text:
    Harmanus Cuddeback, Appellant, v. The President, etc., of the Delaware and Hudson Canal Company, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting:.


source: Caselaw Access Project

author: Pratt, J.;

license: Public Domain

text:
    William H. Ellis, Administrator, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.;

text:
    Dennis Buckley, Jr., Appellant, v. The Gutta Percha and Rubber Manufacturing Company, Respondent.
   —Judgment reversed and new

trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Pratt, J.:

text:
    Robert Corcoran, Respondent, v. The Village of Peekskill, Appellant.
   Judgment and order denying new trial and order granting extra allowance affirmed, with costs. Opinion by

Pratt, J.:

Dykman, J., not sitting.


author: Dykman, J.;

text:
    Mary F. Murtfeldt and others, Appellants, v. The New York, West Shore and Buffalo Railroad Company, Respondents.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Samuel S. Free, Respondent, v. Martha A. Fancher and others, Appellants.
   Order denying motion to resettle case dismissed, without costs. Opinion by

Barnard, P. J.


text:
    Samuel S. Free, Respondent, v. Martha A. Fancher, Appellant.
   Order overruling exceptions denying new trial and directing judgment reversed, and new trial granted; costs to abide event; reference vacated. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    James F. Mooney, Respondent, v. John Loughlin, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


author: Pratt, J.

text:
    Evan Jones, Appellant, v. Henry McCaddin, Jr , Respondent
   —Judgment affirmed, with

costs. Opinion by

Pratt, J.


text:
    The People of the State of New York, Respondent, v. Carl Fuller, Appellant.
   Conviction and judgment affirmed. Opinion by

Barnard, P. J.


text:
    Matter of Staten Island Railroad Company.
   Motion to dismiss appeal denied, without costs.


text:
    Frederic Phannemiller, Respondent, v. Austin Roe, Appellant.
   Judgment affirmed, with costs, Opinion by

Barnard, P. J.


text:
    Elizabeth F. Floyd and another, Respondents, v. Caroline A. Strong and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Emma Sprout, Respondent, v. Franklin Newman, Jr., Appellant. Emma Nearpass and another, Respondents, v. The Same Appellant.
   Judgment against Newman reversed and new trial granted; costs to abide event. Judgment in favor of Bishop affirmed, without costs. Opinion by

Pratt, J.


text:
    In Matter of Application of American Surety Company.
   Order granted.


text:
    Rhoda Freeborn, Administratrix, etc , Appellant, v. William A. Johnston, Respondent.
   Judgment reversed and new trial granted; costs to abide event. Opinion by

Barnard, P. J.


text:
    In the Matter of Haight and others, Respondents, v. The Village of Peekskill, Appellant.
   Order appointing Commissioners, report of same, and order confirming report affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Martha Pyers, Administratrix, etc., Respondent, v. The New York and New England Railroad Company, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Owen Gilmore, Administrator, etc., Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Margaret Grady, v. Henry Prigge.
   Judgment anu order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Augustus R. Griffin, as Receiver, etc., Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Louise U. Skidmore, Appellant, v. William Post, Executor, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    William H. Carr and another, Respondents, v. Sarah A. L. Palmer and others, Appellants.
   Appeal withdrawn.


text:
    The People of the State of New York, Respondent, v. James H. Reilly, Appellant.
   Conviction and judgment affirmed. Opinion by

Pratt, J.


author: P.

text:
    Thomas S. Kelly, an Infant, etc., Respondent, v. The Coney Island and Brooklyn Railroad Company, Appellant.
   Judgment and order denying new trial reversed, and new trial cosis to abide event. Opinion by

P.

Dykman, J., not sitting.


text:
    Catharine E. Lott, Respondent, v. George H. Lott, Appellant.
   Order denying motion to vacate order of arrest affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Pratt, i.

text:
    The People of the State of New York, Respondent, v. Charles H. Rugge, Appellant.
   Conviction and judgment affirmed. Opinion by-

Pratt, i.


text:
    Elnathan Sweet v. Dorelius Morrison.
   Motion, denied. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Sylvester H. Langdon, Respondent, v. Clinton B. Fisk, Appellant.
   Appeal dismissed, unless the papers on the appeal are submitted in twenty days.


text:
    Matter of Pelham Park Railroad.—Elisha Horton, of White Plains; Arthur J. Burns, of Yonkers; Stephen D. Horton, of Peekskill, appointed Commissioners. The People of the State of New York, Respondent, v. William Powers, Appellant.
   Conviction reversed and new trial granted.—

Opinion by

Barnard, P. J.


author: Brown, J.

text:
    Mary V. W. Mills, Respondent, v. James Kerr and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Brown, J.


text:
       William Astor v. The Westchester Gas-Light Company.

       Reported 33 Hun, 333; see, also, erratum same volume.

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

Pratt, J.:

Barnard.P. J., dissenting.


text:
    Catharine Lockwood, Administratrix, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   —Judgment and order refusing to set aside judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Davis, P. J.

text:
    The New England Mutual Life Insurance Company, Respondent, v. Phillipena Keller, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


author: Brady, J.

text:
    George N. Manchester and another, Respondents, v. Philip Braendner, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Daniels, J.;

text:
    Thomas J. Pope and another, Respondents, v. The Terre Haute Car and Manufacturing Company, Appellant.
   —Order and judgment

affirmed. Opinion by

Daniels, J.;

Davis, P. J., dissenting.


text:
    William B. Leonard and others, Appellants, v. John Demerritt, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    James L. Flint Respondent, v. William B. Bacon and others, Appellants.
   Judgment affirmed and new trial denied. Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Henry Eck, Respondent, v. American Female Guardian Society, Appellant.
   Order reversed, writ dismissed and child recommitted to custody of appellant. Opinion by

Daniels, J.;

Brady, J., concurring in result.


text:
    Elias Stone, Appellant, v. Franklin Insurance Company, Respondent.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    Joseph Hillenbrand, Executor, etc., v. Herman B. Lanfer, Respondent, Impleaded, etc , and Morris Pinner, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Brady, J.


text:
    The Colored Home and Hospital, Appellant, v. John McKinn and another, Respondents.
   Order denying motion reversed, and injunction as modified continued, with costs of appeal and disbursements. Opinion by

Davis, P. J.


text:
    Thomas Cockerill v. Peter Loonan.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Daniel J. Stack, Respondent, v. Benjamin P. Fairchild, Executor, Appellant.
   Judgment affirmed, with costs. Opinion by

Davis, P. J.


author: Brady, J.;

text:
    Thomas W. Harris, Assignee, etc , Appellant, v. Lavinia Taylor and others, Respondents.
   Judgment affirmed, with coslb. Opinion by

Brady, J.;

Davis, P. J., concurring in conclusion for affirmance on ihe merits.


text:
    Clarence T. Sandlord, Respondent, v. Louisa Pollock, Appellant.
   Judgment affirmed.

Opinion by

Davis, P. J.


text:
    Margaret Budd, Appellant, v. Stephen A. Walker, Executor, Respondent.
   Judgment reversed; order appealed from affirmed. Opinion by

Brady, J.


author: Daniels, J.

text:
    Charles E. Berger, Respondent, v. The New York and Harlem Railroad Company, Appellant.
   Judgmentand order affirmed. Opinion by

Daniels, J.


text:
    John F. Henry and others, Appellants, v. Edwin J. Dunning, Respondent.
   Judgment and order affirmed, without costs on affirmance of order. Opinion by

Davis, P. J.


author: Davis, P. J.;

text:
    William T. Riggs, Appellant, v. The Cleveland, Youngstown and Pittsburg Railway Company, Respondent (two cases).
   Both orders affirmed, with ten dollars costs in one case and disbursements in both. Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurring in result.


author: Daniels, J., and by Davis, P. J.,

text:
    John Hone, Appellant, v. John W. De Peyster, Respondent.
   Judgment reversed and new trial ordered. Opinions by

Daniels, J., and by Davis, P. J.,

dissenting.


author: Brady and Daniels, J.,

text:
    Hannah Deffendarfar, Appellant, v. George W. Dicks and others, Respondents.
   Judgment affirmed, Without costs. Opinions, by

Brady and Daniels, J.,

and by Davis, P. J., dissenting.


author: Brady. J.

text:
    James Talcott, Respondent, v. Jacob Smith and Michael Smith, Appellant.
   Judgment affirmed, with costs. Opinion by

Brady. J.


text:
       In the Matter of the Application of the New York Cable Railway Company for the Appointment of Commissioners.

       Decided October, 1884.

   Motion granted, and following named Commissioners appointed: Guy R. Pellón, Edward R. Bacon, Leroy B. Crane.


author: Davis, P. J.,

text:
    Ralph L. Anderton, Appellant, v. New York Concert Company, Respondent.
   Order affirmed, with ten dollars cost-5 and disbursements Opinion by

Davis, P. J.,

Brady, J., concurring in result.


text:
    Oakville Company, Appellant, v. Double Pointed Tack Company, Respondent
   —Judgment affirmed, with costs Opinion by

Brady, J.


author: Daniels. J.

text:
    George Goetting, Appellant, v. Matthias Bichler and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Daniels. J.


text:
    William C. Steinkampf, Appellant, v. Peter Ballantine and others, Respondents.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    In the Matter of John Swenarton, Respondent, v. Walter H. Shape, an Attorney, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    William F. Bonynge, Appellant, v. Emily M. Richards and others, Respondents.
   Judgment affirmed. Opinion by

Brady. J.


text:
    Lehigh Valley Coal Company, Respondent, v. Joseph K. Wells, Appellant.
   Judgment roversed and new trial ordered, with co’sts to abide event, unless plaintiff shall stipulate to make deduction of $4.000, and take judgment only for balance, with interest, in which case judgment as reduced affirmed, without costs. Opinion by

Davis, P. J.


text:
    The People of the State of New York, v. Universal Life Insurance Company. (Matter of Henry C. Bowen.)
   Order affirmed, except that portion which relates to value of policies, which is reversed; no costs to either party^ Opinion by

Brady, J.


author: Brady, J., and Davis, P. J.;

text:
    Frank S. Roberts, Appellant, v. Gustavo Oberbeck, Respondent.
   New trial ordered, with costs to' abide the event. Opinions by

Brady, J., and Davis, P. J.;

Daniels, J., concurring in lesult.


text:
    William H. Waring. Respondent, v. Moses Chamberlain, Appellant.
   Judgment and-order affirmed. Opinion by

Davis, P. J.


author: Daniels and Brady, JJ.,

text:
    Eliza B. Anderson, Respondent, v. Continental Life Insurance Company, Appellant.
   Judgment and order affirmed. Opinions by

Daniels and Brady, JJ.,

and by Dayis, P. J.* dissenting.


text:
    Andrew J. Robinson and another, Respondent, v. John B. Thompson, Appellant, Impleaded, etc.
   Judgment affirmed, with liberty to defendants to answer on payment of costs. Opinion by

Brady, J.


text:
    Patrick Ready, Administrator, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.;

Brady, J., dissenting.


text:
    Hannah Nirdlinger and others, Respondents, v. Jacob Nirdlinger and another, Appellants.
   Judgment affirmed, with costs and with leave to defendants to answer over on the usual terms. Opinion by

Davis, P. J.


author: Davie, P. J., and Daniels, J.;

text:
    Mutual Life Insurance Company, Appellant, v. Robert S. Holt and others, Respondents.
   Judgment reversed, new trial ordered, coats to abide event. Opinions by

Davie, P. J., and Daniels, J.;

Brady, J., dissenting.


text:
    Mark L. McDonald, Respondent, v. Edwin Davis, Appellant.
   Judgment affirmed. Opinion by

Davis, P. J.


text:
    William H. Riblet, Appellant, v. Thomas H. Messenger, Respondent.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    The Polar Star Mutual Benefit Association v. Lewis Boniface, Respondent, and John B. Bonfort and others, Appellants.
   Judgment affirmed, with costs and disbursements. Opinion by

Daniels, J.


text:
    The People of the State of New York v. Globe Mutual Life Insurance Company (Matter of Sykes and others).
   Order reversed and order to be entered directing referee to value policies in conformity with opinion, costs and disbursements to receiver. Opinion by

Daniels, J.


text:
    William C. Baur, Appellant, v. John F. Betz, Respondent.
   Order affirmed. Opinion by

Brady, J.


text:
    Daniel R. Lyddy, Respondent, v. Long Island City, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    John A. Kernochan, Respondent, v. Angeline A. Murray and another, Appellants.
   judgment affirmed, Opinion by

Daniels, J.


text:
    James V. Wright, Executor, Respondent, v. Jane Dugan and others, Appellants, Impleaded with Ellen McCann and others, Respondents.
   Judgment affirmed, with costs of the respective parties out of the fund. Opinion by

Davis, P. J.


text:
    The People of the State of New York, Respondent, v. Daniel T. Donovan, Appellant.
   Judgment affirmed. Opinion by

Brady, J.


text:
    The People of the State of New York, Respondent, v. Charles F. Runge and another, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    In the Matter of the Petition of the Receiver of Taxes, Respondent, v. John W. Jones and B. F. Fairchild, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


author: Daniels, J., and by Brady, J.,

text:
    In the Matter of the Probate of the Last Will and Testament of Ellen M. Mallen, Deceased.
   Decree affirmed, with costs. Opinions by

Daniels, J., and by Brady, J.,

dissenting.


text:
    The People of the State of New York, Respondent, v. Guiseppe Pantzza and another, Appellants.
   —Judgment reversed and new trial

granted. Opinion by

Brady, J.


text:
    Edward Wood, Executor, etc., Respondent, v. Karoline Kroll and others, Appellants.
   Judgment reversed and new trial ordered, with costs to abide event, unless plaintiff snail in twenty days after uotice of decision stipulate to deduct amount specified, with interest; if such stipulation be givey, then judgment as so modified affirmed, without costs to either party. Order reversed, with ten dollars costs and disbursements to appellant, unless within period mentioned, plaintiff shall stipulate to deduct fees as stated in opinion from adjusted bill of costs; if such stipulation be served, then order as so modified affirmed,, without costs to either party. Opinion by

Daniels, J.


text:
    Sarah Jane Miller, Respondent, v. Henry J. McGuckin, Executor, and others, Appellants.
   —Judgment modified as directed in opinion.

Order affirmed, without costs to either party. Opinion by

Daniels, J.


text:
    Julius Forstman, Appellant, v. Ruth A. Schulting, Respondent.
   Reargument ordered. Opinion by

Daniels, J.


author: Brady, J., and by Davis, P. J.,

text:
    Henry C. Andrews, Receiver, Appellant, v. George H. Moller and others, Respondents.
   Judgment and order affirmed, with costs. Opinions by

Brady, J., and by Davis, P. J.,

dissenting.


text:
    Germania Life Insurance Company, Plaintiff, v. John Rae and another, Defendants.
   Order modified as directed in opinion, without costs to either party. Opinions by

Brady, J., and by Davis, P. J.,

dissenting.


text:
    Bolton Hall and others, Respondents, v. The United States Reflector Company, Appellant.
   Judgment reversed; new trial ordered; costs to abide event. Opinions by

Daniels, J., and by Davis, P. J.,

dissenting.


text:
    In the Matter of the Attorney General v. North America Life Insurance Company of New York.
   Bill allowed at $238.60.


text:
    The Attorney General v. Continental Life Insurance Company.
   Bills allowed on filing affidavit that none of the services charged are included in any former bills.


text:
    In the Matter of the Application of Charles Denison and others, Stockholders of the Grocers’ Bank of the City of New York, for the appointment of a Receiver.
   Bill allowed at $5,500 and disbursements $348.16.


text:
    The Attorney General v. The Widows and Orphans’ Benefit Life Insurance Company.
   Bills allowed respectively at $335 and $195.


text:
    Charles F. Woerishoffer, Plaintiff, v. North River Construction Company, Defendant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    The People of the State of New York, Respondent, v. Michael Thomas, Appellant.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    John Brooks and another, Respondents, v. William D. Andrews and another, Appellants.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    The People of the State of New York v. The Globe Mutual Life Insurance Company.
   Bill allowed at $1.523.34.


author: Brady and Daniels, JJ.

text:
    William Herring, Appellant, v. New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment affirmed. Opinions . by

Brady and Daniels, JJ.


author: Davis, P. J.

text:
    In the Matter of Edmund Waring and Katharine Secor.
   Order affirmed, with costs of the appeal. Opinion by

Davis, P. J.


text:
    Bernard Reilly, Respondent, v. John Moffatt, Appellant.
   Judgment and order affirmed. Opinion by

Daniels, J.


author: Brady, J.

text:
    Gibbons L Kelty and others, Appellants, v. Zachariah E. Simmons, Respondent.
   Order modified. See opinion of

Brady, J.


text:
    In the Matter of William Tilden, Deceased.
   Motion for reargument denied. Opinion by

Daniels. J.

(See opinion.)


text:
    George W. Venables, Appellant, v. George Sweeley Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William A. Miles, Appellant, v. Goodwillie-Wyman Company, Respondents
   —Order modi-

fied by striking out allowance of fifty dollars, and as modified affirmed, without cost?. Opinion by

Brady, J.


text:
    Broadway Underground Railway Company, Respondents, v. Broadway Underground Connecting Company, Appellants.
   Appeal dismissed, without costs. Opinion by

Davis, P. J.


text:
    Frederick J. Richteis and another, Respondents, v. George M. D. Little and another, Appellants.
   Order reversed, with ten dollars costs and disbursements and order of arrest dis charged. Opinion by

Brady, J.


text:
    William C. Baur and another, Respondents, v. David Meyer, Appellant.
   Order affirmed, without costs. Opinion by

Davis, P. J.


text:
    Henry J. Anderson, Receiver, Appellant, v. Central National Bank, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Adolph Sternfield and others, Respondents, v. Mutual Life Insurance Company, Appellant.
   Order reveled, without costs, motion granted.


text:
    The Attorney General v. Continental Life Insurance Company (claim of Simmons).
   Order affirmed, without costs. Opiniou by

Brady, J.


text:
    Andrew S. Trundy and others, Appellants, v. Samuel Van Wyck and others, Respondents.
   Order reversed, with ten dollars costs and disbursements and injunction continued. Opinion by

Daniels, J.


text:
    Antonio Del Pino, Appellant, v. Ozias Hermance, Respondent.
   Order reversed, with ten dollars costs and disbursements and motion denied. Opinion by

Daniels, J.


author: Davis, P. J,

text:
    George H. Putnam, Respondent, v. Gerald J. Griffin, Appellant.
   Order reversed and motion granted unless the plaintiff within twenty days after notice of the order restore the undertaking, with the consent of the sureties thereto, or file a new one with satisfactory sureties to be approved by a justice of the court, and pay ten dollars costs of this appeal and disbursements. Opinion by

Davis, P. J,


text:
    Sidney H. Yates, Respondent, v. Morris J. Koplik and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements, with leave to defendants to relieve themselves from imprisonment by producing the books within twenty days; order to be settled by Brady, J. Opinion by

Brady, J.


text:
    The People of the State of New York, Respondent, v. Carrie R. Morse, Appellant.
   Judgment affirmed. Opinion b.y

Brady, J.


text:
    George H. Lemist, Appellant, v. William Watson and others, Respondents.
   Motion for new trial denied, and judgment ordered for the defendants on the exceptions.


text:
    Bernard Gutwillig, Respondent, v. Herman Zuberbier and another, Appellants.
   Judg ment reversed, new trial ordered, costs to appellants to abide event. Opinion by

Brady. J.


text:
    Julius Heavenrich and others, Respondents, v. Aaron J. Bloomberg, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    James Rufus Smith, Respondent, v. Edmund Coffin, Jr., Appellant.
   Judgment modified as directed in opinion, and as modified affirmed, without costs of appeal, or of the court below. Opinion by

Brady, J.

Order to be settled by Brady, J.


text:
    Agnes Booth, Respondent, v. Edwin F. Knowles, Appellant.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. Joel W. Hopper, Appellant, v. Stephen B. French and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Alice J. Cunningham, Appellant, v. Green Wright, Respondent.
   Order reversed, with

ten dollars costs and disbursements, and mo- ■ tion for leave to amend complaint granted, without costs.


text:
    John J. Mandeville, Appellant, v. Elias T. Eddy, Respondent.
   Order reversed and motion to rehear granted on conditions set forth in opinion. Opinion by

Brady, J.

Order to be settled by Brady, J.


text:
    Frederick Robinson, Appellant, v. Peter Helferich, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Anna B. Cavarly, Respondent, v. Judson Jarvis, Appellant. Same v. Judson Jarvis and Sarah A. Jarvis Appellants.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    Archibald Watts, Appellant, v. John Paar and another, Respondents.
   Judgment affirmed.


text:
    Wallace Shillito and another, Respondents, v. Emma B. Reineking, Appellant.
   Judgment affirmed.


text:
    Catharine A. Field, Appellant, v. Martin Field, Respondent.
   Judgment affirmed, without costs. Opinion by

Brady, J.


text:
    Stephen Tunstall, Appellant, v. Walter W. Winton, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Mary E. Schneider, Appellant, v. James H. Schneider, Respondent.
   Order reversed, without costs and motion granted so far as to relieve appellants from payment of costs.


text:
    In the Matter of Percy W. Barton.
   —Order reversed and motion granted, without costs.


text:
    In the Matter of Percy W. Barton.
   Order on motion to punish Mrs. Barton lor contempt \reversed, without costs.


text:
    Susan Barton, Plaintiff, v. Horace W. Barton, Defendant.
   Order reversed, without costs.


author: Daniels, J.;

text:
    Otto Stietz N. Y. Glass Letter Company, Respondent, v. Gustav G. Wolfram and others, Appellants.
   Order modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.;

order to be settled by Daniels, J.


author: Per Curiam

text:
    The People of the State of New York ex rel. Thomas Byrnes, v. Stephen B. French and others
   —Order affirmed, without costs. Opin-

ion

Per Curiam


text:
    James E. Hyde, Appellant, v. Frederick J. Bird, Respondent.
   Judgment affirmed.


text:
    In the Matter of James B. Brady.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Margaret Budd, Appellant, v. Stephen A. Walker, as Executor, Respondent.
   Order reversed, without costs ; motion denied.


text:
    Andrew J. Crofut v. Morris Woolf and others.
   Order affirmed, with ten dollars costs and disbuisements.


text:
    Mary C. Morrell, Respondent, v. James A. Morrell, Appellant
   Order affirmed, with ten dol-

lars costs and disbursements.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Thomas O’Loughlin, Appellant.
   Judgment and conviction affirmed. Opinion

Per Curiam.


text:
    William S. Darling, Respondent, v. Henry C. Brown, Appellant.
   Order reversed and amendment allowed on payment of ten dollars costs of opposing motion, to be offset against ten dollars costs of this appeal.


author: Daniels, J., and Davis, P. J.

text:
    In the Matter of Laying out Public Parks, etc.
   Application denied, without costs. Opinions by

Daniels, J., and Davis, P. J.


text:
    George W. Bassett, Respondent, v. William G. Dean, Appellant.
   Motion for reargument denied, without costs.


text:
    Margaretha Pfeffele v. Second Avenue Railroad Company.
   Motion for reargument denied, without costs.


text:
    Nathan Boehm, Respondent, v. Adler Distilling Company, Appellant.
   Motion for reargument denied, without costs. Opinion

Per Curiam.


text:
    The People of the State of New York v. North America Life Insurance Company (Matter of Van Sinderen).
   Balance for services and disbursements allowed at $1,586.67.


text:
    Frederick Reck v. Phœnix Insurance Company.
   Motion denied.


text:
    In the Matter of the New York Insurance Company.
   Account of John Berry for services allowed at $250.


text:
    Charles Rayher v. Wilhelmina Sparman.
   Motion denied. Mem.

Per Curiam.


text:
    The People of the State of New York ex rel. Joel W. Mason v. John McClave.
   Judgment ordered for Defendant. Opinion

Per Curiam.


text:
    Thomas Cockerill, Respondent, v. Peter Loonan, Appellant.
   Re-submission granted. See memorandum.


author: Learned, P. J.

text:
    Frances L. Haight, Appellant, v. The Board of Supervisors of Saratoga County, Respondent. Mary J. Parker and James McKain as Administrators, etc., of Hiram Parker, Deceased, Respondents, v. The Same. Margaret M. Powell, Administratrix, etc., of Frederick T. Powell, Deceased, Appellant, v. The Same. William V. Clarke, Appellant, v. The Same. The First National Bank of Ballston Spa, Appellant, v. The Same.
   Judgment in each case affirmed, with costs on opinion of court below. Mem. by

Learned, P. J.


text:
    Nathan Seeley, as Administrator, etc., of Minerva Seeley, Deceased, Respondent, v. The Board of Supervisors of Saratoga County, Appellant.
   Judgment affirmed, with costs, on opinion below. Mem. by

Learned, P. J.


text:
    Anna Van Hoesen and others, Appellants, v. Abram Van Buren and others, Respondents.
   Judgment affirmed, with costs.


text:
    Garret M. Clute, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment reversed, referee discharged, new' trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Fish, J.

text:
    John F. Holcombe, Respondent, v. Kneeland J. Munson and Fitch Landon, Appellants.
   Judgment reversed, new-trial granted, referee discharged, costs to abide event. Opinion by

Fish, J.


author: Learned, P. J.;

text:
    Rhoda Lawrence, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Fish, J., dissenting.


text:
    In the Matter of the Attorney General v. The Atlantic Mutual Life Insurance Company.
   Matter of surplus money order affirmed, with ten dollars coats and printing disbursements. Opinion, by

Learned, P. J.

Landon, J., not acting.


text:
    Application of County Treasurer of St. Lawrence County for Leave to Deposit.
   Denied.


text:
    John D. McKinlay and others, Respondents, v. George Fowler and others Appellants.
   Order reversed, with ten dollars costs and printing disbursements, and attachment vacated, with ten dollars costs. Opinion by

Learned, P. J.


author: Landon, J.

text:
    Luke B. Roosa, plaintiff, v. Charles W. Deyo, Defendant.
   Order affirmed, wdtli ten dollars costs and printing disbursements. Opinion by

Landon, J.


author: Learned, P J.

text:
    Charles Furman and others, Respondents, v. Felix Cunningham, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P J.


author: Loarned. P. J.

text:
    John Hayes, Respondent, v. Charles McClellan, Appellant.
   Order reversed, without costs. Mem. by

Loarned. P. J.


text:
    Samuel D. Coykendall and Jacob H. Tremper, Respondents, v. William Voorhis and Thomas Magee, Appellants, Imploaded, etc.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Bockes. J.

text:
    Harriet H. Armstrong Respondent, v. Thomas Armstrong, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Bockes. J.


author: Bockes, J.

text:
    Anna Maria Fishman, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Motion ior new trial denied and iudgment for plaintiff on the verdict. Opinion by

Bockes, J.


text:
    David Dales, Respondent, v. Mary Truesdell, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


text:
    De Witt C. Sprott, Appellant, v. George H. Leggett and John W. Bush, Respondents.
   Ordet reversed, with ten dollars costs and printing disbursements, and motion denied, ten dollars-costs of motion to abide event.


author:
Folleto,- J.:
      Hardin, J.:

text:
    THE TOWN OF SOLON, Respondent, v. THE WILLIAMSBURGH SAVINGS BANK, Appellant.

      Town bonds — when the petition is sufficient to give jurisdiction to the county judge — order for notice of hearing — it need not be in writing — taxable property, how determined — the bonds a/i'e not invalidated by the omission of seals — effect of the unauthorized affixing of a seed afte/r their delivery — what facts estop the town from disputing the validity of the bonds.

    July 2,1870, a petition was filed, under the general bonding act (1869, chap. 907), with a county judge, containing the following recital: “ The undersigned, representing a majority of the tax-payers of the town of Solon * * * and owning or representing a majority of the taxable property in the corporate limits of said town.” It was verified by one of the petitioners in an affidavit, which stated “that the persons signing said petition are a majority of the taxpayers, whose names appear on the last preceding tax list and assessment-roll in said town.” * * *

      Veld, that the petition and the verifying affidavit were to be construed together, and that, as so construed, the petition sufficiently alleged that the persons sign ing the petition were a majority of the tax-payers of the town, to confer upon the county judge jurisdiction to ascertain and determine that fact.
    The act provided that upon the filing of the petition, it should he “the duty of the county judge to order that a notice shall he forthwith published.”

      Held, that it was not necessary that the'order should he in writing, or that it should be entered, or that the order and the notice should be contained in separate instruments; that it was only necessary to prove that an order was in fact made.
    That the limitation imposed by the act, that the amount of the bonds issued should not exceed twenty per cent of the whole amount of taxable property as shown by the tax list and assessment-roll, referred to the amount appearing upon the roll signed by the assessors, and not the amount as equalized by the board of supervisors.
    The fourth section of the act made it the duty of the commissioners “to cause to be made and executed the bonds of sucb municipal corporation, attested by the seal of sucb corporation affixed thereto, if such corporation lias a common seal, and if not then by their individual seals.” The town bad no seal. The bonds issued by the commissioners recited that they had “set their bands and seals ” thereto, but in fact no seals were'affixed, although the letters [l. s.] were printed opposite to each of the signatures.

      Held, that the omission of the seals did not invalidate the bonds.
    After the bonds bad been issued, and before they came into the possession of the defendant, some person placed seals upon the bonds opposite to the several signatures. The defendant bought the bonds in good faith, and without notice that they bad been so altered.

      Held, that the unauthorized addition of the seals did not justify an action by the town to have the bonds so purchased by the defendant canceled and surrendered.
    That the fact that after the bonds bad been issued a portion of them were returned to the commissioners, who canceled the same and issued in place thereof new bonds,payable at a place other than that named in the first bonds, did not authorize a judgment directing that such new bonds be surrendered and canceled.
    That the facts that from 1871 to 1877 the commissioners had, annually, requested the board of supervisors to levy and collect an amount sufficient to pay the interest on the bonds, and that from 1873 to 1877 the supervisor of the town had made a like request, and that the said taxes had been collected and the interest paid, estopped the town from maintaining this action. (Hardin, P. J., not concurring.)
    Appeal from a judgment in favor of tlie plaintiff, entered upon the trial of this action by the court without a jury.
    July 2, 1870, certain tax-payers of the town of Solon filed with the county judge of Cortland county a petition, under chapter 907, Laws 1869 (the General Bonding Act), the first paragraph of which reads as follows :

      “ To the honorable the county judge of Cortland cotmty:

      “ The undersigned, representing a majority of the tax-payers of the town of Solon, in said county of Cortland, whose names appear upon the last preceding tax list or assessment-roll of said town (being the tax list or assessment-roll for the year 1869), and owning or representing a majority of the taxable property in the corporate limits of said town.”
    The petition concludes with a prayer for an adjudication authorizing tlie town to issue bonds for $44,800, in aid of the construction of the Utica, Chenango and Cortland railroad. The petition was verified July 2, 1870, by one of the petitioners. The verifying' affidavit states, among other things, “ that the persons signing said petition are a majority of the tax-payers whose names appear upon the last preceding tax list and assessment-roll in said town, and that they own and represent a majority of the taxable property in the corporate limits of the town of Solon, and that the matters set forth in said petition are true.” The whole of the petition did not appear in the case, the names of the petitioners being omitted, though the case stated that it contains “ all the testimony taken on the trial.”
    ■ On the same day, July 2, 1870, the county judge signed a notice addressed “ To whom it may concern,” reciting the substance of the petition, and stating: “Now, therefore, pursuant to an order this day duly made by the undersigned, as county judge of Cortland county, upon presentation of said petition, notice is hereby given that the undersigned, as such county judge, will, on the 16th day of July, 1870, at two o’clock in the afternoon of that day, at the court-house in Cortland village, in said county, proceed to take proof of the allegations in said petition,” etc. The notice was duly published.
    July 16,1870, the county judge made an adjudication authorizing the town to issue bonds for $44,800, and appointed three commissioners. The adjudication recited the filing of the petition, and stated: “Whereupon the said county judge, on said 2d day of July, 1870, pursuant to the statute, duly made an order that a notice should be forthwith published,” etc.
    July 30, 1870, the commissioners duly took their oaths of office, and on the same day subscribed for $44,800 of the stock of said railroad company, and thereafter issued bonds for that amount, dated September 1, 1870, and payable September 1, 1900, with semi-annual interest at seven per' cent.
    The bonds were delivered to'the railroad company in payment for stock, as follows:
    November 13, 1870, Nos. 1 to 30inclusive, $100 each.... $3>000
    November 15, 1870, Nos. 1 to 3 inclusive, $500 each.... 1>500
    July 12, 1871, Nos. 31 to 38 inclusive, $100 each........ 800

      July 16, 1871, No. 4................................ $500
    July 31, 1872, Nos. 39 to 258 inclusive, $100 each...... 22>000
    July 3,1, 1872, Nos. 5 to 38 inclusive, $500 each........ 17, 000
    $44, 800
    The coupons which had matured prior to the dates of the delivery of the bonds were, before delivery, detached and destroyed by the commissioners.
    In 1869 the property within the town was assessed at $225,300, as appears by the assessment-roll verified and filed by the assessors for that year. The board of supervisors, in equalizing the assessments of the various towns, fixed the equalized value at $214,327. The bonds authorized to be issued, and issued, were less than twenty per cent of the assessed value, as shown by the assessment-roll; but were more than twenty per cent of the value as equalized by the boárd of supervisors.
    The bonds first issued and delivered were payable at the office of the supervisor of the town. The railroad company being unable to realize on the bonds payable at the office of the supervisor, returned, October 14, 1872, $24,000 of the bonds, which the commissioners canceled; and on the same day issued in lieu thereof forty-eight bonds for $500 each, numbered 6 to 53 inclusive, and payable at the National Park Bank at the city of New York.
    The obligations were in the usual form of municipal bonds, and concluded as follows: “ In witness whereof the within named commissioners, duly appointed under and by virtue of and for the purposes of said act, have caused this bond to be made and executed, and have set their hands and seals hereto, this first day of September, in the year one thousand eight hundred and seventy.
    “LYMAN PECK, Jr., [l. s.]
    “ ORIN RANDALL, [n. s.]
    “JOHN T. BUTMAN, [n. s.]
    “ Commissioners

    The town had no common seal. The commissioners did not affix their individual seals, but signed at the left of, and opposite to the letters “ L. S.” printed within scrolls; and so issued the bonds and delivered them to the railroad company in payment of the subscription of the town for the stock of the company. The railroad company disposed of the bonds in the city of New York. In September, 1875, defendant purchased thirty-two of the $500 bonds (being part of those delivered October 14, 1872) in good faith, paying' therefor ninety-five cents on the dollar of their face value, and has ever since held them. At the time they were purchased by the defendant, common-law seals were affixed to the signature of each commissioner, but by whom is unknown. The court finds that they were affixed by some former owner. All of the coupons upon the bonds which fell due prior to March 1, 1878, were paid from taxes levied and collected pursuant to the bonding act, but those maturing on and since that date have not been paid.
    A certificate for the stock subscribed and paid for has not been issued by the railroad company to the town, but the town has been recognized as a stockholder, and its commissioners have acted and voted in the stockholders’ meetings of the railroad company. No proceedings have been taken to review or set aside the adjudication of the county judge. This defendant has never sued or threatened to sue the town.
    This action was brought to compel the defendant to surrender its bonds to the plaintiff for cancellation, upon the ground that they are void, because,
    1. The county judge did not acquire jurisdiction to make the adjudication.
    2. The bonds were not sealed.'
    3. They were altered after their execution and delivery, by affixing common-law seals without the authority of the town or its commissioners. ‘
    4. The bonds were payable within less than thirty years from the dates'when they were delivered.
    5. The commissioners having issued the total amount directed by the adjudication, they were without power to cancel the bonds and reissue a like amount, which reissue embraced the bonds in suit.
    6: The bonds exceeded twenty per cent of the tax-roll of 1869, as equalized as between the towns of the county by the board of supervisors, though not exceeding twenty per cent of the assessment-roll of that year.
    The Special Term held that the first, fifth and sixth defenses were not tenable, but that the second, third and fourth were, and ordered a judgment to be entered directing the defendant to surrender its bonds for cancellation. Judgment was entered, from which the defendant appeals.

      Isaac 6'. Newton and Edward B. Thomas, for the appellant.

      J. McGwire, for the respondent.
   Folleto,- J.:

' The respondent urges in support of the judgment all of the grounds above stated except the sixth, which was not argued and is not referred to in its brief.

The provisions of the general bonding act, so far as it relates to the power to bond, and the mode in which the power is to be executed, are divisible into two classes. The first class prescribes the conditions or facts which must exist before a town ca,n borrow money for investment in the stock or bonds of a railroad coloration, and the procedure by which those conditions or facts are to be ascertained and authenticated. The second class prescribes the mode by which, and the form in which the evidences of indebtedness for the money borrowed are to be issued.

One of the facts which must exist, is the consent of a majority of the tax-payers of the town representing a majority of the taxable property of the town, as shown by the last preceding tax list or assessment-roll; that the town issue its bonds to an amount named in the petition, not exceeding twenty per cent of the taxable property, as shown by said assessment-roll, and invest the proceeds in the stock or bonds (as said petition may direct) of the railroad company named in the petition. Whether this fa<?t exists, is to be determined by the county' judge by a procedure specified by the act, which determination has the same force and effect as other judgments and records in the courts of record in this State. This fact has been determined in respect to the town of Solon by the county judge of Cortland county; the determination has been entered of record, and the bonds issued.

The town seeks to have these bonds canceled upon the ground that the county judge did not acquire jurisdiction to make the determination, because:

1. The petition upon which he proceeded states, “the undersigned, representing a majority of the taxpayers, etc.,” instead of “the undersigned, a majority of the taxpayers, etc.,” desire the town to issue its bonds to the amount and for the purpose named in the petition.

2. The county judge did not make and enter in the clerk’s office a written order directing the publication of a notice that on a day named he would proceed to take proof of the facts set forth in the petition.

It is conceded that under the Constitution the legislature had power to pass this act, -and like all statutes constitutionally passed it should receive a reasonable construction; one, at least, which, though not promoting, will not inevitably defeat the attainment of the end which the legislature and the people at the time, thought it wise to authorize.

The statute confers jurisdiction upon the county judges to determine whether or not a town shall be authorized to create a debt for the purpose of aiding in the construction of a railroad, and prescribes the mode in which the determination is to be made, which is in the nature of a proceeding in rem. The proceedings must be initiated by a petition filed, which must assert that the petitioners are a majority of the tax-payers of the town, representing a majority of the taxable property thereof, which must be verified.

We think the petition asserts this fact in legal effect, though not in the precise words of the statute.

The term, “representing,” in the petition, in connection with such portions of the petition as are before us, fairly construed, means, that the undersigned stand for, or are, a majority of the tax-payers of the town. That the signatures hereunder written personally represent a majority of such tax-payers. It cannot be construed, as is contended, to mean that the undersigned represent as agent, or otherwise, a majority of the tax-payers. Nothing of the kind is said or is inferable from the language used. The affidavit of the verifying tax-payer stated “that the petitioners were a majority of the tax-payers of said town.” The petition and the verification together constituted the petition as presented to the county judge, and upon which he acted. The petition and .the accompanying affidavit must he read and construed together. ( Whiting v. The Town of Potter, 18 Blatchf., 165.) The whole of the petition is •not contained in the case, and we cannot, for the purpose of overthrowing the decision of the Special Term upon this question, or the jurisdiction of the county judge, assume that the signatures did not purport tó have been made, or were not, in fact, made by the petitioning tax-payers in person.

The Court of Appeals has held that the procedure prescribed by the statute must be strictly pursued to enable a town to create a debt for this purpose; but no court has yet held that the copnty judge does not acquire jurisdiction in case the petition is not in the precise words of the statute; that a word, or a punctuation mark added or omitted, though not affecting the sense, is fatal.

It has been argued that the county judge does not acquire jurisdiction to proceed with his inquiry unless a majority of the taxpayers, representing a majority of the taxable property, join in the petition before it is filed with the county judge; and that this fact must affirmatively appear. It is paradoxical to say that the jurisdiction of the county judge, to inquire and determine whether a majority of the tax-payers representing a majority of the taxable property have signed, depends upon the existence of the very fact which he is directed to determine the existence of. When a petition is filed asserting the jurisdictional fact, the county judge has jurisdiction to proceed, and must proceed with the inquiry.

His adjudication is based upon the signatures to the petition and upon the consents of the tax-payers, given during the pendency of the proceedings before him, and if, at the close of the proceedings, a majority of the tax-payers representing a majority of the taxable property have consented, he is to so adjudge and appoint commissioners. If a majority have not consented, he is to so adjudge. His adjudication is based upon the facts as they then exist, and the statute makes it final unless it is overthrown upon certiorari.

The court finds that the statutory notice published, was dated and signed by the county judge, July 2, 18J0, and recited that it was published pursuant to an order made that day, but that the order was an oral one, and that a written order was not made or entered, other than as one is inferable from the notice. The statute does not prescribe the form or contents of the order, that it shall be in writing, or that it shall be entered. “ It shall be the duty of said county judge to order that a notice shall be forthwith published in some newspaper in such county, etc.” (Sec. 1, chap. 907, Laws, 1869.) This was done, as is found by the court, and written evidence that the order was made is contained in the notice signed by the judge, and also in the judgment entered. The statute does not require the order -and notice to be separate instruments. ITad the document read : It is ordered that the following notice be published, and concluded with a notice signed by the judge, its sufficiency would hardly be questioned, but it would not have been more potent nor would it have afforded better record evidence of the existence of the order than is furnished by the present record. The county judge gave the notice required by the statute, and it is hypercritical to say that his act is void, because he did not by a formal written order ,entered, direct himself to do that which it wras his duty to do, and just what he actually did do.

The county judge acquired jurisdiction to adjudge that a majority of the tax-payers representing a majority of the taxable property had consented to the creation of this debt, and to appoint commissioners to caTry the judgment into effect.

In 1869, the assessed valuation of the property in the town of Solon was $225,300. The bonds authorized to be issued, and issued, were less than twenty per cent of this amount, but the value of the property assessed in the town for that year, as equalized by the board of supervisors, was $213,333, and the amount of bonds authorized, and issued, exceeded twenty per cent of the equalized valuation. The term “ assessment-roll,” has been several ti'meá defined to mean the list or roll of taxable property and persons, completed, verified and deposited by the assessors with the town clerk, as required by the statutes. (Mygatt v. Washburn, 15 N. Y., 316 ; Clark v. Norton, 49 id., 243 ; People ex rel. Gillies v. Suffern, 68 id., 321; People ex rel. Chamberlain v. Forrest, 96 id., 544.)

Words and terms having a precise and well settled meaning in the jurisprudence of a country are to be understood in the same sense when used in its statutes; unless a different meaning is unmistakably intended. (McCool v. Smith, 1 Black, 459; Stephenson v. Nigginson, 3 H. L. Cas., 638.) This point was not argued, and does not seem to be relied upon by the respondent upon this* appeal, and need not be further considered.

By these proceedings and the adjudication, the status of the town •was changed ; it had been incompetent, but was now' competent to create a debt for the purpose named, and it stands in the same position in respect to its debt and creditors, that any municipal corporation stands in respect to a debt which it may create. The town purchased stock in the railroad corporation to the amount authorized, and paid for it in bonds, or, in other words, it created a debt for a lawful purpose and issued its promises to pay, which for a time it faithfully kept, but now seeks to repudiate. The only remaining questions are whether the commissioners so far deviated from, or exceeded their statutory powers, in carrying the will of the town and the judgment of the court into effect, as to entitle the town to repudiate its debt and compel the innocent holders of its bonds to surrender them for cancellation.

Can this action be maintained on the ground that the commissioners did not affix the “ common seal ” of the town, or “ their individual seals ” to the bonds as directed by the fourth section of the act ? The end to be attained by the proceedings before the county judge, was to enable the town to borrow money on its credit, and invest it in the stock of the railroad company, and thus aid in the construction of the road. The money was borrowed, the stock subscribed and paid for, and the end attained.

It is contended, in behalf of the town, that it can repudiate its obligations to pay the money borrowed, and compel, through the aid of a court of equity, the holders of its obligations to surrender them for cancellation because its commissioners failed to execute its obligations in the precise mode directed by the statute. In other words, the town seeks this relief, mot because of any wrong perpetrated, or attempted by the defendant, but because of a mistake made by the commissioners of the town. This question has no ■connection with the proceedings instituted and carried on, to authorize the town to raise money for this purpose, and must be considered entirely apart from all questions arising out of the initiatory proceedings carried on before the county judge, and upon the theory that the commissioners were authorized to borrow money upon the •credit of the town, and invest it in the stock of the railroad. ■Chapter 311, Laws 1869,_ authorized the town of Springport to borrow money on its bonds,' and take stock in the Cayuga Lake Railroad Company. The town commissioners were authorized “ to execute bonds therefor under their hands and seals.” The town had no seal. The money was borrowed and bonds were issued therefor without seals. It was held, in an action brought on the coupons, that this provision was merely directory, and that the bonds were valid notwithstanding the omission of the seals. (Draper v. Springport, 104 U. S., 501.)

Town of Springport v. Teutonia Savings Bank (75 N. Y., 397) was an action in equity by tiie town to set aside the bonds, issued under the statute referred to, upon the ground, among others, that the bonds were not sealed, as required by the statute.

In discussing this question the court, by Rapallo, J., said at page 408: “ I have not discussed the point made by the appellant’s eounsel in regard to the defect in the execution of the bonds, which consists in the omission of the commissioners to affix a seal to the signatures, as directed in the act. -The omission cannot have produced any injury to.the rights of the town, and the direction to affix seals was not intended for its benefit, but for the benefit of the lender of the money. I do not regard the point made in respect to it as one which addresses itself with much force to a court of equity, as a ground for exercising its discretionary power to decree the cancellation of a security upon which an innocent party has advanced money. I should be inclined if there wei-e no more equitable defense than this, at least to leave the town to its legal defense on this ground. But we have considered it unnecessary to pass upon that point, as a substantial defense to the bonds' appears, which is quite sufficient to sustain that branch of plaintiff’s case.”

Avery v. Springport (14 Blatchf., 272) arose over the same issue of bonds, in which it was held that the omission of the seals invalidated the bonds. This case, though not cited in Draper v. Springport (supra), is in effect overruled by it.

The commissioners of the town of Yates issued bonds, without seals, under chapter 811, Laws of 1868, as amended by chapter 241, Laws 1869, which authorized the commissioners to borrow money il and to execute bonds therefor under their hands and seals respectively.” The money was borrowed and invested in the stock of a railroad corporation. The bonds given for the money recited, as in the case at bar, that they were issued under the hands and seals of the comuTissioners. In an action on the coupons, it was held that the bonds were valid, notwithstanding the omission of the seals. (Phelps v. Town of Yates, 16 Blatchf., 192.)

We are unable to discover an}' difference in principle between the statutes cited in the foregoing cases and the one under consideration, or between the cases cited and the one at bar.

By a statute of the State of Texas, the city of San Antonio was authorized to borrow money on bonds and subscribe and pay for stock in a railroad corporation. The twelfth section of the act provided that the officers, whose duty it was to carry out the law. may issue bonds bearing interest, or otherwise pledge the faith of the city.” Obligations were issued in the form of bonds, but not under seal, and for this reason it was held that the obligations were not bonds. (San Antonio v. Mehaffy, 96 U. S., 315.)

The word “ bond ” ex vi terrrii/ni, imports a sealed instrument. (Cantey v. Duren. Harp. [S. Car.], 434 ; Taylor v. Glaser, 2 Serg. & R. [Pa.], 502 ; Denton v. Adams, 6 Vt., 40; Deming v. Bullitt, 1 Blackf., 241; Skinner v. McCarty, 2 Port. [Ala.], 19 ; Harman v. Harman, 1 Baldw., 129; U. S. v. Stephenson, 1 McLean, 462; Board of Education v. Fonda, 77 N. Y., 355.) The Supreme Court of the United States (San Antonio v. Mehaffy, 96 U. S., 315), in considering the validity of the San Antonio obligations, said: “ The securities issued were within the latter category. If that clause were wanting, we should have no difficulty in holding-that the city was, under the circumstances, estopped from denying-their validity. The doctrine of ultra vires, whether invoked for or against a corporation, 'is not favored in the law. It should never be applied where it will defeat the ends of justice if such a result can be avoided.” (Whitney Arms Co. v. Barlow, 63 N. Y., 62.)

In Wadsworth v. Wendell, a soldier was entitled to lot 7 in Solon. Before he received his patent from the State, he conveyed to the plaintiff his title and interest in the lot by an instrument, in form, a deed, with a covenant for further assurance. The deed was -not sealed, but eoncluddd : “ In witness whereof, I have hereunto set my hand and seal.” After the patent was issued, the soldier conveyed the lot to the defendant’s grantor by an instrument under seal. The plaintiff brought ejectment and was defeated. (12 Johns., 355.) The plaintiff then brought an action in equity to •compel the defendant to convey the land to the plaintiff. The plaintiff’s unsealed deed was held todbe a good conveyance in equity, and the defendant was compelled to convey the lot to the plaintiff. (S. C., 5 Johns. Ch., 224.) If equity will aid a party to acquire his rights under an instrument so executed and void at law, a court of equity will not order an instrument so executed to be surrendered for cancellation.

The cases are very numerous in which obligations in the form of bonds, without seals, have been held valid when executed by or to public officers or municipal corporations, under statutes requiring the bonds to be under seal, and but two or three eases need be cited: Kelly v. McCormick (28 N. Y., 318); Board of Education v. Fonda (77 id., 350); United States v. Linn (15 Peters, 290); Whitney v. Coleman (9 Daly, 238).

When bonds are authorized by .statutes which prescribe their conditions and mode of execution, instruments departing from the prescribed conditions, but effecting substantially the end sought to be attained, have uniformly been held good when freely and fairly entered into. The commissioners of .the towns of Yenice and Genoa were authorized to issue “ bonds ” in aid of a railroad corporation, but the act did not prescribe whether with or without seals. They were issued without seals. The Supreme Court and Court of Appeals, recognizing the rule that the term “ bond ” implied an instrument under seal, held the unsealed bonds valid. (Gould v. Venice, 29 Barb., 442; People ex rel. Fiedler v. Mead, 24 N. Y., 114.) The bonds in controversy are not invalid because not sealed.

The court finds that the seals were affixed before the bonds were purchased by the defendant, by some previous owner, without the consent or authority of the commissioners. It is urged that the bonds being negotiable and purporting on their face to have been issued under seal, that any owner was authorized to affix the seals. Without' stopping to consider this question, we think this action cannot be maintained because the seals were affixed in the manner found by the court. The court does not find that the seals were affixed with a fraudrdent intent, and there is no evidence in the case to warrant such a finding.

“ Sometimes 'an alteration in a note, seemingly material, and such as ma g prima facie render it void, is innocent and does not vitiate the instrument. So it is when it is done to correct a mistake in penning the note, or to make it express the real bargain of the parties, or to give the proper legal form to their contract. In such case the payee has a right to enforce it. Again, if the alteration was made without fraudulent intention, the payee may resort to the original indebtedness, if that was independent of the note and has not been discharged by the execution of it, and pursue the maker upon that. (Clute v. Small, 17 Wend., 238; Meyer v. Huncke, 55 N. Y., 412.) But to have such resort he must be able to produce and surrender the note. Hence its real value is not destroyed by the alteration. Its worth is as much as the original independent indebtedness was worth at the time of the conversion.” (Booth v. Powers, 56 N. Y., 31.)

It is difficult to see how the addition of the seals altered, in any material respect, the obligation of the town, and unless the legal effect of tiie obligations'were changed, the alteration (if it be such) was an immaterial one. (Casoni v. Jerome, 58 N. Y., 318 ; Waugh v. Bussell, 5 Taunt., 707; People v. Muzzy, 1 Denio, 239 ; Kinney v. Schmitt, 12 Hun, 521.) Again, when the maker of a negotiable instrument puts it forth in a condition so that an alteration can be made without defacing it or exciting the suspicions of a prudent' man, the maker is estopped from urging the alteration as a defense as against a bona fide holder. (Redlich v. Doll, 54 N. Y., 234; 2 Daniels on Neg. Inst., 377.) These obligations were put forth in a condition which permitted the seals to be affixed without affording the slightest ground for suspicion on the part of the most prudent purchaser that they were not in the same condition as when issued. The fact that the bonds become due within less than thirty years from the date of their delivery is not a sufficient reason for their cancellation. The bonds are dated September 1, 1870, and are payable thirty years from their date, with semi-annual interest, as prescribed by the statute. The road at this time was in process of construction. By chapter 507, Laws 1870, the commissioners were authorized to deliver the bonds from time to time as might be agreed upon between them and the railroad company. It was not intended that the bonds should he dated at the time of their delivery. Such a construction would, require the bonds to be payable at different dates. Potter v. Greenwich (26 Hun, 326; affirmed, 92 N. Y., 662), is not in point. In that case the bonds were payable on their face twenty years from date. The action was by the holder to compel a reformation of the bonds, upon the ground that there was a mutual mistake, and it was held that there was no mistake. The fact that the bonds in suit are substitutes for prior bonds to a like amount, and were substituted for the reason and in the manner described in the statement of facts, is not a ground for their cancellation. Even though the bonds could not for this reason be enforced in an action at law the town would have no right to compel their surrender. The town had created a debt which it is bound to pay, and it cannot, without tendering payment, compel the holders of 1¿he evidences of its indebtedness to surrender them for cancellation though irregularly issued.

The four questions last discussed relate merely to defects, if they are such, in the mode in which the commissioners issued the evidences of the indebtedness of the town, not to the power of the town to create the debt or of the liability of the town for its payment. Eor seven successive years, from 1871 to 1877 inclusive, the commissioners reported the amount of the bonds issued, the purpose for which issued, and asked the board of supervisors to levy and collect an amount sufficient to pay the interest on the indebtedness. Eor five successive years, from 1873 to 1877 inclusive, the supervisor of the town made a like report to and request of the board of supervisors. The supervisor is certainly an officer of the town. During these seven years every tax-payer and every officer of this town knew that the bonds were outstanding and that taxes were collected for the payment of the interest, but they, took no steps to review the determination of the county judge and permitted innocent purchasers to become the owners of the bonds. By this action and inaction the town is estopped from requiring the bonds to be surrendered for the alleged defects in the mode in which they were issued by the commissioners.

The judgment of the Special Term is reversed and a new trial ordered, with costs to abide the event.

Boakdman, J., concurred.

Hardin, J.:

I am not prepared to concur in the opinion of brother Follett so far as it discusses the application of the doctrine of estoppel, but in other respects I assent to the opinion and concur in a reversal of the judgment.

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


author: Eollett, J.:

text:
    CHARLES T. WOODRUFF, Appellant, v. THE BRADSTREET COMPANY, Respondent.

      Libel — when the complaint must show that special da/mages turne been caused, by it.

    The plaintiff, a manufacturer, brought this action against the defendant, a commercial agency, to recover damages for the publication by it of a statement that a judgment for $4,000 had been recovered against him. 'A judgment had, in fact, been recovered against one O. E. Woodruff, which the defendant, by mistake, stated had been recovered against O. T. Woodruff, the plaintiff. The only allegation as to damages in the complaint was that “such false and libelous publication greatly injured and damaged the plaintiff.”

      Held, that the complaint did not state a cause of action, as no special damages were alleged to have been caused by the publication.
    Appeal from a- judgment in favor of the defendant, entered upon an order dismissing the complaint upon the opening of the case.
    The defendant is a Connecticut corporation, engaged in collecting information in respect to the financial standing of persons, firms and corporations engaged in business, and in furnishing to its customers the results of information collected. The plaintiff’ is a manufacturer of brick at Watertown, N. Y., but whether doing business upon credit, or for cash, is not alleged. In December, 1881, the defendant was informed that a judgment had heen recovered against J. S. Robinson and C. T. Woodruff for $4,000, and thereupon it published to its customers .the following statement: “ Watertown. Robinson, J. S., printer, binder and manufacturer woolens. Judgment vs. him and C. T. Woodruff of 4M.”
    A judgment had been recovered for that amount against J. S. Robinson and O. E. Woodruff, who was a different person from C. T. Woodruff. The mistake consisted in .the second initial, a “ T ” being substituted for an “ E.”
    This action was begun to recover damages for this publication. It was brought to trial at the Jefferson Circuit in June, 1883, and was dismissed on the opening, on the ground that the complaint and opening did not disclose a cause of action.
    Judgment was entered, from which the plaintiff appeals.

      Hannibal Smith, for the appellant.

      John H. Bird, for the respondent.
   Eollett, J.:

It is not claimed, as indeed it cannot be successfully, that the publication is defamatory of the person or reputation of the plaintiff. Damages are demanded upon the theory, and only upon the theory, tha-t the plaintiff’s financial reputation was injured, from which pecuniary loss ensued. Damages are either general or special. General damages are such as the law presumes to have ensued, and which necessarily flow from the act complained of. Special damages are such as do not necessarily ensue, but were actually caused by the act complained of. (1 Ohitty’s Pldgs. [16 •Am. ed.], 411, 415; Towns, on Libel and S., §§ 197 to 202.)

Publishing an article which states that a judgment has been recovered against a person, is not an act from which,the law presumes that'damages ensued. Whether damages would ensue from such a publication depends upon special circumstances; like the amount of the judgment; the financial standing and business of the person about whom the article is published; whether it came to the knowledge of others with whom the person dealt, etc. General damages are implied from an act which necessarily injuriously affects persons as a class. To' publish of a trader that he is insolvent, or financially embarrassed, injuriously affects any dealer, and special circumstances need not be shown to entitle the person about whom it is written to recover damages. But many dealers would not be injuriously affected by publishing that a judgment had been recovered against them. The law does not necessarily imply that the plaintiff sustained damages by the. act complained of,- and it was necessary for the complaint to state with particularity that damages resulted, and failing in this, a cause of action is not stated. (1 Chitty’s Pldgs. [16 Am. ed.], 411, 516 ; 2 id., 543; Van Santvoord’s Pldgs. [Moak’s ed.], 222, 223, 367; Caldwell v. Raymond, 2 Abb., 193; Newbold & Sons v. Bradstreet, 57 Md., 38; Bigelow on Torts, 46.) The only allegation contained in the complaint in respect to damages is “ that such false and libelous publication greatly injured and damaged the plaintiff.” Special damages not being alleged, a cause of action is not stated, nor was it claimed in the opening that special damages were sustained.

The complaint was rightly dismissed and the judgment must be affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    No. 1.
    JOHN P. VIDVARD, Appellant, v. DANIEL J. CUSHMAN, Respondent. DANIEL J. CUSHMAN, Respondent, v. JOHN P. VIDVARD, Appellant.
    No. 2.

      Modification of a written agreement by the insertion of a new provision therein— when the instrument need not be re-signed by the parties.

    Reynolds Brothers owned two buildings, Nos. 27 and 29, in John street, Utica A hall and flights of stairs in No. 27 gave access to the upper floors of both buildings. October 25, 1879, Reynolds Brothers leased No. 27 to one Yidvard, for five years, by an unsealed instrument. After the execution of the lease it was agreed between Yidvard and his lessors, in consideration of thirty-five dollars paid to him by them, that the tenants of Nos. 27 and 29 should use the stairs in common, and a clause expressing the agreement was then written in the duplicate lease held by the lessors, in the presence and with the consent of Yidvard:

      jHeld, that the insertion of the said clause in the lease, modified the original contract so as to make the use of the stairs common to the tenants of both buildings, and that it was not necessary that the lease should be again signed or re-executed.

      Appeals from judgments, entered in the above entitled actions, upon their trial before the court without a jury.

      P. O. J. De Angelis, for the appellaht.

      D. (J. Stoddard, for the respondent.
   Follett, J.:

The appeals bring up for review two judgments, entered upon the decision of the Special Term, adjudging that the parties have the right to use in common a certain stairway. Vidvard was the plaintiff in one action, and the defendant in the other; and appeals" from both judgments. The '' cases were tried as one, and are embraced in the same appeal book.

October 25, 1878, Yidvard leased of Reynolds Brothers, No. 27 John street, Utica, N. Y., for five years, from May 1, 1879. In No. 27, and adjacent to No. 29, is a stairway by which the upper floors are reached from the street. Reynolds Brothers own No. 29 John street, which, December 1, 1878, they leased to Cushman until January 1, IF81. The lease with Cushman was under seal ; the lease with Yidvard utes not under seal. The leases were executed in duplicate, each party retaining one. A door opened from the hallway on the second floor of No. 27 into No. 29. A controversy arose between "Vidvard and Cushman as to the right of the latter to use the stairway as a means of entrance to the upper floors of No. 29. The trial court found that after the execution of the leases it was agreed between Yidvard and his lessors, in consideration of thirty-five dollars paid by the lessors to him, that the tenants of Nos. 27 and 29 should use the stairway in No. 27 in common, and that a clause expressing the agreement was then written in the duplicate lease held by the lessors in the presence and with the assent of Yidvard.

We are asked to reverse this finding, as against the evidence. The evidence upon this question is conflicting, and it cannot be said that the weight of evidence is greatly in favor of Yidvard. Reynolds and Yidvard squarely contradict each other on this question. James testifies that'after the alteration had been made, and before the suits were begun, Yidvard exhibited his duplicate lease, and that the new provision was written therein in the handwriting of Judge Cox.

Vidvard’s duplicate lease was produced on the trial, and it appears from the appeal boob that some provision has been interlined and erased, but the case does not disclose its terms. But whatever it was, it occupies precisely the same position in Vidvard’s duplicate as the added clause in the lessor’s duplicate. Assuming that the added provision is correctly stated on page eleven of the appellant’s brief, it certainly does not tend to corroborate or strengthen the evidence of Vidvard. The added clause, as stated in the brief, contains the following provision: “ The parties now occupying No. 29 John street shall have the right to use the stairway in No. 27 for the period of one month.”

Vidvard testified that when the thirty-five dollars were paid “ nothing was said about the stairway at all, sir.” It is difficult to see how Judge Cox, who must have written from the dictation, or upon information received from Vidvard, came to write the provision referred to, if there had been no talk in respect to the stairway. The appeal book does not show that Vidvard attenrpted to make ■any explanation of why the clause was written in the lease, or why it was ferased. In the face of this evidence and of Vidvard’s failure to explain, this court would not be justified in reversing this finding of fact.

By the consent' of the parties a new stipulation may be added to a' contract subsequent to its execution, if the new stipulation is evidenced and executed in the mode that the original contract is required to be evidenced and executed. (French v. Patton, 9 East, 350; Whart. Ev., § 624; 1 Chit. Con. [11th Am. ed.], 155 ; Reed on Statute of Frauds, § 454 ; Leak’s Con., 795.)

The original lease, and the lease as modified, being for terms longer than a year, were required by the statute of frauds to be in writing and signed by the lessors. The original lease was in writing and so was the modified lease. It is urged that the new lease is not binding, because it was not .re-signed by the lessors and re-delivered. The added stipulation was written in. the lease by one of the lessors in the presence, and with the assent of the lesee. The signatures of the contracting parties were then upon the lease. This was a good execution of the new or modified lease. (Bluck v. Gompertz, 7 Exchq., 862; Woolley v. Constant, 4 Johns., 54 ; Knapp v. Maltby, 13 Wend., 587; French v. Patton, 9 East, 350 ; Leake’s Law of Contracts, 814, 815.) The transaction between the parties, as found by the court, amounts to a re-execution and re-delivery of the lease in its modified form, and it became as binding in that form as though it. had been re-drafted and re-signed. Re-writing or re-signing, or both, would have added nothing to its validity. As was well said by Justice Yann at Special Term, “ the signatures were there and it was intended they should remain there when the alteration was made. The parties regarded and treated them as their signatures to the instrument as changed. Under such circumstances, was it necessary to re-trace or re-write their names ? To re-trace with a dry pen would seem absurd, while to re-trace with a wet one would obscure the identity of the signature. Would either of these idle ceremonies adopt the signatures already appended more effectually than simply writing in the words, making the change, in the presence of all the parties and with their consent.” ' '

In either case, the due execution of the lease would have to be established by parol evidence, and re-signing would be no additional guard against fraud or forgery. In all such eases the modification should be clearly established, but when so established, it becomes binding as a new contract.

The judgments in favor of Oushman, as plaintiff in one action and defendant in the other, are affirmed, with costs.

Hardin, P. J., and Poardman, J., concurred.

Judgment affirmed, with costs.


author: Eollbtt, J.:

text:
    HUMPHREY SISSON and WALTER FOX, Respondents, v. PETER CUMMINGS and Others, Appellants.

      Riparian owner — light of, to use land between high and low water-ma/iic — right to maintain ejectment against an intruder — inconsistent findings of fact and conditions of law by a judge oi' referee — proper practice as to the prepa/ration of the derision of the judge or referee.

    The owner of land bordering on waters where the tide ebbs and flows, or on inland navigable waters where the tide does not ebb and flow, has a legal right to possess and occupy the land between high and low water-mark, subject, however, to the right of the State to take the land for its own use, or to authorize it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation.
    This legal right is'a sufficient title to enable such owner to maintain ejectment against an intruder upon lands lying partly above and partly below high water mark, where the lands above and below are embraced in the same action and recovered in the same judgment.
    The rule which is to be applied where a contradiction exists between the findings of fact and conclusions of law appearing in the decision, signed by the judge or referee, and the findings made upon special requests therefor submitted by either of the parties, considered, and the old rule that in such cases the special findings is to control, criticised and doubted. (Per Follett, J.)
    The proper manner of preparing the findings of 'fact and conclusions of law which are to be signed by the judge or referee and filed as his decision, stated. (Per Follett, J.)
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of tbis action by the court- without a jury.

      Wayland F. Ford, for the appellants.

      O'Brien ds Emerson, for the respondents.
   Eollbtt, J.:

The plaintiffs brought tbis action, ejectment, to recover a narrow strip of land lying between Otter creek bay and the westerly line of land owned and occupied' by the defendants. The action was tried before the court without a jury, resulting in a judgment for the plaintiffs. The defendants appeal.

Otter creek flows into the St. Lawrence river, forming at its mouth. Otter creek bay, part of which is of considerable depth and navigable. February 18, 1851, John W. Fuller became the owner in fee of four and J/o acres of land under a grant, which describes the south-westerly boundaries of the parcel as follows: “ To a point on the margin of the river and bay, thence along said margin of said bay southerly, south-easterly, north-easterly and south-easterly to the place of beginning.” July 5, 1861, Fuller conveyed of an acre of it, of the above parcel, to David and Willard Woodworth, which is described by the following diagram, 1, 2, 3, é:

The description begins at station No. 1 of the diagram, and runs thence south forty degrees west one chain and twelve links to station No. 2; thence north fifty degrees west one chain and seventy links to station No. 3; thence north forty degrees east one chain and twelve links to station No. é; thence south fifty degrees east one chain and seventy links to station No. 1, containing nineteen one--hundredths of an acre of land, be the same more or less.. Then follows the following reservation: “ Expressly and especially reserving to the said John W. Fuller, and his heirs and assigns, all his rights to the land now under water, and to the water front beyond, or south-west of the above described line.”

March 4, 1862, Willard Woodworth conveyed his undivided half of the nineteen one-hundreths of án acre to David Woodworth.

June 21, 1870, David Woodworth conveyed to the plaintiffs the part of the nineteen one-hundredtlis of an acre which is described by the small diagram, A, B, C, 3, which the plaintiffs now own.

January 20, 1870, the heirs of John W. Fuller conveyed to John T. Fuller the four and thirteen one-hundredths of an acre piece; by the same description contained in the deed to John W. Fuller; excepting therefrom the, lot conveyed to David and Willard Wood-worth as above, and three other small lots, which need not be described, as those grants do not affect the rights of the parties to this action.

January 20, 1870, John T. Fuller conveyed the land described in the deed to him, and by the same description contained in his deed, to Martin J. Hutchins and Andrew C. Cornwall.

January 24, 1870, Hutchins and Cornwall conveyed the land described in the deed to them, and by the same description contained in their deed, to the plaintiffs who now own the lot.

November 10, 1871, David Woodworth conveyed to Ellen Cummings the part of the land described by the diagram, 1, 2, C, B, A, 4, and described in the' grant as follows: Beginning at station 1; thence south-westerly one chain and twelve links to station 2; thence north-westerly one chain and thirty-five links to station C; thence north-easterly thirty links to station B ; thence north-westerly thirty five links to station A; thence north-easterly eighty-two links to station 4; thence south-easterly one chain and seventy links to station 1, containing eighteen-hundredths of an acre.

January 31, 1875, FUen Cummings died intestate, and the lot last described descended in fee to Cecilia and James Cummings, her children, who are two of the defendants in this action, subject to the life estate of Beter Cummings, one of the defendants, the husband of Ellen Cummings, as tenaiit by the curtesy. The complaint alleges that the defendants, or some of them, claim to own this strip of land. The infants, by their answer, do not deny this allegation. Neither was it denied on the trial that they claimed to own this strip. Under this state of facts, the infants are proper parties defendants under sections 1502 and 1503, Code of Civil Procedure.

Under these conveyances it is clear that whatever land lies, westward of the line between stations 2 and C, and eastward of the shore line or high water-mark of Otter creek bay, belongs to the plaintiffs. That it was the intention bf the parties to the deed, from Fuller to the Woodworths, not to include within the grant the bay or its shore, is apparent from the terms of the grant, which does not extend to the shore, but is bounded by a definite line which has no reference to the shore, and also from the evidence outside of the grant. At the date of this grant the grantor occupied the shoal waters of the bay for storing logs, and the shore for wharfing purposes, which occupation continued uninterruptedly for many years. The obvious intention of the parties being to except from the operation of the grant the land lying' between the line from station 2 to station 3 and the shore of Otter creek bay, the use < >f the word “reserving,” instead of the more appropriate word “ excepting,” does not invalidate or limit the effect of the clause. (Bridger v. Pierson, 45 N. Y., 601 ;S. C. on retrial, 66 Barb., 514; Langdon v. The Mayor, 6 Abb. N. C., 314; State v. Wilson, 42 Me., 9 ; Whitaker v. Brown, 46 Pa. St., 197; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass., 290, 321; Wash. R. P., book 3, chap. 5, §.4, p. 57; vol. 3 [4th ed.], 431.) The decision signed and embraced within the judgment-roll does not dearly state the quantity of land between the line of high water and line 2, 3, but it does appear from the facts found in the decision that there is some land between these lines. The finding speaks “of a strip of land and land under water,” lying between line 2, 3, and the line of low water.

The fair construction of this language is, that the term “ land under water ” refers to land between high and low water marks ; and the term “a strip of land” to that lying between the line of high water and line 2, 3. The evidence discloses the existence of buildings on land westerly of line 2,- 3, the uses of which are incon.sistent with the idea that they stand between high and low water mark. The effect of this finding is, that there is land lying between line 2, 3, and the line of high water.

The conclusion of law follows the finding, and awards judgment for the recovery of all of the land between line 2, 3 and the line of low water mark in Otter creek bay. It appears from the case that the defendants preferred requests to find facts and conclusions of law pursuant to section 1023 (Code Civil Pro.), which the court disposed of by marking “ found ” and “ refused,” in accordance with the determination made of the various requests. The facts and conclusions of law which were marked “ found ” were not incorporated into the decision signed, nor are they contained in the judgment-roll, but appear in the case as settled.

If the determination of the requests to find can be resorted to by this court to enlarge, limit, contradict or explain the findings contained in the decision signed, then it is negatively found that there is land between line 2, 3, and the line of high water. The defendants, by the eleventh and fourteenth requests, asked the court to find that there was no land between line 2,3, and the line of high water, which requests are marked “refused.” The defendants preferred the following request, which is marked “found” : 13. That the plaintiffs have shown no title in themselves to the land between high and low water mark along the shore line of the bay •and river.”

The defendants insist that this finding is inconsistent with the finding of fact in the decision signed (above referred to), and with the •conclusion of law that the plaintiffs are entitled to recover the land between the line 2,3 and the line of low water. To this conclusion of law, and to the finding of fact contained in the decision, the defendants excepted. The defendants insist that when the findings of fact contained in the decision signed are inconsistent with the ■findings, without the decision, made in response to requests, the latter control. The following cases support this proposition: Tompkins v. Lee (59 N. Y., 662); Phelps v. Vischer (50 id., 69); Bennett v. Buchan (76 id., 390); Schwinger v Raymond (83 id., 192); Bonnell v. Griswold (89 id., 122).“

The first two cases arose under the old Code, which allowed additional findings to be made on the settlement of the case. Under the present Code a court or referee is without power to make additional findings after rendering the decision. (Gormerly v. McGlynn, 84 N. Y., 284.) The later cases cited arose under the new Code, but they follow the earlier cases without discussing the effect of the new Code upon the practice. The new Code provides: “ The decision of the court or the report of the referee upon the trial of the whole issue of fact must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon.” (Code Civil Pro., § 1022.) The decision or report must be in writing and filed. (Code Civil Pro., §§ 1010, 1019.) This language seems inconsistent with the idea that facts found can be stated elsewhere than in the decision or report. When all of the requests have been passed on, the judge, referee or the attorney of the successful party should draft findings of fact and conclusions of law, embracing all found and excluding all not found. If requests are not passed on, they and the exceptions taken will appear in the case. If facts found may be stated outside of the decision or report, so may conclusions of law; and it is difficult to see-why either should be. The evils of this practice are forcibly illustrated in this case, and the practice should not be tolerated unless it is expressly authorized by the Code. Inconsistent findings or conclusions seldom occur in decisions or reports deliberately examined and signed, but frequently when stated without the decision or report. A question of fact stated in the decision or report is often found stated in the case in different language, in a different connection, and capable of a different construction, which creates confusion, tends to prolong the litigation, and renders the final decision uncertain. But having regard to the situation of this question under the eases cited, it ought not to be determined until an absolute necessity for a determination arises, and after deliberate argument by counsel.

The thirteenth finding, above quoted, is a conclusion of law, rather than a'finding of fact. It arises on the construction of the deeds and the law applicable to the rights of owners of land bordering on navigable waters. It is found outside of the decision signed: “ (4.) That in the river St. Lawrence for a long distance from its mouth, the oceanic tide ebbs and flows.”

Whether the tide ebbs and flows in Otter creek bay, or in the St. Lawrence river at this point, is not directly stated in the evidence, though the witnesses in speaking of high water invariably attributed it to other causes, and the court may well take-judicial notice that the tide does not ebb and flow above the rapids in this river. However this may be, this question is not a material one, as the owner of land bordering oil waters where the tide ebbs and flows, or on inland navigable waters where the tide does not ebb and flow, has a legal right to possess and occupy the land between high and low water mark, subject, however, to the right of the State to take the land' for its own use, or to authorize it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation. The adjoining owner may occupy to low water mark for watering his stock, drawing water for irrigation or manufacturing; he may build wharfs or occupy the land for any private purpose not inconsistent with the rights of the public. (People v. Tibbetts, 19 N. Y., 523; East Haven v. Hemmingway, 7 Conn., 186, 203; Blundell v. Catterall, 5 B. & Ald., 268.) This legal right of an adjoining owner is a sufficient title to enable him to maintain ejectment against an intruder upon lands above and below high water mark, when the lands above and below are embraced in the same action, and recovered in the same judgment. (Nichols v. Lewis, 15 Conn., 137; People v. Mauran, 5 Denio, 389; Jackson v. Buel, 9 Johns., 298; Jackson v. May, 16 id., 184; Brown v. Galley, Hill & Denio, 308.)

It was competent for the plaintiff to show that his grantors had occupied this land above and below high water mark for a series of years. (The Duke of Beaufort v. The Mayor, 3 Exch., 413; Rowe v. Brenton, 3 M. & R., 329.) No error was committed calling for a reversal of this judgment.

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.