text:
    Francis Riley et al., Resp’ts, v. George E. Lowry, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Contract—Agreement to pat for damages to wagon—Counterclaim.
    ■ In an action brought in a justice’s court to recover the cost of repairing a certain wagon, the complaint alleged that plaintiff as liveryman hired to defendant a team, harness and wagon; that while in his possession the wagon was broken, and that he had agreed to pay the costs of repairing before they were made. The answer set up a counterclaim for damages for injuries received in consequence of the unsafe condition of the conveyance and also set up a general denial. On the trial defendant’s evidence tended to show that the injury was caused by a defective harness, but did not disprove the agreement to pay for the repairs as proved by plaintiffs’ witness. Held, that the agreement contained all the elements of a valid contract, and that the justice, holding from the evidence that such an agreement was made, was authorized to give judgment for plaintiffs, nor was he required to find that the defendant had established any counterclaim.
    Appeal from a judgment of the Eensselaer county court affirming the judgment of a justice’s court.

      William, Powell,, Jr., for app’lt; Elmer E. Barnes, for resp’ts..
   Mayham, P. J.

The plaintiffs brought this action in justice’s court to recover an amount which they allege the defendant agreed to pay for repairs to plaintiffs’ wagon, alleged to have been broken while in the.possession of the defendant.

The case shows that the plaintiffs, as liverymen, hired to defendant a team, harness and wagon, and while in the possession of the defendant the wagon was broken.

The complaint alleges these facts, and charges that the defendant requested the plaintiffs to have the wagon repaired, and promised and agreed to pay the plaintiffs the amount of the expense of such repairs, and that the expense of the same was $24.75, which the defendant refused to pay.

The answer admits the hiring of the wagon and team of plaintiffs, but alleges payment for the same ; sets up as counterclaim for damages for injuries received in consequence of the unsafe condtion of such conveyance, and also sets up a general denial. The proofs on the trial on the part of the plaintiffs tended to establish the allegations of the’ complaint, and were sufficient for that purpose if believed by the. justice.

The evidence on the part of the defendant tended to show that the injury occurred by reason of the breaking of a strap of the harness, and some of the evidence tends to show that the harness was defective. But the evidence on the part of the defense does not disprove the agreement of the defendant to pay for the repairs, as proved by plaintiffs’ witness.

The appellant now insists that no recovery could legally be had in this action, as the injury to the wagon was in consequence of defects in the plaintiffs’ harness, and that the plaintiffs, and not the defendant, took the risk of such defect

It is quite true that the defendant, as a bailee for hire of this wagon, would not be liable for the failure of the same to perform the purpose for which it was hired, if' it broke without any fault of the bailee. Harrington v. Snyder, 3 Barb., 380. But the plaintiffs’ right to recover in this action did not depend upon the relation of bailor and bailee, existing between the plaintiffs and the defendant.

The plaintiffs rested" their right to recover upon the alleged agreement of the defendant to pay for the repairs, and the uncontradicted evidence upon that is, that the plaintiffs were to send for the wagon and have it repaired and he would pay the bill.

That agreement contained all the elements of a valid contract, and if the justice believed, from the evidence, that such an agreement was made, and that the plaintiffs had performed it on their part, and that defendant had not performed it on his part, he was authorized to give judgment for the plaintiffs for the amount of the cost or expense of such repairs.

. Nor do we think that the justice, under the defendant’s proof, was required to find that the defendant had established any counterclaim which should be deducted from the claim of the plaintiffs.

The judgment-of the justice and of the bounty court must be affirmed, with costs.

Putnam and Herrick, JJ., concur.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Thomas Lanigan, Resp’t, v. The Prudential Insurance Company of America, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Insurance (life) — Company’s knowledge of misstatements in application A WAIYEB.
    In an application for life insurance one of the questions propounded was, “ Is life proposed insured in this company? If so, state numbers and amounts of policies.” The answer written in the application was: “No." The policy issued upon the application contained the provision that it should be void, “while there is in force upon the life of the insured a policy previously issued by this company, unless the policy first issued contains an endorsement authorizing this policy to be in force at the same time.” No such endorsement was made, and on the trial of an action to enforce the policy, it appeared that the insured had another policy in force at the time of the application. Held, that the company must be charged with knowledge of the existence of a former policy issued by it, outstanding at the time of issuing the policy in suit, and that that condition was therefore waived and cannot for that reason be urged as a ground for reversal of judgment.
    Appeal from a judgment of the Albany county court, affirming a judgment rendered by a judgment of the peace.

      Henry J. McCormick, for app’lt; P. D. Niver, for resp’t
   Mayham, P. J.

On the 30th day of June, 1890, the defendant issued a policy on the life of Martin Dooley for $158 on his written application therefor, and on that day Dooley by an instrument in writing in accordance with the forms issued by the defendont, directed that the payment of the benefits specified in such policy be paid to the plaintiff, he claiming to be equitably entitled to the same for money paid and expenses incurred by him for the assured. On the 2nd day of January, 1891, the assured died of consumption, and the plaintiff, after proving the death and demanding the amount due upon the policy, brought this action.

The defendant in its answer alleges that the assured in his application made certain representations as to his physical condition which were untrue, and also represented and warranted that he was not insured by the defendant under any other policy of insurance, which warranties the .defendant alleged were false and fraudulent.

On the trial the plaintiff proved the policy, its assignment to the plaintiff and the death of the assured. The defendant put in evidence the application for the policy, and also proved that there was at the date of the application another policy issued by the defendant on the life of the assured.

The defendant also proved that the health of the assured soon after, the issuance of the policy was impaired, and that he suffered from hemorrhage from the lungs, and that he died of consumption in less than one year, but more than six months after the issuance of the policy. At the conclusion of the testimony the defendant moved to dismiss the plaintiff’s complaint, which motion was denied, and judgment was given for the plaintiff for the amount estimated due upon the policy by its terms.

The county court on appeal affirmed that judgment and the defendant appeals to this court. The defendant urges two principal grounds for the reversal of this judgment.

First. That the application of the assured in relation to his health was untrue.

Second. That his statement in the application that he had no other insurance policy on his life issued by the defendant was false, and that the policy for these reasons was void.

Upon the subject of the assured’s physical condition at the time of making the application, there was clearly such a conflict as to make it a question of fact, and as the justice found with the plaintiff upon that question, we should not disturb his findings on that subject.

On the subject of the time of his cough, and the hemorrhage, some of the witnesses say that he was sick nearly all summer with a cough; others say he did not cough more than three months before his death. Some of the witnesses think the hemorrhage occurred in June; some fix it as late as July or August.

As to the question of another policy on the assured’s life in the defendant’s company, there is no conflict in the evidence. There was another policy on his life at the time of this application. The question propounded in the application and answered by the assured on this subject is as follows: “Is life proposed insured in this company ? If so, state numbers and amounts of policies.” The answer written in the application to this question is “Ho.” This application also contains this provision: “I agree that said answers with this declaration shall form the basis of a contract of insurance between me and the Prudential Insurance Company of America, and that the policy which may be granted by the company in pursuance of this application shall be accepted subject to the conditions and agreements contained in such policy.” .

Fourth. This policy shall be void if the iusured shall, without the written permission of the president or secretary of the company, engage in either of the occupations excepted in "the foregoing section, or while there is in force upon the life of the insured a policy previously issued by this company unless the policy first issued contains an endorsement signed by the president or secretary authorizing this policy to be in force at the same time.”

■But there is no provision in the application or policy which renders the policy void for a breach of any warrantee contained in the application.

It is insisted on the part of the respondent that the defendant waived the condition in the fourth subdivision of the policy above quoted by accepting the premiums and issuing a policy on this application, especially as the defendant presumably had knowledge of the existence of a previous policy issued by it on the life of the assured at the time of the issuance of the policy in suit.

It is true as a general rule that a general warrantee does not protect the one to whom it is given against facts known to and understood by him, and this rule has been applied in certain cases' to insurance policies."

In Short v. Home Ins. Co., 90 N. Y., 19, the condition in the policy was, that if the premises became vacant or unoccupied to the knowledge of the assured the policy should be void, and the case showed that the premises were at the time of issuing the policy vacant and remained so until destroyed by fire, and the court held that, if the defendant knew that fact at the time of issuing the policy, it was deemed to have waived that condition and was estopped from setting that up as a breach of the assured’s engagement, to defeat the policy.

So in Woodruff v. The Imperial Fire Ins. Co., 83 N. Y., 133, where the applicant was required to state for what purpose the building was used, and he answered a dwelling and the same was at the time unoccupied, the assured was not held to the statement as a warranty. So in Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434, the application required that if the building was located on lease land it must be stated, and although that was the case, to the knowledge of the assured and the agent of the company, held that as the defendant had notice of the fact, it did not vitiate the policy.

But all of these cases, and others of the same effect of a kindred character, turned upon the question of knowledge in the company or it¡3 agent.

In the case at bar there is no direct evidence that the company knew at the time of issuing- this policy that there was another outstanding policy of this company on the assured’s life. Is it chargeable with such knowledge from the fact of the existence of the policy issued by it, and the records of which was in its possession ? It is quite true as claimed by the appellant that insurance contracts must, like other contracts, be construed according to their terms. Dwight v. Germania Ins. Co., 103 N. Y., 341; 3 St. Rep., 115. But it is also true that the provisions of an insurance contract may be waived by the parties, or become inoperative by operation of law as in other contracts. In Short v. Home Ins. Co., supra, the condition of the policy was that if the premises became vacant or unoccupied without notice to and the consent of the company in writing the policy should be void. The premises were unoccupied at the time that the • policy was issued, and so continued until destroyed by fire. This was held to be a breach •of the condition, but the court held that it was presumed to have been waived by the company or estopped the company from setting up the breach, as a .contrary inference would impute to the company a fraudulent intent to deliver and receive pay for an invalid instrument.

That case, however, proceeded upon the theory that the company had knowledge of the fact that the building was unoccupied. In the case at bar we think it may be assumed that the justice found from the fact that the defendant was a party to the prior insurance from .having issued, its policy, and that having such knowledge, and with it accepting the premiums and issuing its policy, it was estopped from insisting upon the forefeiture, especially as there does not seem to be any claim that there • was a fraudulent misrepresentation by the assured. The proof shows that his actual statement to the agent of the defendant at the time of the application was, “ that he was . not insured in defendant’s •company that he knew of,” and there is no positive evidence that he had such knowledge.

The defendant being in a position to have had actual knowledge, the presumption that it did possess the same is quite as strong or stronger than any that can be indulged in as to the assured.

While the case is not free from doubt, we are inclined to •sustain the justice and county court in holding that the defendant must be charged with knowledge of the existence of a former policy issued by it outstanding at the time of issuing the policy in suit, and that that condition was, therefore, waived, and cannot for that reason be urged as a ground for reversal of this judgment.

Judgment of the justice and the county court affirmed, with costs.

Putnam, J., concurs; Herrick, J., not voting.


author: Matham, P. J.

text:
    Hiram A. Douglas, Resp’t, v. The Phenix Insurance Company of Brooklyn, N. Y., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Insurance (Fire)—Attachment.
    A claim by a resident of this state against a domestic fire insurance company cannot he attached in a foreign state by service on an agent of the company in that state 'where no personal service on the claimant is made.

      This action was prosecuted to recover the amount claimed to-be due the plaintiff on a fire insurance policy, issued by the defendant.
    The complaint was in the ordinary form in such actions and also contained an allegation that the defendant was a domestic-corporation, organized under the laws of the state of New York and that the plaintiff at the time of the issuing of the policy was a resident of the state of New York, and the holder and owner of the policy. The answer, after admitting many of the allegations of the complaint, alleges in substance that creditors of the plaintiff residing in the state of Massachusetts have by attachment or trustee process, issued or granted in that state, attached the claim of the plaintiff sued upon in this action. To this alleged defencethe plaintiff interposed a demurrer on the ground that the saméis insufficient in law upon the face thereof.
    This demurrer was sustained and the trial court ordered judgment for the plaintiff in accordance with the prayer of the complaint, with costs, and from that judgment the defendant appeals to-this court.

      G. A. Seixas, for app’lt; Cantwell & Cantwell (WilliamP. Cant-welly of counsel), for resp’t.

       Affirming 43 St. Rep., 309.

   Matham, P. J.

By the demurrer the plaintiff admits all the allegations of fact, if any, in the answer demurred to, and the first, question to be examined on this appeal seems to be whether that part of the answer interposed as an affirmative defence was sufficient upon its face to show that the attachment alleged to have been issued in Massachusetts in favor of creditors of the plaintiff residing, there was a valid and effectual lien on the debt, due the plaintiff from the defendant on this insurance policy, so that if the defendant should pay the plaintiff it would still be liable to the attaching creditors.

It is quite clear that if this foreign attachment had so far levied upon this claim as to suspend the plaintiff’s control over it and transfer the same to the custody of the law, in trust for the payment of the claim of the attaching creditors of the plaintiff, that, that fact, properly alleged, would constitute a defense to this action, either in abatement, if the attachment proceedings were still pending, or in bar, if the attachment creditors had recovered the money of the defendant, provided the plaintiff had been properly before the court in the attachment proceedings. Embree & Collins v.Hanna, 5 Johns., 101; Donovan v. Hunt, 7 Abb., 29; Martin v. Central Vermont R. R. Co., 50 Hun, 349; 20 St. Rep., 375.

But the defendant, in order to avail itself of such a defense,, must in its answer allege facts showing that the foreign attachment has by its operation divested the .plaintiff of his right to the control of the property or rights in action upon which it is levied, or claimed to have operated, and that under it jurisdiction has been acquired of the person of the plaintiff and of the property, or at least of the property which is within the jurisdiction and control of the attaching tribunal. The answer does not allege that the attachment was served on the plaintiff, and it in effect admits that the plaintiff is a non-resident of the state of Massachusetts, and that the domicil of the defendant is in the state of Mew York, and that the policy was issued in this state to the plaintiff on property in this state, where the loss occurred, but it alleges that by reason of certain provisions of the laws of Massachusetts the defendant was, by complying with the laws of that state, authorized to do business therein. That the defendant had complied with such laws, and had an agency in that state on whom legal process could be served, and the process of attachment was served on the agent of the defendant in the state of Massachusetts.

Mo other service is alleged in the answer, and no allegation is contained in the same that any actual seizure under the attachment was made of the claim of the plaintiff against the defendant, or that such claim was in that state, nor does the answer allege as a fact that the plaintiff’s claim on which the attachment is claimed to operate had any existence in the state of Massachusetts.

Under the allegations of fact in the answer we do not think that the attachment could be held to operate on the amount due on this policy.

It cannot be claimed that the courts of' Massachusetts have extra territorial j urisdiction. It seems to be the settled rule that the state courts are confined in the exercise of their jurisdiction to the limits of their own state, and jurisdiction between citizens of different states is by the federal constitution conferred on the federal courts. In Plimpton v. Bigelow, 93 N. Y., 592, the court says: “ In the case of tangible property, capable of actual manucaption, it must have an actual situs within the jurisdiction. But credits, choses in action, and other intangible interests are made by the statute susceptible of seizure by attachment. The same principle, however, in this case as in the other, the res, that is, the intangible right or interest, to be subject to attachment must be within the jurisdiction.” Again, in the same case, the court says: “When the defendant who owes a credit is within the jurisdiction, there is no difficulty through proceedings in personam in reaching and applying it in discharge of his debt to the plaintiff.

“ But where he is out of the jurisdiction, and the debt or duty owing to him, or the right he possesses, exists against some person within the jurisdiction, attachment laws fasten upon that circumstance, and by notice to the debtor, or person owing the duty or representing 'the right, impound the debt, duty or right to answer the obligation which the attachment proceeding is instituted to enforce.”

The answer in this action does not in terms charge that the plaintiff had a debt due him from the insurance company in the state of Massachusetts, nor can it be inferred from the answer, except from the fact that the defendant while chartered by the laws of Mew York, and domiciled in that state, having its principal place of business there, had established an agency in the state of Massachusetts. There seems no warrant for holding that the defendant owed this debt for the purpose of attachment in all the states of this Union where it had an agency, and that the situs of the debt was where the defendant saw fit to locate a person on. whom process against the defendant might be served.

In discussing the question of the location of a corporation for. the purposes of an attachment, Andrews, J., in Plimpton v. Bigelow, supra, says: “ If thé corporation by having its officers, and. by transacting business in a state other than its domicil of origin, is deemed to be itself present as an entity in such foreign state to the same extent and in the same sense as it is present in the state which created it, it may be conceded that its shares might properly be attached in such foreign jurisdiction.

“But we regard the principle to be too familiarly settled by repeated adjudication of the federal and state courts to admit of further controversy, that a corporation has its domicil and residence alone within the bounds of the sovereignty which created, it, and that it is incapable of passing personally beyond that jurisdiction.”

Again, as to personal property consisting of debts,, choses in. action and contracts, the situs seems to be that of the residence of the" creditors. In Williams v. Ingersoll, 89 N. Y., 523, Earl, J., says: “A debt always under general jurisprudence has its situs either at the domicil of the creditor, or where the Written obligation upon which it is due is held, and not at the situs of the-debtor. ”

It follows, therefore, that in the absence of any special provisions of law, this debt from the defendant to the plaintiff on the policy in question had its situs in the state of Hew York and could not be reached under an attachment issued under the laws of Massachusetts, as there was no property in that state upon which the attachment was or could be served and no personal service of the attachment on the plaintiff.

But it is insisted by the appellant that the answer alleged the-jurisdiction of the Massachusetts court and the full and complete-control of the property under the attachment. The difficulty of that contention is that the allegations of this character in the answer are conclusions and not allegations of fact.

While the demurrer admits all the allegations of fact in the pleadings to which it is interposed, it does not admit the conclusions either of fact or law set out in the pleading. In Angell v. Van Schaick, 56 Hun, 256; 30 St. Rep., 714, the court in discussing the manner of pleading foreign statutes, uses this language: “ After setting forth the foreign statutes and averring that they were the whole of the law of the state of Pennsylvania relating to-the subject, the pleader alleges that by such statutes the plaintiff was absolutely prohibited from exercising his trade without a license, and that he was prohibited by such statutes from recovering in this action. But these averments are mere inferences and deductions drawn from the statute and are not in any sense allegations of fact.

“In interposing a demurrer the plaintiff did not thereby admit the construction put upon the .statute by the pleading demurred to, or the correctness of the inference, but only tlie truth of such facts as were properly stated in the answer.” This language is identical with, that used by the court of appeals in Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 337.

In the case at bar the defendant has omitted entirely the provisions of the Massachusetts statute or any appropriate reference thereto as facts, but states only the conclusions which the pleader draws from such statutes. This we think insufficient and the demurrer to such answer does not admit the conclusions of the pleader. '

But if it could be held that the Massachusetts statutes are sufficiently pleaded in the answer, still as the situs of the claim of the plaintiff is in the, state of New York where the plaintiff resides, and where the defendant has its domicil or origin, and where the contract of insurance between the plaintiff and defendant was made, and no personal service in the attachment proceedings having been made on the plaintiff, it would seem to-follow that he was not before the court in such attachment ;• and that no jurisdiction over his person or property was acquired in such attachment proceedings.

If this be so, the plaintiff had no hearing or opportunity to be heard on this attachment proceeding, and no statute that the legislature of Massachusetts could enact could deprive the plaintiff of his interest in this policy under the provisions of § .1 of the fourteenth amendment of the constitution of ‘the United States, which, among other things, provides: “Nor shall any state deprive any person of life, liberty or property without due process of law.”

It had been held in Stuart v. Palmer, 74 N. Y., 191, that due process of law requires an orderly proceeding adapted to the naturc of the case in which the citizen has an opportunity to b& heard, and to defend, enforce and protect his rights. A hearing or an opportunity of being heard is absolutely essential. We cannot conceive of due process of law without this. In Martin v. Central Vermont R. R. Co., 50 Hun, 350; 20 St. Rep., 375, Learned, J., says: “It seems hardly necessary to argue that a judgment. which deprives a man of his property cannot lawfully be recovered without notice to him. We do not mean that against absent. debtors the law may not authorize an attachment of the alleged debtor’s property. It may thei’eby acquire jurisdiction of the thing, but in order to malee that jurisdiction perfect it must give-due notice to the owner before it attempts to divest his title.”

But in this case the proceedings in rem seem to have been instituted and property seized, and the only defect was in giving notice to the owner.

In the case at bar no proceeding in rem was operative in the state of Massachusetts. The res was not within that state. It was-but a right in action against the defendant and the situs of that, right was in New York, and the process of the Massachusetts court, which can operate only, in that state, did not attach to it in this state, or operate to bring either the plaintiff or his interest in this, policy within the jurisdiction of the laws or the process of the courts of the state of Massachusetts.

The answer therefore as to the new matter did not constitute a ■defense to this action, and the demurrer thereto was properly sustained and judgment for 'the plaintiff upon the demurrer was proper and should be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    James Smith, Executor, App’lt, v. Frank Pelott et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Pleadings—Evidence.
    Statements and admissions in any pleading properly before the court are evidence for all the purposes of the trial, and it is not necessary that they should be formally read in evidence to authorize the admissions made in them to be considered by the court.
    3. Rbeebence—Nonsuit—Dismissal of complaint on the mbbits.
    •At the conclusion of the plaintiff’s evidence on a trial before a referee, . defendant moved that the plaintiff be nonsuited, and the referee reserved his decision and adjourned. At the next hearing he announced that he granted the motion for a nonsuit, to which plaintiff excepted. Thereafter the referee made and delivered his report, which assumed to dispose of the whole case. Held, that it was in fact but a judgment of nonsuit, and if there was any evidence, tending to support the plaintiff’s claim, the judgment must be reversed.
    3. Same—Requests to find. •
    In such case plaintiff should have had an opportunity to have presented to the referee requests to find. If he had presented requests embodying his contention as to the facts and law, he would have been concluded, and the referee would be deemed to have passed upon the whole case.
    Appeal from a judgment entered upon the report of a referee dismissing the complaint of the plaintiff upon the merits.

      P. B. Chapman, for app’lt; H. D. Bailey, for resp’ts.
   Mayham, P. J.

The plaintiff prosecuted this action as the executor of John Giles, who was a sub-contractor under one Danforth B. Fisher in the construction of a house for the defend■ant under a contract made between Fisher and Pelott. The action was referred by order of the court, and on the trial the referee reported in favor of the defendant, and the principal questions in this appeal arise upon the exceptions taken, by the plaintiff to that report.

On the trial the referee allowed an amendment of the plaintiff’s complaint on his motion, and also an amendment of the answer of the defendant on his motion, and the appellant now urges that the amendment of the answer by the referee was error.

We see no error in allowing the amendment of the pleadings on the trial. The amendments were allowable in the discretion of the court under § 723 of the Code of Civil Procedure, and by § 1018 the referee had the same, power upon that subject upon the trial as that conferred on the court by § 723, and- we do not see that the power was improperly exercised in this action. The amended pleadings became the pleadings in the case after the allowance of the amendment by the referee, but the statement and the admissions in any of the pleadings properly before the ■court were evidence for all of the purposes of the trial, Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379, and it was not necessary that they should be formally read in evidence to authorize the admissions made in them to be considered by the court.

At the conclusion of the plaintiff’s evidence on the trial, the-defendant moved that the plaintiff be nonsuited, and the referee reserved the question and adjourned the hearing. Pending the adjournment the plaintiff died and his personal representative was substituted as plaintiff. After such substitution the parties appeared before the referee and proceeded with the trial, and the referee after calling the case announced that he granted defendant’s motion for nonsuit; to which decision the plaintiff excepted. Thereafter the referee made and delivered .his report. The pleadings having been amended to conform to the plaintiff’s proof,, the question raised by this nonsuit is, whether there was any evidence given by the plaintiff upon which he might have recovered.

Although the report of the referee substantially made and filed, and to which exceptions were taken by the plaintiff, assumed to-dispose of the whole case, we think the proceedings on the trial bring it within the decision of Forbes v. Chichester, 125 N. Y., 769; 36 St. Rep., 248, and that it was in fact but a nonsuit, and. if there is any evidence which should be considered upon the-merits, upon the disputed questions of fact in this action, the plaintiff had a right to have it properly weighed and considered upon the merits. 1

It is true, as was said in that case, the plaintiff may fail to satisfy any court upon all the evidence that he is entitled to recover. But .he has a right to have his evidence properly weighed. We think on a careful examination of all the evidence given on the trial there is enough to raise a question of fact, whether or not-there had not been such change in the specifications as to amount to a waiver on the part of the defendant of a strict performance by the original or sub-contractor, and perhaps modifications of the contract in other respects, which should have been considered by the referee as questions of fact

While the law in this class of actions makes it incumbent on-the party seeking to recover to show a substantial performance of the contract, we think the plaintiff should have had the opportunity to have presented to the referee requests to find. If he had presented requests to find to the referee embodying bis contention as to the facts and law, the plaintiff would have been concluded, and the referee in that case would be deemed to have passed upon the whole case. Columbia Bank v. Gospel Tabernacle Church, 127 N. Y. 365; 38 St. Rep., 915. But this case is distinguished from and does not assume to overrule Forbes v. Chichester, supra, or Scofield v. Hernandez, 47 N. Y., 313.

There is no claim that the entire contract price for the building has been paid by the defendant, and we think the plaintiff should have a full opportunity to have the case disposed of on the facts and law upon its merits.

Judgment reversed, referee discharged, and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concur.


author: O’Brien, J.

text:
    Andrew J. Dexter, Resp’t, v. William Ivins et al., App’lts.

      (Court of Appeals,

      Filed April 12, 1892.)

    PizEADiim—Amendment—Evidence.
    In an action for wages, the complaint was on- a written agreement hiring plaintiff as salesman, alleging performance by him and non-payment of salary by defendants. The answer admitted the agreement of hiring, but alleged failure to perform and claimed that defendants notified plaintiff of the breach on his part “ and thereafter no service was rendered by him.” . On the trial plaintiff offered a letter from defendants in evidence, complaining as to his manner of working, but not giving notice of a discharge. On defendants objecting on the ground that it tended to show a discharge, the court remarked that he thought the criticism correct, but “will allow you to amend,” and the letter was admitted. Me Id, no error; that the letter was admissible without any amendment, as tending to show whether plaintiff was acting under or had abandoned the contract.
    Appeal from judgment of tlie supreme court, general term, second department, affirming judgment in favor of plaintiff entered ■on verdict and order denying motion for new trial.

      James G. Burnett, for app’lts; James & Thos. JB. Troy, for resp’t.
   O’Brien, J.

The main point made in support of this appeal is "that the plaintiff brought the action to recover an instalment of his salary, as a salesman in the service of the defendants,'and that upon the trial he was permitted to amend his complaint against the defendants objection, and by the amendment to convert the action into one to recover damages fór a wrongful discharge from the employment provided by the contract. In other words, it is urged by the learned counsel for the defendants that the plaintiff -sued upon one cause of action, and by an erroneous exercise of the power of amendment at the trial recovered upon another and ■different cause of action. If it is true in fact that the complaint was so amended at the trial, against the protest of the defendants, as to work an entire change in the cause of action, the judgment ■ought not to be upheld, as the power of the court to amend pleadings at the trial does not permit the introduction of a new or entirely different cause of action. A careful examination of the record, however, fails to show that such a proceeding as the defendants rely upon in support of the appeal actually took place at the trial. It is incumbent upon a party seeking to reverse a judgment in this court to show that some error of law prejudicial to him was committed on the trial. Every fair intendment and presumption will be made in support of and not against the judgment. This court will not attempt to infer or spell out some error from rulings or proceedings at the trial that are of equivocal meaning or doubtful import, and will not give to a ruling or decision made during the course of the trial a construction different from what was intended by the trial court and understood by counsel on both sides.

The complaint was upon a written agreement made between the plaintiff and defendants, whereby it was stipulated that the plaintiff should enter into the service of the defendants as a salesman and perform service for them in that capacity for one year from ¡November 1, 1887, at a salary of $1,800 per year, payable in monthly payments of $150 per month, besides expenses. It is alleged that the plaintiff performed his part of the contract, but that the defendants have neglected and refused to pay him' his salary due under the contract for the months of June, July and August, 1888, amounting to $450, and that they have also neglected and refused to pay his expenses during the same period amounting to $101. The defendants’ answer admitted the agreement, but alleged that while they were at all times ready and willing to comply with their part of it, the plaintiff for a period of .about three months prior to May 28,1888, disregarded and wholly neglected and failed to perform the terms and conditions thereof upon his part and the directions of the defendants in reference thereto, and then follows this allegation: “ By reason of which failure so to do, the defendants, on or about said 28th day of May, 1888, notified the plaintiff of the breach of the agreement upon his part, and thereafter no service whatever has been ren-. •dered to the defendants by him.” This is not an allegation or ■defence that the defendants had terminated the contract sued upon by a discharge of the plaintiff, but an allegation that the plaintiff had abandoned and failed to perform the agreement. All the ■other allegations of t'he complaint were denied. This condition of the pleadings presented for trial but a' single issue or question of fact, and that was whether the plaintiff had performed his part of the agreement to render services for the defendant as a salesman. There- was ho other issue or question to be tried. The plaintiff produced and put the written agreement in evidence, and testified to what he did under it. ' He also produced and put in evidence numerous letters that passed between the parties from time to time. Two or three of the letters from the defendants to the plaintiff contained complaints as to the manner in which he was performing the contract and as to the results, but none of them contained any explicit notice to the plaintiff of his discharge, or of an intention on the part of the defendants to terminate the contract. The correspondence between the parties was all admissible in evidence under the pleadings as they were originally framed, for the reason that it tended to prove that both parties were acting under the contract and that the plaintiff had not abandoned it as was alleged

It was not admissible oil the part of either party to prove a discharge or termination of the contract, because the plaintiff had not pleaded any such cause of action nor the defendants any such defense. On the trial the plaintiff offered one of these letters in evidence. The defendants’ counsel objected on the ground that the action was brought to recover wages and the letter tended to show a discharge. The court, in- answer to the objections, remarked that he thought the criticism correct but ‘‘ will allow you to amend.” The letter was received and the defendants’ counsel •excepted. ¡Now all that occurred was the receipt of a letter in evidence written by the defendants to the plaintiff. As already observed, it was admissible without any amendment, as a part of the correspondence between the parties, tending to show whether the plaintiff was acting under or had abandoned the contract. The-plaintiff had not asked for leave to amend his complaint and did nothing to indicate that he desired ¡or accepted the privilege of amending and no amendment was actually made. The trial proceeded and no proof was given that was not entirely proper and competent to be given upon the issue made by the original pleadings. At the close of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint, on the ground that the action was one to recover wages a*nd that the proof showed that, prior to-the period for which the wages were claimed, the plaintiff had been discharged ; that there was a complete failure to prove the; cause of action pleaded and that plaintiff’s only remedy was an. action for damages. Neither party, as we have seen, alleged by pleading that the contract was terminated by a discharge, and the-only point presented by the motion was that the plaintiff, while; attempting to prove his case, had shown the discharge and, therefore, had failed in his action. But this position was wholly' untenable. The plaintiff had given evidence cotiipetent and sufficient, for the consideration of the jury upon the issue originally made,, that is, for the recovery of his salary during the period covered by the complaint, and he had given no evidence whatever upon which he could go to the jury in an action for damages on account of a discharge.

The most that can fairly be claimed is that if either party had. pleaded the discharge of the plaintiff as a cause of action or defense then some of the correspondence which- the plaintiff offered; would have been competent to submit to a jury in support of such an. allegation. There were some ambiguous expressions in the defendants’ letters which taken alone might tend to show that it was the defendants’ intention to terminate the contract. But they were far from conclusive, and when all the letters were read and the acts of the parties during the year considered, it was at best a question for the jury whether the plaintiff had been discharged or not. The letters were all competent in an action for the salary and the fact that they also contained some evidence competent on the question of discharge cannot prejudice the plaintiff, so long as they were not used for any such purpose and nothing was claimed for them on that ground. At the time that the plaintiff rested and the defendants moved for a dismissal of the complaint, the-plaintiff had made out a case for the jury in an action to recover his salary and had made out no other cause of action.

But the plaintiff’s counsel, after the motion to dismiss, asked that the complaint be amended so as to conform to the proof. This motion was wholly unnecessary so far as can now be judged from the record, but as there was no proof in the case upon which a recovery could be-had for damages based"upon a discharge or termination of the contract, or for any other cause except for the salary, an amendment conforming the complaint to the facts proven, could not change the cause of action or substitute in the place of the action for salary a claim for damages as upon a wrongful termination of the contract. The court granted the plaintiff’s motion to amend and also gave permission to the defendants to ¡amend the answer if they so desired, and to this ruling the defendants’ counsel excepted. The court then denied the- defendants' motion to dismiss in language quite significant, for it shows that he had no idea that from anything that had yet transpired the form of the action had been changed. The court said: “ There is evidence from which the jury might find that he was ready to render the services, and if they should so find I think he would then be entitled to recover for services, as there is no question of discharge raised by the pleadings.”

The defendants then gave evidence all bearing on the question as to whether the plaintiff performed any services under the contract. When the case was submitted to the jury the learned trial judge was careful to point out the issue in = the case. After calling their attention to the contract upon which the plaintiff brought the action, referring to the plaintiff’s position, he said: 11 He does not set up here that he was discharged and sue' for a breach of that contract; on the contrary he claims that he acted as their servant for a period lasting till the 1st day of September in the following year, and that he has not been paid for the months of June, July and August.” It is perfectly plain from the manner in which the case was submitted to the jury that the court did not understand that any amendment had been made which changed the cause of action. The jury were required to determine the single issue whether the plaintiff had during the months named remained idle or held himself in readiness to render such services as were required of him and to obey the defendants’ orders. The jury were charged : “ That if the plaintiff was at all times ready to do the work that the defendants imposed upon him under his employment, then, though they did not see fit to give him work, and let him remain idle, still he can recover, and strictly as wages.” The verdict which the jury rendered in favor of the plaintiff was for the salary and expenses claimed and the interest thereon. It is plain that the issue made by the original pleadings was the only one tried, the only one ¡submitted to the jury and the only one upon which the judgment was recovered. The ruling of the court conforming the complaint to the proofs did not introduce into the case a new cause of ¡action for damages or any other cause of action except the one originally counted upon. Whatever may have been the effect of granting the request to conform the complaint to the proofs, it was a perfectly harmless proceeding so far as ths defendants are concerned. The court still adhered to the issue made by the original pleadings as if no such motion had been made or granted and for nil practical purposes the case must be treated in the same way as if the motion had been denied. For these reasons the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

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

       Affirming 39 St. Rep., 915.


text:
    Harriet S. Rumsey et al., Resp’ts, v. The New York & New England R. R. Co., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Eminent domain—Damages fob cutting off access to plaintiffs’' • LAND.
    In an action to recover damages claimed through defendant’s railroad having been built between plaintiffs’ dock and brick yard property, it was shown that defendant had in no wise injured plaintiffs’ land except to prevent or delay the sale of the clay therein for brick making purposes, the use of the premises for brick making purposes having been abandoned years before. Held, that the proper measure of damages was the diminished rental,' or usable value of the property as it was, in consequence of the loss by defendant’s acts of access to the river in the manner enjoyed by the owner prior to the construction of the embankment across the water front by the defendant.
    2. Same—Evidence^
    The N. Y. C. & H. R. R. R. Co. constructed its road across the water . front in 1854, and plaintiffs used a strip of land leading through a culvert under said road for loading vessels with brick. Such use was obstructed by the building of defendant’s road bed in 1880; but in 1875 plaintiffs had discontinued the use of the culvert, and allowed the dock and causeway to it to go to decay. On the trial.of this action the court refused to allow defendant to prove the additional cost of shipping brick to market upon the river rendered necessary by the construction of the embankment. Held, error; that this was an important element of the damage sustained under plaintiffs’ theory.
    3. Riparian owners—Rights of.
    An owner of land on a public river is entitled to such damages as he may have sustained as against a railroad company that constructs its road across his water front, and deprives him of access to the navigable part of the stream, unless the owner has granted the right, or it has been obtained by the power of eminent domain.
    Appeal from judgment of the supreme court, general term,, second department, affirming judgment in favor of plaintiffs entered upon verdict.

      W. G. Anthony, for app’lt; H. H. Hustis, for resp’ts.

         Reversing 39 St. Rep., 894; see 23 id., 928; 34 id., 454.

   O’Brien, J.

This appeal involves two important questions: (1) The rule of damages applicable generally to such cases, and (2) the right of the plaintiffs to recover anything for the period prior to March 3, 1885. The plaintiffs are, and for more than twenty years have been, the owners of about forty acres of land on the east bank of the Hudson river at Fishkill, bounded on the west by the river, and covering about 1,000 feet of the river front. It also appears that on the 3rd of March, 1885, the state, pursuant to a resolution of the commissioners of the land office, granted to the plaintiffs the lands under water, adjacent to and in front of the uplands, from high water mark westerly to the channel bank of the river, excepting therefrom the rights of the New York Central & Hudson River Railroad Company. This railroad, it seenis, was constructed across the water front prior to or about the year 1854, and since that time, the plaintiffs and their grantors have used a strip of land, leading from the uplands through a culvert under the Hudson- River Railroad, to the chan,nel of the river, for loading vessels with brick, made on the premises, and for all purposes connected with the manufacture of brick on the premises, with the consent of the Hudson Biver Bailroad, until such use was obstructed by' the building of the defendant's road bed. This was built in the years 1880 and 1881, outside of .and nearly parallel with the road bed of the Hudson river road, in front of the culvert above described, and along the whole river front of plaintiffs’ land, without any right or authority from the plaintiffs or their grantors. The effect of this was to cut off the plaintiffs from'access to the river from their lands. The plaintiffs’ title to the uplands and the land under water, where the defendant’s road is built, has been determined in their favor by the decisions of this court. Rumsey et al. v. The N. Y. & N. E. Railroad Co., 114 N. Y., 423; 23 St. Rep., 928; 125 N. Y., 681; 34 St. Rep., 454.

The principles applicable to actions of an equitable character to restrain the operation or maintenance of such structures, when the facts amount to a continuing trespass against the rights of adjacent property owners, are not involved, as the plaintiffs have not adopted that form of obtaining relief. Galway v. Met. E. R. Co., 128 N. Y., 132; 40 St. Rep., 145; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98. In this action the plaintiffs seek to recover damages to their uplands, sustained by the act of the defendant, in constructing its road bed across the plaintiffs’ water front, and thereby cutting off their access to the river, and such damages are claimed from the time of the construction of the railroad to the commencement of the action. The court assessed the damages at $10,500. This result was reached upon the theory that the use of the plaintiffs’ premises, for the purpose of a brick yard, had been depreciated to that extent in consequence of the construction of the defendant’s road. At the same time the court found that the culvert, as a passageway, was discontinued about the year 1875, and the dock, at the westerly end of the culvert, was allowed to go to decay as was also the causeway which connected the dock with the brick yard. That the plaintiffs’ lands had no buildings ■or machinery on them to fit them for use for brick making purposes .and that they had been in this situation since the year 1875, and that the defendant had in no wise injured the plaintiffs’ lands, except only to prevent or delay the sale of the clay thereon for brick making purposes. It appears, therefore, from these findings, that the use of the premises for brick making or as a brick yard had been discontinued six years before the defendant’s road was built. The plaintiffs asked to recover in this action only such damages as they have sustained, up to the commencement of the action, by reason of the acts complained of. As a basis for the estimate, the land must be taken as it was used during the time ■embraced in the action. It does not appear that the use of the premises as a brick yard was. discontinued in consequence of the acts of the defendant, and that fact could not well be established, for it ceased to be used for such purpose long before the defendant’s road was built.

The proper measure of damages in such a case is the diminished rental or usable value of the property as it was, in consequence of the loss, by defendant’s acts, of access to the river in the manner enjoyed by the owner prior to the construction of the embankment across the water front by the defendant. The plaintiffs cannot be permitted to prove, or allowed to recover, damages that they might have sustained if they had put the property to some other use or placed other structures upon it. Tallman v. The Met. Elevated Railroad Co., 121 N. Y., 119; 30 St. Rep., 491.

The .damages could not be based upon the rental or usable value of the property for a brick yard any more than they could be based upon their use for some other specific or particular purpose to which they were not in fact put by the owners. The question is what damages did the plaintiffs in fact suffer by having the access to the river cut off, not what they might have, suffered had the land been devoted to some particular use to which it was not put.

The proof of damages, on the part of the plaintiffs, consisted entirely of the opinions of witnesses'as to the rental value of the land in the absence of the structure built by defendant. This proof was competent as far as it went, but it did not establish .the legal measure of damages. It should also have been shown what was the rental or usable value of the premises as they were with the obstruction which interfered with the access to the river, as the difference in these two sums represented the actual loss caused by the defendant’s acts. The defendant offered to prove the additional cost of shipping brick to market upon the river rendered necessary by the construction of^the embankment. This testimony was objected to by the plaintiff and excluded by the court, to which the defendant excepted. This ruling was erroneous. The additional expense, caused by defendant’s structure in the river, of transporting brick or any other product of the land to market was an important element of the damage sustained and the defendant should have been permitted to prove the facts in that regard,, at least by way of answers to plaintiffs’ theory of damages. The method adopted of establishing the plaintiffs’ damages, therefore, demands a reversal of the judgment.

The plaintiffs were permitted to recover for more than four years prior to their grant of the land under water, on the 3d of March, 1885. During this period the plaintiffs’ rights-were those-of ordinary riparian owners on the banks of navigable rivers. They owned the uplands, bounded by the river, and as such owners had the right, under the statute, to apply to the commissioners of the land office for a grant of the land under water in front .of their premises. In this respect and on this branch of the case, the facts are identical with those in the case of Gould v. The Hudson River Railroad Co., 6 N. Y., 522. If that case is to be followed.the plaintiff cannot recover any damages prior to March 3, 1885. # -

# It was there held that the owner of lands on the Hudson river has no private right or property in the waters or the shore between; high and low water mark, and, therefore,, is not entitled to compensation from a railroad company, which, in pursuance of a grant from the legislature, constructs a railroad along the shore, between high and low water mark, so as to cut off all communications between the land and the river, otherwise than across the railroad. It is believed that this proposition is not supported by any other judicial decision in the state and if we were dealing with the question now as an original one it would not be difficult to show that the judgment in that case was a departure from precedent and contrary to reason and justice. It is no doubt true that even a single adjudication of this court, upon a question properly before it, is not to be questioned or disregarded except for the most cogent reasons, and then only in a case where it is plain that the judgment was the result of a mistaken view of the condition of the law applicable to the question. But the doctrine of stare decisis', like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the law has been misunderstood or misapplied, or where the former determination is evidently contrary to reason. The authorities are abundant to show that in such cases it is the duty of courts to re-examine the question. Chancellor Kent, commenting upon the rule of stare decisis, said that more than a thousand cases could then be pointed out, in the English and American reports, which had been overruled, doubted or limited in their application.

He added that “ It is probable that the records of many of the courts of this country are replete with hasty and crude decisions, and in such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of error." 1 Kent’s Com. (13th ed.), 477; Broom’s Legal Maxims, 153; Gifford v. Livingston, 2 Denio, 392; Morse v. Goold, 11 N. Y., 281; Judson v. Gray, id., 408.

The Gould case hás been frequently criticized and questioned, and it is believed has never been fully acquiesced in by the courts -or the profession as a decisive authority or a correct exposition of the law respecting the rights of riparian owners. Kane v. N. Y. . R. R. Co., 125 N. Y., 184; 34 St. Rep., 876. The learned judge, who gave the prevailing opinion in the case, assumed as the foundation of his argument that the question was conclusively determined by the supreme court adverse to the plaintiff in Lansing v. Smith, 8 Cowen, 146, subsequently affirmed in the court of errors. 4 Wend., 9. That case grew out of the construction of the canal basin at Albany, a public improvement to promote commerce and navigation, and the question was whether, as against such an improvement, the plaintiff’s right to the use of his dock and water front, as he had enjoyed it before, was exclusive. It may be conceded that the sovereign power in a work for the improvement of the navigation of a public river may incidentally interfere with the enjoyment and use of the water front by riparian owners, bjit the power to grant to a private individual or corporation the right to cut such owner off entirely from communication with the stream without compensation is quite another and different question. There is really no authority in Lansing v. Smith for the support of such a proposition. On the contrary, as was pointed out by Judge Andrews in the Kane case, supra, that question was excluded from the discussion, as the chancellor who delivered the opinion was careful to say, “ whether the legislature could grant the right to any other person to build a wharf in front of the plaintiff so as to destroy his-entirely, is a question which it is not necessary now to discuss.,r It is not necessary to refer at much length to the numerous cases and the abundant learning to be found in the books respecting the rights of riparian owners. The authorities on the general subject are not all in harmony, and we are now concerned with but a single branch of an important and somewhat complicated subject, namely, the right of such owner, as against some other-private interest, to have access to and enjoy the use of the highway.

It may be observed, however, that since the decision of the Gould case in 1852 this question, and questions of a kindred nature, have been elaborately examined, discussed and" settled in this court, in our highest federal tribunal, in the court of last, resort in England, and in the highest court of several of our sister states. The doctrine of that case has been repudiated or ignored in these decisions, and the rights of proprietors of lands upon rivers and public highways determined upon principles more in accord with reason and justice. The long line of decisions in this court from the Story case, 90 N. Y., 122, to the' Kane case, 125 id, 164; 34 St. Rep., 876, hold that an owner of land abutting upon a public street has a property right in such street for the-purposes of access, light and air, and that the state has no power to grant to a railroad the right to occupy the street, when such occupation injuriously affects the enjoyment by the property owner of such rights, except by the exercise of the power of eminent domain, and when a street is thus used by the railroad, without condemnation proceedings or a grant from the property owner, it is responsible to him for any damages resulting- therefrom. Unless there is some distinction to be made between the-rights which pertain to an owner of land upon a public river and. one upon a public street, which is not perceived, then the principles sanctioned by this court, in these cases, virtually overrule-the Gould case as they are apparently irreconcilable.

The question respecting the rights of riparian owners in such a case was determined in the supreme court of the United States in Yates v. Milwaukee, 77 U. S., 497. Mr. Justice Miller in delivering the opinion of the court stated the law clearly as determined by that court “But whether the title of the owner of such a lot. extends beyond the dry land or not, he is certainly entitled to all the rights of a riparian proprietor whose land is bounded by a. navigable stream; and among these rights are access to the navigable part of the river from the- front of his lot, the right to make-a landing, wharf or pier for .his own use, or for the use of the-public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights-of the public, whatever these may be. * * * This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right o£ which, when once vested, the owner can only be deprived in accordance with established law, and If necessary that it be taken, for the public good, upon due compensation.” St. Louis v. Rutz, 138 U. S., 246.

In England it was held quite recently that the owner of an estate on the tide waters of the Thames was entitled to compensation, not only for the land actually taken, under the authority o£ a statute, for the construction of a public road along the shore, which cut off the owner’s access to the river, but also for the permanent damage to the whole estate in consequence of its change by the improvement from river side to road side property, including. his individual and particular right to use the shore of the. river. Buccleuch v. The Metropolitan Board of Works, L. R., 5 E. & I. A., 418. In nearly all of our sister states where the question has arisen the same or substantially similar rules have been adopted. Ashby v.Eastern R. R. Co., 5 Met., 368; Steam Engine Co. v. Steamship Co., 12 R. I., 357; Chapman v. O. & M. R. R. R. Co., 33 Wis., 629; Delaplaine v. C. & N. W. R. R. Co., 42 id., 214; Holton v. Milwaukee, 31 id., 38; Brisbine v. St. Paul R. R. Co., 23 Minn., 114.

The case of Stevens v. The Paterson & Newark R. R. Co., 34 N. J. L., 532, in which a contrary rule was adopted, was decided largely upon the authority of the Gould case and that of Buccleuch v. The Metropolitan Board of Works, L. R., 5 Exch., 221, which, as we have seen, was subsequently reversed in the House-of Lords.. Gould on Waters, § 151.- It must now, we think, be regarded as the law in this state that an owner of land on a public river is entitled to such damages as he may have sustained as-against a railroad company that constructs its road across his water front and deprives him of access to the navigable part of the stream,, unless the owner has granted the right, or it has been obtained by the power of eminent domain. This principle cannot, of course,, be extended so as to interfere with the right-of the state tó improve the navigation of the river or with the power of congress-to regulate commerce under the provisions of the Federal constitution. The plaintiffs were, therefore, entitled to recover such damages as they could prove to have been sustained by them, prior to March 3, 1885, but on account of the erroneous rules adopted for determining the damages, above pointed out, the judgment must be reversed and a new trial granted, costs to abide the-event

All concur.


author: Maynard, J.

text:
    James E. McCabe, Resp’t, v. John T. Goodfellow, Treas., etc., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Associations—Action against—Code Orv. Pro., §§ 1921, 1922, 1923.
    In order to maintain an action against the treasurer of an unincorporated association, of more than seven members, after an execution against the association has been returned unsatisfied, the plaintiff must allege and prove and the court must find that all the members-of the association were liable either jointly or severally to pay the plaintiff the amount of his claim, or the judgment will not stand.
    3. Same.
    A law and order league formed at a public meeting of citizens at which a constitution was adopted and signed, which stated that its object was to assist in enforcing the law, especially as to traffic in intoxicating drinks; the membership of which consisted of all persons who would sign the constitution, having officers, committees, etc., and which raised funds for the prosecution of its work partly by collections at meetings, but mainly by •each subscriber pledging himself to pay a specific sum in such instalments us might be needed to carry on the work, is not such an association as to make its members personally liable - for any debts, such as the services of an attorney in the prosecution of actions, contracted by its officers, beyond what might be necessary for the maintenance of its existence.-
    3. Same.
    Granting that the members of the league had knowledge of plaintiff’s employment by their president or by the genéral executive committee and of the rendition of services, it does not follow that they became personally obligated to pay them.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered on report of referee.

      G. D. Adams, for app’lt; 8. M. Lindsley, for resp’t.

       Reversing 39 St. Rep., 941.

   Maynard, J.

This action must he upheld, if at all, under § 1919 of the Code of Civil Procedure, which provides that an action may be maintained against the president or treasurer of an unincorporated association consisting of seven or more persons, upon any cause of action for which the plaintiff might maintain such an action against all the associates by reason of their liability therefor either jointly or severally. Under the subsequent sections of the Code (1921-1922) the judgment recovered does not bind the property of the officer, and the execution issued must require the sheriff to satisfy it out of any personal property belonging to the association or owned jointly or in common by all the members thereof, but-must omit any direction respecting real property.

Where such an action has been brought, another action for the same cause shall not be brought against the members of the association until the return unsatisfied, wholly or in part, of an execution upon a judgment against the officer. The plaintiff, however, is not bound to sue the officer, for § 1923 provides that he maj', in the first instance, bring his action against all the members of the association. It will thus be seen that the right to maintain the action against the officer is conferred upon the plaintiff for his convenience and in order that he may more speedily reach the personal property of the association for the satisfaction of any judgment which he may recover. But the plaintiff cannot, in any case, maintain such an action against the officer, unless the debt, which he seeks to recover, is one upon which he could maintain an action against all the associates by reason of their liability therefor, either jointly or severally. This, therefore, is the test to be applied in the present case. The plaintiff must allege and prove, and the court must find that all the members of the association were liable, either jointly or severally, to pay the plaintiff the amount of his claim, or the judgment in this action cannot stand.

The defendant was the treasurer of a law and order association organized in and for the town of Kirkland, Oneida county, in December, 1886. It eventually consisted of 270 members, of whom the plaintiff was one. It was formed pursuant to a resolution adopted at a public meeting of citizens, which declared that they voluntarily" associated themselves together for the purpose of forming such a league, the object of which should be to give their personal and united influence, and, if need be, their material aid to assist the town and village officers in enforcing the excise and. corporate laws. A constitution was at the same time adopted, to-which each member subscribed his name, which stated that the object of the league should be to unite, as far as possible, all the orderly and law abiding citizens of the town in giving moral support and aid in all proper ways to the village and town officers-while in the discharge of their official duties, and to see that they were faithful in enforcing all village and town laws, and, especially,, those intended to regulate the traffic in intoxicating drinks; and that the members of the league should consist, first, of all the members of the special or central committee composed of three persons appointed by each church and temperance society in the-town and three members appointed by the league itself, and, second, of all other persons willing to pledge themselves individually by signing the constitution that they will give personal or material aid when needed to make effective the object of the league. A president, two vice-presidents and a secretary were-provided for, whose duties were defined to be the same as of those-chosen in similar associations, and they were to constitute the executive committee of the special or central committee, and also-of the league. Regular meetings of the executive and special committees were to be held on the third Tuesday evening of each month, for the purpose of hearing reports and adopting such measures as their united counsel and wisdom might decide upon as necessary to .carry out the letter and spirit of the league. The-method of raising funds for the prosecution of their work seems-to have been in part by collections at meetings; but mainly by ‘subscriptions to what was known as the guarantee fund, by which each subscriber pledged himself to pay a specific sum in such instalments as might be needed to carry out the work of the enforcement of the excise laws. The plaintiff was one of the-subscribers to this fund, which amounted to over $1,200.00. Whether all of the subscribers were members of the league does not appear.

The plaintiff, who is an attorney, sues for services rendered, as he alleges, in the prosecution of actions for penalties and in other legal proceedings brought and instituted by the association and under an employment by them. The referee has found that the league, through its officers, duly authorized agents and committees, retained him to perform these services and to bring these actions, and that his services were of the value of $1,855, including necessary disbursements; that he has received on account thereof $175, leaving $1,680 due and payable, for which judgment is ordered.

So far as this is to be considered as a finding that the individual members of the league became bound under any agreement, express or implied, to pay plaintiff for his services, we think it is a finding not supported by the evidence. We fail to discover anything in the organization of this association, or in its constitutian, or professed objects, or in the methods which it adopted for the conduct of its affairs, which indicates an intention on the part of these members to become personally bound for any debts contracted by its officers and committees, beyond what might be necessary for the maintenance of its existence. The scheme of its operations seems to have contemplated the raising of money by collections and voluntary subscriptions to be placed at the disposal of its committees for the purpose of defraying any proper expenses which they might incur; and no authority was given to any officer, agent or committee of the association to pledge without limit the personal credit of its members. The transitory character of the organization also renders it improbable that the people who joined it ever intended to authorize the transaction of business upon their individual credit. It was one of those spasmodic, moral movements, which have their origin because of the laxity of the administration of the police regulations of the community and which inevitably subside when the exigency for their creation has ceased, or when the zeal of their members has spent its force. The plaintiff belonged to the order; subscribed to its funds, and must be charged with .full knowledge of its scope and powers. It was not in any sense a partnership.

In Lindley on Partnership, 2nd Am. Ed., 50, it is said : “ It is a mere misuse of words to call such associations partnerships; and if liabilities are to be fastened on any of their members it must "be by reason of the acts of those members themselves, or by reason of the acts of their agents; and the agency must be made out by the person who relies on it, for none is implied by the mere fact of association." In this respect there is a plain distinction between associations formed for the purpose of pecuniary profit and those formed for other objects.

In National Bank v. Van Derwerker, 74 N. Y., 234, the association belonged to the former class and was engaged in a commercial enterprise, and it was shown that the officer contracting the debt had authority to bind its members. Such associations have, in fact, aril the powers and incidents of a partnership, and their transactions are governed by the law relating to such adventures ; but associations formed for moral, benevolent, social or political purposes rest upon a different basis. The" individual liability •of the membei’s for contracts made by the association, or its' officers, or committees, depend upon the application of the principles of the law of agency; and authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact the business, or promote the objects for which the association was formed, except where the debt contracted is necessary for its preservation.

In Flemyng v. Hector, 2 M. & W., 172, the committee had •authority to manage the affairs of the cluband it was held that the members were not individually liable for debts incurred by a committee for work done or goods furnished, as the committee had no authority to pledge the personal credit of the members.

In Todd v. Emly, 7 M. & W., 427, a fund was subscribed to be administered by a committee, and it was held that the authority of the committee was confined to the administration of the fund, and that they were not empowered to deal upon credit except for such articles as it might be immediately necessary for them to have ¡purchased on credit.

So it has been held that the general regulation of a club vesting the conduct of all its concerns in a committee does not "authorize the committee to raise money by debentures, or otherwise to pledge the credit of its members. In re St. James Club, 2 DeG., M. & G., 383. Other English cases to the same effect are Caldicott v. Griffiths, 8 Exch., 898; Wood v. Finch, 2 F. & F., 447; Bailey v. Macaulay, 19 L. J., Q. B., 73. These decisions have been followed by the American cases. Ash v. Guie, 97 Pa. St., 493; Ferris v. Thaw, 5 Mo. App., 279; Richmond v. Judy, 6 id., 465; Devoss v. Gray, 22 Ohio St., 159.

Granting that the members of the league had knowledge of the plaintiff’s employment by their president, or by the general executive committee, and of the rendition of these services, and ratified and approved of his retainer, it does not follow that they became personally obligated to pay them. The record, we think, very clearly shows that they had no reason to suppose that the committee so employed the plaintiff upon their individual credit On the contrary, it fairly appears that they expected that his compensation, as well as the other expenses incurred by the officers and committees, were to be met by the funds voluntarily contributed for that purpose and placed at the disposal of the committees, and that they did not intend there should be any debts contracted in excess of those funds.

The plaintiff, as a member of the organization, must have so understood it. His conversations with the president, and the letters put in evidence upon the subject, all refer to the moneys subscribed or contributed as affording the means out of which lie was to be paid. Having, therefore, failed to establish the liability of his associates for the debt upon which he brought his suit, the plaintiff was not entitled to recover.

The order and j udgment appealed from must be reversed and a new trial granted, with costs to abide the event •

All concur.


author: Gray, J.

text:
    Joseph Bohn et al., App’lts, v. Albert G. Hatch, Resp’t.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Real estate—Equitable bights—How established—License.
    To move a court of equity to support a claim for the improvements put upon the property of another, it should at least appear that the occupants-had acted upon a belief as to their title which had some probable basis, and that the real owners knowing of these acts, suffered them to go on without notifying them.
    2. Same.
    In 1865 plaintiff <B. obtained permission from Jesse Peck, now deceased, to move a small house upon some land proposed to be made by filling in on the bank of a stream. In an action by B. to restrain defendant from removing him and to hav,e his equitable interest adjudged, he testified that Jesse Peck told him to fill up the land and he would give him a portion of it. The record title and ownership were in the sons of Jesse Peck. It did not appear that he had any authority from them to create any interest or rights in or to the premises, or that they knew of or ratified his action. Held, that the claim of plaintiffs had no foundation in facts’ upon which equity could rightly intervene for his protection.
    3. Same.
    The subsequent acceptance of a lease of the premises by plaintiffs was a recognition of the title in the lessor, which, when considered in connection with the absence of any legal title or estate in them, amounted to a Waiver of any claims for improvements.
    4. Same—Code Crv. Peo., § 1638.
    The plaintiffs attempted to found some right upon a tax sale two years prior to the lease. Held, that the certificate received then conferred no title to nor any estate in the premises. Under § 1638 of the Code the possession of the property must be under some claim of title in order to maintain the action and this is not an action authorized by that section.
    Appeal from a judgment of the superior court of Buffalo, general term, affirming judgment in favor of defendant dismissing plaintiffs’ complaint.

      O. C. DeWitt, for app’lts; M L. Parker, for resp’t.

       Affirming 39 St. Rep., 404.

   Gray, J.

This action was brought by plaintiffs to restrain the-defendant from prosecuting in the municipal court of Buffalo proceedings to summarily remove them from premises in their occupation, and to have their equitable interest in and to the same adjudged. Their complaint was dismissed at the trial term of the-superior- court of Buffalo, and the judgment of' dismissal was affirmed upon appeal to the general term. The opinions delivered upon each occasion were very full in their discussion of the questions and leave little for us to say now in further affirmance of the judgment.

In 1865 the plaintiff, Joseph Bohn, obtained permission from Jesse°Peck to move a small house upon some land proposed to-be made by filling.in on the bank of a stream. The allegations of the complaint and the evidence first given by plaintiff placed his entry into possession of the premises upon the ground of a mere license to, occupy them; but, subsequently, he changed his evidence and testified that Jesse Peck told him to fill up the land and that, if he did so, he. would give him a portion of it. The latter aspect of the case for the. plaintiffs would be, of course, the-more favorable one to them; inasmuch as such an agreement with an owner of the land would be based upon some consideration and give strength to the claim of the plaintiffs for equitable relief. But the difficulty in the way of any equitable relief lies in the utter failure of the evidence to prove any title, or sufficient authority, in Jesse Peck. At the time the record title and th ownership of the premises were in Francis and Charles Peck, who were in California. They were sons of Jesse Peck; but it did net appear that he ever had any authority from them to create any interest, or rights in, or to the premises. Mor did it appear that the owners ever knew of plaintiffs’ entry ; or that there was any ratification of what Jesse Peck had done. He is dead, and the extent of any authority in him to deal with the property turns upon evidence of circumstances which fall short of establishing the fact.

Certainly, there was no evidence competent to prove the existence of any power in Jesse Peck to grant any rights in connection with the property in question. With no action by the owners and with no authority in Jesse Peck, who, we may even assume from the evidence, exercised some supervision over the property, I cannot see that the claim of the plaintiffs has any foundation in facts upon which equity can rightly intervene for their protection. The mere assumption of Bohn at the time of his entry that Jesse Peck had .the title to, or some delegated power over, the property, from the circumstances of his taking care of it or from appearances, did not warrant nor protect him in entering upon and occupying the land. Mo property rights can be predicated upon what was mere assumption and which the slightest investigation of title, or of the authority of the presumed agent, would have demonstrated .to be baseless. To move a court of equity to support a claim for the improvements put upon the property of another, it should at least appear that the occupants had acted upon a belief as to their title which had some probable basis; and that the real owners, knowing of their acts, suffered them to go on without notifying them. It further, appears that in 1875, ten years afterward, plaintiff Bohn took a lease in writing of the premises for three years from George DeWitt Clinton, agreeing to pay an annual rental therefor. In a proceeding in the Buffalo municipal court, brought by this defendant and another, as the owners of the property in fee through a conveyance of Clinton’s title, to remove these plaintiffs for default in the payment of rent, a judgment was had, upon issues raised and tried, which established the lease and the lessor’s title. In that proceeding, the tenants, these plaintiffs, by their answer put in issue the. title to and the leasing of the premises, as well as the other allegations of the petition as to their indebtedness for rent and of their holding over after default The final order of the municipal court was, upon appeal to the superior court, affirmed there and the judgment is conclusive upon these‘plaintiffs as to the defendant’s title. They claim the right to attack the validity of the judgment on the ground that the lease was void; but the dispute over the lease and all questions concerning its validity ended, as to these parties, with the termination of the litigation by the judgment of affirmance in the superior court. The adjudication in that litigation has barred any inquiry, in another action between the same parties, into matters involved in and necessarily passed upon by the judgment in the previous action.

These plaintiffs are in no position to assert any title to the land, or to claim payment for. the improvements made upon it In any way their case is regarded, it is defeated for the want of any title or authority in Jesse Peck, through whose acts they claim and the subsequent acceptance of a lease of the premises was a recognition of the title in their lessor, which, when considered in connection with the absence of any legal title or estate in them, I consider to have amounted to a waiver of any claim for improvements.

The appellants attempt to found some right upon a tax sale two years prior to the lease ; but the certificate received then conferred no title to, nor any estate in the premises. There was nothing in that, nor in the existing conditions, upon which to found a claim of adverse possession, which would, as appellants’ counsel' argues, entitle them to maintain this action as against the grantees-of the former owner. Under § 1638 of the Code, to which he refers, the possession of the property must be under some claim of title, in order to maintain the action. This is not an action which that section authorizes.

A careful consideration of this case compels the conclusion that, there is no ground for the award of any equitable relief. To-support a claim for an accounting, in a case where the plaintiffs-have failed to prove any legal inception of their occupation, under some actual, or implied grant of rights from the owner of the property, and where their entry was only under the perjnissioni of one standing in no relation of ownership, or of agency, would be contrary to legal principles and without any precedent that I am referred to, or am aware of.

The judgment appealed from should be affirmed, with costs.

All concur.