions received by them from the defendant; and they were bound to inquire whether such instructions corresponded with the terms of the contract which the agents assumed to make with them.

The finding of the court that the contract so made, and for the specific performance of which this action is brought, did not conform to the terms of sale agreed upon by the defendant with her agents, is fully sustained by comparison of the contract with the terms prescribed by the defendant, as established by the unquestioned findings of the court. This lack of conformity appears in two very important particulars. The court finds, by its general and special findings, that the terms of sale prescribed by the defendant provided that for the balance of the purchase price after the payment down of $10,000, a mortgage should be given by the purchasers payable in ten equal annual installments, with interest semi-annually. Whereas the contract executed by her agents with the plaintiffs provides for a mortgage for such balance “payable in ten years from the date thereof, with interest.” That balance would have amounted to about $27,000, the payment of the whole of which, by the terms of the contract, would have been postponed for ten years, and no interest would have been payable till the expiration of that time.

The terms of sale embraced in the contract also differed from those prescribed by the contract in respect to provision for a release of portions of the property on receipt of partial payments on the mortgage. The latter provided definitely for the release of one acre of land on payment of each or any $1,000, while the contract, after stipulating for a mortgage payable in ten years from date, provided that it should contain “ a clause permitting payments to be made sooner than the time fixed therein, in sums not less than $1,000, and providing for an equitable release of parts of the mortgaged premises commensurate with the amounts paid on said mortgage.”

The important and radical character of these deviations of the contract from the terms of sale imposed by the defendant are too obvious to require remark, and in respect, especially, to the first of them, it is difficult to believe that the plaintiffs can have supposed that they were entering into a contract which was either authorized, or would be ratified, by the owner of the land

Many other collateral, incidental, and in some cases unimportant, matters are involved in the discussion of this appeal, and the court at special term indicates by its findings other grounds for its judgment, but we regard the ground here discussed as amply justifying the dismissal of the plaintiff's complaint.

The judgment should be affirmed.

Judgment affirmed, with costs.

Macomber, J. concurs; Lewis, J., not sitting.


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    In the Matter of the Will of Maria Soule, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Will—Probate oe lost will.
    In a proceeding to prove an alleged lost will, it appeared that shortly after her re-marriage the decedent duly made a will to take the place of one she believed to have been wrongfully abstracted from her keeping, and gave it to the person who drew it for safe keeping; that it was obtained from such person by her husband two weeks before her death and was in existence two days before her death. Held, that upon these facts, in the absence of evidence that the will was destroyed by the testatrix or that she had at any time an intention to revoke, the presumption of its existence was not necessarily overcome, but that such question should be submitted to a jury to determine.
    Appeal by the proponents from a decree of the surrogate of Brie county, denying probate to an alleged lost or destroyed will

      Tichnor & Pierce, for app’lts; Thrasher & Leonard, for resp’t.
   Dwight, P. J.

The execution of the alleged will is found by the surrogate; the question is of its revocation. In or about 1883 the testatrix, being then a widow and without descendants, executed her will, drawn by a neighbor on a blank of short form, by which she made a niece and the husband of the latter sole legatees and devisees of her little property, which amounted at the time of her death to about $1,800. The next year, 1884, she married William Soule, the contestant, and two years after that, in 1886, she sent for the same neighbor and requested him to draw another will precisely like the first, which was lost. She told him that will had been taken away by somebody in the family, and it must have been either her husband or a young relative whom she named The scrivener, Mr..Clark, accordingly procured a similar blank and drew a second will as nearly as possible a counterpart of the first, which the testatrix executed with all due formality, and gave it to Mr. Clark to keep for her, saying that she had had bad luck with the other will and he could keep it safer than she could. Three years afterwards, and two weeks before the testatrix died, th: custodian was induced, by the representations of Soule that his wife wanted the will, to send it to her house. Whether at that time it fell into the hands of the testatrix or of her husband does not appear.

There is evidence tending to show that it was among papers belonging to her, and to which both she and her husband had access, two days before she died. There is no evidence that she ever destroyed it, or consented to its destruction, or revoked it in any manner, or intended to revoke it. There is no evidence even that it was withdrawn from the depository by her direction. The testimony of Mr. Clark and of the contestant, as to the statement of the latter to the former at the time he was induced to give up the will, was properly received in evidence, because Mr. Clark had already testified in behalf of the proponents to the effect and purport of the conversation to a certain extent; this gave to the contestant the. right to give evidence of the whole of the conversation ; but it was a mere declaration and was not evidence of the fact stated.

We have, then, very briefly, the will in question duly executed, to take the place of one which the testatrix believed had b'een wrongfully abstracted from her keeping by an interested party; its deposit with Mr. Clark as custodian, expressly to prevent its sharing the same fate; its withdrawal from such custody without, so far as the evidence goes, her direction or authority, only two weeks before her death; its continued existence down to the second day before her death, and the fact that it was not found after her death by those interested in its production, and that it was not produced by those interested in its suppression. These facts, in the absence of evidence that the will was destroyed by the testatrix, or that she had at any time the intention to revoke it, do not, we think, necessarily rebut the presumption that the will continued to be in existence at the time of her death. That such a presumption arose from the undisputed facts of this case is in accordance with the elementary rule that a previously existing state of things will be presumed to continue. Greenl. Ev., §41; Beckwith, v. Whalen, 65 N. Y., 322. That presumption is, of course, rebuttable, and the fact that the will was not found or produced after the death of the testatrix is undoubtedly a circumstance tending to rebut it, the force of which is dependent upon all the other circumstances of the case. We are not disposed to indicate our opinion of the probative force of those circumstances in such manner as to prejudice the future disposition of the case, but we are of opinion that the case is a proper one to be submitted to a jury to pass upon the following questions:

1. Did the deceased, Maria Soule, in or about the month of November, 1886, make, publish • and declare, in due form of law to pass real and personal estate, an instrument in writing as and for her last will and testament ?

2 Did she by such instrument make valid testamentary disposition of all her real and personal property by gift and devise to the proponents Emily Beaver and Henry Beaver equally, share and share alike, or, in case of the death of either of them before that of the testatrix, then to the survivor of them; and did she by such last will and testament make, constitute and appoint the said Henry Beaver sole executor thereof ?

3. Was such last will and testament in existence at the time of the death of the testatrix unless the same had been fraudulently destroyed in her lifetime.

The decree should be reversed on a question of fact, and an order entered directing a trial by jury of the above specified material questions of fact arising upon the issues between the parties ; such trial to be had in the circuit court of Erie county.

So ordered, with costs of this appeal to abide the final award of costs.

The order to be settled by the presiding justice.

Macomber and Lewis, JJ., concur.


text:
    Edward F. Lathrop et al., App’lts, v. Henry N. Ellsworth and John Luther, Impl’d, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Money had and received—Contract.
    Defendants had a contract for building forty miles of railroad, a portion of which they sub-contracted to the Bs; who also sub-contracted a portion to plaintiffs. The latter were fully paid according to the estimate of the engineer for the railroad, but subsequent estimates showed that more was due. In an action for money had and received for plaintiffs’ use, the complaint alleged that the railroad “for the purpose of paying, or having paid, the amount due for such excavation, work and labor, so done and performed as aforesaid, on section 57 of said railroad and for no other purpose, delivered to said Henry M. Ellsworth, as repesenting the firm,” a certain sum, of which a sum named belonged to and was the property of plaintiffs by reason of the performance of the work on said section, and Ellsworth testified that he had received said amount for work on said section over and above what had been paid to the Bs or to.plaintiffs. Held, that neither the allegations nor the proofs were sufficient to charge defendants with money had and received to and for the use of plaintiffs.
    Appeal by plaintiffs from a judgment entered on the findings and decision of the court at special term (Monroe, December, 1890).

      M. H. Peak, Jr., for app’lts; A. S. Kendall, for resp’ts.
   Dwight, P. J.

The defendants, Ellsworth and Luther, are the surviving partners of the firm of G. H. Thompson & Co., who, in 1882, together with one Austin Lathrop, had a contract with The Jersey Shore, Pine Creek & Buffalo Railway Company to build forty miles of its railroad. In May, 1882, they sub-contracted five of the forty miles, being sections 53 to 57 inclusive, of said road to the defendant Blake, and in June of the same year the Blakes sub-contracted one mile of the five, being section 57, to the plaintiffs. The plaintiffs completed the work on their section in December, 1882, and were paid by the Blakes in full at the prices named in their contract for all the work done by them, as estimated by the engineer of the railroad company. In the following summer the plaintiffs caused other estimates to be made by a civil engineer employed by them of the work done on section 57, which estimates were in excess of those made by the engineer of the railroad company, upon which the plaintiffs had been paid. In their complaint the plaintiffs allege that the amount due to them from the Blakes for the work done by them as shown by the later estimates, in excess of that estimated by the railroad engineer and for which they had been paid was upwards of $10,000; and they allege that the railroad company, in 1883, “ for the purpose of paying, or having paid, the amount due for such excavation, work and labor so done and performed as aforesaid on section 57 of said railroad, and for no other purpose, delivered to said Henry M. Ellsworth, as representing the firm of George H. Thompson & Co., the sum of $12,000 or thereabouts, of which sum $10,611.84 belonged to and was the property of these plaintiffs by reason of the performance of the work, labor and excavation as aforesaid upon said section 57.”

It is upon this allegation that the plaintiffs’ alleged cause of action, which is for money had and received, is based. It evidently falls short of the requirements of an allegation for that purpose, in that it does not state that the money was delivered to Thompson & Co. for the purpose of paying the plaintiffs, or was received by them for that purpose. On the contrary, it is apparent from previous allegations that neither the railroad company nor Thompson & Co. had anything to do with paying the plaintiffs for the work done by them. The plaintiffs’ contract was with the Blakes, and Thompson & Co. were under no contract obligation to them. Thompson & Co. might indeed assume such an obligation by receiving money for their use, but the allegation falls short of alleging that they had done so. It is only to the effect that they had received from the railroad company the pay to which they were entitled for the work done on section 57, and their contract obligation in respect to that work was to the Blakes.

But even if the allegation of the complaint had been sufficient to charge the survivors of Thompson & Co. for money had and received to the use of the plaintiffs, there is a total failure of proof to sustain such allegation. The only evidence relating to the receipt of money by Ellsworth for Thompson & Co. is found in the testimony of the plaintiff Lathrop, and is to the effect that on the trial of an action brought by the plaintiffs against the Blakes, the defendant Ellsworth testified that he had received from $12,000 to $14,000 for work done on section 57 over and above what had been paid to the plaintiffs or the Blakes. But here was clearly no testimony or acknowledgment that the money had been received for the plaintiffs, or that it was money which belonged to or should have been paid to the plaintiffs. So far as appears it was the profits which Thompson & Co., the original contractors, or Thompson & Co. and the Blakes had made out of the work on section 57, over and above the amount which, by their contract with the Blakes, the plaintiffs were entitled to receive. The prices at which the plaintiffs and the Blakes, respectively, contracted-to do the work are stated in the complaint, and they show a considerable margin of profit in favor of the Blakes; but the prices at which the railroad company contracted with Thompson & Co. do not appear at all in the case.

It seems very apparent that neither the allegations nor the proofs of the plaintiffs were sufficient to charge the defendants with money had and received to and for the use of the plaintiffs.

The complaint was therefore properly dismissed, and the judgment appealed from must be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    Devillo W. Selye, Resp’t, v. Frederick Zimmer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Contract—Parties.
    Plaintiff and another made and delivered to defendant a note, together with a mortgage on plaintiff's real estate as collateral, under an agreement that defendant should procure its discount and pay the proceeds to one F. on orders of plaintiff for certain work to be done in the improvement of the real estate mortgaged. In an action for an accounting and payment of the balance of the proceeds over the orders drawn, Held, that the second maker of the note was not a necessary party to the action.
    2. Same—Pleading.
    Where a complete cause of action on contract is alleged, and proved as alleged, the plaintiff does not, by adding to the allegation of a refusal to pay an assertion that the defendant has converted the money to his own use, convert the action into one for tort; the addition is merely surplusage.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury rendered by direction of the court at the Monroe circuit, and from an order of the same court denying the defendant’s motion for a new trial on the minutes.

      H. B. Hallock, for app’lt; M. W. Cooke, for resp’t.
   Dwight, P. J.

The complaint in the action set out, with great circumstantiality, the details of a transaction between the parties and one Ford, the effect of which was that the plaintiff placed in the hands of the defendant a note of $1,625, made by himself and one Josephine S. Parker, with a mortgage on real estate owned by him, to be used as collateral thereto, under an agreement that the defendant should procure the discount of the note and pay the proceeds to Ford, on the orders of the plaintiff, for certain work to be done by the latter in the improvement of the real estate mortgaged, and as the work should progress; that the defendant, on May 12, 1884, received as the avails of such discount (the note being . on interest and having run some time before it was discounted) the sum of $1,628.05; that the plaintiff drew several orders on the defendant, in favor of Ford, but, as the complaint alleges, not to exceed $500 in amount, when Ford abandoned the work and absconded, and the plaintiff was compelled to pay the note; that he afterwards demanded of the defendant that he account for and pay over to him the balance of the moneys received on the note, which the defendant has neglected and refused to do; “ and,” the pleader adds, “ has converted them to his own use.” The defendant by his answer admits the delivery of the note and mortgage to him “ for the purpose of having the same discounted, as alleged in said complaint,” and that he procured such discount, and avers that he paid the proceeds thereof to Ford. He denies that he agreed to pay the proceeds of the note to Ford as the latter should do the proposed work, and on the order of the plaintiff, but avers that he was to pay over the money to Ford as soon as the note should be discounted.

Upon the issues thus joined the plaintiff gave evidence tending to substantiate all the material allegations of his complaint, among other things tending to show that he had drawn orders in favor of Ford to the amount of $450, which had been paid by the defendant. The defendant gave no evidence, but moved for a nonsuit, and for the direction of a verdict in his favor, on the grounds: 1. That Josephine S. Parker, the other maker of the note, was a necessary party to the action; 2. That there was no measure of damages shown, nor basis from which the court could compute damages; 3. That the cause of action alleged in the complaint is in tort, and the proof shows only a liability for breach of contract. The defendant’s motions were severally denied, and the ■court directed a verdict for the plaintiff; to all of which rulings the defendant excepted.

There was no force in the first ground of the defendant’s motions. There was nothing in the evidence to show that the second maker of the note had any interest in the fund in the hands •of the defendant, except that the note contained the usual clause to bind a married woman’s separate estate, including the statement that it was for her benefit; whereas the undisputed evidence showed that the land to be improved was the sole property of the plaintiff. Besides, the objection, if any, for defect of parties plaintiff was waived by not being taken either by demurrer or answer. Code of Civ. Pro., § 488, subd. 6 and § 499.

The objection that the cause of action stated in the complaint is in tort, while that established by the proof is on contract, is not tenable. A complete cause of action on contract is alleged, and is proved as alleged ; and the plaintiff does not, by adding to the .allegation of a refusal to pay an assertion that the defendant has ■converted the money to his own use, convert the action into one for tort; the addition is mere surplusage under the circumstances. Segelken v. Meyer, 94 N. Y., 474. Such words- may be construed as adding force to the allegation of a breach of the agreement, but they do not when considered in connection with previous allegations make the complaint one for the wrongful conversion of the money. Austin v. Rawdon, 44 N. Y., 63.

The cases of Conaughty v. Nichols, 42 N. Y., 83, and Vilmar v. Schall, 61 id., 564, are to the same effect; and that of the People v. Wood, 121 N. Y., 522; 31 N. Y. State Rep„ 860, is authority for the proposition that if upon the facts alleged a cause of action in tort as well as one on contract might be spelled out, it is optional with the plaintiff to waive the tort and rely upon as•sumpsit. There can be no question but that the proofs support the cause of action alleged in the complaint, viz.: a cause of action sounding in contract. The statement in the brief for the appellant to the effect that the court below held it to be a cause of •action in tort finds no support in the record before us.

But there is an apparent discrepancy between the proofs and the verdict, in respect to the measure of the recovery, which we are unable to reconcile. The amount of money received by the defendant was $1,628.05. This was to be reduced, for the purpose of the recovery, by the amount paid out by the defendant on the orders of the plaintiff. The evidence, which was altogether that on the part of the plaintiff, tends to show that- the amount so paid out was $450. The plaintiff drew three orders, all of . which were found in the possession of the defendant, and werepresumbly paid by him. Moreover one of the plaintiff’s witnesses testifies that three orders were, in fact, paid, and by the plaintiff’sown testimony those orders were, respectively, for $150, “ $100, or $150,” and “about $150.” This evidence must, of course, be taken most strongly against the plaintiff, and, so considered, it fixes the amount of the three orders at $450. The defendant was allowed a credit of only $375 ; why that amount it is difficult to-see, unless because the plaintiff, in his testimony, estimates the value of the work done by Ford at that sum. But it is plain that such estimate cannot limit the credit due to the defendant, when it appears that the orders actually drawn by the plaintiff and paid by the defendant amount to the greater sum. It is true-that the plaintiff testifies that he attempted to countermand the last of the three orders, but there is no evidence that the countermand was received before the order was paid. Ho one of the exceptions taken to rulings of the court on questions of evidence seems to indicate error.

The recovery should be reduced by the sum of $75, and interest, and the judgment should be affirmed if the plaintiff consents-to such modification.

Judgment reversed and a new trial granted with costs to abide-the event unless the plaintiff stipulate to deduct from the amount for which judgment was entered the sum of $75, with interest thereon from May 12, 1884, to the date of the entry of judgment,, and if such stipulation is given then the judgment is affirmed, without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.


author: FlNCH, J.

text:
    Alexander T. Compton, App’lt, v. The Chelsea, Resp’t.

      (Court of Appeals,

      Filed October 27, 1891.)

    1. Corporation—For building apartment houses—Laws 1881, chap. 689—Title oe stockholders.
    Where a corporation, organized under chap. 589, Laws 1881, for building apartment houses, by its by-laws provided that all questions as to style-of building, rent and apportioning apartments among stockholders, etc., should be decided by the vote of a majority of stock, a subscriber to stock has no legal title to his apartment, but an equitable right to it upon the-reasonable conditions imposed by the majority of the stockholders. By rejecting those conditions he loses his right to the apartment assigned and. has no title to it upon which he can recover possession.
    2. Same.
    The original prospectus of an apartment building corporation is not a completed contract but a tentative plan, subject by the very law of the corporate organization to such material modifications as the necessities of' the enterprise should require and a majority of the associates direct.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendant, entered upon verdict directed by the court.

      A. T. Compton, for app’lt; Lemuel Skidmore, for resp’t.

       Affirming 87 N. Y. State Rep., 52.

   FlNCH, J.

The decisive inquiry on this appeal is whether the plaintiff was bound by the by-laws of the corporation, and so by the action of the majority of its stockholders.

The “ Chelsea ” became a corporation and was organized as such under chapter 589 of the Laws of 1881. That act permits any three or more persons to organize themselves into a corporation “ for the purpose of purchasing, acquiring, maintaining and improving real estate for residences, homesteads and apartment houses to be leased and conducted by the corporation so formed,” .and authorizes it to distribute its property and. the rents, income and proceeds thereof among its members and stockholders “ in such manner as shall be determined by its by-laws.” Ordinarily, the business of a corporation is conducted by and placed within the control of its board of directors or trustees, but in the present case an important limitation was attached to their authority by the by-laws which were. adopted the day following the formal organization of the company. Article 9 provides that “ all questions as to the purchasing of land, the character and style of building to be erected thereupon, as to how and to whom and at what rent the several apartments shall be leased, and as to the apportioning and distributing of the said apartments among the stockholders shall be decided by the vote of the majority of the stock and not otherwise.” Authority to decide these questions, which were vital to the success and prosperity of the common enterprise, must necessarily rest Somewhere, and the statute authorized the. corporation to settle that for itself through the operation of its by-laws, and these conferred the authority, not upon the trustees, but upon the majority of the stockholders. Notwithstanding that fact the board of 'trustees took it upon themselves to adopt the prospectus which had previously been issued. That contemplated an outlay of $580,000, one-half of which was to be obtained by mortgage of the property and the other half by sales of stock.

The prospectus dealt wholly in estimates and these, as is generally the fact, were hopeful and flattering much beyond the realized truth. A subscription for seventy shares, costing $3,500, it was asserted, would entitle the subscriber to certain apartments on any of the floors without additional rent. But all this was estimate merely, and whoever bought the corporate stock must necessarily take it subject to the authorized control and the emergencies which the actual construction should develop. One of "the subscribers was Cruikshank, who acted for Van Brunt, and to the latter in virtue of his. seventy shares was assigned the apartment in controvery now numbered 21 and whose rights afterwards passed to the plaintiff.

But before the latter purchased great changes in the plan were .•adopted which at once made the results outlined by the prospectus utterly impossible. These changes made the building thoroughly instead of partially fire-proof, added an additional story, and almost exactly doubled the contemplated expenditure. The; plaintiff was present at the stockholders’ meeting at which the changes were made, “ representing his wife,” and favored them all. The by-laws were read at that meeting and in his presence. He therefore perfectly understood the situation and knew before he purchased the seventy shares of Yan Brunt that the estimates of the prospectus had become illusory by reason of the added expenditure. Nevertheless he bought the stock and went into possession of the apartments assigned. But he took that possession subject to the action of the majority of the stockholders as provided by the by-laws.

At a stockholders’ meeting held in January, 1884, which was-after plaintiff’s purchase of Yan Brunt, but before the transfer of the stock to him upon the books of the corporation, it was unanimously determined in view of the increased cost of the structure- and the added burden of the mortgage debt, to increase the capital stock to $500,000 and to charge to the stockholders as rent for their apartments ten per cent upon the par of their stock.

The increased capital was distributed pro rata without additional cost to the stockholders, and the plaintiff when he took his-stock certificate received the sixty seven new shares and became and remains the owner of 137 instead of seventy shares. He rented the apartment assigned to him for $850, thus receiving, as interest-upon his original investment, about twenty-four per cent., and utterly refused to pay the rent or accept a lease as tendered. When his tenant vacated the apartment the corporation resumed possession of it and excluded him from it after having many times; demanded the rent and beerf refused.

I agree with the trial judge that the plaintiff had no legal title-to his apartment, but an equitable right to it upon the reasonable conditions imposed by the majority of the stockholders under the authority of the by-laws. By rejecting-those conditions he lost, his right to the apartment assigned, and has no title to it upon which he can recover the possession. The original prospectus was not an element of a completed contract but a tentative plan,, subject by the very law of the corporative organization to such material modifications as the necessities of the enterprise should require and a majority of the associates direct. It is shown that, the certificate of stock is., only such, and has no connection with .any specific apartment. It simply confers upon the holder the rights of a stockholder, and those rights are subordinate to the-law of the corporate organization. This, view was that adopted, by the courts below and it seems to us correct.

The judgment should be affirmed, with costs.

All concur.