author: Learned, P. J. Mayham, J.

text:
    William H. Townsend, App’lt, v. Winslow M. Bell et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Watercourse—Pollution—Defense.
    A plush factory discharged into a stream colors which polluted a stream which ran by premises of „the plaintiff. These were of little value, unoccupied, and they were not cultivated. The stream was somewhat polluted before it reached the plush factory. Held, that the plaintiff was entitled to receive the water in its natural state, and that it was no defense to the owners of the plush factory that others polluted the stream.
    2. Same—Injunction—Actual damages—Prior occupancy.
    An injunction was the proper remedy, and the fact that the plaintiff did not show actual damages was not material; nor the fact that the factory was in operation when the plaintiff bought.
    3. Same—Motive of purchaser.
    The fact that plaintiff may have bought the land in order to compel the defendants to rent it of him was not a defense.
    (Mayham, J., dissents.)
    Appeal from judgment dismissing the complaint
    This action was prosecuted by the appellant against the respondents to procure a perpetual injunction restraining the defendants from polluting a stream of water which passes over the defendants’ land and is used by them in passing at the factory in the process of manufacturing plush, and is thereby at times colored by the dyes used by the defendants in coloring their goods, and in that colored condition the water of such stream flows over and across the lands of the plaintiff, which are situate below the factory of the defendants on the same. The stream of water in ■controversy is formed by the junction of two small streams above the defendant’s factory supplying a small dam or pond used by the defendants in running their factory. The plaintiff’s premises across which this stream flows after leaving the factory of the defendants consists of a narrow strip of uncultivated land, lying between the defendants’ premises and the Hudson River Railroad which was purchased by the plaintiff long after the defendants had used this for manufacturing purposes, and had discharged into it refuse dyes in the same manner as that of which the plaintiff complains.
    The plaintiff purchased these premises at auction, paying therefor the sum of $2,210, but the trial court found that its present value did not exceed $100. The trial court dismissed the plaintiff’s complaint, with costs.

      George K Reynolds (J. Newton Fiero, of counsel) for app’lt; Jjinson & Van Burén (John J. Linson, of counsel), for resp’ts.
   Learned, P. J.

The plaintiff is the owner of a lot at Milton ■on a stream emptying into the Hudson river. The defendants own and occupy land upon the stream just above the plaintiff, having a mill for the manufacture of plush. In ‘hat manufacture different colors are used, and from time to time water is discharged into the stream colored by the dyes used in the manufacture. The tubs in which the color-s are used for dyeing'áre run off into the brook. There are eleven or twelve tubs. The cause of the daily discoloration is mostly the rinsing of the goods after they have been dyed. This occurs twice a day. The effect of this is-to greatly discolor the water as it runs past, plaintiff’s premises. Different colors, pink, red and green appear. The color of the water is seen upon ducks which go into the stream. Bottles of the water taken from the stream belowffhe defendant’s manufactory were produced on the argument of the appeal, showing much discoloration and flocculent matter,, which subsided into a sediment when the bottles were allowed to stand still. If the bottles presented on the argument contained fair samples of the water (and the testimony shows how the samples were taken), no one would be willing to use the water for any domestic or culinary purpose. The fact of such discoloration is hardly disputed, and is found by the court.

The court found that the plaintiff’s property is barren and unproductive ; that he paid therefor $2,210, and that it is worth not over $100 ; that the discharge of this colored water is necessary to-the convenient and successful use of the factory; that the plaintiff does not put the stream to any use, and is not likely to be injuriously affected by this use of defendants; that their use is reasonable and does not harm plaintiff.

Something is said on defendants’ behalf to the effect that the-stream is also polluted from other causes. It appears that two streams unite above plaintiff’s property. One from the south-west is pure and clear. The other from the north-west is said to be made impure by cesspools and the like of the village of Milton. The defendants, therefore, carried the water of this latter stream around the pond and discharged it below their factory; for they found that pure water was needed for their manufactory. But it is not a defense to defendants that others also pollute the stream. Chipman v. Palmer, 77 N. Y., 56.

It seems to us that, in the defendants’ argument, they have not. observed the distinction between the use of the water of a stream and the extent of such use permissible to all riparian owners, and the defiling or polluting the water so as to make it foul where it passes through land of riparian owners below.

It is undoubtedly true that the riparian owner has a right to a reasonable use of the water, although this may cause some injury to the owner below. Bor instance, using a stream for domestic; purposes or for watering cattle is permissible, although this may diminish the amount received by other riparian owners. So too-the use for propelling machinery is permissible although this also-may diminish the amount which flows beyond. Bullard v. Sar. Co., 77 N. Y., 525. These uses are all reasonable as to the quantity of water which will probably be detained. So in Prentice v. Geiger, 9 Hun, 350; affirmed 74 N. Y., 341, an action was brought to-recover damages because the plaintiff averred the saw dust from. defendant’s mill filled up plaintiff's mill pond. The plaintiff had :a verdict. Some question arose as to a presumptive right to throw .sawdust into the stream. The jury found that defendants’ use was unreasonable; and this was sustained on appeal. It will be .seen that the injury complained of was not the pollution of the water by foul substances, but the filling of plaintiff’s pond. So that the remarks of the courts have little reference to a case like the present, where actual pollution is charged. The use of water •to drive machinery is a very different thing from the discharge of polluted water into a stream. The owner who only uses the stream 'to drive his machinery or water his cattle, lets the water go on to :the next riparian owner in the same healthful conditition in which it was received. But he who pollutes it with foul matter deprives the next owner of his right.

But it may be said that the watering of cattle in a stream tends 'to pollute it and even that the flow of water through a mill-wheel might have that effect. But these are trivial and incidental matters. They are practically of no moment and are only indirect ■■effects of a proper use of the stream. Still more, perhaps, the washing of sheep in a stream might pollute it. But that is only an 'occasional occurrence, necessary and proper in agriculture and •temporary in its effect upon the water. It is entirely unlike the acts of the defendants.

The question then is whether a riparian owner may lawfully ■discharge, day after day, foul and discolored water so great in 'quantity that it pollutes the stream as it passes through the land -of the owner below. We think not. Such owner is entitled to have the stream in its natural purity. Chipman v. Palmer, ut supra, was a case of the pollution of a stream. See Duke of Buccleuch v. Cowan, 5 Macph, 214. The doctrine is asserted in Crossley & Sons v. Lightowler, L. R., 3 Eq., 279, where it was even held that a riparian owner, having a right (i. e. by prescription) to dis■charge foul water into the stream, if he sells land on the bank cannot continue to pour refuse into the water in front of the land sold, even though the water be not in actual use by the purchaser.

To the same effect is Pennington v. Brinsop Hall Coal Co., L. R., 5 Ch. Div., 769. The plaintiffclaimed the right to enjoy the stream in its purity. The defendants pumped water into it containing deleterious matters. But they claimed that if they were restrained they would have to close their calling at a loss of £190,-'000, while the injury to plaintiff was not more than £100 a year. Yet the injunction was granted. It seems to us clear on principle and on precedent that a riparian owner has a right to restrain the systematic pollution of the stream by one who is above him.

Injunction is the common remedy against a nuisance. The reason is that otherwise there would be frequent actions for ■damages; and further that the remedy by common law action is •not adequate. It would be utterly inadequate in a case like the present. And it always must be where the nuisance has been and will in the future be continuous.

But it is urged by defendants that no actual damages to plaintiff are shown. The cases hold that this is not necessary to support an injunction in such instances. The plaintiff’s right is interfered with. Unless stopped, the interference may grow into a right by prescription. Bickett v. Morris, L. R., 1 Scotch App., 47; Crossley & Sons v. Lightowler, ut supra; Pennington v. Brinsop Hall Coal Co., ut supra; Clinton v. Myers, 46 N. Y., 520; Crooker v. Bragg, 10 Wend., 260. The same is held in Harrop v. Hirst, L. R., 4 Ex., 43, in an action brought by one of the public against a riparian owner who interfered with the supply of water. To a similar effect is Busch v. N. Y., L. & W. R. R. Co., 34 St. Rep., 7; Smith v. Rochester, 38 Hun, 612, where numerous authorities-are cited; affirmed 104 N. Y., 674; 7 St. Rep., 867 Webb v. Portland Man. Co., 3 Sum., 189. And, as somewhat similar, Allaire v. Whitney, 1 Hill., 484.

Again it is said by defendants that great damages would be-caused to them by this injunction. But they have no right to interfere with plaintiff’s right in order to make money for themselves. A similar claim had no effect in the Pennington case,, above cited.

It is urged that plaintiff bought the land when defendants’ mill was already in operation. That is immaterial. Defendants could not prevent the vendor from selling his land with all its rights by insisting that every purchaser knew of the existing nuisance. It-matters not whether the injured party comes to the nuisance or the nuisance comes to him.

Further, it is alleged that plaintiff’s motive in purchasing the land was bad. That is immaterial. “ Courts have no power to deny to a party his legal right, because they disapprove of lnsmotive for insisting upon it.’’ Clinton v. Myers, ut supra. The-plaintiff had a right to buy the land, whatever his motives were. When he became the owner he took all the rights of an owner.. One of these was to have the water of the stream unpolluted. Whether or not he uses the land now is immaterial. If he should desire to make any use of the stream requiring (as defendants’ use does) pure water, he could not safely make any expenditure until1 he should have stopped this pollution. If he cannot prevent it he will be unable to use the stream for any purpose requiring-pure water. Therefore, it is not necessary for him to show actual damage or actual use of the stream.

The complaint asks for damages as well as for an injunction. We cannot determine the amount of damages.

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

Kellogg, J., concurs.

Mayham, J.

(dissenting.)—The learned trial judge found that in operating factory the defendants occasionally discharged into this stream colored water from their rinsing vats, whereby the water became colored, and in that condition flowed through the lands of the plaintiff.

That such discharge is necessary to the convenient and successful operation of such factory and’ that the defendants are greatly benefited by such use of the stream.

That this stream is not put to any use by the plaintiff and the value of his lands are not materially affected, and the plaintiff has not been, and is not now, and is not likely to be, in any way injuriously affected by such use of the water of this stream by the defendants, and that such use of the stream by the defendants was, under the circumstances of this case, reasonable, .and in no way harms the plaintiff.

The plaintiff excepted to each finding of fact of the learned judge, separately, on the ground that there is no evidence to support it; also to certain refusals to find as requested by the plaintiff, and to his conclusions of law.

Whether or not the plaintiff had a right by this action to perpetually enjoin the defendants from the use of this water in the manner indicated seems to depend upon the question whether such use was, under the circumstances, a reasonable use of this stream by the defendants. This reasonable use must not impair the just right of other riparian owners, who are also entitled in like manner to reasonable use of the stream without any unreasonable impairment in quantity or quality. The rule upon this subject which seems to be deducible from the adjudged cases is stated by Angelí on Watercourses as follows: “It is clearly the ■duty' of riparian proprietors upon a watercourse to refrain from erecting upon its.banks any works which render the water unwholesome or offensive.” Angelí on Watercourses, § 136. But the application of this rule does not prevent the owner of land ■over which a stream of' running water flows from the reasonable use of the same for agricultural, domestic, mechanical or manufacturing purposes, even though such use may in some slight degree lessen the quantity or deteriorate the quality of the water which flows from his to his adjoining neighbor’s land:

The exact extent to which the use of a riparian owner may diminish the quantity or impair the quality of water flowing upon the lands of' an owner below is within the authorities difficult to determine, and its determination, it seems to me, must depend upon the circumstances of each particular case; and while a gross and palpable violation of the rights of riparian owners, lower on the stream, would furnish a clear right of action for damages, and perhaps a ground for equitable interference by injunction, still if the rule were carried to the extent that slight diminution of quantity or slight deterioration of quality furnished in all cases a right of action, the ordinary use of running streams would be greatly diminished and the owners of lands through which they flow be deprived of much of their value. In Honsee v. Hammond, 39 Barb., 95, Miller J., in laying down the rule upon this subject uses this language: “ Although they (defendants in that case) had the right to use the water for all legitimate and proper purposes, they were not authorized to injure the owner on the stream below.”

In Merrifield v. Worcester, 110 Mass., 219, it was held that the natural right of a riparian proprietor to have the water of a stream descend to him in a pure state, fit to be used for the various purposes to which he may have occasion to apply it, must yield to the equal rights of those who happen to be above him on the stream. Their use of the stream for mill purposes, for irrigation,, watering cattle and the manifold purposes for which they may lawfully use it will tend to render the water more or less impure, cultivating and fertilizing the lands bordering on the streams, and in which on its sources their occupation by farm houses and other erections will unavoidably cause impurities to be carried into the stream. As lands are subdivided and their occupations and use become multifarious, these causes will be rendered more operative and their effect more perceptible, but so far as that condition results only from the reasonable use of the stream, in accordance with the common right, the lower riparian proprietor has no remedy, and that rule seems substantially to have been adopted in this state. In Bullard v. Saratoga County, 77 N. Y., 525, the court lays down the rule as follows: “ The maxim aqua currit et debet currere ut currere solebat prescribes the general rule in respect to running streams, but it is to be interpreted and applied in connection with another' rule which is well settled, that each riparian owner has a right to a reasonable use of the water. Injury to one-proprietor in consequence of the use of the water of another is-not an invariable test of the right of such use,” and after giving instances illustrating the rule and exceptions, the court adds: The question of reasonable use must frequently arise between mill owners on streams which afford a power available for the propulsion of machinery. The maxim that water should be allowed to flow as it is wont to flow, if strictly construed and applied, would prevent the use of streams for manufacturing purposes. The question of reasonable use is ordinarily a question of fact to-be determined upon a consideration of all the circumstances.”

The learned trial court, who, in the first instance, was charged with the duty of determining this question of fact, has expressly found that the defendants’ use of the stream is, under the circumstances, reasonable and in no way harms the plaintiff. In reaching this conclusion he might properly take into account and give due weight to the fact that the defendants had established their plant and were conducting their business in a manner that made-their use of the stream in this way an apparent necessity at the time of the purchase of the plaintiff’s premises by him, especially when the relief sought by the plaintiff would tend to a complete-destruction of the defendants’ business.

The injury which the plaintiff has, or will sustain by reason of the acts of the defendants complained of in this action, bears no comparison to that which would be inflicted upon the defendants by the granting of a perpetual injunction; and while the law will not. sanction a wrong or protect a wrongdoer in its commission, even though the injury inflicted is slight and the advantage to the wrongdoer is large, Corning v. Nail Factory, 40 N. Y., 204, yet the process of injunction, as said by the learned trial judge, should always be applied with caution, and only when there is established a clear right to such relief, and the apparent danger is imminent. Equity employs the process of injunction to prevent an irreparable injury only. Drake v. R. R. Co., 7 Barb., 508; McLaury v. Hart, 121 N. Y., 636; 31 St. Rep., 939; Morgan v. City of Binghamton, 102 N. Y., 500; 2 St. Rep., 449. In Purdy v. Manhattan Elevated R. R., 36 St. Rep., 43, it was held that, in order to give the plaintiff a right to injunctive relief, it- is necessary to establish a substantial injury and not merely a technical wrong calling for nominal damages, and this whether the injury be single or continuous, and whether it be the subject of only one or of successive actions.

In McLaury v. Hart, supra, Finch J., says: “Equity wields the powerful process of injunction to prevent irreparable injury.” In the case at bar the court has found that the plaintiff is in no way harmed by the defendants’ use of this water.

Whether this court as an original question would have reached the same conclusion is unnecessary to inquire here. It is quite manifest that the plaintiff has suffered no irreparable injury, nor does it appear from the evidence that any such injury is imminent. But it is urged by the plaintiff that if the injunction is not granted restraining the defendants from this use of the water of this stream, there is danger of the continued use in this manner ripening into a prescriptive right in favor of the defendants. If this were so, we do not think that a sufficient reason for granting an injunction under the circumstances of this case. If the plaintiff’s legal rights are invaded, their assertion and establishment in an action at law would effectually prevent the attaching of a prescriptive right to this use of the water, and protect the plaintiff from any such apprehended consequence.

I am, for the reasons stated, led to conclude that the plaintiff’s complaint was properly dismissed.

Judgment reversed and new trial granted, costs to abide event


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    Emma Jones, Resp’t, v. The City of Albany, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Municipal corporations—Albany—Construction op charter—Claims por INJURIES.
    The charter of the city of Albany provides that claims for injuries from defects in highways must first be presented to the common council within three months or be barred; that its law department shall report on the claim within three months, and that the city may settle the claim. It also provides that no suit thereon shall be brought until the common council shall have had reasonable time to p iss upon the claim. Held, that it was the intention that the law department and common council should have three months to consider it, and that in the absence of proof of a lack of diligence upon their part a suit brought within three months from the time when the claim was referred for consideration was premature.
    Appeal from judgment in favor of plaintiff, entered upon a verdict for $3,500.

      Herrick & Delahanty (L>. Cady Herrick, of counsel), for app’lt; Henry T. Sanford (Hugh Beilly, of counsel), for resp’t.
   Kellogg, J.

The plaintiff brings her action for damages for personal injuries sustained through the negligence of defendant. The negligence alleged is the failure to repair a defective sidewalk within the city limits.

The questions of negligence and damages were submitted to-the jury, and a verdict was rendered in favor of plaintiff for $3,500.

At the opening of plaintiff’s case the defendant moved to dis • miss the complaint generally, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and specifically upon the ground that it did not allege a compliance-with certain provisions of the city charter touching the presentation of plaintiff’s claim to the common council, and lapse of statutory or reasonable time for its consideration before action brought; also a failure to allege notice to or knowledge in defendant of the defect in the sidewalk.

The motion to dismiss was denied.

Defendant moved for a nonsuit at the close of plaintiff’s case, again bringing up the questions as to compliance with the provisions of the city charter stated.

At the close of the case the defendant renewed the motion for non-suit on the same grounds, and the motion was again denied.

The questions involved in this appeal are the questions raised by these motions.

The charter of the city of Albany provides :

All claims against the city for damages or injuries to the-person, claimed to have been caused or sustained by defects, want of repair or obstructions from snow or ice or other cause in the highways, streets, sidewalks or crosswalks of the city, or caused by the negligence of the city as to the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council in writing, within three months after said injury is-received. Such writing shall describe the time, place, cause and extent of the injury so far as then practicable, verified by the oath of the claimant. The omission to present such claim, as aforesaid, within three months, shall be a bar to any claim or action therefor against the city ; and the law department shall consider said claim and report thereon to the common council within three months from the date of the reference of such claim, but no such claim shall be settled or paid except as prescribed in § 10, of title 5, of this act.”

Section 10, of title 5, above referred to, in substance provides that the corporation counsel may, with the approval of the “mayor and board of finance,” compromise ana settle claims against the city.

Another section provides: “ No action or suit shall be brought or maintained until the claim shall have been presented and a reasonable time shall have elapsed within which such claim might have been passed upon by the common council or chamberlain, as herein provided for.”

We are of opinion that the restrictive clause is applicable to claims for personal injuries as well as to other claims presented against the city. If it were not so there seems to be nothing to prevent suit on such claims immediately upon the happening of the injury and before any claim is presented to the common council. The provision that such claim shall be presented with due particularity as to “ time, place, cause and extent of injury,” within three months, or action thereon shall be barred, might be complied with as well after suit brought as before. Indeed, the service of a verified complaint, containing the particulars required, upon the common council, might well be determined to be a substantial compliance with this provision.

To give any utility or beneficial effect to these provisions of the charter a construction must be given to bear out the plain purpose of the enactment.

We are of opinion that these provisions clearly contemplate an-opportunity on the part of the city to investigate the merits of the claim for personal injuries before any action can be brought, and opportunity to negotiate a compromise or settlement to save-cost and expenses to the taxpayers. That the first step must be taken by the claimant, and within three months of the date of the-injury received the claimant must present to the common council in writing a verified statement setting forth the time, place, cause and extent of the injury. The common council must then refer such claim for investigation to the law department, and the law department must within three months thereafter investigate and. report back to the common council for further action the results of their inquiry. The common council is held in suspense, so far as relates to the claim, until such report is made, and the right to-bring action in the courts is also held in abeyance until such report can with reasonable diligence be made, but not beyond the-three months given by statute to the law department for investigation. Any other construction it seems to us would defeat the-manifest object of the provisions, viz.: opportunity to investigate and opportunity to compromise or settle.

It seems to us it can rarely, if ever, be determined as a matter of law, and certainly not upon the evidence in. this case, that the full three months given to the law department by the statute was more time than was needed, and was not “a reasonable time.” Unless there is some allegation in the complaint of lack of diligence on the part of the law department, and some proof to sustain such allegation, the legal inference must remain that this department has discharged its full duty if it reports within the time limited by statute.

The claim of the plaintiff was presented by plaintiff to the common council.on January 24th; it was referred to the law department on February 3d. The action was commenced March 18th, and before any report had been made by the law department. And the learned justice at the trial held as a matter of law that this afforded “ reasonable time ” for investigation as contemplated by the provisions of the charter referred to. In this we think the court erred. If it were permissible, which we seriously doubt, to make proof that the law department, which is given three months by statute in which to investigate, was not diligent, and might have made an earlier report upon a claim for so large a sum, still there was in fact no proof offered showing, or tending to show, lack of diligence in the law department or affording any ground. for curtailing the statutory time of three months to less than two months.

For the reason stated, we are of opinion that the motions for nonsuit should have been granted. The conditions to which we have alluded, to wit: the presentation of the claim to the common council, and the opportunity for three months to investigate the merits of the claim and to compromise or settle, are precedent ■conditions to any standing in court, and the performance of these should be in the complaint alleged, excused, or failure charged to defendant’s neglect; and it becomes a part of plaintiff’s duty to establish by proof such allegations. Nothing of this appears either in the plaintiff’s complaint in this action, or in the evidence on the trial; hence the request of plaintiff on this appeal to so amend the complaint to conform to the proof would, if granted, avail her nothing.

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

Learned, P. J., and Mayham, J., concur.


author: Learned, P. J.

text:
    Nancy Trebilcox, Resp’t, v. Ezra McAlpine, Ex’r, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    1. Judgment—Confession—Duress—Foreign judgment.
    A note was executed and delivered in Pennsylvania which under a statute of that state contained a power of attorney authorizing judgment to be confessed at once in favor of the payee. A payee procured such a ■several note from two women by duress and entered judgment against them some years before the note was due. His assignee who took it for an old debt subsequently presented the judgment as a claim in this state against the estate of one of the makers who had moved from Pennsylvania and died in this state. Held, that it was not a legal claim against the estate although a valid judgment in the foreign state. That as there had been no service of process upon the maker she had had no opportunity to present her defense.
    2. Same—Fraud.
    Fraud was a defense which was good against an assignee who had paid no new consideration.
    3. Same—Foreign judgment held void here.
    The court here could declare the foreign judgment void ; and by suing here the holder had submitted the matter to our courts.
    Appeal from order confirming referee’s report, and from the judgment entered thereon.

      Gardenier & Harder (R. R. Harder, of counsel), for app’lt; Newkirk & Chace (A. Frank B. Chace, of counsel), for resp’t
   Learned, P. J.

This is an appeal from a judgment on report of a referee in proceedings to establish a claim against the estate of a decedent

The plaintiff’s claim is based upon what is claimed to be a judgment in the common pleas of Bradford county, Penn., in favor of plaintiff’s assignor, Joseph Trebilcox, against the defendant’s testator, Rebecca Benedict. This judgment was entered December term, 1880, on what is called a judgment note filed September 27, 1880, dated August 31, 1880, and payable five years after-date. The note was signed by Rebecca Benedict and another .and was payable to Joseph Trebilcox. There was no appearance by the deceased in that proceeding and no process was served on her. The judgment was entered as by confession; and as appears above it was entered some five years before the note became, payable.

Upon this trial the plaintiff proved the statute of Pennsylvania, which is claimed to authorize such entry of judgment. He also-proved by the testimony of a counselor of that state that under the law of the state such judgment might be entered at once and before the maturity of the note. The judgment .becomes a lien then, and may be enforced by execution after such maturity. It was also proved that at the time of the execution of the note-Rebecca Benedict was a resident of Pennsylvania, and that the note was executed and delivered in that state.

The case of Teel v. Yost, 40 St. Rep., 110, involved the consideration of a judgment similar to that above described. And the-whole subject of such confessions of judgment is discussed so fully that it is useless to - examine the matter further as to anything there decided. That decision affirmed one reported in 29 St. Rep., 272. And from an examination of the opinion in both courts the decision appears to be that such judgment constitutes-a valid confession of judgment in Pennsylvania and is enforceable here.,

As this was a judgment on the note, the note is merged. Therefore the claim is no longer negotiable; and the transfer gives the-plaintiff here no better rights than Joseph Trebilcox had. Furthermore the transfer to the plaintiff was to pay an old debt and no new consideration passed. Therefore the whole question of the validity of the claim is open, as much as if Joseph Trebilcox were the plaintiff.

The question then arises whether the defendant can attack this-claim on the ground that the note was obtained without consideration and by threats. The principle that a judgment imports, as-the phrase is, absolute verity, or that it is conclusive on all parties-thereto, rests on the fact that all such parties have been heard, or have had an opportunity to be heard. When a defendant has. been duly served wijih process and has defended unsuccessfully, or has failed to defend, or has after such service admitted the plaintiff’s claim, then he is bound. Stilwell v. Carpenter, 59 N.Y., 423. After the party has thus had an opportunity to be heard before a lawful" tribunal, then he must be bound conclusively by the judgment, unless there was a fraud of which he could not have availed himself in the court giving judgment, or a fraud which prevented him from availing himself of his defence. Same case, 2 Abb. N. C., 263; Ward v. Southfield, 102 N. Y., at 292; 1 St. Rep., 689.

But it is manifest that the ground of this sound principle does-not exist in the case of such a judgment as the one in question. The defendant had no opportunity to defend in the court of Pennsylvania. She had no notice of the action. She therefore has not neglected to make her defence when she could do so The-authority which she gave for the entry of the judgment was, given at the time of signing the note and was a part of the note.

If the note was void for want of consideration or for duress, so was the power of attorney contained therein. Yet the defendant has never had, nor has her executor had until this time, an opportunity to allege such fraud or want of consideration.

This may be illustrated by the case of Wilcox v. Howell, 44 N. Y., at 402, where a mortgagor at the time of executing the mortgage gave a certificate that the mortgage was given for a good consideration and for full value. The mortgage being in fact tainted with fraud, the certificate did not estop the party from showing such fraud.

In Dobson v. Pearce, 12 N. Y., 157, one Olney had recovered in this state a judgment against Pierce which had been assigned to the plaintiff. Olney had previously sued this judgment in Connecticut ; whereupon Pierce had brought an action in chancery in Connecticut, alleging that the judgment had been obtained by fraud and he had thereupon obtained a decree declaring the judgment fraudulent and perpetually enjoining the action commenced thereon. Such action was thereupon discontinued. Then Olney assigned to Dobson, who brought this action. The court held that ■“whether fraud or imposition in the recovery of a judgment could heretofore have been alleged against it collaterally at law, it may now be set up as equitable defence to defeat a recovery upon it.” And they held also that the decree in Connecticut was conclusive in, this state on the question of fraud.

Thus it will be seen that the court recognized two principles; first, that in an action on a judgment fraud may now be set up as an equitable defence; second that the court of one state, having jurisdiction of the parties, may adjudge that a judgment in another state is void because recovered by fraud.

Hence it follows that it would have been competent for Rebecca Benedict to bring an action in this state against Joseph Trebilcox to declare the judgment void for fraud. And it also follows that in an action on that judgment the equitable defence of fraud may be set up as a defence.

Now it is true, as above stated, that where a defendant has been duly served with process and a judgment thereupon has been recovered, the kinds of fraud on which such judgment can be attacked are few.

But we have already pointed out that such a limitation" cannot be applicable where a judgment has been entered, as in this case, without either the appearance of the defendant or the service of process on him. If a plaintiff by duress compels a defendant to execute what is called a judgment note, and then enters a judgment thereon without service of process, to say that such a judgment is absolutely binding on the defendant is to sanction a wrong and to deprive the injured party of the opportunity for redress. It is argued that the only remedy of the defendant is to take proceedings in Pennsylvania to vacate the judgment. We have only to refer to the case last cited. That shows that when the plaintiff in a judgment fraudulently obtained in one state comes into another to enforce the same, the courts of the latter state' may redress the fraud according to the system of practice prevailing there; that is, by an injunction action, if law and equity .are kept distinct, or by an equitable defense if the two systems are united.

The plaintiff has come into this state to enforce in these proceedings the. collection of this judgment alleged by defendant to be fraudulent. Under our present practice it is not necessary that the defendant should bring an equitable suit to restrain these proceedings on the judgment. He may show in these proceedings the fraud which he alleges, which neither he nor his testatrix have had an opportunity before of proving in court.

The referee found as a fact that the note was wholly without consideration; and that at the time it was given no demand was m ide upon the makers of any existing indebtedness from them, .and that the makers were not indebted to the payee at all.

Abigail Van Deusen, one of the signers of the note, testified on the trial that Trebileox, the payee, came to her when no one was present but herself, Mrs. Benedict and Trebileox, and told her he would “ roll the balls upon her; that what she bad done was fraud and he would break it all up,” and made other threats. She testified that she and Mrs. Benedict signed the note under fear and in consequence of threats made by him. There is no contradiction of this testimony. The referee, however, refused to find that the note was signed solely through fear and in consequence of these threats; and it seems that he refused to find that these threats were made.

We do not understand this refusal. The testimony of Mrs. Van Deusen was corroborated by evidence showing that Joseph • Trebileox was dissatisfied with a will made by the deceased husband of Mrs. Van Duesen, and brother of the present plaintiff. Mrs. Van Duesen was perhaps a prejudiced witness, as she was a signer of the note. But the undoubted facts that there was no consideration for the note and that the two signers were over seventy years old give force to her testimony. It seems to us that in this refusal to find the referee must have been influenced by the view that the judgment had a controlling effect which we cannot give to it.

We are of opinion that the judgment must be reversed and a new trial granted, referee discharged, costs to abide event.

Mayham and Kellogg, JJ., concur.


text:
    William Collins, Resp’t, v. Elisha W. Hydorn et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Bes adjudicata—Plaintiff suing in two capacities.
    One Wiswall began, as judgment creditor, an action against the defendants to set aside real estate transfers. Wiswall made an assignment to the plaintiff, who continued the action. It was tried, and the plaintiff was beaten. About the same time the plaintiff had commenced, in his own. right as a judgment creditor, this action against the same defendants attacking the same transfers. Held, that his action as assignee of Wiswall was res ad judicata as to his action as an individual; and that he could not, retry the same issues.
    Appeal from judgment setting aside certain transfers of real estate -as fraudulent as to creditors.

      O. B. Hudson (0. M Patterson, of counsel), for app’lts; Smith dr Wellington {0. B. Wellington, of counsel), for resp’t. .
   Learned, P. J.

This is an appeal by two of the defendants; from a judgment on the decision of the special term. The action was brought to set aside certain transfers of real estate as fraudulent and void as against the creditors of Elisha W. Hydorn.

The important question in this case is whether the matter is res-adjudícala in favor of these two defendants.

One George M. Wiswall, on the-day of-, commenced an action against the same defendants for the purpose of setting aside these same conveyances on the same ground, viz.,, that they were fraudulent as to creditors. Pending that action,, the plaintiff Wiswall made an assignment to this present plaintiff". Collins, for the benefit of Wiswall’s creditors. Afterwards that, action came on to be tried before the special term, and was decided by that court in March, 1890. In that action, the court, held as matter of fact that the conveyances from Elisha W. Hydorn were made for. a good, valuable and sufficient consideration, and without any intent to defraud; that they were received by J.. Bartlett Hydorn without any intent to defraud the creditors of" Elisha; that the conveyances of J. Bartlett Hydorn through Gilbert M. Greer- to Hattie M. Hydorn were made for a good, valuable'and sufficient consideration, and without any intent to defraud the creditors of Elisha, and that they were received by her without such intent and without any knowledge of any intent to-defraud on the part of her grantor.

These findings are directly upon the very issues involved in this present case.

That case was appealed to the general term and was there examined, and the judgment was there affirmed November, 1890. 84 St. Rep., 575. It was appealed- to the court of appeals, and. was there affirmed. 36 id., 1015.

This present action was commenced in January, 1887, by plaintiff as a judgment creditor in his own right; the other action about, the same time.

It is claimed by defendants that Collins was not only the assignee of Wiswall, but that as a creditor of Wiswall he was beneficially interested in the action after the assignment to him for the-benefit of creditors. On this point there seems to be no proof.

The defendants make two claims on the subject of res adjudícala. First, that all the creditors of Elisha W. Hydorn are privies-through their debtor to the transaction by which the conveyances were made to the present appellants, and therefore are bound through him by the judgment rendered in the case of Collins,, assignee. Second, that at least Collins, having been an actual party to that judgment, is bound thereby.

On the second point the plaintiff urges that the decision against him in his representative capacity does not bind him in his own .right.

We pass over the first point. In considering the second we .may suppose that Wiswall, instead of making an assignment for the benefit of creditors to Collins, had sold absolutely to Collins the judgment against Hydorn and the pending action.

If Collins then as assignee of Wiswall (though not for the benefit of creditors) had carried through that litigation and had been defeated on the very points now at issue, viz., the fraudulent nature of the transactions, would not that judgment have concluded him in the present action ? It seems to us that it certainly would. As between Collins and these defendants it would have decided the questions of fact. And to permit him to litigate these questions again would be contrary to settled doctrine, and unjust. To show how strong the rule is we need only cite Griffin v. Long Island R. R. Co., 102 N. Y., 449; 2 St. Rep., 454, and-cases mentioned in the opinion.

Of course Collins might have been defeated in the former action on some other ground, as for instance, that Wiswall was not a judgment creditor, or that his debt had been paid. But there is no such escape here. The very questions of fraudulent conveyances in all their particularity were passed upon and the judgment was affirmed in both appellate courts.

How the only question is, can this general and most excellent rule be evaded on the ground that Collins in the one suit was assignee for creditors; in the other was creditor himself? What 'difference does this make? He was under the highest obligation to contest the matter in the other action to the best of his ability. We must presume he did so. If he did not, then certainly he .stands in a very unfavorable light here. Then if he has tried these questions once, and has been unsuccessful, ought he to be .allowed to experiment with some other tribunal, and thus set up one judge against another ? He has had his day in court. The two actions were pending at the same time. It would seem that both might have been tried when one was. The same plaintiff controlled both.

When Wiswall assigned to Collins, and Collins was substituted, it was not necessary that he should add the word “ assignee ” to his name. And if he did so, that did not make the litigation any the less his own.

In Bates v. Stanton, 1 Duer, 87, the court, speaking of the rule which makes a prior judgment conclusive, says that “ the term parties is not restricted to those who are parties upon the record. Is includes all who have a direct interest in the subject matter of the suit; a right to make a defense or control the proceedings.” Applying that language to this case, we see that Collins was not •only a party upon the record of the former judgment, but that he had a right to control the proceedings therein.

Of course it is easy to suggest a case in which the former adjudication might have depended solely upon the' representative character of the party, and in which, therefore, there could be no decision as to a right or a liability in a character not representative. Such is Hall v. Richardson, 22 Hun, 444. But nothing of that kind exists here. This plaintiff was not defeated in the former action for any defect in his right to bring the action. He was defeated because facts were decided which would defeat the present action. Therefore the controversy is res adjudicata.

Some cases are cited which are supposed to hold a contrary view. Jackson v. Mills, 13 Johns., 463. The question of resadjudicata did not arise in that case. ¡Nor did it arise in Sinclair v. Jackson, 8 Cow., 565; nor in Jackson v. Hoffman, 9 id., 271. The question was not involved in Rathbone v. Hooney, 58 N. Y., 463. The court held that the plaintiff’s title was consistent with the foreclosure suit; and that the “ validity of the-mortgage as a mortgage of the trust estate was not, and could not. have been, adjudged in the foreclosure suit.” If this is so, then there was no res adjudicata. It is true that the court afterwards makes an obiter remark at page 467 that a judgment against a party sued as an individual is not an estoppel in a subsequent action in which he sues or is sued in another capacity or character, citing the cases just above mentioned, none of which have any reference to the question of res adjudicata.

How different the facts of that case are from those of the present will appear on examination. The court say: “The plaintiff, was entitled to the judgment rendered (that is the judgment in the foreclosure suit), wholly irrespective of that question.” That is, the validity of the Brown mortgage as a charge on the trust, estate. ¡N"ow could it be said in this case that the defendants in the former action were entitled to the judgment rendered irrespective of the question of fraud in their conveyances, the question now in dispute? Clearly not. They obtained their judgment by establishing against this plaintiff that the conveyances, were not fraudulent. He ought not to try the facts again.

The remark of the court above cited may sometimes be true.. At any rate it does not apply to the present case. It is probably true where the second litigation involves rights or liabilities growing out of the new capacity. For instance, if A. sued on a note and was defeated on the ground that it did not belong to him, he probably might afterwards sue as A., executor, etc., and prove; that it belonged to him as executor.

But the question here is whether one who has sued simply asassignee and. has been defeated, for the reasons stated in this case, can sue again in his own name and can harrass the defendants by compelling them again to defend their conveyances. We think not.

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

Mayham and Kellogg, JJ., concur.


author: Mayham, J.

text:
    The People ex rel. The New York Central & Hudson River R. R. Co., Resp’t, v. Samuel Cook, Assessor, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Taxes—Certiorari to review assessment—Power to amend.
    In a special proceeding brought to review the action of assessors, a writ of certiorari was granted which was made returnable at a county clerk's office instead of at special term. Held, that the court had power to amend it and that § 10 of title 5 of chapter 7 of part 3, R. S , giving the court power to amend a special proceeding, was not repealed by the Code of Civil Procedure, chap. 8, title 1.
    Appeals from two orders, one in favor of the relator ordering an order, granting a writ of certiorari and the writ issued thereunder amended nunc pro tune, and that the return to said writ already made stand and be deemed the return therein. Also an order made at the same time denying the defendant’s motion to quash such writ.

      Henry A. King, for app’lts ; E. A. Parmenter, for resp’t
   Mayham, J.

The relator applied at the August special term, 1891 for an order allowing a writ of certiorari to issue to review the assessment made by the respondents as assessors of the village of Bath upon the relator’s railroad, the double track of which runs through that village and in which depot buildings are located. On such application an order was granted and a writ of certiorari was issued pursuant thereto. That writ was made returnable at the Eensselaer county clerk’s office, and not at a special term of this court, as required by chap. 269 of the Laws of 1880.

The respondents appeared specially and in their answer first objected to the validity of the writ on the ground that the same was not returnable at special term, as required by statute. The respondents who thus appeared then answered to the merits of the writ. The relator thereupon moved to amend the writ nunc pro tune, which motion was granted. The respondents at the same time moved to quash the writ on the ground that it was not made returnable at a special term of the court, and was therefore unauthorized and void, which motion was denied; from both of which orders the defendants appeal.

The principal and perhaps the only important question presented on these appeals is, whether the writ and order allowing the same are amendable. At the time the defendant raised the question of the regularity of this writ by the answer the time limited by chapter 269 of the Laws of 1880 for bringing a certiorari had expired, and the relator’s opportunity to review this assessment was lost, unless the court could relieve by the allowance of an amendment. That fact furnishes a good reason for the exercise of the discretion of the court in granting the amendment if the power to do so existed in the court On the part of the relator it is insisted that that power existed in and was properly exercised by the court. That the court acquired jurisdiction of the parties and subject-matter by the petition, and that any subsequent error in the exercise of its power did not divest it of the ¡jurisdiction thus acquired. If this mistake had occurred in the prosecution of an action instead of a special proceeding, there would be little doubt of the power of the court to order a correction nunc pro tune under the provisions of § 723 of the Code of Civil Procedure. In Kibbe v. Wetmore, 31 Hun, 424, the court ordered an attachment which had been issued on the ground of the defendant’s non-residence to be amended, inserting therein as grounds for its issuance the fraudulent acts of defendant in disposing of his property. In Gaylord v. The Board of Supervisors of Schoharie Co., 40 St. Rep., 66, this court allowed an order to be entered nunc pro tune on appeal when no order had been made and entered at special term on the allowance of an alternative mandamus. In Tobin v. Cary, 34 Hun, 431, the court directed the guardian ad litem to acknowledge his consent to serve as required by § 472 of the Code of Civil Procedure, and file the same with the judgment roll, and directed the clerk to file and attach the same to the judgment roll with the same force and effect as if it had been filed with the judgment roll.

In Murphy v. Hall, 38 Hun, 528, on a motion to vacate an order for the publication of a summons and vacate an attachment issued in the action on the ground that the affidavit appeared to have been sworn to in the city of New York before a notary pulic of the county of Albany, the court held that it was evidently a clerical error which did not prejudice the defendant nor affect a substantial right, and that an amendment should be allowed under § 723 of the Code of Civil Procedure. In Bohlen v. Elevated R. R., 121 N. Y., 546; 31 St. Rep., 888, the court allowed an amendmnt of an ambiguity in the findings of the trial court which was plainly the result of inadvertence, and held that the power to grant such amendment was not limited to the term in which the judgment was rendered.

The appellant cites a line of authorities holding that in special statutory proceedings the statutory direction must be substantially complied with or the proceedings will not be effectual. That rule is sound and cannot be questioned.

But I have found no case holding that where, by the preliminary steps taken, the court had acquired jurisdiction, it cannot aménd any technical defect or error in the proceedings, where the proceedings taken by the parties fail to comply with the provisions of the statute, so as to make them conformable to such provisions, when substantial justice will be promoted thereby, if such amendment is applied for before final judgment or order upon the merits.

By § 10 of title 5, chapter 7, part 3 of the Revised Statutes the power of the court to amend proceedings pending in it is extended to and embraces special proceedings. While the provisions of title 1 of chapter '8 of the Code of Civil Procedure relating to amendments seem to relate chiefly to actions, and special proceedings are not expressly referred to except in § 728 of that title, yet the provisions of the Revised Statutes above referred to do not seem to be either in express terms or by implication repealed by that title. In People ex rel Herkimer & Mohawk R. R. Co. v. The Assessors of Herkimer, 6 Civil Pro., 287, a writ of certiorari issued under chapter 269, Laws of 1880, was held at special term to be amendable.

While the question is not free from doubt, we are of the opinion that the special term had power to order the amendment in this case, and if the power existed it was a proper case for its exercise, and that the order granting the amendment should be affirmed.

That being so, it follows as a necessary consequence that the motion to quash the certiorari was properly denied. Both orders are affirmed. But as these appeals arose out of a mistake on the part of the relator, we think no costs should be allowed on this appeal. Section 6 of chap. 269, Laws of 1880, protects the appoint- from liability of costs on this appeal.

Learned, P. J., and Putnam, J., concur.


author: Peckham, J.

text:
    Nathan Bohm et al., Resp’ts, v. The Metropolitan Elevated R. Co. et al., App’lts. Peter Somers, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Railroad—Elevated—Damages.
    Although the cause of action against an elevated railroad arises theoretically out of the partial appropriation of easements of light, air and access, yet the value of the portion of the easements so taken can he measured only by the injury to the land to which they are appurtenant.
    2. Same.
    If plaintiffs’ property has increased in value since the invasion of the easements, and if such increase is largely due to the building and operation of defendants’ road, and would not have been greater but for the action of the defendants, the plaintiffs have suffered no damage.
    3. Same.
    Plaintiffs are not damaged because their neighbors on the same avenue, or in the side streets, are benefited to an even greater extent than they are by the defendants’ road.
    Appeal from judgments of the general term of the superior court of the city of New York, entered upon orders which affirmed, judgments of the special term of that court in favor of plaintiffs.
    These two cases were argued together as involving only the same questions. The plaintiffs in the actions brought suit to recover damages which they alleged they had sustained by reason of the operation of the railway of defendants through Second avenue in the city of New York. The plaintiff Somers was the owner by conveyance to him in March, 1882, of certain premises known as Nos. 2271 and 2278 on Second avenue in that city, and between One Hundred and Sixteenth and One Hundred and Seventeenth streets. He alleged that the defendants had unlawfully interfered with, trespassed upon and illegally taken his easements (or some portion thereof) of light, air and access to his property by the illegal erection and operation of their elevated railroad in such, avenue. He demanded judgment restraining defendants from further maintaining their structure in front of his premises, and compelling them to remove the same. He also asked to recover the amount of his damage already sustained by reason of the maintenance and operation of the road past his premises, and that if defendants were permitted to maintain and operate the road in the future it should only be upon the condition that they should pay plaintiff the amount of the permanent loss he would suffer by reason of such maintenance and operation.
    The plaintiff Bohm made substantially the same allegations in relation to his property, which was also situated in Second avenue and a short distance from plaintiff Somers.
    The defendants answered and particularly put in issue the allegations in the complaint in each case as to the damages resulting from the acts of defendants.
    Both actions were tried at a special term of the court without a jury, and the court, among other matters, found the following facts. They are in substance the same in each case.
    In the Somers case: The defendants were duly incorporated, and before they proceeded to construct their railroad through Second avenue they obtained the authority of the legislature and the consent of the municipal authorities of the city of Hew York to do so, but such authorization did not entitle them to take the property of plaintiff without compensation. In 1883, and prior to April 1st, the plaintiff erected on his lots two large and valuable brick buildings, and to them and to the lots on which they rested were attached as appurtenant thez’eto certain easemezits of light, air and access from Second avenue. Since April 1, 1883, the elevated railway structure of defendants has gz-eatly cut off the light, air and access which otherwise would have come to plaintiff’s premises from that avenue. By the acts ’ of defendants in depriving the plaintiff in part of the beneficial use and enjoyment of his easements above mentioned, from Apz'il, 1883, to the time of trial, April 1,1890, the rental value of plaintiff’s premises has been reduced $2,100, and the plaintiff has sustained a loss thereby to that amount. The damage is of a continuous character, arising from the maintenance and operation of the road by defendants. The road was opened for public use in March, 1880, and has been ever since so maintained and operated. The permanent damage caused by the operation and maintenance of defendants’ road was' found to be $3,000, upon payment of which no injunction was to issue. The money was only to be paid in case the plaintiff conveyed to the defendants all the rights and easements appurtenant to his lots which had been taken by them.
    In the Bohm case the same general facts were found, differing only as to the different lots and as to the amount of damages. Judgments upon the decisions of the judge were duly entered, azzd the defendants appealed thez-efrom to the general term, where the judgments wbre affirmed, and from the judgments of affirmance the defendants have appealed to this court.

      John F. Dillon and Julien T. Davies, for app’lts; Charles Gibson Bennett, for resp’ts.

       Reversing 38 St. Rep., 1025.

   Peckham, J.

The defendants seek upon these appeals to obtain from this court some decisive statement as to the rule which should obtain in actions like these, in arriving at the amount of damages which should be paid by defendants to abutting lot owners on account of the building and maintenance of defendants’ roads in the city of New York. To that end they have waived every other exception in the cases.

There are, it is said, large numbers of cases in which the decision of the question is of the greatest importance to both parties.

The defendants claim that if the correct rule for the ascertainment of damages had been followed in these cases, the uncontradicted evidence showed that plaintiffs had not sustained any damage whatever. At the outset the plaintiffs’ counsel sets up a bar to our entering upon an examination of the subject by alleging that the question is not raised and that there is no exception which brings the matter before us.

In the Somers case the defendants requested the court to find as follows:

Twentieth. The existence and operation of the defendants’ railroad in Second avenue has greatly increased the population of the locality in which the plaintiff’s property is situated, and has brought traffic into Second avenue. The plaintiff’s property has thereby incidentally been benefited.

Twenty-first. Since the year 1880, there has been a general rise in the value of real estate situated upon Second avenue, and this increase in value is largely attributable to the existence and operation of the defendants’ railroad.

Substantially the same requests were made in the Bohm case. These requests the defendants state are founded upon uncontradicted evidence.

Upon a careful perusal of the evidence in the cases I think this contention is well founded. The court refused to make the findings as requested and the defendants excepted.

Motions were made by the defendants in each case for a dismissal of the complaint on the merits, because, among other grounds, it appeared the plaintiffs’ property had been benefited by the railroad and had increased in value since its erection and by reason thereof. The motions were denied and exceptions taken.

We think upon the whole that the question was sufficiently raised. It is true that exceptions are unavailing when they are taken to the refusal of a judge to find as facts matters which are merely evidence and which are immaterial. In these cases, however, we must remember that the sole question at issue between the parties upon this branch of the case was as to the proper rule to be observed in ascertaining the amount of damages the plaintiffs had sustained, if they had sustained any. The amount of damages would be materially affected by the rule which should be observed in.determining their existence. And yet in making the bare finding of the amount of damage sustained, it would not appear that any particular rule had been followed and hence it would not appear that any erroneous rule had been adopted. It might in such cases be urged perhaps that there was no evidence upon which to base a finding of damage if a correct rule had been adopted, and yet a perusal of the testimony might show.some slight amount and hence the exception would fail. The judgment might at the same time be really founded upon the incorrect rule.

There would in almost any event be a difficulty in determining whether a wrong rule had or had not been adopted. If it were a trial "by jury the judge would be requested to instruct the jurors as to the true rule, and an exception would lie to his refusal and to the rule actually adopted, and the question brought up in that way. In a trial before the court it is more awkward. The requests in these cases were to find certain facts which had been established by uncontradicted evidence, and upon those facts the defendants seek to draw an inference in the nature of a conclusion of fact or of law, or both, that the plaintiffs have sustained no damage. The court has in truth refused to find the facts- as requested, and such refusal added to the circumstance that he has found the plaintiffs have sustained substantial damage, and to an amount stated by him, leads to the inevitable conclusion that he refused to find them because they were in his judgment immaterial. A request to find that the plaintiffs bad sustained no damage, or a motion for a nonsuit on the ground that no damage had been proved, might not alone bring up the question. Taking all the means together which the defendants adopted in their perfectly legitimate attempt to bring up for review the question as to what is the proper rule of damages in these cases, we must say that if their able counsel has not yet succeeded, it is difficult to see how success in that line can be achieved hereafter.

Without overruling the cases upon the subject of exceptions to refusals to find upon mere matters of evidence, we think the cases before us are distinguishable. The question sought to be raised here is so difficult of presentation by way of exception or request upon a trial before a court or referee, and is withal so important, that we are disposed to say the various requests to find and the exceptions taken to the judge’s refusals, together with the motion for a nonsuit on the ground that no damage had been proved, and the exceptions taken to the denial of such motion, should in these cases and under the circumstances be regarded as sufficient to enable us to review and pass upon the question on its merits. Justice we think demands this.

Although these are suits in equity, commenced to obtain equitable relief and to prevent the defendants from operating their road unless they pay the plaintiffs the damages they will sustain from the permanent interference by the railroad with their easements of light, air and access; yet the rules upon which such damages are to be awarded are so far well settled as to enable us to say that those damages are only such as would be given in a proceeding for the condemnation of lands for a railroad use, regard being had to ’ the different characteristics of the property to be taken in these cases.

This rule was last announced in this court in the recent case of American Bank Note Co. v. New York Elevated R. R. Co., 41 St. Rep., 531. What rule obtains in this state in condemnation proceedings and in regard to the kind of property which has been taken by the defendants in these cases is now made, the subject of inquiry. Generally in regard to the taking of land the rule may be said to be to pay the full value of the land taken at its market price, and no deductions can be made from that value for any purpose whatever. Then as to the land remaining, the question has been to some extent mooted whether the company should pay for the injury caused to such land by the mere taking of the other property, or whether, in case the proposed use of the property taken would depreciate the value of that which was not taken, such proposed use could be regarded and the depreciation arising therefrom be awarded as part of the consequential damages suffered from the taking. ' I think the latter is the true rule. Henderson v. N.Y. C. R. R., 78 N.Y., 423, 433; Newman v. R. R., 118 id., 618; 30 St. Rep., 36; In re Petition Brooklyn El. R. R., 55 Hun, 165-167; 28 St. Rep., 627. The case of In re Petition N. Y. Elevated R. R. Co., 36 Hun, 427, is cited for the other rule. The question might be of great importance where there was an injury to the remaining land, but if there have been no injury, the inquiry as to the scope of the liability for damages is not material. There is no question made but that the defendants are liable to pay the full value of any property taken by them subject to no deduction whatever. How the value of the particular kind of property which is here taken shall be arrived at is the main, and indeed the only question in these cases. Included in that inquiry and growing out of it arises the question, shall only special benefits to the remaining property be regarded, or may what is termed general benefits be also taken into consideration ? Before entering on a discussion of these matters I think it proper to say that I should hesitate .to admit the correctness of the claim made by defendants, that where private property is taken by a mere business corporation as for a public use under the granted power of eminent domain, the legislature could provide that such property could be paid for by benefits accruing to the landowner’s adjacent property consequent upon the taking. This is the case in regard to municipal corporations where land is taken for a public street or other public and municipal purpose, and where the benefits arising to the adjacent lands of the owner whose property is taken may be set off against the value of the land taken. So in the case of property taken by the state for canal or other public purposes, where the owner of the land taken was frequently paid its value by the benefits received to his adjacent land not taken. The principle underlying these cases is, however, the right of the municipality or state to tax the owners of the land left in order to pay for the land taken, on the ground that they are specially benefited by the taking, and hence should be specially taxed for the payment of the land. The case of Genet v. City of Brooklyn, 99 N. Y., 296, is no authority for a contrary view, for I think it supports that which I have suggested. Á mere trading or business corporation has no power of taxation, and the state could not delegate such power to it If' such company desire another’s property, it must pay a just compensation for it, and that just compensation would not consist in its doing the owner some benefit upon his remaining property. The question, although argued by appellants’ counsel, or rather perhaps stated, becomes unimportant, and is therefore undecided here, because the statute provides for just compensation for the property taken and prohibits any deduction therefrom on account of real or supposed benefits accruing to the property which is not taken. The defendants so far as regards this question make no claim of restricted liability to pay such full value.

In determining the question now presented it is well to recur briefly to the character of the property which is taken and the circumstances under which it has been taken.

The plaintiffs own no land in the street. Their ownership of the land is bounded by the exterior lines of the street itself. Hence, when under legislative and municipal authority the railroad . structure was built, it was supposed by many there was no liability to abutting owners because no land of theirs was taken, and any damage they sustained was indirect only and damnum absque injuria. When the courts acquired possession of the question and it was seen that abutting land which before the erection of the road was worth, for instance, $10,000, might be reduced to a half or a quarter of that sum in value, or even rendered practically worthless by reason of the building of the road, it became necessary to ascertain if there were not some principle of law which could be resorted to in order to render those who wrought such damage liable for their work. It has now been decided that although the land itself was not taken, yet the abutting owner by reason of his situation had a kind of property in the public ■ street for the purpose of giving to such land facilities of light, of air and of access from such street. These rights of obtaining for the adjacent lands facilities of light, etc., were called easements, and were held to be appurtenant to the land which fronted on the public street. These easements were decided to be property and protected by the constitution from being taken without just compensation. It was held that the defendants by the erection of their structure and the operation of their trains interfered with the beneficial enjoyment of these easements by the adjacent land owner, and in law took a portion of them. By this mode of reasoning the difficulty of regarding the whole damage done to the adjacent owner as consequential only, because none of his property was taken, and therefore not collectible from the defendants, was overcome.

The interference with these easements became a taking of them pro tanto and their value was to be paid for, and in addition the damage done the remaining and adjoining land by reason of the taking was also to be paid for, and this damage was in reality the one great injury which owners sustained from the building and operation of the defendants’ road. For the purpose of permitting such a recovery, the taking of property- had to be shown. The cases of Story. Lahr, Druclcer. Abendroth and Kane (the last of which is reported in 125 N. Y., 164; 34 St. Rep., 876, and in which the others are referred to), finally and completely settled -these matters.

It seems to me plain from this review of the law that the real injury (if any) suffered by the land owner in any particular case, lies in the effect produced upon his abutting land by the wrongful interference of defendants with these easements of light, air and access to such land, and where they are interfered with and in legal effect taken to any extent, it is not possible to think of them as of any value in and of themselves separated from the adjoining land, but their value is to be measured by the injury which such taking inflicts upon the land which is left and to which they were appurtenant.

This is a consequential damage. It is not the light or the air •that is valuable separated from the land adjoining. With regard to the subject under discussion there is and can be no value in a .given quantity of air, or space, or light in the public street except as it may be used in connection with and as appurtenant to the abutting land. When a person interferes with such light, air or access and takes it, he takes nothing which is alone and intrinsically valuable, but only as its loss affects the adjoining land. This loss, while purely consequential, is nevertheless a liability which the person proposing to take the property is bound to discharge.

The rule which the counsel for the plaintiffs contends for is a pure abstraction and liable in many instances to cause injustice in its application, because it would fly in the face of the actual facts. Easements, he says, are worth exactly the amount which they add to the value of the premises to which they are appurtenant, and no reference to the particular agency by which the taking or interference with such easements has been accomplished should be permitted, even for the purpose of determining the damage that has been thereby cáused. The pure abstraction of a •curtailment or destruction of the easement must be indulged in, and no effect other than such curtailment or destruction upon the property left is to be regarded. Carrying out this princeple, it might appear that a lot on Second avenue, with its' easements of light, air and access unimpaired, would be worth $5,000. To deprive it in some undefined way other than by defendants, of a portion of such easements equal to the amount taken by the defendants, might detract from the value of the lot $2,500. Therefore, $2,500 is the value of the easement which the defendant must pay. This is, as I have said, a pure abstraction. Ho such case exists or can exist. The same property cannot be taken by some other agency and by the defendants at the same time. Adopting the theory of the plaintiffs’ counsel, it can be easily seen how in fact the injustice imagined might be perpetrated. A plaintiff, after proving that the damage to his property, if the easement had been taken by some process and by some person other than defendants, would upon such hypothesis have been ;$2,500, might be met by defendants with proof of the fact that he had sustained no damage whatever, and, on the contrary, by reason of the erection of the road he had been specially and peculiarly benefited, his property being in actual fact worth fifty or one hundred per cent more than it was before. Would there not be great injustice in awarding to such an owner $2,500 for damages which in truth he had never suffered ? The separate value of light and air upon the facts existing in all these cases can, in the nature of things, be nothing but nominal. They must be joined to the land to be of value.

A theoretical course of reasoning may be adopted by which it could be claimed, as plaintiffs’ counsel. urges, that the value of these easements in and of themselves is represented by the amount, of depreciation in value to the adjoining land their taking would occasion, with no reference to the agency by which such taking-was accomplished. In fact such value would be arrived at by reference to what was a purely consequential damage to land. If the taking by the railroad actually had the effect of enhancing" the value of the remaining land, the inquiry as to the amount of loss that might otherwise have been occasioned (if there had not. happened to be the actual benefit) would be the purest guess and speculation in the world, and even when arrived at would be but. proof of what might have happened if something else had not. occurred which prevented it and caused the contrary to happen. To permit a recovery of this conjectural and wholly theoretical amount of damage which was never sustained would be to legalize a mere raid upon the treasury of defendants.

The real question to be considered is in truth one of damage to the abutting land. Newman v. Elevated R. R. Co., 118 N. Y., 618; 30 St. Rep., 36. What facts may be regarded upon such an inquiry has not been finally decided.

In the case of Newman, supra, a portion of the subject was involved and discussed, and we must recognize the authority of that, case upon the question actually therein decided. A reference to-the report is necessary in order to learn that .fact. That action was brought and tried as one to recover the whole damage in one-action which the plaintiff had sustained by reason of the erection and operation of defendants’ road in front of his premises in Church, near Rector street. The court was asked to charge the-jury “ that in estimating the damages to the leasehold interest in this plaintiff caused by the interference by the defendants with the light, air and access appurtenant to the premises, the jury may-take into consideration any benefits peculiar to his house which have arisen by the construction of the road as shown by the evidence.” The court refused to charge as requested and said : “On the contrary, the jury have no right to take any such fact into-consideration.” There was an exception to that refusal and upon appeal this court in the second division held that such refusal was erroneous, and therefore the judgment was reversed and a new trial granted.

The so-called rapid transit acts, under which the defendant» were organized, provided that the commissioners of appraisal should not, in determining the amount of compensation, make any allowance or deduction on account of any real or supposed benefits which the party in interest may derive from the construe-lion of the proposed railroad. The case of Newman decides that this provision does not mean that in examining the question "whether injury has resulted to the abutting owner’s remaining land, by reason of the taking of a portion of the easements spoken of, the court cannot regard the fact that, so far from injury, the land remaining has been specially enhanced in value by reason of the taking. On the contrary, it decides that such fact of special ■enhancement in value is material, and may and must be considered upon the question of damage. It is not offsetting injury Against, benefits. It is discovering - whether in reality there has been any injury to the remaining land. To prove that the land has been specially benefited may be proof that it has not been diminished in value. If it would have increased still more in value but for this taking by the road, that difference it must pay, because to that extent there would be damage. The Newman case is authority for the proposition that the easements are only of nominal value in and of themselves, and that the result of taking them must be looked for in the effect upon the adjoining land. If instead of loss or injury, that land has been specially benefited by the taking by the railroad company, then no damage has been .sustained by the landowner. Although adding nothing to the weight of the authority of the Newman case, I must say that as far as it goes the decision receives my unqualified approval. The remarks of the learned judge in the latter part of the opinion, as to general benefits from the growth of the city, etc., were no part ■of the decision itself, and were merely suggestions as to matters not really involved in the case. They raise the question as to how far general benefits to the land may be regarded, and also whether, assuming them to exist, they must have been caused by the railroad company in order to be noticed. I shall add a word or two later on upon that subject. At any rate the case decides that it is a defense to the action to recover damages if it be proved that in fact the owner’s remaining land has been specially benefited by the taking.

In these cases there is no claim that plaintiffs have received benefits from the taking which were special and peculiar to their lots and not shared in by the owners of lots generally in the avenue. -I confess I have been and am wholly unable to see the least materiality in the distinction between what are termed special and general benefits to the property left, or whether such benefits have been caused by the defendants. Strictly speaking it is not a question of benefits at all, except that proof of benefits may be one way of showing there has been no injury. The value of the easements taken, we have seen, was merely nominal, and the sole question which remains is, therefore, has the owner suffered any damage or injury whatever which has been caused by this taking, for if there have been no damage there can be no recovery. To ascertain the fact whether there has been damage, an -excursion into the realms of possibilities as to what might have happened, but did not, is not permitted. The inquiry whether the land would have been injured if certain circumstances had not occurred which not only prevented such injury, but enhanced, its value, is wholly immaterial. The question is, what in fact has-been the actual result upon the land remaining ? Has its actual market value been decreased by the taking, or has the taking prevented an enhancement in value greater than has actually occurred, and if so, to what extent? The amount of such decrease-in the value of the remaining land, or the amount of the difference between its actual market value and what it would have been worth if the railroad had not taken the other property, is the amount of the damage which the defendants should pay. If on the contrary there has been neither decrease in value caused by the railroad, nor any prevention of an increase from the same-cause, how can it be truly said that the lot owner has been injured to the extent of a farthing? The absence of injury may have been the result of the general growth of the city by reason, of which the particular property has grown in value with the rest of the city. It is the fact, not the cause, which is material. Where it appears that the property left has actually advanced in value, unless it can be shown that but for the act of defendants in taking these easements it would have grown still more in value, the fact is plain that it has not been damaged.

It is said the lot owner is himself entitled to the benefits accruing to him from the general rise of property caused by a general growth of the city in that vicinity, and that the causes of such growth are too indefinite, and uncertain, and problematical, to permit the railroad to take advantage of it upon the question of ■ damages. Of course the lot owner is entitled to the benefits arising from these sources. I propose to take no course which shall rob him of them. Hone other ought to or in fact can have them.

It is not a question of permitting the lot owner to have these benefits. How is he despoiled of them when, upon an inquiry whether he has sustained damage 'from the conduct of the defendants, it clearly appears that he has not? If it appear that he-would have sustained damage but for the fact that the general growth of the city in that direction prevented it, and caused an increase in value, what materiality lies in the fact that this growth was not caused by the railroad? As I have already remarked,, the fact that there has been no damage is the material fact, and not the reasons which in truth prevented the injury from occurring. If it did not occur, then clearly the lot owner has-suffered nothing. He received all the benefits attaching to the general growth of the city which causes the enhancement in value of his own lots, but he is not permitted to recover from defendants alleged damages, which in fact he has never sustained.

In the other view, what is to be the rule or measure of damages which is to prevail? Is the owner to be permitted to recover as damages the amount which it is guessed at or surmised he would have been sustained by the depreciation in value of his land if it had not been for the fact that it had in truth increased in value? What semblance of justice would, there be in such a rule? The only possible injury widely the defendants could cause him by their action lies hy the injury they might do his remainining land. An investigation of that question reveals the fact that this land has actually increased in value since the taking spoken of, and the fact is not claimed or proved that it would have increased as much but for such taking ; and yet, by a course of what may be called abstract reasoning, the defendants are to be compelled to pay such a plaintiff an amount of money as representing damages he never suffered. Any reasoning, abstract or otherwise, which permits such a result is lame somewhere.

The defendants are not, however, compelled to base their claims of exemption upon quite so broad a foundation. They say it appears by the uncontradicted evidence that the railroad largely caused the increase in value of all the lands on Second avenue, including the plaintiffs’ lots,' and as I have said the evidence bears out such claim. If this be the fact, how can it be said that the plaintiffs have suffered damage? There is no shadow of evidence that if the defendants had not taken this property and built their railroad, the property of the plaintiffs would have been as valuable or anything like as valuable as it is. The plaintiffs have in truth been specially benefited by this railroad, although quite a number of others have also participated therein. This special cause is the railroad and a special benefit may result to many from such special cause. The fact that other property in the vicinity and in the side streets has been more than proportionately increased in value by reason of the existence of the defendants’ road is not of the slightest importance upon the question of whether the plaintiffs have been injured by defendants’ conduct.

The probability is very high that the property in the side streets would have been immeasurably below what it now is in value but for the operation of these elevated roads. The same high degree of probability exists in regard to the property on Second avenue, as is gathered from the evidence of witnesses in these cases. It is, however, abundantly clear from the evidence actually given that the property of plaintiffs has not suffered injury or damage by the wrongful acts of the defendants, and where the plaintiffs have in fact sustained no loss it is no hardship which prevents their recovering anything from defendants. The plaintiffs upon a new trial and under this view of the rule of damages may perhaps be able to show that they nevertheless suffered damages from the illegal action of the defendants. It is only necessary for us in this case to decide that if the property of the plaintiffs have increased in value since the taking of these easements, or a portion of them, and if such increase is largely due to the building and operation of the defendants’ road, and if such increase would not have been greater but for the action of defendants, then the plaintiffs have suffered no damage. Whether the increase is common to every other owner in the avenue and is greater in proportion with some owners of property in the side streets than with the plaintiffs, are matters of no importance. The plaintiffs are not damaged because their neighbors are benefited to an even greater extent than, they are by the defendants’ road.

It is not necessary to refer to the adjudications in other states upon this subject. This is a matter upon which we must be controlled by our own views of the meaning of our own laws and of what is consistent with a proper construction of them. It is, too, ;a work of supererogation to cite and comment upon,- separately, the various cases decided in this and other courts of our own state during the. last forty years upon the subject of damages in condemnation proceedings. We are quite familiar with them and their conclusions, and we think we do not depart from the general trend thereof in laying down our own views in these cases now before us. The Newman case, supra, stands as authority for the principle upon which we must proceed in our examination of the ■question of the value of these easements. Upon the further question as to the consideration to be given the fact of general benefits, so called, which have been caused by the railroad company, we are confident that the rule herein laid down is calculated to do full justice to both sides and is in entire harmony with the language and meaning of the statute providing for the taking of property under the rapid transit acts. The rule permits a recovery by the abutting owners of the full amount of the actual damage .sustained by them, while at the same time it will not permit such •owners to recover, by some theoretical or abstract mode of reasoning, alleged damages which in plain truth they have never suffered.

The case of Francis v. Schoellkopf 53 N. Y., 152, has no bearing on the question whatever. The language of the head note is •a contradiction in terms. The rental value of a house cannot at the same time be injured and enhanced. The offer of proof was in regard to dwellings in the vicinity, and proof that their rental value was increased was no answer to the proof that in the plaintiff’s case the effect of the nuisance was to decrease the rental value of his own property. It is, of course, plain that the modifying words of the opinion were inadvertently dropped from the. .head note, a slip which will sometimes happen in spite of all the vigilance that can be exercised.

After a careful consideration of the subject we think it appears "that errors occurred upon the trial of these actions which demand .a reversal of the respective judgments, and they are therefore reversed and a new trial granted in each of the above entitled actions, costs to abide the event.

All concur, except Gray, J., not voting.