author: Daniels, J.;

text:
    ANNA L. BLUNT, Respondent, v. WILLIAM J. SYMS, Appellant.

      Accounting by one holding property as mortgagee or in trust to sell for ilte payment of a debt— he will not be allowed any compensation for his own services — all expenses reasonably a/nd properly irumrred, e. g., costs of a suit, will be allowed — when chargeable with interest on balances in his hands.

    Appeal from a judgment in favor of tbe plaintiff, entered on the report of a referee.
    By the judgment recovered the defendant was adjudged liable to account to the plaintiff for the proceeds of sale of certain real estate owned by her and conveyed to and sold by him. This real estate was conveyed to the plaintiff by her father Orison Blunt during his lifetime. He was indebted upon notes made for his accommodation, and indorsed by him, in the sum of $14,000 at the time of his decease. Samuel K. Syms, the brother of the defendant, was liable as a party to these notes for their payment, and he contemplated the prosecution of an action against the plaintiff to set aside the conveyance of the land made to her, and to render the property liable for the payment of these debts. The suit proceeded no further than the filing of a notice of its pendency at the time when the conveyances of the property were made to the defendant. It was then ascertained that the notes could be compromised for the sum of $7,000, and the leading object of the conveyances to the defendant was to secure this compromise by him and protect him for the amount of the $7,000 to be paid for that purpose. The debts were compromised in this manner, and out of the proceeds of the property the defendant reimbursed himself the money advanced, together with what was paid by him for taxes and assessments and other charges against the property. The right of the plaintiff to the residue of the proceeds of the sale of the property, after reimbursing the •defendant, was not denied on bis part, bnt be claimed to be entitled to tbe rents and profits to be received from tbe property, between tbe time when the conveyances were made to him and tbe times of tbe sales. Tbe conveyances were made in September, 1879, and tbe sales took place in November and December, 1883. Dui’ing this interval tbe defendant received, by way of rents, tbe sum of $14,749.94. Tbe referee held that be was not entitled to retain tbe rents, and required him to render an account thereof.
    Upon tbe accounting a controversy arose as to tbe extent of tbe defendant’s liability, as to which tbe court at General Term said: ■“ He made charges in bis accounts for commissions for collecting and receiving rents himself, in addition to’ those collected for him through an agency employed for that purpose; and be also claimed commissions upon tbe amounts expended by him in repairing tbe property while it was in bis possession. So far as be bad disbursed moneys in making repairs and paying commissions they were allowed by tbe referee in the accounting, but upon tbe amounts collected by himself, and paid out as expenditures for repairs, no commissions were allowed to him; and in that disposition of tbe case tbe referee seems to be supported by tbe settled law, as it is applicable to this class of cases. It is not requisite for tbe determination of this or any other point in tbe case very specifically to declare tbe nature of tbe conveyances of the land between tbe plaintiff and the defendant, for whether they should be held to be mortgages or a conveyance •of tbe property, to be disposed of by him and accounted for under tbe terms of tbe agreement, bis relations and liabilities would be tbe same; and tbe rule is a general one that where a mortgagee or other trustee manages the estate himself, there no allowances is to be made to him for bis services or trouble in the course of that management. Upon this subject it has been said that ‘ nothing is better established in England than that a trustee can have no allowance or compensation for bis time and trouble in tbe execution of the trust.’ (2 Perry on Trusts [2d ed.], § 904.) While a trustee, and also a mortgagee, is to be reimbursed for all his expenditures lawfully made on account of the estate, bis own services have been regarded as gratuitously bestowed, and where be is in fact a mortgagee, for his own benefit. And such may be considered to have been tbe ■expectation of these parties, inasmuch as no stipulation was made or intimation was given that a compensation or commission upon these subjects for the personal services of the defendant would be at any time claimed by him. The object of the conveyances was to benefit his brother so far as to relieve him from liability upon these notes, and the defendant was willing to take the business upon himself, as he did, without any stipulation, apparently for the purpose of serving his brother and securing this benefit. Whether a mortgagee, as the defendant may very well probably be designated under the deeds, shall receive commissions upon collections made by himself, or expenditui’es for the improvements of the property, has been considered in a variety of cases, and they uniformly agree, in holding that no such commissions can be legally claimed or allowed. (Eaton v. Simonds, 14 Pick., 98; Moore v. Cable, 1 Johns. Ch., 385; 2 Wash, on Neal Estate [4th ed.], 234; Breckenridge v. Brooks, 2 A. X. Marshall, 335; French, v. Baron, 2 Atk., 120 ; Bonithon v. Hockmore, 1 Yern., 316; Clark v. Bobbins, 6 Dana [Ky.], 350; Benham v. Bowe, 2 Cal., 261; Elmer v. loper, 25 N. J. Eq., 475.) And for this purpose, without definitely determining that the defendant was a mortgagee in the possession of this property, it may very well be assumed that he was, for while there was no stipulation securing to the plaintiff the right to redeem and repossess herself of the property, it is quite clear that she could have done so at any time before the sale by reimbursing the defendant for his-advances; and in this respect this case essentially differs from that of Macaulay v. Porter (71 N. Y., 173). But in any view which may be taken of the obligations of the defendant the referee was right in denying him these commissions.
    “ The defendant claimed the sum of $325 for the expenses of a suit brought against him by a broker for commissions on a contract for the sale of a portion of the lands. This suit was defended by the defendant evidently in good faith,'but it resulted adversely to him and was finally compromised by the payment of a smaller amount than the recovery, but at an expense to himself of the sum of $100. The aggregate amount paid was $325, and that was disallowed by the referee. In this disallowance he. geems to have applied too strict a rule of liability to this part of the accounting. For the principle is quite general holding that “ trustees have an inherent equitable right to be reimbursed all expenses which they reasonably and properly incur'in the execution of the trust, and it is immaterial that there are no provisions for such expenses in the instrument of trust. (2 Perry on Trusts [2d ed.], § 910.) And a mortgagee in the possession of property would clearly be within the same principle. (1 Perry on Trusts [2d ed.], § 243.) This amount, thereforee should have been allowed to the defendant upon the accounting, and with interest should be now deducted from the sum required to be paid by him to the plaintiff. * * *
    “The referee was also right in allowing interest against the defendant for the balance found in his hands on the 1st of January 1884, which was after all the real estate had been sold by him. The balance that he had was so much money belonging to the plaintiff which he was obligated by the transaction itself to pay over to her, and he could not retain this money in his possession^ and withhold it from her and escape liability for legal interest upon it.- {Adams v. Fort Plain Panic, 36 N. Y., 255, 261.)”

      Townsend <& Mahan, for the appellant.

      M. L. Townsend, for the respondent.
   Opinion by

Daniels, J.;

Brady, P. J. concurred.

Judgment modified as directed, and affirmed as modified, without costs.


source: Caselaw Access Project

author: BRADLEY, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Duty of a railroad company to furnish suitable passenger and freight-houses at a station — when the performance of such duty will be enforced by mandamus.
    A railroad company, organized under the general laws of this State relating to that subject, is charged with the duty of providing a structure, known as a depot building for the use and accommodation of passengers and freight, at a station where it regularly stops its trains for the purpose of permitting passengers to leave and take the cars, and to discharge and receive property for transportation.
    The duty so imposed upon such a company is not an absolute one, hut is dependent upon circumstances which render such an act on the part of the company both reasonable and necessary for the accommodation of the public.
    It may ordinarily be assumed that the discretion of the company has been properly exercised, but when it appears that the facts and circumstances exist which require the performance of the duty, then the duty ceases to be discretionary and becomes an imperative one, the performance of which will be enforced by a writ of mandamus.

    In this case it was held that a writ was properly issued, upon evidence showing that a large amount of freight was annually received and shipped, and that a large number of passengers arrived and departed from a station on the respondent’s road at the village of Hamburgh; that the structure at that station was entirely inadequate for the accommodation of the passengers and freight, and that by reason of such inadequate accommodations serious damage was occasioned to a large number of persons doing business with the defendant there.

      Appeal from an order of the Erie Special Term, directing the issue of a peremptory writ of mandamus requiring the defendant to construct and maintain a suitable depot building at the village of Hamburgh, in the county of Erie.
    The defendant, on the 1st of August, 1880, became the lessee of the Buffalo and Southwestern railroad, for the term of the existence of the lessor. The village of Hamburgh has a population of 1,200, and that railroad passes through it. The village is doing a large freight and passenger business, and the trains run by the •defendant over the Buffalo and Southwestern railroad, under the lease, stop at and within the bounds of the village, for the purpose of receiving and transporting persons and property over it. A large amount of freight is annually received and shaped, and a large number of passengers arrive and depart from that place, and u depot building for the receipt and shipment of freight and the accommodation of passengers is maintained by the defendant at the village of Hamburgh. The depot building is constructed of rough hemlock boards, and is only about six feet high, with a waiting-room five by twelve feet, and a freight department eight by fourteen feet, and its capacity is entirely inadequate for the purposes of waiting-rooms for passengers arriving upon trains at, or awaiting the departure of trains from, the village, and for the storage and care of freight sent there for shipment over such railroad; and these inadequate accommodations have been, and continue to be, a matter of serious damage to large numbers of persons doing-business at such station with the defendant.

      E. Q. Sprague, for the appellant.

      D. O'Brien, attorney general, and Charles F. Tabor, for the respondent.
   BRADLEY, J.:

The fundamental proposition to be first considered is whether the relief sought by the plaintiff is found in the relation of the defendant to the public, and in the powers with which it is vested, or is dependent upon statutory duties imposed. At common law the defendant, as a common carrier of passengers and freight, is required, within reasonable regulations, to receive, carry and transport upon its cars all persons who may seek passage and all property offered for transportation, and tlie duty rests upon tbe carrier to-provide means, to a reasonable degree, for tlie safety of sucli carriage and transportation and for the comfort of the persons transported, and to furnish reasonable means and facilities for the delivery and receipt of property for shipment, and for persons to take passage upon and depart from its cars.

But our attention has not been called to any rule of the common law which imposes the duty upon the carrier of supplying warehouses or depot buildings for the comfort or accommodation of persons in waiting for the opportunity to be carried, or for the reception or storage of property which may be delivered for carriage, or for the temporary deposit of it at the place of consignment. The responsibility is with the carrier and is in the nature of that of insurance from the time the property is received until delivery to the consignee, or until the expiration of a reasonable time for him to receive and take away the goods. And in the meantime the-care required of the carrier is for its own protection against absolute liability from loss or injury of the property. And thereafter, until taken by the consignee, the ordinary care required of the carrier imposes upon it a duty also for its protection from liability.

These considerations at common law a2’e matters arising between persons and the carrier, and do not, we think, impose upon it duties-in behalf of or to be enforced by the public as incidents to the relation of common carrier in respect to the transportation of persons- and property.

The remedy in view by this proceeding must depend upon the statute. And for the purposes of the question here we think the-defendant, as lessee, assumed the duties and took the powers of the Buffalo and Southwestern Railroad Company in respect to the-road in question. That company was organized pursuant to the general laws of this State on the subject and became subject to their provisions. By chapter 140, Laws of 1850, it is provided that a company may be formed “ for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property ” (sec. 1); that it shall have the power “ to purchase, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad. and the stations and other accommodations necessary to accomplish the objects of its incorporation. * * * To erect and maintain all necessary and convenient buildings, stations * * * for the accommodation and use of their passengers, freights and business. To regulate the time and manner in which passengers and property shall be transported” (sec. 28, subs. 3, 8, 9, Laws 1880, chap. 133); and that if unable to agree with the owner for the purchase of any real estate required for the purpose of its incorporation, it shall have the right to acquire it in the manner prescribed (Sec. 13, chap. 140 of 1860), and may afterwards acquire the necessary additional real estate for like purpose (Laws 1881, chap. 649); and that “every such corporation shall start and run their cars for the transportation of passengers and property, at regular times, to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, and at junctions of other railroads, and at the usual stopping places established for receiving and discharging way passengers and freights for that train; and ■shall take, transport and discharge such passengers and property at and from and to such places on the due payment of the fare or freight legally authorized therefor.” (Sec. 36, Laws 1867, chap. 49.)

The people of the State gave to the railroad company its corporate franchise and vested it with the extraordinary power of acquiring and taking the title and possession of property by the aid of judicial proceedings, and without the consent of the owners, for the purposes of its incorporation.

This right of eminent domain was given and taken for the public uses only, and could not be given or taken for any other purpose, and as a consequence the service of the company, in the exercise of its corporate powers, is public, and the power to perform such service is held by it in trust for the people, to whom it is responsible for the manner or failure of its exercise. And if the corporation refuse to perform a plain and essential duty to the public they may require its performance by their writ of mandamus. (Railroad Com'rs v. P. and O. C. R. R. Co., 63 Me., 269; State ex rel. Com'rs v. Zanesville and M. R. R. Co., 16 Ohio St., 308 ; State v. R. R. Co., 37 Conn., 154; Cambridge v. R. R. Co., 7 Met., 70; Rex v. Severn R. R. Co., 2 B. & Ald., 646; Regina v. Bristol Dock Co., 2 Ad. & E. [N. S.], 64; Union Pacific R. R. Co. v. Hall, 91 U. S., 343 ; People v. Albany and V. R. R. Co., 24 N. Y., 261 People ex rel. Green v. Dutchess and Columbia R. R. Co., 58 id.,, 152; People ex rel. Garbutt v. Rochester and State Line R. R. Co., 76 id., 294; People ex rel. Kennedy v. Manhattan Gas-Light Co., 45 Barb., 136; People v. N. Y. C. and H. R. R. R. Co., 28 Hun, 543.)

This responsibility, to the public as such, arises out of the relation produced by the corporate grant which is accepted from the State-sovereignty, and is taken subject to the attending conditions, and while no such contract springs out of the grant as to require the exercise of the rights given by it, but the failure to do so results in forfeiture only, yet when the corporation makes use of the powers with which it is so vested in the consummation of the purposes in view a contract relation arises, and the conditions imposed by the statute in behalf of the public become duties to be observed and performed in the exercise of the powers and the franchise conferred upon it. (People v. Albany and V. R. R. Co., 24 N. Y., 261; Abbott v. Johnstown, etc., R. R. Co., 80 id., 27.)

But powers given merely as such do not necessarily charge with imperative duty to exercise them. They furnish the means for the practical efficiency of the purposes of the franchise, and the conduct and operation of the business of the corporation, and the exercise of them are dependent upon the judgment and discretion of its managers. The question here has relation to the public and does not involve the consideration of those of a private character between the corporation, as a common carrier, and individuals damni-fied by failure to perform duties due to them as such.

It, therefore, seems to follow that the inquiry is whether, by force of the statute, a railroad company organized under the general laws of this State, relating to such corporations, is charged with the duty of providing a structure known as a depot building for the use and accommodation of passengers and freights at a station where it regularly stops its trains for the purpose of permitting the former to leave and take the cars and to discharge and receive property for transportation. This is not, in the terms of the statute, literally expressed as a requirement, and may not he embraced in a strict interpretation of its language. The pin-pose of the railroad, as defined by the statute, is “for the public use in the conveyance of persons and property.” And the company is required to “furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting * * * at the usual stopping places established,” etc., and “ shall discharge such passengers and property,” etc. The duties incident to those expressly imposed are such as may be reasonably necessary to accomplish the required purpose.

A railroad company establishes its stations for regular stoppage of trains for passengers and property at places remote from each other. Detention of persons for greater or less time there waiting to take trains, and for opportunity to leave there for their places of destination after the arrival of trains, is practically a reasonable necessity, and it is very evident that the accommodation of passengers fairly requires the maintenance of a suitable depot building at such a station. While it may be said that this is a matter of advantage to the company for the purposes of its business and in aid of its invitation for patronage, it is also a matter of public concern and a substantial benefit in that respect to have such provision made as distinguished from mere convenience, as well as the latter, and we think a reasonable interpretation may bring it within the necessary incidents of the duties required of a company, and embrace it in the “ accommodations ” for the transportation of passengers, in view of the purpose and manifest spirit of the statute. This view is aided by the fact that such accommodations were contemplated by the provision of the statute giving to a railroad company the power to erect and maintain buildings, stations, etc., for the use and accommodation of passengers and freight, and the right to acquire property for such purpose. (In re N. Y. and H. R. R. Co. v. Kip, 46 N. Y., 546.) The language of the provision of the statute in question is not entirely specific, and may, without violence to its terms, be treated as if it required the company to furnish sufficient accommodations for passengers and property in and about the business of transportation. A strict and literal interpretation of the words of a statute will not be adhered to when it can be seen that they do not fully express the apparent intent of the law-makers. The legislative intention is to be sought for, and when tbe language is not so explicit as to prevent, its construction and effect may be aided by and ascertained from tbe causo or purpose of tbe statute; and with a view to that end tbe interpretation should be reasonable rather than technical, when its language fairly permits. (Pillow v. Bushnell, 5 Barb. , 159; People ex rel. Wood v. Lacombe, 99 N. Y., 49.) In-view of the purpose of this statute and the important rights which it furnishes by the grant of powers to corporations formed pursuant to it, the statute is entitled to a liberal construction in behalf of the public, so as to embrace within the duties charged the powers given, so far as the latter are essential to the substantial accommodation of the public, and may be embraced within the duties imposed or deemed necessarily incidental to their performance. These views place the maintenance of suita-ahle depot buildings, at stations fairly requiring it, within the accommodations for the transportation of passengers required by the statute.

We find no cases arising in this or any other of the United States, and none such are cited by counsel bearing directly upon or necessarily having any application to the question here. In re Caterham Railway Company (1 C. B. [N. S.], 410) was a proceeding for a mandatory injunction founded upon a statute which provided that “every railway company * * * shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways * * * belonging to or worked by such companies, respectively, * * * so that all reasonable accommodation may, by means of the railways, * * * be at all times afforded to the public in that behalf.” And in respect to one of the grounds of complaint that persons waiting for trains were exposed to the weather, the court granted a rule requiring the company to provide a covered station at the place there in question. All the judges there concurred in such result, and one of them remarked that this cause of complaint was “ withholding a reasonable accommodation to which the public are entitled.” (And see South Eastern Ry. Co. v. Ry. Commissioners, L. R., 6 Q. B. D., 586; reviewing S. C., 5 id., 217.)

The duty in question is not an absolute one but is dependent upon •circumstances which render it both reasonable and necessary for the accommodation of the puolic, and the inquiry that leads to the determination .of that question is, in its nature, judicial or discretionary. The business at a station may be so small and inadequate to the expense required as to make the demand for the erection of a depot building unreasonable. (People ex rel. Wheeler v. Long Island R. R. Co., 31 Hun, 125.) And ordinarily it may be assumed that the discretion of the company will be properly exercised, but when it appears that the facts and circumstances exist which require the performance of the duty, then it has passed beyond the domain of discretion and the duty is imperative. And when such is the judgment of the court it may direct the issuing of a mandamus to require it to be done. (State v. N. H. and N. Co., 37 Conn., 153, and see cases before cited.)

It appears that a large amount of freight is annually received and shipped, and a large number of passengers arrive at and depart from the village of Hamburgh; that the structure at that place is inadequate for those passengers and freight, and that the inadequate accommodations furnished by the defendant are matters of serious damage to a large. number of persons doing business with the defendant there. Assuming as we do that the statute is broad enough to embrace the subject of furnishing such structure within its direction, the court was justified upon these facts in its conclusion at Special Term, unless there are other considerations in the way of such relief. The defendant is a solvent corporation, and while it appears that it has necessarily expended a large amount of money in order to operate this leased road with safety to the public, it does not appear that the financial condition resulting from the expenditure and receipts as applied to that road is such as to require the conclusion that the expense necessary for the purpose in view would be an unreasonable requisition upon the defendant.

The Buffalo and Southwestern Railroad Company owns sufficient land not occupied otherwise than by the depot now at such station of sufficient dimensions for the construction of a suitable depot, and which is covered by the lease. While it may be seen that there would have been no impropriety, and that it may have been advisable to have united that company as a party defendant in this proceeding, in view of some of the provisions of the lease, it does not seem to us to have been necessary for the purposes of the remedy sought.

The view taken of the case requires the consideration of uo other question presented, and leads to the conclusion that the .order appealed from should be affirmed.

Shitd, P. J., Barker and Iíaigiit, JJ., concurred.

Order affirmed.


author: Bradley, J.:

text:
    HENRY H. HALL, Plaintiff, v. JOSEPH STEVENS and MELVIN DUNNING, Surviving Partners of McDONOUGH, STEVENS & DUNNING, Defendants.

      Sale of goods — implied agreement for payment in cash on delivery— when the acceptance by the vendor of a draft drawn by a third person will not discharge the vendee from liability.

    The plaintiff made an agreement with the defendants for the sale to the latter by the former of thirty-six head of cattle, to he delivered at East Buffalo, seventeen head on April tenth, and the other nineteen on May first. On April tenth the seventeen head were taken to East Buffalo, weighed and delivered, and a draft for the amount of the contract-price, drawn by the First National Bank of Buffalo upon a bank in New York, payable to the order of the plaintiff, was obtained by the defendants and delivered without indorsement to the plaintiff, who, on the morning of the eleventh, indorsed and delivered it to a bank with directions to collect it. The draft was sent to New York and presented for payment on April thirteenth, but payment was refused on account of the insolvency of the First National Bank, which discontinued business on the afternoon of that day, and which was in fact insolvent when it made the draft.
    Upon the trial evidence was given tending to show that the cattle were delivered late in the afternoon of the tenth; that the draft was delivered after the close of the usual business hours of the bank, and that the plaintiff received it because he believed that the defendants were unable at that time in the day to get the currency. The court directed a verdict for the defendants upon the ground that the plaintiff had accepted the draft as a payment and in satisfaction of his claim against the defendants.

      Eeld, error; that the question as to whether or not the plaintiff intended, by accepting the draft, to waive his right to have the price of the cattle paid in cash at the time of the delivery, to which he was entitled by the original agreement, was a question of fact which should have been submitted to the jury.
    Motion by the plaintiff for a new trial on exceptions taken at Chautauqua Circuit, and ordered to be heard at General Term in the first instance.

      Tbe action was brought to recover an alleged indebtedness of the defendants to the plaintiff for cattle sold and delivered to them. The defendants allege payment. The plaintiff made an agreement with the defendants to sell to them thirty-six head of cattle and deliver seventeen head of them to them at East Buffalo on the tenth day of April, at six and one-quarter cents per pound, and the other nineteen head at the same place on the first day of May following, at the price of six cents per pound. And the defendants advanced to him $100, to be applied upon the purchase-money of the last delivery.
    The seventeen head of cattle were taken to East Buffalo on the tenth of April, were weighed and delivered, and the contract-price amounted to $1,311.25, for which amount the defendants afterward, on the same day, obtained a draft from the First National Bank of Buffalo on the Fourth National Bank of New York, payable to his, the plaintiff’s, order and delivered it to him. And on the twenty-fourth day of April the plaintiff delivered to the defendants, at the same place, the other nineteen head of cattle, the price of which they paid him in currency. On the morning of the eleventh of April the plaintiff indorsed the draft and delivered it to the Fredonia National Bank, with directions to collect it. And that bank gave him some •money and placed the residue of the amount of it to his credit. This bank immediately sent the draft forward to New York to its correspondent there for collection. On the thirteenth of April the draft was presented to the drawee and payment was requested which was refused, and the draft was protested for non-payment; and the amount of it was thereupon charged by the Fredonia Bank to the plaintiff.
    The First National Bank of Buffalo was in fact insolvent at the time it made this draft, but did not discontinue business until the afternoon of the thirteenth day of April, when it closed its doors and finally suspended business. The plaintiff promptly notified the defendants of the situation, and that he should look to them for payment, and afterwards tendered to the defendants the protested draft. This action is brought to recover the price of the cattle so delivered on the tenth of April, on account of which the draft was delivered to and received by the plaintiff.
    The court directed a verdict for the defendants; and the plaintiff took exception to sucli direction and to the refusal of tlio court to submit the case to tlio jury, and now moves for a new trial.

      John 8. Lambert., for the plaintiff.

      Adelbert Moot, for the defendants.
   Bradley, J.:

The question presented is whether the legal effect of the delivery of the draft to the plaintiff, and the acceptance of it by him, was upon the evidence necessarily that of payment for the cattle, or .whether the determination of the effect of such delivery and acceptance involved the consideration of any question of fact for tlio jury.

The fact that the First National Bank of Buffalo was insolvent ■at the time the draft was made and delivered to the plaintiff is not important, although it would have been otherwise if such insolvency had, before such delivery of the draft to the plaintiff, resulted in a suspension of the business of the bank caused by its failure. In that event the delivery of the draft would have been legally ineffectual as a payment. (Lightbody v. Ontario Bank, 11 Wend., 9; Ontario Bank v. Lightbody, 13 id., 101; 27 Am. Dec., 179; Roberts v. Fisher, 43 N. Y., 159 ; S. C., 3 Am. R., 680.) The bank apparently remained in good credit and continued its business until, the afternoon of the thirteenth day of April — three days after the draft was delivered to and received by the plaintiff. And drafts drawn by it on its correspondent bank in New York were not dishonored until that day.

Whether the delivery and receipt of the draft was effectual as a payment depended upon the agreement and understanding of the parties, and that is so whether it was delivered simultaneously with the delivery of the property or afterwards. (Porter v. Talcott, 1 Cow., 359-383 ; Johnson v. Weed, 9 Johns., 310; Whitbeck v. Van Ness, 11 id., 409; Noel v. Murray, 13 N. Y., 167.) But when, by and as part of the agreement for the sale of property, the seller agrees to take the note or bill of a third party in payment, the delivery and acceptance of such bill or note will be deemed to have been pursuant to the agreement, and as matter of law treated as payment for the property.

■ • And although no such agreement may have been made prior to the time of tbe delivery of the property pursuant to an agreement of sale, the acceptance by the seller from the purchaser of the note of a third person simultaneously with the act of delivery of the property, and in performance of the contract on the part of the purchaser, may, in the absence of any qualifying circumstances, be treated as thus modifying the agreement of' saíe, and have the effect of payment and satisfaction. (Whitbeck v. Van Ness, 11 Johns., 409; Noel v. Murray, supra; Gibson v. Tobey, 46 N. Y., 637; S. C., 53 Barb., 191.) This rule, however, rests in presumption only, and is subject to modification by attending'circumstances; and the presumption is to the contrary when the note of a third person is delivered and accepted on a precedent debt. (Noel v. Murray, 13 N. Y., 167.)

In the case at bar the cattle were delivered by the plaintiff pursuant to a valid agreement to sell them to the defendants, made several days prior to the time of such delivery. There being no express agreement then made as to the manner or time of payment, the agreement to pay in money at the time of delivery of the cattle was implied. This was an executory contract for the sale of property, and the obligations assumed by the seller and buyer required of them concurrent and simultaneous acts by way of performance. The sale was upon the condition that on the delivery of the cattle the defendants should pay the plaintiff in money the stipulated price for them; and unless waived by the plaintiff such condition was in the way of title passing to the defendants until such payment should be made. The delivery of property by the seller under such a contract, without requiring payment, is a waiver of the condition ; but whether the delivery is so made, and such the consequence, depends upon circumstances. And the preservation of this condition precedent to the passing of title does not necessarily require that the delivery be qualified by an express declaration to that effect. It is sufficient that it may be inferred from the circumstances or the acts of the parties. (Hammett v. Linneman, 48 N. Y., 399; Smith v. Lynes, 5 id., 41 ; Parker v. Baxter, 86 id., 586 ; Bowen v. Burk, 13 Penn St., 146 ; Haskins v. Warren, 115 Mass., 514; Freeman v. Nichols, 116 id., 309.)

A brief reference to the evidence will show the circumstances, as related by the plaintiff, of the transaction' of the delivery of the cattle. After arriving at East Buffalo with the cattle, and before they were weighed, the plaintiff asked how it would be about the pay for the cattle,” and the inquiry was made .of him what he wanted, to which he answered that lie wanted the currency,” and was advised by the defendants’ agent that “ he had arranged that all right,” and when asked by the plaintiff if it would not be too late for them to get to the bank before it closed for the day, was informed that they had arrangements with the bank to do business after banking hours so that it would be all right.” The cattle were then weighed, and the defendants took the possession of them. The plaintiff then went to the defendants’ office. The amount was there figured up and announced, and the defendants were informed that the plaintiff “ would like his currency now, as he wants to get home.” The person representing the defendants “replied that he didn’t know how it would be abmit getting the currency, and asked if a draft wouldn’t answer the plaintiff’s purpose, and the latter said, “ perhaps a draft might answer, but I would prefer the currency as I wanted to use it when I got home.” Nothing more was fhen said, but an hour and a-half or two hours afterwards the draft was handed to the plaintiff, who remarked that it had not been indorsed and was advised that it was payable to his order and was all right as it was. He also remarked, “ I suppose you couldn’t get the currency,” to which no reply was made.

The time when the cattle had been weighed and delivered was late in the afternoon. The bank was about three miles from the defendants’ office, and when the draft was obtained it was after the close of the usual business hours of the bank. The plaintiff remained at East Buffalo, where, and until, the draft was delivered to him, and the inference is fairly required that ho remained there to receive his pay for the cattle. The plaintiff did not, by the agreement of sale as originally made, agree to take this or any draft. It required the payment in money, but the evidence justified the conclusion, although it did not require, that the delivery to and receipt by him of the draft was effectual as a performance on the part of the defendants, and as payment and satisfaction. It may be observed that there was a valid agreement between the parties to sell and purchase the cattle and to pay and receive money only for” them; that the agreement was fully performed on the part of the plain fifí: by the delivery of the property to the defendants, and that he WRs then entitled to the payment of the price in money. At this time no other means of payment4 had been mentioned, nor does it appear that any modification of the terms of the contract in this respect had then been contemplated. The evidence tends to prove that the plaintiff did not intend to give credit. When ho delivered the cattle he evidently expected to get pay for them before ho left, and remained there for that purpose; and it would be difficult to reach any other conclusion upon the evidence, although the conse cjuences of acts do not necessarily depend upon undisclosed intention. (Upton v. S. C. Mills, 111 Mass., 446.) The obligation of the defendants to pay had become effectual, and the inference is permitted that the plaintiff received the draft, because he believed the defendants were unable at that time in the day to get the currency, and for their accommodation and convenience. He had advised them that he wanted the currency, and it may bo inferred that lie delivered the cattle in expectation of receiving it. And afterwards, when he was ashed if a draft would answer his purpose, he expressed his preference for the currency and said, “perhaps a draft might answer.” We think the evidence was such as to justify the conclusion that the draft was received by the plaintiff on account of the obligation the defendants had assumed, arising out of the contract when the cattle were delivered, to pay him the money, and for their accommodation, as distinguished from a payment pursuant to and in performance of the contract of sale of the property; and in that view there was a question of fact for the consideration of the jury. (Ellis v. Wild, 6 Mass., 321; Johnson v. Weed, supra ; Smith v. Lynes, 5 N. Y., 41; Osborn v. Gantz, 60 id., 542.)

This proposition was not in the case of Gibson v. Tobey (46 N. Y., 637). There the seller preferred a draft to the currency, and a draft was accordingly obtained for, and delivered to, and accepted by him. He had his option to take the money or a draft, and took the latter as a performance of the contract on the part of the purchaser. The question here is a close one, and it may seem not to be a very broad ground upon which to distinguish the case at bar from the principle of the first proposition considered by the court in that one, inasmuch as the draft was received by the plaintiff without any expressed qualification, and without the defendants’ indorsement. Those circumstances, however, are matters of evidence, going in support of the defendants’ contention, and do not necessarily furnish a legal presumption of payment. In the Gibson case the payment was made in the manner expressly requested by the seller, and the purchaser, in converting money into the draft, was-acting for the former and his accommodation with a view to the completion of performance of the contract of sale and purchase, while in this case the jury were permitted by the evidence to say that the defendants proceeded on their own account to obtain the draft, with a view to relieve themselves from their existing obligation to pay money, and that the plaintiff was induced to take the draft for the convenience of the defendants, notwithstanding his desire to receive the currency which they were then liable to pay, and not in performance of the contract of sale of the property. And in considering the second of the two grounds upon which the decision of the court in Gibson v. Tobey was placed, the court very appropriately remarked : When a creditor has an option to receive money or a note of a third party, and he accepts the latter, it will be' assumed that he receives it with the sanie effect as if he had received the money.” The fact which supports the presumption that the note of a third person is taken in payment for property sold, is that the agreement to accept it is or has become a part of the contract of sale and purchase, so that it may be said to have been received pursuant to and in performance of it. And when the circumstances permit the conclusion of severance of the act from that which the performance of the contract requires, then the presumption of payment does not, as matter of law, arise, although they may be such as to present a question of fact for the jury whether the note is received pursuant to the contract and as a performance of it. This seems to be within the rule deducible from Whitbeck v. Van Ness, and the subsequent cases in this State where-the like question has arisen.

If these views are correct, the motion for a new trial should be granted, costs to abide event.

Sjiith, P. J., concurred; Haight, J"., not voting.

Motion for new trial granted, costs to abide event.


text:
    MARY M. RISLEY, Plaintiff, v. ELI RICE and STEPHEN FULLER, Defendants.

      JEtfectment — right of the holds’1' of the legal title to maintain it, as against one claiming under a contract of sale made Iry a prior owner.

    On November 12, 1867, one Pierpont became tlie owner of certain premises, wbicb be thereafter, and on August 31, 1880, conveyed to one Puller. On June 30, 1881, the premises were conveyed to one Risley by a sheriff’s deed, pursuant to a sale under an execution issued upon a judgment recovered against Puller. In this action of ejectment, brought by Risley, it appeared that, prior to the conveyance by Pierpont to Puller, Pierpont had entered into a written agreement for the sale of the premises to Sarah A. Mitchell for ¡¡¡>108.41, by which he agreed to convey the premises to her upon payment of that amount, or on her securing the payment thereof by her bond and a mortgage upon the premises. The contract did not give to the vendee any right to possession; nor was it shown that any of the purchase-money had been paid, or that any offer of performance had been made on the part of the vendee. Sarah A. Mitchell, after entering into this contract, executed a mortgage upon the premises to one Collins. .The defendants in this action were in possession, claiming under a decree of foreclosure of this mortgage.

      Held, that a verdict was properly directed in favor of Risley, the plaintiff, as the evidence showed the legal title and the right of possession to be in her.
    That the plaintiff was not required to show that she had, prior to the commencement of the action, demanded that the contract be performed and tendered a conveyance of the premises.
    Motion by the defendants for a new trial on exceptions, taken at Ontario Circuit and ordered to be heard at General Term in the first instance.

      E. IF. Gardner, for the plaintiff.

      Henry M. Field, for the defendants.
   Bradley, J.:

The action is ejectment. One Rierpont became the owner of the premises in question on the 12th day of November, 1867, and conveyed them to Stephen Fuller on 31st of August, 1880. They were convoyed to the plaintiff June 30; 1881, by the deed of the sheriff of Ontario county, pursuant to a sale upon execution issued upon a judgment against Fuller. This apparently vested title in the plaintiff. At the time of the commencement of this action the. defendant Fuller was in the possession of the premises as the tenant of the defendant Rice. The latter claims title and the right of possession founded upon the facts that on the 12th day of November, 1867, Pierpont made, with Sarah A. Mitchell, a contract to sell to her the land for $108.41, and to convey it to her on payment, by her, of that sum, or on securing the payment of it by her bond, secured by mortgage, on the premises; that she gave to one Collins a mortgage on them April 13, 1877, to secure the payment of $221.90; that the premises were sold pursuant to decree of foreclosure of such mortgage and conveyed by the referee, making it to oneShettler September 4,1880, and deed was made by Shettler to the defendant Rice September 14, 1880. Upon this state of facts it appears that the legal title was in the plaintiff, and she Avas entitled to the possession unless the defendants had some right derived from ■or under the conti act to Mitchell to support ’ their defense. The contract did not, by its terms, give the vendee any right to the possession, and before the commencement of this action the defendants refused, on demand, to surrender the possession to the plaintiff. A verdict Avas directed and, we think, properly for the plaintiff by the trial court.

The right to the possession of the premises depended upon some legal estate in the land. The legal title was in the plaintiff. And assuming that the defendant Rice had all the right afforded by the Mitchell contract when it was made, that furnished no legal estate Avhatever in the premises. And if she went into possession under it her possession was by license merely, and no greater right was in those holding under her. (Ives v. Ives, 13 Johns., 235; Erwin v. Olmsted, 7 Cow., 229; Jackson v. Moncrief, 5 Wend., 26 ; Wright v. Moore, 21 id., 230 ; Dolittle v. Eddy, 7 Barb., 74; Hotaling v. Hotaling, 47 id., 163; Pierce v. Tuttle, 53 id., 155.)

The vendee, by a contract of purchase, takes the equitable title to the contracted premises, and his remedy is in equity. If in possession under such'contract he may support his right under it and defeat a recovery by setting up his equitable defense if he has one, and by offer of performance of the contract and the demand of the conveyance if the situation permit. It does not appear that any of the purchase-money of the Mitchell contract has been paid, and no offer was made or alleged by the answer and proved to have been made of performance. And no equitable defense, founded upon proposed performance, is alleged or proved.

The case, therefore, stands upon the legal rights of the parties as distinguished from their equities. But it is contended, on the part of the defense, that the plaintiff could not maintain her action without first having demanded performance and tendered a deed of conveyance, and that the right of action was dependent upon refusal on such demand and tender of the defendant Rice to perform.

It is true that the stipulations of the parties in the contract are concurrent, and that neither could require performance of the other without readiness and offer to perform. The vendor in the contract or his assignee and grantee could not maintain an action to recover the purchase-money, nor for specific performance, without the tender of a deed of conveyance and demand of performance. And such is the nature and doctrine of the cases cited by counsel. ( Van Campen v. Knight, 63 Barb., 205; Leaird v. Smith, 44 N.Y., 619.) This action is not founded upon the contract, nor is performance in any respect the subject of relief in view by it, but it rests upon the legal title and the right to the possession of the premises. The executory contract of sale as such affords no right to the possession to any person holding under it as against the legal title. ( Wright v. Moore, 21 Wend., 230.)

There is no evidence tending to prove any defense to the action. And the evidence offered by the defendant and rejected was of no value and immaterial. Such evidence, if received, would not tend in any degree to prove that the deed to Puller did rot convey the legal title, or that the plaintiff did not take it by the deed to her.

The motion for a new trial should be denied, and judgment ordered on the verdict.

Skith, P. J., and Haight, J., concurred.

Motion for new trial denied and judgment ordered for the plaintiff on the verdict.


text:
    In the Matter of the Application of the CITY OF ROCHESTER, to Acquire the Permanent and Perpetual Right to Draw from Hemlock and Canadice Lakes an Amount of Water Sufficient for the Use of Said City and its Inhabitants, not Exceeding Nine Millions of Gallons Per Day.

      Evidence — when the opinion of a witness, as to the damages occasioned by a diversion of water, may be considered by commissioners appointed to appraise damages.

    Appeal from tlie awards made by commissioners appointed in proceedings instituted by tbe city of Rochester, under chapter 67 of 1881, to acquire, as against certain riparian owners adjacent to the outlet of Hemlock, lake and lloneoye creek, the right to take water therefrom to the extent of 9,000,000 gallons daily. Upon the hearing before the commissioners, witnesses, who were familiar with the property and competent to give their opinions as to its value in the condition in which it was before the water of the lake was diverted from the stream, and with the condition of the outlet and creek and the flow of it ater in them prior to and since the diversion of the water, were asked and allowed to state what, in their judgment, would be the fair value of the property, assuming that the city had not interfered with the flow of water in the stream. They were then asked and allowed, against the appellant’s objection and exception, to answer the question: “How much, in your judgment, would that property be worth after acquiring to the city of Rochester the permanent and perpetual right to draw from Hemlock and Oanadice lakes nine million gallons of water a day.”
    The appellant objected to the question upon the grounds that the subject of inquiry was not a matter of opinion, and that as the city had then drawn only from 2,000,000 to 5,000,000 gallons a day the witness had, and could have had, no experience in regard to the condition of things assumed by the question.

      Meld, that it was proper to allow the witness to answer the question.
    In proceedings of this character the strict rules applicable to the trial of issues of fact in actions do not apply in respect to the effect of the admission of incompetent evidence, unless it may be seen that the error was prejudicial to the appealing party.
    Appeal by the city of Rochester from the appraisal and report of the commissioners appointed in this proceeding, and from the order of the Monroe Special Term confirming such report.
    By chapter 754 of the Laws of 1873, the board of water commissioners of the city of Rochester were authorized, as agents of the city, to enter upon, control and use the waters of Hemlock and Oanadice lakes, for the purpose of nrocuring a water supply
      for the city. The water commissioners proceeded to construct works for the taking of water from Hemlock lake for such purpose, and completed them early in 187G, by which water was taken from the lake for the purposes of such supply. ' This lake is situated in the county of Livingston, and about thirty miles from the city of Rochester. Its outlet receives the water from the outlet of Cana-dice lake, and further on empties into Honeoye creek, which proceeds to and enters the Genesee river. In 1878 the riparian owners along the outlet of Hemlock lake and Honeoye creek commenced actions against the city of Rochester to recover damages alleged by them to have been suffered by reason of the taking of the water from the Hemlock lake to supply the city, and it was finally determined in one of those actions that the city was liable. {Smith v. City of Rochester, 92 N. Y., 403.) And pursuant to chapter 67 of Laws of 1881, this proceeding was instituted in 1884, to acquire as against the riparian owners of twenty-two parcels of land adjacent to the outlet of Hemlock lake and Honeoye creek, the right to take water from those lakes, and Horace Y. Howland, James T. Gardner and Charles C. B. Walker were appointed commissioners to appraise the damages. They viewed the premises, heard the evidence and made their report, whereby they awarded damages to the landowners severally, amounting in the aggregate to §95,485, and from it and the order of confirmation this appeal is taken.

      John JR. Beclcley, for the city of Rochester, appellant.

      Theodore Bacon, for George R. Smith and others, respondents.
   Bradley, J.:

The question presented for the consideration and determination of the commissioners was, to what extent the properties in question were depreciated in value for hydraulic purposes by the exercise hy the city of Rochester of the right to perpetually take, daily, 9,000,000 gallons of water from Hemlock lake ? And this depended upon the reduction of the flow of water in the outlet of such lake and in Honeoye creek. The premises in question were located along such outlet and creek, and were occupied by mills and manufactories operated by the water of those streams. And it is claimed by these riparian owners that their water rights and privileges appurtenant to their property unimpaired by this diversion were of much value,, and that the appropriation by the city of the water to the extent in view will so diminish the supply for their mills as greatly to impair their use and depreciate - the value of the property. Very much evidence was given bearing upon that question and presenting a diversity of views in that respect. The record presents some very interesting and instructive evidence of a scientific character on this-subject given by learned civil and hydraulic engineers, to which it is ■unnecessary to refer specifically for the purposes of the questions, here, and some found in the opinions of witnesses as to the difference in value between the properties without and with the appropriation of the water of the lake. There is evidence of damages both very much above and below the amounts awarded. It is contended by the learned counsel for the petitioner that the commissioners were governed by erroneous principles in reaching their conclusion, and that it was caused mainly by the reception of the opinions of witnesses in respect to the depreciation in value produced by the approjn-iation of 9,000,000 gallons of water daily from the lake, against his objection. And it is insisted that such opinions were incompetent as evidence and furnished no legitimate guide to the estimate of the compensation to which the respondents were entitled. Witnesses called on the part of the respondents were-asked: First. “ Assuming that the city of Rochester had not interfered with the flow of water in that stream, what, in your judgment,, would be the fair value of the (specified) property as it stands ? Which was answered without objection. Second. “ How much, in your judgment, would that property be worth after acquiring to the-city of Rochester the permanent and perpetual right to draw from Hemlock and Canadice lakes 9,000,000 gallons of water a day?” To this question objection on the ground that it is not a matter of an opinion, and that the witness has had, and can have, no experience in regard to the condition of things assumed by the question, was overruled and exception taken.

In proceedings of this character the strict rules applicable to the-trial of issues of fact in actions do not apply in respect to the effect of the admission of incompetent evidence. The departure from, established rules of evidence in such proceeding may not affect. ibe award, unless it may be seen that the error was prejudicial to the appealing party. The question usually in such cases, is whether or not an erroneous principle has been adopted or applied in reaching the conclusion. And when incompetent evidence has been received, or that which should have been admitted is excluded, it may give apprehension that its effect has led to error in the result and, therefore, the rules of admissibility of .evidence should be carefully observed in cases of this character. (Troy and Boston R. R. Co. v. Lee, 13 Barb., 169; Troy and Boston R. R. Co v. Northern Turnpike Co., 16 id., 100; In re Bushwick Avenue, 48 id., 9.)

The proper subject of inquiry' by the commission was the difference in value of the property involved without and with this diversion of water, and the evidence in question was directed to the correct rule for the measurement of compensation to the riparian owners. (Matter of Utica, etc., R. R. Co., 56 Barb., 456; Matter of P. and E. R. R. Co., 63 id., 151; Matter of N. Y. C. and H. R. R. R. Co., 15 Hun, 63; Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423.) The witnesses were familiar with the property as to which they testified, and competent to give their opinions of its value in the condition it was before water of the lake was diverted from the stream. They were also acquainted with the condition of the outlet and creek and the flow of water in them prior to 1876, and since then; and in making their estimate of the reduced value which will be occasioned by the diversion increased to 9,000,000 gallons daily, they were required to assume some and what depreciation in quantity of water was thus produced in the stream, and the effect of such reduction in its propelling power of machinery on the premises. This was wholly a matter of judgment and was not susceptible of accurate demonstration. The city had, since 1S76, been taking from the lake from 2,000,000 to 5,000,000 gallons per day, and the effect which had been produced upon the waters of the creek by such appropriation. was a controverted fact. No system of calculation, however scientifically made, could furnish exact information of the effect upon the stream from year to year in perpetuity of the taking of 9,000,000 gallons of water from its source of supply.

The considerations and natural causes which do, may and will Oxist and intervene to defeat accuracy in calculation are numerous, and cannot be embraced witli certainty in any system of estimate or calculation. But this does not necessarily defeat tlie competency of tlie judgment of men in aid, to more or less extent, of the way to a conclusion. Tlie difficulty of forming an opinion does not necessarily exclude the expression of judgment from consideration. It must be conceded that where, as in this instance, the supply of water is not superabundant, the consequence of diversion of such a quantity from the stream is an injurious reduction of its propelling power, and, therefore, depreciates to some extent the value of the property dependent upon or entitled to its flow for the purpose of •operating machinery. This extent and its consequences must now rest mainly in judgment; and however difficult it may be to form an accurate opinion, the exigencies would seem to justify it. The competency of an opinion does not necessarily dep>end on its value, but upon the fact that tlie subject is one which permits it. The judgment of value of property is competent, because a mere description cannot intelligently convey the knowledge that a person may have in that respect. If a correct condition of the water in the stream could be assumed, there would, perhaps, be no contention but that an opinion might be expressed of the value of the property on such assumption. This creek is not so wide or so deep as that it can be said, as matter of law, that the estimate of the effect produced upon the flow by the withdrawal of 9,000,000 gallons per day is merely confusion and speculative. The familiarity of men with the stream and its operation for many years, renders them able to speak of such effect and its consequences with more approximate accuracy in their estimate than could the commissioners, who were not so familiar with the situation. And this knowledge, not common to others, and the fact that the value affected by all the conditions and consequences so occasioned is not fairly susceptible of transmission by a mere relation of facts, bring it within the rule which permits the expression of opinion or the evidence of exports. (Conhocton S. R. Co. v. B., N. Y. and E. R. R. Co., 3 Hun, 523; Rochester and S. R. R. Co. v. Budlong, 10 How., 290.)

The cases cited by the counsel for tlie petitioner are distinguishable from the question presented in this case. And most of them were actions at law where the strict rule of admissibility of evidence was necessarily applied. Here the evidence was given upon the question of the present value of the property in view of the definite right sought to be acquired to the prejudice of such property. And while it may have less certainty than opinions of witnesses as to value of land remaining after that taken for a railroad, in view of all the circumstances arising out of the taking of the land and the future operation of the road ; yet the difference is one of degree for the consideration of the acting tribunal and not a distinction going to competency.

It ivas the duty of the commissioners to personally view the premises, and they did so. The means thus furnished was properly for their use in the disposition of the case. The opinions of the witnesses, whether of more or less value in their view, were properly received for their consideration. Whether the opinions of witnesses are or are not entitled to much consideration on the question of value of property depends upon the circumstances of each case. They frequently are not unless guided by known current market values, but they are a necessity in the matter of determination of rights relating to property. And although diverse they furnish some aid to judicial action. A commission selected to ascertain and award compensation for property taken or affected, with the duty to take a personal view of the situation, are supposed to obtain from their observation and other evidence the requisite information to satisfy their judgments and to properly guide them to a correct result. And unless it appear, or may from some cause be inferred, that they have been led to a conclusion by an erroneous principle, or in view of all the evidence that the result fails to represent what is fairly just between the parties, their award will not usually be disturbed. (In re Williams and Anthony Streets, 19 Wend., 678, 694.) The commissioners have adopted neither extreme which the respective parties, by their evidence, sought to prove as the measure of compensation.

We fail to find any occasion to conclude that the commissioners have not faithfully observed correct principles in the consideration of the case on the merits. And no reason appears to challenge the correctness of their judgment in giving to the proceeding the result represented by the awards.

The appraisal and report and the order of confirmation should be affirmed, with costs.

Smith, P. J., Bareer and Haight, JJ., concurred.

Appraisal, report and order of confirmation affirmed, witn costs of appeal in one proceeding only.


author: Bradley, J. :

text:
    CHARLES GILLINGHAM and Others, Respondents, v. WALTER S. JENKINS, Appellant, Impleaded with SAMUEL COTTON.

      Appeal to a County Court from, a justice's judgment and a demand for a new trial in the County Court — a judgment, void because not rendered within four days after the submission, will not support the appeal..

    This action, which was commenced in a Justice’s Court in March, 1882, was tried and submitted to the justice on the 15th day of August, 1882. On April 14, 1883, he rendered a judgment in favor of the plaintiffs for $150. The plaintiffs appealed from this judgment to the County Court demanding, in their notice of appeal, a new trial in that court.

      Held, that as the judgment was void because rendered after the expiration of the four days prescribed by section 3015 of the Code of Civil Procedure, it would not support the appeal attempted to be taken by the plaintiffs, and that the County Court erred in denying a motion for its dismissal made by the defendant.

      Crannell v. Comstoelc (12 Hun, 294) distinguished.
    Appeal from .an order of the Cattaraugus County Court, denying the defendant’s motion to dismiss an appeal taken, from the ' judgment of a justice of the peace.

      Walter S. Jenkins, for the appellant.

      Frederick W. Kruse, for the respondents.
   Bradley, J. :

In March, 1882, an action to enforce a lien was commenced by one Littley and another in Justices’ Court against the appellant and others. And the appellant gave notice to the plaintiffs and others for the presentation of their claims to the justice. He answered and the issues were there tried and submitted to the justice on the 15th day of August, 1882. And on the 14th day of April, 1883, be rendered judgment in favor of the plaintiffs and against the defendant for $150.

The plaintiffs appealed from this judgment to the County Court, and by their notice of appeal demanded a new trial in that court. The appellant afterward made a motion to dismiss the appeal, which was denied and he appeals. It will be observed that this judgment was rendered by the justice about eight months after the trial and final submission of the cause to him for determination. His time to render his judgment was limited by the statute to four days after such submission. (Code Civ. Pro., § 3015.) And this is not new. (2 R. S., 247, § 124.) The judicial power of the justice being thus limited and confined to the time so prescribed, his subsequent act of rendering the judgment, and the judgment itself, were without any legal effect and void. (Sibley v. Howard, 3 Den., 72; Dauchy v. Brown, 41 Barb., 555 ; Dalton v. Loughlin, 4 Abb. N. C., 187; Berrian v. Olmstead, 4 E. D. Smith, 279; Wiseman v. Panama R. R. Co., 1 Hilt., 300.)

But a void judgment will support an appeal for the purposes of its review and reversal. And it will for that reason be reversed by the appellate court. (Striker v. Mott, 6 Wend., 465 ; Watson v. Davis, 19 id., 371; McMahon v. Rauhr, 47 N. Y., 67, 72.) This judgment was no determination of the rights of the parties and constituted no bar to another action for the same cause. And the appeal to the County Court is not for the purpose of its review and reversal, but to reach a result in the action by means of such appeal, which shall be a legal and effectual determination of the rights of the parties represented by the judgment of that court. The pen-dency of the action before the justice terminated with the -time limited for the rendition of the judgment, and his power to thereafter render a judgment, and its legal effect, were no greater than they would have been if no action or proceeding had ever been instituted before him. The right of appeal, and its purpose and effect, are governed by the statute, which provides that where the judgment demanded by the pleading of either party exceeds fifty dollars “ the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon he is entitled thereto.” (Code Civ. Pro., § 3068.) And that “ after the expiration of ten .days from tbe time of filing tbe justice’s return, the action is deemed an action at issue in tbe appellate court, and all tbe proceedings therein * * * are the same as if tbe action bad been commenced in tbe appellate court, except,” etc. (Id., § 3071.) A justice’s judgment is, therefore, superseded by such appeal from it. (Burns v. Howard, 9 Abb. N. C., 324.) And it is through tbe appeal from it that tbe action, which bad been pending in the Justices’ Court, is transferred to tbe County Court, and is in pendency there, not for tbe purpose of review, but solely for the exercise of original jurisdiction, as if it had been originally instituted in that court. And yet it is the same action that was commenced and had been pending in the Justices’ Court, wdiere it had resulted in a judgment. It logically seems necessary to connect a judgment in the Justices’ Court with an action there to give to the appeal the effect of taking an action into the County Court, and giving it pendency there, for the purposes of the exercise of original jurisdiction, because the statute does not contemplate the commencement of an action in the County Court by an appeal, but the transfer to that court of an action originally commenced in the court below; and ■unless the judgment appealed from is in fact rendered in an action there, it is difficult to see how an action is transferred from the Justices’ Court to the County Court by an appeal taken from it. If the pendency of the action before the justice did not cease on his failure to perform the judicial act of rendering a judgment within the time, it is not seen when such would be the consequence. And for the purpose of continuing the action in the County Court for an original adjudication there, the judgment may as well be rendered by the justice four years as eight months after the cause is finally submitted to him on the merits.

This case presents something more and different from mere error in a determination by a justice that he has jurisdiction on the facts, when he has not. In such case he makes a decision in the action when it is before him, and on a new trial on appeal, the question whether an error was committed may not have consideration, because bis judgment is in no sense the subject of review. That was the view of the question sought to be raised in Crannell v. Comstock (12 Hun, 294), and that case has not necessarily any practical application here. The purpose of this appeal to the County Court is characterized as for the continuance of the action, and a new trial there. That is the effect given to the notice of appeal by the • statute. And we think the effect and purpose of the notice is not qualified by section 3062 of the Code, so as to treat it otherwise, when the judgment appealed from comes within the statutory requirement permitting the appeal to be taken for a new trial and a new trial is by the notice demanded.

The statute makes the legitimate use of such demand depend upon the pleadings of the parties or of one of them. (Id,, § 3068.) The fact that the judgment appealed from is void, and such as not to justify a new trial, is not within the statutory reason for retaining the appeal for review of the judgment upon the law only, nor is there any apparent occasion in such case for an assumed modification of the notice of appeal or its effect to permit the appellant to simply reverse a void judgment in his favor.

If these views are correct, the order appealed from should be reversed, and the motion to dismiss the appeal granted.

Smith, P. J., BaRKEb and Haight, JJ., concurred.

Order reversed, without costs, and the case remitted to the County Court of Cattaraugus county, with directions to dismiss the appeal.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Appellant, v. WARREN HICKS and Others, as Assessors, etc., of the Town of Ontario, Wayne County, Respondents and Appellants. SAME v. MELVILLE M. EDDY and Others, as Assessors, etc., of the Town of Williamson, Wayne County, Respondents and Appellants. SAME v. WILLIAM BANCROFT and Others, as Assessors, etc., of the Town of Webster, Monroe County, Respondents and Appellants.

      Review of assessments of a railroad — when the value should he determined from the net eavnings of the road — mode of computing the net earnings — of determining the value per mile — what objections cannot be first lalcen on the appeal.

    In proceedings instituted by the relator, a railroad company, to review an assessment made by tlie town assessors, tbe court at Special Term reduced the assessment imposed upon the main track of the relator upon the ground that certain sums should have been deducted from the earnings of the relator in determining its net earnings.
    The method adopted by the court was based upon the average of the earnings for the preceding five years, and oonsisted in deducting from the gross earnings:
    (1) the net earnings of its freight cars on other roads;
    (2) the value of the use of its freight cars on its own road at the same rate;
    (3) the amount received from rentals of its real property not used in its business;
    (4) interest at the rate of five per cent upon the value of its side tracks;
    (5) interest at the rate of five per cent upon the value of its coaches and cars, other than freight cars;
    (6) interest at the rate of five per cent on the value of its locomotives;
    (7) interest at the rate of five per cent upon the value of its depots, docks, sheds and lands outside of the main track not rented but used in its business.
    This residue was capitalized at five per cent, and that sum, divided by the number of miles in length of such track, was fixed upon as its value per mile.

      Held, that in the absence of any evidence tending to show that the results of the five years’ business did not fairly indicate its present financial importance, or of mismanagement tending to show that the earnings failed to represent reasonably the productive character of the road, or that there existed undeveloped facilities upon which to found, or which necessarily required an estimate of present value in addition to that produced by the net earnings, the General Term could not say that the method of estimate adopted by the Special Term was erroneous.

      The length of the relator’s road, including its branches and leased lines, was 417 8-100 miles, of which that of the leased lines was 36 58-100, and that of its other branches 96 37-100. The rent paid for the leased lines exceeded largely their net earnings. To ascertain the value per mile the court divided the sum of the capitalized average net earnings per annnm for the five years hy the whole number of miles of road, less the leased lines.

      Held, that it did not err in so doing.
    It was urged by the appellant that the relator had not proper y presented its proofs to the assessors on the third Tuesday of August, and then sought to have the assessment reviewed and reduced.

      Held, that as it did not appear from the record that this objection had been raised at Special Term, it could not be first taken upon the appeal.
    Appeals from orders of tbe Monroe Special Term, modifying and reducing assessments, as made by tbe assessors in the several-towns named in the above titles.
    These are proceedings by certiorari under Laws of 1880, chapter 269, to review assessments made in the year 1883 :
    In the town of Ontario there are 6TST3T miles of the main track of the relator’s road, which was assessed at the rate of $12,000 per mile. $74>760 00
    And its branches and side tracks, and its other real estate in the town. 12 >644 00 $87,404 00
    In town of 'Williamson, main track, 5T9/T miles, assessed at. $90,000 00
    And its other real estate.. 1, 448 00 $91,448 00
    In the town of Webster, main track, 9^^ miles, assessed at $11,000 per mile. $100,210 00
    And its other real estate. 2,850 00 $103,060 00
    The relator instituted these proceedings to reduce the assessments. And the assessments of the main line were reduced to $9,767.70 per mile. In other respects the assessments remain as made by the assessors. Both parties appeal.

      Edmund B. Wynn, for the relator.

      S. D. Bentley, for the defendants.
   Bradley, J. :

The referee to wnom tiie matters were referred to take the proofs and report them, with his opinion thereon, for the aid of the court in the determination of the issues, by his conclusion and opinion, expressed the view that the prayer of the relator’s petition should be denied. The court adopted the views of the referee in the main, but concluded that he had erroneously omitted to deduct certain sums from the earnings of the relator, and by such deduction the court produced the modification reducing the assessments of the main track of the relator’s roads in the respective towns.

This modification of the assessments was found wholly upon the net earnings of the relator’s road, and based upon the average of such earnings for the five years ending with the 30th of September, 1883. The methods of computation was to deduct from the gross earnings:

First. The net earnings of freight cars on other roads This was an item produced by the receipt of three-quarters of 'one cent per mile for each freight car which passed upon or over roads of other companies.

'Second. The value of the use of its freight cars on its own road at the same rate.

Third. The amount received from rentals of its real property not used in its business.

Fourth. Interest at the rate of five per cent upon the value of its side tracks.

Fifth. Interest at the rate of five per cent upon the value of its coaches and cars other than freight cars.

Sixth. Interest at the rate of five per cent on the value of its locomotives.

Seventh. Interest at the rate of five per cent upon the value of its depots, docks, sheds and land outside of the main track, not rented but used in its business.

And the residue, after making such deductions, are treated as the net earnings of the main track of the road. This is capitalized at five per cent, and that sum divided by the number of miles in length of such track, and thus is obtained its value per mile. This system of estimate and deduction was based upon the annual average of the five years before mentioned, and is in accordance with the method contended for by the relator to ascertain the value of its main line, but its objection to the computation as made is that the net earnings should be capitalized at six instead of five per cent, and that the interest to produce the several items of reduction should also be at the rate of six instead of five per cent.

The methods and means adopted to ascertain the value by which the assessments were reduced are challenged by the defendants-The same rule applies to this as to other property, and the assessors were required to assess the property “ at its full and true value, as they would appraise the same m payment of a just debt due from a solvent debtor. (1 R. S., 393, § 17, as amended by Laws of 1851, chap. 176.)

There evidently is difficulty in reaching a correct conclusion of the value of such property as that in question, and it may be equally difficult to demonstrate in many cases that assessments made of property of that character are or are not proper estimate of its value. The assessors have access to the annual -reports of the companies, and aided by them and such other information as is accessible, they make their assessments, and, as appears in these cases, they do not in the several towns correspond.

The estimate of value of any portion of the road cannot be intelligently made without some knowledge or information of it as a whole, and its business, earnings and ordinary expenses. Railroads-are constructed with a view mainly to revenue and profit upon investments. And hence the productive capacity and its earnings are matters for consideration in the estimate of their value. And the extent to which actual net earnings of a road should govern or aid such estimate is dependent upon circumstances. No arbitrary method can be prescribed of ascertaining value. In some cases the earnings of a road may be entitled to much more consideration than in others. The cost of the road is also usually to be taken into account, and the value depends much upon relations present, and in reasonable contemplation, because the value of property may considerably be dependent upon defined unappropriated means and facilities for increased business connections and relations and the-importance of the consequences to follow.

"While these are in some degree speculative, they may upon the best judgment of men affect the value of property. A road with no present net earnings may have a substantial value beyond that of the land it occupies, and the timber and iron on its bed. The value of the portions of the road in the respective towns must necessarily be estimated as part of the whole of which they are essential parts. And the average net eai’nings of the entire line of a railroad for a number of consecutive years may properly be shown to .aid the estimation of the value of the several portions of it. And when the value of its main line is in questiqn, the net earnings creditable to that alone can very properly be considered. As the accounts of those earnings may not and usually are not kept separate from those ■derived from other sources, the necessary deductions may be required to represent such result.

This question arose in People ex rel. Ogdensburg, etc., Railroad Company v. Pond (13 Abb. N. C., 1), and received consideration of the Special and General Terms. The method of making the proofs as adopted in these cases on the question of value of the section of the main line of a railroad was held competent. And the Court of Appeals held that the evidence was sufficient to authorize the court below to exercise its discretionary power and dismissed the appeal. (92 N. Y., 643.) And a like question was again considered in People ex rel. Wallkill Valley Railroad Company v. Keator (67 How., 277; affirmed, 36 Hun, 593); People ex rel. Albany and Greenbush Bridge Company v. Weaver (67 How., 477; affirmed, 34 Hun, 322); People ex rel. Delaware and Hudson Canal Company v. Roosa (2 How. [N. S.], 454).

In treating the earning capacity of this road as the proper basis of estimation of its value, and its average net annual earnings during the previous five years as the evidence of such earning capacity, we cannot say that the Special Term adopted an erroneous principle ■of estimate as applied to these proceedings.

There is no evidence establishing the existence of undeveloped facilities upon which to found, or which necessarily requires an estimate of present value in addition to that produced by the net earnings. And there is no evidence of mismanagement tending to show that the earnings fail to represent the reasonably productive character of the road, nor does it appear by the evidence that the results of the five years do not fairly indicate its present financial importance. These and all other considerations derivable from the ■evidence, it may be assumed, were taken into account and properly weighed by the trial court and led to the theory and method there adopted. The degree of evidence was a matter for the judgment of the trial court, and if it had determined that the proof, on the part of the relator, was insufiieient to establish the facts requisite to cause any deduction, we might not have felt justified in disturbing the conclusion, but the evidence was such as to present, for the consideration of the court, the question of fact there determined.

Not only the theory and method, but the computations of the court and their results are criticised by a very thorough and skillful argument of the counsel for the defendants. The length of the relator’s road, including its branches and leased lines, is 417-3^ miles, of which that of the leased lines is 36miles, and that of its other branches 96^¶- miles. To ascertain the value per mile the court divided the sum of the capitalized average of net earnings per annum for the five years by 380.5, the whole number of miles of road less the leased lines. The rent paid for those leased lines evidently exceeds largely their net earnings. The view of the trial court was that the net earni ngs of the two leased branches should be credited to the other portions of the road, and the reduced divisor be adopted to ascertain their value per mile. This is one of the objections taken by the relator to the action of the court, and it is insisted that divisor should have been 417; but we think this view of the court was justified by the circumstances, and that the percentage of five, instead of six per cent, as before mentioned, was a proper exercise of judgment.

The defendant’s counsel contends that the line of road, of which tlie portion in question is a part, should be distinguished from the other branches, on the assumption that the main line is more productive and, therefore, more valuable than they are. There is no means furnished by the evidence to make such distinction. While it must be true that more traffic passes over the main line than there does over the branches respectively, their importance as feeders and contributors to its business does not seem to necessarily require, if it permits, the discrimination suggested, for the purposes of the assessments in question, so far as appears by any evidence. They are owned by the relator, and constitute apparently necessary parts of its road.

We have carefully examined and considered all the evidence and the arguments of counsel, and deem it unnecessary to refer in detail to the. many points of criticism on the merits. And while it may be somewhat difficult to clearly demonstrate that the Special Term was entirely correct in the conclusion reached, we fail to find that the result was reached by any violation of law or without the support of evidence, and, therefore, adopt such conclusion on the merits. (People ex rel. R. R. Co. v. Keator, 36 Hun, 592.)

The qnestion whether the other lands in the town were assessed on the same roll proportionately less than that of the relator was a question of fact arising out of a conflict of evidence, upon which it is deemed to have been properly disposed of by the decision of the trial court. The issues seem to have been presented by the petitions and returns, whether'the relator properly presented proofs before the assessors on the third Tuesday' of August and sought a review and reduction of the assessments. It is now urged that such application and proofs is a necessary prerequisite to a proceeding to review by certi-orari. And in support of that contention is cited People ex rel. Mutual Union Telegraph Company v. Commissioners (99 N. Y., 254).

We deem it unnecessary to, and do not, determine that question because it does not appear by the l’ecord that it was raised at Special Term. While it might properly be considered in support of a decision of the trial court, it is otherwise, when for the first time it is sought to be raised on review for predication of error. There is no support for the contention op behalf of the town of Webster that the court had no jurisdiction to grant the writ. It was granted on the tenth of September upon a petition of date September third. The time ivithin which application might be made for it was fifteen days after the assessment-roll was completed «jad delivered and notice thereof given by the assessors. (Laws of 1880, chap. 269, § 2.) The statute requires that the roll be completed and delivered to the town clerk o,n or before the first of September, and that public notice thereof be forthwith given, etc. (Id., § 9.) There is no evidence other than the allegation in the return to the writ of the time of completion of the roll. It is there alleged that- it was completed on the twenty-first of August and delivered to the supervisor, but it is not alleged when it was delivered to the town clerk, or when notice was given, or that either was done. Nor was any such question raised at Special Term.

The orders should be affirmed.

Smith, P. J., B a reuse and Haight, JJ., concurred.

Order in each case affirmed, without costs.