text:
    In the Matter of the Application of the East River Bridge and Coney Island Steam Transit Company.
   Motion denied upon the former opinion. Opinions by Barnard, P. J.; Dye-man, J., dissenting.


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. Limeburner, Respondent, v. John H. Neilly, Appellant.

   Judgment reversed, and new trial granted at circuit, with costs to abide event. Reference vacated. Opinion by Barnard, P. J.


text:
    Frank W. Wheeler, Respondent, v. The City of Poughkeepsie, Appellant.

   Judgment reversed, and new trial granted, costs to abide event. Order of reference vacated. Opinions by BarNAbd, P. J., and Dykman, J.


text:
    Susan M. Murray, and Annie M. Enright, as Executrices, etc., of Michael Murray, Deceased, Appellants, v. Phebe Marshall, Respondent.

   Judgment reversed, and new trial granted, costs to abide event. Opinion by Gilbebt, J.


text:
    Gertrude M. Feller, and another, administrators, etc., Respondents, v. Andrew L. Martin, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by Dykman, J.; BabNAbd, P. J., not sitting.


text:
    In the Matter of the Petition of Joseph N. H. Walbridge, Appellant, for the Custody and care of Marguerite Walbridge, v. Florence S. Walbridge, Respondent.

   Order reversed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    Luther E. Mansfield, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Dykman, J.


text:
    Nathaniel Dominy, and others, Respondents, v. John P. Terry, and others, Appellants.

   Judgment affirmed, with costs. Opinion by Gilbert, J.


text:
    James C. Cornell, Appellant, v. Mary P. Cornell and William W. Goodrich, Respondents.

   Judgment reversed, and new trial granted at circuit, costs to abide event. Order of reference vacated. Opinion by Barnard, P. J.


text:
    Richard W. Cunningham, Appellant, v. Richard M. Cunningham, Respondent.

   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    The Equitable Life Assurance Society of the United States, Plaintiff, v. Emma L. Bostwick and Josephine B. Bostwick, Appellants, and John Donovan, Respondent.

   Parts of judgment appealed from affirmed, with costs against defendants Bostwick. Opinion by Gilbert, J.; Dykman, J., dissenting.


text:
    Washington L. Baker, Respondent, v. Clara V. W. Burris, Appellant.

   Judgment affirmed, with costs. Opinion by Dykman, J.


text:
    James I. Healey and Jacob F. Healey, Appellants, v. Patrick Sheridan, Respondent.
   Order of County Court setting aside verdict affirmed, with costs. Opinion by Barnard, P. J.


text:
    Catharine Marz, Respondent, v. George W. Terwilliger, Appellant.
   Judgment modified by deducting thirty-five dollars from the damages and otherwise affirmed, with costs. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Rebecca Quell and Henry Quell, Plaintiffs, v. Frederick Cromwell, Defendant

   Judgment for plaintiffs upon submitted case, without costs. Opinion by Gilbert, J.


text:
    David M. Talmadge, Respondent, v. Edward N. Whiton and William H. Whiton, Appellants.

   -Judgment add order denying new trial affirmed, with costs. Opinion by DtKhan, J.


text:
    The People of the State of New York ex rel. William H. Semlear, v. The Fire Commissioner.
   Writ quashed, with costs. Opinion by Gilbert, J.; Barnard, P. J., dissenting.


text:
    The People of the State of New York ex rel. E. M. Roberts v. The Fire Commissioner.
   —Writ of certiorari quashed on opinion in People ex rel. Grafts v. The Fire Commissioner. Barnard, P. J. dissenting.


text:
    The People of the State of New York ex rel. Albert A. Joy v. The Fire Commissioner.
   Writ of certiorari quashed on opinion in People ex rel. Crafts v. The Fire Commissioner. Opinion by Gilbert, J.; Barnard, P. J., dissenting.


text:
    In the Matter of Proving the last Will, etc., of Anna Martin, Deceased.

   Decree of surrogate refusing to admit will reversed, and proceedings remitted to surrogate. — Opinion by Dtkman. J.


text:
    Norman Andrews and others, Respondents, v. The City of Brooklyn, Appellant.

   Order continuing injunction affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    Samuel A. Avila, Respondent, v. William Lockwood and Emory W. McClintock, Appellants.

   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.; Dtkman, J., not sitting.


text:
    In the Matter of Charles H. Brackett, a Private in the Thirteenth Regiment.
   Order reversed, with twenty-five dollars costs. Opinion by Barnard, P. J.


text:
    In the Matter of John W. Brown, a Private in the Thirteenth Regiment.
   Order reversed, with twenty-five dollars costs. Opinion by Barnard, P. J.


text:
    Ernestina Kohn, Respondent, v. Mark Shwartz, Appellant.
   Judgment and order denying new trial reversed and new trial granted upon questions of fact, costs to abide event, unless the plaintiff stipulates to reduce verdict to $100. If such stipulation is given, then jugdment for that amount and costs affirmed, without costs -of appeal. Opinion by Gilbert, J.; Dtkman, J., not sitting.


text:
    Phineas D. Crosby, Appellant, v. Hiram Hotaling and S. Curtis Park, Respondents.

   Judgment affirmed, with costs. Opinion by Dyeman, J.


text:
    John Gottlieb, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Reargument ordered. Dykman, J., not sitting.


text:
    Morris Robinson, Appellant v. John R. Lent, Respondent.
   Judgment affirmed, with costs. Opinion by Gilbert, J.


text:
    William P. Roome v. Thomas M. Riley, Sheriff, etc
   Order granting new trial reversed, with costs. Opinion by BaRnaed, P. J.; GilbeRT, J., dissenting.


text:
    Michael K. Burke, Respondent, v. Anna M. Mullan, Individually and as Administratrix, etc., of George V. Mullan, Deceased, Appellant.

   Judgment reversed and new trial granted, costs to abide event. Opinion by Gilbert, J. ; Dykman, J., dissenting.


text:
    In the Matter of the Probate of the Last Will and Codicil of Mary O’Hara, Deceased.

   Decree of surrogate affirmed, with costs. Opinion by Gilbert, J.; Dyeman, d., not sitting.


text:
    Catharine M. Raymond, Respondent, v. Joseph Husson and others, Appellants.

   Part of order denying retaxation affirmed, with costs. Opinion by Barnard, P. J.


text:
    Catharine M. Raymond v. Hiram Nott and Joseph R. Husson.
   Judgment and order overruling. defendant’s answer affirmed, . with costs. Opinion by Barnard, P. J.


text:
    Catharine M. Raymond v. Joseph Husson and others.
   Part of order denying motion in reference to sheriff’s bills affirmed, with costs and disbursements. Opinion by Barnard, P. J.


text:
    William H. Stiles, Appellant, v. Samuel Reichart et al., Respondents.

   Judgment affirmed, with costs.. Opinion by Dykman, J.


text:
    Thomas Nelson, Individually and as Trustee under Will of William Nelson, Deceased, and Cornelia L., his wife, Respondents, v. John V. Purdy and others, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Gilbert,- J.; Dykman, J., not sitting.


text:
    Edith M. Dougherty, Respondent, v. John W. Smith, Jr., and Alphonzo Smith, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by Dyeman, J.


text:
    F. Gustav Fincke, Appellant, v. Hermann Funcke, Respondent.

   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.


text:
    William Fletcher, Appellant, v. The Goshen Gas-Light Company, Respondent.
   Judgment of County Court affirmed,'with costs. Opinion by Gilbert, J.


text:
    The Hanover National Bank of the City of New York, Respondent, v. Eleazar S. Vaughan, Appellant.

   Judgment affirmed, with costs. Opinion by Barnard, t\ J.


text:
    Mary E. Remsen and others, Appellants, v. George H. Dennis, Respondent.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by Dyeman, J.; Barnard, P. J., not sitting.


text:
    Albert T. Baxter v. Franklin Bell.
   Judgment affirmed, with costs. Opinion by Dykman, J.


author: Beady, J. :

text:
    In the Matter of the Application of EDWARD COOPER, Mayor of the City of New York, and Others, to Acquire Title to Lands for a Public Market.

      Public market — lands may be taicen for it, by the exercise of the right of eminent domain — the exercise of such right is legislative, not judicial — what evidence is required of am. inability to agree as to price — what is a public market.

    Land may be taken by tlie exercise of the right of eminent domain for the establishment of a public city market.
    The necessity of taking private property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature either directly or by delegating the power to public agents, proceeding in such manner and form as it may prescribe.
    It is not essential to the definition of a public market that it should be a place open to all persons for the sale of all commodities. It may he a public use although limited to the sale of a particular kind of produce.
    Where commissioners are authorized to agree upon a price for land to be taken for a public use, and in case they cannot agree with the owners to take proceedings to acquire it by the exercise of the right of eminent domain, it is sufficient evidence that the price cannot be agreed upon, that the owners have been requested to state the lowest prices at which they were willing to sell; that such owners have stated such prices, and that the commissioners refused to purchase the land at such prices.

      Semble, that where an act provides that a proceeding to take land by the exercise of the right of eminent domain shall be taken by the mayor, comptroller and three aldermen of a city, the proceedings on behalf of the city for such purpose are not vitiated or affected by reason of the fact that the terms of office of such persons have expired, in the absence of any application by the property owners who complain, to have their successors in office substituted in their places.
    Appeal by 'William Collins from an order of the Special Term denying a motion made by him, as the owner of a parcel of land sought to be acquired herein, to vacate the order appointing the commissioners in the above entitled proceeding.

      Jam.es A. JDeering, fpr William Collins, appellant..

      Arthw Berry, for the mayor, etc., respondents.
   Beady, J. :

On the 17th of May, 1880, as enacted by chapter 191, laws of that year, the legislature of this State passed an act to provide for the establishment and maintenance of a public marketplace for farmers and market gardeners, in the city of New York, for the acquisition of lands for this purpose and for the regulation and management of the same.” This act provided that certain lands situate in the Ninth ward of this city, should be declared a public market place, where farmers and market gardeners might dispose of their farm or market produce, and that the mayor, the comptroller and the three aldermen of the city, elected in the alder-manic district consisting of the Eighth, Ninth, Fifteenth and Sixteenth wards, were authorized to purchase, in the name of the mayor, etc., such portions of land therein described as were not the property of the city, provided that the comptroller concurred in the purchase and the price agreed upon between the owners thereof and the said officers.

The mayor, comptroller and aldermen, were also authorized to acquire said land, or any portion thereof, for public use as a public market, by application to the Supreme Court, for the appointment of commissioners of estimate and assessment, if the lands could not be acquired by purchase. It was further provided that such proceedings should be prosecuted on petition of the mayor, etc., in such manner as was provided in statutes relative to street openings, except .that not more than $50,000 should be assessed upon the property benefited by the improvement. It also provided that the counsel to the corporation should perform all the legal services required in the conduct of the proceedings, and that after the lands had been acquired, the commissioner of public works should prepare the same for occapancy; also, that the mayor, etc., should meet and organize as a commission under said act, a.nd that they should serve without compensation. It was also provided that revenue bonds to an amount not exceeding $200,000 should be issued by the comptroller, for the purposes of defraying the expenses to be incurred in carrying out the provisions of the act, $50,000 of which should be raised by an assessment on the property benefited by the improvements and the balance included in the annual tax levy. It was provided also, that in case of a deficiency arising from any cause, the board of estimate and apportionments were authorized and directed to make an appropriation to meet the same. It was also provided that maps should be made, and that the land set apart by the act for the purposes of a public market should be kept for the use of the farmers and market gardeners, and should be under the exclusive charge and control of the finance department. It was further provided that all acts inconsistent with the act should be repealed, and that it should take effect immediately.

In pursuance of the provisions of the act, Edward Cooper, who was then mayor of New York; John Kelly, who was then comptroller, and John J. Morris, John W. Jacobus and Bernard Goodwin the three aldermen of said city, elected in the aldermanic district, consisting of the Eighth, Ninth, Fifteenth and Sixteenth wards thereof, met and organized on the 21st day of May, 1880, by electing Edward Cooper, the mayor, chairman, and George B. Deane, Jr., secretary; and proceeding to business, after this organization, the commission passed a resolution directing the comptroller to ascertain upon what terms the owners of the land included within the limits of the proposed market would sell their property. ■

On the twenty-eight of July following, at a meeting of the commission, the comptroller presented a report stating the prices at which the owners of land were -willing to sell their lots. These prices were not deemed satisfactory, and the commission passed a resolution, that each of the owners of said lots be requested to state in writing, the lowest prices at which he was willing to sell his lot or lots, and that in each instance the price -so stated ,be treated as the ultimate price and offer of the, person promising said price.

It appears that a copy of this resolution was sent by the secretary to each of the owners of land within the lines of land proposed to be taken or purchased, and a reply thereto was sent to the comptroller by each of the property owners. The result of this was reported to the commission by their secretary on the 28th of August, 1880.

The prices named were not acceptable to the commission and they passed a resolution directing the counsel to the corporation, to prepare a petition and take the necessary legal proceedings, by the appointment of commissioners, to acquire title to the land required for the market.

In obedience to this resolution a petition was prepared, duly verified, and a copy served upon all the owners of property sought to be acquired, with a notice that an application would be made to the Supreme Court for the appointment of commissioners of estimate and assessment on a day therein mentioned.

On the 13th of December, 1880, in pursuance of such notice, a motion was made for the appointment of a commission of estimate and assessment. It is shown that various owners of' property involved appeared in person, of by attorney, and that a petition on behalf of the property owners, and which was signed by Collins, the appellant herein, was presented to the court praying for the appointment of Mr. Benjamin P. Fairchild as one of the commissioners. . The court, after hearing all the parties in interest, made an order appointing Messrs. William II. Wickham, Benjamin P. Fairchild and Nicholas Haughton, commissioners under the act.

The commissioners thus appointed, who were, duly qualified, organized and took such proceedings, that on or about December 19, 1881, thoir preliminary report was filed for the inspection of parties in interest, and a notice of that fact, and that any persons objecting to the report should file their objections to the same, with the commission, on or before January 28,1882, and that they would then have an opportunity of being heard before said commissioners during the space of ten week days, was duly published1 and posted'. In pursuance of this notice, the appellant presented his objections to the commissioners, who, it appears, have them still under consideration, not having yet made their final report. This is a brief history of the proceedings instituted and taken under the act of 1880, supra.

The appellant’s appeal is based upon the propositions.

First. That the act of 1880, is unconstitutional and void because it conflicts with section 6 of article 1, which provides that “ no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.”

Second. That the act is in conflict with section 6 of article 1 of the Constitution, because it does not provide for “ just compensation ” for the land to be taken.

Third. That the act conflicts with section 18, of article 3 (as amended March, 1874), which provides that “the legislature shall not pass a private or local bill in any of the following cases:

x x * x * • * x

Granting to any private corporation, association, or individual, any exclusive privilege, immunity or franchise whatever.”

Fourth. That the statute violates the constitutional provision providing that the compensation for the private property to be taken shall be ascertained by three commissioners appointed by a court of record.

Fifth. That the persons named in the act for that purpose have not attempted to. mutually agree upon a price for the lands required with the owners thereof before instituting these proceedings, and the petition for the appointment of commissioners does not set forth any reason for such inability.

Sixth. That the present applicants, by whom this proceeding was' initiated, had no authority to commence the proceedings and cannot now maintain them.

It may be said, in answer to the last objection, that when this proceeding was instituted the persons in whose names it is continued were thus designated in the act of 1880; and as they were the officers then in office it was their duty to make the application, and it was also the duty of the court to recognize them as the proper persons to institute it. They were the mayor, the comptroller and the aldermen elected in the aldermanic district consisting of the Eighth, Ninth, Fifteenth and Sixteenth wards. It was for them. under section 1 of the statute, to make the purchase, having authority on behalf of the mayor, aldermen and commonalty of the city of New York to acquire title to the lands, and for that purpose to file and present a petition to the Supreme Court for the appointment of commissioners.

The proceeding, therefore, was entirely regular, and the order in that respect was properly made and entered. If the appellant desired any change in that respect, as one which would be beneficial to him in any way or contribute to the success of the contemplated enterprise, he might perhaps have asked, by application therefor, to have the mayor, the comptroller and the aldermen of the alder-manic district mentioned who succeeded those named in the original order substituted. But he has not thought proper to do so; and the omission on th,e part of the corporation to do it seems to be in any aspect wholly immaterial, because whatever names may be adopted or continued in the proceeding itself the result is for the benefit of the mayor, aldermen and commonalty of the city of New York, in accordance with! the provisions of section 1 of the act of 1880, already referred to.

In reference to the objection that the officers named in. the act never attempted to agree with the appellant upon a price for his lots, or to purchase the same as required by the act, it is sufficient to say that the affidavit of Mr. Collins, the appellant, upon which the motion under consideration was based, contains this statement: “After the passage of the act I was requested by the commissioners therein named, or by some one at their request, to name a price which I would take for my said premises, and in compliance with said request I stated I would take the sum of twenty-five thousand dollars. I believe a copy of my written communication to said commissioners is correctly printed in the minutes of the said commissioners in the city record.” '

It appears, as we have already seen, that the act authorized the officers named for that purpose, to purchase certain landc for a market site, and at such prices as might be mutually agreed upon; provided, however, that in no case should the lands be purchased for the prices agreed upon, without the concurrence of the comptroller, and that accordingly, at the first meeting the officers resolved that the comptroller be requested _ to ascertain the terms upon which the land required to be purchased might be obtained ; and such proceedings were had upon the coming in of the report of the comptroller; that each of the owners, by resolution adopted by the commission, was requested to notify them, by a communication to be addressed to the comptroller, of the lowest price which each would accept for so much of the land owned by him, lying within the district required; and that the resolution declared that in each instance the price so stated would be considered and treated by the officers as the ultimate offer and price proposed by the person making it. The effect of this provision, therefore, was to seek from the owners of the land within the district required, a statement of the lowest price for which they would be willing to sell the property owned by them and embraced within it; and the appellant, in pursuance of that resolution, in a written communication, stated that the sum of $25,000, was the lowest price that he would accept. And it was only necessary, therefore, for the commissioners, when they adopted this mode of ascertaining whether a purchase could be accomplished or not, to determine whether $25,000, was a proper price for them to pay for the property owned by the appellant. They had obtained from him a statement of the lowest price that he would sell for, and they declined to accept it.

After the receipt of this information from the appellant and others, by a preamble in which they stated that they had received from each of the owners, or their legal representatives, the lowest price for the property offered, and whereas, they were unable to agree with the owners, or any of them, on the price of the laud necessary to be acquired, the commission resolved that the* counsel to the corporation should take the necessary proceedings to acquire the land, according to the statute in such case made and provided. This was a declaration, by a resolution, that the price demanded would not be paid; and, therefore, having received the statement of the lowest price which the owners would consent to accept, it is quite apparent that the commission was unable to agree with the owners, or any of them, on a price for the lands to be paid by them. If in writing the communication to the comptroller, in answer to the request which 'was made, under and by virtue of the resolution adopted, the owners had stated that although they named the sum mentioned as the lowest price which would be accepted for the property, they would be willing to accept an offer, or to consider any further proposition, the case would present an entirely different aspect. But the statement was an absolute one, as they were asked to state the lowest price; and as that was not and would not be acceptable, it was unnecessary to continue the negotiation or to attempt to accomplish any barter or any purchase of the property by agreement. The commission had stated in the ■ resolution, and the owners had been advised, that the prices which they named would be considered and treated as the ultimate offer and price of the persons naming them, and that at once closed the door upon any subsequent effort to accomplish the purchase by agreement. The prices given were the lowest, and were to be treated as tne ultimate offers, and, therefore, to be regarded as the end of the attempt to acquire title by purchase, if the commission would not pay them.

These circumstances prove conclusively that there was a failure to agree upon the price for the purchase* of the land, within the meaning of the statute, tor all that was necessary to be done had been done; and this absolved the commissions from maiding any further efforts to accomplish, by agreement with the various owners, the title to the property desired. The petition properly set forth the fact stated, namely, that they had not been able mutually to agree upon a price or prices for the lands required, and therefore 'had not been able to acquire the title thereto. The objection, therefore, to which this reasoning relates, must be regarded as valueless.

The first constitutional objection taken on behalf of the appellant, namely, that no person shall be deprived of life, liberty or property without due process of law, nor shall private property 'be taken for public use without just compensation, cannot be sustained. As very properly remarked upon the brief of the respondents, “ Lands used -for the purposes of a public market have in this city, for 200 years at least, been treated by the legislature and courts of this State, and by the Colonial authorities thereof before its .separation from Great Britain, as devoted to public use. Public markets and market houses were recognized in New York, then a British province, as public buildings as early as 1686.” Indeed, the Dongan Charter recites, that whereas, the citizens, etc., of New York, have erected at their own cost, several public buildings, including two market houses; therefore, the Lieutenant Governor Dongan, in the name and on behalf of the king of England, grants and confirms unto the mayor, aldermen, etc., of New York, the said * * * “two market houses, and all the rights and privileges thereto belonging.” (See Dongan Charter, §§ 1 and 2, pp. 4 and 5, vol. 1, special laws affecting the city of New York.) And by the Montgomerie Charter of 1730, the mayor, etc., were given power to have, hold and keep markets ■ at five several places. And the charter further provided, that the mayor, etc., and their successors, should and might have, hold and keep such and SO' many other markets, at such and so many other times and places in the city, as should from time to time be ordered, established, erected and appointed by the common council of the city. (See Montgomerie Charter, § 36.) And it appears further, that on the 14th of October, 1732, an act was passed by the governor and council and the general assembly governing New York, ratifying and confirming unto the mayor, etc., all their rights and privileges. And the charter of 1873 (chap. 335, laws of that year), by section 17, confers upon the common council certain powers, and among others, by subdivision 20, “ in relation to the construction, repair, care and use of markets.” It was declared in that charter, that the Dongan and Montgomerie Charters, when not inconsistent with the provisions of the act, should remain in full force and effect. It will have been perceived that the provisions of the Dongan and Montgomerie Charters conferred upon the mayor, etc., the right to establish, maintain and regulate the public markets, and that these provisions having been preserved, are in-full force and effect. And it may be said here, that if there were no decisions to be found upon the subject, and the question were res nova, there could be little doubt that the taking of property for a market was devoting it to a public, and not a private use. But the question has been considered substantially, in certain adjudications, to which reference will be made.

In the case of the People ex rel. Flagg v. Lowber and the Mayor (7 Abb. Pr., 176), which was an action brought to restrain the mayor, etc., from completing the purchase of land for a market, Judge Ingraham, who was perfectly familiar with the laws governing New York, said:

The common council has the power, under their charter, to provide for and regulate markets. They have the sole right to establish markets. It is a franchise which was conferred upon them by the supreme authority, and with it is conferred all necessary power to carry into effect the exercise of that right. (See, also upon this subject, St. John v. The Mayor, 6 Duer, 315.)

And in Ketchum, v. City of Buffalo (14 N. Y., 356), it was held that the authority to establish and regulate markets being expressly conferred upon the city of Buffalo by its charter, the power to purchase a site therefor resulted as a necessary incident. Judge Selden, in his opinion, said: “ It is, I apprehend, a- sound rule, that when'power is given to a. corporation to do an act, it has a right to do whatever is necessary to accomplish the act. * * * A market is a public place for the sale of commodities.” To the •same effect, see, also, Peterson v. The Mayor (17 N. Y., 449); Kent’s Charters (p. 100, § 1Y, and p. 229).

It will, doubtless, have been observed that the act of 1880, under consideration, declares the object and purpose of the proceeding to be taken, namely, to acquire the title to lands for public use as and for a public market place, which would seem to be in itself sufficient to uphold the power of the city to take this property by the ■exercise of the right of eminent domain. The Constitution does not prohibit the exercise of such a right, but declares only that private property, for a public use, shall not be taken without just compensation being given therefor.

It may be said also in connection with this subject, as suggested by the learned counsel for the respondents, the legislature had ample power to decide that it was necessary to take this land for a public market. They, and not the property owners, were the judges of the necessity of it, and it seems to be established that the taking •of private property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in ■such manner and form as it may prescribe. (People v. Smith, 21 N. Y., 595; Matter of Townsend, 39 id., 171; Matter of Dean, Street, 53 id., 60; Harris v. Thompson, 9 Barb., 350.)

In the case of the People v. Smith, the court said, in discussing this power of the legislature, that it may be exercised by means of a statute, which should at once. designate the property tó be appropriated, and the purpose of the appropriation.” In this case the legislature did designate the land to be taken and the purpose for which it wap taken.

The learned counsel for the appellant, who presents a very able brief, and who has displayed very great ingenuity in the elaboration of his points, seems to think that because all persons for the sale of commodities would not be admitted to the market, it is not a public market for a public use. But this is a grave error. It is a market for the concentration of a particular kind of produce, a centralization of it so to speak, and a benefit to the public, who know that in a particular locality they can find the articles designated to be sold there. It is a public market for the benefit of the public, where the sale of certain commodities takes place, and where, therefore, they can be found, and the erection of which must consequently be regarded as a public convenience. It is .the appropriation of a certain portion of the city for the sale of certain commodities to which the public may resort for such purchases as they desire to make of the articles which are there exhibited for sale. It -would be impossible in any one market in the city of New York which has heen constructed or laid out, to put the different articles which are properly called market produce,” brought to the city for sale; and therefore the necessity of having several of them for the purpose of accommodating the population or- purchasers. The construction of a market for the sale of a particular kind of produce, is similar in all respects to the appropriation of land for the use of a railroad, which is to be used by the railroad company making application for it. It is a public use, although only benefiting the particular persons who use it, and the company which enjoys the franchise acquired by obtaining title to the land. It is thought that this constitutional objection, as already suggested, cannot be maintained for the reasons given, and that the learned judge at Special Term, was right in saying that the lands which were sought to be acquired were to be appropriated for a public use. These views dispose of the third proposition in which it was said-that section 18 of article 3 (as amended March, 1874) was violated, because the act of 1880 was a private bill granting to a private corporation an exclusive privilege, immunity or franchise.

There is no force either in the second, proposition, namely, that the act is in conflict with section 6 of article 1 of the Constitution, because it does not provide for just compensation. The act of 1813, under which the proceedings were instituted, contains all the necessary provisions to secure compensation for land taken. The act of 1880 explicitly provides that just and full compensation shall be given for all the land that may be taken for the purposes of the market. It provides, as already stated, that the proceedings of the commissioners of estimate and assessment shall be as prescribed under the street opening act of 1813 (chap. 86), and the laws amendatory thereof and not inconsistent with the provisions of the act, and a provision, as we have seen, was made for the issue of revenue bonds to defray the expenses to be incurred in executing the provisions of the act, limiting, it is true, the amount to a sum not exceeding $200,000. It is claimed, however, by the appellant that a limit upon the sum. to be allowed for the land is declared, namely, that it shall not exceed $200,000; and he states in his affidavit that he does not believe that the sum of $200,000 will be a sufficient sum to pay a full and fair compensation for the property taken. We can all understand that it is the desire of the appellant to obtain the highest price that he 'can for his property, and that the other property owners will be doubtless stimulated by a similar ambition. He also states that he has been informed that the commissioners were advised to keep their awards below the sum of $200,000; and by reason of such restraint or advice they were compelled to make their allowance of compensation below the full and true value of the lands required to be taken. This statement is not correct, because it appears by the affidavits of the commissioners that the sum of $200,000 was, in their judgment, sufficient to compensate the owners of all the lands required to be taken in the proceeding; and they denied that they had been advised to keep the total awards within the sum of $200,000, or that they had decided the awards upon the theory or upon the belief that the statute, under which the proceedings were had, restrained them in respect to the total sum to be paid so as to compel them as such commissioners to make their allowance of compensation below the full and true value of the lauds required to be taken.

It will have been observed that there is a provision made for any deficiency arising from any cause, which shall be provided for by the board of estimate and apportionment by including the’ same in the annual appropriation first made after the amount of the defi ciency, if any, shall be ascertained. The limit of $200,000, cannot be said in any reasonable view of the' subject, to place the proceedings within the inhibition against taking property without a just compensation. If the land were really worth more than $200,000, assuming the limit to exist as claimed on behalf of the appellant, then the project would fail, because the amount allowed for the purchase is too small to accomplish it.

But it is not necessary at present to consider this question further, for the reason that bir the affidavit of the commissioners it appears that the sum named is sufficient to acquire the title to all the property necessary by paying its fair value, and it must be assumed that the evidence which is given by them is the more reliable, because it must be regarded as entirely disinterested, emanating from a faithful observance of their duties as commissioners in the discharge of the trust reposed in them by the court, and for the further reason that the commissioners themselves, having the power to determine what amount should be awarded for the land taken, arrived at the conclusion that the sum allowed by the legislature would be sufficient for the purpose of accomplishing the object in view.

The proposition contained in the fourth point has been sufficiently answered in the views expressed, and it is not necessary to answer it separately.

For these reasons we think the order should be affirmed, with ten dollars costs, and the disbursements of this appeal.

Daniels and Dwight, J J., concurred.

Order affirmed, with.ten dollars costs and disbursements.


author: Brady, J.:

text:
    MICHAEL HYNES, Respondent, v. THOMAS E. PATTERSON, Executor, and CAROLINE D. ELY, Executrix of DAVID J. ELY, Deceased, Appellants.

      Conversion of notes— the complaint in cm action for, may loth allege a tort and set up a claim for money had and received — when no demand for the notes is necessary— the fact that the wife of the maker of the notes pays them from property conveyed to her in fraud of the maker's creditors does not affect Ms damages — Measure of damages where the maker pays the notes by the transfer of real estate — money received by the- maker for the loan of the notes 'need, not be returned.

    Where notes have been made for a special purpose, and placed in the hands of one who, having knowledge of such purpose and receiving the notes under an engagement to apply them thereto, uses them for another purpose, he may be sued in an action in which the complaint contains the necessary averments to sustain the action, either as one in tort for a conversion, or on contract for money had and received.
    Where the maker of -the notes has been sued thereon, and has acquired possession Of them by paying the judgment recovered thereon, it is not necessary to make any demand therefor before bringing suit against the person who misapplied them.
    The fact that the judgment on the notes was paid by the transfer, by the plaintiff’s wife, of real estate which the plaintiff had transferred to his wife ,in fraud of his creditors, does not prevent the plaintiff’s recovering, as damages, the value of the real estate so transferred, which in such case 'is the proper rule of damages.
    Under the agreement providing for the delivery of the notes in trust to the defendant, the plaintiff was entitled to, and had received, a certain sum for their use.

      Held, that-he was not bound to restore that sum before bringing suit for this misappropriation.
    Appeal by the defendants from a judgment, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court before which the trial was had.

      John L. Logan, for the appellants.

      B. F. Blair, for the respondent.
   Brady, J.:

In August, 1876, one Joseph J. Bowman was desirous of purchasing a tract of land at East Haddam, Connecticut, which was then under foreclosure, and for that purpose entered into an agreement with the plaintiff to the effect that the latter should loan him his notes for $11,22475, and should receive for the loan of the notes ten per cent of their face value. Bowman was to procure the notes to be discounted and was to apply the proceeds thereof to the purchase. The property was to be conveyed to the defendant’s testator, David J. Ely, who received the notes, as custodian from the plaintiff and Bowman, and it was to be bonded by Bowman to the extent of $50,000 and two-fifths of the bonds to be held in trust by Ely as security for the payment of the notes. It was also provided that the bonds were not to be' given to Bowman until the last note due should be paid; and upon such payment, the other two notes having been paid, the bonds were to be given to Bowman; and further, that if Bowman failed to pay and meet the notes, or either of them, as they become due, then the bonds should be given to the plaintiff and become his sole and exclusive property, free from all claims, dues or demands. And it was further provided that if Ely failed to apply the moneys as agreed he was to be held responsible for the same.

The transaction seems to have contemplated the organization of a company, and the issuing of bonds to the amount named, secured by a mortgage of the property to be purchased. It is quite evident from the facts that the plaintiff declined to place the notes in the possession of Bowman or to consent to his receiving and applying the money to be raised upon them, and accepted the selection of the defendant’s testator, who was a man of acknowledged responsibility, and who was to hold them until Bowman should procure them to be discounted. The notes were not discounted but were exchanged for personal property, with the design of converting it into cash and using the cash as originally agreed upon. This transaction was disastrous. Nothing was realized from the property thus purchased.

It is somewhat questionable whether there is any evidence in this case showing any real effort on the part of Bowman to procure the discount of the notes, whilst it is proved that within a very few days after the contract was made the defendant’s testator delivered two of the notes, amounting to $7,726.59, to affirm in part payment for the purchase of a quantity of malt, the personal property already alluded to, and which purchase had been under consideration for some time. And these notes were transferred, therefore, before maturity. When they became due, the plaintiff refused payment; whereupon a suit was brought upon them in this court against him and' Bowman, and against two others as subsequent indorsers. The plaintiff and Bowman defended separately. The issues raised were tried before a jury, and a verdict for the plaintiff of $7,998.90 was rendered, and on April 23, 1877, judgment was entered against Hynes and Bowman for $8,227.86. In the meantime the plaintiff had transferred all his property to his wife; and Carter, the judgment-creditor, having assigned his-judgment, his assignees instituted proceedings to set aside the transfer.

The plaintiff, then employed counsel to negotiate a settlement with them, and the result was that Mrs. Hynes finally conveyed to them, by warranty deed, a piece of ground received from her husband, and they satisfied the judgment against Hynes, agreeing to reconvey the land to Mrs. Hynes upon the payment by hei’, at any time before March 1, 1881, of $8,227.86, with interest from April 23, 1877, besides other sums.

It appears that the plaintiff paid his counsel for their services in effecting that settlement, $500.

This action was commenced in April, 1879, against the defendants, to recover damages for the conversion of the two notes used in the purchase of malt (the third note not having been negotiated or used in any way).

Upon the trial, it would seem that the only question of fact about which there was any conflict of testimony, and indeed the only question submitted to the jury, was as to the value of the property conveyed by Mrs. Hynes in satisfaction of the judgment recovered upon the notes.

. The jury found a verdict for the plaintiff of $3,500. The defendants appealed, and a few days afterward the respondent’s attorney served upon the appellants’ attorney a written consent to the entry of an order vacating the judgment appealed from, and directing a new trial, upon condition that such order be entered and served within thirty days from that date, which consent was accompanied by notice that if the respondent-should fail to accept that offer, and to enter and serve an order thereon within thirty days, the respondent would move this court, at the next General Term, to dismiss this appeal, and' to award costs to the respondent and against the appellants, on the ground that they had unreasonably resisted payment of said judgment.

The appellants did not accept this offer, but, on the contrary, they expressly declined to do so.

The notes having been made for a specific purpose, and the defendants’ testator having received them, not only with knowledge of the purpose for which they were created, but as a trustee thereof, and having permitted a diversion of them, subjected himself to liability for damages in an action which, under the old regime, would be regarded as an action of tort. (Comstock v. Hier, 73 N. Y., 269.)

It may be said in this case, as stated in that, that no right whatever to the notes, or any right of disposal thereof, was or could be acquired by the unauthorized delivery of them for a purpose for which they were not created. And it may also be said that the complaint in this case, as in that, contains the necessary averments to sustain the action in either form, i. e., for a conversion of the notes, or for money had and received, which might be done as suggested in that action, the principle resting upon authority and beiug clearly elucidated by cases cited in the opinion of Allen, J. (See, also, upon the right of the plaintiff to maintain this action, Murray v. Burling, 10 Johns., 172; Decker v. Mathews, 12 N. Y., 313-319; Thayer v. Manley, 73 id., 305.)

It was not necessary that any demand should be made for the notes, as contended by the defendants’ counsel, before the action was brought, because they were in the possession of the plaintiff, acquired by the payment of the judgment, as we have already seen, through the’transfer of the real estate made by him.

It is no answer to this, to assert against the right to maintain the judgment, that the plaintiff having received the ten per cent provided for by the agreement for the use of the notes, was bound to pay it back or tender it prior to the commencement of the action. It was distinctly understood, that -the ten per cent, amounting to $1,122.47, was a commission to be paid to the plaintiff for the loan of his notes, as appears from the receipt dated the 12th of August, 1876, signed by the plaintiff, in which it is stated that he received the sum from the defendants’ testator, as custodian of himself and Bowman, being the stipulated commission of ten per cent, to be paid to him on the loan of his notes, as set forth in the receipt of the defendants’ testator bearing even date. The sum named was to be paid for the use of the notes, and although they were not used in the manner provided for, nevertheless they were used; and the plaintiff was obliged to pay two of them, as we have already seen, after such use. The plaintiff’s duty under the contract in reference to them was fully performed when the ten per cent was paid. He had made and loaned his notes and what was paid was paid to him upon such performance. And as he has committed no violation of his contract, it would be an unheard of legal principle to declare in such a case as this, that before he could seek to protect himself and recover damages by action for a violation of the contract involving an act of conversion, he should be obliged to restore the compensation agreed upon and paid him for a service which he had rendered and completed. For this reason the defendants were not entitled to any credit for the ten per cent.

The learned justice presiding in the court below charged the jury upon the question of damages, that the plaintiff was entitled to such as he had sustained by reason of the diversion of his notes and the judgment thereon, and he said the question for them to determine was the value of the property transferred by Mrs. Hynes in settlement of that judgment.

There can be no doubt about this being the rule of damages. (Comstock v. Hier, supra.) .

The proposition that the plaintiff could not avail himself of the transfer because Mrs. Hynes owned the property, is without any force. It is quite apparent that the property held by her • was transferred after the notes were made, and it was, therefore, taken by her subject to the debts of the husband existing at the time of the transfer. The learned justice very properly said to the jury upon that subject, that the persons who held the judgment against him would have been entitled to file a bill in equity to reach this property, and indeed, any property which the plaintiff had transferred to his wife in fraud of his creditors, or voluntarily with a view to make a settlement upon her, which would inure to her benefit against those legitimate creditors who were entitled to the application of his property to the payment of his just debts.

There can be no donbt about that proposition. It has been declared by numerous decisions. The appropriation of the property, therefore, to the payment of these debts was doing nothing more than would have been decreed by a court of equity if application had been made for its judgment.

The several requests made to the court to charge were in antagonism to the views herein expressed, and therefore to the law of the case, and were properly rejected. Indeed, the appellants upon the argument seemed to rest their appeal upon two propositions, viz. (1), that the plaintiff could not recover in an action of tort, and (2), that the ten per cent to which reference has been made should have been deducted from any amount to be awarded the plaintiff. Neither of these propositions has been sustained ; and as none of the exceptions presented for consideration are entitled to any further review, and as none of them were well taken, it follows that the judgment must be affirmed, with costs.

It .is not deemed necessary to pass upon the propositions of the learned counsel for the respondent that the defendants should take nothing by their appeal, and that it should be dismissed because the respondent offered to grant them a new trial. If the examination of the case upon its merits had led to a different conclusion than that arrived at, it might be that the proposition would be entitled to serious consideration. But it is aot necessary- to express any opinion on the subject at present for the reason that without reference to the consent or offer to grant a new trial it is ascertained that the judgment should be affirmed, and therefore resort to the consent or offer is not necessary. The payment of the judgment seems to have been unreasonably resisted and the defendants should be charged with the costs of the appeal.

■■ Davis, P. J., concurred.

Present — Davis, P. J., Beady and Dwight, JJ.

Ordered accordingly.


text:
    SAMUEL D. STONE and Others, Respondents, v. FRANKLIN WOODRUFF and Others, Appellants.

      Oha/rter pa/rty — Mobility of the hirer who cannot furnish freight — the master is not hound to proceed to a poi't not designated in the charier pa/rty for it — nor hound to wait for a ea/rgo — measure of damages.

    Under a general charter party, where there are no special provisions, the ' merchant who hires the ship is bound to load it (although, owing to an unforeseen circumstance, no cargo can be had), and in case of a failure so to do, to pay for the ship “ empty for full; ” nor is the master, where there is no cargo at the place of destination, under any obligation to proceed elsewhere to obtain it.
    The measure of damages, where the cargo is not furnished, is the amount of the freight under the charter party, less the expense of earning it and less any freight earned by the ship during the time.
    Bemble, that where the charter party provides that the vessel shall be loaded “ quick dispatch,” the master, who upon arriving at the place designated is advised that a cargo cannot be had, is not bound to wait for a cargo which it is expected • can be furnished within a short time.
    Appeal by tbe defendants from a judgment, entered upon the verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of the court before which the action was tried.

      Welcome 3. Beebe, for the appellants.

      Harrington Putnam, for the respondents.
   Brady, J.:

• This action was brought upon a charter party dated July 11,1879, of the brig Tubal Cairn.,, then lying at Boston, bound for Demorara. It was provided that the brig, after discharging at D enterara, should proceed to Turk’s Island and there load with quick dispatch and bring to>New York a full cargo of salt in bulk, at a freight of seven cents per bushel. The master received at Demerara a copy of the charter party and a letter ordering the salt from Frith & Murphy; and accompanying these was a letter from the defendants, stating that if Frith & Murphy could not load the vessel, he was to buy it from whoever would sell .it for the lowest price and draw upon them at twenty or thirty days for the cost; and in this letter it was also stated that the price ought uot to be over eight cents a bushel, and that they would like him to see that Frith & Murphy made the price the lowest it could be bought for on the island. Frith & Murphy were also advised that the vessel had been chartered and received their advices previous to the vessel’s arrival.

It appears by the evidence, also, that the salt season of 1879 lasted from April to November at Turk’s Island, and had been, exceptionally bad in consequence of continuous rains, which prevented evaporation ; that for four weeks prior to September ninth, which was the date of the Tubal Gain's arrival at Turk’s Island, there had been no salt to load the vessel; and that during that period several fishing vessels had left the island, without first obtaining cargoes of salt. It also appears that there was a steam mail communication between New York and Turk’s Island, which took four or five days fqr a passage, and that there was a mail service by way of St. Thomas, connecting regularly with Turk’s Island by packet. And it further appears that telegraphic communication also existed, but was interrupted temporarily when the Tubal Gain arrived.

As already suggested, the brig arrived on September ninth at Grand Turk, which is only an open roadstéad, although the chief place in Turk’s Island. After the arrival of the vessel, the master, on landing, presented the ship’s documents and reported his readiness to load. This occurred on the tenth of September. Mr. Frith, in response, said : “ I am sorry to see you, captain ; I was in hopes y.ou wouldn’t come for three or four weeks ; there is no salt on the island nor in the colony.” Mr. Frith then suggested to the captain that- he should go to an island in another group, about 180 miles off, called Inagua, which the captain declined to do, because it was a deviation from the charter -party, but said he would do so, provided a new charter was made. This was refused.

It appears further that upon the afternoon of that day, Mr. Frith took the master to see Mr. Hutchings, the editor of the local newspaper at Turk’s Island, to whom he was accustomed to resort for advice, and the whole subject was presented to him for his consideration in the presence of the persons named. He announced his conclusion that he knew of no other course than for the master “ to lay there and leave when his time was up.” There is some dispute, it may be observed here, as to how long a time it would require to load the vessel with salt, whether it would occupy between three and four days or take a week.

It further appears that Mr. Frith, realizing that he could not load the vessel, took the master to another salt dealer to get him to charter the vessel with salt, and who, as well as two others who were applied to, declined to employ the brig. ' It also appears that salt is the only export from the colony, and further that Mr. Frith said there might be salt in another week at East Harbor, which was in Caicos Islands, about twenty miles off, but to which the master had been told by his pilot that it would be dangerous to go, a fact which he communicated to Mr. Frith, at the same time offering to stay at Turk’s Island, provided a cargo was guaranteed and the lay days and demurrage indorsed, upon his charter party. This proposition was refused, Mr. Frith declaring that he would not guarantee a cargo in two weeks or two months.

After the occurrence of these incidents and all efforts to obtain a cargo at Turk’s Island having been abandoned, on the sixteenth of September, the master determined to leave; and with this object in view he asked Mr. Frith for a letter certifying that no cargo was to be had. This request appears to have been in writing and was personally delivered by the master, the contents of which may be inferred from the reply which Mr. Frith immediately wrote and handed back and which is as follows:

“ Turk’s Islands, Sept. 16, 1879.
“ Capt. S. D. Stone, Master of Am. Brigt. Tubal Bain:
“Dear Sir — In reply to your letter of this date, we regret to state we cannot furnish your vessel with a cargo of salt, as the same cannot be purchased- in the colony, but should you feel disposed to remain until next week, we can furnish you with a cargo at East Harbor, providing if the present weather continues.
“ Respectfully yours,
“ FRITH & MURPHY.
“ Darrell & Co., 83 Pearl Street, New York.”

The vessel left on the following day, viz., the seventeenth of September, and arrived at New York in about ten days, having remained at Turk’s Island, it would appear, for about six "days after reporting, viz., from the tenth to the seventeenth of September.

A reference to the pleadings shows that the complaint alleges that,- in pursuance of the charter party and in performance thereof, the y ess el proceeded to Turk’s Island, where she arrived on the 9th of September, 1879, in ballast, and where the master immediately delivered his order or letter of instructions to Messrs. Frith & Murphy, and that they failed to provide or furnish a full cargo of salt or any cargo whatever; that the vessel remained at Turk’s Island the usual and customary number of days for vessels receiving cargo, and not being able to obtain any, returned to the port of New York; and after alleging the quantity of salt necessary for a full cargo, demanded judgments for the amount of the freight, according to the terms of the charter party.

The defendants alleged as a defense that, at the same time the master received his letter of instructions, they also delivered to him a further letter of instructions in which he was authorized to buy the cargo of salt if Frith & Murphy could not load the vessel (which letter has already been referred to); and, further, that upon the arrival of the vessel at Turk’s Island, the master was requested by Frith & Murphy, to whom he reported, to await the cargo of salt at that port, or to proceed, as was customary and proper, with his vessel to Inagua, a place within Turk’s Island, and there to take on board the cargo of salt ready to be laden on board the vessel; and that, notwithstanding such request, he refused to await a reasonable and customary time' for the cargo of salt, or to proceed to Inagna, or to buy cargo as directed, but-returned to the port of New York without the cargo or any part of it, by reason of which the plaintiffs were guilty of a breach of the terms of the charter party, and, consequently, not entitled to any compensation.

It will have been perceived from this statement that there is no dispute about the principal facts, although the damages to be awarded was an issue contested, and the questions involved are purely of law. It is quite evident that, in submitting to the jury simply the issue as to the amount the plaintiffs were entitled to recover, the learned justice presiding in the court below acted in strict accordance with his duty. It was really the only subject, as already suggested, about which there was any substantial difference between tbe parties, and it was so conceded by the defendants'* counsel at the trial.

Under general charter parties, where there are no special provisions, the obligation to load is absolute, and the person who hires the ship must pay for it “ empty for full,” a peculiar phrase which has crept into this branch of the law. This seems to be the universal rule. (Laws of the Trani, enacted in 1063, ch. XXY; 4 Bl. Book, Adm. p. 539.) Chapter LX of the “ Consulate of the Sea,” says of the merchant: “ If he is not willing to load his goods, he ought to pay the whole freight to the managing owner.” (3 Bl. Book Adm., p. 163.) See, also, Roccus de Navibus et Naulo, Ingersoll’s Trans., Not. LXXIY; see, also, article XI of the laws of the Hanse Towns, which provides that, “the merchants are bound to load the ship by a prefixed time, on pain of paying the whole freight, notwithstanding the ship proceeds in her voyage light, and in her ballast -only.” (Appdix., 1 Pet. Adm., XCIX.) See, • also, the French Ordinance of 1681 (Lib. 3, title 3, Fret., art. 3); see, also, Desjardins Traite de Droit Com. Maritine (vol. 3, p. 595, Paris, 1882); see also, Mabynes Lex Mercatoria (p. 98).-The same doctrine is asserted in Molloy De Jure Marítimo (8th ed., 1744, p. 255), namély, that “ if a time be appointed by the charter party, and either the ship is not ready to take in, or the merchant is not ready to lade aboard, the parties are at liberty, and the party damnified hath his remedy against the other by action, to recompense his detriment.”

This doctrine was also recognized in (he federal courts in 1801, in Giles v. The Cynthia (1 Peter’s Adm., 203, 207). In that case the court said: “ If a merchant sends the vessel of another for cargo to a designated port and obtains none, he who hired the ship must pay empty for full.” '

See, also, Ashburner v. Balchen (3 Seld., 264), Rupp v. Lobach (4 E. D. Smith, 69, and the cases cited); Abbott on Shipping (7th Am. ed,, 535 and cases cited); Heckscher v. McCrea (24 Wend., 310). And this rule would appear to be applicable when an unforeseen impediment arises, when no cargo is to be had, for in Barker v. Hodgson (3 M. & S., 267), cited the case of Rupp v. Lobaah {supra), it was held that the prevalence of an infectious disease at the port, in consequence of which all public intercourse was prohibited, was no excuse. (See, also, Sjoerds v. Luscombe, 16 East, 201; Bessey v. Evans, 4 Campb., 131; Randall v. Lynch, 2 id., 356).

It will have been perceived that by the language of the charter it was provided that lay days for loading and discharging should be as follows (if not sooner dispatched): Commencing from the time the vessel was ready to receive or deliver cargo at Turks Island to load, quick dispatch.” And as stated by Chief Justice Daly of the Common Pleas, in the case of Terjeson v. Canter (reported in 9 Daly, 193), and the proposition is sustained by numerous authorities cited to maintain it, the word “ dispatch,” when employed in stipulations of this nature, means that the consignee is to take the cargo-as rapidly as the vessel can deliver it. In Sleeper v. Ping (8 Reporter, 357) it was held that where the charter party provided for dispatch in unloading and delivering the cargo the charterer took the risk of any delay in obtaining a berth for the vessel, and was bound to take the cargo as rapidly as the vessel could deliver it. And Justice Blatchford, in delivering the opinion of the court, said that in the absencb of any provision, that the custroms and rules of the port of Havana should control as to the time of discharging the cargo there, and because of the use of the word “ dispatch ” in the charter party, it must be held that the respondents were bound to take the cargo as rapidly as the vessel could deliver it. And it seems to be further established as a principle of law that if a master of a vessel, upon arrival at a place designated by the charter party, is advised that the cargo cannot be had he is not bound to wait but may sail immediately and can recover empty for full. (Clarke v. Crabtree, 2 Curtis C. C., 87.)

That case was one in which the charterer covenanted to provide and furnish a barque at Bonaire a full cargo of salt and to pay for the freight of the vessel fourteen cents per bushel custom-house measure. It also contained a covenant that the master was to use the vessel’s funds in payment for the salt, which he was to purchase at the lowest cash price, and on the vessel’s arrival at Boston the charterers were to pay him or his agents the invoice cost of the salt, export duty, if any, and interest on the amount invested in the purchase from Bonaire to Boston, and the Boston wharfage, all in addition to the freight. It appeared that the vessel went to Bonaire; that the master -was unable to purchase the salt owing to the failure of the supply and returned to Boston in ballast. The question was whether, under, the provisions of the charter party, he could recover for dead freight.

In that case the question here presented by the answer, and by the contention of the defendants here, was considered, viz., the impropriety of the master sailing without waiting for the cargo, which it was expected he could be supplied within a week after the time when he determined to sail* and did sail. It is said in the opinion of Judge Curtis : It is objected that the master waited but twenty-four hours at Bonaire; that if a master sails away without waiting the stipulated number of lay days, if the number is stipulated, or a reasonable number, if there be no stipulated number, he cannot recover for dead freight. And that the evidence showed three to five .days is the usual, and therefore the reasonable number of days at Bonaire. But he said the evidence only proves three to five days, the ordinary time occupied in taking a cargo of salt on board there, not to wait to find a cargo, and if the master ascertained in less than twenty-four hours that by waiting three to five days he could not obtain a cargo he was not only not bound to wait, but he had no right to wait and impose the charge of lying there upon the charterers. That is exactly the difficulty of the defendants’ contention in this case. The terms of the charter party relate not to delays occasioned by the absence of a cargo but in lading on board.

After the words “ quick dispatch,” to which allusion has been made, the charter party provides as follows:

“At New York to discharge fifteen hundred bushels per working day, and for each and every day’s detention, by default of said party of the second part, or agent, forty IT. S. C. dollars per day, payable day by day, shall be paid by said, party of the second part, or their agent,” etc.

But it is not necessary to invoke this strict rule for this case, because the master waited from the tenth to the seventeenth of September, after it had been certified by the defendants’ agents that no salt was to be had at the island, and after it had been admitted that if he waited, the largest number of days required for loading the ship stated by any witness, viz., a week, there would be no cargo for him to receive; and his departure was further predicated of the refusal of the agents of the defendants to guarantee a cargo in two weeks or two months, or to make any extension of the charter, or by agreement to cover in a proper mode the delay which was asked in reference to the lading of the cargo, if one was ultimately obtained. It is to be considered, also, in regard to the question of remaining at Turk’s Island for another week, as contemplated by the suggestion of Mr. Frith, that the vessel was at the island during what was called the hurricane" season, and would necessarily have been exposed to such disaster, by such additional delay, as might be occasioned by any of the elements distinguishing such a season.

The result of a consideration of the questions presented by this appeal, thus far considered, is, for the reasons stated, that the plaintiffs are entitled'to recover. And it follows necessarily that none of the requests to charge which were refused, form any valid objection to the maintenance of the judgment rendered herein. The learned justice presiding in the court below refused to recognize such as were rejected, because they were not applicable to the facts in the case. And in this he was right, for the reasons stated herein. There was no cargo at the place of destination; the master was under no obligations to proceed elsewhere to obtain it; under the circumstances detailed he was not obliged to wait any longer than he did; the contract on the part of the owners was fully performed, and the defendants failed to supply the cargo and failed to adopt any methods by which they put the plaintiffs or the master in default.

It has already been stated, that there was but one quéstion of fact which it was thought necessary for the jury to pass upon, and this is founded in part upon the inquiry of the court after the testimony was closed, addressed to the defendants’ counsel, viz., what question there was for the jury; to which the defendants’ counsel replied: “The question oí damages.” Upon the question of damages, the court after instructing the jury as to the methods by which they should arrive at the amount to be determined upon to which the plaintiffs were entitled, said : “ To recapitulate :

First. You have to get at the gross amount of freight; that is, you are to determine how many bushels of salt would have constituted a fair cargo. That, at seven cents a bushel, will determine the gross freight. From such gross freight you will deduct the proper and legitimate expenses which the vessel would have been put to in performing her part of the charter with reference to the delivery of the salt, and for that balance you will give the plaintiffs a verdict. It is a pretty hard case all around. The defendants, however, in entering into the charter party, took the risk of there being salt at Turks Island when the vessel arrived there.”

The learned justice also said: “.It may be hard on them to receive no cargo, and yet to have to pay freight. On the other hand, the s vessel was there in a trying position. There was no cargo nor any certainty of any within a reasonable time. The captain only exercised his legal rights under the peculiar circumstances in which he was placed, and the plaintiffs are entitled to their legal damages according to the truth of the case. What these damages ought to be, I will leave it to you to say under the insti’uctions I have given you.”

The instructions in reference to the amount and the mode of ascertaining it wére correctly stated. In McLaughlin on Shipping {p. 545), the measure of damages in an action of non-performance, is said to be the loss arising from the breach of the contract; and further, the learned author says, in an action by the shipowner the amount of this loss is the amount of the freight under the charter party, deducting the expense of earning it and any freight actually earned by the ship during the same period. In this case there was no freight earned by the ship to be deducted, because there was no export, as we have already seen, from Turks Island except salt.

It is, therefore, the duty of the court to affirm the judgment. Ordered accordingly, with costs.

Navis, P. J., concurred.,

Present — Navis, P. J., Brady and Nwi&ht, JJ.

Judgment affirmed, with costs.