author: McADAM, J.

text:
    Julia Hess, Resp't, v. Harry Smith, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr'y 26, 1896.)

    1. Former, adjudication—Bar.
    A former recovery in an action on contract, which has not been vacated or reversed, is a complete defense in an action for the conversion of the same property.
    2. Writ—Service.
    The service of process issued in a district court of the city of New York by a person not shown by the record to have been authorized to make such service, does not render the judgment void but constitutes a mere irregularity which may be waived by the failure of the defendant to take advantage of the objection.
    3. Same—Presumption.
    Where the justice has rendered a judgment upon proof of service made by a person other than a marshal, it will be presumed that he gave the requisite authority.
    4. Same—Estoppel.
    The objection that the person who served the summons was not authorized to serve it cannot avail the plaintiff, or be taken advantage of by her, where she procured the service herself.
    8. Same.
    A party, who collects a portion of his judgment and thus takes a benefit under it, is estopped from objecting to, or even appealing from, it.
    6. Same.
    Where a judgment is merely irregular, no relief can be had against the irregularity except in the action itself.
    Appeal from a judgment in favor of plaintiff.’
    Charles H. Benu, for app’lt; Joseph B, Fallon, Jr., for resp’t.
   McADAM, J.

The action was in trover for conversion; the defense a former recovery in bar. The proofs showed that the plaintiff bad brought suit for the same claim on contract, and recovered judgment by default for $78.50, out of which she had collected $fi. This action, was for the conversion of the same property, but the amount previously collected was credited on the value proved, allowed as a counterclaim, and judgment given for the balance, $33, with costs. From that determination this appeal is taken.

The former recovery, which has not been vacated or reversed, is a complete defense. The plaintiff had an election to sue on contract or in tort. She chose the former, and the election once made is irrevocable. Insurance Co. v. Lawrence, 14 Johns. 55; Conrow v. Little, 115 N. Y. 387; 26 St. Rep. 527; Terry v. Munger, 121 N. Y. 161; 30 St. Rep. 746; Crossman v. Universal Rubber Co., 127 N. Y. 34; 37 St. Rep. 230. The plaintiff seeks to avoid the effect of the judgment in the first action on the ground that it was void because recovered by default on a personal service of process not made by a city marshal or other person deputed by the justice. She claims that, having pleaded the judgments in bar, the defendant was bound to establish the facts conferring jurisdiction. Code, § 532. This raises the question whether the service of the process by a person not shown by the record to have been authorized to make the service renders the judgment void of constitutes a mere irregularity which was waived by the failure of the defendant to take advantage of the objection. The Code (section 3208) provides that on an action brought in a district court of the city of New York, in the justice's court of the city of Albany, or in the justice’s court of the city of Troy,, the summons, and, in a proper case, a copy of the complaint, may be served by any person not a party to the action, except that where the action is brought in a district court .of the city of New York a person other than a constable or a marshal serving the same must be first empowered to do so by the justice. It is not prescribed how this authority is to be conferred, whether orally or in writing, and, so long as the person who makes the service is first authorized to do so by the justice, the service is legal. The justice having rendered judgment upon the proof of service made by a person other than a marshal, it must be presumed the jus dee gave the requisite authority, or otherwise we are required to presume that he illegally performed his duty, when the inference is that everything required to be done by him to make his acts legal was done. Mandeville v. Reynolds, 68 N. Y. 528, 534.

Another answer to the plaintiff’s contention is that the objection that the person who served the summons was not authorized to serve it cannot avail the plaintiff, or be taken advantage of by her because she procured the service herself She used it as a regular service, tried her suit, and took judgment against the defendant upon it, and collected a portion of the judgment. Even if the defendant could have taken advantage of it (and he could not except in the action itself), the plaintiff certainly cannot. It is a rule of law that no person can take advantage of his own wrong. He cannot show that a judgment which he has himself obtained is void because of fraud or want of jurisdiction over the person. Kinnier v. Kinnier, 45 N. Y. 542, 543, Draper v. Trescott, 29 Barb. 406, 407; Billington v. Wagoner, 33 N. Y. 34-36. Besides, the plaintiff, having collected a portion of the judgment, and thus taken a benefit under it, is estopped from objecting to, or even appealing from it. Carll v. Oakley, 97 N. Y. 633; Bennett v. Van Syckel, 18 id. 481; Radway v. Graham, 4 Abb. Pr. 468; Glackin v. Zeller, 52 Barb., at page 152. The justice before whom the suit was tried had jurisdiction of the subject-matter, and want of jurisdiction of the person might be waived. Whether the person who served the summons in this case was duly authorized or not is a question which the defendant alone can raise, and he made no objection,

It has been held that a judgment roll showing that snmmons was served by the plaintiff himself is not void, but simply irregular. Myers v. Overton, 2 Abb. Pr. 334; Hunter v. Lester, 18 How. Pr. 347. Where a judgment is merely irregular, no relieve can be had against the irregularity except in the action itself. Such a judgment cannot be attacked collaterally

For these reasons the j augment appealed from must be reversed and asa new trial would not avail the plaintiff, there must be judgment absolute for the defendant, with costs.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    New York Small Stock Company, Resp’t, v. Third Ave. Railroad Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 26, 1896.)

      • Justice of the peace—Jury trial.
    Under section 1372 of the Consolidation Act, as amended by chapter 378, of 1891, the justice may, in his discretion, where a judgment of the justice has been reversed and the case remanded, order a jury for the second trial.
    Appeal from a judgment in favor of plaintiff,
    Hoadly, Lauterbach & Johnson, for app’lt; J. 0. Wolff, for resp’t.
   PER CURIAM

The plaintiff sues to recover damages caused by the alleged negligence of defendant. When the action was before the general term of the court of common pleas on the prior appeal, the judgment, which was in favor of the plaintiff, was reversed, and a new trial ordered, with costs to the appellant to abide the event. See 13 Misc. Rep. 276; 68 St. Rep. 16. The sole ground of reversal was that the judgment was against the weight of evidence, and the same ground is urged on this appeal. The first trial was had before the justice without a jury. Upon the new trial, the justice, of his own motion, impaneled a jury, which found in favor of the plaintiff. Defendant’s counsel objected to a trial by jury, on the ground that, the first trial having been had without one, the award of a new trial meant that it should be had in like manner. This does not necessarily follow. The consolidation act (section 1372), as amended by Laws 1891, c. 378, among other things, provides:

“When an issue of fact has been joined in an action or special proceeding, and a trial by jury has not been demanded, the justice may in his discretion, at any stage of the action or proceeding, direct that a trial thereof be had by jury, and a trial by jury shall thereupon be had, in the same manner as though either of the parties had demanded it.”

In reversing the first judgment, the court'laid stress on the fact that it was founded chiefly on interested testimony, while the defense was substantiated by six witnesses, nearly all of whom were disinterested, who were corroborated to an extent by one of the plaintiff’s witnesses. This witness did not testify at the trial. Upon the second trial the plaintiff was materially corroborated by Mr. Schlereth, a disinterested witness, who was a passenger on the defendant’s car at the time the collision occurred So that the present record comes before us with the respondent’s case considerably strengthened, and hardly open to the criticism made against the first judgment. The jury heard the testimony of the different witnesses, and observed their manner of testifying. It was peculiarly appropriate in a case of this kind, where the testimony was conflicting, that a jury should determine whether the story told by the plaintiff’s witnesses was truthful or not. We cannot now say that the verdict is against the evidence, and as that is the only objection urged on this appeal, the judgment must be affirmed with costs


author: RUMSEY, J.

text:
    In the Matter of the Application for Probate of the Will of Nicholas Seagrist, Deceased.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 21, 1896.)

    1. Wills—Undue influence.
    Persons, who occupy intimate and affectionate relations with any individual have the right, by personal request, fair argument and even by decent importunities, to procure a will to be made, and the fact that they have done so is no argument against the validity of the paper, provided these importunities do not proceed so far as to overpower the will of the testator and induce him to do the thing which he would not have done but for these importunities, and to substitute the will of the beneficiaries in the place of his own uncontrolled judgment.
    2. Same.
    If the result of the importunities is simply to cause the testator to act and to convince him of the propriety of making the will in the way in which he finally does make it, so that, at the last, it is his own act, and represents his own judgment, the will is nevertheless good. So held, where a person, at the request of beneficiaries named therein, asked testator to make a will, if nothing is said by them to such person, or by him to testator, as to what the will shall contain.
    8. Wills—Testamentary capacity.
    The fact that a man is upon his death bed when he executes a will is no argument against its validity.
    4. Same.
    If it shall appear that, a|the time the will is exe'cuted, he is possessed of sufficient comprehension to enable him to appreciate generally the extent of his property, to remember the persons who are dependent upon him, and to decide individually as to the propriety of his benefactions to them, the will which he makes is valid.
    6. Same—Evidence.
    Expert evidence as to the mental condition of the testator, while it must be considered, ought not to overweigh the direct testimony of competent and disinterested people, who tell what the actual facts are.
    6. Same—Admission or rejection of evidence.
    To justify a reversal on the ground of an error in admitting or rejecting evidence under section 2545 of the Oode, it must appear that, had the evidence which was rejected been received, the appellant’s case would not have failed, or that, without the improper evidence which was received, the respondent’s case was insufficient.
    7. Same—Contest—Costs.
    On an unsuccessful contest of a will, costs should be paid by contestantsz personally and not charged upon the estate.
    Appeal from a decree admitting the will to probate.

      Edward S. Clinch and Joseph H. Hayes, for app’lts; Edward W. S. Johnston, for resp’ts.
   RUMSEY, J.

Nicholas Seagrist, a resident of the city of New York, died on the 14th day of April, 1894, after a sickness of a few days. He was a man between seventy and eighty years of age, who had, partly by inheritance, but much more by his own exertions, become possessed of an estate of over a quarter of a million of dollars. He was a bachelor, and for some years had lived with F. S. K. Sigrist and his wife, Theresa, who was a niece of the testator, but who had lived in his family for many years before her marriage. He had other collateral relatives, with some of whom, so far as appears, he was on friendly, but not intimate terms, and with some he was slightly acquainted. He was taken sick with diabetes on the 10th day of April. Before that time he had made no will. His disease progressed rapidly, and in a short time he became a very sick man. On the 14th of April his situation was serious, but even then his immediate death was not expected by anybody in his household, although the doctor in attendance upon him despaired of his life. The will was executed at between three and four o’clock on the afternoon of the 14th, and the testator died at midnight of that day. The will was propounded for probate in the usual way, and several of his next of kin appeared and entered upon a contest. The contestants made the usual allegations of want of testamentary capacity, and that the will was procured by fraud and undue influence of the principal devisee and that it was not properly executed. After a long trial, the surrogate admitted the will to probate, and from his decree to that effect this appeal is taken.

Upon the hearing before the surrogate there was practically no dispute as to what occurred at the time the will was made, nor is there the slightest reason to doubt that the story of what took place at the execution of the will by the proponents’ witnesses is substantially correct. It is quite true that they do not agree in all the details of the transaction, but it is a familiar experience that, where several witnesses are called upon to testify to the same transaction, there is apt to be some discrepancy as to the minor details of it. Indeed, if witnesses should agree as to every detail of a transaction which occupied a considerable space of time,- and should undertake to tell all that occurred in precisely the same order, each giving the same incidents as the others in precisely the same words, that fact would be, of itself, a suspicious circumstance. In re Lyddy’s Will, 24 St. Rep. 607.

The will was witnessed by five persons. That fact0is suggested as affording the presumption that all was not right, because it is not usual to produce so many witnesses to a will. Even if there were any force in this suggestion, it is removed by the proof of the fact that Nicholas Seagrist himself not infrequently drew wills for other people, and that, in superintending the execution of the will of his niece Theresa, he had procured five people to sign it as witnesses. The' fact itself is comparatively uniinportant, and the proof as to the manner in which his niece’s will was executed is only material as tending to show a peculiarity of the testator which would give a reason why the husband of the niece, in preparing for the execution of his uncle’s will, should procure , the same num,ber of people to sign it as witnesses.

It seems, from the testimony, that the will was drawn by Mr. Orrell, a lawyer of many years’ experience, who had for a long time been an intimate friend of the testator. Just how he came to draw the will does not appear. The proponents propose to-show from whom he received his instructions. This was objected to by the contestants, and npon that objection the surrogate excluded it. The correctness of that ruling is not here in question, but the fact that the ruling was made, and the witness was thereby' rendered incompetent, for the purposes of this trial, to give evidence as to the person from whom he received instructions to draw the will, very la-rgely deprives of its force the objection that he, the only person who knew where the instructions came from, did-not testify to the fact. However, he was permitted to, and did, testify that he received no directions with regard to the the will from F. S. K. Seagrist, or from Theresa, his wife, who are the persons accused of practicing undue influence, and of procuring the will -to be drawn. Mr. Orrell did testify, however, that he had a long interview, lasting the greater part of a day, with Nicholas Seagrist; that, afterwards, he drew this will, and caused it to be engrossed; that on the 14th of April he took it to the house of the testator, who was then in bed, very ill; that it was read to him, and he understood it And then he describes, as did the witnesses to the will, what took place by way of execution of it. With regard to that, it is sufficienc to say that the formalities of the statute were in all respects complied with, and that the will was formally executed.

The will gives to Theresa Seagrist, the wife of Frank Seagrist, half of the testator’s estate. It appears, from the testimony, that Frank Seagrist and h'is wife were the only inmates of the house of the testator, except the servants, that they had lived with him for many years, and that their relations with him were affectionate and intimate; and the contestants insisted that they took advantage of this relation which they bore to the testator to induce him to make a will, when, if he had been left to himself, he would Have died intestate, and permitted his property to be distributed among all of his next of kin. To this contention there are two answers : In the first place, it is not even fairly to be inferred from the evidence that the'testator would not have made the will, if he had been left to his own devices. It is quite true that evidence was given on the part of the contestants, to the effect that he had, at various times, declared that he would never make a will; -but evidence was also offered, by the proponents, of declarations of.the testator with regard to his relations towards "Theresa, of the affection he bore to her, and evincing his intention that she'should have the larger part of his estate. So that all that can be inferred from the evidence,on that point, is that there were times during which he had no intention of making a will. In re White’s Will, 15 St. Rep. 753. But that evidence, itself, is of very slight importnnce. The will, as made, was a very natural one. His relationship to these persons who lived with him i.n the house was, as has been said, intimate and affectionate. Theresa Seagrist had been an inmate of his house before her marriage, and occupied almost the position of a daughter towards him. He had frequently expressed to many people the obligations he felt towards her for the kindness she had shown him, and it is evident she was the favorite among all his nephews and nieces. Some of these nephews and nieces, who lived elsewhere, were evidently not familiarly acquainted with him; and while his relations towards them all were friendly, and he sometimes visited them, it is quite clear, from the testimony, that he felt no particular affection for them, and neither had nor expressed any idea that he was under obligations to provide for them in any way. So that, in .view of the testator’s situation, as shown by the evidence, which is substantially uncontradicted, the intrinsic evidence that the -will was the product of his own intention and desire is very strong.

But, even "if he was procured to make a will in favor of Theresa, by her and her husband, that of itself is no proof of fraud or undue influence. Those persons who occupy intimate and affectionate relations with any individual have the right, by personal request, by fair argument, and even by decent importunities, to procure a will to be made. The fact that they have done so is no argument against the validity of the paper, provided these importunities do not proceed so far as to overpower the will of the testator, and induce him to do the thing which he would not have done but for these importunities, and to substitute- the will of the beneficiaries in the place of his own uncontrolled judgment. Parfitt v. Lawless, L. R. 2 ob. Div. 462; Tyler v. Gardiner, 35 N. Y. 559. If the result of the importunities is simply to cause the testator to act, and to convince him of the propriety of making the will in the way in which he finally does make it, so that, at the last, it is his own act, and represents his own judgment, the will is nevertheless good.

Giving all the weight which can be claimed for it to the fact that the beneficiaries were anxious that a will should be made, and procured Dr. Campbell to request the testator to do it, there is not one particle of undue influence. Nothing was said to Dr. Campbell by them, nor by him to the testator, as to the manner of will that should be made. All that was asked was that he should make a will; and when he concluded to make it, so far as 'appears, he had no communication with Theresa or her husband as to what his will should contain. It may be inferred that Frank Seagrist knew that a will was to be made, because it appears from his own testimony that he requested the witnesses to be present to execute it.; but there is not one particle of evidence that he or his wife spoke to the testator about it, nor did any more than follow directions in that regard, and it appears from the testimony that these directions, such as they were, were received from Mr. Orrell after his interview with the testator. Indeed, the case, upon the whole, is entirely barren of any evidence of undue influence. Neither is there any question but that the testator knew the contents of this will. While there is no direct evidence on the subject, yet it is fair to infer, from what does appeal-, that he gave directions to Orrell about it, that Orrell drew the will as he was directed to do, that it was read over to him, and that he understood what there was in it.

The contestants insist that there was not sufficient proof that the testator was competent to make a will. This claim might be dismissed without any discussion, were it not for one or two exceptions to the rejection of evidence which appear in the case. The witnesses to his testamentary capacity were those who were present at the time of the making of the will.. From the story they tell, it is fairly to be inferred that, while the testator was exceedingly weak, and much nearer death than any of them anticipated, yet that he was in full possession of his faculties. The will was the result of an interview which had taken place before. At the time lie executed it, he knew the people who surrounded him, he was able to express his desires, and he understood the tiling that he was doing. The fact that a man is upon his deathbed when lie executes a will is, of course, no argument against its validity. The same clearness of comprehension and ability of expression which is required to enable a man to enter into a contract need not exist to enable him to make a valid will If it shall appear that, at the time the will was executed, he was possessed of sufficient comprehension to enable him to appreciate generally the extent of his property, to remember the persons who were dependent upon him, and to decide intelligently as to the propriety of his benefactions to them, the will which he makes is valid. 1 Jarm. Wills (5th Ed.) 38, note. The evidence offered by the proponents was sufficient, if believed, to warrant the surrogate in finding that the testator possessed this capacity. Indeed, there is nothing in the way of facts to contradict this evidence. The man was undoubtedly very weak. He was lying at the point of death, and his death followed, actually, within eight hours after the will was made. But, except in the excessive feebleness which accompanied such a physical condition, there is nothing to show that his mental condition was not as good at that time as it had been for some days before. There was some expert evidence offered as to what his menal condition must have been in view of the facts. But evidence of that kind, while it must be considered, ought not to overweigh the direct testimony of competent and disinterested people, who tell what the actual facts were.

It is not difficult, in any case, to frame a hypothetical question which, by putting forward one set of facts, and skillfully avoiding other facts, may bring out an answer which is favorable to the side of the counsel who frames the question. In framing such questions counsel are not called upon to state all the facts. The rule is that the question shall embrace no facts except such as may fairly be inferred from the evidence. If they obey that rule, counsel may frame their question in view of such facts as they see fit to include in it, provided, only, that the facts stated are fairly within the purview 'of the evidence. Dilleber v. Insurance Co., 87 N. Y. 79. So, when one is called upon to examine the weight to be given to an answer to a hypothetical question, it is necessary, in the first place, to see how accurately the question expresses the facts that have been made to appear. In this particular case, it cannot be said that the facts were unfairly stated. Neither can it be said that the question fully contained all the testimony. As was stated by one of the witnesses, he gave his opinion simply upon the facts which were presented to him, and he did not intend to give any opinion as to the actual condition of the testator, except as evidenced by these facts. However fairly a question of that kind may be framed, it must necessarily be incomplete in its presentation oí the facts; 'and for that reason the weight to be given to it must be considerably less than if the testifying witness had been familiar with the precise condition of the man whose capacity is the subject of examination, and gave an opinion based on that knowledge. Bearing in mind these considerations, it is fair to say that, upon- all the testimony, we think that the surrogate could have reached no other conclusion than that the testator, at the time of making this will, was fully possessed of testamentary capacity.

Many exceptions were taken to the rejection of evidence by the surrogate. These exceptions we have examined with considerable care. The rule in these cases is that the decree of a surrogate shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that exceptant was necessarily prejudiced thereby. Code Civ. Proc. § 2545. The court of appeals, in applying this rule, have held that, to justify a reversal, it must appear that, had the evidence which was rejected been received, the appellant’s case would not have failed, or that, without the improper evidence which was received, the respondent’s case was insufficient. Snyder v. Sherman, 88 N. Y. 656; In re Miner’s Will, 146 id. 121; 66 St. Rep. 265. Applying this principle to this case, we are quite clear that there was no reversible error in the rulings of the surrogate. We do not mean to be understood as holding that these rulings were not erroneous. It is sufficient to say that we have examined with care all of them which are relied upon here, and that, in our opinion, had the rulings been in every case such as were desired by the appellants, the result could not have been changed. The case made by the proponents was very strong, and that made by the contestants was very weak, and there is no aspect of this case, even considering all the testimony that was offered, by which a contrary result could have been reached. We have not omitted to consider what took place with relation to the execution of the satisfactions of the mortgages, or the conduct of Frank Seagrist after the will was executed, and up to the time that a temporary administrator was appointed. We are unable to gather from these facts anything which could throw any suspicion upon their motive or would warrant the inference that the will was not in all respects properly executed by a competent testator. Indeed, he seems to have appreciated all that was done at the time the mortgages were satisfied, which was after the execution of the will; and, if any inference whatever is to be drawn from what took place there, it is that he thoroughly understood what he was doing. Upon the whole case, w.e are of the opinion that the decree of the surrogate must be affirmed.

This affirmance should be with costs against the contestants, and. these costs should be paid by the contestants personally, and not charged upon the estate. The award of costs in a case is made by way of indemnity to the successtul party. One who is entitled, to share in an estate is not indemnified in that regard, if he is compelled to give up part of the estate to pay himself for costs which other people have made in trying to take the estate away from him. Therefore, when the person trying to get the estate fails to secure it, it is a proper case, in our judgment, to require him to pay the cost of his unsuccessful attempt.

All concur.


text:
    Nellie F. Brown, Resp’t, v. John S. Foster, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 21, 1896.)

    1. Damages—Personal injuries.
    In an action for personal injuries, where the jury conclude that the plaintiff is entitled to recover, they must, in assessing the damages to be awarded, consider all the heads of damage in respect of which a plaintiff is entitled to compensation. So held, where, in an action for personal injuries, whereby plaintiff, who was prior to the injury earning twenty to twenty-five dollars a week, was prevented for many weeks from prosecuting her business, and in the meantime suffered pain and incurred a doctor's bill, a verdict for the amount of such doctor’s bill and no more was rendered.

      2. Costs—New trial.
    When a new trial is granted for error of the jury, costs of the former trial should be imposed upon the party asking for it, as a condition of granting' the favor.
    Appeal from an order granting a new trial on motion for plaintiff.
    O. F. Finnerty, for app’lt; M. F. Ennis, for resp’t.
   RUMSEY, J.

The motion was granted upon the ground that the damages were insufficient. The jury, when they rendered a verdict for the plaintiff, resolved in her favor $11 the questions of fact on the merits; and it was then their duty to give her such a verdict as would compensate her for the injuries she had received. There is ho doubt that these injuries while they were not perhaps permanent, were grave. The rule in such a case is that, where the jury conclude that the plaintiff is entitled to recover, they must, in assessing the damages to be awarded, consider all the heads of damage in respect of which a plaintiff is entitled to compensation. These áre the bodily injuries sustained; the pain suffered; the effect on the health of the sufferer, according to its degree and its probable duration ; the expenses incidental to an attempt to affect a cure or to lessen the injury; the pecuniary loss sustained through inability to attend to a business, as to which, again, the injury may be temporary or permanent. If they have taken all these elements of damage into consideration, and have awarded what they deem a fair and reasonable compensation under the circumstances of the case, a court ought not, unless under very exceptional circumstances, to disturb their verdict. Phillips v. Railway Co., 4 Q. B. Div. 406. The rules laid down in that case are well sustained, and the case was one which was carefully considered. The court there set aside as inadequate a verdict for plaintiff for £7,000 sterling, holding that the jury must have omitted to take into account some of the heads of damage which they should have considered. The case has become a leading one upon the point involved.

In the case at bar it appeared that Mrs. Brown was a trained nurse by profession, earning from $20 to $25 a week. By the injury, her leg was broken, and she was rendered unable to work. This occurred on March 29th. It • was proven clearly that she was kept from her business for many weeks. The usual pain necessarily accompanied and followed, such an injury. She incurred a doctor’s bill for $108. The jury, finding that she was entitled to a verdict, gave her one for the amount of her doctor’s bill, and no more. The statement of the facts condemns the verdict, and justifies the order. But it is the rule that, when a new trial is granted for error of the jury, costs of the former trial should be imposed upon the party asking for it, as a condition of granting the favor. Bailey v. Park, 5 Hun, 41; O’Shea v. McLear, 16 St. Rep. 482. Because this condition was not imposed, the order must be modified by requiring the plaintiff to pay the costs and disbursements of the former trial, as a condition of granting the new trial, and, as modified, affirmed.

Order modified by inserting that the new trial is granted upon condition that the plaintiff shall pay to the- defendant the costs and disbursements of the former trial; neither party to have costs of this appeal.

All concur.


author: WILLIAMS, J.

text:
    Benigno S. Suarez, as Executor, etc., App’lt, v. Isabella De Montigny et al. Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 14, 1896.)

    1. Trusts—Beneficiary—Consent.
    While in some ca=es a power to dispose of the trust estate may be implied from the nature of the trust and the provisions of the trust agreement, yet, where it is provided that there should be no disposition of Ihe trust estate except with the written consent, of the beneficiary, no such power can be implied, and no transfer can be made, unless there is a compliance with the conditions prescribed in the trust agreement.
    2. Same—Purchaser.
    A party, who deals with a trustee in the purchase from him of trust securities, is bound to look into the trust agreement to ascertain the power of the trustee.

      3. Same.
    Where the power which is found in the trust agreement is limited by a. condition requiring the consent of the cestui que trust, the party is chargeable with notice of such limitation as a part of the power itself.
    4. Same—Purchase money.
    The purchaser of a mortgage from a trustee, unauthorised to sell, has no equity to hold and enforce it until the money which he paid the trustee for it is returned to him, unless the trust estate received and had the benefit of such money.
    Appeal from a judgment in favor of defendants.
    The action was brought to foreclose a mortgage given by defendant Isabella De Montigny to Morrison, substituted trustee of the separate estate of the defendant Isabel Yon Linden. Originally the mortgage was for $40,000, but was paid down to $25,-000. It was thereafter assigned to Francis H. Weeks, who had been substituted as trustee of such estate, and by such substituted trustee assigned to plaintiff, who,paid $25,000 therefor. Subsequently the Central Trust Company, defendant, was substituted as trustee of the estate in place of Weeks. The mortgagor, De Mon-tigny,‘the trust company, as trustee, and the cestui que trust, defend the action on the ground that the plaintiff is not the owner and has no right to foreclose the mortgage. The trust was created by a marriage settlement agreement made November 29, 1876, at Stuttgart, in the kingdom of Wurtemberg. By the agreement it was provided that all of Madame Yon Linden’s property of every kind, from the date of her marriage, should be and remain her own, for her sole and separate use, and free from the control of her husband, the same as though she remained single. In and by such agreement, she conveyed to her mother, Blandina B. An- / ' drews, all her property in trust, to collect and pay over to her during her natural life the income therefrom, and after her death to transfer, convey, and deliver the property to such persons as she should designate by her will, or, in the absence of the will, to such persons as should be entitled tof the same under the laws of distribution and descent of intestates’ property in the kingdom of Wurtemburg. It was further provided by the agreement, that the trustee should have full power for the purposes of the trust to sell, transfer, convey, invest, and reinvest such property, but not without the consent of the cestui que trust expressed in writing, under her proper hand, and that the trustee should hold the property for the sole use of the cestui que trust, and keep the same as then invested, or with her written consent, and not other- ■ wise, change the investment from time to time. Morrison was substituted as trustee in the place of Mrs. Andrews about October 18,1883. The mortgage in question was given June 24, 1884. Weeks was substituted as trustee in the place of Morrison August 27, 1889, .and the mortgage was thereupon assigned to him as such trustee. Weeks assigned the mortgage to plaintiff December 22, 1890, and received the $25,000 therefor. The next day, December 23, 1890, Weeks took in his own name, and not, as trustee, a mortgage made by D. 0. Weeks for $25,000, and paid the money therefor. There was some correspondence between the trustee Weeks and Madame Yon Linden which it may be well to consider. December 2, 1889, Madame Yon Linden wrote to the trustee that it would be pleasant if he could increase her income. March 18, 1890, she wrote that the idea of an increase of her income through his kindness was pleasant. May 6, 1890, the trustee wrote to her that he had been making a few changes in investments to increase the rate of interest, the income on which would come in soon. In November, 1890, she wrote thanking him for the proposed increase of income. These letters were written before the transfer of the mortgage, December 22, 1890. After the transfer of the mortgage, and April 6, 1391, the trustee wrote her that, pursuant to her request, he would send to her banker in Stuttgart $30,000, to be invested for him as trustee, and the income to be paid over to her: that he had arranged to get cash on a mortgage for $25,000 ; and that, until he got the cash on some other mortgage, he would advance the remaining $5,000 himself. In this letter he sent a writing, to be signed by her and returned to him, to the effect that she requested and consented that he .should convert into money enough of the property in his hands as trustee to produce $30,000, and remit the amount to her banker in Stuttgart, to be invested by him, and the income paid to her, and wherein she agreed that the trustee should not be liable for any loss of the money so remitted or the income therefrom. This paper was executed by Madame Von Linden, and returned to the trustee April 21,1891. May 7, 1891, the trustee sold and transferred the D. C. Weeks mortgage to Dix, executor, etc., for $25,000, and received the money, which he deposited to his credit in his own private account. May 12, 1891, he wrote Madame Yon Linden that he had received the request and consent for the $30,000, and would arrange in a few days to make the remittance to her banker. Thereafter, and July 8, 1891, the trustee remitted to Madame You Linden’s banker in Stuttgart $25,000, and September 18, 1891, she wrote thanking him for the remittance. In the list of mortgages furnished by the trustee to Madame Yon Linden, January 1, 1892, the mortgage in suit was not included, but at the bottom of such list was an item, cash cost of draft for £5,000, remitted to Stuttgart banker. April 11,1892, Madame Yon Linden wrote to the trustee acknowledging the receipt of the list of mortgages, and referred to this item, and said that the list was interesting, and she noticed there had been many changes. July 1, 1892, the trustee rendered an account to Madame Yon Linden, in which, under the date of July 1, 1891, there was a credit of $625, for interest on the mortgage in suit, which it was there said had been sold, and the proceeds remitted to the Stuttgart banker, July 6, 1891, and there was no credit in any of the subsequent accounts for interest on this mortgage. It seems that the $25,000 remitted to Stuttgart was attempted to be applied by the banker to the payment of overdrafts by Madame Yon Linden, but the trastee never consented to this application, nor did Madame Yon Linden.

      Chase Mellen, for app’lt; Alfred J. Taylor and Robert Kelley Prentice, for resp’ts.
   WILLIAMS, J.

— There seems to be no doubt that a valid trust was created by the marriage settlement agreement, and that such trust, being for the benefit, not only of Madame Von Linden, bather appointees or descendants, was irrevocable.- The trustee had no power to transfer the mortgage without the written consent of Madame Von Linden. The agreement so provided, and the trustee had no power to dispose of trust estate, or any part of it, except such power as he derived from the instrument creating the trust. While in some cases such power might be implied from the nature of the trust and the provisions of the trust agreement, yet where, as in this case, it was provided there should be no disposition of the trust estate except with the written consent of Madame Von Linden, no such powér can be implied, and no transfer can be made unless there was á compliance with the conditions prescribed in the trust agreement. The provision in the agreement necessarily excludes all other powers. Kissam v. Dierkes, 49 N. Y. 602; O’Connor v. Waldo, 83 Hun, 489; 65 St. Rep. 1.

When the plaintiff took the assignment of the mortgage from the trustee, he knew that the mortgage was part of the trust estate ; the assignment was in the name of the trustee. And, this being so, he was bound to inquire and ascertain what the terms of the trust agreement were, and what powers the trustee had as _ to the disposition of the trust estate. It is said that the plaintiff was only bound to inquire whether the trustee under the agreement had a general power to change the securities, to vary the investments, and, if he had, that the plaintiff would be protected in taking the assignment, if he acted in good faith. Perry, Trusts & Trustees, §§ 225, 814. That might be true in a case where the agreement merely provided for a change of securities, the varying of investments, in general terms ; but where, as in this case, the power to so change securities and vary investments was limited by the condition requiring the consent of the cestui que trust, the inquiry to ascertain whether the power existed at all would disclose the limitation. " '

. It was said by Andrews, C. J. (Kirsch v. Tozier, 143 N.Y. 395; 62 St. Rep. 439); that:

“Persons dealing with a trustee must take notice of the scope of his authority. An act within his authority will bind the trust estate or beneficiaries as to third persons acting in good faith and without notice, although the trustee intended to defraud the estate, and actually did accomplish his purpose by means of the act in question. It has frequently been held that a person, dealing with an executor or trustee, who, from the nature of his office and the terms of the trust, has power to satisfy or transfer securities of-the estate or to vary the investments from time to time, is not bound to go further and ascertain whether in fact the act of the executor or trustee is justified, and that no breach of trust was intended. It is sufficient for his protection that he acts in good faith, and, if the act of the executor or trustee is justified by the terms of the power, the party dealing with him will be protected. ”

A party who deals with a trustee in the purchase from him of trust securities is bound to look into the trust agreement to ascertain the power of the trustee. If he finds there merely a general power to change securities or vary investments, or if such power can fairly be implied from the nature of the trust or terms of the agreement, he will then be protected in taking a transfer of such securities, if he acts in good faith, whatever the result may be to the trust estate. But, if the power which is found in the trust agreement is limited by a condition like the one found in this case, the party is chargeable with notice of such limitation as a part of the power itself.

There was, therefore, no legal transfer of this mortgage to the plaintiff unless Madame Von Linden consented in writing to such transfer. Mo consent-was given by her in express terms, but it is claimed that a-consent sufficient to answer the condition in the trust agreement was contained in her letters written to the trustee before and after the transfer, in 'view of the circumstances disclosed by the evidence.. Having considered carefully all the correspondence and circumstances upon which this claim was based, we áre unable to see that the claim is well founded.

Mídame Von Linden had no knowledge that the mortgage had been transferred until long after the assignment had been made and the money paid therefor had been received by the trustee. Upon the receipt of the money, the trustee misappropriated the same, without the knowledge or consent of Madame Von Linden. The next day after he received the money, he purchased another mortgage, paying $25,000 for it, and took this mortgage in his own-name; and when, between four or five months later, he sold this new mortgage, he deposited the money received therefor to his own credit in his private account, and mingled it with other funds in his hands; and there is no claim made that this money was again separated from such other funds in his hands until two months later, when he sent $25,000 to the Stuttgart banker. Madame Von Linden was never notified by the trustee in express terms, that the mortgage in suit had been sold or transferred or converted into money, and it is only sought to establish such knowledge on her part or notice to her of the transfer by the accounts and lists of mortgages sent to her by the trustee long after the transfer had been made, Tlte.sc papers would not have been likely to draw her attention to the transfer, and we do not think it can be said under these circumstances that she ever gave her consent to the transfer which was fairly required by the trust agreement.

The only remaining question is whether the plaintiff has any equity in the mortgage which entitles him to hold and enforce it until the money which he lias paid to the trustee therefor is returned to him. This equity, if any exists, must be based upon a finding of fact that the trust estate actually received and had the benefit of the $25,000. In absence of this finding, no such eqiiity would exist. The trial court refused to find the fact, as alleged, that the $25,000 received from the plaintiff for the mortgage in suit was the same money which was six months later remitted to the Stuttgart banker. In this, we think, the court was correct. The money so received from the plaintiff was at once misappropriated by the trustee, and was not returned to the trust estate. When so misappropriated, it entirely lost its identity. It could no more be said that the money remitted to the Stuttgart banker was the money paid by the plaintiff to the trustee than that it was the money derived by the trustee from the other trust property which he had disposed of, and the proceeds of which he had also misappropriated to a considerable amount. It cannot be said that, the trust estate received and had the benefit of plaintiff's money by reason of this remittance any more than it received and had the benefit of other moneys derived from tne disposition of the trust estate and misappropriated by the trustee. The object of this provision in the trust agreement was to protect the estate against misconduct on the part of the trustee, and misappropriation of its funds, by requiring Madame Yon Linden to consent to any change of securities or varying of investments, and therefore to-know when they occurred, and be able to look after and require the trustee to account for any moneys received from securities so disposed of; and its further purpose was to prevent any sale of securities, and the misappropriation by the trustee thereof, which he might be guilty of in the absence of knowledge on the part of Madame Von Linden. It is true that the plaintiff, though legally churgeable with knowledge and notice of the condition in thetrnst agreement as to the written consent of Madame Von Linden, did not in fact know of it, and had no knowledge or suspicion of any design on the part of the trustee to misappropriate the money so paid over to him. The plaintiff has lost his money, and might have some equity but for the consideration that the equity of the trust estate is equally strong. It has never received the moneys paid upon, the transfer of mortgage to plaintiff, and ought not to-lose the mortgage itself. The loss must fall upon one of the parties. It should manifestly be borne by the plaintiff, who . was guilty of negligence in not discovering the condition in the trust, agreement, rather than by the trust estate, which has been free from any negligence in the matter.

The conclusion to which we arrive is that the judgment should-be affirmed, with costs.

All concur.


author: INGRAHAM, J.

text:
    In the Matter of the Opening of One Hundred and Sixteenth Street.

      (Supreme Court, Appellate Division, First Department,

      Filed February 14, 1896.)
    1, Eminent domain—Easement—Damage.
    One holding an easement in a strip of land, which entitles him to have it maintained as a street or road, sustains no damage in consequence of a taking of the fee of such road, street or highway.

      8. Same.
    When the fee of the property taken is acquired by the city in condemnation proceedings, .neither the city nor the state has the power to devote such property to any use inconsistent with that for which it is acquired and held, except on payment of compensation to the abutting property owners.
    3. Same—Damages.
    The measure of damages to the owner of the fee for land taken for street purposes, which is subject to an easement, is its value subject to the easement.

      4. Same—Dbdication.
    An intent on the part of the owner of land to dedicate is absolutely essential to the dedication of such land for street purposes, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists.
    5. Same—Basement.
    In determining whether or not a conveyance carries with it ly implication an easem'ent over other property, the condition, situation and value of the respective properties and all surrounding facts are to be considered.
    ■6. Same—Appurtenance.
    A conveyance of a comparatively small triangular piece of land does not grant as an appurtenance to it the beneficial use of a piece of property many times its size and value, and all for the consideration of one dollar.

      1. Same.
    In the absence of proof of any intention to give to the grantee any right or use in the piece of land laid out as a street, the intention of the parties is clear that no such right was intended to be conveyed and that no such grant could be implied.
    Appeal from an order, confirming the report of the commissioners of estimate and assessment,
    Truman H. Baldwin, for app’lts; John P. Bunn, for resp’t the city of New York; Elihu Boot, for resp’t the Society of the New York Hospital; Isidore Grayhead, for resp’t John P. Huggins.
   INGRAHAM, J.

The city of New York instituted proceedings for the opening of a portion of 116th street in the city of New York and commissioners of estimate and assessment were appointed under the provisions of section 964 of the consolidation act. The commissioners have made their report, by which they have allowed the respondent, the New York Hospital, the sum of $54,-533.40 for certain land included in the bed of the street; and from an order confirming that report certain of the owners of property that were assessed have appealed.

The commissioners, in making their award, have evidently allowed the New York Hospital the full value of the land taken, subject to no easement either to the public or in favor of any abutting owner; and the sole question presented is whether the commissioners adopted a correct principle in making this award, and that depends upon whether the New York Hospital owned this strip of land, the value of which has been awarded to it by the commissioners, in fee, free from any easement or right of way. If such an easement existed, we think that the principle that the commissioners adopted was wrong, and that the award should have been the value of the property, subject to the easement.

It is now settled in this state that one holding an easement in a strip of land which entitles him to have maintained as a street or road sustains no damage in consequence of a taking of the fee of such road or street as a street or highway. After it is thus taken and maintained by the public authorities, the abutting owner’s easement still remains unimpaired. He has all the right to the road or highway that he had before enjoyed, and no property of his is taken by the proceeding. Thus, in the case of City of Buffalo v. Pratt, 131 N. Y. 299; 43 St. Rep. 278, it was expressly held that the owner who does not own the fee of the land in the street has no right to compensation upon the taking of the street under legislative or municipal sanction for a public street, so long as the fee of the street is held by the public or municipal authorities, and no use is made that will obstruct free passage upon the street, or amount to a nuisance, or deprive the owner of the easement of the enjoyment of the easements of light,i air, and access. Under this proceeding, the city will acquire the fee of the property taken, to be held in trust, however, for use as a public street; and when the fee is thus acquired, neither 'the city nor the state has the power to devote such property to any use inconsistent .with that for which it is acquired and held, except upon payment of compensation to the abutting property owners. See Story v. Railroad Co., 90 N. Y. 173; Kane v. N. Y. E. Railroad Co., 125 id. 164; 34 St. Rep. 876. The New York Hospital was the owner of the fee of the land taken, and was entitled to be paid its value upon this proceeding. Under section 970 of the consolidation act, the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage to the respective owners, lessees, parties, and persons, respectively entitled unto or interested in the lands, tenements, hereditaments, and premises so required for the purpose of opening said street. It is the- property *>wned by the New York Hospital that is to be valued, and if such property is subject to any easement either to the public or to an - individual, the award should be for the value of the property subject to such easement, as such easement is not in this proceeeding taken or appropriated. The one question that we have to determine, therefore, is whether or not this property of the New York Hospital is subject to any easement either to the public or to any abutting owner. -

There was no dispute as to the facts before the commissioners. It appeared that, upon the plan of the city laid out under the provisions of the Laws of 1807, 116th street (the street in question) was laid out as a public street, as was also 11th avenue, running at right angles to 116th street. In 1818, after the filing . of that plan laying out this street and -avenue, by a deed dated March 27, 1818, and recorded April 9, 1818, the New York Hospital acquired a large piece of property, and subsequently entered into possession of the property thus acquired, erected upon it a hospital for insane patients, and has remained in exclusive and uninterrupted possession and enjoyment of such property to the present-time. Subsequently, 11th avenue was opened through the property; a id at the time of the conveyance to Oarrigan hereafter mentioned, such avenue was a public street, the fee of which had been acquired under the act of 1807, and such street was maintained by the city of Hew York as an open public street. 116th street, however, had never been opened or used as a street, but the portion of it in question was inclosed by a substantial inclosure, and occupied by the Hew York Hospital. The south boundary line of this property thus acquired by the Hew York Hospital crossed 116th street as laid out on the plan of the city diagonally, running in a northwestly and southeasterly direction, and struck the north boundary of 116th street 176 feet 2 inches west of lltli avenue; the hospital thus owning a piece of ground to the south of 116th street, as laid out, about 57 feet 7 inches upon 11th avenue, and 176 feet 2 inches upon the southerly boundary of 116th street, as laid out.

One Andrew Oarrigan appears to have been the owner of the piece of property to the south of that owned by the Hew York Hospital, and this piece of land to the south of 116th street by the Hew York Hospital would be a portion of four lots upon the southwest corner of 116th street and 11th avenue, being a portion of two lots on the avenue and two lots upon the street, as those lots were laid out upon the map of the city.

By a deed dated October 25, the Hew. York Hospital conveyed this parcel of land south of 116th street to the said Oarrigan, by a deed which the appellants claim subordinated the property of the Hew York Hospital in the street to an easement. It is clear from the examination of the property that this conveyance to Oarrigan was for the purpose of squaring out his property, so that he should have the title to all land on the southwest corner of 116th street and 11th avenue. The consideration of that conveyance was one dollar, and there is no evidence that the hospital received any other consideration than that named in the deed. The deed was the usual full covenant warranty deed, the piece of land conveyed being described as— “Beginning at a point on the southerly line of One Hundred and Sixteenth street, distant one hundred and seventy-six (176) feet two (2) inches westerly from a point on the westerly side of Eleventh avenue, where the southerly line of One Hundred and Sixteenth street intersects the westerly side of Eleventh avenue, and running from the said first-mentioned point easterly along said southerly side of One Hundred and Sixteenth street one hundred and seventy-six (176) feet two (2) inches, to said point of intersection of said southerly line of One Hundred and Sixteenth street with said westerly side of Eleventh avenue; thence southerly, along said westerly line of Eleventh avenue, fifty-one (51) feet seven (7) inches; thence northwesterly, along the center of a stone wall fifty-five (55) feet, to a point distant from said southerly line of One Hundred and Sixteenth street on a straight line parallel to the westerly line of said Eleventh avenue, twenty-eight (28) feet six (6) inches; thence northwesterly, along the center of said stone fence, twenty-four (24) feet four (4) inches, to a point distant from, said southerly line of One Hundred and Sixteenth street, in a straight line parallel to said westerly line of Eleventh avenue, twenty-one (21) feet nine (9) inches; and thence northwesterly, along the center of said stone fence, one hundred and five (105) feet two (2) inches, to the said point or place of beginning.”

Immediately after that conveyance, the hospital proceeded to build a substantial fence on the southerly side of 116th street, as ' laid out to 11th avenue, and from that time to the present has remained in the exclusive possession of the property, using it solely and exclusively for its own purposes. No claim was ever made by either the grantee in that deed or the public to any portion of 116th street owned by the hospital, nor was the same used in any way as a street or highway. The description in this deed carefully excludes any portion of the fee of 116th street. The property conveyed is not bounded by the street, but the boundary line commences at a point on the southerly line of the street, and runs thence along the southerly side of the street to the westerly side of 11th avenue; clearly showing that it was the intention of1 the parties to use the southerly side of this street as laid out upon the map as a boundary, and to convey no interest in the street itself to the grantee.

We think it is clear that there was no dedication of this street to the public by this conveyance. An intent on the part of the owner of land to dedicate is absolutely essential, and, unless such intention can be found in the facts and circumstances of the particular case, no dedication exists. To deprive the owner of his land, the intent to dedicate must clearly and satisfactorily appear". See 2 Dill. Mun. Corp. p. 751, § 636, and cases cited.

See, also, Washb. Easem. (1st Ed.) p. 181, where the learned" author says:

“Reference to a deed as a boundary to a street as laid out, but not opened, while it would estop the grantor as against his grantee, is not a dedication to the public, so as to deprive the grantor of thé right of compensation when the land is actually taken under the power of eminent domain.”

See, also, Easton Borough v. Rinek, 116 Pa. St. 1.

The intention to dedicate not only does not appear in this case, but it clearly appears that no such intention existed. The language of the description, excluding the street itself, and making the southerly line its boundary; the location of the property conveyed, fronting, as it did, upon an open public avenue (11th avenue); the acts of the parties in continuing the exclusive possession of the grounds laid out as a street in the hospital; ana the fact that the land was never used as a street, neither by the public nor the abutting owners,—clearly establish the absence of such intention.

A more difficult question remains to be determined, however, and that is whether Oarrigan, as the grantee of New York Hospital, acquired an easement in this strip of land laid out as 116th street which would entitle him to claim, as against the New York Hospital, that the street as laid out upon the plan of the city should remain a public street, so that, as grantee of the property conveyed to him, he would be entitled to the use of the land in front of such property for light, air, and access. There is no express grant to such easement contained in the deed, and, if one exists, it must be implied from the fact that the northerly line of the property conveyed was the south side of the street. It is well settled in this state that, “without making such a dedication to the public, a grantor may, by selling lots, and describing them as bounded on a street running through his own land, create an easement on the land called a ‘street’ in favor of his own grantees, and that, although the fee of such land remains in him, it is incumbered by that easement.” See In re Opening of Eleventh Avenue, 81 N. Y. 447. Whether there is such a grant of an easement, however, express or implied, depends entirely upon the intent of the, parties to the grants; and, in construing the grant, court had to take into consideration the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties. See U. S. v. Appleton, 1 Sumn. 500, Fed. Cas. No. 14,463. Whether or not an easement was granted depends upon the construction to be given to the grant made by the parties; and, before an easement can be implied, it is necessary that there should be a “concurrance as well of the owner of the heritage which it is wished to charge with.the servitude, as of him in favor of whose heritage it is desired to create.” See Washb. Easem. p. 39, § 1. Whether a right of way or other easement is embraced in a deed is always a question of construction of the deed, having reference to its terms and the practical incidents belonging to the grantor-of the land at the time of the conveyance. The intention of the parties is to be learned from the facts. Huttemeier v. Albro, 18 N. Y. 50. It is thus the intention of the parties that is to govern, and that intention is to be ascertained by the terms of the grant, the circumstances attending upon the transaction, the particular situation of the parties, and the state of the thing granted. As before stated, there is here no express grant of the easement. The question is whether one can be implied from the terms of this grant.

This question of implied easements was much discussed by the old supreme court of this state and the court of errors, in questions arising upon the opening of streets in the settled portion of the city laid out under the act of 1807, and it was there finally held that where the owner of lots abutting on a street actually opened, and in use as a public street,- sold lots, bounding them upon such open street, he dedicated the street to the public, and, upon the fee of such street being acquired by the city under the act of 1807 or of 1813, the owner of the street held such fee subject to the right of the public to use the street, and also subject to an easement appurtenant to the lots sold, and was entitled to but nominal damages. The authority of these decisions has been questioned, and in some - important particulars expressly repudiated. See Bissell v. Railroad Co., 23 N. Y. 61, and also City of Buffalo v. Pratt, 131 N. Y. 293; 43 St. Rep. 278. In all the cases decided previous to the ones last cited, it appears that the streets upon which the land conveyed was bounded were actually used by the public as streets. It is not that the street is laid out as a street upon a map or plan of the city, but that such street, in addition to being laid out, was actually used as a street, and the owner of the fee of the street had conveyed to various grantees lots thereon abutting, for which they had received a substantial consideration. The street, therefore, existed as a fact; and it was in relation to that fact, taken together with the conveyance of land abutting on the street, and the enhanced price for which the land had been sold (by which a compensation for the grant of such an easement in the street had been received), that it was held that such conveyance gave to the public and the grantees of the lot-an easement in the street; that the same should be laid out and used as a public street to its full width; and that it would be inequitaxble to allow such a grantor to compel his grantee to pay him a substantial price for the right to use the street, for which, by the enhanced price at which the lots had been sold, he had once been paid. In none of the cases that we have been able to discover-—-and we think we have examined all of them — was it held that a mere conveyance of a piece of land for a nominal consideration, by a description that carefully excluded all interest in the street itself, merely using the side of the street as a boundary for the property conveyed, and where no street had ever in fact existed, as a matter of law, implied a grant. As before stated, the authority of these cases has been seriously questioned by the court of appeals, and several of the principles which they were supposed to have established have been expressly repudiated. We have now three late decisions of the court of appeals which, taken together, we think establish certain rules that should be applied in cases of this kind. Thus, we may say that a grant of land bounded upon a street, of •which the fee is in the grantor, whether by terms of the grant the fee of the street would be included or not, does not óf itself amount to a public dedication of the street; that the owner of property abutting on the street who owns the fees of the street subject to an easement granted to private individuals is entitled to substantial damages when the fee is taken by a municipality for a public street; that, where there exists a private easement to use the street, the owner of the fee of the street subject to such easement was entitled to nominal damages only where the fee was not taken, but only an easement to the public, as no greater right was taken by the public than he had before granted to his grantees; and where the owner of property on both "sides of a street or highway had conveyed all of his property bounded on the street to grantees, who had thereby acquired an easement in the street for use as a street, he was entitled to the value of the property taken, subject to the private easement which had already incumbered the property, which value was merely nominal. See City of Buffalo v. Pratt, 131 N. Y. 299; 43 St. Rep. 278; Village of Olean v. Steyner, 135 N. Y. 348; 48 St. Rep. 66; and In re Adams, 141 N. Y. 300; 57 St. Rep. 408. And to this extent the cases before referred to in the old supreme court and the court of errors have been overruled; but all of these cases have proceeded upon or are consistent with the general proposition that in construing a grant, to determine, whether or not a grant of an easement is implied, the crucial question is whether or not it was the intention of the parties that such an easement was to be included in the grant.

We fully recognize that in itiany cases such an intention will be presumed to exist from the nature of the grant itself, from the nature of the property conveyed, from the terms used in the description, or from the location or situation and use to which the property had been put before the making of the grant. In most of the decisions in which such grants have been - implied, the implication has arisen on one of two grounds: First. That the parties are presumed to contract in reference to the condition of the property at the time of the grant, and thus, as appurtenant to the property conveyed, will pass all of those rights and incidents which were actually in use at the time of the execution of the grant. Many illustrations could be given of implied grants arising from a situation of this character, and they will be found cited and commented upon in Washburn on Basements, in the section entitled “ Of Ways Created by Grant”; and this implication will arise wherever the owner of an estate grants a portion of it, and ways have existed or drains been used over the portion reserved for the benefit of the portion granted. A grant of all rights to use the portion reserved for such ways or drains will be implied.

The illustration used in one of the earliest cases is:

“So, if one be seized of White Acre and Black Acre, and use a way over White Acre from Black Acre to a mill, river, etc., and he granted Black Acre to B-., with all ways, easements, etc., the grantee shall have the same conveniency that the grantor had when he had Black Acre.” Staple v. Heydon, 6 Mod. 1.

Such an easement there passes as appurtenant to the thing granted, and the implication of the grant of such easement arising from the condition of the use of the property at the time of the grant

The other principle upon which a grant of an easement is implied is when it is necessary to the enjoyment of the thing granted, the familiar example of which is the implication of the grant of a right of way whefe the owner of two lots of ground, one fronting upon a highway, the other having no access to the highway, granted the lot having no access to the highway to a stranger, who would have no means of access to his lot except over the lot reserved. In that case the law would imply the grant of a right of way over the lot reserved, as without it the grantee would be deprived of the beneficial use-of the property granted.

The easement in Hew York City streets that was implied in the cases referred to did not, however, come strictly within either of these principles, for such easement was implied when the property abutted upon two streets in both, and thus no way of necessity could be implied, and the grant that was implied was more than a mere appurtenance to the land granted in use at the time. But the court then did what Mr. Justice Story said it was the duty of the court to do in U. S. v. Appleton, supra, viz., took into consideration the circumstances attending upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties At first the court held that no easement was granted at all under such circumstances; that it did not come within the principles established by which "a way of necessity would be implied. See Underwood v. Stuyvesant, 19 Johns. 181; In re Mercer St., 4 Cow. 542. But subsequently these rulings were reversed, and it would appear to' have been held that from such conveyance there was a dedication to the public, and an implied easement in the grantee. See In re Lewis Street, 2 Wend. 474; Livingston v. New York, 8 id. 88. But the implication of this dedication and of this grant of an easement was based upon the intention of the parties that was assumed from the situation of the property, the fact of the plan of the city as laid out'into avenues and streets having been filed, that the streets had been used for streets, that purchases were made of lots for the purpose of erecting buildings thereon bounded upon such streets; and it was held that, when a purchase is made of a lot bounding Upon a street in the city of New York, which is not yet opened, the purchasér is entitled to all the benefits and advantages belonging to the property of which he has become the owner, one of the most essential of which is that when the street is opened upon the application of the corporation, conformably to the law, regulating streets in that city, he will have a lot fronting upon a street upon which a building maybe erected without being compelled to compensate the owner of the fee to the full value of the land thus appropriated, the presumption being that the purchaser of the lot paid an enhanced price for the same in consideration of the lot being bounded on a street. See In re Lewis St., supra.

But, assuming that these cases are binding authorities, the principles that were there applied would not apply here. There was no single lot conveyed, by this gratit, but a part of several lots, the plot conveyed having a frontage upon Eleventh avenue. There could be no presumption that the purchaser of this gore paid an enhanced price for the same in consideraren of the lot being opened on the street, and this was not the purchase of a lot bounded upon a street, but a purchase of a narrow strip of land, which, upon the opening of 116th street, would be entirely disconnected from the grantor’s other property, and would be comparatively valueless to it, but which would be valuable to the grantee in rounding and completing the property owned by him. Then the hospital retained all of its property upon the other side of the street, and thus retained its interest to control the bed of the street. It maintained exclusive possession of the street itself, and the interest that it retained in the street exceeded largely the extent of the land that it granted. The property conveyed was a narrow strip on the south side of the street, about 172 feet long, with an average width of about twenty-five feet; while the property comprising the bed of the street was a piece of land 100 feet in width, and over 300 feet in length, comprising about eleven city lots, which appear in these proceedings to be worth over $54,000. It could hardly be presumed to have been the intention of the parties that by the conveyance, for a nominal consideration, of this small strip of land, the beneficial enjoyment of a so much larger strip of land could have been intended. The effect would be that the right acquired by the implied grant was much more important and valuable than that of the property expressly conveyed. The New York Hospital has here made but a single conveyance, obviously for the mere purpose of straightening the boundary line between itself and its neighbor, reserving all of the residue of its property abutting on the street, and reserving to itself the substantial use of the fee of the street. It seems to us clear that not only is there an absence of proof of any intention to give to the grantee any right in or use of this piece of ground laid out as a street, but, on the contrary, the intention of the parties is clear that no such right was intended to be conveyed, and that no such grant can be implied.

We do not intend in any way to infringe upon the rule that, under ordinary circumstances, the implication of such a grant could arise from the terms of the grant itself when the owner of property abutting on the street conveys a portion of the property bounded by the street. That principle is well settled, and it is apparent that its application is very necessary to carry out the intention of the parties. But we are of the opinion that the peculiar facts and circumstances of this case make it an exception to the general rule, and affirmatively show {hat this conveyance of a comparatively small triangular piece of land did not grant as an appurtenance to it the beneficial use of a piece of property many times its size and value, and all for the consideration of one dollar. We are of the opinion, therefore, that the commissioners were entirely right in holding that the New York Hospital was the owner .of the fee of this property, not subject to any easement; and as its award, in view of the testimony, seems to have been reasonable, it must be approved.

The order confirming the report of the commissioners must therefore be affirmed, with costs against the appellants.

All concur.


author: PER CURIAM.

text:
    People ex rel. Henry W. Friel, App’lt, v. Excise Commissioners of Poughkeepsie, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 18, 1896.)

    1. Excise—License—Revocation.
    Under subdivision 3, § 23, chapter 401 of 1892, the hoard of excise cannot revoke a license on the ground that a woman sold liquors on the premises, without showing that she sold with the licensee’s permission, or was not a member of his family.
    2. Same—Notice oe application.
    In such case, the relator was entitled to notice of the application to revoke his license, and to be heard in opposition thereto.
    8. Same—Sunday.
    There is no provision in the law that the license can he revoked upon the conviction of any person other than the licensee for a sale on Sunday.

      Certiorari to review the determination of the commissioners of excise of Poughkeepsie, revoking relator’s license.
    W. L. De Lacy, for relator; Hackett & Williams, for resp't.
   PER CURIAM.

It appears by the return in this proceeding that on May 1, 1895, a license to sell ale and beer was granted to the relator, Henry W. Ereil ; that thereafter one Kate Mixture was convicted before the recorder of Poughkeepsie of the offense of selling beer on'Sunday at Eriel’s place of business ; that upon being advised of that conviction by the recorded, without notice to Eriel, or any hearing, the commissioners revoked his license. To sustain the action of the commissioners, the court is referred to subdivision 3, § 28, c. 401, Laws 1892, which is as follows:

“ A board of excise, may revoke any license granted by it in eiflier of the following cases : * * * If the licensee shall during the term of his license permit any girl or woman, not a member of his family, to sell or serve upon the licensed premises any strong or spirituous liquors, wines, ale or beer.”

There is nothing in the return to show that the act of Kate Mixture was done with the permission of the relator, or that she was not a-member of his family. Nor was her act one which, under section 27 of the act cited, worked an immediate revocation of the license. The return does not, therefore, show facts sufficient to sustain the determination of the commissioners. It was essential to their determination that the sale of which Kate Mixture was convicted should have been shown to .have been with the permission of Eriel, and that she was not a member of his family. We do not find in the law any provision that the license could be revoked upon the conviction of any other person other than the licensee for a sale on Sunday; and, to warrant a revocation for such sales, there must be two convictions. Subdivision 6, § 28. We are also of the opinion that the relator was entitled to notice of the application to revoke his license, and to be heard in opposition thereto. The application to revoke his license was for' an act done by another with his permission. Upon that complaint he was certainly entitled to a hearing. The determination appealed from must be annulled, with costs.

Determination annulled, with $10 costs and disbursements.


text:
    Niagara Grape Market Company, Resp’t, v. Dennis M. Wygant, Def't. Charles Hertzog et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 21, 1896.)

    1. Attachment—Priority.
    A warrant of attachment, delivered to the sheriff after the delivery of a copy of one previously issued in another action against the same defendant, the original of which was retained by the judge by whom it was issued until after such second warrant was delivered, is entitled to preference over the one, the copy of which was first delivered.

      2. Same.
    To complete the issuing of a warrant, it is necessary, not only that the manual signing should take place, but that the warrant so signed should ' be by the judge actually delivered to the party, or the officer whose duty it is to execute it.
    Appeal from an order, awarding to a warrant of attachment in favor of plaintiff preference over one in favor of the appellants, both warrants being against defendant.
    George Flammer, for app’lts; J. J. Townsend, for resp’fc,
   RUMSEY, J.

The opposing parties upon this appeal claim under separate warrants of attachment against the defendant, and the appeal is taken from an order awarding to the warrant sued out by plaintiff priority over one procured by the firm of Hertzog Bros., who are the appellants. The facts are not in dispute. The warrant.of the Hertzogs was granted by a judge on the evening ■of December 3d. On the morning of the 4tli of December, at an early hour, the plaintiff caused an application for a warrant of attachment to be made to a justice of this court, at his house. The papers were presented to the justice by a servant. The warrant was signed by the judge, and the papers were handed by the servant to the plaintiff's messenger, who examined them, and, noticing that the original warrant was not among them, asked for it, but was told that the judge had kept it. In fact, the judge had retained it by mistake, intending to keep the original bond, that he might cause it to be filed, but keeping the warrant instead. The young man went away with the papers which had been handed to him, which did not include the original warrant of attachment. At 9 o’clock, the hour at which the sheriff’s office was opened, the bearer of each set of papers made his appearance. The plaintiff’s attorney presented to the sheriff the papers upon which the application for his warrant had been made, with a copy of the warrant, which was marked No. 1. The warrant of Hertzog Bros, was next received, and marked No. 2. Both were received at the same time and so stamped. The original warrant in plaintiff’s action, which was then in the hands of the judge, was procured from him, and handed to the sheriff during the day. There is no doubt that the warrant was actually signed by the justice, and the failure to deliver the original warrant was a mere mistake. Upon this state of facts, the court directed the sheriff to award preference and priority to the warrant of attachment issued in plaintiff’s ■action over the warrant issued in the action in which Hertzog Bros, are plaintiffs, and from that order this appeal is taken.

It might, perhaps, be sufficient to say that, as no levy is shown to have been made, and it does not appear that it will be made, or that, when made, the property will not be sufficient to pay the amount of both warrants, the order is prematurely made. But to reverse it upon that ground would leave the same question to arise upon the distribution of the fund, and therefore we have concluded to examine the merits.

The law says that, when two or more warrants of attachment against the same defendant are delivered to the sheriff of the same county, to be executed, their respective preferences are the same as where two or more executions against the same defendant are delivered to the sheriff of the same county. Code Civ. Proc. § 697. In the case of two executions, that one has preference which is first delivered to the sheriff. Code Civ. Proc. § 1406. But the warrant delivered must be one on which the sheriff can act, because, if it is incomplete, or invalid for any reason, so that he cannot proceed upon it and make a valid levy, the plaintiff can acquire no rights under it, and, of course, can have no lien by virtue of it. The sheriff could not act upon the copy of the warrant which the plaintiff delivered to him. If there had been nothing else, no one would claim' that any rights could' be acquired under it, as against an original warrant, which the sheriff afterwards received, to be executed. But it is said that there was an original warrant, only, instead of having been delivered to the sheriff, it was kept by the judge who had signed it, and was not, in fact, delivered by him to any one. The question is then presented whether the failure do deliver the warrant was fatal to its validity.' The fact that, the failure to deliver was caused by the mistake of the judge does not affect the case. When the party claims a right in an action.at law, he is bound to make it appear that the officer through whose act the right comes into existence has jurisdiction to act; and, if jurisdiction depends upon a valid process, it must be shown to have existed. To create such a process, it must have been fully completed. While the application for it is still subjudice, it has, of course, no force. Neither has it, after the officer has decided the case and concluded to grant it, until he has expressed that conclusion by- some act which brings the writ into existence. Especially is this so where, as in this case, there had been no service of the summons, and there was jurisdiction only by the granting of the warrant under section 416 of the Civil Code. To the completion of such an act, it is, we think, necessary, not only that the manual signing should have taken place, but that the warrant so signed should have been by the judge actually delivered to the party, or the officer whose duty it is to execute it So long as he still has actual control over it, so that he may recall it, it cannot be said to have a complete existence. The right of the party to have it has not been finally decided. To hold otherwise would be productive of grave inconveniences, and would make the rights of parties to depend upon mere recollection or doubtful inferences, instead of some certain and precise thing, about which there could be no question. It is quite true that it has been held that a party to an action has been held bound to obey an injunction, although the writ had not been actually issued, if he had notice that the court had determined to grant it. Hull v. Thomas, 3 Edw. Ch. 236. But in such cases the court had already obtained jurisdiction of the person of the defendant, and the order was made upon a hearing, and as a proceeding in the cause. People ex rel. Platt v. Rice, 144 N. Y. 249, 260; 63 St. Rep. 110. But here there is no jurisdiction until the warrant is granted, and it is not granted until it has been delivered by the judge, with the intention that it shall become operative. The case of Burdick v. Green, 18 Johns. 14, is not in point. The question presented there was whether the capias was issued, so as to take the case out of the statute of limitations. The law required that the writ should be issued before the six years expired. It had been sued out and forwarded to the sheriff to serve. The court held that was sufficient to take the case out of the statute. The question whether jurisdiction had been acquired did not arise.

It is not necessary to consider the matter further. For the reasons above stated, the order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs to the appellant.

All concur.


author: BARRETT, J.

text:
    People ex rel. Jacob Kiebrick, App’lt, v. Theodore Roosevelt et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’ry 21, 1896.)

    Municipal corporation—Police—Dismissal.
    The record of a police officer cannot be considered on the question of his guilt, where it was not introduced upon the trial, and the accused had no opportunity of explaining it.
    Certiorari to review the proceeding of the commissioners of the police department, of the city of New York, resulting in the dismissal of relator from the police force of the department of said city.
    Tierney & Halsey, for relator; Francis M. Scott, for resp’ts.
   BARRETT, J.

The respondents, in their return, specifically state that, after the relator’s trial had ended, they considered his record upon the question of guilt. It was upon “due consideration” (so they say) of this record, in connection with the testimony, that they determined that he “was guilty as charged.” This was clearly erroneous. People ex rel. McAleer v. French, 119 N. Y. 505; 30 St. Rep. 72; People ex rel. Roe v. MacLean, 57 Hun, 141; 32 St. Rep. 831 The record was not introduced upon the trial, and the accused had no’ opportunity of explaining it. It was read and considered in his absence and without his knowledge; and certainly it was highly prejudicial, for there was a close question of veracity between the relator, the relator’s witnesses, and the complaining witness. It may well' be that, notwithstanding the numerical preponderance of testimony upon the relator’s side, this record turned the scale. If the record should be treated as the knowledge of the commissioners, in that it is part of. the records of the department, still it was improperly considered, for, as was said in People v. French, supra, “they may neither act upon their own knowledge nor supplement the evidence with their Own knowledge."

The proceedings had should be annulled, and the relator reinstated, with $50 costs and disbursements.

All concur.


text:
    People ex rel. Thomas J. Hogsett, App’lt, v. Theodore Roosevelt et al., as Commissioners, etc., Pl’ffs.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 21, 1896 )
    Certiorari to review the proceedings of the commissioners of the police department of the city of New York, resulting m the removal of relator from the police force of the police department of of said city.
    Tierney & Halsey, for relator; Francis M. Scott, for resp’ts.
   BARRETT, J.

— The questions in this case áre the same a« those in People v. Same Defendants, 73 St. Rep. 113, and the result must be the same as was reached there.

The proceedings had should be annulled, and the relator reinstated, with $50 costs and disbursements.'

All concur.