text:
    Catherine A. Hennessy, App'lt, v. Archibald R. Murdock, Resp't.

      (Court of Appeals,

      Filed February 28, 1893.)

      1. Easements—Lane—Abandonment.
    S. in 1835 owned the entire square, and divided it into building lots and filed a map on which there was a public lane, one rod in width, running through the block. S. first conveyed defendant’s lot with right of way of the lane, and thereafter plaintiff’s lot bounded by said lane. Held, that plaintiff’s deed operated as a conveyance to her of half the lane adjacent to her lot, with the right of passage in common with defendant in the whole lane, and defendant had no right to enter upon it except for passage, and his erection of a fence tnereon was a trespass for which the plaintiff was entitled to recover, unless plaintiff’s title had been extinguished by an. adverse holding, and the nonsuit of plaintiff on the ground that she had. failed to prove title to the locus in quo was error.
    2. Same—Abandonment.
    There is no inflexible rule of law which requires the owner of an easement, such as a lane or alley, to walk or drive over the passageway in order to save his title from extinguishment.
    Appeal from judgment of the supreme court, general term, fifth department, denying motion for new trial on exceptions-taken at circuit.

      John D. Teller, for app’lt;

      L. A. Pierce, for resp’t.

       Reversing 43 St. Rep., 748.

   Maynard, J.

We think the plaintiff and defendant each has title to the fee of the land to the center of the lane in controversy, subject to an easement or common right of passage in the whole lane. Both titles have their source in James T. Smith, who in 1885, owned the entire square, bounded on four sides by public streets, which was then unimproved. He employed one Clark, a surveyor, to subdivide the plot into lots, numbered from one to twenty-nine inclusive, and to make a map of the plot, as thus subdivided, which, he filed in the county clerk’s office. Upon this map there was a public lane or alley laid out, one rod in width, extending from Washington to Jefferson street through nearly the centre of the plot, and upon which all the lots abutted.

Smith first conveyed the defendant’s lot No. fifteen, describing it as surveyed and marked on the map, making the southern boundary a line running from Washington street westerly one hundred and thirty and two-thirds feet on an alley, and concluding with the following paragraph: “Together with the right of way of the alley aforesaid, which is forever to be kept open for the use and benefit of the lots to which it is adjacent; said alley being one rod in width and extending from Washington to Jefferson streets, as laid down on the map before mentioned." The next year Smith conveyed No. sixteen, part of which is now owned by the plaintiff, in which reference is made to the lot as numbered and marked upon the map on file in the county clerk’s office, and the northerly line is described as running from Washington street, “ thence two hundred and three feet and one-third, of a foot along an alley, etc.” In ajl the intermediate conveyances of both parties reference is made to this map in describing and locating the premises conveyed. In the defendant’s deeds the lane or alley is always mentioned; in one in the exact words of the first conveyance by Smith; and in others as bounded on the south side by a one rod lane or alley, according to the map on file, or by a public lane.

Both parties being in privity of title with Smith are estopped by the recitals and descriptions in the conveyances from him, so far as they relate to the estate conveyed, and under the repeated decisions of this court it must be held that the plaintiff’s deeds operate as a conveyance to her of the fee of the southerly half of the lane adjacent to her lot, with the right of passage in common with the defendant in the whole lane. Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. Same, 36 id., 120; In re Ladue, 118 id., 220; 28 St. Rep., 821; Haberman v. Baker, 128 N. Y., 259; 40 St. Rep., 104; City of Buffalo v. Pratt, 131 N. Y., 298; 43 St. Rep., 278. The correctness of this conclusion is not disputed, except upon a single ground The title to the whole of lot sixteen vested in one William. Hosmer in 1865. The lot was then vacant, and in 1881 he conveyed the part now owned by plaintiff to Maria L. Irish, describing it as a part of lot Ho. sixteen on a map made by James T. Smith, and filed in the clerk’s office of Cayuga county, April 24, 1835, with a specific boundary, beginning at the northeast corner of Ho. sixteen, on the west line of Washington street, and running from thence westerly along the north line of the lot two chains. The north line is the line along the lane, and it is insisted that this description did not include the fee of one-half the lane, but that the title thereto remained in Hosmer, and that as the plaintiff must rely upon the strength of her own title, she must fail in this action. But we cannot distinguish this case from the Bissell case and other kindred authorities upon this point. It was there held that as between grantor and grantee the conveyance of a lot bounded upon a street in a city carries the land to the centre of the street, and that there is no distinction in this respect between the streets of a city and country highways, and that the rule applies although the conveyance contains no reference to the street by name, but the lot is described by the number according to an allotment and survey made by the original proprietor, upon whose map this lot is represented as abutting upon a street, and the depth of the lot is stated by figures which would not include any part of the street. This construction has so long prevailed that it has become a rule of property, and it is founded upon the presumed intent of the parties to the conveyance. It is not reasonable to infer that the grantor intended to reserve the title to the fee of the narrow strip lying between the physical boundaries of the lot conveyed and the centre of the street, or that the grantee understood that any such reservation had been made. The use of the fee of the bed of the street is so inseparably connected with the ordinary use of the adjacent lot that a severance of the two will not be deemed to have been effected unless the presumption that the grantor intended to pass title to the centre of the street is rebutted by other parts of the deed and by the condition and relation of the parties to the lands conveyed and other lands in the vicinity. Mott v. Mott, 68 N. Y., 246.

There is nothing inconsistent in the Hosmer deed with this presumption, but its provisions are in harmony with and support it There is an express reference to the Clark map for the purpose of ascertaining the boundaries of lot sixteen. An examination of that map discloses that the boundaries of the lot carry it to the centre of the lane, so far as it effects a conveyance of the fee, but that the title to a strip eight feet in width on the northerly side of the lot is burdened with an easement for the benefit of the other property holders abutting on the lane. The right to the exclusive possession of the remainder of the lot is conveyed, and to the possession of the strip subject to the easement. The specific description which makes the point of beginning, the northeast corner of the lot as shown upon the map, is the point where the southerly boundary of the lane intersects Washington street, and the line which- is described as running westerly along the north line of the lot, as it appears upon the map, is equivalent to a location of the line along the lane, and is quite as effective to include the fee of one-half of the lane as if it had in terms so stated. The reservation of the fee of the south half of the lane by Hosmer was not necessary for the purposes of access to the rear of lot sixteen, which was retained by him. The portion of the lot not conveyed by him also abutted on the lane, and he had a common right of passage over it with the other abutting owners, which would afford all the means of access necessary for the full enjoyment of the premises retained by him. The title to the lands embraced in the boundaries of the lane between lots fifteen apd sixteen is not affected by the acts of the lot. owners abutting on the lane to the westward in fencing in the lane so as to include one-half thereof within each adjoining lot. This is evidence that the lot owners understood that by virtue of their respective conveyances from Smith each acquired the title to the fee to the centre of the lane, but it cannot operate to divest Hosmer, or his grantee, of his title to the south half of the lane adjacent to lot sixteen. The intention to leave the lane as an existing passageway between these two lots might be inferred from the omission to fence it in so as to include one-half thereof in each lot, as the other lot owners had done. It was at least as consistent with such an intention as with the intention to close it and leave a narrow strip eight feet on the northerly side of plaintiff’s lot, still the property of Hosmer. That there was an existing lane between these two lots when Hosmer conveyed to Mrs. Irish, April 9,1881, is further evidenced by the deed under which defendant claims title, executed six months later, in which his lot is described as bounded “ on the south by a public lane.”

The plaintiff, therefore, established a legal title to the fee of the south half of the lane. The defendant had no right to enter upon it except for the purpose of passage, and his erection of a fence thereon was a trespass for which the plaintiff was entitled to recover in this action, unless the plaintiff’s title had been extinguished by an adverse holding, which is interposed as a defense. But this issue was not tried, as the plaintiff was nonsuited, when she rested her case, upon the ground that she had failed to prove any title to the locus in quo, or any constructive, or actual, possession or occupancy thereof or right thereto, at the time of the alleged trespass. Sufficient had been shown to cast upon the defendant the burden of a defense, and the granting of the nonsuit was error. The plaintiff also sought to recover because the defendant had unlawfully interfered with her use of the north half of the lane as a passageway, and she was nonsuited upon this branch of her case, upon the ground that if any easement at any time existed in the owner of lot sixteen, in or to the lane, it appeared from the evidence of her witnesses that such easement was abandoned long prior to the conveyance to Mrs. Irish, and being once abandoned, was extinguished forever.

From the evidence given by plaintiff’s witnesses, we do not think it can be correctly said that there' was, as matter of law, an abandonment by the owner of lot sixteen of his easement in, or right to use the lane as a passageway. The question of abandonment is, ordinarily, one of intent, and in this case we do not think such intent so clearly and conclusively appeared that the plaintiff was not entitled to have its existence passed upon by the jury. The defendant mainly relies upon the failure of the plaintiff to show that Hosmer made use of the lane during the sixteen years that he owned the entire lot, or from 1865 to 1881. But the plaintiff was not required to show user by her grantor. Her right to the easement was obtained by grant, and if the defendant relied upon an abandonment by her grantors to defeat the operation of her conveyance, it was matter that should have been pleaded and proven as a defense. But three witnesses were examined on the part of the plaintiff. Only one of them was acquainted with the premises during the time they were owned by Hosmer.

His failure, upon cross-examination, to recall any use which Hosmer made of the lane, can hardly be deemed sufficient in law to establish an abandonment. Hosmer did not even live on the lot, and it was practically vacant. It may well be that he had no occasion to use it. It is shown by one witness that while Hosmer owned it there was a barway with bars in the fence bordering on the lane, so that he might use it whenever it was convenient or desirable. We know of no inflexible rule of law which requires the owner of an easement of this kind to walk or drive over the passageway at stated intervals, in order to save his title from extinguishment. There was evidence that at one time a double gate had been maintained at the Washington street end of the lane, and that it had been removed in 1882. How long it had existed does not appear; but if for a sufficient time to establish a prescriptive right to its maintenance, it would not, of itself, work an ex-tinguishment of the easement, but only abridge its use to the extent of its interference therewith.

We have examined the authorities to which the respondent’s counsel refers, but they do not sustain the holding of the court below, but rather the reverse. They are all to the effect that where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such, which proof is wanting in this case as it is presented upon the record before us. Crain v. Fox, 16 Barb., 184; Corning v. Gould, 16 Wend., 545; Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611. The recent case of Woodruff v. Paddock, 130 N. Y., 618; 42 St. Rep., 650, merely holds, upon this point, that an easement may be lost by an adverse possession of twenty years; a proposition indisputably sound, and of which the defendant may have the benefit, if he can establish his defense of that character. The defendant did not purchase this lot relying upon an apparent abandonment of the easement by the owner of lot sixteen.

His deed recognizes the existence of the lane, and describes his lot as bounded upon it, and his right of property in the lane' is burdened with whatever easement may be lawfully imposed upon it.

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

All concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    Charles A. Burt, App'lt, v. The Oneida Community, Limited, et al., Resp'ts.

      (Court of Appeals,

      Filed February 28, 1893.)

    ’Oneida Community—Liability on members.
    Plaintiff’s father was one of the founders of the Oneida Community, and plaintiff upon coming of age formally assented to its article of covenant, which involved the absolute and complete surrender of the separate and individual rights of property of the persons entering it. About fifteen years thereafter dissensions arising in the community, plaintiff decided to enter the employment of the B. Preserving Company, a rival in the manufacture and sale of canned goods, and after making such engagement, notified the council of defendant, which disapproved of his course, and informed him that it was unauthorized, and that by its adoption he had placed himself outside the community, but finally consented that he might make a trial trip. On his return therefrom lie notified defendant that he was to remove to Chicago, but did not consider that he withdrew from the community, that as there was a doubt whether he was a member, he should keep his late earnings, but if he returned should bring them with him. Whereupon the council adopted a resolution that he had severed his connection with them and transmitted a copy to him, but this he denied and claimed that he would enforce his rights, although he retained $1,400 earned by him and appropriated it to his own use. Held, that plaintiff had renounced his obligations as a member of the community and severed his conventional relations with it, and was barred by the election which he made after the trial trip.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment dismissing complaint.

      George H. Hart, for app’lt;

      William G. Tracy, for resp’ts.

       Affirming 41 St. Rep., 48.

   Maynard, J.

The plaintiff’s grievance consists of the denial by the defendants of certain rights, which, he claims, he was entitled to as a member of the Oneida Community, an unincorporated association, first formed at Oneida in this state in the year 1848. His father was one of its founders, and the plaintiff, who was then four years of age, became provisionally a member of the community during his minority. Upon attaining his majority he formally assented to its article of covenant, and remained in its communion until the year 1880, when the controversy arose between him and his associates which culminated in the commencement of this action January 12, 1884. It is not important to consider here the moral and religious teachings of the community, which were manifestly potent influences during the formative period of its existence. What principally concerns us now was its status as a business compact, and we must stop when we have construed the contract relation of the parties and determined the rights acquired by virtue of a membership therein.

In this aspect, the main purpose of its promoters was evidently the propagandisrn of certain communistic views as to the acquisition and enjoyment of property, and the endeavor to put into practical operation an economic and industrial scheme which should embody and illustrate the doctrines which they held and inculcated. Necessarily, the basic ¡imposition of such a community was the absolute and complete surrender of the separate and individual rights of property of the .persons entering it; the abandonment of all purely selfish pursuits, and the investiture "of the title to their property and the fruits of their industry in the common body, from which it could not afterwards be severed or withdrawn except by unanimous consent. It was fashioned according to the pentecostal ideal, that all who believed should be together and have all things common. It was intended to be, in fact, as they frequently styled themselves, but a single family upon a large scale with only one purse, where self was to be abjured and the general good alone considered. These objects and purposes were outlined in a certain article of agreement or covenant which the adult members, including the plaintiff, signed, and upon the proper construction of which the rights of the plaintiff must depend. While only general and comprehensive terms were employed, we think it is not difficult to discover the true intent and meaning of its provisions. The property of each subscriber immediately became an inseparable part of the community’s cap: ital, and, while no one was compelled to toil, yet labor was enjoined as a religious duty, and the earnings of all were mingled in the common treasury. Every member was at liberty to withdraw at any time upon his own motion, but he could not take with him or demand as a right any share of the joint property; all must be left intact for the use and enjoyment of those who remained loyal to the purposes of the organization. An account was kept of the property contributed by a member upon his admission, and if he withdrew it was the practice to refund it or its equivalent in value without interest or increase. This was not regarded in the_ light of an obligation, but as a matter of good will and liberality, and the time and manner of refunding rested in the discretion of the community, through the voice of its members, who might discontinue the custom at any time or refuse to refund in any case. No account was to be rendered of the services of members, but the education, subsistence, clothing and other necessaries of life furnished them and their children were to be received as just equivalents for all their labor and services, and' no claim for wages was to be made by any withdrawing member. There was a mutual stipulation that no member, or his heirs, executors, administrators or assigns, would ever bring any action, either at law or in equity, or other process or proceeding, for wages or other compensation for services, nor for the recovery of any property contributed at any time, or make any claim or demand therefor, of any kind or nature whatsoever.

These Were the main features of the organization to which the plaintiff voluntarily became a party. It is not shown or found that he was induced to enroll himself among its members by any fraud or duress; and, viewing it solely as a business undertaking, it was not prohibited by any statute or in contravention of any law regulating the possession, ownership or tenure of property. It imposed no unlawful restraint upon the alienation of property, for the title to its real estate could be conveyed at any time by the united action of its members if they so willed it. It was a joint holding of property by the adult members of the community with this qualification, that upon the death or withdrawal of a member no share or interest therein passed to him or his personal representatives, but they who survived or remained continued to hold jointly the entire property in solidum. Goesele v. Bimeler, 14 How., U. S., 589; S. C., 5 McLean, 223; Gaseley v. Separatists Soc., 13 Ohio St., 144; Waite v. Merrill, 4 Me., 102; Schreiber v. Rapp, 5 Watts, 351; Gass v. Wilhite, 2 Dana, Ky., 170.

If any hardship resulted from this absorption of individual rights in the common mass, it afforded no sufficient grounds for legal complaint, for it was so explicitly named in the bond into which all had freely entered, and without which the distinctive characteristics of the association would be wanting.

The title to the real property was held in the name of certain individual members, mainly from reasons of convenience. Whether a trust was thereby created, and if so, what were its limitations and objects, we need not inquire. The property so held was concededly the property of the community. It had originally belonged to the persons who owned it at the time of their admission, or it had been purchased with the common funds. The persons who were thus seized of the legal title were also members. Whatever they owned or held vested by virtue of their membership in the community, who had at least the equitable title and the ultimate right of control. The situation was not different from a case where the legal title to the real property of a partnership is held by one partner. It remains, nevertheless, firm property, and must be so applied and disposed of.

We cannot find that there was any express requirement of residence at Oneida as an essential condition of continued membership. Residence elsewhere was at least permissible, but it was the primary obligation of every member, wherever he might be or in whatever employment engaged, to account to the association for his earnings and the profits of his business.

The plaintiff contributed nothing in money or other property to the capital of the community. He was educated at its expense at the scientific school of Yale College, and from 1865, when he became of age, until 1879, he seems to have devoted himself, except when under tuition, faithfully and diligently to the work and cause of the community, and to have fully discharged his obligations and duties as one of its members. During the latter part of this period dissensions arose in the community, apparently on account of some of its anomalous social practices. Many advocated reforms, which were stoutly resisted by others, and a prolonged and acrimonious discussion followed in which the plaintiff was an active and earnest participant. Undoubtedly his mode of life there became burdensome and distasteful, and in the fore part of the year 1880 he decided to leave the community and enter the employment of the Erie Preserving Company, a rival in the manufacture and sale of canned goods, as a traveling salesman in the northwest, with headquarters at Chicago. He entered into a contract to serve the company in that capacity for six months, with the option to continue for six months longer. He had previously been a traveling salesman for the community, and in the contract with the Erie company it was stipulated that he might first offer the goods of the former for sale; but it appears that the customers of the Erie company were not customers of the community, and not likely to buy its goods, if offered. This agreement to enter the service of another company was made, in the first instance, without the knowledge or assent of the community. It was, we think, a breach of the plaintiff’s obligations to the association of which he was a member, and was also an indication of a contemplated severance of his relations with it. When we consider the peculiar character of the community organization and its underlying principles, it must be conceded that no member had reserved the right to enter upon an independent and, to some extent, a competing business enterprise, and at the same time insist upon retaining his privileges as a member and an equal voice in the management of its affairs. Neither the originators of this unique scheme of social development, or those who from time to time had entered into covenant relation with them, had ever admitted the existence of. such an element of disintegration. Such conduct on the part of a member was allowable upon obtaining the consent of the community family, and not otherwise. After this contract had been made, the plaintiff informed the administrative council that he had entered into it and proposed to carry it out In making this announcement he stated, as a reason for his action, that he wished to make a comfortable place for himself and friends outside of the community. The council unanimously disapproved of his course, and informed him that it was unauthorized, and that by its adoption he had placed himself outside the community ; but they finally consented that he might make a trial trip, and if upon its termination the community disapproved of his continuance in the service of another company, he should abandon his contract, to which he assented. This occurred on April 21, 1880.

We think it is clear that the council had no authority to make this arrangement; that the consent required could only be lawfully given by the community itself in a family meeting, as it was called, at which all the adult members had the privilege of attending and of voting upon all propositions submitted to it. But the inference can be justly drawn that this action of the council was made known to the community and acquiesced in by its members, and it must, therefore, be held that the plaintiff was authorized to make a trial trip in the interest of the Erie company under his contract with it, and to that extent the plaintiff’s previous unauthorized action was approved and ratified by them. The plaintiff returned from the trial trip in the month of July, 1880, and wrote a letter to the administrative council, dated the twenty-sixth, in which he stated, in substance, that on the next Wednesday he proposed to change his place of residence to Chicago; that he did not look upon the change as a complete withdrawal from the community; but expected the privilege of returning at any time, when the circumstances should be such that he could enjoy a peaceful, happy home there; that he considered the move he was about to make in the light of self-protection ; that his health and happiness demanded that he should not be continually surrounded by the circumstances he was in there ; that he was never ■' cut out for a prize fighter,” and did not find enjoyment in that school; that he did not expect to make any settlement on leaving ; that he proposed to take with him the money he had earned in the service of another company, on the ground that there was considerable doubt in the minds of many whether he was then, or had been for two months past, a member of the community on account of his outside connections; that several persons in the council had expressed this opinion, and it was held by many others ; that if this view was true the community certainly was not entitled to receive the earnings of an alien ; that as long as there was any doubt upon the subject he should take the benefit of the doubt; that feeling as he did, if the community succeeded in adjusting the condition of things there so that he could return, he should do so, and when lie did return he should bring all his earnings. A meeting of the administrative counsel was held the same day at which this letter was read and a committee was appointed to confer with the plaintiff, who reported at another meeting, held July 30, that the plaintiff had fully determined to leave the community and enter into a permanent engagement with another party on his own account. A preamble was then adopted reciting that the plaintiff had, of his own accord and without the consent of the community, entered the service of another company for his own individual interest and profit, followed by a resolution “ that he had, by this act, severed his connection with the community and can no longer be recognized as one of its members.” This resolution was reported to the business board August 1 and adopted by that board. It was then referred to the family meeting held Sunday, August 8, and the action of the administrative council and business board was unanimously confirmed.

The secretary of the council, by its direction, transmitted a copy of the resolution to plaintiff, who replied at some length, under date of September 4, in which he reiterated the statement that he still considered himself entitled to all the rights and privileges of membership in the community; that they all knew under what circumstances he left home; that he left stating distinctly that he did not consider it a separation of interests, but a temporary withdrawal until a satisfactory adjustment of affairs could be obtained, in which it would be safe for him to livé there, and he requested that the matter be laid before the proper body with the assurance that he should not relinquish, in the slightest manner, his rights as a member, and in case of division to his portion of the property ; that if he discovered the least hesitation to acknowledge his rights, he should at once take steps to put them to a practical test; that he was in receipt of a fair income then, and all of it would be expended if necessary in establishing his rights; and closed with the intimation that if the matter ever came into court, the bottom facts would be made known. Immediately after the letter of July 26th was written the plaintiff left the community, went to Chicago, opened an office there, as agent of the Erie Preserving Company, put out a sign to that effect and during the remainder of the year was in the service of that company, or working upon his own account, and he rendered no service for or on behalf of the community. His net earnings down to February, 1881, amounting to $1,400, were retained by him and appropriated to his own use. It is true, they were at first deposited with the treasurer, but not to the credit of the community, but to the plaintiff’s credit, and they were subsequently drawn out by him.

Accepting the plaintiff’s version of his conduct and declarations, we think it must be held that he renounced his obligations as a member of the community and severed his conventional relations with it. It cannot aid him that he attempted to reserve to himself the privilege of returning and resuming his membership. The constitution of the community did not admit of the exercise of such an option. He could not withdraw when, in his judgment, such a course would be profitable, and assert the right to come back and be received into the fellowship of the association when it suited his pleasure or convenience, or self-interest, to do it. The community had not made a unilateral bargain of that kind with him. He had not so far surrendered his freedom of action that he might not go out at any time without notice and without their assent; but in doing so he terminated his right to share in the enjoyment of the use and possession of the property of the concern. It is not correct to say that by his withdrawal from membership he forfeited his interest in the lands and chattels of the community. He forfeited nothing. The contingency or event upon which the existence of his estate in the property depended had happened. By the terms of the contract under which that estate was acquired, its duration was only co-existent with the duration of his membership. There is some conflict as to - the length of the plaintiff’s trial trip. He insists that it was intended to cover the six months’ service contracted to be rendered the Erie Company, which would not have expired until Hovember 20th, and that, meanwhile, the community could take no action in the premises. The members of. the administrative council state that it was their understanding that the trial trip would end in two months, and that it terminated upon plaintiff’s return to the community about July 20th. Had the plaintiff rested upon the consent given: by the council to make the trial trip, this issue of fact would have become important. But the license given him was terminated by his own act of withdrawal, evidenced by the letter of July 26th. He chose then to take the decisive step, which placed him upon the footing of a stranger to the community; and it is not material to inquire whether he might not have continued to avail himself of the permission of the council to serve another company for a longer period. He is bound by the election which he then made.

The plaintiff contends that by a custom, which had acquired the force of an obligation, a withdrawing member was accorded the privilege of returning and resuming his relations with the community, and an agreement made with one Inslee was introduced in evidence as an illustration of the practice in this respect. But this paper does not assume that the outgoing member is entitled to a re-instatement because of his former membership. It expressly negatives any such inference. It recites that Inslee had withdrawn because of differences of opinion, that in consideration of $100 paid he agrees to receive the same in full payment and settlement of all claims, demands, debts and damages; but declares that the settlement is made and accepted on the ground of liberality and good will, and that they will receive the withdrawing member again in case he shall become reconciled and prepared to live in unity and subordination in the community. This instrument is not a recognition, but a disclaimer of any right on the part of the retiring member to payment out of the common fund, and a reiteration of the stipulation in the article of covenant, that whatever may be allowed to such a member would be a matter of favor, and not enforceable as a vested right But the plaintiff is estopped from making any claim to the customary settlement. In his letter of withdrawal, July 26th, he plainly states that he does not expect to make any settlement on leaving. He declines to recognize the established practice with reference to an outgoing member, or to submit himself to its application. His subsequent conduct is in accord with his declaration in the letter. He never requested or demanded a settlement.

The community is, therefore, not in default, and has not refused him any privilege granted to other members under similar circumstances. In fact, the plaintiff has staked his case entirely upon the plea that he was illegally and unjustly expelled from membership. If that were established, he would, confessedly, have a good cause of action against the wrongdoers. But there is no proof in the record of an expulsion. The only action of the community, or of its representatives, upon the subject of plaintiff’s membership, is contained in the resolution first adopted by the administrative council July 30th, which recites the action of the plaintiff, and concludes with a resolution that he has, by such action, severed his connection with the community, and can no longer be recognized as one of its members. The community took no affirmative proceedings. This resolution was nothing more than a declaration of the interpretation which they placed upon the plaintiff’s conduct, and, as we have seen, it was an entirely correct construction of the legal effect of his own acts. Its adoption was not necessary to consummate the withdrawal of the plaintiff. Its chief importance is in its relation to the conditions which he attempted to attach to his withdrawal. It was an emphatic announcement by the community that they did not acquiesce in his reservation of a right to retract his withdrawal at pleasure, and resume his membership; an acquiescence which might have been presumed had the community remained silent. It is true that the referee in his findings has characterized this resolution as one of expulsion; but that does not change its legal aspect. The facts in regard to it are undisputed. He has also found that the plaintiff absented himself from the community, and omitted to perform, or attempt to perform, his contract with it, and entered into a contract with outside parties to serve them instead of it, and performed his contract with them; and that the same was inconsistent with his obligations to the community, according to the terms of his contract with it.

This was, in legal effect, a finding that he had, of his own volition, withdrawn from the fold of the community and severed his contractual relations with it, and assumed an attitude towards it which debarred him, both at law and in equity, from further recognition as one of its members.

It appears from the record that on October 16, 1880, a preliminary certificate for the incorporation of the defendant, the Oneida Community, limited, under the business company’s act of 1875, chapter 611, was executed by nine members of the community, including the property holders who held the deeds of its real property, and filed in the secretary of state’s office. The objects of the proposed corporation were to carry on a general manufacturing and agricultural business, including all the different kinds of business in which the community was then engaged. The capital stock was $600,000, which fairly represented the net value of its property, and the location of its principal business office was at the home of the community in Madison county. The secretary of state issued to the proposed incorporators the license required by law. Books of subscription to its stock were opened, and such proceedings had that the entire capital was subscribed by the adult members of the community, about 200 in number, in varying amounts, and the final certificate of incorporation filed November 20, 1880. On or before January 1, 1881, all the property of the former community belonging to it and held by its property holders was transferred to the corporation, and since that time has been owned and used by the corporation, which has carried on the different kinds of business theretofore undertaken by the unincorporated association, which has not, since January i, 1881, been engaged in any business, and, so far as appears from the record, has not undertaken to discharge any of the obligations in its covenant with its members.

The plaintiff insists that the association to which he belonged has thus committed an act of self destruction, and has become dissolved, and he is, therefore, entitled to have its assets equitably administered and distributed, and to receive his proportionate share thereof. It may be that the old community has, by the act of its members, been dissolved. The referee held otherwise ; the general term refrained from expressing an opinion upon the point, and we do not consider it a material question upon this appeal. If it were sound as a proposition of law it would not help plaintiff. He had ceased to be a member of the community before this action was taken, and his property rights were not prejudiced by it.

We think the general term placed the correct construction upon the disposition made by the referee of the motion for a non-suit. What was subsequently done was equivalent to a denial of the motion, or, in any view, to a waiver of a decision upon it The parties proceeded to a trial of the merits of the issues framed by the pleadings. Findings of fact and of law were proposed by both parties and passed upon by the referee. There was no specific request made by either party for a ruling upon the motion. As the plaintiff resisted the motion, he cannot ask to be placedrin a better position than he would have been if it had been formally denied. Van Derlip v. Keyser, 68 N. Y., 444.

We have carefully considered the exceptions taken by the plaintiff in the course of the trial, and fail to discover any prejudicial error in the rulings to which they relate. We think that, upon his own proofs, he failed to establish any ground for the equitable interference of the court.

The judgment and order must be affirmed, with costs.

All concur.


author: Andrews, Oh. J.

text:
    The People, Resp'ts, v. John Fitzthum, App'lt.

      (Court of Appeals,

      Filed February 28, 1893.)

    Homicide—Appeal.
    Defendant, who occupied a set of rooms next to deceased, went into the room of the latter, and as deceased's father testified, when ordered out hy him, stabbed him with a knife. The testimony as to what occurred was very conflicting, defendant claiming that deceased and his father came into his room and attacked him with an iron and a club and that he seized a knife but did not know what he did with it. A boarder, one M., confirmed defendant’s story in part. Held, that there is no legal ground for disturbing the conclusion reached by the jury, as this court cannot reverse a verdict In a capital case unless it is of the opinion that the facts were not fairly considered or that they did not justify the verdict.
    •Appeal from a judgment of the superior court of Buffalo convicting defendant of murder in the first degree.

      William K Kisselberg, Jr., for appl’t;

      Daniel F. KeneJicJc, for resp’ts.
   Andrews, Oh. J.

The defendant Fitzthum was convicted at the criminal term of the superior court of the city of Buffalo^ held in May, 1892, of the crime of murder in the first degree. It is iindisputed that Fitzthum killed John Eoehrl, Jr., by stabbing him with a knife, on the evening of April 7, 1892. The defense was justifiable homicide, and it was also claimed that if the defendant was criminally liable, he was not guilty of murder in the first degree. Fitzthum was a butcher by trade, thirty-two years old, married, and, with his wife and three young children, occupied, at the .time of the homicide, apartments in a house on Sycamore street, Buffalo, consisting of a living room and bedroom. One Meyer boarded with him. Fitzthum had occupied these rooms for about ten days prior to the homicide. Back of the Fitzthum rooms were similar rooms occupied by the Roehrl family, consisting of John Roehrl, Sr., his wife, his son John (the deceased), •about twenty years of age, and two younger sons. The rooms of Fitzthum and Roehrl communicated with each other by a .door in the partition dividing them. The living room of the Roehrl family was about ten by thirteen feet. In that room and near the door opening into the Fitzthum room was a sink and a faucet, .and both families obtained water there. It seems that Mrs.Roehrl rented both sets of rooms from the owner of the premises, and afterwards sublet to Fitzthum the rooms occupied by him. Both families were Germans, and ignorant people of very low type. Fitzthum came to this country about five years before the homi■cide, leaving his family in Germany. He became acquainted with the Roehrls. Mrs. Roehrl, on several occasions, left her 'husband and lived in adultery with Fitzthum. This had occasioned quarrels between the husband and Fitzthum, and on one •occasion Fitzthum had been arrested, fined and imprisoned for an assault upon Roehrl. About a year prior to the homicide, Fitzthum’s wife came from Germany and joined her husband. Fitzthum took the rooms in Sycamore street upon the solicitation of Mrs. Roehrl, her husband consenting, and was to pay part of the rent which Mrs. Roehrl had undertaken to pay for the whole premises.

The question whether the admitted homicide was murder or a lesser grade of offense, or was justified, as claimed in behalf of the defendant, was presented to the jury upon conflicting evidence, and the ascertainment of the circumstances attending the killing was embarrassed by the fact that the evidence of the prin■cipal witnesses was often confused, and was taken through interpreters, who had difficulty themselves in understanding the witnesses.

There were two witnesses present at the homicide sworn in behalf of the People, namely, John Roehrl, the father of the deceased, and Mrs. Roehrl, the mother. The defendant testified in his own behalf, and his wife, and the boarder Meyer, who were "in the Fitzthum rooms at the time of the homicide, were examined as witnesses for the defendant.

It appears that Roehrl the father, and the deceased, came home about six o’clock on the evening in question. Fitzthum and Meyer also returned from their work at about the same time. .Shortly after six o’clock one Tonczyk, who collected the rents of the house, came to collect the rent for the rooms leased by Mrs. Roehrl, and went into the part of the house occupied by her. Fitzthum, as he testifies, saw Tonczyk go into Mrs. Eoehrl’s apartments. He came out and entered the rooms of the defendant, and an altercation immediately arose between Tonczyk and the defendant, the defendant claiming that he did not rent the rooms of him, and he ordered Tonczyk out of the house, and seized a, hatchet and went towards him and then seized him by the throat. During the melee Mr. Eoehrl and his son John came through the door from their room into the rooms of Fitzthum, apparently to-assist Tonczyk, and, having released him, the three went into the Eoehrl rooms and closed the door.

The collector soon left. The evidence as to the subsequent occurrences is involved in great conflict. The story related by Eoehrl, the father of the deceased, is substantially this: he says, that he-was sitting near the lounge, and his wife near the stove, when Fitzthum opened the door between the rooms, and came into the Eoehrl rooms, and commenced complaining about the collector coming to him for the rent, and also commenced using vile epithets about Eoehrl’s wife; that the son John interposed, asserting that his mother was not such a person as Fitzthum represented and ordered him out of the room; that Fitzthum called him a “ lausbub,” and said “you son of a bitch, you could’t put me out; ” that, he then stepped back quickly into his room, seized a knife from the table, and came back again, and advanced to the deceased, who-was then standing near his mother, and raising his hand, in which he held the knife over his head, struck his son with it, who immediately fell dead with his head towards the door between the rooms, and about two feet therefrom. The mother corroborated her husband in some particulars, although she did not, as she testifies, seethe blow with the knife, her back being towards' the parties at the-moment. But she states that she saw her son fall, and Fitzthum in the door just as he was leaving the room.

The husband testified that the deceased did not attack Fitzthum ; that neither himself nor his son had any weapon or club at any time. The only evidence in the testimony of Eoehrl of any struggle between any of the parties on that occasion is contained in his recital of the circumstances on the cross-examination. The witness was asked to describe the occurrence from the timeFitzthum came into the room, and the record is as follows:

“A. The first thing was as he entered he walked into the room and asked, he says, ‘Did you rent this?’ He wanted to know, ‘Did you rent this or the other son-of-a-bitch?’

“Q. Tell him to go on? A. She said, ‘Yes; I have rented it, to you, but you must pay it to the man.’ He says, he won’t pay him any rent, nor the son-of-a-bitch either, and if he comes again-he will kill him. He says if that were done it would be no more-than they have claimed all along that he would get, that he would meet with that result He turned round and tried to pull him out of the door.

“Q. Who did? A. He says his wife; after she tried to put him out of the door he then turned around and walked out on his own accord.”

Eoehrl testified that after the stabbing Fitzthum laid the knife on the table again and said : “I give you enough, that it will be satisfactory.” On the floor of the Eoehrl room, near the door, the blood marked where young Eoehrl fell, and it is conceded “ that the body of young Eoehrl must have fallen at the place of the stain.” The post mortem disclosed that the knife entered the body one and one-half inches below and one inch to the inner side of the left nipple, and cut through between the fifth and sixth costal cartilages, penetrating both cavities of the heart and reaching its posterior wall. There were also two incised scalp wounds, one from above the right ear to the top of the head, and one running in the other direction. The knife with which the wounds were inflicted was a carving knife used in the defendant’s family, with a blade five inches long and about an inch wide. It was found, after the arrest of Fitzthum, on 'a chest in his bedroom, covered with clothing and having blood stains upon it. Fitzthum’s wife testified that after the affray she took it from the table and placed it were it was found.

The story of the occurrence told by Fitzthum is very different from that of Eoehrl. He testified in substance, that when he got home that night he heard his wife and Mrs. Eoehrl scolding each -other, each being in her own part of the house and the door closed. He testifies to the affray between himself and Tonczyk as has been related. He states that after the collector left he sat down by the table in his room and used the knife in cutting some meat for cooking; that he directed his wife to get a pitcher of water, but she said she was afraid to; that he then took the pitcher and went into the Eoehrl room and filled his pitcher, and some vile conversation took place, and that “ Johnny grabbed him under the lounge and said 1 You Dutch son of a bitch, I have got it for you for some time; ’ that he got back into his room and put the pitcher of water on the table and with the other hand tried to shut the door, but it was pushed open by Mr. Eoehrl and the deceased, who were armed, one with a club and the other with a piece of iron, and immediately they came into the room and attacked him, the son striking him with a club over the shoulder, and the other hitting him on the breast with the iron; that he reached for something and his hand touched the knife and he seized it, but that he don’t know what he done with it; that he don’t know whether he struck with it, or shoved it, or fell with it; ” that he finally threw the knife down and tried to shove the Eoehrls out of the room, and got hold of the door and shut it, pushing them into their room; that he then got a chair and put under the door knob, <1 and sat down at the table and there remained until he was arrested; 'that he heard no one fall in the Eoehrl room, and did not know that he had killed the deceased till after his arrest

His person was examined a few days after he was arrested and a bruise was found on his left shoulder and also on his wrist. Fitzthum’s wife corroborated her husband as to the Eoehrls coming into his room with weapons in their hands and as to the affray there, but she testified that she did not see her husband take the knife.

Meyer was in the Fitzthum room. He testified to the Eoehrls coming in and thought they had something in their hands, but. did not see what they had, and the fighting commenced; that he saw Fitzthum pick up the knife, but did not know whether he used it; that he did not see Fitzthum get a pitcher of water. He testified that Fitzthum, after he came back with the knife and laid it on the table, said : “ I think he give me a rest now; I give him a good one.”

There is a large mass of evidence by these and other witnesses-bearing upon the relations of the parties, and tending to impeach and impair the credibility of the witnesses on the one side or the other. It would not serve any useful purpose to refer to the evidence in great detail. The object of the reference made is to-show that a question was presented for the determination of the jury as to the character of the homicide, whether it was a murder accompanied by the element of deliberation and premeditation, or was a lesser degree of homicide, or whether, as was claimed, the homicide was justified by the right of self defense.

It is conceded that the defendant caused the death and used the knife taken by him from the table, and inflicted therewith, the fatal wound. It is also conceded that the deceased was in the Eoehrl room when he fell. It is very difficult to believe that a wound which would ordinarily produce instantaneous death could have been inflicted at the time the defendant leaves it to be inferred it was inflicted. This involves the necessity of believing that after the heart was cut through the deceased continued to resist the effort of Fitzthum to expel him from the Fitzthum room, and that he did not fall until he and his father had been shoved into their room and the door shut.

The jury had the witnesses before them. The relation of the transaction by Eoehrl is subject to much criticism. But it was for the jury to reconcile the discordant evidence and to accept or reject the testimony of the witnesses on either side, when contradictory, as the truth seemed to them to require. The violent character of the defendant appears from his own evidence. The statement which he made on the morning after the homicide, and which was reduced to writing, and signed by him, makes no-reference to any attack upon him by the Eoehrls, such as he testified to on the trial. The witness Meyer had been twice convicted of larceny, and the jury may well have hesitated to place much reliance upon his story.

Upon a careful and anxious examination of the evidence we are unable to say that there is legal ground for disturbing the conclusion reached by the jury, and we cannot reverse a verdict in a capital case on the facts unless we are of opinion that the facts were not- fairly considered, -or that they did not justify the verdict. Much stress is laid by counsel on the fact that the direction of the wound indicated that it could only have been inflicted by an ascending blow, where the hand in which the knife was held was below the point where it entered the body. It is said that Eoehrl speaks only of one blow given by the defendant from above downward. Eoehrl testified that he could not say whether more than one stroke was made with the knife or not. But concededly the deceased was killed by a stab given by Fitzthum. The scalp wounds would indicate more than one stroke of the knife. Whether their existence confirms the theory of the counsel for the defendant, that the wounds were given during a struggle and fight between the Eoehrls and Fitzthum, was for the consideration of the jury.

The court admitted evidence, under exceptions by the counsel for the defendant, that possibly the wound on the wrist of Fitzthum might have been caused by the handcuffs. The judge, on the request of the defendant’s counsel, charged that there was no evidence of any resistance or struggle at the time the defendant was handcuffed. Considering the exception in connection with the charge we think no error was committed inj urious to the defendant The court in its main charge, after having explained to the jury the different degrees of murder and manslaughter, remarked that “ if, as the defendant’s counsel claims, the defendant should be found guilty of manslaughter in the first degree, it would be under the second sub-division of the statute, because,” etc. At the conclusion of the charge the defendant’s counsel excepted to the statement that the defendant’s counsel “ claims that the defendant should be convicted of manslaughter in the first degree.” The court immediately said no such charge has been made or intended.” The jury will understand the court has made no such charge. It is very obvious that the court in the charge was referring simply to the contingency that the jury might not find in favor of the defense of justifiable homicide, and to the claim that in that event the case was not one of murder, but of manslaughter. The court in the charge referred to the claim of self-defense, as the “ one on which the defendant relies for an acquittal.” This exception furnishes no reason. for a new trial. The court charged that “if the jury are satisfied from the testimony of the People under the law as I have called your attention to it, that the defendant is guilty,” etc. There was no exception to this part of the charge, but it is now claimed that the jury were permitted to determine the guilt, not on the whole evidence, but on the evidence given on the part of the prosecution alone. This is a clear misconstruction. The judge was explicit in charging the jury that “if the People have not satisfied you from all the evidence in the case ’’ of the guilt of the defendant, they should acquit. The words in the clause excepted to, “testimony of the People,” had reference to the whole case made by the People, including the testimony on the part both of the prosecution and defense.

The error of the court in stating the testimony of Mrs. Eoehrl was immaterial, and evidently so regarded by counsel, who did not call attention to it on the trial.

The court was asked to charge in regard to the manner in which the jury should regard the testimony of Meyer and Fitzthum, in view of the proof that they had been convicted of offenses. The judge said the request was involved, and he did not understand it. The defendant’s counsel then proceeded to state his request to charge in somewhat different language, and the •court charged as requested. We perceive no error in the course taken by the court. The defendant’s counsel calls attention to an error of the court in quoting the testimony of Fitzthum, “ that I looked for something, and grabbed the knife, and helped myself with it.” The criticism seems to be that Fitzthum stated that he seized the knife involuntarily. The attention of the court was not called to any error in stating the testimony, and in the outset he reminded the jury that they were to correct any misapprehensions of the testimony by the court. The evidence as recited does not vary substantially from the testimony given.

There was no error in the refusal to charge that if the evidence of the Roehrls did not account for the scalp wounds, they were not accounted for except upon the theory of the defense, that they were received in a fight. The court replied, “ it could not charge the theories of counsel.” There was no specific evidence as to the infliction of the scalp wounds, and the evidence of neither party showed how or when they were inflicted.

We have laboriously gone through with the case on the facts and upon the exceptions, and we find no error of law or fact •which entitles the defendant to a reversal of the judgment.

The judgment should be affirmed.

All concur.


author: Dykman, J.

text:
    The Kings County Elevated Railway Company, Pl'ff, v. Eliza J. Cocks et al., Def'ts.

      (Supreme Court, Special Term, Kings County,

      Filed March 8, 1893.)

    1. Railroad—Elevated—Right of to lateral support.
    " A property owner, having given his consent to the construction of an elevated railroad in front of his property, cannot thereafter excavate so as to disturb the columns or their foundations.
    3. Same.
    Such a road has greater rights for the lateral support of its columns than an adjoining owner.
    Argument on a demurrer by defendants on the ground that plaintiff’s complaint did not state facts sufficient to constitute a cause of action. A temporary injunction restraining defendants from interfering by excavation with the foundations of the columns of the plaintiff’s elevated railroad had previously been granted.

      Albert B. Boardman, for pl’ff;

      Charles H. Otis, for def’ts.
   Dykman, J.

This is an issue of law raised by a demurrer to the plaintiff’s complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and the question presented is one of serious import to the plaintiff.

If the contention of the defendants is sustained, then the plaintiff holds its structure by a very attenuated right, for it will in that event be within the power of every property owner along its line to undermine the supporting columns with impunity and allow them to subside and ruin the fabric.

The complaint states that the plaintiff is a corporation organized under chapter 606 of the Laws of 1875, and that all the steps requisite for that purpose were taken prior to October 27, 1885.

That the route fixed by the commissioners appointed by the board of supervisors for the. plaintiff road ran through Fulton street in front of the property of the defendants Eliza J. Cocks and John J. Cocks, and prior to the construction of its road the plaintiff, for a valuable consideration, obtained the unqualified written consent of Eliza J. Cocks for herself and her son, John J. Cocks, for the construction and operation of its railroad, with a proviso, however, that such consent was not to affect the question of compensation for damages.

That all necessary consents were obtained to authorize the construction and operation of the elevated railway through Fulton street, and it was built and ready for use in April, 1888.

In May, 1892, the owners of the property made a contract with the other defendants for the erection of a large building upon the property which contemplates the excavation of a vault beyond the curb line of the street in front and about five feet and nine inches below the columns of the plaintiff’s road.

Two of the columns of tbe plaintiff’s road were placed near the curb line on the inside of the curb stone in front of the property of Eliza J. Cocks and her son, in relation to which the consent was given.

The terms of the consent are not given, neither does the complaint state whether the defendants Cocks have any interest in the street beyond that of an ordinary abutting owner.

The precise legal effect of the consent of these owners cannot, therefore, be now determined. For if these defendants owned the fee of the street where the columns stand, their consent might operate as a grant of an easement, but if their ownership extends only out to the line of the street, then their consent may operate by way of estoppel

But the consent must have some legal effect Either it created an easement in and imposed a servitude upon the land, or it must operate by way of estoppel against the owners.

The consent was to the construction and operation of the road, and it therefore authorized the plantation of the columns at appropriate places for the reception of the superstructure and every other incidental act necessary to carry into effect the intention of the parties, in accordance with the fundamental principle of universal applicability that wherever a general power to do a thing is given every particular power necessary for doing it is included.

The columns must have both lateral and perpendicular support, and as against the defendants the plaintiff is entitled to both because both are essential to the enjoyment of the right conferred by the consent and are, therefore, in contemplation of law included in it.

Moreover, it is necessary that both should be undisturbed and unlimited. It was to secure a permanent and continuous right that the plaintiff obtained the consent and paid therefor, and if now it has no greater rights than an adjoining owner to support, and is obliged to protect its columns whenever the defendants desire to excavate beneath their base, then, indeed, is the consent a delusion and its procurement a folly.

If now the defendants can excavate at pleasure as if no consent had been given and cause the subsidence of the elevated structure with impunity, then the procurement of the consent was an idle ceremony and the plaintiff paid its money for naught.

Such cannot be the case. Equity will permit no such result. The consent must have the full force of its signification and intention. Its design was to confer the right to construct and operate the railroad as it is now constructed and operated.

My conclusion is that the complaint states sufficient facts to constitute a cause of action, and the plaintiff is entitled to judgment upon the demurrer with leave to the defendants to answer in twenty days on payment of twenty dollars costs.


author: Van Brunt, P. J.

text:
    Charles P. Hemenway et al., Resp'ts, v. Morris F. Knudson et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Depositions—Intebbogatobies.
    Unless an interrogatory or cross-interrogatory is manifestly impertinent, and improper, it should be allowed on the preliminary settlement. The rights of the parties may he protected by allowing the interrogatories subject to objection on the trial.
    2. Same.
    A cross-interrogatory which cannot be pertinent to any of the issues, and is not asked for the purpose of elucidating any testimony to be used on the trial, should be excluded.
    Appeal from order allowing and disallowing and failing to-settle interrogatories.

      Geo. A. Black, for app’lts;

      Wm. M. Ivins {John S. Melcher, of counsel), for resp’ts.
   Van Brunt, P. J.

Upon an examination of the cross interrogatories, the exclusion of which forms the subject-matter of this appeal, it would appear that most of them were certainly pertinent' to the subject matter inquired of by the direct interrogatories of the various witnesses; and they certainly were not so clearly irrelevant to the issues which were involved, and to the testimony sought to be introduced by the direct interrogatories, that the court, at special term, in the settlement of interrogatories, should have excluded the same. The rights of the parties could have been amply protected ■ by allowing the interrogatories, subject to' objections upon the trial. It is impossible, in advance, for the court to know precisely how the evidence will shape itself upon the trial; and, unless the interrogatory or cross interrogatory is-manifestly impertinent and improper, it should be allowed upon this preliminary settlement.

There is one cross interrogatory, however, which cannot be-pertinent to any issue which can be presented for solution upon the trial of this case; and that is the third, when the witness is-asked to state the respective interests of members of two firms, one of which is a party to the action and another is not, both as to its assets and profits. This question- is entirely unnecessary, improper, and not asked for the purpose of elucidating any testimony which may be offered during the progress of the trial, and, therefore, was properly excluded. We think the order appealed from should be reversed as to the other cross interrogatories, and the said cross interrogatories allowed, subject to objection upon the trial, and affirmed as to the third cross interrogatory, without costs of this appeal.

O’Brien and Barrett, JJ., concur.


author: Per Curiam.

text:
    Henry Hughes, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Railroad—Elevated—Number of trains not material.
    The fact that the number of trains run over the road before plaintiff’s premises is small is not material as affecting the amount of damage to the fee value, as the defendants, on paying the compensation awarded and obtaining a conveyance of the appurtenant rights to the property, might run a larger number without liability to the owner for further damages.
    Appeal from judgment in favor of plaintiff, entered upon decision of a referee.

      Davies & Rapallo (Judien T. Davies and R. L. Maynard, of counsel), for app’lts;

      Peclcham & Tyler (Charles A. B. Pratt, Jr., of counsel), for resp’t.
   Per Curiam.

This action was brought by the plaintiff to restrain the defendants from maintaining or operating their railroad in front of plaintiff’s premises, and, as an incident, to recover such damages as the plaintiff had sustained to the rental value of the premises. The judgment awarded the injunction, unless the defendants, within the time specified, should pay to plaintiff a certain sum for the fee value and the damages to the rental value resulting from the construction and maintenance of the road. The only question presented upon this appeal is as to the amount of the awards made by the referee. It is contended by the appellants that these amounts were excessive, and unsupported by any evidence. We have examined the record, and cannot agree with this deduction from the testimony given. We think the referee was justified in concluding that by reason of the presence of the_elevated railroad in the street the premises of the plaintiff were injured ; and, although there was a conflict as to the extent of such injury, there being sufficient to justify the amount as reached by the referee, we should not disturb his decision. To show that the injury was but slight, great reliance was placed by appellants upon the fact that but few trains were run over the road during the day, and that from ascertain hour in the night until early in the morning no trains at all were operated. This, however, is not controlling, nor is it entitled to the weight which appellants would assign to it. In these cases the question is not how many trains the defendants actually run in front of a person’s property, but rather how many have they the right to run ? In their own interest, or to suit their own purposes, they may at one time run few trains, and again run trains more frequently. And in a suit of this character, if they pay for the damages occasioned by the construction of the road, and obtain a conveyance of the rights appurtenant to the property which have been destroyed, the owner would have no, right thereafter to again complain if more trains were run than were operated at the time of the award, nor could he, by reason thereof, obtain further damages.

We are of opinion that the judgment appealed from should be affirmed, with costs and disbursements.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.


author: Barrett, J.

text:
    Lou M. Bronson, Resp't, v. The Forty-Second Street, Manhattanville & St. Nicholas Avenue Railroad Company, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Nb&ligence—Damages.
    Where the injury to the plaintiff consists of a breaking of the fibula above the ankle, confining her to the house for two months, after which she went about on crutches, and it appears that it does not affect her earning capacity, although the ankle will be weak for a long time, and perhaps always, a verdict for $11,000 is clearly excessive.
    Appeal from a judgment entered upon the verdict of a jury for $11,000, and from an order denying a motion for a new trial, in an action for personal injuries.

      William G. Trull, for app’lt;

      Julius H. Seymour (Edward G. James, of counsel), for resp’t
   Barrett, J.

There was enough in this case to justify the submission to the jury of the question of defendant’s negligence and of plaintiff’s freedom from contributory negligence; and we see no reason to disturb the verdict, although, possibly, we might have come to a different conclusion if these questions had been submitted to us. We think, however, that the damages were clearly excessive. The jury awarded the plaintiff $11,000 for an injury which, though painful and distressing, has not deprived her of limb or member, nor destroyed her earning capacity. There was a fracture of the fibula, which is the smaller of the long bones of the leg, just above the ankle. A plaster bandage was put on, and remained on for about four weeks, when it was removed, and felt splints were applied. About a month later the plaintiff went out with crutches, and the attending physician has seen her but two or three times since. This medical gentleman testified that there was still a slight contraction of some of the cords of the ankle, and that, in his opinion, the ankle would be weak for a long time, perhaps always. The plaintiff testified that up to the time of the trial she suffered more or less, and that she is compelled to rest her weight on the ball of the foot, as severe pain results from resting her weight on her heel. Her earning capacity was diminished for some time after she was able to get about, but it is not now seriously affected. While the plaintiff’s sufferings were undoubtedly acute for a considerable period of time, and while the injury was serious to a woman accustomed to earn her living by outdoor employment, we think the jury went far beyond the principle of fair and reasonable compensation, and awarded what, under all the circumstances, amounted to punitive damages. The injury was not, in any just sense, a permanent one. There was no loss of limb, and no permanent loss of income. But there was much pain and suffering, and some pecuniary loss. For this the plaintiff was entitled to substantial damages, but not to a sum far in excess of what has ever been deemed compensatory. The judgment should, therefore, be reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates within ten days to reduce the judgment to $5,000, with costs, as already adjusted, reducing the extra allowance, however, to five per cent on $5,000. In case the plaintiff so stipulates, the judgment, as thus reduced, is affirmed, without costs of this appeal to either party.

O’Brien and Follett, JJ., concur.


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    The People ex rel. The United States Trust Co., Resp't, v. Edward P. Barker et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Taxes—Lunatic—Assessment.
    The fact that an assessment of personal property of a lunatic is entered in the annual record under the initial of the lunatic’s name is sufficient to show that the assessors intended to assess the lunatic, and such assessment is not invalidated by the addition of the name of the committee and his place of business, as such additions are mere surplusage.
    Appeal from order vacating assessment for taxation of personal estate.
    The assessment was against “ Charles A. Langlois, by United States Trust Co., committee.”

      William H. Ciarle (Geo. S. Coleman, of counsel), for app’lts;

      Edward W. Sheldon, for resp’t.
   Van Brunt, P. J.

It is conceded that the lunatic resides in the city of Hew York, and was properly assessable in said city upon his personal property; and the question presented upon this appeal is, whether such lunatic was assessed, or whether the assessment was levied against the committee. If such assessment was levied against the committee, then the case of People ex rel. Smith v. Tax Com'rs, 100 N. Y., 215, is authority for the proposition that such assessment is void. But upon an examination of the record we are of opinion that the commissioners of taxes, in levying this assessment, intended to and did assess the lunatic, and not the committee. This view is sustained by the provisions of the Hew York consolidation act, § 818, which requires that the assessed valuation of all personal property shall be entered by said commissioners in books or records in alphabetical order of the names of persons and corporations subject to taxation; and in the record of assessment for personal taxes this assessment is found under the letter L., the proper place for the entry of such assessment if it was the intention of the commissioners to assess the personal property of the lunatic, but not the proper place for such entry if they intended to assess the committee as representing the lunatic. Therefore, it being clear as to the intention of the tax commissioners in levying the assessment, the question remains as to whether, by the addition of the words to the assessment, “ by IT. S. Trust Company, committee,” and attaching the place of business of the committee, and the ward in which such place of business was situated, such assessment has been invalidated. We cannot find any authority, either in principle or in adjudication, to sustain such a conclusion. These additions were mere surplus-age. The assessment would have been perfectly good without any of them appearing upon the record; and, where the intention clearly appears, it does not seem to us that the action of the tax commissioners should be invalidated simply because they have done too much, by offering more facilities than they were required to do by law to the committee for ascertaining what tax has been levied against the lunatic. We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the petition dismissed, wdth ten dollars costs.

O’Brien and Follett, JJ., concur.


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    Catherine A. Pope, Resp't, v. Samuel A. Briggs, Assignee, Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Assignment for creditors—Accounting—Death of assignor.
    Where one of a firm of assignors dies pending an accounting, and it does not appear that he had any individual property, the accounting will not he suspended on account of such death, as the surviving partner represents him so far as the firm’s rights are concerned.
    Appeal-from order denying motion to suspend reference on an accounting by an assignee for creditors.
    Pending the hearing before the referee, one of the assignors, who were partners, died, and the assignee claimed that the proceeding could not go on until the personal representatives of the deceased partner were brought in as parties.

      Thomas Darlington, for app’lt;

      Benjamin F. Fdsall, for resp’t.
   Per Curiam.

It does not appear upon this application that the deceased, ever had any individual property, and, as far as the firm’s rights are concerned, the surviving partner represents him. The order should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


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    Henry W. Peabody et al., Resp'ts, v. Emilio Cortada et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Reference—Compulsory.
    Where the complaint sets forth several distinct causes of action, one at least of which is not referable, a compulsory reference should not be granted.
    Appeal from order of reference.

      Forster & Speir (Henry A. Forster, of counsel), for app’lts;

      Shepard, Terry, McKelvey & Prentiss, for resp’ts.
   Per Curiam.

In the third and fourth causes of action the plaintiffs seek to recover, first, upon an account stated, and then for certain additional items upon open account. • These causes of action, although embraced in one count, are distinct and separate, and one of them, certainly, is not referable. The one upon account stated does not involve the examination of a long account, and certainly the defendant is entitled to a trial by jury.

The order should be reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


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    Moses K. Glines, Pl'ff, v. The Supreme Sitting, Order of the Iron Hall, Def't.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Receiver—Rights of attaching creditor.
    Although a creditor by the levy of an attachment becomes entitled to the application of the moneys attached upon his judgment when recovered, he acquires thereby no general preference which can be enforced against • a receiver of the debtor, and in the absence of proof that he had obtained a lien upon sufficient assets to pay the judgment, a motion to direct the receiver to pay such judgment out of assets in his hands should be denied.
    Appeal from an order denying the application of petitioner for an order directing the receiver of the Supreme Sitting of the Order of the Iron Hall to pay a judgment procured by petitioner against the defendant corporation from the assets now in his hands as receiver. ,

      Abraham Sarasohn, for app’lt;

      Howard H. Morse and George Norris, for resp’t.
   Per Curiam.

In this action, which was brought by the plaintiff, as a member of the defendant, against the defendant, a foreign corporation, on the ground of insolvency, to reach assets of defendant in this state, the respondent, George E. Glines, was appointed receiver of assets in this state. Prior to his appointment as such receiver, the appellant, Epstein, had commenced an action against the defendant in the city court of New York, and obtained a warrant of attachment against some property of the defendant on the ground of its being a foreign corporation, and the sheriff, 'by virtue of such attachment, levied on certain moneys belonging to the defendant in the Manhattan Savings Institution in this city. It does not appear from the papers what the amount of this money was, or what was the extent of the property which was levied upon under the attachment. The receiver thereafter served notice of the order of his appointment on the bank and the sheriff, and made application in the city court to be made a party defendant in the appellant’s action, which was granted, and the receiver served an answer in said action, and defended the same. Upon the trial a verdict was directed for the plaintiff for the full amount, and the appellant thereupon entered judgment against the defendant and the respondent, as receiver of the defendant, for the sum of $220.-52. Thereafter the appellant applied to this court for an order that said receiver be directed to pay the judgment, with costs of motion. This motion was denied, and from the order thereupon entered this appeal is taken. Although the appellant may have had a right to have applied to the payment of his judgment such money as he had obtained a lien upon by the service of the attachment, yet he had not acquired any general preference which could be enforced against the receiver. Therefore, without showing that he had obtained a lien upon sufficient assets to pay his judgment, the court was justified in refusing to direct the receiver to pay such judgment out of the assets which were in his hands, because it was only by virtue of the lien of his attachment that he could have acquired any preference against the other creditors of the defendant, whose rights and interests the receiver was appointed to protect. We are of the opinion that the order should be affirmed, with costs.

Yah Brunt, P. J., O’Brien and Follett, JJ., concur.


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    Helena Metzger, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts. Hannah E. Boardman, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts. Edmund J. Curry, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts. Edmund J. Curry, Resp't, v. The New York Elevated Railway Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Pleading—Frivolous answer.
    A motion to strike out an answer as frivolous should not he granted if argument or illustration is necessary to demonstrate the fact that it is frivolous.
    2. Same.
    An order striking out an answer as frivolous in such a case cannot he sustained on appeal on the ground that such answer would have been held had on demurrer.
    Appeals from judgments in each case entered upon orders striking out the answers as frivolous.

      Davies, Short & Townsend {Julien T. Davies, Brainard Tolies• and B. L. Maynard, of counsel), for app’lts;

      W. H. O'Dwyer {Henry D. Sedgwick, Jr., of counsel), for resp’ts.
   Per Curiam.

These actions were brought to recover damages awarded the plaintiffs in proceedings to acquire by condemnation certain easements for the use of the defendants. The same defense is interposed in each action, and the rule applicable to' one is to all. It has been so long settled by repeated decisions in the court of appeals, Youngs v. Kent, 46 N. Y., 672; Strong v. Sproul, 53 id., 497; Cook v. Warren, 88 id., 39, and in this court, Barney v. King, 37 St. Rep., 533, that a pleading should not be stricken out as frivolous unless it is so plainly so that neither argument nor illustration is required to demonstrate its frailty, as to render the further citation of authorities wholly unnecessary. This rule has become elementary. The learned counsel for the respondents cites early cases holding that on an appeal from a judgment entered on such an order it should be upheld if the court is of the opinion that the pleading stricken out would be held bad on a demurrer. The cases cited have, in effect, been overruled by the subsequent cases in the court of last resort and in this court, above cited, and in many others which might be referred to. It will not do to have one rule applied upon the hearing of a motion to strike out a pleading as frivolous, and another on an appeal from the judgment. On the original hearing the motion should not be granted if argument or illustration is necessary to demonstrate the fact that the pleading is frivolous, and on appeal the order or judgment will not be sustained if a long argument is necessary to show the frailty of the pleading. In support of these judgments the learned counsel for the respondents presents an argument of fifteen pages, which seems to establish the fact that these cases fall within the rule of practice which has so long prevailed. We express no opinion as to whether the answers are demurrable, but we think the question whether they are or not should have been presented by demurrers, and not by summary motions for judgment on the ground that they are frivolous. The judgment in each case should be reversed, with costs, and the motion in each denied, with ten dollars costs, with leave to the plaintiffs, on the payment of the costs, to interpose demurrers, if they shall be so advised.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


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    Edward F. Beddall, App'lt, v. The British & Foreign Marine Insurance Co., Limited, Resp't.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Insurance (Marine)—Construction op Policy—"Pinal Destination.”
    The open policy in question provided' “that the risk endured” until the said goods and merchandise shall be safely landed. It also provided that it covered “ all risks at and from the port of destination to the final destination.” Held, that the words “final destination ” referred to a locality and not a person, and that the latter clause was applicable only where the final destination of the goods was some point beyond the port where the carriageby vessel ceased, and did not cover a loss by fire after the goods were landed at the port of destination before the consignee took possession thereof.
    Appeal from a judgment dismissing the complaint herein, with costs, in an action upon a policy of marine insurance.
    William. G. Choate, JE. B. Corners, and J. Parker Eirlin, for ■app’lt;

      William Allen Butler and Wilhelmus Mynderse, for resp’t.
   Barrett, J.

This action was upon a policy of marine insurance, issued by the defendant, to recover a loss on 403 bales of ■cotton destroyed by fire on a dock in the port of Liverpool, Eng., ■on the 26th of October, 1886. The facts essential to a proper understanding of the question presented are these : The Liverpool house of T. A. Wooley & Co. had a branch house in Norfolk, Ya., which was in charge of an agent named Kennedy. This branch house did business in the name of T. A. Wooley. On “the 1st of September, 1885, the policy in question was issued to T. A. Wooley, upon the application of Kennedy, to cover transatlantic shipments of cotton. It was an open policy, and it contained a provision by which each shipment made by T. A. Wooley from Norfolk could be brought under its protection. By this provision the insured was authorized to issue, upon specific shipments, certificates of the company, signed by its attorney, certifying that the bales mentioned therein were covered by the policy. In the early part of October, 1886, T. A. Wooley shipped by the steamship Hugo, then lying in the port of Norfolk, and bound for Liverpool,403 bales of cotton. At the same time, and pursuant to the authority conferred by the policy, five certificates of insurance were issued at Norfolk certifying that the defendant insured, under the policy, $21,150 on these 403 bales. The cotton, which was the property of T. A. Wooley & Co., subject to certain advances, duly arrived in Liverpool, and was there discharged upon Hornby dock. It was all discharged on the 25th of October, 1886, but it was not removed by Wooley & Co., or by their brok•ers, on that day. Early the next morning, while the cotton was still lying on Hornby dock, it was badly damaged by fire; and the question is as to the defendant’s responsibility for the resulting loss. It appears that Wooley & Co.’s brokers, Molyneux, Taylor & Co., at the request of Wooley & Co., and for their account, took up the documents relating to this cotton, and at the same time insured it against fire in five independent companies. This was on the 23d of October, while the cotton was being discharged from the Hugo. After the fire the cotton was abandoned to the five companies, and they subsequently paid therefor as a total loss. At the time of this payment, Wooley & Co. and Molyneux, Taylor & Co. agreed to assign to the five companies all their rights under the defendant’s policy, and subsequently all ■such rights were assigned by the companies, by Wooley & Co., and by Molyneux, Taylor & Co., to the plaintiff.

Upon this state of facts, there can be no question, if the ordinary terms of the policy are to govern, but that the defendant’s insurance terminated when, according to the usual course of business, the cutton was safely landed at the port of destination. The language of the policy is explicit, that the adventure begins from and immediately following the loading of the goods and merchandise on board of the vessel, and “ continues and endures until the said goods and merchandise shall be safely landed." And the insurance is upon cotton to be laden on vessel or vessels, sail or steam, “ at and from Atlantic or Gfulf ports in the United States, or from interior points, via said seaports to port or ports in Europe direct, or via port or ports.” Under these provisions, the risk clearly ended upon the landing of the goods at the port ■of destination. The plaintiff’s contention is that the insurance thus effected was enlarged by a special clause in writing upon the margin of the policy. This clause reads as follows: “ This policy covers, also, all risks at and from the port of destination to the final destination of the cotton.” The plaintiff says that the final destination of the cotton, as here contemplated, was “ the actual, manual custody and control of the consignees at the port ■of destination; ” and, therefore, as the loss occurred before the ■delivery, it so occurred before the arrival of the cotton at its final destination. We think this is a strained interpretation of the clause in question. What was meant by the expression “ final destination ” was clearly a locality, and not a person. The idea that a personal delivery was contemplated seems to confuse the insurer’s liability with that of a common carrier. In a general sense, the goods were, of course, destined to go to the consignees ; but the phrase is awkward, obscure and far-fetched, as expressive of a contract to extend the insurance until actual delivery. If the risk was to run until delivery, it was easy to say so in plain words without employing a roundabout expression, which might or might not mean that, and might or might not mean several other things. Plainly, the intention was to widen the area of locality: that is, to push the risk beyond the primary port of destination to the final destination; that is, to the ultimate locality contemplated when the adventure was begun. This construction requires no evidence aliunde the instrument, and such evidence may safely be disregarded. We agree with the appellant that the written clause in question should prevail •over the printed matter, and that the intention was to enlarge the insurance. But this intention was a general one, having no relation to this particular insurance. The insured did not here go to the insurer and ask to have the clause applied to the shipment in question.

The clause was there already, written upon the margin of the policy, and ready to be applied to any adventure where there might happen to be a destination for the goods beyond “ the port or ports in Europe ” referred to in the printed terms. But, where there was no such further destination, the insurance terminated at “ the port or ports in Eui'ope ” specified in the bill of lading, and terminated in the usual way, when the goods were ■safely landed, not when they reached the warehouse to which they were destined, nor when they were placed upon the carts destined to carry them there. Our construction, too, is that which the parties themselves placed upon the contract when the brokers took out the fire policies. It would be strange if they went to the expense of all this additional insurance, believing themselves to be already insured. Without considering any- other question, we think the written clause under consideration was ingrafted upon the policy for the purpose of continuing any insurance which might from time to time be effected under it to the final destination of the goods under the contract of carriage ; that is, to any specified point beyond the port where carriage by vessel ceased ; and this conclusion is arrived at solely upon the terms of the clause itself. This construction gives the fullest effect to the written addition to the printed policy, and is yet in harmony with the general rule that the risk ends when the goods are safely landed at the port of destination. The judgment appealed from should be affirmed, with costs.

Yah Brunt, P. J., and O’Brien, J., concur.