text:
    CHARLES H. TUGMAN, Respondent, v. THE NATIONAL STEAMSHIP COMPANY, Appellant.

      Contract for can'rying goods — when not confined, to goods shipped on shipper’s own account — Removal of actwn to Federal eowt.

    The plaintiff, a resident of Chicago, entered into a contract with the defendant whereby the latter agreed to carry and transport from New York to Liverpool such merchandise, not exceeding a specified amount, as might be furnished by the plaintiff, during certain months, at a specified price. A portion of this merchandise was shipped by the plaintiff on his own account, and the remainder thereof was furnished by other persons, who made a contract with the plaintiff for its transportation The bills of lading were made out at Chicago, the defendant receiving the goods at New York, paying the back freight and collecting the whole amount of freight from the assignees at Liverpool. After the making of the contract between plaintiff and defendant ocean freights increased, so that, as the bills of lading made at Chicago charged for freights at the current rates, those being the rates agreed upon between plaintiff and the parties furnishing the merchandise to him for transportation, the amount received by the defendant at Liverpool for the ocean freights exceeded the amount which, by the terms of his contract, was to be charged to the plaintiff. In an action by the plaintiff to recover this excess, over the contract rates, which had been received by the defendant, held, that he was entitled to recover.
    To authorize the removal of an action from a State court to a Federal court it is not sufficient that it is alleged that the defendant was an alien, a citizen or subject of a foreign State or country at the time the petition for such removal was prepared, but it must appear that such was the fact at the time of the commencement of the action.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    Tbe referee found that on or about tbe 8th day of October, 1874, the plaintiff and the defendant and a certain corporation, known as the Erie and Pacific Dispatch Line engaged in transporting property from Chicago to New York for hire by their duly authorized agents, entered into a contract whereby it was agreed that the plaintiff should ship, or cause to be shipped, on the transpontation lines of said parties 1,000 tons of merchandise from the port of Chicago, in the State of Illinois, to the port of Liverpool, in England, during the month of December, 1874, and the month of January, 1875, at such times and in such quantities as the said plaintiff might elect, and that the same should be carried and delivered from said port of Chicago to said port of Liverpool, the said defendant to receive as its proportion of the said freight of said merchandise from the said port of New York to the said port of Liverpool at the rate of thirty-one cents, gold, per 100 pounds, to be shipped under said contract.
    That, in pursuance of said contract, the said plaintiff during the month of December, 1874, and the month of January, 1875, shipped and caused to be shipped from the said port of Chicago to the said port of Liverpool 2,003,305 pounds of merchandise by bills of lading, by which the consignees of the merchandise so shipped were to pay, on the delivery of the said merchandise at Liverpool aforesaid for the account of such shipper, at the rate of eighty-seven cents in American gold coin for and on account of the through carriage from Chicago to Liverpool for each 100 pounds.

      That the said merchandise was carried by the defendants under said contracts and delivered to the consignees in Liverpool, England.
    That when the several parcels of merchandise so shipped as aforesaid arrived from Chicago at the port of New York the said defendants received the same and transported said merchandise to Liverpool, and collected and received from, the consignees of said merchandise, on the delivery of the same, the freight money due on said bills of lading for freight from Chicago to Liverpool, amounting in the whole to the sum of $16,728 in American gold coin, convertible into currency or legal tender notes at the rate of $110 for each $100 in gold coin, as provided for in said bills of lading.
    That the through freight which the said carriers were entitled under said contract to have and retain for the carriage and delivery of said merchandise, calculated at the rate of sixty-seven and a-half cents per 100 pounds, amounted to the sum of $13,522.17 in American gold coin, as aforesaid, and no more, and the defendants have refused to pay over to the plaintiff the remainder and balance of the said money so collected and retained by said defendants, this being the sum of $3,366.40 in American gold coin or $3,703.04 in currency as aforesaid. »

    And, upon the foregoing facts, found as conclusions of law:
    First. That under the contract aforesaid the defendants were only entitled to retain and have for the freight and carriage of the merchandise shipped under said contract, at the rate of sixty-seven and a-half cents per 100 pounds of the said merchandise.
    Second. That the said amount of $3,366.40 received by the defendants was so received for and on account of, and to and for the use of the said plaintiff, and that he was entitled to recover the same from the said defendants, or its equivalent, in legal tender notes, as aforesaid, being the sum of $3,703.04, with interest from the 20th day of February, 1875, and that the said principal and interest to the date of the report, amounted to the siim of $4,324.53 in currency, for which he directed judgment.

      John Ohetwood, for the appellant.

      S, 8. Rowland and F. J. FilMcm, for the respondent,
   Gilbert, J.:

Satisfactory proof was given of the actual making of the contract with the plaintiff. We are of opinion that the surrounding circumstances and the defendant’s course of business, preclude the limitation which the defendant now seeks to put upon the contract, namely, that the defendant should carry goods only, of which the plaintiff should be the actual shipper. Nothing of that kind was said when the contract was made, and such a limitation would be inconsistent with the nature of the transaction. I should infer, from the evidence, that when contracts like- that in this case are made, the engagements of the carriers created thereby, are dealt with as commodities, and are bought and sold for speculation on the exchanges, in the same manner as engagements for the future delivery of merchandise or stocks. The engagement of the defendant in this case was sold by the plaintiff in parcels to the several shippers of the merchandise. He testified to that fact explicitly, and the evidence was not contradicted. It appears also that the merchandise shipped was delivered to the Erie and Pacific Dispatch Company in Chicago, with orders from the plaintiff that the same should be delivered to the defendant in New York for transportation to Liverpool. The entry made on the defendant’s books of the receipt of the merchandise indicates, very clearly, that it was received in the fulfillment of the defendant’s contract with the plaintiff. The bills of lading also correspond with this version of the transaction. The alteration made in the duplicate handed to the defendant, cannot affect the rights of the parties, and I can discover no legal significance in the act, except to prove notice to the defendant that the shippers had agreed to pay for freight at a greater rate than that fixed by the contract with the plaintiff. It is needless to review all the evidence upon the subject. It is sufficient to say that upon an examination of it we have come to the conclusions expressed.

It is said that the agent of the defendant, by whom the contract with the plaintiff was made, was not authorized to enter into contracts except with actual shippers, and verbal evidence was given to that effect. But “actions speak louder than words.” We are of opinion that the general course of business of the defendant, especially its acts and conduct in respect to this particular transaction, and more especially the fact that the authority to malee the particular contract in this case was communicated to the agent by means of a telegraphic dispatch, which contained no restriction or limitation whatever, are ample to prove both an original authority to make the contract, and a complete adoption by the defendant of the acts of the agent done under that authority.

The merchandise was sent from Chicago under what is called joint bills of lading, that is to say bills of lading executed by the Erie and Pacific Dispatch Company, under a general authority from the defendant. Those bills provided, in the usual terms, for the delivery of the merchandise to the consignees named therein in Liverpool, on payment of the freight stated therein, being that agreed upon between the shippers and the plaintiff, which, as before stated, was greater than would result from the addition of the freight specified in the contract between the defendant and the plaintiff to that which was payable for the carriage of the merchandise from Chicago to New York, freights from New York to Liverpool having advanced in price in the interval between the making of said contract and the shipment of the merchandise. In other words, the freight payable according to the bills of lading embraced a rate for ocean freight in excess of the rate specified in the contract between the defendant and the plaintiff. The merchandise thus sent came forward charged with a lien for all the freight. The defendant advanced to the Erie and Pacific Dispatch Company the amount of freight due that company, and upon the delivery of the merchandise in Liverpool, collected the whole freight specified in the bills of lading. The referee decided that the plaintiff was entitled to recover the excess so received by the defendant over the amount advanced to the Erie and Pacific Dispatch Company, and the freight stipulated for by its contract with the plaintiff, with interest on such excess. "We are of opinion that that decision is correct, for the reason that such excess belongs, in justice and equity, to the plaintiff, and is recoverable as money had and received to his use.

The owners of the merchandise shipped have no claim against the defendant for such excess, for they have paid no more than they agreed to pay. As before stated, they merely purchased from the plaintiff his right to have the merchandise carried. If the plaintiff had acted as their agent in procuring such carriage, they might claim that he was incapacitated from receiving the benefit of his contract with the defendant, and that such excess,' in equity, belonged to them. And if such had been the case the owners would have had the right of action which the plaintiff here claims. The defendant, however, as long as the contract with the plaintiff .remains in force, is divested of all right to retain such excess. The plaintiff did not act as agent of the owners. The merchandise was carried by the defendant under the liability to the owners created by the bills of lading, but the liability to return the excess of freight received, is one which the law implies in favor of the plaintiff and not of the owners. That the law does imply such a liability to somebody, is clear upon principle and authority. (Moses v. Macferlan, 2 Burr., 1005; Eddy v. Smith, 13 Wend., 490; Colvin v. Holbrook, 2 Coms., 130.) That the implication is in favor of the plaintiff is also clear. The defendant, it is true, did not, by its contract with the plaintiff, agree to collect freight due him, but having carried the merchandise and collected the freight upon bills of lading which required the consignees to pay a greater sum for freight than the contract with the plaintiff entitled it to demand, it did, impliedly, undertake to collect the excess for the person entitled thereto. Hence there is no lack of privity between the parties.

We think none of the exceptions of the defendant were well taken. It may as well be mentioned that many of the exceptions of the plaintiff have been argued as if the ruling had been adverse to, and the exception had been taken by, the defendant.

With respect to the point raised at the trial, that this court had been ousted of jurisdiction by the proceedings to remove this action into a Federal court, we are of opinion that the petition of the defendant was fatally defective, because it did not show that the defendant was an alien or citizen or subject of a foreign State or country at the time of the commencement of the action, but only when the petition was prepared. The defendant has also submitted to the jurisdiction of the court, and litigated the action upon the merits, before a referee appointed with its own consent. After these acts it was too late to take the objection of the want of jurisdiction.

The judgment must be affirmed with costs.

Present —Barnard, P. J., Gilbert and Dykman, JJ,

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Gilbert, J.: Barnard, J.

license: Public Domain

text:
    HENRY C. WYETH, Respondent, v. CHARLES O. MORRIS and others, Appellants.

      M'audulent representations — sale of bonds procured by — measure of damiages.

    The defendants having, by false and fraudulent representations, induced the plaintiff to purchase certain railroad bonds, he, upon discovering the fraud some three years after the purchase, brought this action to recover the damages occasioned thereby. The defendants were acting as brokers, for both the purchasers and the sellers. Upon the trial the court charged, as to the measure of damages, that the plaintiff was entitled to recover the actual damages which resulted from defendants’ conduct up to the time when he first discovered the fraud — the difference between the sum paid and the value of the stock— that is, the difference between the price paid and the actual value of the bonds at the time when the plaintiff discovered the fraud.

      Held, that the charge was incorrect; that the measure of damages was the difference between the actual value of the bonds at the time of the sale and their value as they were represented to be.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. ' The action was brought to recover damages alleged to have resulted from false representations, whereby the plaintiff was induced to purchase certain railroad bonds. By agreement between the defendants and the plaintiff a certain portion of the formers’ commissions on the sale were allowed to the plaintiff.

      Wm. H. Leonard and John T. Iloffmam,, for the appellants.

      E. Louis Lowe, for the respondent.
   Gilbert, J.:

This is an action for damages, which resulted from false and fraudulent, representations of the defendants, whereby the plaintiff was induced to purchase twenty-five first mortgage bonds of the Selma, Rouse and Dalton Railroad Company, of $1,000 each, at fifty-nine cents on the dollar. The defendants acted in the transaction as agents or brokers, for both seller and purchaser, and received from the seller, as their commission for making the sale, five of the same kind of bonds for $1,000 each, and paid the plaintiff, as his share of said commissions, $250 in cash.

Upon the question of fact, whether the fraud alleged had been committed, we think the evidence was sufficient to carry the case to the jury. No exception was taken to the charge of the judge upon that subject. The evidence of the fraud, it is true, is not as satisfactory as a plaintiff, in an action of this kind, may reasonably be expected to produce. Still, it was the province of the jury and not of the judge, to determine its effect. The defendants made an unusual profit out of the transaction, without the knowledge or assent of the plaintiff. Such conduct is inconsistent with an agent’s duty towards his principal, and it had a strong tendency towards establishing the fraud alleged. (See Dorris v. French, 4 Hun, 296.) We think, however, that the judge erred in his instruction to the jury respecting the rule of damages, namely, “that the plaintiff was entitled to recover the actual damage which resulted from their conduct up to the time when he first discovered the fraud; ” and, again, “ that the rule (of damages) is the difference between the sum f aid and the value of the stock; ” and, finally, “ the damages are to be computed upon the principle — that is, the difference between the price paid, that is sixty, one per cent off — and the actual value of the bonds at the time when the plaintiff discovered the fraud.”

The action seems to have been treated by the plaintiff, on the trial, as one against the defendants, as the sellers of the bonds, upon an actual rescission of the contract of sale. An amendment of the complaint was allowed for the purpose of making the action one of that kind. We think that amendment should not have been allowed. The defendants were only agents and not sellers. The action can be deemed one for deceit only. A principal cannot be made liable in such an action for the fraud of his agent, nor can the agent be made liable, as upon a rescission of the contract of sale, to restore the consideration, unless the principal was not disclosed, and the plaintiff dealt with the agent as principal. The liability of the defendants is for the deceit; and the rule of damages proper to be applied to them is the one governing such actions. That rule is a well-established and very plain one. The measure of damages is the difference between the actual value of the bonds and the value of them as they were represented to be. Market value is pertinent but not conclusive evidence on such a question. It appears that these bonds had a market value, although they were not quoted on the stock list. Persons interested in the railroad made purchases and sales of the bonds long after the purchase by the plaintiff. Whether the plaintiff could have sold his bonds without cheating somebody else is not now the question. Generally speaking, a thing is worth the price it will bring in the market when it is offered for sale fairly and honestly. If it has no market-price, its value must be ascertained in some other way. But, howsoever it may be determined, it is the value at the time the fraud was committed which measures the liability of the person who committed the fraud. (Haight v. Hayt, 19 N. Y., 471; Hubbell v. Meigs, 50 id., 492.) The plaintiff has been allowed to recover the sum which he paid for the bonds with interest thereon, upon evidence that the bonds became worthless three year's after his purchase. Non oonstat, that much of that depreciation should be attributed to causes which occurred after the plaintiff’s purchase, and for which the defendants are not responsible. Such a recovery cannot be upheld.

Several exceptions to the admission of evidence were taken upon the trial. But as a new trial must be had on other grounds, we have not considered them.

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

Barnard, J.

(dissenting):

I am of opinion that the rule of damages was correctly stated in the judge’s charge to the jury, at the trial of this action. If one person, by fraud, induces another to purchase stock, and the purchaser holds it until it becomes worthless, before he discovers the fraud, the measure of damages should be the difference between the price paid for the stock, with interest thereon, and the value of the stock at the time when the fraud was discovered by the purchaser. Otherwise, the rule as to damages for wrongs would not be observed, which is, that a wrong-doer must pay all damages resulting from the wrong done. Assuming that the stock purchased by the plaintiff was worth more at the time of the sale than it was at tbe time when be discovered tbe fraud, still, it was tbe fraud wbicb induced tbe bolding of tbe stock, until tbe discovery, and tbe intermediate depreciation should be paid by tbe wrong-doer.

Present — Barnard, P. J., Gilbert and Dykman, JJ.:

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


author: Gilbert, J.-:

text:
    ADELIA K. BROOME, Respondent, v. HELEN F. TAYLOR and JAMES T. TAYLOR, Appellants.

      Action upon bond given by married woman — complaint in — what allegation itrmst contain.

    In an action against a married woman and her husband upon a bond executed by them, it is sufficient if the complaint allege the execution, and delivery thereof by the defendants to the plaintiff, and set forth a copy of the bond. It is not necessary that it should contain any allegation as to her separate property or business.
    Appeal from a judgment in favor of tbe plaintiff, entered upon an order overruling a demurrer to the complaint.

      Smnuel J. Crooks, for the appellants.

      M. P. Mason and Geo. C. Blamke, for tbe respondent.
   Gilbert, J.-:

Tbe complaint sets forth that defendants made and delivered to plaintiff, their bond, a copy of wbicb is set out in full, alleges there was due plaintiff thereon, from the defendants, $10,000 and interest, and demands judgment for that sum.

Tbe bond purports to have been made by Helen F. Taylor and James T. Taylor, her husband, to tbe plaintiff.

Tbe defendants separately demurred to tbe complaint, on tbe ground that said complaint did not state facts sufficient to constitute a cause of action.

On plaintiff’s motion at' Special Term, an order was made that the demurrer be overruled as frivolous, and plaintiff have judgment thereon with costs.

From this order an appeal was taken to the General Term, where the order was affirmed, and an appeal was then taken to the Court of Appeals, which appeal was dismissed and final judgment was entered in favor of plaintiff on the 13th day of June, 1877, for the amount claimed with costs, $11,129.06. A motion by defendant for leave to answer over was denied at Special Term and at General Term, and the Court of Appeals dismissed defendant’s appeal from the order denying said motion.

The present appeal is from the final judgment entered against defendants, June 13th, 1877, upon the order granting judgment on account of the frivolousness of the demurrers. This court has already passed upon the precise question in this case by the order overruling the demurrers. That order is res adgudAcata. (9 Hun, 155; Bouchaud v. Dias, 3 Denio, 238.) Hpon a re-examination of the subject, we think the judgment is clearly right. The act of I860, as amended by the act of 1862, provides that “ any married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, in the same manner as if she were sole.” “A married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate, in the same manner as if she were sole.” (3 R. S. [6th ed.], 161, §§ 84 and 86.)

It is not necessary that a complaint against a married woman upon her bond, should contain special allegations in regard to her separate-property or business, but it is sufficient to give a copy of the bond. (Code of Proc., § 162; New Code, § 534.) This court recently decided at General Term, in the third department, that “ since the statutes of 1860 and 1862, the special facts establishing the liability of a married woman need not be alleged in the complaint.” (Willsey v. Hutchins, 10 Hun, 502.) And in Frecking v. Holland (53 N. Y., 422), Andrews, J., delivering the opinion of the Court of Appeals, said, “We are of opinion that a general complaint in an action upon a contract of a married woman is proper. * * * If the contract sued upon is one she is not authorized to make, the objection should be taken by answer and raised upon the trial.” In Smith v. Dunning (61 N. Y., 249), the Commission of Appeals in an action against a married woman, held that “-it was wholly unnecessary to allude in the complaint in any way to her coverture or separate estate. Her coverture was matter of defense to be set up if available, and the judgment against her is properly the same in form and effect as if she were unmarried.” In Westervelt v. Ackley (62 N. Y., 507), a counterclaim against the plaintiff, was sustained, the court holding that she should have alleged in her reply that she was a married woman, and have resisted the defendant’s demand on that ground, for if the point had been taken additional evidence might have been given by defendants to show plaintiff’s separate liability, notwithstanding the coverture.

We have been referred to the opinion of Allen, J., in the case of Nash v. Mitchell, recently decided in the Court of Appeals, in which it was held that the onus was upon him who asserts the validity of a contract with a married woman to prove it. The question in that case related to the sufficiency of the evidence given upon the trial. That is quite a different question from that presented here, which involves merely the sufficiency of the complaint. The latter question is answered by the statutes and authorities cited. A married woman may be sued in the same manner as if she were sole.

The judgment must be affirmed.

Present — Gilbert and Dykman, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Gilbert, J.:

text:
    JOHN COWEN, Committee of MARTIN HIGGINS, a Lunatic, Respondent, v. JOHN QUINN, Appellant.

      Public officer — action against — • where triable.

    The warden of the city prison, in New York, is a public officer, and an action brought to recover damages for an act done by him in virtue of his office, must be tried in the county of New York.
    Appeal from an order made at tbe Special Term, denying a motion to change tbe place of trial of this action.

      Wingate & Cullen, for tbe appellant.

      James C. Tighe, for the respondent.
   Gilbert, J.:

Higgins (of whom tbe plaintiff is tbe committee) was committed to prison in New York as an insane person, April 22, 1877, by order of one of tbe Commissioners of Charities of that city.

Tbe complaint alleges that an order was made by said Commissioners of Charities to deliver him to his friends, but that tbe defendant, “ who then and there bad tbe said Higgins in bis charge and custody, by virtue of said order, refused to release him; ” for which tbe plaintiff demands damages.

Tbe defendant is warden of tbe city prison in New York, and as such be received and refused to release Higgins.

Defendant, after due demand to change tbe venue, moved to transfer tbe case to New York, on tbe pleadings, and an affidavit alleging:

I. That he bad four witnesses, who resided in New York.

II. That be himself, as well as two of said witnesses, were public officers of tbe city of New York (said Quinn being warden of said prison), and could not leave tbe city without neglecting important public duties.

Tbe plaintiff swore to but two witnesses, who reside in New Utrecht. Tbe motion was denied, and tbe defendant appeals.

Tlie defendant is a public officer, and the action is for an act done in virtue of his office. In such a case the statute (Code, § 983 ; former Code, § 124) requires that the action shall be tried in the county where the cause of action arose. We have no discretion in the matter.

The order must be reversed, with ten dollars costs and disbursements.

Dykman, L, concurred; Barnard, P. J., not sitting.

Order denying change of place of trial reversed, with costs and disbursements to abide event, and motion granted.


author: Gilbert, L :

text:
    In the Matter of the Application of the PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY to acquire title to lands of MOYNAHAN and others.

      Taking la/nd for railroad purposes — compensation to Icmdownm.

    Under an act of the legislature certain land was taken to be used as a highway, one section of the act gave a license to a railroad company to lay their track thereon and use the same. This license was subsequently declared invalid, because no compensation was made to the owners for the additional burden thereby imposed upon their lots.
    In a proceeding instituted by the company to acquire title to the land under the general railroad act, held, that the commissioners to appraise damages should regard the land in the avenue as still forming a part of the parcels to which it had belonged, but subject to the easement of a highway, and should award as damages the difference between the market value of the whole property from which the railroad was to be severed, before the taking, and its value after the taking, with the railroad upon the land taken.
    Appeal from au order confirming the report of commissioners of appraisal appointed to appraise the compensation to be made by the petitioner, the railroad company, for the real estate proposed to be taken by the company for the purposes of their incorporation. The strip of land proposed to be taken by these proceedings is in the center of a public highway called Gravesend avenue, which had been opened and graded by commissioners, pursuant to chapter 531 of the Laws of 1873, and an act amendatory thereof, being chapter 216 of the Laws of 1874. The company do not seek to extinguish the fee, but to acquire the easement for railroad jiurposes.
    -The strip in question is owned in fee by twenty-two different owners, as appears by the petition and report herein, subject to the perpetual easement of the public therein as a highway.
    The act allowing the railroad company to construct a steam road had been passed and had become a law, before the commissioners for opening Gravesend avenue had done any act under their appointment except to organize.
    The commissioners herein awarded one dollar in each case, except three. In one of those three dollars and in the other two six cents.

      Benjamin G. Hitehvngs, for the landowners, appellants.

      John H. Bergen, for the respondent.
   Gilbert, L :

Notwithstanding the positive language of the seventeenth section of the general railroad act, the court has power to deny the motion to confirm the report of the commissioners of appraisement, upon proper cause being shown. It is not, however, sufficient cause to show that the commissioners erred in the guanvbum of compensation awarded; that is a matter which can be properly brought up -for review only by an appeal from the report of the commissioners. (Matter of N. Y. Central Railroad, 64 N. Y., 60; Gen. Railroad Act, chap. 140 of 1850, § 18; L. 1854, ch. 282, § 6.)

Such an appeal is now before us, and it appears, from the papers, that the commissioners acted upon the principle that the landowners were entitled only to nominal damages. No doubt there have been cases where land in a highway has been taken for public use, in which the owner suffered only nominal damages; as, for example, where the taking was a benefit rather than an injury to the landowner, and the' property actually taken had no appreciable value. The case of The Southside R. R. Co. v. Broisted, cited by the petitioners, it is to be presumed was such a ease. It does not appear here, however, that the landowner has suffered more than nominal damages. The taking of the land in the highway for the use of the railroad is a fresh- taking bf the property of the landowner, for which he is entitled to just compensation, Gravesend avenue was not taken originally for a railroad but only for a highway. The land was taken for that easement only. (Laws of 1873, chap. 531, § 4.) The license granted by the thirteenth section of that act, to the petitioner, to build and operate a railroad on said avenue, was ineffectual, because compensation had not been made for the land taken for that use, and the exercise of that license made the petitioner a trespasser. We are not called upon to review that legislation, for we have no power to reject it. Persons who complain of the injurious effects of statutes are quite too much in the habit of looking to the courts for redress, whereas the only remedy for such evils lies with the people alone, and consists in their power to turn out an unfaithful representative and to put a better man in his place. It does not follow that because the license was unavailing, that the damages, which are recoverable for a continuing trespass, constitute the measure of compensation to which the landowner is entitled for the taking of the land for such use. The rule is clearly otherwise. When the petitioner shall have duly acquired the property it will have a perfect right to use it for the purposes of a railroad. Such a use becomes at once lawful, and any indirect or consequential injury which may happen from such use, without fault or negligence of those who use the railroad, is drnrmum ■absque wiguria. That principle was settled in Radcliff’s Exrs. v. Mayor of Brooklyn (4 Comst., 195), and it has been followed ever since. What, then, is the rule of damages ? I think it is in substance, the rule suggested by the respondent’s counsel, namely: “The true inquiry is, what was the whole property from -which the railroad was severed, fairly worth in the market, before the taking, and what was its value, after the taking, with the railroad upon the land taken ? ” After a careful consideration of the authorities I am satisfied that this is the true rule. If the railroad has benefited the land owner, such benefit cannot be taken into consideration, but in such case the value of the land actually taken must be awarded. But in determining such value, allowance must be made for the easements to which the land had been previously subjected. In some cases that would naturally reduce the compensation to be awarded to a nominal or nearly nominal snm. If the taking is an injury to the landowner beyond the value of the land actually taken, such injury must be measured by the depreciation of his remaining property, which was caused solely by such taking; for, it is only for the taking of prop/erty that the Constitution requires compensation to be made. The legislature may, unquestionably, require compensation to be made for indirect and consequential damages ; but they have not done so in the present instance. We are, therefore, remitted to the provision of the Constitution which requires compensation to be made for the taking of private property, and not for the use to which the property may be legally subjected after it has been taken.

Applying that rule to the case before us, we think the commissioners should regard the land in the avenue as still forming a part of the parcels to which it belongs, but subject to the easement of the avenue. The compensation to be awarded will be ascertained by an application of the principle stated, to land in such a condition.

The report of the commissioners must be set aside and sent back to Daniel Chauncey, James S. T. Stranahan and Richard Ingraham, who are hereby appointed commissioners.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirming report of commissioners reversed, and report set aside and proceedings sent back to Daniel Chauncey, James S. T. Stranahan and Richard Ingraham, commissioners, without costs to either parties.


author: Dykman, J. :

text:
    In the Matter of the Petition of GEORGE W. MEAD to reduce an assessment.

      City of Brooklyn — moating assessments in — burden of proof — seo. 13 of chap. 633 of 1875.
    Since the passage of section 13 of chapter 633 of 1875 the statutory remedy, by petition, against void or avoidable assessments for local improvements in the city of Brooklyn, is confined to that portion of any such void or voidable assessment which is in excess of the fair value of the work actually done and the materials actually furnished, and which is, consequently, the result of fraud or extravagance.
    As it is only that portion of the assessment which is in excess of the fair value of the actual local improvement which is subject to review by petition, it rests upon the petitioner 'to allege and prove the existence and amount of such excess.
    As the right to review an assessment by petition was created by an amendment to the city charter, which amendatory act had a charter title, such right could be constitutionally abridged or taken away by another amendment to the charter, having also a charter title. Any other construction would make the grant of the remedy by petition unconstitutional.
    Appeal from an order made at tbe Special Term, reducing an assessment on certain lots of the petitioner from $243.18 on each lot to tlie sum of fifty-dollars on each of them.
    ■ The application was made to have an assessment on certain lots belonging to the petitioner reduced, on the ground that the amount of such assessment exceeded one-half of the assessed valuation of the lots and was in violation of section 5 of chapter 169 of 1861.

      William O. De Witt, for the city of Brooklyn, appellant.

      George W Mead, in person, and Jesse Johnson, for the respondent.

       See Matter of Adams, post, 355.

   Dykman, J. :

This case presents a most important statute for construction. It is contained in section 13 of chapter 633 of the Laws of 1875, and is as follows :

Section 30. “ None of the provisions of any act of the legislature of this State shall enable or permit any court to vacate or reduce any assessment in fact or apparent, whether void or voidable, on any property, for any local improvement in the city of Brooklyn otherwise than to reduce any such assessment to the extent the same may have been, in fact, increased in dollars or cents by reason of fraud or irregularity, and in no event shall that proportion of any such assessment which is equivalent to the fair value of any actual local improvement, be thereby disturbed.”

This statute does not abridge the powers of this court otherwise than in respect to a single remedy against assessments granted by special legislation. Actions in equity or proceedings under the writ of certiorari being within the original jurisdiction of the Supreme Court are not affected.

The subject for consideration is, therefore, limited to the summary remedy by petition. This remedy was first instituted in and for the city of New York by a special act (chap. 338) j>assed April 1Y, 1858, entitled “An act in relation to frauds in assessments for local improvements in the city of New York.” This act enabled courts in that city, on petition by a party aggrieved, and after short notice to the city, to investigate the proceedings leading to any assessment, and upon the discovery of fraud or irregularity, to vacate the same by a summary order. This remedy was extended to the city of Brooklyn by a section in an act to amend the charter of Brooklyn, passed in 1862, and it has since been regulated _and modified in and for Brooklyn by several charter amendments. (See Laws of 1862, p. 205, chap. 63, § 43 ; id., 18Y1, chap. 483; id., 18Y3, chap. 863, § 38.)

As the title to the act which instituted it indicates, this summary judicial proceeding owes its existence, no doubt, to the frauds and extravagance which characterized, at one time, the internal administration of the affairs of the city of New York, and, to a less extent, the city of Brooklyn. As the old common-law writ of certiorari afforded a sufficient and appropriate means for trying the statutory validity of any assessment, it is not likely the legislature had in view mere technical illegalities.' Nevertheless, as such was the language of the act, the courts were compelled to permit the remedy to extend as well to questions of statutory regularity as to matters of substantial fraud. It became, therefore, not merely a swift means of redress against the burdens imposed by official corruption and fraudulent contracts, but also a ready process by which, upon barely technical grounds of law, immense amounts of public indebtedness were taken from those who should have fairly borne the burdens, and thrown upon the city at large. It is a matter of public judicial history that large assessments for which there weye outstanding city bonds, were vacated because an advertisement had been omitted from one out of many newspapers, or the common council had acted in one capacity rather than, another, or some preliminary formality had been neglected, and for a large number of other like subtle reasons having little support in sound justice ; and it has been said that upward of 1,000 petitions of this character were pending in this court upon the adoption of the statute now under construction.

It is obvious, therefore, that in the adoption of this statute the legislature intended to limit the power of the courts to that portion of any assessment which might be the product of fraud or extravagance. While upon the one hand the party assessed should not be held liable for the corruption or improvidence of city officials, upon the other that portion of the completed city which had hitherto borne the expense of its own local improvements should not. be compelled, by mere technical defects, to bear the same expense for the new and incomplete portions of the city. At least, in view of the fact that the remedy by certiora/ri afforded full redress against purely statutory irregularities, there could be no just legislative motive for adding thereto a’ summary remedy by petitions.

Hence in 1873 the legislature provided with reference to this remedy, that whenever any irregularity or fraud shall be shown in any such assessment proceedings, whereby the expense of any local improvement has been unlawfully increased, the court shall thereby only have authority to reduce the assessment by as much as it had been increased by such fraud or irregularity.” (Laws of 1873, chap. 863, § 38.) Under the severe rules governing statutory construction it was held that where the irregularity was jurisdictional the increase referred to in this statute covered the whole amount involved, or was from nothing to the amount assessed. Then, at last, the legislature passed, in behalf of the city of Brooklyn, the statute of 1875 (chap. 633), which, in precise and explicit language in reference to void or voidable assessments (in § 13), prescribes that in no event shall that projiortion of any such assessment which is equivalent to the fair value of any actual improvement, be by this remedy disturbed.

, It seems, therefore, from the substance and history of this legislation, that the statutory remedy by petition against void or voidable assessments in the city of Brooklyn is now confined to that portion of any such assessment which is in excess of the fair value of the work actually done and material actually furnished, and is, consequently, the result of fraud or extravagance. Courts will not, by subtle construction, defeat an object of the legislature so persistently pursued and at length plainly attained.

Having thus reached a clear construction of the statute in question, the points presented by the respondent are easily disposed of. It being established that the amount contained in any assessment in excess of the fair value of the actual local improvement is the only subject-matter for the exercise of the remedy by petition, it is manifest, from the most elementary rules of evidence, that the petitioner must prove the existence of such an amount. This excess is the sole cause of action, and until, as matters of fact, it is disclosed, the court is forbidden to act. Indeed, this remedy never had any thing to do with lawful and fair assessments. It can only reduce void and voidable assessments the amount they have been increased; not by reason of pure invalidity, because that would include the whole, and render the statute meaningless; but the amount they have been in fact increased in dollars and cents by reasoii of such fraud; or, if there be only statutory irregularity, the amount in which such irregular assessment may exceed the fail-value of the actual local improvement involved. The whole statute must be taken together, and it confines this remedy to the excessive charge.

The affirmant in any action or proceeding must show each essential ingredient of his cause of action. In actions for malicious prosecution the plaintiff must allege and prove want of probable cause, and in summary proceedings to eject a tenant for holding over without permission, the landlord' must affirmatively prove the want of permission. Under the statute in question the remedy is restrained to the amount in excess. This amount is not merely an ingredient of the petitioner’s cause of action; it is his whole cause of action. It is not simply a condition to the exercise of the remedy; it is the only subject-matter upon which the remedy can act at all. It is obvious, therefore, that the petitioner must disclose it before the court can move; and to say that it can be taken as presumptively proven by the appearance of statutory irregularity, is to violate the whole spirit and purport of the act, which, in terms, protects against just such technical disturbance, that which concededly is void or voidable and exist only in fact or appearance.

In the present proceeding it appearing by the assessment roll that a certain proportion of the assessment was in excess of a limitation to one-half of the value of the property assessed prescribed by the act of 1861 (chap. 169, § 5), and hence invalid, the court below, without taking further proof, assumed the power to cancel the invalid amount. Here was obvious error. It is in respect to void or voidable assessments, in whole or part, that the statute provides that that proportion thereof (i. e., of that which is void) which is equivalent to the fair value of the actual local improvement, shall in no event be disturbed. If the mere appearance of the invalidity were sufficient then the restraint upon the remedy is nugatory, and the whole object of the statute may be defeated. What if it does appear that the assessment is, in whole or part, void or voidable ? It is in respect to that very thing that the remedy is limited.

It is not necessary to notice the constitutional objection that such a provision restricting a court remedy cannot be included in a charter act. The remedy itself was granted for the city of Brooklyn by a charter act, and never otherwise. It has been too frequently acted upon by our highest courts to be disturbed, and to hold that it was not thus lawfully granted would turn the petitioner out of court. If, then, the remedy might • be granted by a charter act, it could be modified, altered or repealed by a charter act. The act giving the remedy, and the act restricting it, springs from the same source of legislative power alone. The remedy which the legislature could establish in the charter act of 1862, it could alter in the charter act of 1875, and the petitioner must use it as altered in 1875, or he cannot use it at all.

It is idle to endeavor to imply authority outside of charter acts from the act of 1871. True, that act has not, in terms, a charter title, but it consists of a single section which provides that section 43, chapter 63 of the Laws of 1862 (the amendment to the charter giving the present remedy in Brooklyn and with a charter title), shall read as follows — rewriting the sections in different form.

This merely amends the act of 1862 through the same form it was originally passed. Indeed, according to the express terms of the act of 1871, its single section must be read as section 43 of the áet of 1862, and under the title of that act of 1862. This leaves the whole legislation under charter titles. Again, the title to the act of 1871, though not in precise terms is still in substance, a charter title. (People ex rel. Rochester v. Briggs, 50 N. Y., 553.) The criticism founded on the fact that the statute in question is made a substitute for the last section of the charter which reads, “ This act shall take effect immediately,” instead of some other section, is frivolous. The legislature adds, in the amendment, another section to the same effect, and if it did not, the Constitution fixed the period for the commencement of the operation of all laws containing no specific provision on the subject. This, like all the other subtleties employed to vacate assessments only enforces the necessity of applying the restraints imposed by the legislature, limiting the courts in summary proceedings to matters of substantial grievance.

The order of the Special Term must be reversed, with costs.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Order reversed, with costs and disbursements.


author: Dtkman, J. :

text:
    In the Matter of the Petition of RUSSELL W. ADAMS and others to vacate an assessment, etc.

      Vacating assessments in Brooklyn —• chap. 663 of 1875 —• chap. 169 of 1861.
    Since tlie passage oí section 13 of chapter 663 of 1875, in relation to vacating assessments in the city of Brooklyn, the provisions of section 5 of chapter 169 of 1861, directing that “no assessments on any piece or parcel of land shall exceed in amount one-half of the value thereof,” is no longer in force, so as to justify the reduction of an assessment in accordance therewith.
    Appeal from an order made at the Special Term reducing assessments on plaintiffs’ lots. The plaintiffs applied to have assessments upon certain lots in the city of Brooklyn owned by them reduced and vacated. Upon the hearing the justice decided as follows: “The assessment against lands of Jane IToffman and Helena Rogers, between. Dean and Bergen streets, should be vacated.
    “ The item for extra work in changing the grade from Sackett street to the city line, amounting to $4,195.20, should be deducted from the gross amount of the assessment, together with interest, collectors and assessors’ fees thereon.
    “ I find from the proofs that the actual amount of benefit accruing from said improvement is to the extent of seventy-eight and one-third per cent of the prices charged, allowed and assessed, and the assessment is sustained to that extent and vacated as to the balance, the same having been increased to that extent by irregularities.
    “ I also further find that upon those lots where the assessment exceeds in amount one-half of the assessed value that the amount of such excess is an irregularity, and to that extent should be vacated, it appearing in these cases that the actual fair value of the improvement does not exceed one-half of the assessed value of said lots.”

      Edward B. Merrill, for the petitioner.

      Wm. G, De Witt, corporation counsel.

       See Matter of Mead, ante 349,

   Dtkman, J. :

The assistance of the legislature, in relation to assessments for the opening of streets and avenues, has been frequently invoked in behalf of the city of Brooklyn, and the great object of all such legislation has been to devise a plan by which, on the one hand, the party assessed should not be obliged to bear any burden of taxation imposed upon him by official corruption-or improvidence, and on the other, the portion of the city which had already borne the expense of its own local improvement should not be compelled by mere technical defects to pay the expense of an improvement in the new portion of the city also.

The first steps towards this consummation was made by the enactment in the law of 1861, that no assessment on any parcel of land should exceed in amount one half of the value thereof. (Chap. 169, Laws 1861, § 5.) This provision, however, was entirely in the interest of the landholder and left the expense of improvements beyond the one-half of the land assessed therefor to fall on the city at large. As a remedy for this evil, chapter 483 of the law of 1871 was enacted, and was re-enacted by section 38 of title 18 of chapter 863 of the Laws of 1873, which last law is the amended charter of the city of Brooklyn. This section provided that “ whenever any irregularity or fraud shall be shown in any such assessment proceedings, whereby the expense of any local improvement has been increased, the court shall thereby only have authority to reduce the assessment by as much as it has been increased by such fraud or irregularity.” This enactment was intended as a step in the other direction in the interest of the city. It was soon found to fall far short of the object for which it was intended, for the courts were obliged to hold, that where the irregularity was jurisdictional the increase referred to covered the whole amount involved, and so the whole assessment might, under this statute be entirely swept aside for the merest irregularity, and the whole expense of the improvement be thrown upon the city at large. This was the state of the law when section 13 of chapter 633 of the Laws of 1875, amending section 30 of chapter 863 of 1873, was enacted as follows : “ None of the provisions of any act of the legislature of this State shall enable or permit any court to vacate or reduce any assessment, in fact or apparent, whether void or voidable on any property for any local improvement in the city of Brooklyn, otherwise than to reduce any such assessment to the extent the same may have been in fact increased in dollars and cents by reason of fraud or irregularity, and in no event shall that proportion of any such assessment which is equivalent to the fair value of any actual local improvement be thereby disturbed.” Thus, in plain and unequivocal language is accomplished what the legislature has had steadily in view, since its first enactment in 1861. We have been called upon for a construction of this statute at the present term of the court in the Matter of the Petition of Mead, and have held that by it the legislature intended to limit the power of the court to that portion of any assessment which might be the product of fraud or extravagance, and that the statutory remedy by petition against void or voidable assessments in the city of Brooklyn is now confined to that portion of any snch assessment, which is in excess of the fair value of the work actually done and material actually furnished, and is consequently the result of fraud or extravagance. That the jurisdiction and power of the court is limited to that portion of an assessment void or voidable, which is in excess of the valne' of the work done and material furnished, and that, inasmuch as the excess beyond the fair value of the improvement is the only subject-matter for the exercise of the remedy by petition it rests with the petitioner to show the existence of such amount.

Now in this proceeding, under appropriate allegation for that purpose in the petition, testimony has been taken on both sides in respect to the value of the work done, and a finding has been made by the court which is not very intelligible in the light of the facts disclosed by the appeal book. The decision is, that the whole assessment-against the lands of Jane Hoffman and Helena Rogers, between Dean and Bergen streets should be vacated. No reason is disclosed for this sweeping vacation and none can be gathered from the papers. It is plainly at war with the statute of 1875, if not with that of 1861.

The next clause in the decision is, that the items for extra work in changing the grade from Saekett street to the city line, amounting to.$1,195.20 should be deducted from the gross amount of the assessment, together with interest and collectors and assessors’ fees thereon. Here there is a deduction from the assessment in dollars and cents without any decision or finding that it has been increased by fraud or irregularity, or that it is in excess of the fair value of the work actually done : even if there was fraud or corruption that proportion of the assessment which is equivalent to the fair value of the work actually done can, in no event, be disturbed thereby.

Then there is a finding that the actual amount of benefit accruing from the improvement, is to the extent of seventy-eight and one-third per cent of the prices charged, and the assessment is sustained to that extent, and vacated as to the balance, the same having been increased to that extent by irregularities.

Under none of the statutes mentioned above has the benefit accruing from any improvement been given any influence whatever in determining the validity of any assessment. Under the statute of 1861 no assessment could exceed one-half of the value of the land assessed, and under the statute of 1875, as we have seen, the text is ignored, and the excess above the fair value of the work made the only subject for the action of the court. Neither can an assessment be increased by statutory irregularities. Fraud or irregularity is made by the State the foundation of the jurisdiction of the court in these' proceedings, but the assessment can only be reduced by reason of corruption or extravagance.

It is further found, that upon those lots where the assessment exceeds in amount one-half of the assessed value, the amount of such excess is an irregularity and to that extent should be vacated, it appearing in these cases that the actual fair value of the improvement does not exceed one-half of the assessed value of said lots. The finding that the assessment in excess of the one-half of the assessed value of the lots is an irregularity is under and in obedience to the law of 1861, which, as we have seen, is no longer controlling. The last part of the finding looks. as though it was intended to conform to the statute of 1875, but it is really a recital of what appears rather than a finding of fact, and it is impossible to gather the fact from the papers on appeal.

We think, therefore, the court has subordinated its actions to the rule established by the law of 1861 in the disposition of this case, and has not yielded to the statute of 1875 the control which it must have.

The court below may have refused obedience to the statute of 1875 by reason of the constitutional objection, that the powers of the court possessed under the law of 1862 cannot be abridged .by a charter act. ¥e have examined that question in Mead’s case and find no embarrassment in it at all. The powers of this court to vacate assessments in the city of Brooklyn, by summary orders on petition of the parties aggrieved was first given by chapter 63 of the Laws of 1862, above mentioned. That was a charter act, and by it the provision of the act entitled “An act in relation to frauds in assessments for local improvements in the city of New York, passed April 17, 1858, were extended and made applicable to the city of Brooklyn and to the proceedings relative to any assessment for the local improvement therein.

The same law was adopted in the act to amend the charter of the city of Brooklyn in 1873, which was also a charter act, so that all the jurisdiction over the subject which is possessed by the court comes through charter acts, and it was certainly competent for the legislature to amend the charter of the city in the way it has done by the charter act of 1875.

The order appealed from must be reversed with costs and disbursements.

Barnard, P. J., concurred ; Gilbert, J., did not sit.

Order reversed with costs and disbursements.


author: Dykman, J.:

text:
    GILBERT S. TERRY, Appellant, v. THE FLUSHING, NORTH SHORE AND CENTRAL RAILROAD COMPANY, Respondent.

      Bmb'oad company — tickets issued by — right of passenger' to stop over.

    On February seventeenth plaintiff purchased from defendant at Patchogue an excursion ticket to Brooklyn which stated, “ Good until three days after date. Excursion ticket,” and on the same rode to Brooklyn. On the following day he took a train from Brooklyn which arrived at Babylon late at night and did not connect with any train for Patchogue. He drove to the next station east, remained there over night and in the morning took a train for Patchogue from which he was ejected by the conductor, in compliance with a regulation of the company providing that stop-over checks should not be given on excursion tickets.

      Held, that the company were authorized to remove him, and that he was not entitled to recover, no unnecessary violence having been used.
    That plaintiff, under his contract with the company, could only demand a continuous passage, and had no right to stop over at intermediate points.
    Appeal from a judgment in favor of the defendant entered upon a nonsuit ordered at the Circuit, and from an order denying a motion for a new trial made upon a case and exceptions.

      Miller <& Tuthill, for the appellant.

      Edward E. Sprague, for the respondent.
    The defendant was entitled to make any and all reasonable rules with reference to the use of its tickets, and was not bound to make such rules known to the public except „ in response to inquiry. (Dietrich v. Penn. B. B. Co., 71 Penn. St., 432 ; 3 Am. Railway Rep., 439, 440 ; Cheney v. Boston a/nd Me., 11 Mete., 121.) The plaintiff having elected to purchase a ticket of a peculiar character is chargeable with knowledge that the ticket was subject to restrictions, and was bound to inquire what those restrictions were. (Diet/i'ich v. Pewn. B. B. Co., above cited.) The plaintiff voluntarily started from Brooklyn upon a local train which had no Patchogue connection at Babylon, and of that fact he is chargeable with knowledge. (Cale v. D., L. a/nd W., 7 ITun, 670.) The plaintiff had no right to stop over. He had a right to take any through train from Brooklyn to Patchogue (within the time limited) and to insist upon being carried through. This right was reciprocal; “ and the defendant had a right to insist that the plaintiff’s journey should be continued until completed, and that defendant should not be required to perform in fragments.” (Cale v. D., L. and W., above cited; Churchill v. Chic, a/nd Alton, 3 Am. Railway Rep., 430 ; Dietrich v. Penn. B. B., above cited; Cheney v. Boston and Me. B. B., 11 Mete., 121.)
   Dykman, J.:

Railroad companies are common carriers of passengers as well as of freight and baggage. This results from their setting themselves up for common public employment for hire. It is their duty, therefore, to receive all persons who apply for passage, provided the applicant is not an unfit person to be received, and has no evil design against the carrier in its business. The right of passage) however, is subject to the right of the carrier to prescribe reasonable regulations for the accommodations of passengers and for the due and orderly arrangment of the business. In the exercise of this right passenger carriers have found it convenient to adopt what is called the ticket system; that is, the practice of issuing tickets to all persons who pay their fares.

These tickets are vouchers that the fare has been paid. They do not constitute the contract with the passenger, although they may and often do have upon them some condition or limitation which enters into it and forms a part of it. The contract is made up of the ticket and the rules and regulations established by the carrier, and is what is known in law as an entire contract. The carrier undertakes, in consideration of the payment of a certain sum, to carry the passenger in safety from one point to another at or within a prescribed time. Time in these contracts is usually an important element, because inasmuch as the carrier is required to furnish accommodation for all persons who apply for passage on any day, it is of importance to know how many are to be carried, and this cannot be known if there are persons holding tickets who have the right to apply for passage along the route in numbers entirely unknown. This would lead to endless confusion and great discomfort, and to avoid these evils the railroad companies issue tickets which contain on their face a limitation of the time within which they are to be used, and then such limitation constitutes a part of the contract. They also make arrangements to run some of their trains past some stations and for stopping some trains at all stations, and they issue time tables which show how the trains are to be run in this respect. These are necessary and reasonable regulations and persons purchasing tickets do so with reference and subject to them, and become bound by them. In fact, as has been observed before, they form a part of the contract. If the passenger does not know of the existence of these rules and regulations, it is his duty to inform himself in respect to them, by proper inquiries before commencing his journey ; especially is it his duty to ascertain by what train he can start, of its time of departure and arrival, its stopping stations and his right to get off the train and to resume his trip on another.

In this case the plaintiff on the 17th day of February, 1876, purchased of the agent of the defendant at Patchogue, an excursion ticket from that place to Brooklyn, containing on its face the words, “ Good until three days after date, excursion ticket.” 0'n this ticket he rode to Brooklyn on the same day, and on the following day he returned from Brooklyn on a train which reached Babylon late in the evening, and made no connection with any train for Patchogue. On arriving at Babylon' the plaintiff drove to Bay Shore the next station east, and there spent the night, and on the morning of the nineteenth took the train at Bay Shore for Patchogue. It was a regulation of the company that stop-over checks were not given on excursion tickets, and when the plaintiff presented to the conductor the ticket above mentioned it was refused, and he was ejected from the car without unnecessary violence, and this action is brought to recover damages for such expulsion. The plaintiff was nonsuited at the Circuit, and within the rules hereinbefore mentioned that was a proper disposition of the case. The plaintiff had the fight to a continuous passage from Brooklyn to Patchogue. The defendant had made a contract with him to carry him between those points, and he had the right to demand the passage on any day between the seventeenth and the nineteenth, but he could only demand a continuous passage; he could not require the conrpany to perform in fragments. Before taking his seat it was his duty to ascertain whether it would convey him to his place of destination.

So far as the terms of the plaintiff’s contract were expressed on the ticket they were binding, of course, and that part of it was as follows : “ Flushing, North Shore and Central Railroad. Brooklyn to Patchogue. Good until three days after date. Excursion ticket.” This gave no right to any thing but a continuous passage, and he could not interpolate into it a provision permitting him to stop off of the train at intermediate points. In. fact, no such right exists except by means of stop-over tickets, or the regulations of the company. (Elmore v. Sands, 54 N. Y., 515; Beebe v. Ayres, 28 Barb., 275; Gale v. Delaware, L. and Western R. R. Co., 7 Hun, 670; Dietrich v. Pennsylvania R. R. Co., 71 Penn., 432.)

The carriage of passengers by railroads has now come to be very extensively carried on, and the rights, duties and liabilities of the companies and the passengers are well defined; and while the courts administer the law with severity against these companies in cases of negligence in the performance of their duties, they must, at the same time, be equally careful that nothing is imposed upon them beyond just legal responsibility.

The judgment must be affirmed.

Gilbert, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    WILLIAM B. TULLIS, Assignee, etc., Respondent v. WILLIAM S. MILLER and HORACE WEBSTER, Appellants.

      Assignee in bankruptcy — actions by —jurisdiction of State courts over.

    This action was brought upon an undertaking given to procure the discharge from arrest of one Miller, who had been sued by the plaintiff, as an assignee in bankruptcy, to recover money collected by Miller for the bankrupt, which he had failed to pay over. Plaintiff having recovered a judgment in the first action for $2,195.50 and taken the necessary measures to charge the bail, brought this action upon the undertaking; Held,

    That the action was properly brought in the State court and could be maintained.
    That even if the amendment to the bankrupt act, passed in 1874, operated in any case to deprive the State courts of jurisdiction over an action brought by an assignee in bankruptcy, this case was not affected thereby, for the reason that the cause of action did not arise under the laws of the United States, and that it was not brought for the collection.of the legal assets or debts of the bankrupt.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the. action was tried.

      Treadwell Cleveland, for the appellants.

      James A. Hudson and Newton A. Calkins, for the respondent.
   Dykman, J.:

This is an action on an undertaking given to procure the discharge of the defendant, Edward E. Miller, from arrest in a civil action. The plaintiff was the assignee in bankruptcy of Ernest Sacchi, and as such commenced an action in the Supreme Court of this State, against Edward E. Miller, for the recovery of money which he had collected for the bankrupt and had not paid over. In that action an order of arrest was obtained from a justice of the Supreme Court, against Miller, and he was held to bail in the sum of $1,800 ; in pursuance of which he gave an undertaking, in the usual form, executed by himself and the defendants in this action. He was thereupon discharged from arrest, and the action proceeded to judgment in favor of the plaintiff against him ■ for $2,119.52. The necessary measures were taken to charge the bail and this action is now brought on the undertaking. At the trial a verdict was directed for the plaintiff for the amount claimed, and a motion for a new trial on the minutes was denied, and the case now comes here on appeal from the judgment entered on the verdict and from the order denying a motion for a new trial.

The principal objection made here by the appellant has reference to the power of the State court to entertain the action, and is predicated upon the claim that the legislation of congress has been such as to give exclusive jurisdiction of the action to the courts of the United States. Before the amendment of the bankrupt law, in 1874, such jurisdiction was not exclusive, and the Court of Appeals of this State held, in November, 1873, that in an action brought by an assignee in bankruptcy to recover the estate of the bankrupt, the provisions of the bankrupt act conferring jurisdiction in such cases upon the District and Circuit Courts of the United States were not intended to interfere with, and did not exclude, the jurisdiction of the State courts. (Cook v. Whipple, 55 N. Y., 150.) In June, following this decision, the law was amended by the addition of a proviso : That the court having charge of the estate of any bankrupt may direct that any of the legal assets or debts of the bankrupt, as contradistinguished from equitable demands, shall, when such debt does not exceed five hundred dollars, be collected in the courts of the State where such bankrupt resides, having jurisdiction of claims of such nature and amount.” (Laws of 1874, p. 178, chap. 390, § 2.) The claim is, that by allowing actions for the collection of the assets of a bankrupt, not exceeding $500, to be prosecuted in the State courts, it was designed by the amendment to limit and restrict their jurisdiction to the class of cases arising under the proviso; and the General Term of the Supreme Court in New York city has substantially so held. (Olcott v. Maclean,, 11 Hun, 394.)

That was an action for the recovery for personal property which, it was claimed, had been disposed of in fraud of the bankrupt law, and was therefore for the recovery of the assets of the bankrupt, and ai’ose under the laws of the United States ; and it may be that the United States courts, since the amendment, have exclusive jurisdiction of such actions. Contrary to .this, however, it has been held by the General Term of the Supreme Court in the fourth department, that the only effect of that act is to permit the Federal courts to decline to entertain actions brought to recover assets of a bankrupt not exceeding $500 in amount; that it does not take away the jurisdiction of the State courts, but permits the Federal courts to relieve themselves in certain cases. (Wentz v. Young, New York Weekly Digest, Nos. 13, 14, Dec. 3, 1811, p. 295; 12 Hun, 220.)

If we were obliged to decide the question, our inclination would be towards this construction ; but on this point our position is that this case is not within the inhibition, for the reason that the cause of action did not arise under the laws of the United States, and is not brought for the collection of the legal assets or debts of the bankrupt. The cause of action here accrued to the plaintiff by operation of law, as the result of an action prosecuted by him in the Supreme Court. The bankrupt never had any interest in the claim upon which the action is founded.. True, the money when collected on the claim in suit, will come to him in his capacity of assignee and go into the estate of the bankrupt and be administered under that law; but that is not the test. The question is, in what cases does the amendment of the law confer exclusive jurisdiction upon the United States courts ? and the answer is, in those only that are prosecuted to collect the legal assets or debts of the bankrupt. Moreover, it is very doubtful whether exclusive jurisdiction can be conferred upon the United States courts over actions of this character. The Constitution provides that the judicial power shall extend to all cases arising under the laws of the United States (artiele 3, section 2); no power is delegated, to congress to legislate beyond this limit. All powers possessed by the State governments and not delegated to the United States, are retained. (Federalist, No. 32.) If congress can clothe the United States courts with exclusive jurisdiction over this class of cases, it must be because that power has been expressly delegated to it by the Constitution of the United States. This has not been done. The language above referred to is its nearest approach, and this comes very far short of it.

Our conclusion is, therefore, that the State court has jurisdiction of this action, and that the judgment must be affirmed, with costs.

Barnard, P. J., concurred ; Gilbert, J., did not sit.

Judgment affirmed, with costs.


text:
    ISAAC H. TICE, Appellant, v. WILLIAM ZINSSER, Respondent.

      Contract —■ agreement to cancel — right to recover money paid under.

    Tbe plaintiff and defendant entered into an agreement, by which the plaintiff agreed to purchase certain land from the defendant for a price therein named; the plaintiff paid a portion of such price to the defendant. Afterwards, the plaintiff being in default, an agreement, of which the following is a copy, was indorsed on each copy contract, and signed and sealed by theresjiective parties:
    “I hereby surrender all my right, title and interest under and by virtue of the within agreement to--- for and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, and agree that the same shall be canceled and be of no effect from this date.”
    In an action by the plaintiff to recover what he had paid under the contract' held, that he was entitled to recover.
    Appeal from a judgment in favor of the defendant, and from an order setting aside a verdict in favor of the plaintiff, and directing judgment in favor of the defendant.
    On March 23, 1871, the plaintiff and defendant herein entered into a contract whereby the former agreed to buy and the latter to sell certain real estate for the sum of $16,000, payable as therein provided, and plaintiff then gave to defendant the sum of $1,000 on account thereof. Subsequently, and in October, 1871, the plaintiff being then in default by having failed to pay the purchase-price as provided by the contract, there was indorsed upon one contract the following agreement: “ I hereby surrender all my right, title and interest under and by virtue of the within agreement to Isaac H. Tice for and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, and agree that the same shall be canceled and be of no effect from this date,” signed and sealed by the respective parties. A similar indorsement to ‘William Zinsser was indorsed on the other contract.
    This action was brought by the plaintiff to recover the money which he had paid upon the contract-price prior to 'its cancellation.

      J. Stewa/rt Ross, for the appellant.

      Lewis Sanders, for the respondent.
   Dykman, J.:

By the indorsement put upon the agreement in October, 1871, it was rescinded and canceled, and as this indorsement contained no conditions the parties stood towards each other as if no agreement had been made between them.

The plaintiff could recover nothing for any improvements he had put upon the property because there was no undertaking to pay for them, and the defendant could not retain the money that had been paid on account of the property, in expectation of a fulfillment of the contract and a conveyance of the property for the reason that he canceled the agreement and accepted a surrender of the premises unconditionally and without any stipulation for compensation. (Gillet v. Maynard, 5 John., 86; Battle v. Rochester City Bank, 3 N. Y., 88.)

It is claimed on the part of the defendant, that as the plaintiff could not have recovered back the money he had paid on the agreement before the indorsement thereon of the contract of rescission, he cannot now recover back the money paid, because he has surrendered his right to do so. We cannot subscribe to this propositian. It was entirely competent for the parties to make a new contract to surrender and cancel the original agreement and they did so, and that left them in the condition in which they stood before the agreement was made. So standing the defendant was-left no reason for retaining the money he had received. Before he rescinded the agreement, he could stand upon that and declare his readiness to carry it out, and the plaintiff would have no refuge but in fulfillment. He had paid his money in pursuance of an agreement which.called for it and which could be executed, and his rights, liabilities and remedies were all to be sought for within its provisions, and they called for the money he had paid and other money beside. But the defendant voluntarily • surrendered all these rights, and thus gave up his right to hold the money under the agreement.

These considerations lead to the conclusion' that the judgment appealed from must be reversed.

The order vacating the verdict must also be set aside and the plaintiff must have judgment upon his verdict with costs.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order setting aside verdict and dismissing plaintiff’s complaint reversed, and judgment ordered for the plaintiff on the verdict.


text:
    GEORGE COCHRAN and others, Appellants, v. OLIVER R. INGERSOLL, Impleaded, etc., and others, Respondents.

      Attachment for contempt — when it should not be allowed.

    Where, on an application made in a civil proceeding for an attachment to punish a party for a failure to comply with an order of the court directing the payment hy Mm of a sum of money, it appears that Ms failure to comply with it arises from his not having the money wherewith to do so, and it does not appear that he has disabled himself from paying, with intent to avoid complying with the order, the attachment should not issue.

      Appeal from an order made at the Special Term denying an application, to issue an attachment against the defendant for a contempt.
    It appeared by the papers upon which the motion at Special Term was made, that a judgment was entered providing that certain parties to a certain subscription paper who had not paid their subscriptions (plaintiffs and defendants being parties to said subscription paper) should pay in the amounts of their said subscriptions to a receiver to be appointed to receive the same, and that upon such sums being paid in, the aggregate sums should be distributed, fro rata, among all the subscribers thereto, after allowing for the payment out of said aggregate subscription for certain lands, for the pinchase of which said subscription was made.
    The receiver was appointed, the amount to be paid to him under the decree was computed and ascertained. A demand was made on respondent Ingersoll, who was one of the parties to the subscription, but such payment was not made.
    Plaintiffs obtained an order to show cause why an attachment should not issue against Ingersoll for contempt, and on the return of said order Ingersoll showed by affidavit that he was wholly insolvent, and had been so for years, and that he was wholly unable to comply with such judgment.
    The court at Special Term denied the motion for an attachment and plaintiffs appeal.

      P. V. P. Stanton, for the appellants.

      Britton ds Ely, for the respondent Ingersoll.
    There can be no such thing as a contempt'for not paying a debt which a man has no money or property wherewith to pay. (3 R. S., part 3, chap. 8, title 13, § 20 ; Lansing v. Lansing, 11 How., 218-252; Wanbman v. Wa/riman, Taney, 362; O'Callaghan v. O'Callaghan, 69 111., 552; LaneY.Losee, 11 How., 361; Meyers v. Trimble, 1 Abb. Pr., 220-223; Quintwrd v. Seeor, id., 393-398; Meyers v. Trimble, id., 399.)
   Dykman, J. :

This is a proceeding for the enforcement of a civil remedy. The respondent has been ordered by the court to pay a sum of money to the receiver and has failed to comply with the order, and now an attachment is applied for to punish him for a contempt of court in not obeying, its order.' The reason assigned by the respondent for not paying the money in compliance with the order is, that he has not got it and cannot pay it. The fact of his inability to pay stands uncontradicted on the record before us, and there is no claim that he has disabled himself to pay, for the purpose of avoiding compliance with the order of the court. On the contrary, it appears that he has been insolvent for the last nine years, and has received a discharge under the insolvent laws of the State from all his debts, including the claim in question.

The court is not called upon to vindicate either its dignity or its process, but simply to assist a suitor in the collection of a claim, and there is a solid and obvious distinction between contempt, strictly such, and those offenses which go by that name, but which are punished as contempt only for the purpose of enforcing some civil remedy. (Revisers’ notes.)

Our statute provides that the court ordering imprisonment for contempt may in its discretion, in cases of inability to perform the requirements, relieve the person imprisoned in such manner and upon such terms as shall be deemed just and proper. (3 R. S. [6th ed.], 841, § 20.) Ample power is thus given to inquire into the circumstances after imprisonment, and there is no good reason why it should not be made before the commitment. (Doran v. Dempsey, 1 Bradford, 490.)

If the attachment should issue and the respondent be committed under it, he would then, on application to the court, be released from confinement by showing the same state of facts which appears in answer to this application. Why, then, should the mere formal proceeding be gone through with? We think that the inability of the respondent to comply with the order is a sufficient reason, under all the circumstances of this case, why the attachment should not issue, and that the order appealed from should be affirmed with costs and disbursements.

Present — Barnard, P. J., and Dykman, J.; .Gilbert, J., not sitting.

Order denying attachment affirmed, with costs.


author: Dykkan, J.:

text:
    CATHARINE WAIT, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY, Appellant.

      Policy of insurance — ‘ ‘ unoccupied ” — meaning of.

    A policy of insurance issued upon a -dwelling-house provided that if it should cease to be occupied by the owner or occupant in the usual and ordinary manner in which dwelling-houses are occupied as such, the policy should become void. The house was occupied by a tenant, who, on March fifteenth, commenced to move out, and removed most of his furniture and all of his family from the house. No person was left in it, and on the night of the sixteenth it was destroyed by fire.

      Held, that the question whether or not the house was unoccupied at the time of the fire, within the meaning of that term as used in the policy, was properly left to the jury.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order 'denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Sta/rbuek c& Sawyer, for the appellant.

      Haekett <& Williams, for the respondent.
   Dykkan, J.:

This action is upon a policy of insurance by which the defendant agreed to insure a dwelling-house of the plaintiff, which was occupied by a tenant. The defense is that notice and proof of the loss were not properly given as required by the policy, and that the house was unoccupied at the time of its ddstruction. The notice of the loss did not conform to the requirements of the policy, but the omissions have all been waived. On the 27th day of April, 1876, the secretary of the defendant wrote to the plaintiff that the company had learned about four -weeks before that the house had burned, and requested her to make proof of loss on a blank enclosed and to verify the same, and return it to the company at her convenience. This was a sufficient waiver of all objections down to that time.

On the 30th day of May, 1876, the assistant secretary again wrote to the plaintiff acknowledging the receipt of her letters and papers, stating that they were very incomplete, but that the principal difficulty was that she swore tbe house was occupied at the time of the fire, whereas the company had good information that no one lived in the house at the time it burned. He declined to q>ay the loss, but did not call for further proofs, as he was bound to do then, if those furnished were incomplete or insufficient. Not having done so, he must be deemed to have accepted those furnished as sufficient. But this is not all. On the 6th day of June, 1876, the assistant secretary wrote to the attorney for the plaintiff a letter acknowledging the receipt of one from him on the fifth, and using these words in a sentence by itself, “We do not care for more proof.”

It is fair to presume that these words were used in reply to an offer by the lawyer in his letter to furnish more proofs if desired. These facts show an acceptance of the proofs furnished as sufficient, and a waiver of all objection and omission.

But it is urged that the house was unoccupied at the time of the fire, and for that reason the policy had become null and void. The condition in tlie policy is that if the dwelling-house thereby insured shall cease to be occupied by the owner or occupant in the usual and ordinary manner in which dwelling-houses are occupied as sucln then the policy shall be null and void until the written consent of the company shall be obtained. This dwelling was occupied by a tenant, who, on the fifteenth day of March, commenced to move out and removed most of his furniture and all of his family from the house, intending doubtless to return and take the remainder of his furniture, and then surrender the possession to the owner. No person was left in the house, and on the night of the sixteenth it was destroyed by fire. There was some proof that the plaintiff did not know and had no notice of the removal of her tenant, and although the testimony was objected to, yet it was proper to show that the plaintiff was guilty of no negligence in not notifying the defendant of the vacancy of the premises. The charge of the court is not contained in the case, but we are bound to presume, as there were no exceptions to it, that the jury was properly instructed on all the questions in the case. It appears, however, from the appellant’s points that the question whether there had been a breach of the condition of the policy requiring occupation or no was submitted to the jury, and that is now assigned for error. Ve need not stop to consider whether it was error or not, for there was no exception to tbe charge, and no objection can now „be heard against it. Neither was there any error in denying the motion for a nonsuit, for the point we are now considering was not properly presented, and the objection respecting the sufficiency of the notice is not valid, as wo have already seen.

The question is presented, however, by the appeal from the judgment and the order denying the motion for a new trial on the minutes of the court. If this house was occupied at the time of its destruction in the usual and ordinary manner in which dwelling-houses are occupied as such, then the policy was not void, but was in full force at that time. As commonly used and understood the word “ occupation is synonymous with “ possession; ” according to Webster, occupancy is the act of talcing or holding possession, and occupy means to take possession, to keep in possession, to possess, to hold or keep for use, and as used in this policy the word ought to be given its most extensive signification and no forfeiture should be permitted, except there has been a plain violation of the condition when so interpreted.

Dwelling-houses are ordinarily used for places of abode, and the persons who occupy them are sometimes out of them and sometimes in them. Often it happens that they are left for a day and more by the occupants who are absent from them either for business or pleasure, and yet in such case no one would say the house was unoccupied within the fair meaning of that word. In the eye of the law it would be in the possession of the person or family residing there. So it also often comes to pass that the occupants of dwelling-houses are changed, and the incoming tenant cannot commence his occupancy until the outgoing one has removed, and do all they both can, there will be a point of time when there is no person in the house, but is the house therefore vacant? The law is not unreasonable and will not pronounce a house unoccupied because no human being draws the breath of life within its walls. Whole families go out to divine service on the Sabbath day and in the evening,, and leave their residence without a human being, but yet they are not unoccupied. Where shall the line be drawn ? Can an outgoing tenant take time for the removal of his household goods after his family has left the house, provided the time taken be reasonable ? It seems but fair and just that such should be the rule, and if so, bow can it be determined wbat is a reasonable time, and whether tbe bouse has become unoccupied, better than by leaving tbe question to a jury under proper instructions.

Tbe case of Paine v. The Agricultural Insurance Company (5 N.Y. S. C. [5 T. & C.], 619), was properly disposed of by tbe General Term, but tbe condition in tbe policy and tbe facts there were so unlike those in this case that it cannot have much influence as authority. In that case tbe court, after observing that it is not necessary that some person should live in tbe bouse every moment, but that there must not be a cessation of occupancy for any considerable portion of time, uses tbe following language : For wbat length of time it may remain unoccupied will depend upon tbe circumstances of each case, and tbe jury or tbe referee must determine the question in view of tbe consideration that led to tbe incorporation of tbe proviso into tbe policy, and tbe necessity that not unfrequently arises for persons insured to leave temporarily their dwelling-houses.”

Whitney v. Black River Insurance Company (9 Hun, 37) was an insurance of a saw-mill, and does not shed much light on this case, but tbe referee there found that tbe premises did not become vacant and unoccupied, and gave judgment for tbe plaintiff, which was affirmed by tbe General Term. Tbe question seems, therefore, to have been there regarded as one of fact to be determined in view of all tbe circumstances.

In this case, tbe cessation of actual inhabitancy, was for a very short time, and tbe premises had not been abandoned by tbe tenant nor surrendered by him to tbe plaintiff.

Tbe facts and circumstances are such that different minds will come to different conclusions on tbe question of occupancy, and that makes it a very proper case for a jury. It does not follow that because there is no contradictory testimony tbe court must take tbe question from tbe jury and determine it as one of law; on tbe contrary, if different results would be reached by different minds, tbe question must go to tbe jury.

Tbe appeal book presents no error and tbe judgment must be affirmed, with costs.

GilbbRt, J., dissenting, BarNard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: DyicmaN, J.:

text:
    JACOB CRAWFORD and THOMAS D. PENFIELD, Respondents, v. C. BECKER, Impleaded with P. J. SHERWOOD, Appellant.

      Building c.ont/raet — right of owner to complete work — effect of so doing upon damages for delay.'

    A building contract contained a clause authorizing the owner, upon the failure of the contractor to proceed with the work, to notify him that unless he did so proceed he should himself complete it and charge the contractor with the expense of so doing, and another clause providing that for each and every day’s delay in completing the building after a date therein specified the contractor should pay the sum of five dollars as and for liquidated damages. The owner, in pursuance of the first clause, notified the contractor and completed the building himself.

      Held, that he had thereby waived his right to claim the damages provided for in the contract, for a failure to complete the building by the specified time.

    Appeal by defendant Becker from a judgment entered upon tlie verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    . The. action was.brought to foreclose a mechanic’s lien. The only question in the case arose upon the effect of two clauses contained in a contract for the erection .of a house entered into between the defendant Becker, the owner, of the land, and the defendant Sherwood. The clauses were as follows:
    “ Sixth. Should the contractor, at any time, during the progress of the said works, refuse or neglect to supply a sufficiency of materials or of workmen, or cause any unreasonable neglect or suspension of the work, or fail or refuse to comply with auy of the articles of agreement, the owner or his agent shall have the right and power to enter upon and take possession of the premises, and provide materials and workmen sufficient to finish the said works, after giving four days’ notice in writing, and the expense of the same shall be deducted from the amount of the contract.

      “ Tenth. Should the contractor fail to finish the work at or before the time agreed upon, he shall pay to the party of the first part the sum of five dollars for each and every day thereafter the said work shall remain unfinished, as and for liquidated damages.”

      W. P. Prentice, for the appellant.

      Ma/ri/m J. Keogli, for the respondent.
   DyicmaN, J.:

This is an action to foreclose a mechanic’s lien. The plaintiff furnished material to the contractor for the erection of a building for the owner. The contractor continued work until he had received three instalhnents, and there remained unpaid on his contract the sum of $1,000. ITe abandoned the work on the 18th day of November, 1876, soon after he received the last payment, but he had then expended considerable sums of money in procuring articles to be used in the completion of the building, so that it only cost the owner $485.40 to finish it after the contractor left off work. On the 24th day of November, 1876, the owner gave notice to the contractor, under a clause in the building contract authorizing him so to do, that unless the contractor proceeded with the work he should himself complete the building and charge him with the outlay necessary therefor; and the owner did so finish the building, at the expense mentioned above.

The building was thus completed, and there remained unexpended and unpaid of the contract price $514.60. This money was then due and payable to the contractor. The plaintiffs filed their notice of lien on the second day of December, 1876, and that gave them the right to recover all that was then due to the contractor and that became due thereafter. They have recovered the balance of the $1,000 which remained unexpended after the completion of the building; and so far there is no difficulty in sustaining the recovery.

Another point is raised by the appellant, which was ruled against hirn on the trial. The written contract between the contractor and owner for the erection of the building fixed the first day of November, 1876, as the time for the completion of the building, and in relation thereto stipulated, that should the contractor fail to finish the work at or before the time agreed upon, he should pay to the owner tbe sum of five dollars for each and every day thereafter the said work should remain unfinished, as and for liquidated damages. Assuming that the sum of five dollars a day is to be considered as liquidated damages and not as a penalty, it was inserted in the contract for the indemnity of the owner against the damage he might sustain by reason of the failure of the contractor to finish the building at the time mentioned. He might have relied upon this for his security and left the building incomplete. Instead of doing that he proceeded under the other provision of the contract and finished the building. We think, therefore, he must be held to have waived the penalty which was imposed for the failure to complete the •building in time.

We have thus examined the two questions which control the case, and we think, upon the whole, the judgment should be affirmed, with costs.

Present — ■ Babnabd, P. J., Gilbebt and HyKMAN, JJ.

Judgment and order denying new trial affirmed, with costs.