text:
    THE WASHOE TOOL MANUFACTURING COMPANY, Respondent, v. THE HIBERNIA FIRE INSURANCE COMPANY OF OHIO, Appellant.

      Action by an assignor of a claim which has been reassigned to him — the assignment and reassignment need not be shown on the trial — Policy, of insurance — waiver of •prepayment of premium — effect of non-payment.

    Where an action is brought upon a chose in action by an assignee holding an absolute assignment thereof, as security for the payment of a claim, and it appears, on the trial before a referee, that such claim has been paid in full, and on application to the court the assignor (original owner) of the chose in action is substituted as party plaintiff in place of the assignee, it is not necessary to show, on the trial, the transfer of the chose in action, and its retransfer.
    When a policy of insurance is delivered, without exacting payment of the premium, it is a waiver of a condition therein that the insurance company was not to be liable upon the policy until the premium should be paid.

      And the mere non-payment of the amount of the premium on demand, does not destroy the policy, where the insurance company does not give notice of its election to rescind the contract.
    Appeal from a judgment in favor of the plaintiff'entered on the report of a referee. The action was brought originally in the name of Charles C. Lathrop, as plaintiff, but pending the reference it was, on application to the court: “ Ordered, that the Washoe Tool Manufacturing Company be, and the same hereby is substituted as the plaintiff in this action, in the place and stead of Charles O. Lathrop, on payment of trial fee, witnesses’,fees, and ten dollars costs of motion, to be taxed by the clerk of this court.”
    The referee found, among other things, that on or about March 9th, 1874, in consideration of the promise of the payment by the Washoe Tool Manufacturing Company, plaintiff herein, of the premium of thirty-seven dollars and fifty cents to the Hibernia Fire Insurance Company of Ohio, defendant herein, the said defendant, by their agent, duly authorized thereto, made and delivered to the said Washoe Tool Manufacturing Company, plaintiff, its policy of insurance, in writing, wherein and whereby it insured, for the term of one year, the said Washoe Tool Manufacturing Company against loss or damage by fire, to the amount $2,500 on its machinery, etc. •
    That a credit was given and extended by the defendant to the plaintiff, for the payment of the premium on the said policy of insurance.
    That subsequent to the delivery of the said policy, repeated demands were made by the defendant of the plaintiff for the payment to it of the premium on said policy, which was frequently promised by said plaintiff, but has never been paid.
    That the said policy of insurance has never been terminated, can-celled or annulled by the defendant, but the same was in full force and effect at the date of the fire, on June 18th, 1874.

      S. H. Johnson, for the appellant.

      Samuel A. Hoyes, for the respondent.
   Talcott, J.:

This is an appeal from a judgment rendered on the report of a referee. The action was brought to recover the amount of a loss by fire upon a policy issued by the defendant. It was originally brought in the name of Charles C. Lathrop, as plaintiff, Lathrop having become the assignee of the policy after the happening of the loss. After the trial had commenced the defendant objected to the introduction of the policy in evidence, because it was issued to the Washoe Tool Manufacturing Company, whereas the action was brought in the name of Lathrop. Thereupon the reference was adjourned, and the Washoe Tool Manufacturing Company presented a petition to the Supreme Court, at Special Term, accompanied by the affidavit of Lathrop, setting forth that the policy had been assigned to Lathrop as collateral security for certain purposes, all of which had been satisfied. That Lathrop had reassigned the policy to the Tool Company, and thereupon, on due notice to the defendant, made a motion that the Tool Company be substituted as plaintiff in place of Lathrop. The order substituting the company as plaintiff in place of Lathrop, was granted, and thereafter the trial proceeded as though the action had been originally commenced in the name of the Tool Company. No proof was given on the trial of any assignment to Lathrop, or any reassignment by him. The referee made an order to conform the proofs to the evidence and to the order of the Special Term, by which the Tool Company was substituted as the plaintiff in the action. The defendant moved to dismiss the complaint upon the ground that no assignment to Lathrop, and no reassignment by him had been proved. The defendant also claims that the court had no authority to make the order of substitution. There seems to be no reason to doubt the power of the court to make the substitution under section 121 of the Code. Besides, the order for substitution was not appealed from, but the defendant submitted thereto and received the costs awarded to him by the terms of the order, and cannot now question its propriety. The only question upon this part of the case is, whether it was necessary to prove the original assignment to Lathrop and his reassignment to the Tool Company. It is a mere technical question, upon a subject in which the defendant has no interest, except to protect himself against a recovery by a party jot entitled to the demand, whereby he might be exposed to another suit. The motion was made by the attorney for Lathrop, and upon the affidavit of Lathrop himself, and the effect of the order for substitution is simply to strike out of the original complaint the allegation that the cause of action had been assigned to Lathrop, and leave the suit to be prosecuted in the name of the original party to the contract, as though no transfer had ever been made. The question was litigated upon the motion to substitute and then decided, and there is no reason which can be suggested why, in such a case, the new plaintiff should be compelled on the trial, for the purpose of sustaining the order for substitution, to show first a transfer of his interest and then a retransfer, inasmuch as upon the proof as it stood the plaintiff was the party entitled to bring the action as the assured named in the policy, and the defendant has no interest, which can be injuriously affected, nor can he be in any way jeopardized, or exposed to the danger of another recovery. The only other point made by the appellant is founded upon the condition in the policy, to the effect, that the defendant was not to be liable upon the policy, until the premium should be paid. It is well settled that such a condition maybe and is waived by the delivery of the policy without exacting the payment of the premium, and that such a delivery imports that a credit is given for the premium. (Bodine v. The Ex. Fire Ins. Co., 51 N. Y., 107.) In the case of Rochner v. The Knickerbocker Life Ins. Co., referred to by the counsel for the defendant, briefly reported in the New York Weekly Digest (vol. 1, No. 16), it appears that the note which was taken by the insurance company for the premium was payable on a day certain, and expressly provided that the policy was to become void in case the note was not paid at maturity, and it was held that the agreement that the policy should be avoided by a failure to pay the note at its maturity, was a valid agreement and binding upon the parties, unless legally waived or modified. In the present case no day was specified for the payment of the premium, but a general credit was given to the assured for the amount of the premium. It is held in Boehm v. The W. City Ins. Co. (35 N. Y., 131), that the policy is valid though the premium be not paid, notwithstanding such a condition contained in the policy. This being so, it is difficult to see how the nonpayment of the amount on demand, could have the effect to rendei the contract void, any more than in the case of any other contract where a credit is given for the payment of a consideration. Perhaps the failure to pay, within a reasonable time after demand, might authorize the Insurance Company to elect to rescind the contract, but in such a case some positive act or notice, to the assured, of the election to rescind, would be requisite in order to effect the rescission. In this case the repeated demand of the money, with notice that unless the premium should be paid, the company would have to cancel the policy, did not amount to an actual rescission, but rather to an admission that the policy continued in force and would remain in force till actual cancellation, and justice to the assured in such a contract would require notice of the cancellation to be given, that the assured might be able to protect himself by another insurance.

The judgment is affirmed.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, R. J.

license: Public Domain

text:
    LOUIS F. ROBERTSON, Appellant, v. FRANK C. SCHUMANN, Respondent.

      Evidence — damages — contract — breach of.

    This action was brought to recover for goods sold to defendant, who set up a counter-claim, alleging that the plaintiff had agreed to sell him 129 dozen sheep skins at three dollars and twenty-five cents per dozen, but had only delivered ten dozen, whereby the defendant was compelled to purchase the remainder at an increased price. Upon the trial, the defendant, after stating that he was forced to purchase these skins, testified: “I bought a lot at five dollars and fifty cents, which was the best I could do, and these, I admit, were altogether better, but I allowed for it in my statement here; I do not charge the difference, which would be two dollars and sixty cents, but allow for the size and quality of the skins, and make it one dollar and ninety-six cents.” Reid, that this evidence was admissible and that the jury were authorized to find that defendant’s damage on each dozen of skins, not delivered by the plaintiff, was one dollar and ninety-six cents.
    Appeal from a judgment in favor of the defendant, 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.

      Nehebas & Pitshke, for the appellant. Chas. M. Earle, for the respondent.
   Opinion by

Barnard, R. J.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Judgment and order denying new trial affirmed, with costs.


author: Pratt, J.

text:
    FREDERICK TURNOW, Respondent, v. ERNST HOCHSTADTER, as Survivor, Appellant.
    Contract— statute of frauds — pm'tial performance — amendment of complaint.

    In February, 1878, a verbal agreement was made in Germany, by which the defendant’s firm employed the plaintiff to work for one year from the following May, at two dollars and fifty cents per day. Held, that as the parties intended the contract to be performed in this State, it was governed by the laws thereof (Andrews v. Pond, 13 Peters, 65; Story’s Conflict of Laws, § 280), and was, therefore, void by the statute of frauds.
    Upon the trial of this action, brought to recover for services rendered under this contract, the court charged, that the plaintiff, by coming to this country and commencing work, in legal effect, said 1o the defendant, “If I work for you, it must be for a year, at two dollars and fifty cents per day,” and that the defendants, by their silence, accepted the offer. Held, that this was error; (hat the court erred; that the most that could be claimed was, that it was a partial performance of the contract, which did not take it out of the statute,' or furnish satisfactory evidence of a renewal of the contract. (Oddy v. James, 48 N. Y., 085.) ■
    Upon the trial the plaintiff was allowed to amend his complaint, so as to recover the actual value of the services rendered by him to (he defendant, on the ground that as the contract, upon which the action was brought, was void, he was entitled to recover the value of the services actually rendered. Held, that this was proper. That it was not substituting anew cause of action, but, in legal effect, conforming the pleadings to the facts.
    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 on the minutes of the justice before whom the ease was tried.

      C. B. Herrick, for the appellant. W. Farrington, for the respondent.
   Opinion by

Pratt, J.

Talcott, J., concurred. Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed to the amount of $153, and interest from the date of trial; reversed as to balance of judgment; no costs of appeal.


author: Barnard, P. J.

text:
    ELIAS J. BEACH, Respondent, v. HENRY BAINBRIDGE, Appellant.

      Summary proceedings — service of summons — jwrisdiction.
    Summary proceedings were instituted before a justice of the peace in the city of Brooklyn, to recover possession of certain premises situated in said city. Two-affidavits of the service of the summons were contained in the judgment record, one showing its service upon the defendant in the city of New York, and one by affixing, and leaving so affixed, a true copy of said summons upon a conspicuous part of the premises described in said summons, there being, at the time, no person residing in, or employed on said premises.” Meld (1), that the service of the summons in New York was invalid, as made beyond the jurisdiction of the court issuing it; (2), that it did not appear from the second affidavit that the defendant had no residence in Brooklyn, or, if he had one, that no person of suitable age and discretion, on whom the service might be made, could be found there; (3), that as it did not appear from the record that the justice had acquired jurisdiction of the proceeding, the judgment was void.
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court without a jury.

      Jas. W. Monk, for the appellant. Elias J. Beach, in person, for the respondent.
   Opinion by

Barnard, P. J.

Talcott and Pratt, JJ., concurred.

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


text:
    HARRIET B. PROVOST, Executrix, and another, Respondents, v. JOHN C. PROVOST and others, Appellants.

      Will — construction of— trust — costs — extra allowance — when not allowable.

    The testator devised to the plaintiffs all his real estate, in trust, to receive the rents and profits, and, after paying the expenses of the management of the estate, to pay over the proceeds to his widow, “ until all of my living children shall be of age ; ” and further directed that the trust should cease “ upon the arrival of all my children at full age.”

      Meld, that the trusts did not continue beyond the life of the widow; and that, in case of her death before the youngest child arrived at the age of twenty-one years, it would cease.
    This action was brought by the executrix and executor of the deceased to obtain a construction of his will, the complaint alleging that the defendants claimed the trusts thereby created to be void, and that they threatened to bring a partition suit. The Special Term upheld the trust, and gave costs and an extra allowance to the plaintiffs and to each of the defendants, some of whom were adults and others infants. Held, that costs and allowance to the adult defendants could not be sustained, nor could the allowance to the infant defendants. (Downing v. Marshall, 37 FT. Y., 380.)
    ■ Appeal from a judgment in favor of tlie plaintiffs, entered upon the trial of this action at the Special Term.

      Andrew J. Provost, Wm. H. Onderdonk and P. P. Barnard, for the appellants. Theo. S. Jackson and E. More, for the respondents.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Talcott, J. Pratt, J., not sitting.

Judgment affirmed as modified in accordance with opinion.


text:
    GEORGE C. BRIGGS, as Commissioner of Highways, Respondent, v. OLIVER DOUGHTY, Appellant.

      Encroachment an highway — certificate of jury as to — requirements of.

    In an application to compel the removal of buildings and fences, alleged to encroach on a highway, a certificate of the jury “ that an encroachment in the said highway has been made ” is defective, and will not authorize the entry of a judgment requiring the removal of the building. The certificate should state the particulars of the encroachment. (1 R. S. [Edmonds’ ed.], 482, § 107; Fitch v. Oomrs. of Kirkland, 22 Wend., 132.)
    Appeal from a judgment of the County Court of Dutchess County, affirming a judgment of the Justice’s Court in favor of the plaintiff.

      C. B. Herrick, for the appellant. Daniel W. Guernsey, for the respondent.
   Opinion by

Barnard, P. J.

Talcott, J., concurred.

Present' — 'Barnard, P. J., Talcott and Pratt, JJ.

Judgment of County Court reversed, with costs.


text:
    CAROLINE E. MACKAY, Appellant, v. BENJAMIN B. LEWIS and RICHARD C. DANIEL, Respondents.

      Order of arrest — privilege of party attending ii'icd as witness — waiver of.

    A person attending as a witness,upon the trial of an action to which he is a party, is privileged from arrest upon civil process. (2 Phillips on Ev. [5th ed.], 821.)
    A person arrested under such circumstances does not waive any rights by giving bail. (U. S. v. Bdwin, 9 Serg. & Rawle, 147.)
    Appeal from an order made at the Special Term vacating an order of arrest.

      C. & N. D. Lawton, for the appellant. Wm. S. Flijypin, for the respondents.
   Opinion by

Pratt, J.

Talcott, J., concurred. Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.


author: Talcott, J.

text:
    MARY B. DISTIN, Respondent, v. HILEND R. ROSE, Appellant.

      Slander — proof of— malice.

    In an action of slander, proof of a reiteration of the slander for which the action is brought, on an occasion other than that alleged in the complaint, is admissible as evidence of malice, and to enhance the damages. {Howard v. Sexton, 4 N. Y., 157; Johnson v. Brown, 57 Barb., 118.)
    Such evidence is admissible, though the slanderous words be actionable per se, fertile purpose of enhancing the damages. {Fry v. Bennett, 28 N. Y., 324.)
    Appeal from a judgment in favor of tlie plaintiff, entered upon the verdict of a jury.

      Edward Crummey, for the appellant. G. & G. H. Williams, for the respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Judgment and order denying new trial affirmed, with costa


text:
    RICHARD HALEY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Contributory negligence — what constitutes.

    Appeal from a judgment in favor of tlie plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes.
    The plaintiff, a track-repairer of the defendant, received the injury, to recover damages for which this action is brought, at the Dutchess Junction upon the defendant’s road. A freight train was due from the north at the point in question, and, on arriving near the junction, was divided by detaching several box cars from the train, by pulling out the pin which connected the train at the rear of the platform cars with the box cars, which were to be left at the junction. The forward portion of the train, attached to the locomotive, passed on, and the detached box cars passed on down the track, propelled by their own momentum only, whereby a considerable •space was left between the dissevered sections of the train. The plaintiff had been employed repairing the track, and stepped off on the arrival of the train ; but, after the passage of the section of the train which was attached to the locomotive, without noticing that the train had been separated, stepped back on to the track to resume his work, when he was struck by the detached rear end of the train, and so injured that amputation of one of his legs was necessarily performed. When struck he was stooping down, with his back to the north, from which direction the train came. The plaintiff had frequently seen trains separated in this manner at that place, and in this case he resumed his work upon the track as soon as the forward part of the train passed him, without looking up the track northwardly, at all. The other workmen who were engaged upon the track at the same time with the plaintiff, saw that the train was separated, and that the box cars were following on the same track, and remained off the track until the detached rear end of the train had passed. They testified that there was no difficulty in seeing the detached box cars coming, and that the plaintiff must have seer them if he had looked.

      The General Term held, that the plaintiff was guilty of contributory negligence, and that he was not entitled to recover. {Haskins v. N. 7. Cen. and Hud. R. R. R. Go., 65 Barb., 129; 56 N. Y., 608.)

      Frank Loomis, for the appellant. Anthony da Losey, for the respondent.
   Opinion by

Talcott, J.

Present — Talcott and Pratt, JJ. Barnard, P. J., not sitting.

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


text:
    DANIEL SIMMONS, Jr., Respondent, v. BRADBURY M. RICHARDSON, Appellant.

      Evidence.

    Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.
    The plaintiff claimed to recover for services rendered by him for the defendant, and at his request. It is claimed by plaintiff that certain moneys he had received of defendant were payments on account of the plaintiff’s claim. The defendant claimed that the moneys were loaned by him to plaintiff, and were much larger in amount than were admitted by plaintiff. Upon this issue the defendant testified that he had kept an accurate account of date and amount, and had delivered the same to his attorney, and that it was lost. To meet this proof the plaintiff offered several witnesses, who testified that defendant had told them, or had said in their presence, that he kept no account of the moneys, for fear his wife would know of the subject of his employment. Defendant offered himself in rebuttal to deny these alleged declarations, and was not permitted to testify, upon the ground that his case was closed.
    The General Term held, that this was error; that defendant had a right to meet any new matter which had been proven antagonistic to his defense; that his declarations that he had kept no account, if made, conclusively destroyed his evidence as to the bill of items, and affected his general credibility as a witness, and that he had the right to deny the truth of the declarations so alleged to have been made by him.

      H. A. Nelson, for the appellant. Benj. H. Bayliss, for the respondent.
   Opinion by

Barnard, P. J.

Pratt, J., dissenting.

Present — Barnard, P. J., Taloott' and Pratt, JJ.

Judgment reversed and new trial granted at Circuit, costs to abide the event.


text:
    AUGUSTUS PRENTICE and CATHARINE A. PRENTICE his Wife, Respondents, v. MARY ANN JANSSEN and GERHARDT JANSSEN her Husband, Appellants.

      Equity — joinder of causes of action in — Ea/rtition of real and, personal property.

    Appeal from an order made at the Special Term overruling a demurrer to the complaint, on the ground that it improperly united several causes of action.
    The complaint alleges that the plaintiff Augustus Prentice and the defendant Mary Ann Janssen own certain premises in Richmond county, as tenants in common. That there is a hotel on the premises, fully furnished, and that the parties own the furniture in the same proportions as they own the real; that Prentice has expended money on the property at various times, with the assent of Mrs. Janssen, to a large amount. The plaintiff asks that the' real estate be partitioned ; that the personal property be partitioned, and that an accounting be taken between the joint owners.
    The General Term held, that the demurrer was properly overruled ; that it is within the jurisdiction of a court of equity to partition personal property, and that when justice requires that real and persona] estate be sold together, and the proceeds divided, it should be within its province to do so in one action.

      C. Bainbridge Smith, for the appellant. A. Prentice, for the respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Taloott, J. Pratt, J., not sitting.

Order overruling demurrer affirmed, with costs.


text:
    JEANETTE HAIGHT, Appellant, v. JAMES B. HAIGHT, Respondent.

      Bepleoin — form of judgment in — who may take advantage of error in.

    Appeal from a judgment of the County Court of the county of Dutchess, affirming a judgment rendered by a court of a justice of the peace. The action was to recover the possession of personal property, and the plaintiff had a delivery thereof upon an undertaking pursuant to the statute. The justice rendered judgment for the defendant. The only real question in the case was-in regard to the form of the judgment rendered by the justice. The judgment, as entered by the justice in his docket, was as follows : “ Judgment in favor of defendant against the plaintiff for possession of the personal property mentioned in plaintiff’s affidavit, to wit, one buggy wagon, with costs.” The justice did not assess the value of the property and give judgment for the return of the property, or the value thereof in case a return could not be had, and damages for raking and withholding the same. The court at General Term held, that, as the provisions of the statute requiring the judgment to be in this form, were for the benefit of the defendant, and as he was contented with the judgment as it was, although he recovered no damages for the taking and withholding, and would not be entitled to any execution to collect the value, in ease a return of the property could not be had, he was the only party who could be injured by the omissions of the justice, and the only party who had any right to complain of them. The court did not think the error was one of which the plaintiff could complain, or for which she was entitled to a reversal.

      William Brewer, for the appellant. Daniel W. Guernsey, for the respondent.
   Opinion by

Talcott, J.

Present — Barnard, P. J., Talcott and Pratt, JJ.

The judgment of the County Court affirmed, with costs.


author: Barnard, J.

text:
    ALDELLO DENMAN, Respondent, v. HUGH CAMPBELL, Appellant.

      incidence — as to intention of one party to a contract.

    Appeal from a judgment of the County Court of Richmond county, affirming a judgment in favor of the plaintiff recovered in a Justice’s Court.
    The only issue litigated on the trial betweén the parties was, whether the plaintiff made the contract for the labor in question with the defendant or his son. Upon this issue the justice allowed answer to be given to the following questions, under defendant’s objection: Who did you suppose you were making the contract with? Answer. I supposed I was making the contract with Hugh Campbell. Held, that this was error. (Niehóls v. The Kingdom Iron Ore Go., 56 N. Y., 618.)
    Also, the question : Is Donal Campbell a man of responsibility ? Answer. So far as I know, he was not responsible. Held, that this was also error. (Green v. Disbrow, 56 N. Y., 334.)

      George Gallagher, for the appellant. John P. Victory, for the respondent.
   Opinion by

Barnard, J.

Talcott and Pratt, JJ., concurred.

Judgment of County Court reversed, with costs.


author: Davis, P. J.:

text:
    WILLIAM H. PAINE, Respondent, v. THE RECTOR, CHURCH WARDENS AND VESTRYMEN OF TRINITY CHURCH, IN THE CITY OF NEW YORK, Appellants.

      Landlord and tenant — summary proceedings torecover possession — agreement to pay value of buildings.

    A lease provided that if the tenant should erect certain buildings on the premises, and keep all the covenants on his part, the landlord would, at the expiration of the term, pay the appraised value of the buildings, or grant a new lease. The tenant failed to pay rent as agreed, and continued in default. Reid, that the landlord could institute summary proceedings under the statute to dispossess the tenant, and the agreement to pay the value of the buildings at the expiration of the term did not take the case out of the statute.
    Appeal from an order' continuing an injunction restraining the defendants as landlords from prosecuting summary proceedings to remove the plaintiff as lessee, from certain premises in New York city, for non-payment of rent under two leases executed by' the defendants to plaintiff.

      S. P. Nash, for the appellant.

      Christopher Fine, for the respondent.
   Davis, P. J.:

The leases from the appellant to the respondent bear date on the 25th day of April, 1872. Each of the leases is for a term of twenty-one years from the 1st day of May, 1872, and each reserves an annual rent of $6,250, payable in semi-annual installments cn the first day of May and November in each year; and each reserves a right of re-entry for non-payment of rent, after the lapse of ten days from the time when the same may become due. Six months rent of the premises became due on the 1st day of May, 1875. The respondent failed to pay such rent although demanded, and more than ten days after default in such payment the appellant instituted summary proceedings, under “the landlord and tenant act,” to remove the respondent'from the premises. The respondent, alleges in his complaint, that the buildings on the premises belong to him and are worth $40,000; that they are underlet to various tenants, some twenty-three in number, and that he has offered to have the buildings valued in the manner provided by the leases for their valuation at the end of the term, and that the defendants refuse to assent to such offer. The provision in the leases relating to payment'for buildings is as follows : “And it is hereby mutually covenanted and agreed by and between the parties' to those presents, that if the said party of the second part, his executors, administrators or assigns, shall not, at any time, during the said term, erect or suffer to be erected on the said lot, any building constructed otherwise than as shall be required by law in respect to buildings within the fire limits of the said city, and shall, during the whole of the said term, well and faithfully keep all and every the covenants and agreements herein contained on his and their part and behalf, then the said parties of the first part, their successors and assigns, shall and will, at the expiration of the said term, either pay to the said party of the second part, his executors, administrators or assigns the just and full value at that time, of the building or buildings which may be standing on the said lot, to be ascertained in the manner hereinafter mentioned, or grant a new lease of the said lot.”

The real question in this case is whether the provisions of the leases, in respect to the payment by the appellants to the respondent or his assigns,'at the expiration of the term, of the just and full value of the building or buildings, which may then be standing on the lot, to be ascertained as provided in the leases, and in respect to the granting of new leases of the said lot, have the effect to take the case out of the statute authorizing summary proceedings, and compel the landlord to resort to his action for rent, or to ejectment to recover possession. It is nowhere in the papers denied, on the part of the respondent, that the rent is due, or that it has been duly demanded, or that default of more than ten days in its payment had accrued. He stands solely upon his allegation of ownership in the buildings, and the rights secured to him by the lease at the expiration of its term, and claims that these alleged rights take the case out of the jurisdiction of the magistrate whose process is restrained by the injunction.

There can be no doubt that where the statute has not authorized the summary proceedings for the recovery of possession, the landlord has no remedy except ejectment, or his action upon the covenant to recover the rent; nor is there any question that the summary proceedings under the'statute are in derogation of the common-law rights of tenants, and are to be strictly construed. (Savacool v. Boughton, 5 Wend., 170; Barnes v. Harris, 4 Comst., 384.) It seems, also, to be settled that a tenant who has performed the various covenants of his lease has, at the expiration of the term, .the right to the possession of the property until he is paid for his buildings, where the lease contains covenants that he shall be paid the appraised value of the buildings, or that a-new lease for an additional term at an appraised rent, excluding from the appraisal the value of the buildings belonging to him, shall be executed. (Holsman v. Abrams, 2 Duer, 435; Van Rensselaer v. Penniman, 6 Wend., 569; Kelso v. Kelly, 1 Daly, 419; Wray v. Rhinelander, 39 How. Pr., 299.)

It is difficult to see how the principle of those cases applies to the present case. The respondent has failed to perform the plain covenants of the leases by refusing to pay the installment of rent which fell due on'the first day of May. lie has continued his default until, by the express terms of the leases, the right of re-entry lias accrued ; and the landlord is seeking to enforce the remedy given him by the leases upon the occurrence of such default. The statute gives the right to' proceed summarily against a tenant for years, whenever he holds over without permission, after default in the pay ment of rent, and there are no substantial reasons why the process and remedy provided by statute are not applicable to the case. The fact that by the covenants of the lease, the respondent may have certain favorable rights at the expiration of the term, some eighteen years hence, cannot be urged as an excuse for the breach of the principal covenant on his part at the present time, or as a legitimate reason why the landlord should not have the remedies provided for him by statute. The right of the tenant depends altogether upon his faithful performance of his covenants, and it is difficult to see how his present refusal to pay the rent reserved by the leases puts him in position to enforce covenants of his landlord, which by the provisions of the leases are to be performed in futuro, and then only upon his having kept the covenants, which he concedes he has broken. The length of the terms of the leases furnishes no suggestion against the summary remedy. They are still leases for years; and it is only because of some supposed right which the tenant who makes default in the payment of rent, has to retain possession of the building for the purpose of compelling an adjustment of his equitable or legal interest therein, that the statutory remedy is resisted. We should have no hesitation in saying that if a tenant, under such leases as these before us, had, or could have present equitable rights, which, upon his own default in paying rent, he could compel his landlord to adjust with him before re-entry, the statute of summary proceedings would not be applicable to the case. But in these leases the right of re-entry is not subjected to any such adjustment. It accrues upon a default for ten days in the payment of the rent; and it only accrues upon the tenant’s own failure to perform his covenant to pay. In that case it seems to us to be absolute, and may be enforced independently of any of the provisions of the lease in respect to renewals or compensation at the expiration of the term for the buildings which may then be upon the premises.

If the tenant, after such process, may have equitable rights which will hereafter accrue or ripen, they may be enforced by some appropriate proceeding. They certainly cannot now be enforced upon the idea that he can keep possession of the property without paying the rent. If the contrary be held the respondent would, by his own voluntary breach of the covenants of the lease, and without the consent of the appellant, be able to make, and at the same time enforce, a new and different agreement from that contained in the lease.

We think the court below was mistaken in holding that the respondent, while conceding that the rent is due and has not been paid, and that the right of re-entry has accrued by the terms of the leases, can keep possession of the buildings, and compel the appellants to resort to the action for ejectment, or to an action to recover the rent.

The remedy of the tenant in such a case is to pay the rent as he may do before the order of dispossession is issued, or to redeem under the statute after he shall have been removed, and within the term prescribed. (Laws of 1842, chap. 240.) He cannot, we think, be allowed to restrain the proceedings of the landlord by injunction, without showing that he had tendered the rent, and bringing the amount thereof into court, as provided in ejectment for non-payment of rent. (2 R. S., 506.)

The respondent must pay rent or lose possession. (People v. Kelsey, 38 Barb., 269.) And the magistrate who issued the process, had, we think, full jurisdiction to enforce that obligation by summary proceedings.

Order below reversed with ten dollars costs, besides disbursements, and the injunction dissolved with costs; ten dollars costs of the motion below.

Daniels and Beady, JJ., concurred.

Ordered accordingly.


text:
    JEREMIAH TOWLE, Respondent, v. BARNARD DE WITT, Appellant.

      Practice — judgment in ejectment — record of — correction of.

    A. judgment in ejectment reciting erroneously that a verdict was found for defendant, instead of stating that plaintiff ’s' complaint was dismissed hy the court, having been entered by the defendant’s attorneys, and the defendant having taken no steps to open and correct it, he cannot impugn the record by producing the clerk’s minutes of the trial for the purpose of defeating amotion to vacate the judgment and for a new trial on payment of costs.

      Appeal from an order made at Special Term vacating a judgment in ejectment, and granting a new trial on pajunent of costs under the statute.

      Dudley Field, for the appellant.

      Charles M. Da Costa, for the respondent.
   Davis, P. J.:

This was an action of ejectment, brought to recover j>art of certain lots of land situate in the city of New York. The action was tried at circuit before Mr. Justice Van Brunt and a jury, on the 27th day of March, 1873. On the 3d day of April, 1873, on motion of Field & Shearman, defendant’s attorneys, judgment was entered in the form following:

“ This action having been brought to trial by jury on the twenty-seventh day of March, and a verdict having been found for the defendant herein, it is now, on motion of Field & Shearman, attorneys for the defendant herein, adjudged that the complaint be dismissed upon the merits of the action, and-the defendant, Barnard De Witt, recover of the plaintiff, Jeremiah Towle, $357.18, costs of this action.” The plaintiff now on an affidavit showing the above facts, moves that the judgment be vacated and a new trial granted on payment of costs, in pursuance of the provisions of the Revised Statutes. (2 R. S., 309, §§ 36, 37.) The motion having been made within three years, the plaintiff was clearty entitled to the relief from the judgment as entered. But to prevent the granting of such relief, the defendant claims, while the judgment still stands of record and in full force, that in fact it was improperly and irregularly entered by defendant’s attorneys upon a nonsuit of plaintiff at the trial, and not upon a verdict. He brings in the clerk’s minutes of the trial, from which it does appear that, after the plaintiff had put in certain documentary evidence and maps, and requested the court to charge in a certain manner in respect to the title of the loh, which the court refused to do, he rested, and thereupon the court, on motion of defendant’s attorney, dismissed the complaint. This certainly shows that the judgment was irregularly entered in the form in which it appears; but it was done by defendant’s attorney and on his behalf, and the plaintiff has acquiesced in it by his failing, so far as any thing appeal's, to move to vacate it for irregularity. While the judgment thus stands of record, it imports absolute verity; and the defendant having taken no steps to open and correct it, stands in the position of seeking to impugn the record for the purpose of defeating this motion, and to maintain it in its present form for all other purposes. This, we think, cannot be done. The judgment stands of record as entered by defendant’s attorneys, and has so stood for nearly three years in a form which precludes the bringing of a new suit. For what reason that form was adopted is not disclosed by the affidavit of defendant’s attorney, but its effect is clearly apparent. It cannot be changed from a final judgment upon the merits after verdict for the temporary purpose of defeating this motion, by the mere production of the minutes of the trial showing that plaintiff’s complaint was dismissed without verdict; for after the motion had been so defeated, tlie judgment will stand in projprio vigore, and the plaintiff, by lapse of time, will have lost his right to assail it for irregularity. For this reason the court below was right in granting the order appealed from. It is not necessary to discuss whether, under the amendment of 1862, the plaintiff would not be entitled to a new trial. That amendment makes section 36 of the statute (2 R. S., 290) read as follows:
“ Every judgment in an action of ejectment rendered upon a verdict of a jury, or a report of a referee upon the facts, or upon the decision of a single judge upon the facts, shall be conclusive,” and the words “such judgment” in section 37 (2 R. S., 309) doubtless refer to the judgments described in section 36 as those in which a new trial shall be granted on payment of costs and expenses. Whether a judgment entered upon an order dismissing the complaint, after the plaintiff has put in his evidence and rested, is to be regarded as one rendered “upon the decision of a single judge upon the facts,” within the true meaning of section 36 of the statute, above cited, we do not now determine. The order should be affirmed with ten dollars costs, beside disbursements.

Daniels and Ready, JJ., concurred.

Ordered accordingly.


text:
    JOHN C. SOUTHWICK, Respondent, v. THE FIRST NATIONAL BANK OF MEMPHIS, Appellant.

      National hank— attachment — § 57, chap. 106 of 1864, U. 8. Stat. — § 2, chap. 269 of 1873, U. 8. Stat.

    The amendment to the national banking act, passed in 1873 (chapter 269, § 2), providing “ that no attachment, injunction or execution shall be issued against such association or its property, before final judgment in any such suit, action or -proceeding in any State, county or municipal court,” relates only to suits, actions and proceedings against associations located -where the suit is brought, and not to cases where the action is against a non-resident corporation.
    Appeal from an order made at Special Term denying a motion to vacate an attachment.

      Francis C. Barlow, for the appellant.

      John F. Burrill, for the respondent.
   Davis, P. J.:

The defendant is a national bank located at Memphis, Tennessee. At the beginning of this action the plaintiff obtained an attachment against the defendant, and levied the same upon moneys in the Park Bank, in the city of New York, belonging to the defendant.

The defendant having appeared generally in the action, now moves to vacate the attachment, on the ground that it was obtained and issued in violation of section 57 of the national banking act of 1864, as amended by section 2 of chapter 269 of the laws of congress of 1873 (3d session). As so amended, that section reads as follows:

Section 57. And be it further enacted, that suits, actions and proceedings against any association under this act may be had in any circuit, district or territorial court of the United States, held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases. Provided, however, that all proceedings to enjoin the comptroller under this act shall be had in a circuit, district or territorial court of the United States, and held in the district in which the association is located. And provided,further, that no attachment,, injunction or execution shall be issued against such association, or its property, before final judgment in any such suit, action or proceedings in any State, county or municipal court.

The court below held that the case of Cook v. The State National Bank of Boston necessarily involves the question presented in this-motion, and accordingly refused to vacate the attachment. That case holds, in substance, that section 51 of the act of 1864 did not intend to take away the general jurisdiction of State courts over corporations created under the national banking act, wherever the same may be located, and that it is not competent for congress to deprive the State courts of jurisdiction in all actions against banking associations organized under the act, or to restrict the jurisdiction to particular courts. It accordingly upheld ihe jurisdiction of the State courts of this State, in an action against a national banking association located and doing business in the State of Massachusetts..

We are not asked by the learned counsel for the appellant to disregard the rulings of the Court of Appeals in Cook v. The State National Bank of Boston, but to hold that congress has power, notwithstanding the general jurisdiction of the State courts, in suits against such national banks, to enact that no attachment, injunction or execution against such association, or its property, shall be issued before final judgment; and he insists that by the amendment of section 51, passed in 1873, congress has imposed such restriction on the State courts, as well in actions against associations located in other States, as in actions against associations established in the State where suit is brought. The amendment of 1857 was probably made because of the decisions of the courts of this State holding that national banking associations, located and doing business in this State, were subject to the process of attachment as foreign corporations, under the peculiar definition of such corporations given by our Code of Procedure, to wit: “A corporation created hy or wnder the laws of any other State, government or country.” (Code, §§ 227, 427.) The amendment should be construed with an eye to the mischief sought to be prevented, and it should not be held that congress intended to take away the ordinary, and, in many cases, the only process, by which suits in State courts can be commenced against banking associations located in other States. It is not necessary to consider the question whether congress has power to inhibit the commencement of suits against national banks in the State courts by attachment, where property of such banks is within the jurisdiction of the court, although the bank itself is established in another State, unless we are satisfied that the true construction of the amendment of 1873 raises that question.

The amendment referred to constitutes the second proviso of section 57, as above quoted, and is in these words: “And provided, further, that no attachment, injunction or execution shall be issued against such association, or its property, before final judgment in any such suit, action or proceedings in any State, county or municipal court.” The prohibition, it will be observed, is not extended to any suit, action or proceeding, but to “ any suck suit, action or proceeding,” and the use of the word “such” in connection with suit, action or proceeding, requires us to ascertain to what it relates in the section of the act in which it is used. In doing this, we find that the preceding language of the section speaks, so far as it relates to State, county and municipal courts, only of suits, actions and proceedings against associations located where the suit is brought; or in the words of the act, of suits “ in the coimty or city in which such association is located; ” and it is only “ in any such suit, action or proceeding in any State, county or municipal court ” that the proviso forbids the issuing of an attachment, injunction or execution before final judgment. This seems to be the plain, common sense construction of the language used; and if we accept the decision of the Court of Appeals, above referred to, as a correct exposition of the law, as this court is bound to do, then we .are not at liberty by any liberal or implied construction, to extend the prohibition to such suits as that now before us. If suits may be brought in this court against national banking associations located in other States, notwithstanding the restrictions expressed or implied in the fifty-seventh section of the national banking act, then there seems to be no difficulty in holding that such suits may be commenced by the ordinary and only process known to our laws, which, in this case, is the process of attachment against property situated within this State.

There seems to us no reason to question the power of congress to prohibit “attachment, injunction and execution before judgment ” in actions brought in our courts against associations located in our State. Such prohibition may be wise and salutary, inasmuch as those banks may be proceeded against by the ordinary process of the courts, without resort to provisional remedies. The prohibition does not disarm the State courts of jurisdiction, and congress alone is to determine whether the several remedies named will tend to destroy or impair the usefulness of the national .banks in their localities, and should, therefore, be prohibited. (See opinion of Swayne, J., in The National Bank of Buffalo v. Dearing, not yet reported.)

The right of these corporations or associations “ to sue and be sued, complain and defend in any court of law and equity as fully as natural persons,” is given iti the most general terms by subdivision 4 of section 8 of the act under which they are created. (See U. S. Rev. Stat., p. 999.) And congress has gone no further in the provisions of the fifty-seventh section, than to protect them from the summary processes specially named in suits brought in the State, county or city of their location. As to suits against such corporations as cannot be reached by personal process, congress has left intact the remedies provided by State laws. It follows from these views, and from the law as laid down in Cook v. The State National Bank of Boston (ubi sup.), that the attachment in this case was properly issued.

The order should, therefore, be affirmed, with ten dollars costs, besides disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM HEATH and CHARLES M. ELLIS, Respondents, v. CORNELIUS A. MAHONEY, Appellant.
    Infant— liability of, for fraudulent representations— measure of damages.

    No fraudulent representations made by an infant can give validity to any contract entered into by liim, which would otherwise be voidable by reason of his infancy. The action must arise solely upon the tort or wrong committed by him.
    The measure of damages for fraudulent representations made by an infant defendant, cannot be established by evidence of any action taken by the plaintiff in pursuance of a contract, void by reason of the infancy of the defendant.
    Motion for .a new trial, upon exceptions directed by the court to be heard in the first instance at the General Term.

      Townsend dé Weed, for the plaintiff.
    The fraud was the essence of the cause of action, and a failure to sustain the allegation of it by proof would have justified a nonsuit, eveu though a' liability upon a contract had been established. (Bose v. Mather, 51 N. Y., 108 ; Walter v. Bennett, 16 id., 250; Ely v. Munsford, 47 Barb., 629; Wardell v. Fosdick, 13 Johns., 325; Ward v. Wyman, 17 Wend., 193.) The plea of infancy is no defense to an action based upon a fraud or any unlawful act. {Wallace v. Morse, 5 Hill, 391; Conklin v. Thompson, 29 Barb., 218; Studwell v. Shapter, 54 N. Y., 249).

      John H. Bird, for the defendant.
    This is substantially an action on a contract made between plaintiffs and defendant, when defendant was an infant, which contract was afterward duly disaffirmed by him. The alleged false and fraudulent representations made by defendant to induce plaintiffs to enter into the contract, did not change the cause of action into a tort. The plaintiffs damages resulted, not from the alleged false and fraudulent representations of defendant, but, from his failure to perform the contract on his part. “A matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant in trover or case, by a change in the form of the action.” (Tyler on Infancy and Coverture, 176; Jennings v. R undell, 8 Term R., 337; West v. Moore, 14 Yt. R., 447; Merrill v. Aden, 19 id.. 505; People v. Kendall, 25 Wend., 399; Brown v. Durham, 1 Root’s R., 273; Bingham on Infancy and Coverture, 111; Bernard v. Haggis, 14 C. B. [N. S.], 45 ; Oreen v. Oreenbank, 2 Marsh., 485 ; Campbell v. Perkins, 8 N. Y., 430.)
   Davis, P. J.:

The complaint in this action charges the defendant with fraud, in inducing the plaintiffs, who are stock brokers, to purchase and carry for him 100 shares of stock, upon a margin of $500 in cash and two United States bonds of $500 each.

It is alleged that to induce the plaintiffs to receive the bonds, and purchase and carry the stock, the defendant represented that although the bonds were l'egistered in the name of his mother, they in point of fact belonged to him; that relying upon such representation the plaintiffs did purchase the stock at ninety-one and seven-eighths, and carried the same for a month, when the price had fallen to seventy-six and three-eighths, at which time they sold the same, by authority of the defendant, suffering a loss of $1,127.50.

The defense was a general denial of the alleged frauds; the infancy of the defendant, and a counter-claim set up by him to recover the' $500 deposited with the plaintiffs.

On the trial the plaintiffs gave evidence tending to show that the defendant applied to them to purchase the stock offering the margin above stated; that the bonds were registered in the name of his mother, Hannah Mahoney; that he represented that although in her name they belonged to him ; that the plaintiffs accepted them and consented to make the purchase.desired by defendant; that defendant entered into an agreement, which is set forth in the case, in respect to the sale of the stock without notice, in case of his failure to keep his margin good. It is also shown that the stocks were sold, under and pursuant to the agreement so signed by the defendant, at the rate of seventy-six and three-eighths. It is also shown that upon notice of the sale the defendant alleged that he was a minor; that the bonds belonged to his mother, and that she subsequently recovered them from the plaintiffs by action.

The infancy of the defendant was established on his part; and he also gave- evidence tending to show that the alleged fraudulent representations were not made.

The jury, under the charge of the court, found for the plaintiffs a verdict of $1,600 and interest.

It is very clear that the agreement entered into between the parties was invalid, by reason of the infancy of the defendant. An [infant is, however, liable for his willful torts, and for damages for frauds committed by him ; but no fraudulent representation made by an infant can give validity to any contract entered into by him which would otherwise be voidable for his infancy. (Studwell v. Shapter, 54 N. Y., 249, and cases there cited.) The action must, in all cases, arise solely upon the tort or wrong committed by him. Assuming that in this case the frauds alleged in the complaint, and which are the gist of the action, were sufficiently proved to entitle the plaintiffs to recover their damages, yet it was clearly not competent for them to establish the measure of their damages, or any part thereof, through the contract made by the defendant. The only evidence of damages given in the case was of that character. The plaintiffs produced, and read in evidence the agreement made and signed by the defendant-at the time of leaving the deposits, by which he stipulated, among other things, that if he should become indebted to them at any time for any deficiency arising out of contracts or transactions in or relating to stocks, the plaintiffs might, in their discretion, sell either at the broker’s board, or wherever they deemed advisable, at public auction or private sale, with or without advertising the sale, and with or without notice to him, the collateral securities held by them. It was under this contract that the plaintiffs claimed authority from the defendant to make the sale, and the only damages shown in the action were a deficiency arising upon such a sale.

The defendant being an infant,-this agreement was invalid and conferred no authority, and the plaintiffs could make no sale under its provisions, nor establish any claim for a deficiency by reason of its provisions.

At the close of the plaintiffs’ evidence the defendant moved for a nonsuit, and amongst other grounds stated the -following : That the damages which plaintiffs were seeking to recover from the defendant had resulted, not from his alleged false representations, but from his failure to perform his contract with the plaintiffs, which he was not bound to perform. This motion was denied by tbe court, and tlie defendant duly excepted. At tbe close of tbe case the defendant renewed the motion, upon the same grounds. The motion was not granted, and the court charged the jury that if the plaintiffs had established the alleged fraudulent representations to their satisfaction, and that in consequence of believing these representations which were fraudulent the purchase was made, the plaintiffs, as matter of law, were entitled to the damage which they had sustained, which was the difference between the price at which they bought the stocks and the price at which they were obliged to sell, $1,600 and interest. The counsel for the defendant requested the court to charge the jury, that “ unless the' jury can connect the loss with the alleged fraudulent representations, without the aid of the contract, the plaintiffs are not entitled to recover.” The court refused so to charge, and to such refusal the defendant duly excepted.

We think the question was fairly raised, whether the plaintiffs could establish the measure of damages through any action taken by them in enforcing the contract signed by defendant, and that the direction of the judge — which was, in substance, that this could be done — was a fatal error. The plaintiffs were allowed to use the infant’s contract, not merely for the purpose of showing what they had been induced to do by the false representations of the defendant, but also for the purpose of establishing their damages, by showing that they made the sale pursuant to authority given by the defendant in his contract, and in that manner were allowed to set up a measure of damages beyond what they were legally, under any circumstances, entitled to recover, treating this action as purely one for fraud. And the result is, that they have been allowed to recover the whole difference between the price paid and the price at which the stock was sold, without deducting or allowing the $500 of cash deposited; and it is fair to presume that- the sum recovered also includes their brokers’ commission for buying and selling.

The true measure of damages, if there can be any recovery in the action, is the loss sustained by means of the fraudulent representations. The false representations, assuming them to be proved, induced the plaintiffs to receive the two United States bonds for $500 each, as collateral security. By reason of the representations-proving to be false, the plaintiffs have lust the bonds. Restoring to them the bonds or their value would make good such loss. If the representations of the defendant as to the ownership of the bonds had been true — infancy being out of the question — the plaintiffs would have been able to have applied them or their value upon the deficiency accruing upon any lawful sale; and the amount which in such a case they could have so applied, seems to us to be the extent of damages which they have sustained, by reason of the alleged fraud.

The only representation alleged by the complaint to be false and fraudulent, and therein set forth as the inducement which led to the purchase of the stock, is that relating to the ownership of the bonds. And it follows, if we are correct in the views above expressed, that the recovery is much beyond any proper measure of . damages in the case, and cannot be upheld, for two reasons: First, that no recovery can be worked out through an enforcement of the contract made by the defendant, or' any part of it, because it is invalid for any and every purpose; and, second, that the recovery exceeds any damage which can be said to be the direct legal consequences of the alleged fraud.

Without passing more directly upon the question whether the action can be maintained at all, we think there must be a new trial for the reasons assigned.

New trial ordered, costs to abide event.

Brady and Daniels, JJ., concurred.

Motion granted and new trial ordered, costs to abide event.


author:
      Davis, P. J.:
      Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. THE NEW YORK AND STATEN ISLAND FERRY COMPANY, Appellant.

      Letters patent of land under water — right of patentee under — subject to legislative prescription of mode and manner of enjoyment — chap. 622 of 1860 — chap. 763 of 1857 — Beinedy provided by statute — when a substitute for action by the people — Extra allowance— basis for.

    The rights of a patentee from the State, holding land tinder the authority given to the commissioners of the land office to issue letters patent of land under water, are subject to the power of the legislature to prescribe the mode and manner of enjoyment by the owner, its use and the character of the structures to be erected thereon, and the space to be left between them.
    Section 3 of chapter 522 of 1860 does not repeal that portion of chapter 763 of 1857 regulating the building of piers in the port of New York; nor does the power conferred upon the pilot commissioners by the act chapter 522 of 1860, to protect the harbor against all encroachments, provide a remedy, which is a substitute for or which takes away the right of the attorney-general to bring an action for that purpose.
    In an action in which the plaintiff seeks the destruction of property, in part as a public nuisance and in part as a purpresture, the right to have the property • exist at the place where it has been constructed is of necessity involved, and the value of the property as constructed is a proper basis for an extra allowance. (Daniels, J., dissents.)
    Appeal from a judgment entered upon tbe findings of the court upon trial at Special Term, in an action commenced by the people to compel the defendant to remove a pier, or dock which it had erected, from the Staten Island shore into the bay of New York, upon the grounds: 1st. That the pier did not leave an intervening space of at least “ one hundred feet ” between it and an adjoining pier upon the south, as required by section 2 of chapter 763 of the Laws of 1857. And, 2d. Because a portion of said pier, upon which is erected a building used by a yacht club, extends into the harbor or bay beyond the grant which the defendant, as assignee of John Gore, had from the State. The facts stated in these two grounds were found by the court at Special Term.

      Erastus Cooke, for the appellant.

      Henry E. Davies, Julien T. Davies and James McNamee, for the respondents.
   Davis, P. J.:

The learned judge before whom the case was tried at Special Term examined all its meritorious questions, in an elaborate and able opinion. A careful examination on our part leads us to the same conclusions at which he arrived, and we therefore adopt his opinion as our own. The opinion is as follows:

“ Westbrook, J. This is an action commenced by the people to compel the defendant to remove a pier or dock, which it has erected from the Staten Island shore into the bay of New York, upon the grounds: 1st. That the pier does not leave an intervening space of at least “ one hundred feet ” between it and an adjoining pier upon the south, as required by section 2 of chapter 763 of the Laws of 1857; and, 2d. Because a portion of said pier, upon which is erected a building used by a yacht club, extends into the harbor or bay beyond the grant which the defendant, as assignee of John Gore, has from the State.

The action is defended upon the theories, that so much of the structure as lies west of a line designated and marked upon the maps as “line of 500 feet from low-water mark” is located upon property of which the defendant is the absolute owner, and that no act of the legislature can restrict the use thereof by such owner; and that the remainder thereof, which lies east of the line aforesaid, is authorized by the act of 1857, to which reference has been made. The facts of the case are undisputed, and it presents questions of law only.

On the 11th day of March, 1818, the people of the State of New York, by letters patent of that date, granted unto John Gore the lands under water in front of the adjacent uplands owned by him, beginning at low-water mark and extending out into the bay 500 feet. The grant to Gore covers the lands claimed by the defendant, and also those claimed by the Staten Island Railway Company, the former possessing the northern part thereof, and the latter the southern. The exterior or eastern line of the Gore patent was that to which reference has been before made, and is marked upon defendant’s map as “ line of 500 feet from old low-water mark.”

By an act of the legislature of the State, passed March 30, 1855 (chapter 121, Laws of 1855), a board of five commissioners was created, as declared in the title thereof, for the preservation of the harbor of New York from encroachment, and to prevent obstruction to the necessary navigation thereof.” On the 17th of April, 1857, another act entitled An act to establish bulk-head and pier lines for the port of New York” was passed. This act established “ the bulk-head line, or line of solid filling and the pier line,” upon the Staten Island shore, as well as upon the New York city shore, and sundry other points designated in said act.

The second section of such act declares “ it shall not be lawful to fill in with earth, stone or other solid material, in the waters of said port, beyond the bulk-head line, or line of solid filling hereby established, nor shall it be lawful to erect any structures exterior to said bulk-head line, except the sea wall mentioned in the first section of this act, and piers which shall not exceed seventy feet in width, .respectively, with intervening water spaces of at least 100 feet, nor shall it be lawful to extend such pier or piers beyond the exterior or pier line, nor beyond or.outside of the said sea wall.” Upon the construction of this act, and its constitutionality, this ease depends.

The bulk-head line, or line of solid filling established by the act of 1857 is not disputed. All the maps indicate the line alike. Prior to the year 1857 the Staten Island Railway Company had built a pier extending east from the old line of solid filling. This did not cover the whole of their land under water, but it immediately adjoined the property of the present defendant upon the north. Since 1857 (as I understand the evidence), at the eastern extremity of such pier the same company have constructed a dock or pier, extending north and south the whole breadth of its property, which,,connected as it is with the pier running out from the solid filling, forms a letter L, the foot of which, however, is reversed, i. e., turning to the left and not to the right. That which is called herein the pier, extends from the solid filling 106 feet, and is of piles, with a plank covering, and is in width (north and south) eighty-one feet. The eastern extremity of this pier (the foot of the L) is constructed, beginning on the south line of the defendant, first, of solid filling, twenty-five feet, then follows, going southwardly, a space of pile work, planked, thirty-one feet ten inches by twenty-four feet, then solid filling again. and so alternating the whole breadth of the property of the railway company.

When the structure of the Staten Island Railway Company was made, there was no pier to the north or south of it, and that of the defendant has been since erected.

Webster’s dictionary defines a pier, “a projecting wharf or landing place,” and within this definition the erection of the Staten Island Railway Company must certainly be regarded. Whether the addition put to it since the act of 1857 (assuming that I am right in the date of the erection), viz., the foot of the L, and extending beyond the bulk-head line established by the act of 1857, is legal or not, is not necessary to be determined. Probably the solid filling is illegal, but, with this removed, there would still remain the pier of the-Railway Company, constructed of piles, and called upon the maps “ Stapleton landing.” The structure of the defendant, which is sought to be removed, immediately adjoins that of the Railway Company, and as there is no space between this pier (that of the Railway Company) and that of defendant, as required by the act of 1857, the simple question which the point presents is: Did the legislature have the power to require the space to be left between piers, as established by that law ?

I have no doubt that the defendant acquired ownership by the patent to Gore. It being a grant by legislative authority, it presents a different question from that presented by the cases cited by the counsel for the plaintiff, and that of Martin v. Waddell (16 Pet., 369). These cases present the question of the power of the king of England, without an act of parliament, to pass title to lands under water. In this, the question is presented as if the king and parliament had concurred in the grant, as the patent to Gore issued under and by virtue of an act of the legislature, and this distinction is well recognized. (See opinion of Brown, J., in Lowndes v. Dickerson, 31 Barb., 586.) But while I have no doubt of the validity of the grant, I have none either as to the power of' the legislature to pass the act of 1857. By it the defendant is not deprived of its property, but the use is regulated. The mode and manner of enjoyment by the owner, its use, and the character of the structures to be erected thereon, and the space to be left between them, are frequently regulated by statute, and it is this and' this only which the act of 1857 accomplishes. The patent to Gore, as' the acts under which it was made show, was for the promotion of commerce, and was accepted for that purpose. The mode of its use must necessarily be under legislative control, and as this is all the law has attempted, the structure of the defendant must be pronounced illegal, for the reason that it violates the act of 1857.

The structure of the defendant, which is east of the “ line of 500 feet from old low-water mark,” is beyond its grant. This fact is conceded, but it is claimed that because the act of 1857, before referred to,-forbids the erection of piers only when beyond the harbor commissioners’ pier line,” and, as the defendant’s pier is within that limit, therefore it is not unlawful. This argument proceeds upon the theory that only that which is expressly forbidden is unlawful, and, in my judgment, it is unsound. It is one thing to say, as has been done, in no case shall any person, whether his grant extends beyond the pier line established or not, erect a pier beyond such a line, and quite another thing to say that every person who does hold a grant of lands under water, though not extending as far as such pier line, may build up to such line.

The defendant must show, to defend itself, an express permission to erect its structure upon property of the State and to which no title has b,een conveyed. The act was general in its forbidding, because some grants may have gone beyond the pier line, but it does not purport to convey, nor does it grant to any party whatsoever, a foot of property of the State. As to' this portion of its erection the defendant is precisely within the case of The People v. Vanderbilt (26 N. Y., 287), it having no title to the premises occupied, and no permission or license to erect its structure. That part of the pier on which the club-house stands, and also all east of the Gore grant, are not located upon the defendant’s property, and s.uch erections have not been sanctioned or allowed by any act of the people. For the reasons indicated, the plaintiffs are entitled to the relief demanded in the complaint. I am not prepared to hold, and do not hold, that because the defendant’s pier projects beyond that of the Staten Island Railway Company, thus rendering the enjoyment of the latter’s property more difficult, that it can be removed for that reason. If the defendant’s pier was constructed as the law directs and placed upon its own property, the complaint would be dismissed, as the Staten Island Railway Company could extend its own pier and thus avoid that difficulty. The relief is granted because defendant’s pier, west of the line oi its grant, is in violation of the act of 1857, regulating the mode oí the construction of piers, and all east of that line is upon property of the plaintiffs, who have never authorized its erection. Before closing, however, as to the point made by the defendant, that the plaintiffs are not entitled to relief, because, on a motion made by the defendant to modify the injunction, the attorney-general stipulated that it might be so modified as to permit (the defendant) to strengthen the pier then built and complete the club-house. The suit was pending for the removal of the entire structure, and that was not discontinued. The continuance of the suit and the consent must be read together. The result of the controversy was in doubt, and the preservation of a structure pendente lite, if the defendant was willing to spend money for that purpose, and the plaintiffs consent thereto, do not make a consent to perpetually maintain the structure.

The continuance of the action limits the effect of the stipulation, and shows its object. The defendant could not have been misled, and cannot therefore set up an estoppel.

The plaintiffs are entitled to judgment, with costs.

The additional questions raised on this appeal, so far as they affect the merits of the case, are :

First. That the amendment, by section 3 of chapter 522 of the Laws of 1860, of An act to establish bulk-head and pier lines for the port of New York, passed April 17th, 1857 (ch. 763 of the Laws of 1857),. was in effect a repeal of so much of the act of 1857 as regulated the building of piers.

The language of the amendatory section of the act is as follows:

“ An act entitled an act to establish bulk-head and pier lines for the port of New York is hereby amended so as to read as follows;” the said bulk-head and pier line shall be altered so as to read as follows: “Beginning at an angle in the'exterior w^ater line of land under water granted to Governor Morris, etc.,” and then follows a description of the bulk-head and pier line as so altered.

It is obvious that the sole intention of the legislature, by this provision of the act of 1860, was to do nothing more than to change the bulk-head and pier line, as defined in the act of 1857, to accord with the description set forth in the amendment, and thereby better define the same, and to leave all the other provisions of the act of 1857 intact and in full force. Tills intention appears by the reference previously made, in the act of 1860, to the act of 1857; and although the third section of. the act of 1860 is unskillfully drawn, there seems to be no difficulty in discerning and carrying out the intention of the legislature. Both acts are to be read together, being in pari materia, and the description of. the bulk-head and pier line is now to be found in the second act.

Second. That the power conferred upon the pilot commissioners by the act of 1860, to protect the harbor against all encroachments, provides a remedy which is a substitute for the action by the attorney-general, and that an action cannot be maintained, without showing some facts which render the statutory method ineffectual. We are of opinion that the remedy created by the act in question is cumulative, and does not take away the right of the people of the State to proceed by action to procure the abatement of any nuisance or purpresture in the waters of the harbor. It would require plain words of negation to justify the court in holding that the remedies of the statute were taken away by provisions such as are contained in the act of 1860. In this case there is neither any expression or necessary implication of such intention.

Third. The point that the defendants’ rights, under the grant made by the State to John Gore, to the lands under water, cannot be taken from him except by the exercise of the right of eminent domain, and, upon due compensation, is, of course, well taken. The grant to John Gore gave to him only the ownership of the soil under wafer, but no right whatever to interfere with the right of the public in using the water for the purpose of navigation. lie cannot so exercise his right of property as to obstruct or render inconvenient the navigation any more than the person who has the fee simple of a road can obstruct or annoy the passer over it.” (Angell on Tide Waters, 64.)

The grant in question is therefore to be construed as though it expressly reserved to the legislature, the right to pass acts regulating the use of the waters of the harbor in the interests of the public, and in so doing nothing is taken from the owner of the lands under water lor which he is entitled to compensation. The law on the subject is well settled by numerous English and American authorities, [Attorney-General v. Burridge, 10 Price, 360, 372; Williams v. Wilcox, 8 Ad. & Ellis, 314; Lord Hale’s Treatise [De Partibus Maris], part 2, chap. 7; Attorney-General v. Parmeter, 10 Price, 378; Woolrych on Water Rights, Law Library, vol. 78, chap. 1, p. 29; chap. 2, pp. 196, 197, 198; Rogers v. Jones, 1 Wend., 261; Brink v. Richtmyer, 14 Johns., 255; Hoffman on Estate and Rights of the Corporation of New York, vol. 1, p. 224; People v. Vanderbilt, 26 N. Y., 287; People v. Vanderbilt, 28 id., 396; Del. and Hud. Canal Co. v. Lawrence, 2 Hun, 163; Gilman v. Philadelphia, 3 Wall., 724; Gould v. Hudson R. R. R. Co., 6 N. Y., 522.) The several exceptions to the admission of testimony, taken in the course of the trial, do not seem to us of any importance. It is difficult to see how the defendants could have been injured by the admission of the testimony offered, assuming it to have been improperly admitted and to have been wholly immaterial. But this is an equitable case in which there was no substantial conflict of testimony upon the material facts, and it is apparent that if the testimony objected to by the defendants had been excluded, the facts could not have been found otherwise than they have been by the learned justice. In such a case, even if it were held that the admission or rejection of evidence was technically irregular, we should not deem it our duty to reverse the judgment because of such error.

But we have looked at all the exceptions, and are of opinion that none of them were well taken.

Brown and Dubois were experts on the subject-matter of their testimony, and it was competent to prove by them what is known as a bulk-head and what is known as a pier.

There was no error in allowing proof of the size of the boats of the Staten Island Railroad Company. It appeared that they were accustomed to navigate the harbor at the point now obstructed by the pier, and it was entirely competent to show both the fact of navigation, and the kind of boats that had been used at this point, for that purpose.

These are the only exceptions to which our attention is called by the points of the appellants, and we do not discover in them such force as calls upon us to interfere with the judgment.

The point is also made that so much of the judgment as provides-for an extra allowance is erroneous. Ordinarily, this question would not come up upon an appeal from a judgment, but only upon an appeal from the order granting the extra allowance. After the-order granting the allowance is made, the sum allowed becomes-part of the costs to be adjusted, and upon an appeal from the judgment recovering costs, the court will not look behind the legal adjustment of costs, for the purpose of determining whether any of the items are or are not irregular.

But the peculiar form in which the judgment is entered in this case seems to make the question whether the court below had power to grant any allowance, a proper one for consideration here.

In The Atlantic Dock Company v. Libby (45 N. Y., 499), the court reversed an order allowing the plaintiff $500 as an extra allowance, on the ground that the value of the premises and machinery of the defendant was not the subject-matter involved in the action. The order for additional allowance had been based upon such valuation. The court does not hold that an additional allowance could not be granted in such an action upon a proper subject-matter. This case is distinguishable from that, in the fact that the plaintiffs seek the destruction of property in part as a public nuisance, and in part as a purprestnre; and the right of the property to exist at the place where it has been constructed is of necessity involved. This gave clearly a subject-matter upon which the defendant, if successful in the suit, would be entitled to move for an additional allowance, because he could well say that the whole value of the pier, and the structures erected thereon, was involved in the right to maintain and use them. We think the same reasoning that would give to defendant the right to move for an additional allowance, is applicable in favor of the plaintiff when he recovers the judgment.

For that reason we hold that the additional allowance was not improperly granted. Judgment affirmed, with costs.

Beady, J., concurred.

Daniels, J.:

I do not think this a case in which an additional allowance of costs can be made according to sections 308 and 309 of the Code. But for the other reasons given I concur in the result of the opinion.

Judgment affirmed with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES DEVLIN v. THE COURT OF OYER AND TERMINER

      Recognizance — denial that indictment therein, mentioned was found — forfeiture of.

    In proceedings to forfeit a recognizance, tlie allegation by the surety that no such indictment as that described in the recognizance has been found, gives rise to a question of fact, -which must be tried and determined by some tribunal, if the recognizance does not operate as an estoppel against the defendant. Where in such a" case no request is made by the surety for an order directing the prosecution of the recognizance by the district attorney, even if the court might have considered the facts alleged in determining whether the order of forfeiture should be made, yet the relator cannot have that question considered on a writ of certiorari. His remedy is by application to the Court of Common Pleas. *
    Six indictments were found for forgery on the same day. Reid, that it was not necessary that the recognizance should specify to which one of the six it referred.
    Certiorari to the Court of Oyer and Terminer to review proceedings had upon forfeiting the recognizances of William M. Tweed, principal, and Charles Devlin as surety.
    The relator, on June 22d, 1875, entered into a recognizance for the appearance of William M. Tweed to answer an indictment. The recognizance recited that Tweed was indicted on the 22d day of November, 1873, for the offense of forgery, in the Court of General Sessions of the Peace, and the condition was that he should appear at the present term of the Court of General Sessions of the Peace, and at any subsequent term to which the proceedings in the premises may be continued.

      On the 13th day of December, 1875, Tweed was called and did not appear. The surety was required to bring him forward and did not do so. It was moved on behalf of the people that the recognizance be declared forfeited. The surety appeared and showed cause why it should not be forfeited. He produced the indictment, a sworn statement of facts (mentioned in the opinion), the records of the court showing that no continuance had been had after October 29, 1875, and another indictment which he claimed superseded the first one. Four similar cases, involving the same questions, were decided at the same time with this one.

      Dudley Field, for the relator.

      B. K. Phelps, district attorney, for the respondent.

       See People v. Sands, post, p. 235.

   Davis, P. J.:

In this case the same order was made by the Oourt of Oyer and Terminer, and the same reason assigned for making the order as in the ease of The People ex rel. Sands v. The Court of Oyer and Terminer, decided at the present term. The facts presented are, in some respects, different. It was alleged that there was no such indictment as that described in the recognizance, and that none such was ever found in the Court of General Sessions of the Peace, held in and for the city and county of New York; and, secondly, that, at the time of entering into the recognizance, six indictments against the said defendant Tweed,- for forgery, were pending in the said Oourt of Oyer and Terminer, and if the said recognizances were intended to refer to any of them, it was left uncertain which of them they referred to, and that they were therefore void for uncertainty. The indictment named in the recognizance is described as having been found in the Oourt of General Sessions of the Peace, in and for the city and county of New York, for the offense of forgery. The condition is for the appearance of Tweed at the Court of General Sessions of the Peace to answer said indictments against him, at the present term or at any subsequent term of said court, or in any court where such indictment might be sent for trial. It contained at its foot a stipulation, signed by the parties to the recognizance, that in case the recognizance should be forfeited, judgment might be entered by the clerk of the city and county of New York, upon filing the recognizance and order of forfeiture.

No point seems to have been made, that the Court of Oyer and Terminer had hot acquired jurisdiction of the indictment, if any such had been found in the Court of General Sessions, but it is alleged, that none such had ever been found in that court. If this was a question upon which the recognizances did not operate as an estoppel, against the defendant, it was one of fact to be tried and determined by some tribunal, and the same thing is true of each of the other objections.

It seems to have been admitted, that six indictments for forgery were found in the court of General Sessions, against said Tweed, on the 20th of February, 1873, and the objection argues, that if the recognizance was intended to refer to any of them, it was left uncertain to which it referred, and was therefore void for uncertainty.

The argument seems to us to be without substance, because the recognizance refers to but one, and the production of Tweed under the recognizance would discharge the surety completely, whatever number of indictments might be in existence. The alleged uncertainty was entirely harmless, since the condition, of the recognizance required the production of the principal to answer but one indictment, and that being done, there would be no obligation to produce him upon another. In this case, no request was made for an order specially directing the prosecution of the forfeited recognizance by the district attorney, and as the order of the court followed the stipulation appended to the indictment, and made therewith matter of record, the court was not legally bound to make any other order than that made. If the court might, in its discretion, have considered the facts alleged, in determining the question, whether the order of forfeiture should be made, yet the relator had, we think, no such legal right, under the circumstances, to demand the exercise of that discretion, as would entitle him to review the proceedings on a writ of certiorari. His rights are, we think, fully preserved and may be enforced by the proper application to the Court of Common Pleas. The writ should be dismissed, with costs.

JBeady and Daniels, JJ., concurred.

Writ dismissed, with costs.