author: Lansing, S.

text:
    In the Matter of the Estate of Peter D. Hearman, Dec’d.

      (Surrogate’s Court, Rensselaer County,

      Filed January 15, 1882.)

    1. Decedent’s estates—Limitation—Endorsement.
    To make an endorsement of principal or interest upon a note admissible at all, it must appear to have been made by a creditor at a time when he had no motive to give a false credit, and, at least, before the statute of limitations had created a bar. But where it satisfactorily appears that an endorsement was made at a time when it would be against the interest of the party making it it will furnish evidence, for the'consideration of the trial court, of payment according to its terms.
    9. Same—Proof of payment of. interest.
    To prove payment of interest at the time an endorsement purported to-be made, in order to take the claim on a note out of the statute, a witness stated that he worked for the claimant that year and at no other time;, that deceased came to claimant’s house and stated that he wanted to® pay that interest; that claimant replied, that’s right, and that they both went into an adjoining room. Held, that the facts and circumstances stated warranted the conclusion as matter of fact that the interest was, in fact, paid at that time and that the endorsement was made at the time it bears date.
    This is a proceeding to mortgage, lease or sell the real estate of the deceased for the payment of his debts. Jacob H. Snyder, administrator of the goods, etc., of Jacob A. Snyder, deceased, presents a claim for the sum of $1,500, with interest thereon, on two promissory notes for $600 and $900, respectively, to which claim the heirs at law interpose the defense of the statute of limitations.

      George H. Hearman (B. H. McGlellan, of counsel), for Charles S. Hearman et al, heirs at law; A. B. Slocum, special guardian for Hiram IST. Brown, an infant; G. H Benio and B. W. File, for Jacob H. Snyder.
   Lansing, S.

Jacob Harman Snyder, as administrator • of Jacob A. Snyder, deceased, presents a claim, duly verified, upon two promissory notes, made by said Peter D. Hearman, deceased, and others, to secure the payment of the sum of $600 and $900, respectively, whereby they promised to pay, one year after date with interest, said several sums to Jacob A. Snyder, or order. .Said notes are dated, respectively, the 2d and 3d of April, 1876, and each bear endorsements that interest has been paid each year in full from 1877 down until the 1st day of April, 1884. The last endorsement upon each is dated April 1, 1884, and acknowledges the receipt of interest in full of $54 and $36, respectively.

It is admitted that Jacob A. Snyder died May 28, 1878, and that each of the two several endorsements made upon each of said notes prior to his death are in his handwriting.

It was proven upon the trial that the remaining endorsements were in the handwriting of Jacob Harman Snyder, the owner and holder of said notes after the death of his father, Jacob A. Snyder. Peter D. Hearman died August, 1887. Concededly no interest has been paid upon said notes since April 1, 1884, but if made at that time, it would be within six years before the commencement of this proceeding.

The claimant, to establish his claim, called as a witness one William H. Wolf, who testified that he worked for Jacob Harman Snyder for eight months in the year 1884, commencing in ■the early spring, and that he never worked for him except in one year. That he knew Peter D. Hearman, deceased. That ■about the last of April or first of May, 1884, Peter D. Hearman came to the house of Jacob Harman Snyder and he heard a conversation between said Hearman and Snyder, as follows: Mr. Hearman said, “Mr. Snyder, I came to pay that little interest” Harrny (Jacob H.) said, that’s right, that’s right.” Then they went into the other room. He further testified that he saw no money paid or any endorsements made upon the notes. This witness was subjected to a severe cross-examination and it is evident that his memory as to dates is very uncertain and unreliable ; but it was established without question, that the season that Wolf worked for Jacob H. Snyder was the spring and summer of 1884; and as he worked there but one season, and as he states the conversation occurred in the spring while he was at work there, it seems reasonable to believe that the conversation which he alleges he heard occurred in the early spring of 1884. Let it be assumed then that the witness is correct ■as to the time of this conversation, and that the conversation itself occurred as stated by him; the question then arises, what is the effect of this endorsement purporting to have been made April 1, 1884, in the handwriting of Jacob H. Snyder for the amount of interest then due upon each of these notes, taken in connection with the other evidence in the case?

Two questions are presented for solution before reaching the ultimate question; one of law and one of fact. (1). As to the law:

An action upon a contract must be commenced in six years after the cause of action accrued. Code of Civil Procedure, § 380. In order to take a case out of the operation of the statute of limitation, an acknowledgment in writing signed by the party to be charged is necessary, lb., § 395.

But this provision “does not alter the effect of the payment of principal or interest” (§ 395) It follows then that the provision of the Code (§ 395), changed neither the nature nor effect of payment of interest or principal, nor introduced any rule of evidence in regard to the establishment of the same, different from that existing before the adoption of the Code. Mills v. Davis et al., 113 N. Y., 246; 22 St. Rep., 580.

To make an endorsement of principal or interest upon a note admissible in evidence at all, it must be proved to have been, made before the presumption of payment attached by lapse of time. In other words the endorsement, which is only evidence-of the payment, must appear to have been made by a creditor at. a time when he had no motive to-give a false credit and, at least, before the statute of limitations had created a bar. Roseboom v. Billington, 17 Johns., 181.

But where it satisfactorily appears that an endorsement was made at a time when it would be against the interest of the party making it, it will furnish evidence, for the consideration of the; trial court, of payment according to its terms. Roseboom v. Billington, supra.

(2). This leaves for consideration the question of fact: When were the endorsements in question made ? I think the evidence tends strongly to show not only that the endorsements were made on or about the time they bear date, but also that the interest upon the notes were at that time paid, which latter fact is sufficient to prevent the bar of the statute, even if no endorsements had been made. The statute provides that payment of principal or interest alone will prevent the bar.. It does not require an endorsement to evidence it.

How what are the facts ? Peter D. Hearman comes to the-house of Jacob Harman Snyder and states that he came to pay “ that little interest.” Snyder says, “ that’s right.” They go into another room and subsequently the notes are produced bearing the endorsement of interest purporting to have been made at or about that time. It was the duty of Hearman to pay interest on said notes, for it was due at or about the 1st of April,. 1884; it does not appear that there were any other notes or obligations held by Snyder against Hearman, and when he came expressing an intention to pay interest, and Snyder expressed a willingness to receive it, and both went into another room together, it may be fairly presumed that they went there to transact there the business upon which Hearman came and which they both had in mind, namely: the one to pay and the other to receive the interest, and to have such payment evidenced by an endorsement, upon the notes, and that the same was at that time made and done. It is said that such payment may not have been made. True, but. no fact was shown warranting that conclusion ; on the contrary, every fact shown warrants the conclusion of payment I am satisfted that the facts and circumstances above stated warrant the •conclusion as matter of fact that the interest was in fact paid upon the notes at that time. And if the fact of such payment is presumptively established by the evidence without the endorsement, then the payment becomes conclusively established when it appears reasonably clear that at the same time the endorsements were also made upon the notes in the presence of the maker.

Upon the whole I am satisfied that the evidence is sufficient to warrant the conclusion not only that the endorsements were made at or about the time they bear date, but that the interest upon the notes was at that time paid.

This case is readily distinguishable from the case of Mills v. Davis, supra. In that case the court say each endorsement might have been made after the time when the statute had taken effect, and the court add “ there is no extrinsic proof of the time when the endorsement was made, nor evidence of explanatory circumstances.” It was for the lack of such extrinsic proof and evidence of explanatory circumstances (which was furnished in this case) that the plaintiff’s case was held insufficient in the case cited.

In conclusion I shall hold in this matter, for the reasons stated, that the plaintiff’s claim is established for the sum of $1,500 and interest thereon from the 1st of April, 1884.


source: Caselaw Access Project

author: Lansing, S.—I

license: Public Domain

text:
    In the Matter of the Estate of William F. O’Brien, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed January 20, 1892.)
    .Executors and administrators—When will be required to give bond.
    Where it appears that subsequent to the making of a will the relatibns existing between the testator and the persons named as executors became changed so as to warrant a conclusion that they would not have been selected as executors at a subsequent date, and that the'testator had an intention of changing them, the rule that they occupy that position by reason of the personal confidence and trust of the testator in them fails, and the court may consider their pecuniary circumstances and qualifications; and where it appears that the estate is large, and the executors have little or no pecuniary means, and their business habits and experience have not qualified them for the management of important pecuniary responsibilities, may require security for the faithful performance of their duties.
    This is an application by Ellen O’Brien, Francis O’Brien and Mary Kate O’Brien, three of the five children of William F. O’Brien, deceased, for the revocation of letters testamentary issued to Thomas O’Brien and Charles McCarthy, executors under the will of said deceased. The application is resisted by the executors. The will was admitted to probate on the 15th day of August last, and said executors qualified and letters testamentary were duly issued to them.
    This application was made September 25, 1891, upon the ground principally that the executors’ circumstances were such that they did not afford adequate security for the due administration of the estate.
    The matter was referred to Thomas S. Fagan, as referee, to take the proofs of the respective parties and report the same to the •court with his findings thereon.

      Myers & Norton, for petitioners; William J. Ludden and L. M. Griffith, for ex’rs.
   Lansing, S.—I

have carefully read the testimony produced before the referee together with the briefs of counsel and the findings of the referee. I do not deem it necessary to enter into any extended examination of the facts in this case or of the law pertaining to applications of this character. Bach case must depend upon its own circumstances and but little aid is afforded by the adjudged cases, since ño case can be found which is exactly •parallel with the present.

It is sufficient to say in general, that these executors are •employees in large business establishments and have been so •employed continuously for more than twenty years past at remunerative salaries. Their honesty has not been assailed or questioned in this examination. Substantially the sole question (outside of the question of the personal relations which existed between the deceased and said executors subsequent to the execution of his will) has been the question of the sufficiency of the pecuniary responsibility of the executors to afford adequate security for the due administration of the estate.

The referee has found from the evidence that the executor Charles McCarthy, although in receipt of a comparatively large .salary for a great many years, is pecuniarily irresponsible, being the ■owner of neither personal or real property of any description. That the executor Thomas O’Brien is a person of but little pecuniary responsibility, depending altogether upon the value of a piece of real estate in the city of Troy, his only property, which is assessed at about $5,000 and mortgaged for about $4,000.

Section 2685, Code of Civil Procedure, provides that “In either of the following cases, a creditor or person interested in the estate of a decedent may present to the surrogate’s court from which letters are issued to an executor or administrator a. written petition, duly verified, praying for a decree revoking these letters, and that the executor or administrator may be cited to show cause why a decree should not be made accordingly.”

Subdivision 5. “ In the case of an executor, where his circumstances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate.”

Section 2687 provides: “ Upon the return of the citation issued as prescribed in the last section, if these objections or any of them are established to the satisfaction of the surrogate, he must make a decree revoking the letters issued to the persons complained of; but the surrogate may in his discretion dismiss the proceedings upon such terms as to costs as justice requires, and may allow the letters to remain unrevoked in either of the following cases: (Third), where the case is within subdivision 5 of section 2685, if the executor gives within a reasonable time, not exceeding five days, a bond as prescribed in article 1 of this title.”

Subdivision 5 of § 2685 (or § 18, page 72, 2 Rev. St.), from which said section was derived, lias been repeatedly before the-court for construction. It is well settled that the choice of an executor by a testator is not restricted to persons of large means, or those whose estates are as great or greater than those proposed to be committed to them. On the contrary the law permits a person to select from among his friends persons of approved honesty and business qualifications without regard specially to their pecuniary responsibility. Holmes v. Cock, 2 Barb. Ch., 426; Shields v. Shields, 60 Barb., 56; Grubb v. Hamilton, 2 Dem., 414.

The rule is based on the ground that a testator has the same right to exercise his choice in the selection of a person to manage his estate after his death that he has to select one to represent him. during his life. The courts will ordinarily respect his wishes in the selection of an executor, notwithstanding it is the settled policy of the law in every case (save where executors, trustees and guardians are appointed by will) to require that the persons appointed to such offices should be persons possessing honesty, integrity and business qualifications, and in addition thereto that they should furnish two good and sufficient sureties in double the amount of the property committed to their charge for the faithful performance of their duties. This wide difference, as to security and pecuniary qualification, recognized in the law, between executors and trustees appointed by last wills and those appointed by the court, rests almost entirely for its support upon the presumption that the appointment of executors grows out of personal confidence and trust rather than upon the pecuniary qualification of the executor. Notwithstanding this rule, however, the statute provides, and the courts hold, that however willing the testator may have been to entrust bis affairs to a clearly improper person, named as executor in his will, yet that those interested in the estate at his death are not obliged to abide by his choice.

In this case the will was made some ten years before the death of the testator, and the circumstances are such as to warrant the conclusion that the deceased would not have selected one and probably neither of them as executors had he made his will at or about the time of his death, for it appears that the testator by a memorandum upon his will, made a year or two after it bears date, intended to substitute some other person for Mr. Thomas O’Brien as executor in his will; and although that intent was not effectuated by reason of the will not having been formally re-executed, it sufficiently appears in connection with the circumstances under which it was made that he did not at that time desire to have Mr. O'Brien continued as executor under his will; and although their relations subsequently became friendly, the deceased did not change his will in that respect.

As to the other executor, Mr. McCarthy, the relations of the deceased with him for the last few years prior to his death were not such as to warrant the conclusion that he would have selected him as executor, had he made his will shortly prior to his death.

The matter then comes to this: Although the executors have received a valid appointment under the will, yet they are measurably deprived of the benefit of the rule, that they occupy that position by reason of the personal confidence and trust of the tester in them, which the law assumes to stand in the place of pecuniary responsibility. This fact, which is established, must relegate them to the position of those liable under the statute of having their pecuniary qualification to manage estates inquired into in a manner similar to that of persons seeking such appointment from the court. In other words, the reason for the rule having failed, the rule itself falls. The executors are thus deprived of the benefit of the presumption, that they are qualified for their positions, arising from the fact that they have received -their appointment from the testator. It seems to me, therefore, that without the slightest reflection upon the character of the executors, I should consider whether the circumstances of the executors, or either of them, in connection with their business methods and habits, are such as to furnish adequate security for the due administration of the estate.

My conclusion upon the whole is, that as the personal estate is very considerable, amounting to something like fifteen to twenty thousand dollars, and there is also connected with the will a trust of considerable importance, extending through the lifetime of one of the children of deceased, and as the said Thomas O’Brien and Charles McCarthy are possessed of little or no means, ■and their business habits and experience have not qualified them for the management of important pecuniary responsibilities, that they should give a bond in the usual form, with two good and .sufficient sureties for the faithful performance of the duty of ■their office of executor and trustee in the penal sum of $30,000, unless it should be made to appear that the personal property exceeds $15,000, in which case the bond shall be double the amount of the personal estate; and as the costs and expenses of this proceeding have largely been the result of the unwillingness of the executors to furnish a bond as they were authorized to do under § 2686' of the Code, upon the presentation of the petition, I think they should personally pay the disbursements of this proceeding, amounting to the sum of $101.40, and in ease of their failure to give such bond and pay such disbursements within five days after service of an order to that effect upon them, an order may be entered revoking the letters issued ■to them, or the one so failing to comply with the conditions above prescribed.


author: O’Brien, J.

text:
    James R. Wright, Resp’t, v Guillaume Reusens, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Mechanics’ lien—Building Contract.
    By a building contract plaintiff was to do work on defendant’s house amounting to $5,544, by a certa n date; it was also provided that if the architect should certify to defendant that plaintiff had failed or refused to perform the work, then the former might terminate the employment of the contractor and finish the work himself, etc. The referee in this action to foreclose a mechanics’ lien found that this had been done, but that the failure of plaintiff to perform, was due to the non-payment of two instalments due, and that the architect had wrongfully withheld his certificates as to such work. There was no time fixed for said payments in the contract; but it was stated that the contract price was to be paid in four instalments upon the certificate of the architect. Held, that the parties-intended that the instalments should become due at different dates intermediate the date and completion of the contract as the proportionate-amount of work was finished, and as defendant did not perform his part of the contract, he was not in a position to terminate the contract by the¡ discharge of the plaintiff.
    2. Same—Evidence.
    The referee reserved his decision upon certain objections made by defendant’s counsel to evidence offered, against the objection of the latter. Held, that as the questions reservedvelated to evidence wholly immaterial and which could have no effect upon the result, it did not constitute a sufficient ground for reversal.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered on the report of a referee.

      Michael H. Gardozo, for app’lt; Gyrus William Horton and Silas J. Owens, for resp’t

       Affirming 39 St. Rep., 804.

   O’Brien, J.

The plaintiff in this case has recovered a judgment against the defendant for the value of his work and materials in altering and repairing a building, and the amount has been declared to be a lien, under the statute, against the premises on which the building stands. The form of the action was such as is usual in the foreclosure of a mechanics’ lien. The complaint, sets out a contract between the parties, and avers in substance that the plaintiff was prevented or excused from performance by reason of certain acts of the defendant The referee has found that in August, 1888, the plaintiff and defendant entered into a contract, in writing, whereby the plaintiff agreed to perform the labor and furnish the materials in making certain repairs, additions and alterations in and upon a dwelling house on the plaintiff’s premises according to plans and specifications, for the sum of $5,544.50. The plaintiff entered upon the performance of this contract and actually continued to work under it until discharged by the defendant, but the work contemplated was never completed by the plaintiff. The most important question in the case is the proper construction to be given to this contract. By its terms it was to be performed on or before December 1, 1888. It was also provided that in case the architect, who was, by the provisions of the contract, to see to its performance in all details and particulars, should certify to the defendant that the plaintiff had neglected, failed or refused to-perform, that then the defendant might terminate the employment of the contractor and employ others to finish the work and furnish the materials, and in that case the contractor should Hot be entitled to any compensation for what he had done under the contract, except to the extent of any balance of the contract price that might remain after paying for the work and materials expended by the defendant after such termination, and if the cost of completing the work after the owner had elected to terminate the contract should exceed the balance of the contract price remaining in his hands, then the contractor was bound to make good to the owner such excess.

On the 7th of January, 1889, the architect named in the contract delivered to the defendant a certificate in which it was stated that the plaintiff had refused, neglected and failed to comply with the terms of the contract, and that sufficient ground existed for terminating the employment of the plaintiff, and for employing other persons to finish the work contemplated by the contract and furnish the materials therefor. On the following day the defendant notified the plaintiff in writing that he had been furnished with such certificate, reciting its contents, and that he elected to terminate plaintiff’s employment under the contract and that he proposed to complete the work himself or cause it to be completed. That the work contemplated by the contract was not ■completed when this notice was served is admitted. But the referee has found that the- failure of the plaintiff to perform the contract within the time stipulated is attributable to the refusal of the defendant to pay the instalments of the contract price when they became due. This proposition is deduced from another finding to the effect, that prior to December 1, 1888, the date when the contract was to be performed, the plaintiff had so far made performance as to entitle him to be paid the first two instalments of the contract price amounting to $2,500 and that he had been paid but $1,500.

That the architect unreasonably refused to make and deliver to the plaintiff a certificate that the amount was due and payable under the contract, and that the defendant unreasonably refused to pay the same to the plaintiff, and that such wrongful action, on the part of the architect and -the defendant, greatly impeded and delayed the plaintiff in the prosecution of the work. These findings so far as they embrace and relate to matters of fact were made by the referee upon evidence which was very conflicting .and, therefore, conclusive upon the court, as it cannot fairly be urged that they are wholly unsupported by proof. But when and in what manner the contract price was payable depends upon the construction of the contract itself and presents a question of law. The contention of the defendant’s counsel is that as there was no time specified in the contract for the payment of the price it was not payable until the work was completed, or not at least until the certificate of the architect was furnished that it was due .and payable. The contract was evidently written upon a printed blank form in use for that purpose, and neither the time when nor the contingency upon which the several instalments became due was distinctly expressed. But between the date of the contract in August and the time for its completion on December 1st the whole price was to be paid in four separate instalments, two of $1,000 each, one of $1,500, one of $1,744.50, and the balance of $300 to be paid on December 1st if the contract was fully completed on that day, “provided that in each case the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfae tian.” It was further provided that in case any mechanic’s lien, chargeable to the contractor, was filed which bound the land or the owner, then the defendant should have the right to retain from “ any payment then due or thereafter to become due ” an amount sufficient to discharge the same. It is quite evident that, the parties intended that the instalments should become due at. different dates intermediate the date and the completion of the contract. To assent to the construction contended for by the defendant would make the contract unreasonable and place the plaintiff entirely at the mercy of the defendant and the architect, and such a construction should be avoided when the general scope of the instrument and the terms used by the parties fairly permit a more just and reasonable interpretation. Russell v. Allerton, 108 N. Y., 288; 13 St. Rep., 629.

The referee held that by the payment clause the parties intended that each payment should become due when such proportion of the work was performed as the particular instalment bore to the-whole contract price. The $1,500 paid on the contract by the defendant seems to have been certified by the architect and paid upon this principle. Both parties understood that the plaintiff would, as the work progressed, require money to pay laborers and mechanics and to purchase materials and it was for ■ this reason that the contract price was made payable in sums as the progress of the work might demand on the one hand and justify on the other. The construction which the referee put upon this provision of the contract is just and reasonable and in accordance with what the parties themselves must have intended. White v. Hoyt, 73 N. Y., 505 ; Halpin v. Ins. Co. of N. A., 120 id., 73; 30 St. Rep., 261; Tallcot v. Arnold, 61 N. Y., 616; Barlow v. Scott, 24 id., 40. It follows that the defendant did not perform his part of the contract and was not in a position to terminate the contract by the discharge of the plaintiff. If, as the referee has found, performance by tbe plaintiff was prevented by the default of the defendant in making the payment according to the terms and meaning of the contract, then the failure of the plaintiff to have the work completed at the time named in the contract is excused. Kingsley v. The City of Brooklyn, 78 N. Y., 200. When the employer under such circumstances terminates the contract and arrests its-performance the contractor may recover, in a proper action, th& value of the work performed and the materials furnished. Clark v. The Mayor, 4 N. Y., 338; Jones v. Judd, id., 412-414; Dillon v. Anderson, 43 id., 237; Lawson v. Hogan, 93 id., 39.

Whether the refusal of the architect to give the plaintiff the certificate, upon which by the terms of the contract the payments-were to be made from time to time as the work progressed, was- or was not unreasonable, became in this case a question of fact, depending upon the amount of work done, and the finding concludes us on that question. The contract having been waived by the plaintiff and a recovery sought upon a quantum meruit, the question of the value of the work done and materials furnished, must, in this court, be deemed settled by the findings of the referee upon conflicting evidence.

The learned counsel for the defendant urges that the judgment should be reversed on account of numerous rulings made by the referee in the course of the trial, and to which exceptions were taken. It would be difficult to sustain all the rulings to which our attention has been called, if they were material to the real issue in the case, or could have prejudiced the defendant. The referee without consent reserved nis decision upon certain objections made by defendant’s counsel to evidence offered, and upon motions to strike it from the case. In fact these questions were reserved against the objection of the defendant’s counsel. Ordinarily such rulings furnish grounds for reversal, unless the questions reserved are immaterial, or of such a character that if decided against the party raising them the decision would constitute no sufficient ground of error. Sharpe v. Freeman, 45 N. Y., 804; Lathrop v. Bramhall, 64 id., 365. The questions thus reserved related to evidence that was wholly immaterial It. seems that the architect and the plaintiff met about the 1st of January, and but a few days before the notice terminating the contract was served, and there was some proof that they had an understanding that thereafter payments were to be made weekly, but that the plaintiff should go on with the work. It was claimed that the architect had no power to bind the defendant by such an arrangement. Assuming that he had not, it is apparent that this conversation played no part whatever in the legal controversy. The plaintiff recovered, not upon or by reason of any verbal arrangement made between himself and the architect, but in the absence of any contract except such as the law implies from the rendition of the services. If this proof showed any unauthorized arrangement between them outside the written agreement, it certainly was never acted upon, and was followed by the notice that the defendant elected to terminate the contract Conversations between the contractor and the architect who is put in charge of the work are generally admissible in evidence in actions against the owner for the price of the work. He is the agent of the owner, and his directions in regard to the manner of doing the work, and as to the materials to be used, and in many other respects, may become admissible in evidence.

This conversation between the plaintiff and the architect was wholly immaterial as it was not claimed that the contract was modified or extended but that the failure to perform was chargeable to the defendant. It could have no effect whatever upon the result. The recovery was for the value of the plaintiff’s services, and he took nothing and could not possibly take anything by any arrangement between himself and the architect as to different periods of payment from that prescribed in the contract.

The referee permitted the plaintiff, after his case was closed and after the defendant had rested, to reopen the case and to give testimony in chief, and various objections were made and exceptions taken on this ground. That was- a matter wholly in the discretion of the referee and is not the subject of review Gere. Many of the exceptions referred to related to the value, quality and actual expense of the work on the building by persons employed. by the defendant after he had given the notice terminating the contract. These questions were not material. They would have been, as a basis for damages against the plaintiff, had he abandoned the contract or failed to perform it without sufficient excuse. But in an action where the contract has been terminated by the owner wrongfully, and where the contractor thus prevented from performing waives the contract and seeks to recover the value of the work done and materials furnished, it is of no consequence whether the owner has expended in finishing the job more or less. When the fact is found on sufficient evidence that his default in making payments prevented performance, and that he wrongfully terminated, the contract, the cost of subsequently completing the work has. no bearing upon the right of the contractor to recover the value-of what lie may have done under the contract. Aside from the construction of the contract in regard to the time of payment, the case turned upon the decision of questions of fact and, while the referee would have been warranted in taking another view "of the evidence in some respects, yet none of the findings are wholly unsustained. It was a case for deciding upon the credibility of witnesses and the weight and effect of evidence, questions peculiarly within the province of a trial court

On the whole we are of the opinion that the record does not disclose any error that requires, or would justify a reversal of the decision of this referee. The judgment should be affirmed, with costa

All concur.


author: Maynard, J.

text:
    George Miner, Resp’t, v. Clark N. Brown et al., App’lts.

      (Court of Appeals,

      Filed May 24, 1892.)

    Will—Life estate to husband and wife—Tenancy in common—Tenancy BY THE ENTIRETY.
    A. B. by his will gave his son and his son’s wife the use of the farm on which the son resided for "their use, benefit and support during-their natural lives.” Prior to the execution of the will plaintiff had recovered two judgments against the son, and after its probate he issued executions thereon and bought in the interest of the judgment debtor at the sheriff's sale. Meld, that it was the intent of the testator to make the husband and wife tenants in common of the estate devised to them and not tenants by the entirety, .and so the wife was entitled to the possession and use of a moiety of the farm during her lifetime of which she could not be deprived by any act or default of her husband.
    Appeal from judgment of the supreme court, general term,, fourth affirming judgment for plaintiff.

      Charles H. Searíe, for app’lts; H. H. Harrington, for resp’t.

       Reversing 40 St. Rep., 985.

   Maynard, J.

In view of the legal effect which must be given to the devise in the will of Adin Brown to the defendants, Clark Ñ. and Ella Brown, an estate of tenancy by the entirety was _nbt created. It is, therefore, unnecessary to consider, or determine,, the interesting and important questions, so ably presented by learned counsel, whether during the joint lives of husband and wife such an estate can be sold for the debts of the husband and possession taken, or whether chapter 472 of the Laws of 1880' has not modified or abrogated the common law right of the husband to the exclusive possession of the property during coverture.

• Adin Brown’s will was executed in 1882 and probated in 1883,, and is the common source of title of both parties to this action. In the second clause he gave to his son and to his son’s wife “ the use of the. farm and lot on which the said Clark K. Brown now resides, etc., for their use, benefit and support during their natural lives, etc.” Before the execution of the will the plaintiff had recovered two judgments in the supreme court amounting to $850-against Clark 1ST. Brown, and, sometime after its probate, he issued executions thereon, sold the interest of the judgment debtor in this farm and became the purchaser at the sale. In due time the plaintiff received the sheriff’s deed and brought this action of ejectment in which he has obtained a judgment against both defendants awarding him possession of the entire farm.

It is conceded that this judgment cannot stand unless the defendants held the lands, upon the death of their testator, as-tenants by the entirety. It is still the law of this state that where a grant is made to husband and wife without any words specially prescribing, qualifying or characterizing the kind or quality of the estate which each shall take, the grantees hold as tenants by the entirety. Bertles v. Nunan, 92 N. Y., 152. There was in such cases at common law a unity of seizin and of possession during their joint lives, which seemed to invest the husband with the exclusive use and control of the property and which deprived.the wife of all the practical benefits of its immediate enjoyment. This anomalous condition resulted from the unity of the parties to the marriage contract, whereby, as stated by Blackstone, “ The very being and legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband.”

It was merely, a legal fiction, which still survives in a form greatly abridged by modern legislation, and its application was frequently the cause of much hardship and great injustice. We, therefore, find a disposition manifested at a very early period in the history of English law to limit its extension and to hold that a husband and wife may, by express words, be made joint tenants, or tenants in common, by a gift or conveyance to them during coverture, and that every grant to them is to have just such effect in respect to the estate which they take as was intended to be created. Sheppard’s Touchstone, 132; 2 Prest, on Abs. Tit, 41; 2 Kent’s Com., 133, note 2.

In Preston on Estates (vol. 1, p. 132) it is said: “ In point of fact, and agreeable to natural reason, the husband and wife are distinct and individual persons ; and accordingly when lands are granted to them as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct and individual persons would do.” Citing 1 Inst., 187 b.

In Hicks v. Cochran, 4 Edw., 107, the vice chancellor applied this rule, and held that where there were words in a conveyance to husband and wife strongly expressive of a tenancy in common in equal moieties, they should be construed to have the same effect as if there had been an explicit statement that they were to hold as tenants in common.

In Cloos v. Cloos, 55 Hun, 450; 29 St. Rep., 200, the general term of the second department held that the husband and wife took as joint tenants where it was clear from the words of the conveyance that it was the intention of the parties to create a joint tenancy.

In a very recent case, Jooss v. Fey, 129 N. Y., 17; 41 St. Rep., 211, this court decided that a married woman could hold real property as a joint tenant with her husband, if the intent to convey such an estate is plainly expressed in the words of the grant.

These decisions are merely the result of the application of the ancient rule that the intent of the parties, as gathered from the entire instrument, must prevail in its interpretation. In the ndop- ■ tian of the Revised Statutes this rule, in respect to grants of real property, was reinforced by a legislative command that: “In the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law.” 4 R. S., 8th ed., 2461, § 2. Applying this test to the provisions of the will upon which both parties rely as the foundation of their respective rights, we have no hesitation in affirming that it was the intent of the testator to make the husband and wife tenants in common of the estate devised to them. Both the granting and the habendum clauses of the devise are inconsistent with any other conclusion. It is “ the use ” of the farm .which is granted to husband and wife alike, without restriction or limitation. To convert this grant into an estate of tenancy by the entirety is to declare that the wife shall not have the use of th,e property during the lifetime of the husband, and, in fact, not at all, unless she should survive him.

It is evident the testator intended to make her, as well as her husband, the object of his immediate bounty, and that the scheme of his will, in this respect, will be thwarted if her right of possession is postponed until after his death. The habendum clause of the gift is still more explicit. It declares that the estate granted shall be held “ for their use, benefit and support during their natural lives,” which cannot have its full significance unless it is construed to be a common holding for the prescribed purposes. It was the wife’s benefit and the .wife’s support which the testator had also in view; not simply that of her husband. Ho particular form of words is necessary to make them tenants in common.

It is sufficient if expressions are used which cannot be operative unless the wife is admitted to an equal present enjoyment of the estate with her husband, and which indicate an intention that her possession shall not be subservient to his exclusive control. The motive of the testator in making this disposition of his property is perhaps not important. If it were, the record discloses one in the existence of the plaintiff’s judgments against the husband which would be a continual menace to the rights of the wife, if her possession was absorbed in that of her husband during his life-time.

It appears from the recitals in the will that the testator had for some time before his death been providing a home for the son’s family upon this farm; the ownership and control of which for obvious reasons were withheld from the son. He doubtless desired to continue this provision after his death, and to secure to the wife in common with the husband the benefit to be derived from its occupation, and which, to the extent of her interest in it at least, would be secure from seizure by his creditors. If this judgment stands, an important provision of the will is annulled, and the present means of support, which it was designed to confer upon the wife, will he transferred to-the plaintiff. Clearly the testator did not contemplate any such result. We think he has expressed a contrary intent in language so plain it cannot be misunderstood; and that the defendant Ella Brown is entitled to the possession and use of a moiety of this farm during her life-time; and that she cannot be deprived of this right by any act or default of her husband. Whether, under the peculiar provisions of this will, the surviving tenant in common will not succeed to the use of the entire farm during his or her life it is unnecessary now to determine.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event All concur.


text:
    Walter Langdon, Resp’t, v. The Mayor, etc., of New York, App’lt. Marian L. Carroll, nee Langdon, Resp’t, v. The Mayor, etc.,, of New York, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Eminent domain—Value of property—Evidence of bale of property-in VICINITY.
    Upon proceedings for the recovery of damages consequent upon the taking of property belonging to plaintiffs along the river front, of New York City, for the purpose of building wliavves, the referee admitted as evidence six contracts and deeds for the purchase by the city in 1884 and 1885, of as many different wharfage and bulkhead rights fronting on West street and 2700 feet from the property of the plaintiffs; and also the report of the commissioners of the dock department of the purchases and the prices paid; and also the testimony of an expert witness that the relative value of such rights and bulkheads and of the plaintiffs were the same. Held, in view of the peculiar and exceptional character of the situation of the case as developed upon the hearing, not to he such error as to require a reversal of the judgment.
    2. Same—Rent of wharf.
    The proprietors of steamboat lines were always willing to pay for the exclusive use of a bulkhead a rental greatly in excess of that which might be collected from the common use of a wharf by the public. And in order to properly manage the wharves, certain laws were enacted establishing a new bulkhead and pier line on the Hudson river front, extending piers, filling in, etc., and so the amount at which purchases had been made in the immediate vicinity of plaintiffs' property afforded a fair ground upon which to base an estimate of value, and it was the best evidence obtainable.
    3. Same.
    Although the purchases concerning which testimony was offered were made seven years after plaintiffs’ wharfage rights wére appropriated, yet as it was shown that there was no appreciable difference in the value during the period the evidence was admissible.
    Appeal from judgments of the supreme court, general term, first department, affirming referees’ reports and giving judgments to plaintiffs.

      Thomas P. Wiclces and James Hillhouse, for app’lt; Wheeler H. Peclcham, P. S. Emmet and T L. Ogden, for resp’t

       Affirming 39 St. Rep.,' 983,984.

   Maynard, J.

Upon the trial of these actions at special term all the material facts, except the amount of damages and the value of the plaintiffs’ rights, were stipulated, and it was agreed that, if the court should decide the plaintiffs were entitled to judgment for the relief demanded in the complaint, the question of the amount of damages and of the value of plaintiffs’ interest in the premises should be reserved, and be thereafter ascertained in such legal manner as the court might direct The trial court held that no property rights of the plaintiffs had been invaded by the defendants, and-directed judgment for a dismissal of the complaint in each case upon the merits.

The-general term reversed these judgments and ordered a new trial. The defendants thereupon appealed to this court and gave the usual statutory stipulation for judgment absolute, if the orders granting a new trial should be affirmed. The decision of this court upon that appeal was favorable to the plaintiffs, 93 N. Y., 129, and conclusively determined the extent of their rights, and directed judgment absolute against the defendants. When the remittitur went down the usual formal order was entered -making the judgment of this court the judgment of the supreme court and directing that execution might issue for the plaintiffs’ costs, when taxed and inserted in the judgment, and for such other amount as the court might adjudge to be recoverable against the defendants. Subsequently, upon the motion of the plaintiffs made at general term upon the stipulation of the parties, a judgment was entered fixing the rights of the plaintiffs, and ordering a reference to take proofs as to the value of the property appropriated by the defendants, and the amount of past damages, and to report the testimony taken with a statement of the facts deemed to have been proven, and reserving all other questions until the coming in of the report, when either party might apply for further relief at the foot of the judgment.

This practice was authorized by the concluding paragraph of § 194 of the Code, which provides that when judgment absolute has been ordered in this court and the remittitur sent down, an assessment of damages, or any other proceeding requisite to render the judgment effectual, may be had in the court below. The referee reported the testimony, with his opinion that the value of the property appearing therefrom to have been taken by the defendants in each case was $75,062 or $1,000 per lineal foot of bulkhead, and that the past damages in the one ease amounted to .$42,998, and in the other case to $36,693. This report was set aside and a new reference ordered upon the ground, stated in the opinion at the general term, that the referee had improperly taken into consideration the benefits which might accrue from the erection of platforms and sheds by the permission of the dock department under chapter 249 of the Laws of 1875.

As the granting of such privileges was entirely discretionary, and highly improbable after the adoption of the plan for the improvement of the river front reported by General McClellan, engineer in chief of the department in 1871, they were no longer to be regarded as a lawful element of value or of damages. A second reference was interrupted by the death of the referee, and a third referee appointed, who was authorized to take proofs and report as to the same facts, and upon the hearing either party was to be at liberty to read the testimony of any witness examined upon the former references, or to call any such witness for further examination, and to read any documentary evidence offered on the previous hearings, and any testimony or evidence so offered should be subject to any legal objection thereto upon any other ground than the absence of the witness or of the original documents offered.

The referee reported the testimony taken, with his findings, to the effect that the value of the plaintiffs’ property in each case, at the time of its appropriation, was $7,506, or at the rate of $100 for each lineal foot of water front, and its annual income value $375. Interest upon the value of the property was allowed by way of damages.

The testimony of the witnesses upon the question of value was widely variant, and proceeded upon irreconcilable lines of difference. Upon the part of the plaintiffs they were persons more or less familiar with the former market and rental value of this kind •of property, and they testified, after an exhaustive examination as. to their qualifications and the grounds of their opinions, that, in their judgment, its market value in 1877, at the time of its appropriation by the defendants, ranged from $865 to $1,500 per foot, and its annual rental value from $46 to $50 per foot. These estimates of value did not include any increase on account of platforms or sheds erected, or for the erection of which permission might be obtained from the dock department, under the “ Shed Act ” of 1875 ; but did include the possibility of the exclusive use of the bulkheads in connection with the adjoining piers by Steamship companies, under the act of 1858.

The evidence on the part of the defendants was mainly confined to the amount of wharfage actually collected for the use of plaintiff’s property at and immediately preceding the time of its appropriation by the defendants, and the estimate of witnesses df the annual income to be derived from it; and it was this testimony which was adopted and followed by the referee in arriving at his conclusions upon the subject of value.

The application of this rule limited the consideration of the question to the actual present productiveness of the property, which might be dependent upon a variety, of causes not affecting its intrinsic value, and which did not therefore afford a safe or reliable criterion of its worth to the owner. If the sovereign power in the' exercise of the right of eminent domain could take the property of the citizen at a valuation based upon the net income realized from it, it is feared that a very large part of the farm property of the state could be acquired by it at a' purely nominal consideration. But it is the potentialities of a given piece of property, both developed and undeveloped, which constitute its chief element of value. The general term took this view of the evidence when' the report of the referee came up for confirmation, and, while not willing to adopt the opinion of plaintiffs’ witnesses, and characterizing it as a “greatly exaggerated estimate of the value of these privileges,” it also discarded the evidence of the defendants, and declared that their estimate of value “was on the other hand ridiculously small.” The court then called attention to evidence offered and excluded, which might have afforded a fairground upon which to base a correct judgment. This rejected evidence consisted of a report of the dock department showing that the defendants had bought other property of a similar character at various places upon the ¡North river front, and paid therefor prices averaging about $600 per lineal foot of front Because of the exclusion of this proof, the court set aside the report of the referee, and directed a further hearing before him for the introduction of additional testimony upon which a judgment might be rendered. Upon this hearing the principal evidence introduced consisted of six contracts and deeds for the purchase by the city in 1884 and 1885 of as many different wharfage and bulkhead rights fronting on West street, and distant about 2,700 feet from the property of the plaintiffs; and of the report of the commissioners of the dock department of the purchases and the prices paid; and of the testimony of an expert witness that the relative value of such rights and bulkheads and of the plaintiffs’ were the same.

The defendants strenuously objected to the reception of this evidence, and moved to set aside the referee’s report because of its admission, which was denied, and it is the exceptions to the admission of this testimony which are the sole grounds for this appeal. The referee reported the value of the property, as found by him, to be $45,037, or $600 per lineal foot, with interest by way of damages to the amount of $32,262, making a total of $77,299 in each case, for which the court awarded final judgment. Preliminary to the judgment, an order was entered overruling the defendants’ exceptions to the referee’s report and ratifying and' confirming the report, and directing judgment for the plaintiffs. upon the valuations of the property as found by the referee. The defendants appeal from the judgment, and give notice that they intend also to bring up this order for review.

It is insisted by the respondents that the appellants’ exceptions to the admissibility of evidence before the referee cannot be heard or reviewed upon this appeal, for the reason that the referee had no power to pass upon the objections made by the defendants when the evidence was offered and the exception taken.

It is not entirely clear what powers the referee possessed in this case. The order of reference provides that testimony offered before the referee should be subject to any legal objection thereto, but it is uncertain whether this provision was intended to confer upon the referee the power to rule upon the objections made, or simply to enter them in his minutes and report them, with the testimony taken, to the court, which would determine their force and validity upon the final application for judgment. The order of reference was also ambiguous in not clearly stating whether the testimony which was to be taken by the referee, subject to objection, included all that might be offered, or only such as might be additional to the testimony taken before the former referees. But these difficulties seem to have all been eliminated from the case by the practical construction which both parties have put upon these orders of reference and the proceedings under them. From the outset the reference was apparently treated as one under which the referee had power not only to take and report the testimony, but also to find and report the facts which, in his judgment, the evidence established. The referee evidently so regarded his authority, as is shown by the conduct of the hearing, the form of the report, and the able and elaborate opinion rendered by him, in which the force and bearing of the testimony and the various legal propositions involved are fully considered and discussed. Both parties submitted to him for decision, various objections to the admission or rejection of evidence offered, and excepted to his rulings thereon, and both filed exceptions to his report and acquiesced in the authority which he-assumed to exercise without protest, and we think it is now too late for either to be heard to say that the exceptions thus taken are not properly in the record and before this court for review. It is true the report was in no sense final or conclusive as an adjudication. It could be set- aside by the court to which it was made, and the defendants did move seasonably to have it vacated upon the exceptions filed, and especially upon the ground of the admission of' the evidence objected to.

The question, however, litigated before the referee was the value of the property of plaintiffs which had been appropriated or destroyed by the acts of the' defendants. His finding upon this disputed fact was confirmed by the court and made the basis of its judgment, and if any material errors were committed in the processes by which he arrived at his conclusions, and they have not been waived, no technical objections should prevail to defeat their review and correction by this court.

The parties have also by a stipulation made at an early day in. the history of the case waived all objections which do not go to the merits, and provided that “ what the rights of the parties to this action are, and whether the plaintiff is entitled to damages, and upon what principles they shall be determined, shall ¿it all stages be open to discussion and decision.”

We are thus brought to the consideration and determination of the question, pressed with so much earnestness and ability by the counsel for the appellants, whether the recovery in this action was not based upon illegal evidence of the value of the property taken by the defendants. For the purposes of this discussion it may be assumed that the only proof of market value which yras considered by the court was that given upon the supplemental reference and related solely to the purchases made by the defendants of other parties of property of the same general character and similarly situated upon the same river front The question whether such evidence was' properly admitted is not free from difficulty, and, in the form in which it is here presented, is. a novel one. Bat we think that, in view of the peculiar and exceptional character of the situation of this case as developed upon the hearing, its admission was not such error as to require a reversal of the judgment.

The plaintiffs had no ownership of the fee of the premises where the defendants’ wrongful acts were committed, and no visible or tangible property, the extent of which could be measured, defined or described; but they had acquired by grant from the state and the municipality certain valuable incorporeal rights and easements for the destruction of which the defendants must make compensation. It is to be inferred from the proofs in these cases, that rights and easements of a similar character existed along nearly the entire river frontage of the city. The profits from their enjoyment were derived from the tribute which they levied upon the commerce of the port of New York. The privileges which they afforded for the loading and unloading of outgoing and incoming vessels were presumably common to the public to such an extent that the first ship-owner applying for the use of a vacant wharf by a vessel arriving or about to arrive would be entitled to its occupancy upon the payment of the established rate of wharfage.Vessels belonging to the regular lines of transportation might thus be frequently required to wait until other crafts, but occasionally visiting the port and of less importance to its commerce, had been accommodated.

To meet this exigency the legislature enacted chapter 261 of the Laws of 1858, which authorized any wharf owner upon the North river to lease his wharf to the proprietors of any steamboat lines running to and from the city, and that when so leased' it should be reserved for the exclusive use and occupancy of the lessee. This court had occasion to examine and construe the act of 1858 in the case of Kingsland v. The Mayor, 110 N. Y., 569; 18 St. Rep., 701, and the expressions there used indicated an opinion that its operation was not confined to vessels engaged in the coasting or river traffic, but included transatlantic steamship lines as well. Such conclusion is in harmony with the apparent scheme of the law, and finds some support in the general language of the act. This court, however, seems to have taken a different view in the earlier case of the Commissioners of Pilots v. Clark, 33 N. Y., 251, and it is not necessary now to determine which is the correct construction. By the provisions of the act of 1871, now §§ 711 and 716 of the consolidation act, the city has authority to lease these bulkheads when acquired by it, without limitation as to the kind of vessels making use of them, for a period of ten years, and to renew such leases for like periods, not exceeding fifty years in the aggregate.

Whatever the restrictions may have been upon the scope of the act of 1858, its effect was to add largely to the value of the rights of the wharf owner. The proprietors of steamboat lines were always willing to pay, for the exclusive or preferential use of a bulkhead, a rental greatly in excess of the sum total of that which might be collected from the common use of the wharf by the public. The system of private ownership of wharfage rights was, however, cumbersome, and its workings evidently unsatisfactory. The material prosperity of the' city was so dependent upon its commerce that nothing short of the exclusive owners!)ip and control by the body politic of all the docks and other like facilities required for the encouragement of ocean and river traffic would be sufficient to meet the wants of the public in this respect. The legislature recognized this necessity, and by the enactment of chapter 574 of the Laws of 1871 inaugurated a radical and sweeping change of policy upon the subject Private ownership of wharves and wharfage rights were from that time subjected to a process of extinction.

The defendants were authorized to establish a new bulkhead and pier line on the Hudson river front. Pursuant to this authority the dock department, with the approval of the commissioners of the sinking fund, adopted a plan by which the entire bulkhead line, at least in the vicinity of these premises, was changed and extended into the river a distance of 175 feet, and the intervening space was to be filled in with solid filling. The law also authorized the city authorities to purchase, either by agreement with the owners or by condemnation, all wharf property belonging to private individuals which might be required for the purpose of carrying this plan into effect The practical result of this revolution in the system of dock supervision and ownership was to withdraw from the general market all private rights of wharfage which might be found in the pathway of this great public improvement. Thereafter there could be but one probable' purchaser of all such rights, and that purchaser the city. Even for speculative purposes, an intending purchaser of such property would fix the price with a view to the sum which the city would pay, or be compelled to pay when it consummated the appropriation of it under the act of 1871. Expert witnesses could not speak with any degree of precision or intelligence of its market value in 1877 predicated upon actual sales, becaüse such property must have ceased to be the subject of general bargain and sale for several years previously. It was this difficulty which embarrassed the court when the first report upon the last reference came before it for confirmation. It was evident to the general term, as it must be from a perusal of the testimony, that the estimates of the so-called expert witnesses were largely theoretical and speculative and not founded upon actual sales made of similar property, and were, therefore, unreliable as a measure of value. But it discovered that the city had recently been making purchases of property of the same kind in the immediate vicinity. Evidence of these purchases had been offered and excluded by the referee, and the court below concluded that such evidence, if received, would have afforded a fair ground upon which to base an estimate of value, and sent the matter back to the referee in order that this proof might be admitted.

In the reception of this testimony wé do not think any error was committed of which the defendants can justly complain. Under the circumstances, it was the best evidence obtainable, which is all that can reasonably be required in any case. A departure from the ordinary rule, which will not allow affirmative evidence to be given of the_ sales of other real property in the same vicinity for the purpose of establishing the value of the property in controversy, was therefore permissible. The considerations which led to the adoption of this rule seem to have been two fold. It was primarily a rule of convenience to avoid protracted trials by the introduction of collateral issues, and secondarily, for the protection of litigants who could not- be expected to be prepared to try such issues, of which they had not previously had notice.

Neither of these considerations are operative in the present case. The sales proven were confined to purchases made by the defendants themselves, few in number, and they had due notice by the decision of the general term that this field of inquiry would be entered upon before the referee. The transactions might also properly be regarded as admissions by the defendants of the value of property of the saniie general kind as that of the plaintiffs. It cannot be said that the evidence related to property intrinsically dissimilar. The proof is otherwise. At least, if any dissimilarity was shown, it was to the prejudice of the plaintiffs. The witnesses interrogated upon the subject all testify that plaintiffs’ property is more valuable, if anything, than .other property of its kind along the river front. Dne witness says: “It is the choicest dock property in the city of New York, because all the big Atlantic liners centre there, and it is most convenient for their business, and it is the most convenient for the choicest kind of trade that comes to New York, and that is the dry goods trade; it is close to or convenient to the dry goods district.”

Tiie testimony of other witnesses is equally emphatic upon this point. It is claimed that the six pieces of property referred to were more valuable because of the existence of sheds and platforms ; but it appears that plaintiffs’ wharves were equipped with platforms. As to both sheds and platforms, it is undisputed that they were constructed under licenses granted by the dock department, revocable at its pleasure; and that they could not be considered as an element of value was expressly decided by this court in the Kingsland case.

It is further objected to this class of evidence that these purchases were not made until 1884, some seven years after the time when plaintiffs’ wharfage rights were appropriated But it is shown that there was no appreciable difference in the value of such property during this period, and the referee has found in both reports that the value of plaintiffs’ property in 1877 and at the time of the trial remained unchanged.

Much stress was laid by counsel upon the fact that these purchases were made under coercion, that is, that the city was compelled to buy or suspend the work of dock improvements, which would subject it to great loss. But it is not seen that the relation of the defendants’ enterprise to the property so purchased differs in any material respect from its attitude with reference to the plaintiffs’ property. In both cases the city is compelled to buy and the owner compelled to part with his title; but in neither case can it be said that the price was, or is, a matter of compulsion. The law has wisely guarded the municipality against extortion by providing a method of judicial procedure for the ascertainment of the just and fair value of the property taken, which the defendants can be required to pay and the owner compelled to accept. The immediate necessities of the city could not have been such as to have required it to purchase these wharfage rights at the owners’ price. It was in possession of the land to which these incorporeal hereditaments and easements attached, and if it seasonably instituted and prosecuted with diligence the necessary proceedings to acquire title by condemnation, it is not - probable that any court in the exercise of a sound discretion would have enjoined the defendants from the continuance of the work during the pendency of the proceedings.

It is proper to note in connection with this evidence that it was, in one sense, merely cumulative. Other evidence of the same character had been introduced by the plaintiffs and received without objection. The witness Kingsland testified to the purchase of an interest in wharfage property adjoining plaintiffs in 1874 or 1875, at the rate of $1,000 per running foot, and the witness Carrington to sales made to the city in 1884 and 1885, by Dodge, Cockroft and the Old Dominion Steamship Co., at the rate-of $550 and $600 per foot

The disposition we have made of this question is not in conflict with the decision of this court in the Matter of Thompson, 127 N. Y., 463; 40 St. Rep., 200. The rule was there correctly laid down that the value of property which depends upon the presence or absence of inherent qualities, not necessarily present or absent in other and similar property, cannot be proved by showing the price paid for such other and similar property.” Here it has been shown that the same inherent qualities of productiveness, both present and prospective, and of advantageous location for commercial uses were present in the other property purchased by the defendants for the same purposes, and to complete the same plan of improvement for which the plaintiffs’ property is required.'

In the Thompson case dissimilarities appeared, between the property purchased and the property sought to be taken, to such an extent that the learned judge, who delivered the opinion of the court, was constrained to observe that even under the rule in Massachusetts, and some other states, which makes the admission of such evidence discretionary, its exclusion by the commissioners was a proper exercise of judicial discretion.

This case has been pending for fifteen years. It has many special and anomalous features. Upon a simple question of value, which depends for its determination so largely upon the opinion of men, the judgment should not be set aside, except for the most-cogent reasons.

We do not find in the voluminous record any error which we-may not disregard under the rule laid down for our guidance in § 1003 of the Code, and the judgment must therefore be affirmed,. With costs.

All concur, except Peckham, J., taking no part.


author: Andrews, J.

text:
    Daniel Quinlan, App’lt, v. The Providence Washington Ins. Co. of Providence, R. I., Resp't.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Insurance (Fire)—Notice of loss—Condition precedent.
    The provisions in a standard insurance policy that notice of foreclosure-proceedings must be given to the company; that insured in case of loss shall give immediate notice and that within sixty days after a fire he shall render a sworn statement of the particulars specified, are conditions precedent to a. right to recover on the policy. And the nonperformance of.- these conditions, of any one of them, constitutes a complete defense to a claim.
    2. Same—Waiver.
    Kelsey, the agent of defendant who procured the insurance for plaintiff,, knew of the giving of a mortgage and the commencement of foreclosure proceedings, and assured plaintiff that his rights would not be prejudiced, thereby; he also knew of the fire, and thirty-three days thereafter wrote to defendant reporting it. He had ceased about ten months before the fire to act as defendant's agent and no other notice was given. Held, that the acts and representations of Kelsey were in excess of his authority as expressed in the policy and did not bind the company in the absence of evidence that the company had enlarged his powers or waived the violated conditions.
    Appeal from an affirmance, by the general term of the fifth department, of judgment of non-suit in action on a policy of- fire insurance on a dwelling house at Cape Vincent, Jefferson county. The policy was issued by the agent of the defendant, having power to countersign and issue policies furnished in blank by the company, within the territory covered by his agency. It was a standard policy in the form and containing the printed conditions'prescribed by the act of 1886. It is dated July 12, 1887, and insured for three years a dwelling house of the plaintiff in the sum of $500. The plaintiff had insurance on other property in different companies and, by an arrangement between him and the agent of the defendant, his policies were left in charge of the latter, who was to attend to the plaintiff’s interests in case of any loss by fire. The defendant’s policy contained, among other conditions embraced in the standard policy, a condition that it should be void,, unless provided by agreement endorsed on or added to the policy “if with knowledge of the insured foreclosure proceedings be commenced, or notice of sale of any property covered by the policy by virtue of any mortgage or trust deed.” Also a provision that in case of fire the “ insured shall give immediate notice of any loss thereby, in writing to the company * * * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company in writing signed and sworn to by the insured,” containing certain particulars enumerated.
    By the concluding clause in the policy it was provided that “no-officer, agent or other representative of the company shall have any power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement, endorsed hereon or added hereto, and as to such provisions or conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written- or attached.”
    The part of this clause relating to added conditions or provisions is not material here, as none were added to the policy in question. After the policy was issued and before the fire the plaintiff mortgaged the premises on which the property insured was situafed, in connection with other premises, for $8,500. A foreclosure of the mortgage was commenced by process served on the plaintiff May 27, 1889, twenty days before the fire which destroyed the insured premises, which was on June 16, 1889. The company had no notice of this foreclosure. The policy of insurance was at the request of plaintiff delivered by Kelsey, the agent who issued it, to the mortgagee upon the execution of the mortgage, and there was endorsed thereon a clause making the loss, if any, payable to him.
    In February thereafter (1889), the policy, then in possession of the mortgagee, was burned in the burning of a building in which it was deposited, and no duplicate policy was applied for or issued In August, 1888, about ten months before the fire, Kelsey ceased to act as agent for the defendant and one Block was appointed agent in his place, who before the fire issued to the plaintiff a policy in the defendant’s company on other property, and Block kept the policy with others issued to the plaintiff in his possession, apparently under an arrangement similar to that previously had with Kelsey.
    The plaintiff never served any notice of loss on the company. Kelsey, the former agent of the defendant, on July 19, 1889, thirty-three days after the fire, addressed a letter to the company saying that he had just discovered, in looking over his account with the plaintiff, that the defendant had a risk on the property, and adding, “ Mot knowing anything further, whether reported by jour agent, or whether adjusted and paid, I take the trouble to make this report, feeling then as if I had done my duty.” The company replied that the matter had already “had our attention." The letter of Kelsey was not written in behalf of the plaintiff, or with his knowledge at the timé, but he testified that Kelsey informed him about a month after the fire that he had written the company and that they informed him they were paying attention to the matter. “He said he thought it would be all right; that he could collect it."
    Mo proofs of loss were served on the company until January 8, 1890, about seven months after the fire. The company refused to accept the proofs, and returned them. The witness Kelsey testified that in case of loss he would notify the company and it would send an adjuster, who would prepare proof of loss and settle the claim. But it appeared that only one loss had occurred during his agency for the defendant, and that it involved a few dollars only and was adjusted bv a special agent. The plaintiff testified that he did not read the policy and was ignorant of its conditions.
    The trial judge refused to permit proof that Kelsey knew of the commencement of the foreclosure proceedings, and assured the plaintiff at the time that no harm could come to him therefrom. The court at the close of the whole case directed a nonsuit

      D. S. Griffin, for app’lt; A. B. Sawyer, for resp’t

       Affirming 39 St. Rep., 8

   Andrews, J.

the rights of the parties depend upon the contract of insurance as expressed in the policy, there can be no hesitation in affirming the judgment of nonsuit

The provision as to the commencement of foreclosure proceedings ; the requirement that the insured in case of loss shall give immediate notice in writing to the company; and the other requirement, that within sixty days after a fire he shall render to the company a sworn statement of the particulars specified, are conditions precedent to a right to recover on the policy, and each of the three conditions mentioned was violated. Foreclosure proceedings were commenced to the knowledge of the insured before the fire; no notice of loss was served at any time by him, and the letter of Kelsey to the company within thirty-three days after the fire, even if it could be treated as having been written in behalf of the insured, was not immediate notice; and finally the proofs of loss were not served until months after the sixty days’ limitation in the policy had expired.

The authorities are conclusive that the non-performance of "these conditions, or any one of them, constituted a complete defense to a claim to recover on the policy as printed. Inman v. Western Ins. Co., 12 Wend., 460; Blossom v. Lycoming Ins. Co., 64 N. Y., 162; Titus v. Glens Falls Ins. Co., 81 id., 411. The plaintiff was driven to the claim that the company had waived the right to insist upon the conditions of the contract as contained in the policy, or had consented to be bound notwithstanding the violation of the conditions. He relied to establish .this contention upon certain' transactions and circumstances between himself and Kelsey, the agent who acted for the company in making the contract of insurance and issuing the policy, fully recited in the statement of facts. It is to be assumed that Kelsey learned of the •commencement of the foreclosure proceedings, and thereupon assured the plaintiff that his rights under the policy would not be prejudiced thereby; also that he knew of the fire when it occurred, and after writing the company the letter of July 19,1889, informed the plaintiff that he had done so, and that he need take no further steps towards giving notice or securing proofs of loss, and it is to be admitted also that the plaintiff had not read the policy and did not know what conditions it contained.

It is insisted that upon the whole evidence a question was presented for the jury, whether the company had waived the conditions relied upon to defeat a recovery, or had consented to be bound notwithstanding their violation. The transactions and interviews between Kelsey and the plaintiff took place after Kelsey had ceased to act as the agent for the defendant, but it is claimed that the plaintiff did not know that his. agency had terminated, and we shall consider the case upon the assumption that the company was bound by his acts to the same extent as if there had been no change in his relation to the defendant. The substance ■of the claim made by the plaintiff is that the agent of the company, invested with the power to make contracts of insurance and issue and countersign policies, may subsequently change or modify conditions therein and waive forfeitures ; in short, that in respect to policies issued by him he stands in place of the company and may do whatever the company itself might do in the premises.

The powers possessed by agents of insurance companies, like those of agents of any other corporations, or of an individual principal, are to be interpreted in accordance with the general law ■of agency. No other or different rule is to be applied to a contract of insurance than is applied to other contracts. The agent •of an insurance company possesses such powers and such powers •only as have been conferred verbally or by the instrument of authorization, or such as third persons have a right to assume that he possesses. Where the act or representation of the agent of an insurance company is alleged as the act of the principal,"and therefore binding upon the latter, the test of the liability of the principal is the same as in other cases of agency. No principle is better settled in the law, nor is there any founded upon moré obvious justice, than that if a person dealing with an agent knows that he is • acting under a circumscribed and limited authority, and that his act is outside of and transcends the authority conferred, the principal is not bound, and it is immaterial whether the agent is a general or special one, because a principal may limit the authority of the one as well as that of the other. Walsh v. Hartford Fire Ins. Co., 73 N. Y., 10.

The limitations upon the authority of Kelsey were written on the face of the policy. It declared that “ no officer, agent or representative ” of the company should have power to waive any provision or condition embraced in the printed and authorized policy, but power is given to agents to waive added provisions or conditions, provided such waiver is written upon or attached to-the policy. Where a policy permits an agent to exercise a specified authority, but prescribes that the company shall not be bound unless the execution of the power shall be evidenced by a written endorsement on the policy, the condition is of the essence of the authority, and the consent or act of the agent not so endorsed is void. Walsh v. Hartford Fire Ins. Co., supra; Marvin v. Universal Life Ins. Co., 85 N. Y., 278.

. The conditions violated in this case were contained in the authorized blank, and as to these the agent had no power" in any manner, in writing or otherwise, to waive them.

In determining the question of liability in this case it is immaterial whether the plaintiff read the policy or not, or that he had no actual knowledge of the conditions or of the limitations of the power of Kelsey. The conditions and limitations were a part of the contract, and he was bound to take notice of them, and is not excused upon the plea that he omitted to acquaint himself with the provisions of the policy, and his arrangement with Kelsey to take charge of his insurance interests was a matter with which the defendant had no concern.

The act, chapter 488, of the Laws of 1886, providing for a uniform policy known as the standard policy, aud which makes its use compulsory upon insurance companies, marks a most important and useful advance in legislation relating to contracts of insurance. The practice which prevailed before this enactment, whereby each company prescribed the form of its.contract, led to great diversity in the provisions and conditions of insurance policies, and frequently to great abuse. Parties taking insurance were often misled by unusual clauses or obscure phrases concealed in a mass of verbiage, and often so printed as almost to elude discovery. Unconscionable defenses based upon such conditions were not infrequent, and courts seem sometimes to have been embarrassed in the attempt to reconcile the claims of justice with the law of contracts. Under the Law of 1886 companies are not permitted to insert conditions in policies at their will. The policies they now issue must be uniform in their provisions, arrangement and type. Persons seeking insurance will come to understand to a greater extent than heretofore the contract into which they enter. Now, as heretofore, it is competent for the parties to a contract of insurance, by agreement in writing or by paroi, to modify the contract after the policy has been issued, or to waive conditions or forfeitures.

The power of agents as expressed in the policy may be enlarged by usage of the company, its course of business, or by its consent express or implied. The principle that courts lean against forfeitures is unimpaired, and in weighing evidence tending to show a waiver of conditions or forfeitures the court may take into consideration the natureof the particular condition in question, whether a condition precedent to any liability, or one relating to the remedy merely, after a loss has been incurred. But where the restrictions upon an agent’s authority appear in the policy, and there is no evidence tending to show that his powers have "been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power; nor is there any reason why courts should refuse to enforce forfeitures plainly incurred, which have not been expressly or impliedly waived by the company.

The- acts and representations of Kelsey, upon which the plaintiff relies, • were in excess of his authority as expressed in the policy, and did not bind the defendant, there being no evidence upon which it can be held that the company had enlarged his powers or waived the violated conditions.

These views lead to an affirmance of the judgment Earl, Ch. J., Gray and Finch, JJ., concur; Peckham and Maynard, JJ., concur in result; O’Brien, X, not sitting.


author: Earl, Ch. J.

text:
    Thomas Doyle, App’lt, v. The Rector, etc., of Trinity Church, Resp't.

      (Court of Appeals,

      Filed May 24, 1892.)

    Contract—Reparation op injuries.
    Plaintiffs assignor constructed a well for defendant. After it was about completed defendant authorized a third party who was not an agent of the contractor, but was believed to be so by defendant, to use torpedoes to improve the well, but they resulted in an injury to it. Defendant refused to pay the contract price until these injuries were repaired and finally an agreement was made by which the contractor was to make the repairs with tubing to be furnished by defendant; the latter claiming that the contractor should do the work at his own expense, to which he did not reply. Held, that there was no duress, and that while the contractor was not obliged to do the work, yet having done so under these circumstances, apparently acquiescing in the claim of defendant, he could not thereafter compel payment for it.
    Appeal from judgment of the supreme court, general term, ■second department, affirming judgment in favor of defendant.

      L. A. Fuller, for app’lt; S. P. Nash, for resp’t.

       Affirming 39 St. Rep., 888.

   Earl, Ch. J.

The record in this case does .not contain the evidence given upon the trial, and therefore the findings of fact by the referee must be taken as undisputed and true.

Jesse Button, plaintiff’s assignor, made a contract with the defendant to sink an artesian well. He fully performed his contract and there was a ■ balance due him for his work of about $450.

After Button had completed his contract, at the suggestion of A. E. Foth, the defendant made a contract with Mr. Siegel to explode a torpedo in the well to improve the flow of water, for which it agreed to pay him twenty-five dollars. Foth and Siegel both acted in good faith, and they and it believed that the explosion would improve the well. ■ Siegel exploded the torpedo and it unexpectedly shattered and injured the well. Button was not consulted about the explosion, had nothing to do with it and knew nothing about it until after the injury was done. Foth was in no way the agent of Button and did not act for him in making the suggestion of the torpedo, but acted for Siegel. The defendant, however, believed that in suggesting the torpedo he acted for Button.

Subsequently Button demanded the payment of .the balance due him for sinking the well, and it refused to pay him unless he would repair the well, and threatened if he did not-repair it that it would do so and deduct the expense thereof from the amount due him. He protested against this and denied his responsibility for the explosion and injury. He then suggested a mode for repairing the well which required the use of additional iron tubing It was finally agreed between him and it, that if it would supply the new iron tubes required, he would furnish the labor for repairing the consequences of the explosion, it claiming he should furnish the work at his own expense. He did not say that he would do the work without pay. But he went on under the arrangement and did the work without any other or further agreement, at an expense of $600, using the tubes provided by the defendant for that purpose. After he had finished the work of repairing, he demanded payment to him of the $600, besides a balance of $134.77, due him upon his original contract. The defendant refused to pay the $600, and then he assigned his claims to the plaintiff, who brough this action to recover $734.77, composed of the two items above mentioned. He recovered judgment for the $134.77, and upon this appeal claims that upon the facts proved, which have been substantially stated, he should also have recovered the $600.

The defendant seems to have had no good reason for requiring Button to repair the well. He had fully performed his contract for sinking the well, and had nothing to do with it, and was in no way responsible for the injury to the well from the explosion. The torpedo was exploded under an independent contract made-by the defendant with Siegel. It is wholly immaterial whether or not Both appeared to be his agent or was in fact his agent. Even if Button had in person suggested the explosion to the defendant, and if upon his suggestion or friendly advice given in good faith it had entered into the contract with Siegel, there is no rule or principle of law which would hold him in any way responsible for the performance of that contract by Siegel, or for the consequences of the explosion. The defendant, therefore,, had no shadow of claim against Button for the injury to the well,, and so far as appears no fair pretext for requiring him to repair the well. It was bound to pay him the $450, and if he had agreed, for the purpose of inducing it to pay him what it owed him, to* go on and do the work of repairing at his own expense, it could not have enforced that agreement against him if he had subsequently refused to perform it.

It would have been absolutely without consideration. But he accepted the terms imposed by it, and did the work after he was. informed by it that it would, furnish the iron tubes and that he must do the work at his own expensa By acquiescing in these-terms and voluntarily doing the work, he must be held in law to-have agreed to give and to have given his work to the defendant. So long as the contract was executory he was not' bound, by it But he could make a voluntary donation of his work as he could of a chattel, and after the donation was fully executed it was complete and irrevocable. Having agreed to do the work for nothing he could not after it was performed claim payment therefor. The defendant believing Button was1 under somó obligation to repair the well, and acting in good faith, told him that it would furnish the tubes and he must make the repairs at his own expense. He could not then do the work, apparently acquiescing in the claim of the defendant, and still hold it liable for the work by secretly intending all the time to charge it for the work. He was bound to do the work upon the terms proposed by it or not to do it at all He was at least bound to tell the defendant that if he did the work he would do it at its expense, and not otherwise. This is not like the case of one doing work for another merely upon his request, or even without any request or arrangement, where the one for whom the work is rendered acquiesces and receives the benefit of it But this work was done under the arrangement that he was to do it at his own expense. He was not compelled to do the work. A gift can undoubtedly be repudiated and reclaimed when it has been obtained by duress. He was under no legal duress or compulsion. The defendant simply refused to pay him what it undoubtedly owed him unless he would do the work. The courts were open to him as to every other citizen. He could have compelled payment of his claim by suit, and no reason is perceived'why he did not compel payment in that way. The defendant did not deprive or threaten to deprive him of access to the courts, or to bar his way to the enforcement of his rights by legal process. Amere refusal to pay a debt, without more, certainly does not constitute legal duress which will avoid a consummated gift. If one agrees to work for another for nothing, he may afterward refuse to work. But if he voluntarily performs his promise and does the work he cannot afterward compel payment for it.

So upon the findings of the referee we see no reason to doubt that the judgment below is free from error, and that it should be affirmed, with costs.

All concur.