text:
    Margaret J. Doyle, App’lt, v. The Pennsylvania & New York Canal & Railroad Co., Resp’t.

      (Court of Appeals,

      Filed October 17, 1893.)

    Railroad—Negligence—Contributory.
    Plaintiff, while walking on the sidewalk of a public street at night, crossed a large number of railroad tracks, and 250 feet east thereof was struck by an engine running upon another track of which she had not known. There was no flagman or house or other sign. Plaintiff testified that the engine was running very fast, that no bell was rung or whistle sounded, and that she thought that the train was coming on the other tracks. Held, that it was for the jury to say, under all the circumstances, whether the plaintiff exercised ordinary prudence and care,
    Appeal from judgment of the superior court of Buffalo, general term, affirming order of special term granting a new trial verdict for plaintiff.

      John Laughlin, for app’lt; Frank Brundage, for resp’t.
   Per Curiam.

A careful perusal of the record leads us to the conclusion that the trial judge did not err in submitting the questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, to the jury. The defendant’s negligence, if any negligence on its part existed, consisted in a want of due caution in the management of its train while crossing Perry street. Its main track was on the north side of Perry street, and passed westerly on an embankment on that side of the street towards the city. But it had constructed a single track across Perry street, which left its main line a short distance west of Peabody street, and, curving southeasterly and crossing the street obliquely, reached the south side of Perry street about 339 feet west of Peabody street. The track across Perry street was substantially on the grade of the street. The company maintained no flagman, and there was no sign indicating a railroad track at that point. The evidence tends to show that a person going easterly from Selkirk street on the south side of Perry street would not discover the existence of this track before reaching it, and, also, that seeing a train coming from the east on the main tracks, on the north side of Perry street, on a dark night, might be misled and not perceive that it diverged from the main track to cross Perry street until it had nearly reached the south side. This would be especially true of a person unacquainted with the locality, and who did not know of the existence of the track crossing Perry street, and who could follow the course of the main line along the embankment on the north side of Perry street

The situation imposed upon the defendant the duty of using care and moving with caution in crossing Perry street. The evidence on the part of the plaintiff is that the train, the movement of which she observed after she was thrown down, was going very fast, and there is evidence on the part of witnesses for the defendant, other than the einployes, from which the jury might reasonably infer that the train was moving much faster than four or four and a half miles an hour, which was the rate of speed fixed by the employes on the train. The plaintiff testified that no bell was rung, or whistle sounded, or other signal given from the train of its approach. She was somewhat corroborated on this point, but the engineer and fireman, and, perhaps, other employes, testified to the continuous ringing of the bell. This was a question for the jury.

It further appears from the testimony of the fireman and engineer that .they did not see the plaintiff, and did not khow until the following day that anyone had been struck, although it appeared that a person on the track could have been seen from the engine by a lookout. We think 'there was sufficient shown to require the submission of the question of the defendant’s negligence to the jury. The contributory negligence of the plaintiff is claimed principally on the ground that from a distance of several hundred feet west of the point where the track of the defendant’s road crossed Perry street a train coming on the main line of the defendant’s road from the east could be seen by a person going easterly on the south side of Perry street, and that in fact the plaintiff did see the train and the headlight before it reached the point where the train diverged to cross Perry street, and that it continued in her sight all the time until she was struck. But the circumstances are to be considered. She was rightfully on a public street, walking on the south sidewalk in the direction of the coming train. She had just crossed a large number of tracks of other roads in safety, and supposed that there was no other track crossing Perry street west of Peabody street. She did not know of the existence of this isolated track of the defendant, located about 250 feet east of the body of tracks just crossed by her. Its existence was not indicated by the conformation of the ground, nor by any flagman, or fiaghouse, or other sign.

She knew of the location of the main tracks, of the defendant’s road running along the north side of Perry street, and when she saw the headlight of the appoaching train she supposed, as she testified, that it was going along the embankment on the north side of the street. She said: “ I didn’t see the train come across the street where I was. Didn’t know it was coming across the street; I thought it was going to keep on the bank.” If her attention had been challenged by bell or whistle this deception might have been corrected in time to have prevented any injury

We think it was for the jury to say, under all the circumstances, whether the plaintiff exercised ordinary prudence and care. The time occupied by the train in crossing the street was in any view of the speed very short; the plaintiff had no knowledge of the existence of the track, and nothing to put her upon her guard in the way of affirmative acts on the part of the defendant; the night was very dark, and it is quite possible to conceive that under the circumstances she did not realize that the headlight was approaching her, until it was too late to escape the contact of the locomotive.

The case was fairly submitted to the jury on the facts, and itheir finding was not contrary to law because unsupported by evidence.

The case recites that no question was made that the damages were excessive. The trial judge denied the motion for a new trial on the facts, but granted it ‘‘ solely upon questions of law •raised by the exceptions,” and the order was affirmed by the general term on the same ground, but no opinion was written either at .■special or general term. We have looked into the exceptions other than those arising on the motion for a non-suit taken by the defendant, and we think none of them are well taken. (1) For reasons indicated the question as to the speed of the train was properly submitted to the jury; (2) there was no error in charging that the jury, in considering the question whether the train was managed carefully and prudently, might consider the fact that no flagman was maintained at the crossing; (3) there was no error in refusing to charge that the omission of the defendant to give warning by bell or whistle was immaterial in view of the fact that the plaintiff saw the train. It was for the jury to say whether a sharp signal of danger might not have prevented the accident; (4) the exception to the charge, “ that if the' plaintiff watched the engine and knew that it was approaching, and knowingly went in front of it, she was guilty of negligence, but that it was for the jury to say whether any further warning than such as was given by the headlight ought to have been given,” is sought to be supported on the ground that it leaves out the element of negligence on the part of the plaintiff. This charge was given in reply to a request to charge that the omission to ring the bell or sound the whistle was, under the circumstances, immaterial. But, taking it in connection with the main charge on the subject of the •care required to be exercised by the plaintiff, the jury could not have been misled.

We think no error of law was committed on the trial, and the orders of the special and general terms should be reversed, and judgment on the verdict ordered for the plaintiff, with costs.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    John F. Zebley, App’lt, v. The Farmers’ Loan & Trust Company, Resp’t.

      (Court of Appeals,

      Filed October 17, 1893.)

    1. Pleading—Demurrer—Stale demand.
    Where the complaint upon its face discloses a cause of action harred by the statute of limitations the question .cannot be raised by. demurrer, but by answer, and a party ought not to be permitted to avail himself of the objection that the demand is stale, in consequence of facts not constituting a statutory har, on easier terms than he could avail himself of the statute of limitations.
    3. Same.
    A court of equity undoubtedly may under proper circumstances, in the exercise of discretion, decline to aid a party in the enforcement of a stale demand, but it is believed that such a result can seldom, if ever, be reached upon a demurrer to the bill and without full examination of all the facts and circumstances of the case.
    3. Same—Tender.
    In actions for equitable relief, where it appears that the party seeking the relief was bound to pay some unascertained amount before the relief could be granted, it is not necessary to pay or tender the amount before bringing the suit.
    4. Trustee—Accounting—Parties.
    Where the trustee of a railroad mortgage has been authorized by the decree of foreclosure to purchase on the sale for the benefit of the bondholders who contribute to the expense of the proceedings and does so, but thereafter sells to a new corporation without the consent of some of the bondholders, the corporation to whom the property was sold is not a necessary party to an action brought by a bondholder to compel the trustee to account.
    Appeal from judgment of the supreme court, general term, first department, affirming interlocutory judgment sustaining demurrer to the complaint.

      William Wirt Hewett, for app’lt; Herbert B. Turner, for resp’t.

       Reversing 45 St. Rep., 425.

   O’Brien, J.

The courts below have sustained a demurrer to the plaintiff’s complaint. The actual merits of the plaintiff’s claim are not involved in this appeal, but only the question whether he has stated enough in his complaint to call for an answer from the defendant and an examination of the facts by the court. If he has, then the case must be disposed of upon the facts as they may appear. The action was commenced in April, 1888. The allegations of the complaint are quite broad and general. It states that prior to the commencement of- the action the plaintiff became and is the owner of eleven bonds, issued by the NewrYork & Boston Railroad Company, a domestic corporation, upon which there is due and unpaid the sum of $11,000, with interest from November 1, 1872. That such bonds were a part of an issue of $2,500,000, duly issued by said corporation, for the purpose of borrowing money to be used in completing and operating its road, under date of November 1, 1869, payable with semi-annual interest November 1, 1889. That at the same time the railroad duly executed, sealed and delivered to the defendant a mortgage or deed of trust, conveying to the defendant, as security for the redemption and payment of said bonds and the interest thereon, all of its property and •franchises, the mortgage being referred to and made a part of the complaint. That the defendant became a party to the mortgage and accepted the trust, and*the bonds were thereupon issued in form payable to the defendant, trustee, or bearer, in the sum of $1,000 each, and the defendant did thereafter, in accordance with the terms of the mortgage, certify in writing that the bonds were secured by the mortgage, which the complaint averred was duly recorded in the proper office. That about May 1, 1873, the railroad company made default in the payment of the interest on the bonds, which default continued for more than sixty days? whereupon the defendant as trustee, by the terms of the mortgage, did elect that the principal of all the bonds should become and be immediately due and payable. That thereafter, and on or about. April 23, 1875, the defendant brought suit for the foreclosure of the mortgage and procured a judgment in foreclosure, directing a sale of the property for the purposes of the trust It is alleged that the decree in the action contained a direction in pursuance of the terms of the mortgage that upon the sale, in case there should be no bona fide bid in cash to an amount equal to that of all the bonds ascertained and reported to be outstanding and secured by the mortgage, the trustee might bid for and purchase the property in behalf of all the bondholders, in proportion to their respective interests, not exceeding the whole amount of the outstanding bonds, but of the purchase price only so much should be payable in cash as should be necessary to meet and defray the expenses of the action and the other expenses therein directed to be paid in cash, and thereupon, and upon the payment by each bondholder of his share of such cash payments, the purchase inure to their benefit in proportion to tbeir respective holdings, such sale, however, to be subject to certain liens or claims as should thereafter be determined. That thereafter, and on June 5, 1876, no cash bid having been made, the property was sold to the defendant in conformity with the terms of the mortgage^ and decree, in behalf of all the bondholders, and conveyed to the defendant That about this time certain persons associated themselves together and formed a new corporation with a new name, to which the defendant conveyed the property held by it in trust, upon some consideration to the plaintiff unknown, with knowledge that the plaintiff’s bonds were still outstanding, due and unpaid. That the transfer was made without the knowledge or consent of the plaintiff or the holder of the bonds in suit,, and they have never received any of the benefits or advantages of the reorganization, but, on the contrary, have at all times elected to have their distributive share of the proceeds of the mortgaged property, and that the corporation, maker of the bonds, is insolvent

It is then averred that though the plaintiff has at all times been ready and willing to pay his share of the expenses of the defendant, and has at divers times, and particularly on or about December 16, 1887, demanded that the defendant account with him of and concerning the premises, and pay him his share of the proceeds or value of the property and any other moneys that have come to its possession or under its control as such trustee, but the defendant has refused and still refuses to so account or pay and denies that the plaintiff has any right or interest in the proceeds of the sale or in anywise under said trust, and has wrongfully, and in violation of the trust, converted to its own use the share of the property or its proceeds to which the plaintiff is entitled under the trust. Judgment is prayed that the defendant be required to account and pay over any sum in its hands applicable upon the plaintiff’s bonds.

There were three defects or grounds of demurrer specified by the defendant.

1. That the complaint did not state facts sufficient to constitute a cause of action.

2. That the court has not jurisdiction of the subject of the action.

3. That there was a defect of parties, in that the new corporation, to which the property was transferred by the defendant upon the reorganization, had not been made a party defendant.

ít will be seen that the facts stated show that the defendant was a trustee for the bondholders under the mortgage, and then under the decree of foreclosure; that it sold the trust property, and has not accounted therefor to the plaintiff, who owns part of .the bonds for the payment of which the defendant held the property. The complaint will be deemed to allege every fact which can by reasonable and fair intendment be implied from the statements. Marie v. Garrison, 83 N. Y., 14; Sanders v. Soutter, 126 id., 193 ; 37 St. Rep., 1.

Whatever may in the end prove to be the merits of the controversy, the pleading must be held sufficient to require an answer, unless two objections suggested upon the argument, and sustained by the courts below, appear to be tenable. These are: (1) That the complaint shows that the claim is a stale one, which a court of equity will not entertain, and (2) that upon the facts appearing on its face, the plaintiff’s remedy, if any, must be had in the action brought to foreclose the mortgage. The.learned counsel for the defendant relies upon the case of Speidel v. Henrici, 120 U. S., 377, to sustain the first proposition. In that case the court sustained a demurrer to a claim for accounting, based upon an uncertain and indefinite trust, not arising by deed, in regard to which the plaintiff had been silent for nearly fifty years. The conclusion was sustained by authority found in the decisions of the federal courts, and based upon the rules and practice pf equity as administered there. In this state, however, it has long been settled that" such circumstances are only evidence upon an issue of fact with respect to the existence of the claim, the ownership of the party setting it up, or its subsequent payment, settlement or extinguishment in some way. Macaulay v. Palmer, 125 N. Y., 742; 36 St. Rep., 175; Jackson v. Sackett, 7 Wend., 94; Bean v. Tonnele, 94 N. Y., 381; Parker v. Foote, 19 Wend., 309; Miller v. Smith, 16 id, 443; Jackson v. Hotchkiss, 6 Cow., 401.

The inference, with respect to the existence of a claim in fact, to be drawn from such facts and circumstances may be strong or otherwise depending upon the, peculiar features of each particular case, but generally it cannot be said, as matter of law, that a claim or. cause. of. action, not barred by the. statute , of limitations, is defeated by mere lapse pf tirye aloye"Order o,ur .system ,of procedure, .even where the complaint upon its face discloses a cause of action barred by the statute of limitations, the question cannot be raised by demurrer, but by answer, and certainly a party ought not to be permitted tc avail himself of the objection that the demand is stale, in consequence of facts not constituting a statutory bar, on easier terms than he could avail himself of the statute of limitations. A court of equity undoubtedly may, under proper circumstances, in the exercise of discretion, decline to aid a party in the enforcement of a stale demand, but it is believed that such a result can seldom, if ever, be reached upon a demurrer to the bill, and without full examination of all the facts and circumstances of the case. Generally the obligation of a trustee to account is not affected by the statute of limitations until a denial or repudiation of the trust Perry on Trusts, vol. 2, § 863 : Angelí on Limitations, §§ 166, 468, 472; Decouche v. Savetier, 3 Johns. Ch., 190, 216 ; Flint v. Bell, 27 Hun, 158; Shannon v. Howell, 36 id., 47.

According to the allegations of the complaint admitted by the demurrer, this transpired but a few months before the commencement of the action, so that, in any aspect of the case, the defendant is not in a position upon the pleadings as they stand to insist that the plaintiff’s claim is, as matter of law, defeated by the lapse of time.

Nor can it be held that the plaintiff’s sole remedy was by intervention in the action to foreclose the mortgage. He had no absolute right to intervene, but could do so only on application to the court, which was subject to the exercise of discretion. The. demurrer cannot be sustained upon this ground unless it appears; upon the face of the complaint either that another suit was pending between the same parties for the same cause of action, or that the rights of the plaintiff were adjudicated by the decree' so as to operate as a bar.

It is plain that neither of these facts appear. The former judgment settled nothing inconsistent with the plaintiff’s present claim. Indeed, the facts upon which the plaintiff claims relief did not exist until after the. entry of that judgment. It is the sale of the property, the receipt by defendant of the proceeds and the refusal to account that constitute the most important elements of the cause of action, and all these facts transpired subsequent to the entry of the decree. The judgment fixed the defendant’s relations to the bondholders as trustee under it for the purpose of executing its provisions, but whether it ever did in fact perform the trust imposed could not, in the nature of things, have been determined, but was left open for future inquiry. The pendency of another action for the same purpose, or where the relief could be obtained, is not specified as a ground of demurrer, and, therefore, the defendant cannot urge that objection now even if it appeared upon the face of the complaint that such was the fact. It is obvious, however, that the former suit was not one between the same parties upon the same cause of action, though it may be true that the plaintiff might have been made a party thereto by permission of the court, and by amended or supplemental pleading, or in some other way obtained the relief now sought, but it does not follow, as matter of law, that he was bound to do so. The obligation of the trustee to account to the plaintiff did not arise until it had received the proceeds of the trust property, and the complaint discloses no obstacle to the enforcement of that right, when it accrued, by an independent action. '

The plaintiff was bound by the terms of the mortgage and decree to pay his share of the éxpenses in order to share in the distribution of the proceeds of the property, and it is quite true that the complaint does not show that he had paid or tendered the amount. If such payment or tender was a condition precedent to the maintenance of such an action it would be necessary to show that it had been performed. But it has long been the rule in actions for equitable relief such as is sought to be obtained here, where it appears that the party seeking the relief was bound to pay some unascertained amount before the relief could be granted, that it is not necessary to pay or tender the amount before bringing the suit. It is enough if he offers in his bill to pay or to perform whatever obligations rested upon him in that regard, Casserly v. Witherbee, 119 N. Y., 522; 30 St. Rep., 92; Quin v. Brittain, Hoff. Ch., 353; Beach v. Cooke, 28 N. Y., 508 ; Kley v. Healy, 127, id., 555; 40 St. Rep., 215, and the plaintiff has complied with that use.

In actions to compel an accounting by a trustee concerning the disposition made of the trust fund or property this principle applies, and this is especially true in a case where he has repudiated the trust before the commencement of the action, and the tender would be a mere idle ceremony. It is true that under certain circumstances a failure to pay or tender performance before suit may be a good reason for denying costs to the plaintiff or for imposing costs upon him, even when the action is otherwise sustained, but it cannot be held that a complaint in an action of this character is for that reason bad upon demurrer. The new corporation created under the reorganization proceedings was not a necessary party. The defendant as trustee transferred to it the trust property, but its title under that transfer is not questioned, and no relief of any kind is asked against it, nor are any facts stated which would warrant any relief.

■ The judgment should, therefore, be reversed, and the demurrer overruled, with costs to the plaintiff in all courts, and with leave to the defendant to answer within twenty days after service of the order, upon payment of costs.

All concur.


author: Gray, J.

text:
    Moses May, Resp’t, v. Henry Traphagen, App’lt.

      (Court of Appeals,

      Filed October 17, 1893.)

    Taxes—Assessment.
    A plot of land belonging to defendant in Brooklyn was divided in 1883 and new numbers given on the ward book. In making the assessment in 1883 the assessors assessed both lots as one parcel at the same gross valúa, tion as before, and they so remained until the books came into the collec tor’s hands. Thereafter an apportionment was made in his office and sep' arate statements of valuation and assessed tax were made as against each lot. Held, that the omission to state separately the valuation of the lot owned by defendant amounted in law to a failure to impose any tax for which the owner could be held; that the subsequent apportionment was ineffectual to validate the previous proceedings or supply the defects by which the lot escaped assessment, and that the sale thereof for non-payment of the tax was void.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment in favor of plaintiff.

      Gratz Nathan, for app’lt; Ira Leo Bamberger, for resp’t.

       Reversing 46 St. Rep., 556.

   Gray, J.

The action was brought to recover possession of certain premises in the city of Brooklyn. The plaintiff’s title comes through a sale made to him on February 28, 1887, by the registrar for the non-payment of the taxes for the years 1882, 1883 and 1884. The defendant was the owner of the property at the time of the tax sale, and, among other objections to the plaintiff’s title, asserts that the taxes for the year 1883 were not legally assessed, and, hence, the sale was ineffectual.

It was shown that the premises formed, originally, part of one plot of land, which, in 1882, was designated upon the ward map by the number 19 in block 222. In’February, 1883, the ward map was altered by the assessors by subdividing the plot Ho. 19 into two lots, or parcels, which received new ward map numbers, the premises in question being designated as Ho. 21 and the remaining lot being designated as Ho. 20. In makitig the assessment for 1883, and the “ annual record of real and personal'propety subject to taxation” for that year, the taxing officers included in one valuation and assessment the two lots 20 and 21, instead of stating in the record the valuation of lot Ho. 21, here in question, and'the amount of the assessment thereon. That is, the two lots together were set down in the assessment roll at a valuation of $4,500, and a gross tax was assessed of $107.30. The record so remained during the period when the books were kept open for examination and correction, and they so came into the collector’s hands.

On Hovember 20, 1883, an apportionment was made in his office, and, by erasures and entries in red ,ink, separate statements of a valuation and of the assessed tax were made upon the books. The circumstances under which this apportionment was made are not disclosed exactly.

We think that there was a fundamental defect in the proceedings for assessment and taxation. The charter of the city, Laws 1873, chap. 863, title 10, prescribed the power and the duty of the assessors, and required that all assessments shall refer to the ward maps, which were to be made and to be kept by them. They were directed to follow the provisions of the general law, and that required a separate statement of the value of the land to be assessed. In the opinion at the general term it was held that the gross assessment of the two lots did not render it void, on the ground that there was a reference to the ward map, and if the defendant had objected to the assessment in gross the assessors would have changed it by making separate assessments upon each lot. Reference is made in the opinion to § 11 of the Consolidation Act of 1888, providing for the apportionment of gross assessments where more than one person is interested in the piece taxed. That act went into effect after this sale and is inapplicable. The provision in the charter of 1873 differs in its language, and, if we had to consider the provision, we might say that it has no applicability to such a case as this, where the lots were already shown on the ward map as divided and numbered.

That all the proceedings prescribed by the law for the assessment of land for the purposes of taxation must be substantially if not strictly complied with, is a well-settled and a familiar rule. The purchaser takes at his peril the title offered to him, and depends upon the strict right of the public officer to sell. That right rests upon a succession' of steps which must have been substantially taken to reach the result The failure in the present case to separately state the value for assessment of the premises in question amounted in law to a failure to impose any tax which-the owner could be held for. There was, in such respect, an absence of a .specific requirement of the statute with respect to the annual record. That which the legislature has directed courts cannot declare immaterial. 71 N. Y., 309; 123 id., 31;. 33 St. Rep., 72.

During the period when, by law, property was to be valued for taxation purposes and a tax assessed, these steps were not taken as to the lot which, on the ward map in the assessors’’ custody, and to which they were obliged by law to refer in making up their rolls, appeared with its ward number, 21. The defendant, upon finding upon the annual record no valuation of his lot, was under no obligation to.make any application to the taxing officers. It was not a case for correction, for there could be nothing to correct when there was no valuation for assessment.

' The subsequent apportionment, in November, 1883, of values and taxes, howsoever done, was ineffectual to validate previous-proceedings, or to supply the defects by which defendant’s lot. escaped assessment

The only conclusion to be reached is that there was a failure to impose any tax for the year 1883, and, therefore, the proceedings for the sale of the land were void.

The judgment should be reversed and judgment ordered dismissing the complaint, with costs to the defendant in all the courts.

All concur.


author: Earl, J.

text:
    Benjamin Croner, App’lt, v. Samuel F. Cowdrey, Resp’t.

      (Court of Appeals,

      Filed October 17, 1893.)

    Taxes—Sale—One in possession cannot set up that lands abe state LANDS AND NOT TAXABLE.
    One in possession of lands and claiming title thereto cannot set up title in the state by escheat as a defense to an action of ejectment brought by a purchaser at a tax sale. He cannot retain possession of the land and refuse to pay taxes thereon upon the ground that it is state land and therefore not taxable.

      Appeal from judgment of the city court of Brooklyn, general term, affirming judgment dismissing the complaint.

      Ira Leo Bamberger and W. J. Gaynor, for app’lt; F. H. Cowdrey, for resp’t.

       Reversing 46 St. Rep., 559.

   Earl, J.

This is an action of ejectment to recover a lot of land situate in the city of Brooklyn, known as No. 116 Prospect street. The facts of the case are quite complicated, and we must first endeavor to set them forth with accuracy.

Paul Pontau, being the owner in fee of the lot, on April 27, 1854, executed a mortgage thereon to George B. Meade and Halsey R Meade to secure the payment of $3,300, with interest, on the 28th day of April, 1857, and that mortgage was duly recorded. Pontau died without heirs about the year 1865 seized of the lot He left a will by which he devised the lot to his wife Nannette for life, with remainder to his adopted son, Anthony N. Pontau, in fee. Anthony died before the testator, unmarried and without issue. Nannette, the widow, about 1867, married James E. Johnson. In 1871, by chapter 558 of the Laws of that year, the legislature released to her all the interest of the state in the lot, and thus she became seized of the lot in fee. Her husband, Johnson, died in January, 1871, and in September, 1871, being at the time a widow, she made a will devising the lot to James M. Johnson, the son of her second husband.

In March, 1873, she married James Harrison. He died before his wife, and she died in 1878, without heirs. The Meades assigned the mortgage executed to them by Paul Pontau to James M. Johnson in November, 1869, and he assigned it to Henry W. Bates in November, 1879. In 1880 Bates foreclosed the mortgage by action, making parties defendant “Ann LeConrt, John Doe, Richard Roe, Jane Styles, Thomas Noolces, Rebecca Johnson, Edward Styles and Mary I. Blackwell, whose names are unknown-to the plaintiff, unknown heirs at law and next of kin of Paul Pontau, late of the city and county of New York, deceased.” Neither the state nor the heirs or devisees of Nannette, Pontau’s widow, were made parties to that action. The referee, in pursuance of the judgment of foreclosure, sold the lot and conveyed it to Alexander B. Crane and Louise E. Bates by deed bearing date July 23, 1880. Subsequently, in May, 1881, Crane conveyed his interest in the lot to Mrs. Bates. In February, 1885, Mr. and Mrs. Bates united in a mortgage of the lot to Emily Golder for $2,500, and in the same month Mrs. Bates executed and delivered a deed of the lot to Frances A. Denike Thereafter Emily Golder commenced an action for the foreclosure of her mortgage, and under the judgment in that action the defendant, Samuel F. Cowdrey, became the purchaser of the lot and received a deed thereof on the 14th day of October, 1889. Neither James M. Johnson nor the state was made a party defendant in the last foreclosure gction. During all these years the lot was possessed as follows : By Paul Pontau from April 27, 1854, to April 12, 1855 ; then by Nannette, his widow, to June 6,1878; then by James M. Johnson to July 23, 1880; then .by Alexander B. Crane and Louise E. Bates to May 10,1881; then by Mrs. Bates to February 11, 1885; then by Frances A. Denilce to October 14, 1889 ; and then by the defendant, Samuel F. Cowdrey, to the present time. All the persons thus successively in the possession of the lot claimed title thereto.

Nannette’s will was made prior to her marriage with Harrison, and by that marriage the will was revoked and thus she died intestate. 2 R. S., 64, § 44; Brown v. Clark, 77 N. Y., 369. As she died without heirs, whatever interest in real estate she possessed at her death at once escheated to the state, and the title thereto immediately vested in the state by operation of law. 1 R. S., 718 ; 4 Kent’s Com., 425; McCaughal v. Ryan, 27 Barb., 376; Ettenheimer v. Heffernan, 66 id., 374. But the mortgage executed by Paul Pontau in his lifetime being valid, the title of the state by escheat was subject thereto, and if the state had been made a party to the foreclosure of that mortgage the title acquired under the foreclosure sale would have been perfect. But the persons who entered into possession under the foreclosure, defective as to the state because it was not made a party, became mortgagees in possession, and we think this defendant is in the position to claim the rights of a mortgagee in possession under the Pontau mortgage. Townshend v. Thomson, 139 N. Y., 152; 54 St. Rep., 665. Therefore, the state could not maintain an action of ejectment based upon its title by escheat against the defendant to recover the possession of the lot, and the only right it has is to enforce equity of redemption by an equitable action' to redeem from the mortgage. It has never yet asserted its right of redemption or taken any steps whatever to redeem from the Pontau mortgage.

The facts thus far stated show the title and relation of the defendant to the lot

In 1885 and 1886 the lot was assessed for general taxation, and it is not questioned that the assessment was regular and legal in form against the parties then in possession of the lot The taxes imposed under those assessments not having been paid, the lot was sold at public auction in the year 1888 by the registrar of arrears for the non-payment of the taxes to the plaintiff, and he claims title to the lot by virtue of a conveyance to him in pursuance of that sale. He was defeated in the courts below on the sole ground that, upon the death of Nannette Harrison in 1878, intestate and without heirs, the title to the lot became vested in the state, and that the lot was, therefore, not legally taxable. So we have the defendant in the possession of the land and claiming title thereto, setting up title in the state by escheat to defeat the title of the plaintiff, based upon a sale for the non-payment of taxes regularly imposed upon this lot, unless they were illegal and void for the reason stated.

We do not think this defense is available to the defendant. Where taxes are regularly assessed against parties in the possession of land and claiming title thereto, and the right of possession, and the land is subsequently sold for the non-payment of the taxes thus imposed, the purchaser at the sale gets a good title as against such persons in possession and all persons claiming under them. The plaintiff’s title may not be perfect as against the state; but the defendant is not in a position to dispute it. The state may never enforce the escheat and may never redeem the land from tiie Pontau mortgage. The amount due upon that mortgage may be more than the value of the land. And we know of no rule of law which will permit the defendant under such circumstances to retain possession of the land and refuse to pay any taxes thereon upon the ground that it is state land, and, "therefore, not taxable.

We have assumed that the defendant could establish the es-■cheat in this action, and that his evidence was sufficient for that purpose. But it may well be doubted whether an escheat of land •can be enforced or established by anyone but the state, through its attorney-general, in the mode prescribed in statutes carefully framed to protect the rights of heirs at the time unknown or undisclosed. Code, §§ 1977, et seq. It would be quite extraordinary to allow a party to establish an escheat in an action where there are no allegations or issues as to the escheat by methods not allowed to the state for the purpose of defeating a title good as against the whole world except the possible right of the state to enforce the escheat. '

The learned counsel for the defendant also claims that the deed • executed to the plaintiff by the registrar of arrears under § 6 of chapter 405, of the Laws of 1885, is invalid because he had not given the notice of sale required by that section. A careful scrutiny of the notice served shows that it is in substantial compliance with the statute, and its service was properly proved. This objection is, therefore, unfounded.

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

All concur.


author: Per Curiam.

text:
    John A. Gordon, Resp’t, v. Abram Becker et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed Sept. 15, 1893.)

    "Taxes—Assessment—Liability of assessors for wrongful.
    Plaintiff was the owner of land in the town of Carlisle, the dwelling house being situated on the town line. He also owned eighty acres in the town of Sharon, adjoining his other land and used it in connection therewith. He voted in Carlisle and had held office therein. In an action for trespass against the assessors and collector of the town of Sharon for taking property for a tax on said eighty acres, Held, that a finding that the land was not assessable in that town would not he disturbed.
    Appeal from a judgment of the county court of Schoharie * county, affirming judgment of justice court.

      Jackson & Coons (A. B. Coons, of counsel) for app’lts; Hiller & Palmer ( C. M. Palmer, of counsel), for resp’t.
   Per Curiam.

This was an action of trespass brought by the plaintiff against the defendants, who were acting as assessors for the town of Sharon, Schoharie county, and who as such assessed eighty acres (80) of land belonging to the plaintiff in the town of Sharon, the same being lands adjoining the farm of the plaintiff, located in the adjoining town of Carlisle, in which the plaintiff alleged that he resided, and. under said assessment the plaintiff was taxed for such eighty acres in the town of Sharon and a warrant issued to the collector of said town by the board of supervisors for the collection of such tax, under which the collector-seized and sold the plaintiff’s property.

The defendants in their answer alleged that the assessment wásmade by virtue of their office as assessors and that the land was properly assessed in the town of Sharon, and justified their acts as assessors.

On the trial the evidence disclosed that the plaintiff owned a . farm in the town of Carlisle, the dwelling house of which was situated partly in Sharon and partly in Carlisle, in which the plaintiff resided; that he subsequently purchased the eighty acres on which the assessment was made in the town of Sharon, and that-he occupied it in connection with his farm in Carlisle, except a.small portion which was rented to be worked on shares; that his - alleged residence was in Carlisle, and that he voted in that town,. and for several years had held office therein.

On these facts the jury found that the plaintiff resided in the-town of Carlisle, and that the eighty acres owned by him in the-town of Sharon was occupied as a part of his adjoining farm in ■ the town of Carlisle, and rendered a verdict in favor of the plaintiff for the value of the property taken, upon which the justice-entered a judgment from which an appeal was taken to the county court, where the judgment was affirmed.

The main question in this case is, whether the assessors of the - town of Sharon, upon these facts, had any jurisdiction of the-plaintiff or of - the lands assessed by them upon which they were called to exercise their quasi judicial functions in making this ■ assessment ? As an original proposition, we are strongly inclined to the opinion, if we were permitted to examine and decide the - question of fact as an original one, that they had such jurisdiction.

The fact that the line run through the plaintiff’s house, that a portion of the house occupied by him as a residence was in the • town of Sharon, and that the premises purchased by plaintiff in. Sharon was separated by a highway from the premises in Carlisle,, left the question so much in doubt as to call upon the assessors ■ to exercise some judgment in determining whether' or not the-land was assessable in Sharon, but as that question was submitted to the jury as a question of fact and passed upon by them, their - finding, we think, within the decision referred to by the learned county' judge, should not be disturbed on this appeal.

The law seems well settled that in a disputed controversy like • this, where there is any conflict of facts, that conflict must be settled by the jury. Dorn v. Backer, 61 N. Y., 261. In that case • it was held that where a farm, the whole of which is occupied by the owner, and which lies partly in each of two adjoining towns, is assessed by- the assessors of-the town in which the owner or-occupant does not reside, the assessment and tax founded thereon were illegal and void, and the assessors were personally liable for damages resulting therefrom; that the decision of the assessors upon the question of residence and their consequent jurisdiction is not conclusive, but is open to review, and where the evidence thereon is conflicting, it is a question of fact for the jury. The learned county judge felt constrained to follow that decision in affirming the judgment in this case.

We think his conclusion under that case and other authorities of similar character was correct, and the judgment must be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Mayham, P. J.

text:
    Samuel J. Haight et al., Resp’ts, v. Dennis G. Littlefield et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    1. Reference—Amendment of pleading.
    While a referee is invested substantially with all the powers of the court in the allowance of proposed amendments to pleadings, yet the exercise of that power rests in the sound judicial discretion of the referee, and unless that discretion is erroneously exercised to the prejudice of the party asking for an amendment, his determination should not he treated as ground of reversal.
    3. Highway—Dedication—Basement—Injunction.
    Plaintiffs are the owners of land conveyed to them by the defendant Littlefield, which are, in the deed to their grantor, bounded by a street fifty feet wide, which the deed stated was dedicated to the public as a street, and the street was designated as Pleasant street in the subsequent deeds. Held, that although there had been no acceptance by the public authorities, the street became an appurtenant to plaintiffs’ premises, and they had a right, as against defendants, to have the same remain open and unobstructed for the use of their premises, and have a right to maintain an action to restrain defendants from permanently obstructing the same.
    Appeal from judgment in favor of plaintiffs for an injunction, damages and costs, entered upon the report of a referee.

      W. Frothingham, for app’lts; I. & J. M. Lawson (Isaac Lawson, of counsel), for resp’ts.
   Mayham, P. J.

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiffs against the defendants for a mandatory injunction commanding and directing the defendants to remove certain fences, embankments, ditches and alleged obstructions from lands or premises described in the plaintiffs’ complaint as a strip or street fifty (50) feet wide, called Pleasant street, and enjoining the defendants from interfering with or obstructing the free passage over the same by the plaintiffs, and from a judgment of five hundred dollars ($500) damages for alleged interference with such laud or way. The plaintiffs derive title to premises adjoining the alleged street or way by deed, dated the 15th of June, 1885, from the defendants, Dennis G-. Littlefield and wife.

The entire, premises so cpnveyed tp plaintiffs, together with the lands constituting the alleged street or way, originally belonged to the estate of Stephen Yan Rensselaer.

On the 23rd of November, 1868, the executors and trustees named in the last will of Stephen Yan Rensselaer conveyed to the defendant Dennis G. Littlefield, by deed, the same lands, with others, which are now owned by the plaintiffs, bounding the lands so conveyed to the defendant, as described in said deed, by a “ street of at least fifty (50) feet wide, to form the southerly boundary of said premises, being hereby declared to be dedicated to the public as a street, to the extent only of the northerly and westerly line of the premises hereby conveyed, the aforesaid described premises being the same as represented on a map hereto annexed.”

On the 13th of February, 1877, the defendant, Dennis G. Little-field and wife, executed to Henry C. Littlefield a deed whereby they conveyed to the said Henry C. Littlefield the premises described in the deed to Dennis, substantially as therein described.

On the 26th of July, 1877, Henry C. Littlefield executed and delivered to the defendant, “ The Littlefield Stove Company,” a deed of conveyance of the premises described in the conveyance of Dennis G., above referred to, substantially as therein described.

On the 1st of August, 1870, the executors of Stephen Yan Rensselaer conveyed to Dennis G. Littlefield lands adjoining the lands mentioned and described in the first deed to Dennis G. Littlefield, but lying on the south side of the street described in the first mentioned deed. In this conveyance, the street in question in this action is referred to in the following language: “ The street mentioned and described in the within conveyance as a street of fifty (50) feet, including strip of ten (10) feet in width from the south side of the lot conveyed to the said Dennis G. Littlefield November 23, 1868, is, by the parties hereto making and accepting this deed, dedicated and appropriated to the public for a public street forever, and is to extend of the same width and in continued lines easterly to Broadway.”

The deed from Henry C. Littlefield to the Littlefield Stove Company described the street as a street of fifty (50) feet in width, and designated it as Pleasant street, and described the lands therein conveyed as being on the south line of Pleasant street and as being a portion of the premises conveyed to Dennis G. Littlefield by the executors of Stephen Yan Rensselaer, dated August 1, 1870.

The complaint alleged that the strip of land of fifty (50) feet in width, designated as a street and as Pleasant street, was open and unobstructed, and was used as a way of passage and a highway by the plaintiffs and others to and from the premises adjoining the same, both on the northerly and southerly side thereof at the time of the execution and delivery to Dennis G. Littlefield of the two deeds of conveyance to him; and that from and by the deeds of conveyance the strip of land described as a street of fifty feet wide, and as Pleasant street, became and was dedicated as a street or highway for the use of persons owning and occupying lands adjoining the same on the northerly and southerly sides thereof, and that thereby the plaintiffs became the owners of an easement therein of a right of way over the same for themselves, their employes,' vehicles, teams, etc., to and from every part of the premises coveyed to them as abutting thereon!

The complaint also alleges that the defendants have constructed and are maintaining upon this street various fences and embankments and ditches which it alleges obstruct and prevent the free enjoyment and use by the plaintiffs of the easement, or way, which the plaintiffs allege is a legal appurtenant to the premises purchased by them of the said Dennis Gr. Littlefield, and that the. plaintiffs have suffered damages by reason of such obstruction; that they have no adequate remedy at law for the alleged interference and obstruction, and ask the equitable relief set forth in the complaint and awarded in the judgment.

The answer of the defendants denies most of the allegations in the complaint

The first point urged by the learned counsel for the appellants as a ground for reversal of this judgment is that the referee erred in not allowing defendants to amend their answer on their application at the trial.

The allegations of the complaint were that the various deeds, subsequent to the Van Rensselaer deeds, contained substantially the same description of the street as those contained in the Van Rensselaer deeds; and that they described the street, a street fifty (50) feet in width, as Pleasant street. These allegations were not denied in the answer, and the defendants on the trial moved to amend the same by inserting a denial. The referee denied the motion to amend, and the defendants excepted.

The motion to amend was at the close of the case, and we are not prepared to say that the refusal by the referee to allow the proposed amendment at that stage of the trial was an error for which this judgment should be reversed, or that such amendment would have been “in furtherance of justice.”

It is true that the objection was put upon the ground that the referee had no power to make such amendment, but the referee in his decision denying the motion to amend stated no ground. "While by § 1018 of the Code of Civil Procedure the referee is invested substantially with all the powers of the court in the allowance or rejection of proposed amendments to pleadings, yet the exercise of that power rests in the sound judicial discretion of the court or referee, and unless that discretion is erroneously exercised to the prejudice of the party asking for an amendment; the determination of the referee should not be treated as ground of reversal.

We do not see that any injurious results followed to the defendants from the refusal of the referee to allow the amendment. We are not referred to any authority by the learned counsel on either side bearing upon this question.

All the deeds of conveyance under and through which the plaintiffs derive their title bound the land conveyed on this strip or piece of land, dedicated by the terms of the original deed as- a street, and known and described in some of the deeds as Pleasant street, and in the original deed from the trustees of Yan Rensselaer it was described as a piece of land or street of fifty (50) feet in width, and the referee finds, upon sufficient evidence, we think, to support such finding, that immediately upon the plaintiffs' •entering into possession they erected on the premises conveyed to them, on or along on the south line of this street, extensive buildings for manufacturing purposes.

But it is insisted by the learned counsel for the defendants that although the grantors in the Yan Rensselaer deed designated and described this strip of land fifty (50) feet wide as a street dedicated to the public, yet, the public never having accepted or adopted the dedication, it never became operative as to the public, and that the plaintiffs can, therefore, claim nothing under it.

It is quite true that the evidence does not affirmatively show an acceptance on the part of the public authorities, such as is required to constitute it a public street, but we think, within the authorities, that it became an appurtenant to the premises purchased by the plaintiffs, and that as such the plaintiffs had a right as against the defendants, who succeed to the interest of Yan Rensselaer, the original grantor, to have the whole fifty (50) feet remain open and unobstructed for the use of the premises purchased by them as a way or street Story v. Railroad Co., 90 N. Y., 145; Child v. Chappell, 9 id., 255; Hills v. Miller, 3 Paige, 256; Trustees v. Cowen, 4 id., 510.

The use of this street or way was, by the Yan Rensselaer conveyance and the maps constituting a part thereof, dedicated for the purposes of a street and way to the lands described in and conveyed by said deed, and the grantees and successors thereby acquired a right to the use of the fifty (50) feet, and an easement over the same and the whole thereof, which they may properly insist upon as appurtenant to the lands acquired by them. Cox v. James, 45 N. Y., 557; Village of Olean v. Steyner, 135 id., 341 ; 48 St. Rep., 66; White's Bank v. Nichols, 64 N. Y., 73; Welsh v. Taylor, 134 id., 460; 47 St. Rep., 653.

In the latter case the court, in discussing the effect of a grant somewhat like the one under which the plaintiffs claim, uses this language: “A person who acquires title by a deed to an easement appurtenant to land has the same right of property therein as. he. has in the land, and it is no more necessary that he should make use of it to maintain his title, than it is that he should actually occupy or cultivate the land.

“ Hence his title is not affected by non user, and unless others show against him some adverse possession, or loss of title in some of the ways recognized by law, he may rely on the existence of his property, with full assurance that when the occasion arises for its use and enjoyment, he will find his rights therein absolutely unimpaired.”

The plaintiffs being therefore entitled to the free and uninterrupted use as a right of way of these fifty (50) feet sought to be dedicated by the original Yan Rensselaer deed, may maintain th.eir action against the defendants restraining them from permanently obstructing said right of way and commanding them to remove such obstruction.

As the evidence establishes, and the referee finds, that such obstruction constitutes an interference with the plaintiffs’ rights for which there seems to be no adequate remedy at law. The only action at law which could be brought by the plaintiffs would be an action for damages for obstructing the way, and thus impairing its usefulness as appurtenant to the plaintiffs’ premises. Such an action would not supply the plaintiffs with an adequate remedy for the injury sustained by encroachment upon the space previously allotted to plaintiff by his deed as a way of ingress to and egress from his premises, as all that he could recover in an action at law would, he the damages sustained up to the time of the commencement of the action, and his right of way would still remain obstructed, resulting in an irreparable injury to his property unless the obstruction was removed, and its removal can only be decreed in a court of equity. Baron & Baron v. Korn, 51 Hun, 401; 21 St Rep., 62, affirmed in 127 N. Y., 224; 38 St. Rep., 140.

We are, therefore, clearly of the opinion that the caséis one for the equitable cognizance of this court

We have carefully examined the exceptions to the findings and ■conclusions of the referee by the defendants and to his refusals •to find on defendants’ request, and find none of those exceptions well taken, except the eleventh exception, which relates to the rights of the plaintiffs to recover damages for the alleged illegal interference with plaintiffs' property rights.

We think that exception well taken and that the plaintiffs ■should not, under the proof in this case, recover pecuniary damages for the defendants’ alleged interference with their property.

We are, therefore, of the opinion that the judgment entered upon the report of the referee should he so modified as to strike out the recovery of five hundred dolíais (§500), and as modified the decree should be affirmed, without costs of this appeal to ■either party as against the other.

Let an order of affirmance be entered according to this opinion.

Putnam and Herrick, JJ., concur."


author:
Parker, J.
      Mayham, P. J., (dissenting.)

text:
    The National Commercial Bank of Albany, App’lt, v. Charlotte C. Gray et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    1. Evidence—Ancient writings.
    An unacknowledged and unrecorded. agreement as to a division line made more than seventy-five years ago, between the grantors of the parties respectively, which, is found among the defendant’s muniments of title, a copy whereof was also found among plaintiff’s papers received with, its deed, is admissible in evidence as an ancient writing without proof of execution.
    S. Boundaries—Location.
    An agreement between adjoining owners by which it is agreed that the center of a brick wall to be erected by one of them shall be considered the dividing line, which is acted upon by the parties by using the wall as a party wall and not questioned for many years, is sufficient to sustain a finding of a practical location of the boundary line.
    3. Party wall—'Windows.
    Windows have no place in a party wall; and where one of the adjoining owners, on raising the height ol the wall, places window spaces therein, , the other may properly fill up the opening on his half of the wall.
    (Mayham, P. J., dissents).
    Appeal from a judgment of the special term of the supreme court, entered upon the decision of the court.

      A. & W. Lansing (Abraham Lansing, of counsel), for app’lt;. Jacob H. Clute, for resp’ts.
   Parker, J.

The controversy between plaintiff and defendants, who are adjoining lot owners, relates primarily to the location of a boundary line.

Defendants say that the line extends through the centre of the wall which has been for many years used in precisely the same manner as are party walls; the timbers of the buildings on either side resting in and being supported by it.

Plaintiff, admitting that defendant’s user of the wall has been so long continued as to have created an easement which secures to him the right to such use as he now makes of the wall, insists that it is not a party wall, but wholly on the lands of the plaintiff, and for that reason it cannot be interfered with in any action it may see fit to take with reference to the wall so long as defendants are not interfered with in the enjoyment of their easement

It seems that prior to about 1850, plaintiff’s building was three stories high and seventy-two feet deep. Defendants' building was three stories high, also, but only about fifty feet deep. Sometime in 1850 plaintiff raised its building, running up the wall, which has been used as an easterly and westerly wall for plaintiff’s and defendants’ building respectively, to the requisite height, and inserted therein the beams for the added stories.

About the year 1874 the defendant extended his building sons to make its total depth seventy-two feet, and raised it so much that he was obliged to build up the wall between him and plaintiff to a height of about fifteen feet above where plaintiff had built-it in 1850.

In 1887 plaintiff again raised its building, using the fifteen feet-of wall which defendant had added in 1874 in part to support the timbers of the added stories, and running up such wall about twenty feet more, making the top of the wall nearly twenty feet-above the roof of defendant’s building.

In the erection of the wall plaintiff left five spaces for windows. Defendant then closed such window spaces on his side, and for a depth of six inches, by brick work.

Thez'eafter this action was begun to restrain the defendant from interfering with the window spaces, which resulted in a judgment for the defendant.

The determination of the learned trial judge seems well founded.

It is true that plaintiff’s deed, assuming its westerly boundary line to be correctly located, calls for a frontage that included the entire wall instead of one-half of it.

And as there is no record of conveyance from plaintiff or his predecessors in title of the six inches in controversy, plaintiff insists that its right to it cannot be questioned.

Defendants’ contention is that, in 1815, plaintiff’s and defendants’ predecessors in title located, the boundary line in the “ centre of the brick work of said wall,” and that from that time until the commencement of this action, a period of about seventy-five years, such practical location of the line was acquiesced in by the parties to the original location and their grantees.

If it is legally established in the record before us that the facts are as defendant contends in such respect, then the case is clearly brought within the settled rule which forbids the disturbance of a practical location which has been acquiesced in for a long series of years; a rule adopted as one of repose and which rests upon the same reason as the statute prohibiting the disturbance of an adverse possession which has continued for twenty years. Baldwin v. Brown, 16 N. Y., 359; Reed v. Farr, 35 id., 113; Avery v. Empire Woolen Co., 82 id., 582.

We are thus brought to a consideration of the evidence introduced for the purpose of establishing a practical location.

The defendant put in evidence a writing under seal, which was neither acknowledged or recorded, of which the following is a copy:

Whereas, the boundary line which divides the lot of ground on the south side of State street, owned by Joseph Alexander and his wife Anna Alexander, from the lot of ground owned by the heirs of Henry Hogan, deceased, is not precisely ascertained and known; and, whereas, the said Joseph Alexander and Anna Alexander are about erecting a building on their said lot of ground which renders it desirable that the said boundary line should be settled. Now, therefore, to the end that the said boundary line may be amicably ascertained, settled and established, the said Joseph Alexander and Anna Alexander, for themselves, their heirs, executors, administrators and assigns, of the first part,, and Nelly Hogan and William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nelly Hogan, Henry Hogan and Martina Brown were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement, that is to say :

First. The said party of the first part shall have full liberty to place the west wall of the building, which they are now erecting, as near to the east wall of the building now occupied by the party of the second part as. they shall or may choose to do, and to build and finish the same in any manner they please without molestation or hindrance from the said party of the second part, or any person or persons by their direction or claiming under them.

Second. The centre of the brick work of the said wall, when so built by the party of the first part at their own expense, and a corresponding line drawn to the south bounds of said lots, shall forever hereafter be allowed and acknowledged by both the parties to this agreement, and all persons claiming under, to be the true division line between the aforesaid lots of ground.

Third. The said party of the second part, or their heirs and .assigns, shall have full liberty, whenever they may choose to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto and finish thereon in any manner they may choose to do. Also to build upon and raise higher the said division wall or extend the same further south so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their directions or' claiming under them. Provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or injure the same.

Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons by their direction or claiming under them, shall have liberty to pull down or demolish any part of the said division wall without consent of the other first had and obtained.

In witness whereof, the parties to this agreement have severally set their hands and seals this day of May, one thousand eight hundred and fifteen, to these presents.

Joseph Alexander,

Ann Alexander,

Nelly Ho&an,

William Brown,

Dorothy Brown,

Eleanor Brown.

The words “or their heirs and assigns ” in the first line of the third article were interlined before eiecution.

Signed, sealed and delivered 1 in presence of j

James La Grange,

Peter Lansing, Jr.

The plaintiff in due season objected to the introduction of the agreement, and the exception taken to the ruling admitting it will be first considered.

When offered, the testimony showed that the signature of plaintiff’s grantor to the agreement of 1815 was in his handwriting ; that each of the adjoining owners entered into possession of the half of the wall next adjoining him by inserting therein the necessary timbers for his building; the agreement offered was found by defendant among his muniments of title in 1874 or 1875 ; and plaintiff about the same time found a duplicate thereof among the deeds and papers which it had received at the time of taking title.

Under the circumstances proven it was clearly not error to receive in evidence as an ancient writing, and without proof of execution, this agreement which purports to have been executed more than seventy-five years before that time.

The agreement was ample to support the finding that the parties undertook to practically locate the boundary line between them in the centre of the wall shortly thereafter constructed.

And this location was not questioned, so far as the record discloses, from 1815 down to 1887. On the contrary, there are positive acts of acquiescence.

Plaintiff’s remote grantor who executed the agreement took possession of only six inches of the wall, which he made use of to support the beams of the building erected by him.

Defendant’s grantor thereafter erected a building, at which time he took possession of one-half of the wall next to him in the same manner as the other party to the agreement had done.

In 1850 plaintiff raised its building, and for that purpose ran the wall up several feet, but only took possession of one-half of the wall.

About twenty-four years later defendant remodeled bis building, increasing the height of each of the several stories on adding an extra story, in the doing of which he extended the division wall some fifteen feet higher than it was before. And when this was done, if not before, plaintiff had knowledge of the existence of the agreement of 1815. The defendant at this time cut off six inches from the face of the partition wall, and rebuilt it, his purpose being to have the portion of it which he claimed conform in appearance to the rest of the building front.

When plaintiff increased the height of its building in 1887, it claimed the right to use the half of the wall on defendant’s side as well as its own, but then about seventy-two years had elapsed since the attempt of the owners to locate the division line, and the. lapse of time, considered in connection with the facts referred to,, fully establishes a legal acquiescence in the location originally made.

Neither the parties to the'original location, or their successors in title, can now be heard to deny that such line constitutes the true boundary.

The agreement establishes that the wall is a party wall, and if the views so far expressed are correct, each owns in severalty so much of the wall as stands upon his lot. subject to the easement of the other owner for its support, and the equal use thereof as an exterior wall of his building. Partridge v. Gilbert, 15 N. Y., 601.

No other use of the adjoining owner’s portion of the party wall is permissible. Windows have no place in a party wall. Nash v. Kemp, 12 Hun, 592 ; Dauenhauer v. Devine, 51 Tex., 489 ; St. John v. Sweeney, 59 How. Pr., 175; Sweeney v. St. John, 28 Hun, 634.

Defendant was, therefore, doing as he lawfully might in filling up the openings on his half of the party wall.

The judgment should be affirmed.

Putnam, J., concurs.

Mayham, P. J., (dissenting.)

This is an appeal from a judgment entered upon the decision of the trial judge in favor of the defendant.

The action was to restrain the defendant from closing up or obstructing windows left by the plaintiff in the westerly wall of the plaintiff’s bank building, above the top of the defendant’s adjoining building.

The complaint alleged that plaintiff purchased the premises under a mortgage foreclosure and took title under a master’s deed dated the 10th day of April, 1833, and entered into the occupation at that date, and subsequently erected a building thereon of which the lower portion of this wall was a part, and alleged in substance that the whole of this wall was upon the premises so purchased. •

The answer admits the plaintiff’s title under the master’s deed, but denies that the west wall of the building erected by the plaintiff was wholly on the land embraced in plaintiff’s deed or ■conveyed by it, and alleges that “the west wall of the plaintiff’s building is a party wall twelve inches thick, six inches of the westerly part of said wall belongs to and is the property of the defendant, and six inches of the east side of the wall belongs to and is the property of the plaintiff.”

The plaintiff’s deed bounded the land conveyed by the property ■of one Douw on the east, which seems by the evidence to be a well defined and fixed monument, called for fifty-three feet fronting on State street, and bounded the land so conveyed on the west by latid of Henry Hogan, to whose title defendant has succeeded by a deed dated December 24, 1833, and recorded December 21, 1834.

The proof showed that the wall in dispute was fifty-one feet seven and one-half inches from' Douw’s west line, including both exterior walls of the plaintiff’s building, so that standing upon plaintiff’s deed alone, the wall in dispute was wholly on the plaintiff’s premises.

But the deed from Tremain to Brown, under which the defendant claims, describes the defendant’s land as bounded easterly by a line running through the party wall on the west of the Joseph Alexander lot, which is the plaintiff’s lot and the wall in dispute in this action.

It is quite clear that standing upon the description and recitals in the deed given by the referee in partition, under which the defendant claims, the rights of the plaintiffs could not be affected, as neither the plaintiff or the mortgagor was a party to that proceeding, and the title under the foreclosure through which the plaintiff’s claim was perfected before the deed in partition was executed, and the mortgage under the foreclosure of which plaintiff derives title by its terms, embraces the land on which the wall in dispute stands, and thus conveys to the mortgagee and the purchaser upon the foreclosure whatever right and title the mortgagor had in the premises at the time of the execution of that instrument, the foreclosure operates to extinguish the mortgagor’s equity of redemption and eliminate the defeasance, and the purchaser takes the title of the mortgagor as of the time of the execution of the mortgage and when the mortgage lien was created. Batterman v. Albright, 122 N. Y., 489 ; 34 St. Rep., 131; Rector et al. v. Mack, 93 N. Y., 488.

Although the deed to Brown, through whom defendant claims, refers to this wall as a party wall, which, as we have seen, was subsequent to the conveyance upon the foreclosure, yet no reference seems to have been made in the deed to the defendant to this wall as a party wall.

But even if it had been thus described in all the conveyances -after the deed in partition, still it is difficult to see how such description could operate as constructive notice to the plaintiff as the purchaser of adjoining lands, and I think under the facts proved that the plaintiff must be regarded as taking its title under the foreclosure unaffected by actual or constructive knowledge of any agreement which the mortgagor had previously made as to the westerly line of the mortgaged property, and is the owner of, and may hold and use the land according to the actual description in the mortgage, unless the agreement of 1815 can be upheld as a practical location of this line, running with the land and binding upon all subsequent owners.

The defendant offered in evidence on the trial an instrument in writing dated in May, 1815, which was not acknowledged or recorded, purporting to have been made by Alexander, the mortgagor under whose mortgage plaintiff claims title, and the heirs of Henry Hogan, from whom through certain mesne conveyances the defendant claims title, of which the following is a copy:

Whereas, the boundary line which divides the lot of ground on the south side of State street owned by Joseph Alexander and his wife Anna Alexander, from the lot owned by the heirs of Henry Hogan, deceased, is not precisely ascertained and known, and whereas the said Joseph Alexander and Ann Alexander are about to erect a building on their said lot of ground, which renders it desirable that the said boundary line shall be settled.

How, therefore, to the end that said boundary line may be amicably ascertained, settled and established, the said Joseph Alexander and Ann Alexander for themselves, their heirs, executors, administrators and assigns, of the first part, and Hellie Hogan, William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Hellie Hogan, Henry Hogan and Martina Brown wore and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement, that is to say :

First. The said party of the first part shall have full liberty to place the west wall of the building which they are now erecting as near the east wall of the building now occupied by the party of the second part as they shall or may choose to do, and to build and finish the same in any manner they please, without molestation or hindrance from the said party of the second part, or any person or persons by their directions, or claiming under them.

Second. The centre of the brick work of said wall when so built by the party of the first part at their own expense and a. corresponding line drawn to the south • bounds of said lot shall forever hereafter be allowed and acknowledged by both parties-to this agreement, and alí persons claiming under them, to be the-true division line between the aforesaid lots of ground.

Third. The said party of the second part, or their heirs and as- ■ signs, shall have full liberty, whenever they may choose to erect, a building on their said lot of ground, to pin the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto in any manner they may choose to do, also to build upon and raise higher the said division, wall, or extend the same farther south, so as to suit their own. convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their direction, or claiming under them.

Provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner: unnecessarily mar or injure the same.

Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party,, or any person, or persons, by their direction or claiming under them, shall have liberty to pull down or demolish any part of said division wall, without the consent of the other first had and obtained.

This paper purported to be signed by the parties named in itr and witnessed by two subscribing witnesses.

The plaintiff’s counsel objected to the receipt of this paper in evidence, on the ground that its execution was not sufficiently proved; that it was not recorded and there was no proof of any notice to the plaintiff at the time it took its deed; also, that the-answer admitted that this wall in question was built by the plaintiff, who took title in 1833, and the agreement related to-a party., wall in 1815, and that the- evidence was irrelevant and. immaterial.

These objections were overruled by the court, and the plaintiff duly excepted.

The evidence shows that this agreement was in the possession of the defendant, with his other evidences of title, from the time of his purchase of his premises in 1874, and it is insisted that under the circumstances it was properly received in evidence without proof of its execution as an ancient writing.

This paper purports-to have been executed in 1815, and was-offered and received in evidence in 1890, seventy-five years after it bears date. This long interval made it clearly an ancient writing within the authorities, especially as the wall or line to which defendant claims it. relates has remained in part in the-possession of the defendant or persons through whom he derives his title since 1840, as shown by the undisputed evidence in. the case.

The rule upon this subject seems well settled, both in this country and in England, that when possession accompanies the paper it proves itself, if an ancient writing.

In Hewlett v. D. & S. Cock, 7 Wend., 371, Nelson, J., in delivering the opinion of the court, after an extensive review of the authorities at that time, says: “ Possession accompanying the deed is always sufficient without other proof, but it is not indispensible.”

In that case the lease which was offered in evidence as an ancient document was found among the muniments of the title of the farm of which the premises in question was a part fifty years before the trial, and a new trial was ordered because the trial judge-refused it in evidence without proof of execution.

We are, therefore, of the opinion that it was not error in this case to receive this writing without proof of execution, especially as the execution of one of the mortgages was proved by competent evidence of the genuineness of his signature.

Bat the more serious question as to its admissibility against, this plaintiff, as it seems to us, is as to its’ competency as against this plaintiff, who, so far as the case shows, purchased at the mortgage sale without any notice, either actual or constructive, of the-existence of this contract.

The plaintiff, in its complaint, claims title to this entire wall derived under a foreclosure of a mortgage in which there was no-notice of the existence of the claim now made by the defendant, that this was a party wall, and at the time of the execution of said mortgage and at the time of the purchase by the plaintiff no actual or constructive notice was given of the existence of any adverse claim.

If this claim can be proved and established by this instrument, the plaintiff will lose not only the six inches of land in dispute, but the title to and control of lands clearly conveyed to it on the-mortgage sale.

Clearly there was no dispute or controversy over this line apparent upon the face of the mortgage, and the plaintiff was justified in assuming, in the absence of any notice or record evidence to the contrary, that the mortgage conveyed free of charge or incumbrance the premises covered by its description.

The defendant seeks to break the force of this objection by proving that in 1874 the president and cashier of the plaintiff had a copy of this contract which the president exhibited to the defendant.

I do not think that that proves or tends to prove notice to or knowledge in the plaintiff of the existence of this writing at the time of the purchase of these premises by it, or at the time of the execution of the mortgage to which, as we have seen, the plaintiff’s title relates.

While the law presumes á thing to coutinue as it is once proven to be until a change is shown, I am not aware of the existence of’ any rule extending that presumption backward so as to make the proof that some of the officers of this bank had a copy of this instrument in 1874 evidence of notice to, or knowledge in the plaintiff of its existence in 1833.

The only evidence upon which it can be claimed that there was-a practical location of this line and the erection of this wall upon or in accordance with such location is this written instrument, and that evidence is found only in the recitals contained in it.

It is true that this wall as a division between the premises of the plaintiff and that of the defendant is presumptive evidence of the location of this line, and had the proof shown knowledge in the plaintiff of the agreement contained in this writing, its acquiescence in the location of the line in the centre of the wall, as specified in the writing, would have amounted to a practical location by which the plaintiff would be bound.

But before there can be an acquiescence, such as would bind a. party by a location as against the calls in his deed, he must be informed of the existence of an agreement by which the line is claimed to be located. Baldwin v. Brown, 16 N. Y., 359 ; Reed v. Farr, 35 id., 116.

In Baldwin v. Brown the court say: “ Unless the acquiescence has continued for a sufficient length of time to become thus conclusive it is of no importance. * * * In all cases in which practical locations have been confirmed upon evidence of this kind, the acquiescence has been continued for a long period, rarely less than twenty years,” and the court then gives five instances in which it continued from twenty-six to forty-eight years.

It is true that these cases relate to parol agreements, and not to writings. But when the party sought to be concluded, as in this •case, is ignorant of the existence of any writing, and holds under paper title not in accordance with the alleged practical location, it is difficult to see how the terms of the deed can be overthrown short of an adverse possession such as would bar an action at law to recover the possession.

We are, therefore, of the opinion that this writing furnished no legal evidence to establish a practical location as against the plaintiff, which took title under the deed in foreclosure without notice of its existence, and who within the calls of the deed constructed this wall on lands covered by the terms of that instrument, and that its reception in evidence was, therefore, error.

But it is insisted by the defendant that this agreement conveyed no land, and therefore was not required to be recorded, and that -subsequent purchasers orincumbrancers were not entitled to notice of its existence. But it would seem that if it conveyed no land, or any interest in land, it would not be a contract or agreement-running with land so as to bind such subsequent incumbrancers or purchasers.

The rule seems well settled that such contracts or covenants are personal, and do not run with the land. In Cole v. Hughes, 54 N. Y., 444, the court seem clearly to assert that doctrine, and •quote with approbation the language of ■ Wilde, J., in Hurd v. Curtis, 19 Pick., 459: “ That no covenant can run with the land so as to bind the assignee to perform it unless there is a privity of estate between the covenantor and covenantee, and that this rule was without exception, and the same case quotes the following from Washburn on Beal Estate’—that when one who makes a covenant with another in respect to land neither parts with, nor receives any title or interest in the land at the same time with and as a part of making thexovenant, it is at best a mere personal one which does not bind his assignees, and that •such covenants, and such only, run with land as concern the land itself, in whosever hands it may be.”

If, therefore, within this rule no title or interest in land passed from or to Alexander, the mortgagor, by this writing, then none •of its obligations would attach to the land in the hands of the purchaser under his mortgage.

If we are right in our conclusion that this writing was not competent evidence as against the plaintiff, and that a practical location of the line between the plaintiff and defendant was not established by it; then it follows that as the front of plaintiff's land on State street called for by its deed is fifty-three feet ten inches, and the width of plaintiff’s bank building from Douw’s line to the westerly side of plaintiff’s west wall was fifty-one feet seven and a half inches, the whole of said westerly wall built by plaintiff is on plaintiff’s land. But it is further urged by the defendant that this wall in dispute is and always has been used as a party wall between the plaintiff and defendant, and that therefore all the rights and incidents of a party wall attach to the same.

The evidence in this case shows that the wall in dispute has been the dividing wall between the premises of the plaintiff and defendant at least since 1840, and that the buildings on either side have connected with it by inserting beams and timbers in it for support.

This furnishes prima facie evidence that the wall in question is and has been used as a party Avail, and belongs equally to the plaintiff and defendant. In Sherred v. Cisco, 4 Sand., 490, the court lays down the rule upon this subject as follows: “ The principle of the decisions is that while the common user is presumptive evidence of a tenancy in common in the land and wall, that presumption is rebutted by proof of the precise extent of the land originally belonging to each owner, and each then is deemed the exclusive owner of so much of the wall as stands on his own land.”

In Schile v. Brokhahus, 80 N. Y., 614, Church, Ch. J., says: a The old wall from long user in the absence of evidence must be deemed a party wall presumptively either from an agreement to that effect, or from its being built upon the line for that purpose by the respective owners.”

But a fee will not be implied from user when an easement only will secure the privilege enjoyed, Roe v. Strong, 107 N. Y., 350 ; 12 St. Rep., 56 ; and when, as in this case, the plaintiff establishes .a clear evidence of title in itself to the locus in quo, the occupancy by the defendant, unsupported by title paramount to that of the plaintiff, must, it seems to me, be but a user, and as such valid to the extent that it has been enjoyed for so long a period of time; but, without the aid of the writing which we have excluded, llimited to that extent and ineffectual' to prevent the plaintiff from running the wall up on the same foundation, with or without windows, and that any interference by the defendant by filling up such windows, or building another wall resting upon the plaintiff against such windows, is a violation of the plaintiff’s^ property rights and a permanent assumption of the use of this-wall for which an injunction might issue.

It will be seen that the success ol> the contention of the respective parties to this action largely depends upon the question! whether the instrument in writing put in evidence by the defendant, under the objection of the plaintiff, and which we hold incompetent, and the admission of which by the trial judge we have reached a conclusion was error, disposes of this question in favor of the plaintiff, for which this judgment should be reversed.

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

Judgment affirmed, withr costs.