author: Peckham, J.

text:
    John Becker, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Court of Appeals,

      Filed March 22, 1892.)

    Railroads—Elevated—Damages—Eviden ce .
    In an action against an elevated railroad for injuries to adjoining property, evidence that the value of land on the avenue has not increased in the same proportion as land in the side streets is admissible, and may be considered, in connection with the other evidence in the case, upon the question of fact whether the land of the owner has increased in value to the same extent that it would have done but for the presence of the road.

      (Bohm, v. The Elevated Bailway do., 42 St. Rep., 247, explained.)
    Appeal from judgment of the New York superior court, .general term, affirming judgment for plaintiffs.

      <Tulien T. Davies, for app’lts; Gharles Gibson Bennett, for resp’t.

       Affirming 38 St. Rep., 531.

   Peckham, J.

There seems to be evidence in this case from ■which the court could draw the inference of damages which it ■did. It is not strong and is somewhat vague and unsatisfactory, jet we cannot say the finding as to damage is wholly unsupported by evidence, which we must do in order to reverse the judgment.

We did not hold in the Bohm case that evidence as to the greater ■proportional increase in the value of lots in the side streets or in avenues parallel with the one which had the elevated road in it, but which were themselves without such a structure, could not be -used in the course of an attempt to show that property along the line of the structure had not increased in value as much as it \would have done but for the presence of the elevated road. We there held it was apparent that an erroneous rule of damages had been adopted when the trial court refused to bake Into consideration the fact that the railroad had caused general benefits to the plaintiff’s property in connection with all others on the line of the street. We then said there was no other evidence to sustain a finding of damage than the fact that property on the. side streets had increased in value to a greater proportional extent than land ■on the avenue in question, and we said such fact was not sufficient ■upon which to base such finding.

As the property in both locations might have, in fact, increased . to its present value by reason of the road, the fact that some property increased in value in a greater proportion than some •other, we said, was no.proof that the latter had sustained damage. In other words, we held that an owner had no ground of complaint because the road had not increased the value of his property as much in proportion as it did that of some one else; that in order to prove damage he was compelled to show that his property had either decreased in value by reason of the road or else that its valué had not increased to the same extent it would have done but for the road.

We were then deciding in regard to the correctness of the rule of damages followed by the trial court, and there was no in- • tention in what we said to hold evidence of value in the side streets to be inadmissible or to deprive the court of a right to draw the inference from it, together with other evidence in the case, that the property of the plaintiff had, as a fact, been damaged by being deprived of a greater increase in value by reason of the building of such a structure.

If there be no evidence which will fairly support such an inference, in such case to find damage is to commit an error of law reviewable in this court.

We intend to fully adhere to the rule of damages as laid down, in the Bohm case. The owner’s land must have received some-injury, caused by the taking of the easements and the erection and operation of the road, in order to permit a judgment in favor of the plaintiff. If the land has been depreciated in value from what it originally was before the taking, that fact is evidence of' damage. If it have not increased in value to the same extent that it would have done but for the erection and operation of the road, that is -a fact which shows damage. The mere fact-that the appreciation of the land in the avenue has not been as-great in proportion as in the side streets is not sufficient to show any damage to the land in the avenue, for the increase in value in both localities may have been produced by the road; and in that event, as we have said, the failure of defendant to enhance-the plaintiff’s ■ land in value as much as land in the side streets-does not show any damage to the plaintiffs’ land. What we now say is that evidence that the value of' land on the avenue has-not increased in the same proportion as land in the side streets is-admissible, and may be considered in connection with the other-evidence in the case upon the question of fact whether the land of the owner has increased in value to the same extent that it would have done but for the presence of the road. And we' intend that the defendant shall have thfe full application of the rule-that what has been termed “ general ” as well as special benefits to the property shall be taken into consideration in deciding the fact whether or not the owner has been injured by the road.

There was given in this case evidence as to the character and size of the" structure, the manner in which it was operated,- its-effect upon the dwellings and stores in the "way of diminution of light, of air and facilities .of access, and the presence of bad odors-from the engines, the extent of the platforms of the station, the-stationary amount or else a reduction of rent for dwelling purposes; and comparisons with other streets and with the values of property therein. ' We cannot say the inference drawn by the court was supported by no evidence whatever.

In the nature of the subject, proof of a possibly greater value attaching to the property but for the building of the road is difficult and somewhat shadowy .and vague. It is but imagining; what might have been but for the existence of what is, un inference as to what would have been the course of values in the street if the structure had not been erected.

It is an inference which must be drawn by the court or jury from all the facts in evidence, which may be of such a character that different and wholly opposite results might be arrived at by equally honest and intelligent minds, depending upon the force to-be given to the conflicting; theories naturally and plausibly arising from such facts. No one can swear to what the value of the property would have been but for the presence of the road, for-such value must rest only upon the inference to be drawn from;, certain other facts which may be testified to, and hence we have-held that such possible or imaginary value cannot be sworn to in. the form of an opinion by an expert. Roberts v. Elevated R. R. Co., 128 N. Y., 455; 40 St. Rep., 454. In" the case at bar it appears that although certain of the side streets were not all built ' upon when the road was erected and put in operation, yet it does appear that the locality where this property is situated was fairly built up before the road was operated, although to some extent the adjacent side streets have been more compactly built upon .since that time. There has been here no such change from absolute vacancy, within large and extensive portions of the city limits, .as has occurred in the vicinity of Harlem, where it has appeared in evidence the side streets and the avenues have practically been brought into existence and peopled since the building and operation of the elevated roads. It was in regard to property in such a locality that we said in the Bohm case there was no proof whatever of- damage to it when the true rule of damages was adopted; •and as it appeared in that case that an erroneous rule had been adopted, we reversed the judgment on that ground. In this case evidence as to the value of property situated in the adjacent streets, between Fiftieth and Sixtieth streets, and in First and Third avenues, is proper and appropriate, and to be considered in -connection with other evidence in the case in order to furnish data from which to decide the point in dispute.

Although the character of the evidence in this case is very similar to that given in the Bohm case, yet it is applicable to a very different state of facts arising out of the great difference in the neighborhood, which has already been alluded to, and hence we cannot say in this case that evidence of the same general ■character as in the Bohm case, taken with the other evidence herein, may not be sufficient to sustain a judgment finding damage, so long as it does not appear that an erroneous rule for ascertaining such damage has been adopted.

We recognize the difficulties of specifically and plainly raising the question as to what rule of damage has, in truth, been adopted by a trial court, yet we have no fear that the rule adopted by this court will not, in fact, be hereafter fully and fairly carried out by all trial courts.

Having in a decided case stated what we believe the true rule is, we cannot suppose there will be the least hesitation upon the part of the learned trial courts in adopting and being governed by it in all cases which shall hereafter be brought before them. The -defendants are entitled to the benefit justly to be derived from its adoption, and that such benefit will be accorded theip. we cannot assume there is the slightest room for doubt

Possible injustice may be done in particular cases to one or the ■other party, but this results from the inherent difficulties of the subject and the somewhat abstract nature of the inquiry as to what the value of land might, under other circumstances, have been.

■ The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Frederick Storck, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Court of Appeals,

      Filed March 22, 1892.)

    1. Railroads—Elevated—Damages—Increase in value of surrounding-property.
    ■ In an action to enjoin an elevated railroad company from running their road in front of plaintiff’s premises, and for damages, defendants alleged special and peculiar benefits conferred on plaintiff's premises by reason of its station being at the corner by the premises. The judge refused to find as requested’by defendants that “ since the year 1880 there has'been ageneral rise in the value of real estate situated upon Second avenue, and this, increase of value is largely attributable to the existence and operation of the-, defendants’ railroad.” Held, no error; as, if true, it was not material or relevant.

      (Bohm v. The Elevated Railway Co., 42 St. Rep., 247., distinguished.) .
    2. Same—Evidence—Comparison of values.
    There was evidence in this case that the neighborhood had been more or less settled and built upon prior to the erection of the railroad. Defendants built their tracks and station so as to shut off light from plaintiff’s-building, and the stoppage and operation of the trains caused annoyance and discomfort to the occupants in various substantial ways. Property on plaintiff’s avenue had advanced only a small percentage, while that on. the side streets had nearly doubled in value, and it might be inferred that such increase was due to the presence of the railroad. Held, that from such evidence it was quite competent for the trial court to draw the conclusion of damage to the plaintiff and its amount.
    3. Same.
    Plaintiff in such a case is entitled to prove that his property has not equally or proportionably shared in the general rise in value in the locality,, and that fact, with the other facts in evidence tending to prove damage, may properly be considered in determining whether he has been adequately compensated for the deprivation of his easements.
    4. Same.
    In each case the question is, what damage has actually been sustained in the deprivation to the abutting owner of these easements, and some-facts must be given in evidence to support a finding of actual damage, or none can be inferred.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered upon findings and conclusions at special term.

      Julien T. Davies, for app’lts; Charles Gibson Bennett, for resp’t.

       Affirming 39 St. Rep., 263.

   Gray, J.

The judgment which the plaintiff recovered against, the defendants enjoined the maintenance and operation of their railway and station in front of his premises, unless within a certain time they should pay a certain sum, found to be the value of the plaintiff’s easements, in exchange for a conveyance of the property. It also awarded a sum for damages sustained in the past. Upon the hearing of this appeal the appellant corporations have strenuously contended that the case was decided upon an erroneous theory, which overlooked the fact of benefits derived, and charged the defendants with constructive damage to plaintiff’s property. This contention is presented to us upon the basis of the refusal of the trial judge to make the following finding, requested by the defendants. It was that since the year 1880 there has been a general rise in the value of real estate situated upon Second avenue, and this increase of value is largely attributable to the existence and operation of the defendants’ railroad.” The defendants excepted to the refusal and maintain that the facts embodied in the request were conclusively established by uncontradicted evidence. Conceding the fact to be such, I do not see how the appellants make out the materiality of this finding to the case.

The facts stated in the proposed finding might be perfectly true, and yet they would be quite immaterial and irrelevant; if the evidence in the case was such as to warrant a finding that there had been damage sustained by the plaintiff in his property rights, resulting from the construction, maintenance and operation of the elevated railway.

. But the appellants say that within the principle of a recent decision of this court, in the case of Bohm v. The Elevated Railway Company, 42 St. Rep., 247, they were absolutely entitled to the finding, and that the conclusion would be inevitable from the evidence that no damage could be rationally deduced. It is true that in the Bohm case a request to find was refused, couched in the same language as was used here. But the request was there made in connection with a preceding request, to the effect that the plaintiff’s property had incidentally been benefited by the existence and operation of the railroad in Second avenue, through an increase of population and traffic; and the error in the refusal of the trial judge to make the findings there consisted in the fact that they contained the correct rule of damage in relation to the proofs; and that, as it was clear that the evidence in the case failed to show that the plaintiff’s property had actually suffered .any injury, a proper application of the rule must have led to a ■different conclusion from that which the trial court arrived at. The opinion recognized the right to a recovery by abutting owners of any actual damage sustained; but, for the positive lack of any evidence to support the conclusion that the plaintiff had sustained any loss and because the contrary appeared, that he was benefited, it was held that the defendants were entitled to another trial of the issues; upon which the rule of damage stated should guide the trial court in rendering judgment upon the evidence given.

The Bohm case does not control the disposition of this case, in the sense in which the able counsel who argued for the appellants has understood it. A careful consideration of the elaborate opinion delivered in that case will show that it was not intended to deprive a complainant of his right to compensation when he could give any competent evidence of injury satisfactory to the trial tribunal; nor, in the slightest degree, to interfere with the jurisdiction of that tribunal to determine the amount of the injury from the evidence given. The power of so determining must be lodged somewhere, and when the court below has adjudged upon the right to recover, this court will not reverse its judgment, unless for errors of law, where there is evidence in the case.to support the judgment. In the Bohm case, for the first time, it. seemed necessary for this court to lay down a rule as to damages-in cases of the taking of the easements of abutting property owners, in connection with, or as influenced by evidence of benefits-to the abutting property,, paused by the introduction of this new kind of railroad communication. So it was held that if the evidence showed no injury, but only benefits to the abutting owners, in an actual increase of fee and rental values of their property, then it would not be permissible to conjecture as to results, nor \ just to uphold a claim of damage resting in pure theory, and not, upon facts in the case. The easements, for an illegal taking of which the abutting owner can claim compensation; have not, as it. was said by Judge Peckham: “ any value in and of themselves, separated from the adjoining land, but their value is to be measured by the injury which such taking inflicts upon -the land which is-left and to which they were appurtenant” Hence, as the damage is consequential in its nature, it is deemed to follow that, if the abutting property has béen benefited, though deprived of easements in and over the street, and ’the owner is unable to sustain? his allegations of damage by any proof, for the court to allow his-demand would be contrary to legal principles and unjust. So far the decision of the Bohm case goes, generally speaking, and it rests upon its particular facts. It was not intended, in that decision, to disturb any settled rule of law in ■ damage cases, but to-.define and prescribe the application of the rule in the presence of such a new state of facts ás these cases are exhibiting. The value of the easements taken must be measured, not abstractly and in theoretical ways, but practically, and by the effect which the appropriation of the easements lias upon the property to which they were appurtenant

In the present case there was evidence which supported the-findings of the learned trial judge as to the damage suffered by the plaintiff and as to its amount. The portion of Second avenue-on which his property abutted, and the side streets in the neighborhood, had been more or less settled and built upon prior to theconstructiou of the defendants’ railroad. After they -commenced! its operation they erected station-houses at the intersection of One Hundred and Eleventh street with Second avenue; which, with three tracks and their intermediate boarding over, extend so as to-practically cover over the avenue, from a point below the intersection of these streets to a point above and opposite to the plaintiff’s premises. There was evidence that the structure shut off’ much of the light from the building, and that the stoppage and. operation of trains, for various reasons, caused annoyances and discomfort to the occupants in various substantial ways. There-was evidence given that the rental values of the property had been prejudicially affected since and because of the erection of' the defendants’ railroad. There was evidence to the effect that while the property on the avenue had advanced, since a period of' time previous to the building of the road, only by a small percentage, the property on the side streets, as also upon First ave - nue, had nearly doubled in value. From evidence in the case it. was permissible to infer that the course of values in the Second, avenue had been much less favorable at this point than in the-neighboring side streets and in the neighboring and parallel, avenue; and that it was attributable to the presence and effects of. the elevated railroad. From such evidence, in the comparison of values of properties in the neighborhood, and with the other-evidence as to the character of the structures and the effect of the defendants’ operation of their road, it was quite competent for the trial court to draw the conclusion of damage to the plaintiff and as to its amount. It is, of course, .obvious that in this class of cases great difficulties attend their decision by the trial court It is not to be supposed that this court will interfere with any judgment which has been based upon inferences from facts in evidence drawn by the judge or the jury. The jurisdiction of the. . courts below to deal with the facts, and to determine upon such, inferences as they may draw from them, will not be disturbed • and this court is only concerned, upon any review of the facts-which is authorized by the appeal, with the question of the existence of facts to warrant the conclusions below.

In view of the recent decisions of this court upon the subject: of the admissibility in evidence of the opinions of experts, in aid. of the proof of damages, the trial tribunal is left to form its own. opinion as to the amount of damage, and its conclusions must be-drawn from evidence which, in its nature, is somewhat vague and inconclusive, nevertheless, the inquiry is authorized, and where-a determination has been made upon such evidence as we have-here, in a comparison of values, in connection with facts evidencing actual injury to and affecting the occupation of property, it. will be left there.

The argument of the appellants’ counsel advances the proposition that as there was, in fact, an increase or appreciation in the-value of plaintiff’s property, since the defendants came into the-avenue with their railroad, the plaintiff has not been damaged, and that the fact that the property in the side streets, or in parallel avenues, has been more benefited furnishes no evidence of injury. The decision in the Bohm case does not justify the argument to-the extent probably intended here. The reversal of judgment in the Bohm case proceeded distinctly upon the utter absence of any facts from which an inference' of damage to the plaintiff was legitimately permissible. It was not claimed, or proved in that case,, that the land would have increased as much but for the construction and operation of the defendants’ railroad, and it was held that if the determination could only be reached and sustained by “ abstract reasoning ” as to what was the value of these-easements, of themselves, and as separated from the abutting property to which they were appurtenant, then the plaintiff should fail in his demand for compensation in damages. In the present case, however, as I have said, there were facts in evidence from which, the trial court, finding that the appreciation in value of the plaintiff’s property had. not kept pace with that of his neighbors, might conclude that it had been prevented by causes solely attributable: to the acts of defendants. In the nature of their acts and in the «character and degree of the effects produced, as well as in the .relative course of property values, there was a sufficient foundation for the decision of the learned trial judge. In connection with the ■other facts in this case, evidence of an insufficient increase in value «of property might as properly be considered in determining the question of damage as though the evidence showed a depreciation in value. The property which is taken is not corporeal, but consists in certain rights or easements which the law concedes to the -owner whose property abuts upon and ends at the line of the street, in and over the street. When by such an occupation of the street, under governmental sanction, there results an impairment of those rights, the question, upon a claim for compensation in damages for the trespass, goes directly to the facts of the case. If there is proof that benefits have resulted in a general appreciation of property values in the locality, it is quite competent for the complainant to show in evidence that these benefits have not been invariable, and that in his particular case they were insufficient, as compared with other property similarly situated, or in •the-neighborhood; and that the insufficiency is due to the mode, manner or extent of the defendants’ occupation of the street.- He is entitled to prove that his property has not equally, or proportion ably, shared in the general rise in values in the locality, and that fact, with the other facts in evidence tending to prove damage, may properly be considered in determining whether he has been adequately compensated for the deprivation of his easements.

In each case the question is, what damage has actually been sustained in the deprivation to the abutting owner of these easements, and some facts must be given in evidence to support a finding of actual damage, or none can be inferred.

I have said more than this appeal necessitated; but I have done «so because of the importance of questions which may frequently ■arise in -this class of cases.

There was no error committed upon the trial of this case, and the judgment should be affirmed, with costs.

All concur; Earl, Oh. J., and Peckham, J., in result.


author: Dwight, P. J.

text:
    The Rochester & Honeoye Valley Railroad Co., Resp’t, v. Thomas A. Myers et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    RmINENT DOMAIS—RAIX-BOADS—DAMAGES.
    Where the estimates of witnesses in a proceeding to condemn land for a railroad were, to a great extent, based on elements largely speculative, an .award by the commissioners of a smaller sum than the average of such estimates made by the commissioners after a view of the premises will not be disturbed, unless they have fallen into some error of procedure or have adopted some erroneous principle of estimate.
    Appeal by the land owners from an order of the Monroe special term confirming the report of commissioners of appraisal in a proceeding under the general condemnation act.

      E. E. Woodward, for app’lts ; J. W. Taylor, for resp’t.
   Dwight, P. J.

The proceeding was to acquire the right of way for a railroad over lands of the appellants. The award of $1,700, made by a majority of the commissioners, was somewhat-less than the average amount indicated by the testimony of the-witnesses, even of those called by the petitioner. But the estimates of the witnesses on both sides included many elements - which were largely speculative; such as the inconvenience of working land, due to the shape into which lots were divided by the railroad; the cutting off of the view from the house of a portion of the-farm; inconveniences in watering cattle and driving them from one portion of the farm to another; the nuisance of smoke and cinders, and the danger of fire from sparks. All these-are undoubtedly proper subjects of consideration, but they are-elements of damage for which it is impossible to fix an absolute equivalent in money, and in respect to which the independent testimony of witnesses would not be likely to agree, nor closely to approximate. The only element of damage in this case which was capable of ascertainment with anything like strictness, was the value of the four and a half acres of land, without buildings, taken for the right of way.

The largest estimate of the value of the farm (of 135 acres); with the buildings, was ninety dollars per acre: the buildings; were said to be worth $4,000, which reduces the value of the land, without buildings to. sixty dollars per acre, and this- would be reduced to fifty dollars by the lower estimates of the value of the-farm as a whole. At fifty-five dollars per acre the land appropriated is worth $250. All the rest of the damages are speculative,, they are matters of opinion, subject to estimate it is true, but in respect to which commissioners taking testimony would look for very wide divergence of opinion and would inevitably rely upon their own judgment rather than that of witnesses however apparently intelligent and fair. And that is, undoubtedly, the legal theory of these awards by commissioners. It is the commissioners’ who estimate damages; not the witnesses. The commissioners may be aided by the judgment of witnesses, but the "final judgment is their own. Accordingly the statute not only permits but requires their personal view and inspection of the premises. And the result of such inspection is as properly the basis of their judgment, as the testimony of the witnesses. Perkins v. The People, 113 N. Y., 660; 23 St. Rep., 266; Matter of B. & G. R. R. Co., 37 St. Rep., 343; Matter of S. I. R. T. Co., 47 Hun, 396; 14 St. Rep., 924; Matter of N. Y. El. R. R. Co., 35 St. Rep., 944.

Such being the importance attached to the judgment of the-commissioners themselves, it has become the rule that the courts will not interfere with their award unless it is very clear that they have misconceived the facts and erred in their estimate, or unless they have fallen into some error of procedure or have adopted some erroneous principle of estimate. See the cases above cited. There is no error of procedure disclosed by the record here. The only suggestion of ah erroneous principle or ground of estimate adopted by them is based upon statements contained in the affidavit of the attorney for the petitioner, upon which he applied ior and obtained an order to show cause abbreviating the period ■of notice of the motion for the confirmation of the report. From that affidavit it appears that on the hearing before the commissioners a question arose as to the right of the land owners to have farm crossings: and it is stated in the affidavit that the general railroad act contained provisions which secured to the landowner the right to have such crossings wherever necessary, but that the act of 1890, (Laws of 1890, chap. 565), repealed these provisions; that the last mentioned act was to take effect May 1, 1891, and therefore it was desirable that the report of the commissioners should be confirmed (if it was to be confirmed) before the last mentioned date. The affidavit also stated that the affiant was iniormed by the commissioners that their award was of a less sum than it would have been but for the understanding that the report would be confirmed before' the supposed repealing act took effect

There is no error or erroneous principle of estimate disclosed by this affidavit. On the supposition that the land owner would be entitled, as matter of right, to farm crossings wherever they were needed,, his damages would manifestly be less than if that Tight were to be denied him; and the award of the cómmission-ers would properly be less in the former than in the latter contingency. It now appears that the whole discussion in the affidavit was based upon a misapprehension of the effect of the act ■of 1890, which, it seems, did not repeal, but saved the provisions referred to of the general railroad act.

But the inquiry is entirely immaterial so far as this case is concerned. The award was in fact confirmed before the 1st day of May, 1891, so that whether the act of 1890 had a repealing effect or not, the right of the land owner to his farm crossings was secure.

We find no ground upon which the award in this case can be disturbed ; and we conclude that the order of confirmation must be affirmed, but without costs.

Order appealed' from affirmed, without costs of this appeal to ■either party.

Macomber and Lewis, JJ., concur.


text:
    Ira W. Hills, App’lt, v. Robert H. Bishop, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892)

    IFisheby—Laws 1887, chap. 633.
    One who holds a lease of the waters of a pond subject to tides, and the lands thereunder, except upon two sides, where others own the land to low water mark, has not “ such exclusive ownership or control over the waters and the land underneath the same,” as is required by the terms of chap. 633, Laws 1887, in order to enable him to take proceedings thereunder and to acquire the privileges to be secured thereby.
    Appeal by the plaintiff from a judgment dismissing his complaint, entered- on the findings and decision of the court at the ■Cayuga circuit, a jury being waived.

      I). L. Hurlbut, for app’lt; A. J. Parker, for resp’t
   Dwight, P. J.

The action was to recover penalties imposed By the statute (Laws of 1887, chap. 623), for taking fish from a pond which the plaintiff had sought to lay out as a private park, for propagating and protecting fish, under the provisions of the .•statute cited. We think the first conclusion of law of the learned trial court is supported by the facts, which were agreed upon, and that such conclusion supports the judgment appealed from. That • conclusion is to the effect that the plaintiff had not, at the time he instituted proceedings for the laying out and designating a private park, “ such exclusive ownership or control over the waters t(of the pond), and the land underneath the same ” as is required by the terms of the statute in question in order to entitle him to take such proceedings, and to acquire the privileges to be secured dhereby. The statute is'penal in its character and requires to be •strictly construed. By the first clause of its first section it defines the persons, whether individuals or corporations, who may take such proceedings and acquire such privileges, to be the owners •or lessees of land or lands and water, or any person or corporación, etc., “ having the exclusive right to shoot or hunt thereon or .fish therein.” The plaintiff’s proceedings to lay out and designate his private park included the whole of the pond in question, whereas his lease, under which, alone he claimed the right to take •such proceedings, included, on two sides of the pond, which was in nearly a square form, only the waters thereof and the land under the water up to low water mark. The findings of the •court are in the language of the statement of facts agreed upon Between the parties, and one of those findings is as follows: "“That the plaintiff did not lease the land west of the pond or marsh, nor the land east of the pond, said lands being owned by other parties, and run to low water mark.”

Conceding, therefore, all that is claimed by him as to the title of his lessor, and that he took by his lease the water and land under water in the main body of the pond, it yet appears that "the margin of the pond on two sides, down to low water mark, was owned by other persons. This fact, we think, clearly excludes the plaintiff from the category of the persons entitled to -■apply the provisions of the act of 1887 to the pond in question. He was neither the owner nor lessee of the whole of the pond, mar a person having the exclusive right to fish therein. The body •of water in question was separated only by a narrow bar of sand -and gravel from the waters of Lake Ontario, "and was connected with those waters by a channel from fifteen to twenty rods wide ■and from one to eight feet deep ; it was therefore subject to the rise and fall of the waters of the lake, as well as to the fluctuation of a considerable stream which emptied into it on the south side. What was the extent of its variation in height is not •stated, but tó whatever extent it was accustomed to rise above low water mark, to that extent there was a portion of the waters •of the pond and of the land underneath the same of which the plaintiff was neither owner nor lessee and in which he had not •only no exclusive right to fish, but no right at all; the exclusive

right, to fish therein being the property of the several owners of the soil down to low water mark. See Angell on Tide Waters, 105; Trustees of Brookhaven v. Strong, 60 N. Y., 56, 65, in which the principle is stated and discussed that the right of exclusive or several fishery in any waters depends upon the ownership of the-soil beneath such waters; that on fresh water rivers such several right belongs to the owner of the adjoining land on either side-because it is presumed that his title extends to the thread of the stream, and that upon tide waters the rule is otherwise because his-title extends only to high water mark; “but,” says the court in the case cited, “if the title to the soil under the water is obtained there is no reason why the same right of fishery would not attach-as to fresh waters, subject, of course, to the superior right of navigation." Of course the same principle must apply to the case of' all the waters of this pond standing above low water mark, and give to the owners of the adjoining lands a several right of fishery therein.

This, it seems to us, is quite sufficient to defeat the claim of the plaintiff to the exclusive right to fish in the pond to which he has; sought to apply the provisions of the act of 1887, and thus to defeat the application of those provisions.

In this view we find the first conclusion of law of the trial court well founded and that it supports the judgment dismissing the plaintiff’s complaint

The judgment should be affirmed.

Macomber and Lewis, JJ., concur.


author: Macomber, J.

text:
    James C. Hiscock et al., Resp’ts, v. Polly Fulton et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Execution—Legacy chargeable on real estate.
    A legatee whose legacy is not made chargeable on real estate by the" terms of the will, but is chargeable thereon by reason of existing circurm stances and the presumed intention of the testator, possesses no interest in. the real estate which is leviable by execution.
    2. Legacy—Interest.
    A legacy draws interest from the issue of letters testamentary, and note from the death of testator.
    3. Same—Action by creditor oe legatee.
    In an action by.a. creditor of the legatee to charge the legacy on real estate, the only judgment which the plaintiff is entitled to is one making-his recovery a lien on the real estate, and that her interest therein shall be-sold under the direction of the court.
    Appeal by the defendants, other than Aaron Garrett, executor, etc., of David Hartman, deceased, from a judgment entered in Monroe county March 30, 1891, on the decision of the court at-special term held in the month of September, 1890.
    jSI H. Cane, for app’lts; JSdward Webster, for resp’ts.
   Macomber, J.

This action is brought, as is claimed by the counsel for the respondents, for the purpose of charging a legacy upon real estate.

The respondents are judgment creditors of the appellants, Polly .Pulton and her husband James C. Fulton. These two last named persons did, on the 9th day of May, 1877, duly confess a judgment to the plaintiffs in the sum of $612.37, being for merchandise .sold and delivered them by to the plaintiffs. Execution on such judgment, in pursuance of an order made by the special term, was issued May 5, 1887, to the sheriff of the county of Monroe, who, finding no personal property belonging to either of the judgment debtors, did, on the 6th day of May of that year, levy on the supposed interest of the defendant, Polly Fulton, in the lands de.scribed in the complaint in this action, advertised the same to be .sold at public auction, and subsequently sold the same at a public .■sale, at which the property was struck off to the plaintiffs, who were the highest bidders, for the sum of $500, and the certificate «of sale stating that to be the highest bid was subsequently delivered to them by the sheriff, and filed in the proper office July 2, 1889. No person entitled to do so having redeemed or offered to redeem the premises within the fifteen months under the statute, a sheriff’s deed was executed and delivered to the plaintiffs of the supposed interest of Polly Fulton in the lands described in the complaint, which consist of two parcels, both situate in the town of Greece, Monroe county, one of twenty and three-fourths -acres, and the other of fifty acres.

While it is probable that the plaintiffs may ultimately succeed in this action, and have their judgment charged upon the interest of Polly Fulton in the real estate left by her father, we are, nevertheless, of the opinion that the judgment' appealed from cannot, under the facts established, be affirmed; for the reason, that the plaintiffs have proceeded upon a mistaken method to enforce the sights which they seem to possess.

Their claim is based upon the following facts. The defendant, Polly Fulton, is the daughter of David Hartman, who died in the town of Greece August 6, 1886, leaving a last will and testament which was afterwards admitted "to probate by the surrogate of Monroe county. By this will, which bears date the 18th day of June, 1885, Hartman, made the following bequests and devises to his children: to Benjamin, Simon and M. Sela Hartman,' Polly Fulton, Matilda Taber, and Margaret Cole, each the sum of $600; and to his daughter, Susan A. Hartman, the sum of $1,000, making in the aggregate of such bequests the sum of $4,600, together with a gift of the household furniture to the four daughters. ■ In the residuary clause of the will, the testator devised to his three sons all the rest and residue of his estate, both real and personal.

The personal property left by the testator did not, at the time of making the will or at any time subsequently thereto, exceed in amount the sum of $400, and, hence, was manifestly incapable ■of discharging any considerable part of the money bequests above -mentioned. This fact was well known to the testator; conse■quently the court has, at special term, very properly found as a conclusion of fact, that it was the intention of the testator to ■charge the payment of these respective money legacies upon his real estate. Briggs v. Carroll, 117 N. Y., 288; 27 St. Rep., 468; McCorn v. McCorn, 100 N. Y., 511; Morris v. Sickly, 57 Hun, 563; 33 St. Rep., 741.

Upon the judgment above mentioned an execution was duly-issued to the proper sheriff, and the. latter, finding no personal property, levied upon the supposed interest of Polly Fulton in the real estate left by her father; a sale thereof was had, and her interest was struck off to the plaintiffs for the sum of $500. There is no proof that this sum was applied on the judgment recovered by the plaintiffs against Polly Fulton and her husband, nor is the execution and the return made by the sheriff thereon laid before ns in the appeal papers.

It is, however, quite clear that Polly Fulton possessed under the will no interest in the real estate of her father which was leviable by execution. As appears above, the real estate was wholly devised in the residuary clause of the will to other persons. No-equitable rights which she may have possessed therein could be enforced, except after a judgment of a competent court, adjudicating that her legacy of $600 was chargeable upon the real estate, and should be collected therefrom before the residuary clause-could take effect. The proper remedy of the plaintiffs, after recovering the judgment, and the return of execution thereon, was-an action for that purpose.

There are facts alleged in the complaint, and found by the trial court, which, standing by themselves, would be sufficient, probably, to afford such relief, and we should be inclined, in this instance, to adopt, such findings and to administer the proper relief,, were it not for certain other matters appearing in the case which preclude it. For instance, it is alleged in the complaint, that, under the execution issued upon the judgment against Polly Fulton and her husband the interest of Polly Fulton was seized and sold to the plaintiffs fat the sum of $500. Whether the-judgment has been reduced to that amount or not does not appear. It is clear to us, however, that there has been no actual-reduction of the amount unpaid upon such judgment Yet, as-the case now stands, there appears to be enforceable against the real estate only'the residue of such judgment after deducting the-amount of the bid.

The issuing of the execution upon that judgment was an absolute nullity. Yet, the fact that it was issued, and a sale made-thereunder, in the manner stated in the complaint, may be relieved against by an amendment of the complaint. On the-whole, we think such an amendment, however, should be made on application to the special term.

In certain minor details herein the judgment, in any event, should be corrected. If we understand the findings correctly, interest has been added to the legacy given to the defendant, Polly Fulton, from August 6, 1887, the date of the death of the-testator, whereas it should be only from October 25, 1887, when, the letters testamentary were issued. 2 B. S., 90, § 43.

It also appears that there is undistributed, of the personal estate,, the sum of $19.14 belonging to Polly Fulton, still in the hands-of the executor. This should first be applied before resort is had to the real estate.

The judgment is general in its terms, directing a sale of all the real estate left by the testator, Hartman, and apparently an effort has been made to adjust the claims of the several parties to the fund which may be realized therefrom. We know of no authority for this form of judgment. The plaintiffs are entitled in this action, if to anything, only to a judgment determining that their recovery against Polly Fulton should be made a lien upon the real estate” left by her father, and that such real estate shall be sold under the direction of the court. After such sale, which would necessarily be of her undivided interest in all of such real estate, the purchaser would be left to pursue such remedy as well established rules of law grant him.

We are, furthermore, of the opinion that the conclusion of the learned trial judge, that the deeds, mentioned in his findings, by and to the heirs at law of Hartman, were without consideration, and were given and received for the purpose of hindering, delaying and defrauding the plaintiffs in this action. If such facts appear upon the new trial, which we have concluded to order, the plaintiffs will be entitled ' to the relief herein indicated; but the measure of such relief will be determined by the amount actually found to be unpaid upon the plaintiffs’ judgment, recov'ered by them against Polly Fulton and her husband.

The judgment appealed from should be reversed, and a new trial had, with costs to abide the final award of costs.

Judgment reversed and a new trial ordered, with costs to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Michael Doyle et al., Resp’ts, v. Bruno Beaupre et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Sale—Statute of frauds.
    Where vendees receive the goods for the purpose of examination, open and examine them, and reject them solely on the ground that they do not conform to sample, they cannot afterwards claim that the contract was void under the statute of frauds.
    2. Same—Evidence.
    Where the sole defense to an action for the purchase price of goods sold is that they do not conform to sample, the admission in evidence of the shipping directions made out by the vendors does not prejudice the defendants and is not error which will vitiate a verdict'.
    3. Same. »
    In such case, as defendants do not seek to recoup damages, evidence as to how much less the goods shipped were than those exhibited in the sample is not admissible; so also as to evidence as to what defendant paid for other goods of a similar kind at or about the time of their rejection.

      4. Same.
    It is within the discretion of the court in such a case to allow the defendant on cross-examination to be asked in respect to similar difficulties in which his firm had become involved by his rejection of purchases as not up to sample.

      Appeal by the defendants from a judgment in favor of the plaintiffs entered on the verdict of a jury at the Monroe circuit, and from an order denying defendants motion for a new trial on the minutes of the court.

      A. Benedict, for app’lts ; Theo. Bacon, for resp’ts.
   Dwight, P. J.

The action was to recover the balance of the contract price of a large quantity of “ evaporated ” apples sold and shipped by the plaintiff's at Rochester, N. Y., to the defendants at St. Paul, Minnesota. The goods were sold by sample, to-be delivered free on board cars at Rochester, but with the privilege to the defendants of examining the goods before paying draft. The goods were shipped accordingly and were received by the defendants at St. Paul, and a draft of $3,000, drawn by the plaintiffs while the goods were in transit, was paid by the defendants before their arrival. Upon examination the defendants notified the plaintiffs that the goods were not according to the contract, did not conform to the sample, and that they declined to accept them. They also asked for directions as to the disposition to be made of the goods, and later demanded a return of the $3,000 paid. The plaintiffs did not comply with either of these requests, but insisted upon the sale; and, pending the correspondence, the goods were destroyed by fire in the defendants’ warehouse at St. Paul.

Thereupon the plaintiffs brought this action, alleging the sale and delivery of the apples and part payment therefor, and demanding judgment for the balance of the purchase price.

The answer admitted the contract of sale, the conditional delivery and the conditional payment of the $3,000, and alleged, as the sole defense to the action, the failure of the plaintiffs to perform the contract in respect to the quality of the goods; the answer also set up a counterclaim for the $3,000.

The action was tried and submitted to the jury on the sole issue presented by the pleadings, viz.: of the conformity of the goods delivered to the contract of sale as fixed by the sample on which the sale was made. The evidence was conflicting, being mainly that of the plaintiffs and their employees on the one hand, and of the defendants and their employees on the other hand. It was finally submitted to the jury, who rendered a verdict for the plaintiffs, and the case is manifestly one in which the court should not interfere with that determination of the question of fact.

At the close of the plaintiffs’ case the defendants moved for a nonsuit, on the • ground that the contract was void under the statute of frauds for want of a sufficient memorandum in -writing signed by the party to be charged, there being no part payment and no receipt of the goods. The denial of this motion gives occasion for the principal contention of the appellants on this appeal, and the argument in support of that contention was undoubtedly able and instructive, but the contention in this action is clearly excluded by the pleadings. For even if it should be said that the plaintiffs cannot avail themselves of the admission of the contract contained in the answer, without at the same time admitting the defense which is coupled with such admission, yet it seems to be settled that the defendants cannot avail themselves of the defense of the statute of frauds without alleging the facts upon which it is based.

The complaint in this action alleges a contract, a sale and delivery of the goods, and the defense that such contract, or a memorandum of it, was not in writing signed by the party to be charged thereby could not be made available unless set up by the answer. Hamer v. Sidway, 124 N. Y., 538, 548; 36 St. Rep., 888; Porter v. Wormser, 94 N. Y., 431, 450. Besides, this defense, if it existed at all, was clearly waived by the defendants when they received the goods at their destination for the purpose of examination, opened and examined them, and rejected them solely on the ground that they did not conform to the contract. It was too late, 'then, for the defendants to object that there was no contract. These obvious considerations render it unnecessary to examine the interesting argument in support of the contention that the broker by’ profession, who made this sale, was not a broker for the purposes of this action and that the memorandum of the sale signed by him was not a memorandum of the contract within the requirements of the statute of frauds.

We find only one issue in this case, which has been determined by the jury upon evidence sufficient to sustain the verdict, and we find no error in the trial of that issue or its submission to the jury. The shipping directions made out at the office of the plaintiffs and delivered to their shipping clerk was, in effect, an abstract of the order received from the defendants and transmitted to the person in charge of shipments for his guidance. It was a part of the process of shipping the goods, and, although not evidence of the conformity of the shipment to the contract, either as to quantity or quality, was evidence of the manner in which the shipment was made. It was not evidence of great importance, but it is difficult to see how it could have been prejudicial to the defendants, and it is certainly not so clear that it was so as that its admission should be held to vitiate the verdict

Evidence offered by the defendants to prove how much less the apples shipped were worth than those exhibited in the sample, was properly excluded. The defendants did not seek to recoup damages for breach of warranty, and the measure of such damages was not pertinent to the issues actually tried.

The offer to show by one of the defendants that he bought and what he paid for other goods of similar kind at about the time of the rejection of the plaintiffs’ shipment was properly excluded. There had been, undoubtedly, a suggestion that the rejection of the plaintiffs’ goods was due to some fall in the market for such goods, but the witness (defendant) had been permitted to testify that there was no such decline in price. That he was buying and 'selling all the time and had not observed any such decline. The details of any particular transaction and the price paid by him for the goods bought was immaterial.

There was no merit in the defendant’s objection to a portion of a letter from the plaintiffs to the defendants, all of which related to the subject matter of the action, which was directly in answer to a letter of the defendants to the plaintiffs which the defendants had already put in evidence, and to which another letter of the defendants (also in evidence) was an answer. The questions put to the defendant, above mentioned, on his cross-examination, in respect to similar difficulties in which his firm had become involved by his rejection of purchases as not up to sample, were, we think, within the .reasonable discretion of the court to permit It is impossible to fix a rigid rule by which .to limit the cross-examination of interested witnesses. Much must be left to the discretion of the court, dependent upon the attitude and apparent disposition of the witness. There is no such excess of that discretion in this instance as would warrant the reversal of the judgment; and no other exceptions seem to us to require discussion.

The judgment and order should be affirmed.

Macomber and Lewis, JJ., concur.


text:
    Frank M. Hayes, Rec’r, App’lt, v. Nelson Beardsley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    National banks—Preferential payments.
    Ten months prior to the closing of its doors the cashier of a national bank paid defendant certificates of deposit held by him, saying that the directors did not like to pay such large interest as they bore, and six weeks before the failure paid another certificate in the usual course of its exchanges. During this time the bank was insolvent, but none of the officers, except the cashier, knew of this fact, and he fraudulently concealed ■it from them. Held,- that such payments were not void under § 5342 U. S. R. S., and could not be recovered back from defendant, as there was no evidence that the cashier intended to give him a preference.
    Appeal by the plaintiff from a judgment entered in Cayuga county February 7, 1891, on the decision of the court without a jury dismissing the plaintiff’s complaint upon the merits, with costs.

      S. E. Payne, for app’lt; William F. Cogswell and William N. Cogswell, for resp’t.
   Macomber, J.

The plaintiff is the receiver of the First "National Bank of Auburn, N.'Y., a banking association organized under the statutes of the United States. He brought this action to recover the amount paid for three certificates of deposit which had been issued by the First National Bank of Auburn, and the ground upon which such recovery is sought is that the payment thereof was in violation of § 5242 of the U. S. R. S. It is important, therefore, to state exactly the terms of that statute

That statute is as follows: “ Sec. 5242. All transfers of the notes, bonds, bills of exchange or other evidence of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the lise of any of its share- • holders or creditors, and all payments of money to either, made after the commission of any act of insolvency or in contemplation thereof, made with a view to preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void,” etc.

The trial justice has found, as matter of fact, that this bank continued the ordinary business of banks in the usual way up to and including Saturday, the 21st day of January, 1888, on which day at twelve o’clock, noon, its doors were closed in accordance with the custom of other banking institutions of the city of Auburn, where this bank was located, to close at that hour on Saturday, in pursuance of the half holiday law enacted by the legislature of the state of New York. That on the 23d day of March, 1887, the bank being indebted to the defendant in the sum of $15,000, with interest thereon from the 20th day of- December, 1886, upon two certificates of deposit, dated respectively December 22, 1883, and December 27, 1883, paid and took up , such certificates of deposit by transferring to the owner thereof certain negotiable paper which the bank held to the amount due and unpaid upon the certificates, less the sum of $506.60, which last named sum was paid in cash; and the notes and the cash were received by the defendant in full payment and extinguishment of the certificates of deposit; that this payment was voluntarily made by the bank without demand or request by the defendant, and upon the ground, as stated by the cashier of the bank, that his directors did not like to pay so large a rate of interest as these certificates bore, which was six per cent, per annum, payable semi-annually.

On the 5th day of December, 1887, the bank was indebted to the defendant upon a like certificate in the sum of $10,000, bearing like interest. On that day the defendant transferred such certificate to the Cayuga County National Bank, of which the defendant was the president, and that sum, with accrued interest, was credited to him upon the books of that bank. Subsequently, but on the same day, the. First National Bank paid the amount of this certificate to the Cayuga County National Bank in settlement of exchanges between the banks in the usual course of business. This payment was made, as the court finds, by the paying teller of the First National Bank, who at that time had no knowledge or suspicion that the First National Bank was insolvent or unable to pay all debts and obligations in full in the usual course of business.

In regard to both transactions, the finding is made specific that these payments were not made with a view to prevent the application of the assets of the bank in the manner prescribed by the national banking act, or with a view to give preference to the defendant over any other creditor of the bank.

The further fact is found, that up to and including Saturday, 'the 21st day of January, 1888, the First National Bank was in good credit as a banking institution, and that up to that time the business public in the city of Auburn had not, nor had any of the officers of the bank other than its cashier, any knowledge or suspicion that the bank was insolvent and unable to pay its debts and obligations in full as they matured; that the first knowledge or suspicion on the part of the officers, other than the cashier, of the bank or of the defendant, was the absconding of the cashier and of a bookkeeper of the bank on the afternoon of Saturday, the 21st of January, 1888, or on the next day. It is further found that the bank committed no act of insolvency prior to the 21st day of January, 1888, and that the payment of the three certificates was not, nor was the payment of either of them, made after the commission of any act of insolvency, or in contemplation thereof.

The principal question in this case is one of fact. It will be noted that the trial justice has in his findings negatived in all its parts the claim made that the payment of the certificates was made in violation of the above quoted provision of the federal law. An examination of the evidence has led our minds to the same conclusion. Many suspicious circumstances are adduced by the learned counsel for the appellant, from which it is earnestly argued that the defendant had knowledge that the bank was insolvent at all of these times. ' Several witnesses have testified to declarations of the defendant made subsequently to the failure of the bank. The plaintiff himself testified that the defendant told him that at the time of receiving these payments he thought the First National Bank was hard up; and another witness testified that the defendant told him that he (the defendant) had advised the president against longer retaining the cashier because he played poker ; to another witness, that he did not draw all of his money at the time, because the cashier couldn’t pay it or did not want to pay it; to another witness, that he should not lose a great deal, as he had drawn out at intervals something like $30,000 that he had in the bank in certificates, and that if he had drawn it all out at one time it would have looked suspicious and excited talk and comment.

All of this testimony, relating to the defendant’s declarations, is either denied or explained by him in his evidence. There is the further fact, that he had at one time been a director of the First National Bank, and had withdrawn from it upon the ground, as stated by him, according to one witness, that he didn’t like the management of the bank.

Stress is also put upon the fact that he had been loaning for some time to this bank the sum of $50,000, and the bank was paying thereon as much interest as it could lawfully receive for loans made by it; and consequently it is argued the defendant must be charged with knowledge that the bank was not properly managed and was in embarrassed circumstances.

On the other hand, in respect to the first two certificates, it is shown that the transaction was ten months before the bank closed its doors on the flight of the cashier, after a series of em-' bezzlements by him; and in respect to the third certificate, the fact that it was paid, not to Mr. Beardsley in person, but to the bank where he had deposited it, and of which he was president, in the regular course of business of settling exchanges; and the further fact, that the defendant had still on deposit there, at the time of the bank’s failure, the sum of $20,000. This and other circumstances which might be mentioned, coupled with the positive testimony of the defendant in respect to his knowledge or intention, make a case upon the question of fact where, considering the nature of the testimony against the defendant, which is • mainly that of his subsequent declarations testified to by other persons, where the preponderance of the evidence appears to be on the side of the defendant, and, consequently, upon the question of fact, we must concur with the conclusion reached by the learned trial justice.

It is argued, however, by the learned counsel for the plaintiff,. that under this statute, so long as the cashier knew of the condi- . tian of the bank, and these payments were made when the bank was in fact insolvent, as it clearly was at the time of the payment of the first certificates and for a considerable time prior thereto, as well as at the time of the payment of the last certificate, that it is not material whether the defendant knew of the real condition of the bank or not, but that under this statute an absolute liability against the defendant attaches. He cites upon that branch of his argument the case of Nat. Security Bk. v. Butler, 129 U. S., 223. But that case, in its facts, materially differs from the one now under consideration. In the case relied upon by counsel, the insolvency of the bank was well-known to its officers, and the payment was there actually made by the bank for the purpose of giving a preference. In this case no officer of the bank, except the cashier, who was also a director, knew of the bank’s actual condition ; on the contrary it had been fraudulently concealed from them, and the concealment seems to have been so completely made that the bank examiner, visiting the bank a few days before its collapse, did not find out its true condition. In the ease cited, the contemplated insolvency of the bank followed immediately upon payment to the preferred creditor. The inference to be drawn from acts so nearly simultaneous is quite different from that to be adduced where the lapse of time between the acts is so great as is shown to have been in this case.

If any one of the payments was made with a fraudulent intent on the part of the cashier to give a preference to this defendant, that fact has not been shown. Other inferences in regard to the motive of the cashier in paying off these certificates may be readily drawn as that he intended to give the defendant a preference. Being engaged a long time at deliberate embezzlement of the bank’s funds, he naturally would try by his actions to lead such an extensive lender of money as the defendant into a belief that the bank was prospering; and no better means to that end probably could have been adopted than the voluntary payment by him of a portion of the bank’s indebtedness to the defendant, coupled with the notice that the bank did not like to pay such high rate of interest.

There is a failure of proof, as it seems to us, of any facts actually tending to show a preference in the payment of these sums of money to the defendant. As the court say in Curtis v. Leavitt, 15 N. Y., 198: “The intent to give a preference, and either an actual insolvency or a contemplation of insolvency must be proved as facts. The intent.and contemplation of insolvency may be proved either by direct evidence, or inferred • as the necessary consequence of other facts clearly proved. If insolvency is relied upon to defeat the securities, knowledge of the insolvency by the directors of the company, or a belief by them that it existed at the time the securities were made, must be proved; for an intent to give a preference to particular creditors, in fraud of all other creditors of the company, cannot be conceived except as connected with a knowledge or belief that the company is insolvent, or with a contemplation of its insolvency. It is the intent to give a preference in violation of the statute, and in fraud of the general creditors of the .company, which stamps the conveyance or assignment with criminality,” etc. See also cases there cited.

It seems to us that payments cannot be said to be “made after the commission of an act of insolvency, or in contemplation thereof,” when they were made, not by the bank with knowledge by its directors of its actual condition of insolvency, so far as could be ascertained by the directors of the bank in the regular course of business of a solvent institution, but by the cashier alone, and that such a payment cannot “ be said to have been made with a view to the preference of one creditor to another,” when made under the circumstances disclosed .in this case.

Nor does the circumstance that the defendant was a director of the First National Bank up to the beginning of the year 1887 make, under these proofs, his liability in this action any more manifest, even though the bank was actually insolvent at that time, or render him liable to pay back the moneys received by him in the manner stated so long as he acted in good faith, whatever may have been the misconduct and motive of the cashier, for he, while a director, as well as the other directors "and officers of the bank, was deceived by the cashier as to the bank’s true condition, and not absolutely liable for the latter’s misconduct. •As the court said in Land Credit Co. v. Lord Fermoy, L. R., 5 Ch. App., 763, “Whatever may be the case with a trustee, a director cannot be held liable for being defrauded. To do so would make his position intolerable.” Briggs v. Spaulding, 141 U. S., 132; S. C., 33 Am. & Eng. Corp. Cases, 420.

Judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur. 0


author: Macomber, J.—This

text:
    Catherine A. Hennessy, Pl’ff, v. Archibald R. Murdock, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Easement—Lane—Abandonment.
    Where abutting owners who enjoy equally the right of an intervening private lane erect a fence in the center thereof, thus enclosing each his proportionate share thereof, this constitutes an abandonment of the lane, and the right to the use of the lane cannot be revived by any subsequent owner of the abutting premises.

      Motion by the plaintiff for a new trial on exceptions taken at the Cayuga circuit, May 12, 1891, and ordered to be heard at the general term in the first instance, after a nonsuit directed by the court at the close of the plaintiff’s evidence in chief.

      Teller & Hotchkiss, for pl’ff; Lyon & Pierce, for def’t.
   Macomber, J.—This

action was originally brought in the city-court of the city of Auburn to recover damages for an alleged trespass. The defendant there interposed an answer alleging that the title to real estate would come in question upon the trial, and accordingly the case was removed to the supreme court under the .statute. In this court' the demand for recovery is in the sum of .$500, for an alleged trespass committed on or about the 7th. day of June, 1890, by breaking and entering the lands and premises •of the plaintiff, and there and without permission of the plaintiff -erecting a fence on said land, and disturbing the plaintiff in the use and occupation of the lands, a particular description of which .is set forth in the complaint. The locus in quo was a lane sixteen feet wide, running between lots 15 and 16, which abut on Washington street, in the city of Auburn, thence running westward toward Jefferson street.

That this lane once existed for the use of the owners on either ■side of it admits of no doubt, although it was never a public thoroughfare, or Used by the public, or accepted as a street by the city authorities. If, however, this lane .had been closed before the plaintiff received her deed, and if the deed to her does not -cover the land generally occupied by the lane, we are unable to •.see how an action of this kind will lie in her behalf.

The evidence is entirely consistent throughout to the effect, that upwards of twenty-two years ago the lane was practically abandoned by the abutting owners who divided the land among ■themselves by fencing in portions thereof, and building line fences in the center from the rear .of defendant’s lot to Jefferson ¡street. Subsequently, by the acts of owners, the lane was closed .at the Washington end of it In April, 1881, the premises now •owned by the plaintiff were conveyed to one Maria L. Irish. At this time there was. nothing to indicate that any lane had ever existed between these lands (now those of the plaintiff and of the defendant), or that the space actually occupied as a lane did not belong to and form a part of each of' these lots. In the deed to Maria L. Irish no reference is made to the existence of a lane. The conveyance made to the plaintiff was executed on the 6th •day of August, 1889, by the then owner, one William O’Neil, "the boundaries being stated as follows: “And being a part of lot :No. 16 on a map made by James T. Smith and filed in the Cayuga county clerk’s office April 24, 1835, beginning at a point in the west line of Washington street and at the northeast corner of said lot No. 16; thence westerly along the north line of said Iofc No. 16 two chains,” and so on by metes and bounds particularly •specified, to the place of beginning. Such also was the description in the deed from Maria L. Irish to the plaintiff’s grantor. (O’Neil.

Under these facts it seems quite clear that Hosmer, while owner of the premises under deed dated December 20, 1865, intended to» and did actually abandon any and all easements that he, as the? owner at the time of., this portion of lot 16, might have enforced! in respect to this lane. There can hardly be any more conclusive evidence of the intention of the abutting owners who enjoy equally the right of an intervening lane to abandon the lane than by erecting a fence in the center thereof, and thus enclosing each his proportionate share-thereof. If this is once done, as it seems, to have been done under-the evidence before us, the right to the use of the lane cannot be revived by any subsequent owner o£ the abutting'premises. Snell v. Levitt, 110 N.Y., 595; 18 St. Rep.,. 611; Crain v. Fox, 16 Barb., 184; Corning v. Gould, 16 Wend., 531.

The direction, therefore, of the nonsuit made by the circuit, appears to be correct, and the motion for a new trial should be? denied. • ...

Motion for a new trial denied, with costs.

Dwight, P. J., and Lewis, J., concur.


author: Lawrence, J.—This O’Brien, J. Van Brunt, P. J.

text:
    William M. House, App’lt, v. John L. Lockwood and Juliet R. Lockwood, Resp’ts.

      (Supreme Court, General Term, First Department

      Filed February 18, 1892. )
    Contract—Illegal—Equity will not enforce.
    In an action for strict foreclosure of a deed alleged to be a mortgage, it appeared that, the transaction was intended to enable the grantor to go. through bankruptcy and escape his other creditors; that the grantee took part in the bankruptcy proceedings, verified proofs st ating that he was unsecured and voted as an unsecured creditor. Feld, that a court of equity would not aid him in enforcing the illegal agreement nor any security which he obtained in pursuance thereof.
    (Van Brunt, P. J., dissents.)
    Appeal by the plaintiff from a judgment at special term,, dismissing his complaint upon the merits, and granting affirmative relief to the defendant, and also from an order denying motion for a new trial on the minutes.

      Edward 0 James, for app’lt; Austen G: Fox, for resp’ts.
   Lawrence, J.—This

is an action of strict foreclosure. A deed absolute on its face is alleged to be a mortgage upon land situated in the counties of- Cook and Lasalle, in the .state of' Illinois, given to secure the payment to the plaintiff of the-amount mentioned in the complaint. It was further alleged in. the complaint that in a former action in' the superior court of, the city of New York, in which Juliet R. Lockwood was.plaintiff,, and William M. House defendant, it was adjudged and decreed! that the property in question had been conveyed by the defendants to House as security for moneys owing to House and the-firm of which he was a member, and the money to be thereafter advanced by him or his firm to the defendants.

The defendants, who are husband and wife, answered separately,, each of them admitting the execution and delivery of the deed, but

<denying that the premises in question were conveyed by the defendants to the plaintiff to secure the sums mentioned in the complaint, or any part thereof. The defendants also allege that the deed mentioned in the complaint was executed and delivered to the plaintiff by the defendants for the purpose of transferring the legal title to said premises to the plaintiff from the said John L Lockwood, in whose name the said title stood, under an agreement between the said defendants and the plaintiff that the plaintiff would thereupon immediately execute and deliver to the defendant -Juliet R. Lockwood an absolute deed of said premises, and each of the defendants avers that subsequently and on or about the ',7th day of December, 1876, plaintiff, in pursuance and in performance of said agreement, executed and delivered to said Juliet R Lockwood an absolute deed of said premises, and the legal and ■equitable title to said premises thereupon became joined and vested in said defendant, and that the plaintiff has neither the legal or equitable title to the same. They further denied the allegation in respect to the former decree in the superior court. 'The defendant John L.- Lockwood also avers that certain bankruptcy proceedings were instituted in the district court of the United States for the district of Hew Jersey, on behalf of the firm of S. A. House & Sons, of which the plaintiff was a member; that the indebtedness to the said firm from the said John L. Lockwood was alleged to be an indebtedness provable in bankruptcy against his estate, and to be the ground of their petition; that subsequently on the 10th of January, 1877, the said John L. Lockwood • was duly adjudged to be a bankrupt, and that the plaintiff in the name of said firm proved in-bankruptcy a portion •of said indebtedness, and on said proof of debt testified that neither the firm of S. A. House & Sons nor. the plaintiff had any security for the same or any part thereof, and that on the 23d day of December, 1878, the court granted the said John L. Lockwood a discharge from all his debts provable against his estate.

The question as to the jurisdiction of the court was settled by a former decision of the general term of this department, reported in 40 Hun, 532; 1 St. Rep., 196.

The cause came on for trial at the special term, and after the taking of testimony, and the submission thereof to the learned justice holding the term, it was subsequently, by the consent of the parties, ordered that the questions of fact arising in this action be submitted to a jury, as follows, in accordance with § 823 rof the Code of Civil Procedure :

“First. Was the deed conveying certain premises in the state ■of Illinois, October 7, 1876, and executed by the defendants, John L. Lockwood and Juliet R Lockwood, his wife, to the plaintiff, William M. House (being the deed described in the complaint), delivered to said House by said-Lockwoods, or either of them, as security for the indebtedness, past, present, or thereafter •to arise, of said John L. Lockwood-to said House or to the firm of S. A. House & Sons.”
Second. Was said deed delivered to said William M. House hj the said Lockwoods, or either of them, in order that the said House might and should reconvey the premises therein described to said defendant Juliet R. Lockwood.”

Upon the trial of the issues at circuit, before the same justice,, the two questions specified in the order above referred to were-after the hearing of testimony submitted to the jury for their answer, and to the first question the jury answered: “ No,” and to the second question, “Yes.” Upon the subsequent hearing at. the special term, before the same justice, on the verdict of the jury, and on all the evidence taken in the case, a judgment was. rendered dismissing the complaint upon the merits, with costs, and adjudging and decreeing that the plaintiff forthwith execute- and deliver to the defendant, Juliet E. Lockwood, a deed or conveyance of the property in question.

Upon the argument of this appeal, substantially but twoqusstions were argued by the appellant’s counsel. It was-claimed that in the former action, in the superior court of the city of New York, in which Juliet E. Lockwood was-plaintiff, and William M. House defendant, it was adjudged and decreed that the property involved in this controversy had been, conveyed to the plaintiff by the defendants hérein to be. held by him as security for certain moneys then owing to him and the.firm of S. A. House & Sons, of which he was a member, andl also for such other sums of money as should thereafter be advanced by him or his said firm to said defendant, and it was further claimed that errors were committed in the reception of certain evidence upon the trial.

- We do not think that the point, that the matters involved in-this suit are res adjudícala, is well taken, for the reason that on the-4th of November, 1887, the plaintiff having consented that the two-questions embodied in the order of that date should be submitted, to the consideration of the jury, and those questions having beens passed upon adversely by the jury, and the verdict having been; adopted by the court upon the subsequent trial at the special term, it is too late for the plaintiff to claim that the defendants-were prevented from litigating the question as to the object and purpose for which the deed was delivered. The whole trial proceeded, notwithstanding the .allegation in the-complaint that there-had been a previous adjudication in the superior court that the-property in question had been conveyed to William M. House as. security, upon the theory that the question was still open, and the trial before the jury having been had, and the case having-been submitted to the justice at special term upon all the evidence we think that the plaintiff is estopped from taking the position that the defendants could not litigate that question in this-action. The learned justice distinctly found that the defendant. Juliet R Lockwood was on the 7th of October, 1876, the sole- and only owner of the-land mentioned in the complaint, the; legal title to which then stood in the name of the defendant John L. Lockwood, and that the plaintiff knew that she was the owner thereof; that upon the 7th day of October, 1876, the defendants-. executed the deed in question, and that on or about said date.the defendant John L. Lockwood delivered the same to the. plaintiff, and that said deed was executed by both defendants, for the purpose of transferring the legal title to the said premises,» through the plaintiff^ from the said John L. Lockwood to the defendant Juliet E. Lockwood, and that the same was. delivered, io the plaintiff upon an agreement between the defendants and, the plaintiff that the plaintiff would execute and deliver to the defendant Juliet E. Lockwood a deed conveying to her the legal title to the said land, and that Juliet never authorized her husband to deliver the deed mentioned in the complaint to the plaintiff to be held by him as security for any debt whatever. These findings being based upon conflicting and contradictory evidence should not be in any way disturbed, unless clearly against the weight of evidence, and an examination of the record compels us to say that they are not against such weight of evidence Besides the learned justice was not asked in the findings-, of fact and conclusions of law submitted by the plaintiff to find, that the judgment of the superior court had determined the-question as to the object for which the deed was delivered, nor-that it was res judicata.

If we are right in the conclusion that by consenting to the submission of the two questions of fact to the jury, before adverted, to, and of the whole case, after their answer to the justice at special term, upon all the evidence the plaintiff is estopped from asserting that the matters set up a defense in this action are res judicata as between the parties, it is unnecessary for us to. make any observations upon the action in the superior court It may, however, be observed that the relief asked for in that action was to recover possession of a deed alleged to have been executed in pursuance of the agreement between the parties by House and his wife to Juliet E Lockwood conveying the premises in question.

The^ court of appeals, in affirming the judgment below, said: “It is impossible to turn such an action into one to compel a con-, veyance, or for the specific performance of an agreement to conyey.” And it will be found, upon examining the record, that the judgment that was entered was a judgment dismissing the complaint, and amounted to an adjudication against Mrs. Lockwood that she was not entitled to the recovery of the possession of the deed, or to an injunction restraining the defendant from disposing: of the same.

The exceptions which were taken to the admission of the testimony of Mr. Fay, who was claimed to have been acting as attorney for the plaintiff, at the time of the conversation referred to-by him, were not well founded in our opinion, for the reason that the plaintiff himself had referred to such conversations, and assumed to give their purport and efféct.

In Marx v. The Manhattan Railway Co., 56 Hun, 575; 31 St. Rep., 914, where a patient himself testified as what took place between him and his physician, it was held that the right to insist that the physician or attorney cannot be examined as to such,' conversation was waived. See also McKinney v. Grand St., etc. Railroad Company, 104 N. Y., 352; 4 St. Rep., 349. The rule ■as to attorneys is the same as to physicians. In re Coleman, 111 N. Y., 220; 19 St. Rep., 501.

Even if the letters addressed by the firm of S. A. House & -Sons to Mr. Fay were not admissible in evidence, in view of the evidence given by Mr. House in regard to his transactions and ■communications with Mr. Fay, we are of the opinion that the error, if any was committed, was not material, and is no ground .for interfering with the judgment pronounced at the special term.

The evidence as to the previous transactions between the parities, in reference to the transferring and re-transferring of lands, we think was properly received as showing the course of business between the parties, and as tending to throw light upon the exact position which the parties bore to each other. Finally we are of the opinion that as the whole transaction was intended to enable ■John L. Lockwood to go through bankruptcy, and avoid and escape his other creditors, to which transaction the plaintiff by his own admission lent himself, a court of equity will not aid him in enforcing the illegal agreement entered into between him and 'Lockwood, nor any security which he has obtained in pursuance thereof.

The judgment appealed from should, therefore, be affirmed, with costs.

O’Brien, J.

If the plaintiff could maintain the action, then I -think it would be error to allow evidence of prior transactions ■of a similar nature between the parties. The action however is •one in equity, and one of the principles of a court of equity requires a suitor to come therein “ with clean hands.” It is here •sought to enforce a mortgage lien which had its inception in violation of law and it is shown that shortly after receiving the alleged security the plaintiff not only instituted' proceedings in bankruptcy against the husband by filing a petition without disclosing his security, but verified a proof of loss in which he stated that he had received no security, and thereafter voted as an unsecured creditor for an assignee, which a secured creditor could not lawfully do. I do not think that a court of equity should mid plaintiff, and as the court below dismissed his complaint I do not think the judgment should be disturbed. I, therefore, concur in the result reached by Mr. Justice Lawrence.

Van Brunt, P. J.

(dissenting.)—It seems to me that fatal -error was committed in allowing proof of other transactions between these parties of a nature claimed to be similar to the one -at bar. A plea of usury cannot be sustained by proof that the plaintiff has been accustomed to take usury. Neither can the claim of the defendants in this action be sustained by proof that they have had previously like transactions with the'plaintiff." I, therefore, dissent.


author: Van Brunt, P. J.—It

text:
    Charles C. Fritz, Resp’t, v. Emil W. Fritz et al., Impl’d, App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Partition—Equitable conversion.
    Where a testator directs his executors to sell his real estate and distribute the proceeds among persons named, such real estate is deemed converted into personalty and partition cannot he had, and the result of such direction is not changed by'the fact that the executors were given some-discretion as to the time of sale.
    Appeal from order sustaining demurrer to answer.
    Action of partition.

      W. H. Hamilton, for app’lts; Mitchel Levy, for resp’t
   Van Brunt, P. J.—It

is the well established rule that where-a testator directs his executors to sell his real estate and distribute the proceeds among persons named in his will such real estate i& deemed to be converted into personalty and partition cannot be had. Underwood v. Curtis, 127 N. Y., 523; 40 St. Rep., 255; Robert v. Corning, 89 N. Y., 225-229; Morse v. Morse, 85 id., 53-59; Power v. Cassidy, 79 id., 602; Everitt v. Everitt, 29 id, 39.

This was the direction in the case at bar, and the fact that the executors were given some discretion as to the time of sale in noway changes the result of the direction to sell."

In the case of Underwood v. Curtis, supra, the executors were directed to convert the real estate into money at such time as they might think proper within a period of ten years; held, that the real estate was converted into personalty and partition could not be had.

In Robert v. Corning, supra, the testator required his executors: to sell all his real estate, but authorized them in their discretion to delay a sale for a period of three years; held, that this was an absolute conversion of the real estate into personalty as of the-time of the testator’s death.

The case of Duffy v. Duffy, 50 Hun, 266; 19 St. Rep., 228, in no wise conflicts with this view. In that case there was no devise of the real estate in question or of the proceeds thereof. The-will contained a mere naked power of sale, and all that was held was that the real estate descended to the heirs-at-law, and unless power of sale was exercised its existence was no bar to partition.

The order and judgment should be reversed and the demurrer overruled, with leave to the plaintiff, upon payment of the costs and disbursements, of this appeal and of the demurrer in the court below, to withdraw his demurrer.

O’Brien and Lawrence, JJ., concur.