author: Gray, J.

text:
    The Suburban Rapid Transit Co., App’lt, v. The Mayor, etc., of the City of New York et al., Resp’ts.

      (Court of Appeals,

      Filed October 20, 1890.)

    1. Eminent domain—Rapid transit act.
    When the proceedings instituted under the rapid transit act of 1875 have terminated in the organization of a corporation, which must construct, maintain and operate a railroad upon certain routes, prescribed and located by commissioners, as the public agents, directed by the act to be appointed for that purpose, the lands necessary for that purpose have been as much appropriated and devoted to that exclusive use by sovereign power, as though it had been so declared in some special enactment.
    3. Same.
    The subsequent purchase or condemnation of the fee in the lands in the course of the railroad construction is merely incidental and is necessary in order to compensate property owners for the land taken and to effect a transfer of the legal title.
    3. Same,
    Chapter 533, Laws 1884, known as the Parks act, was inoperative to take away or authorize the deprivation or curtailment of the rights of plaintiff acquired under the act of 1875, and the appropriation of the described tract to the purposes of a public park was subject to the exercise by the plaintiff of its franchise to maintain and operate its railroad upon the strip of land across the park.
    Appeal from a judgment of the supreme court, general term, first department, affirming interlocutory judgment sustaining demurrer to the complaint

      Burton N. Harrison, for app’lt; D. J. Dean, for resp’ts.

       Reversing 37 N. Y. State Rep., 643.

   Gray, J.

The allegations of the complaint in this action are not in dispute with respect to their recital of facts, of statutes and -of proceedings, and, by the demurrer interposed by the defendants, a question of law is presented, which is of considerable importance and is not free from difficulty.

The plaintiff was organized in 1880 as a railroad corporation under the provisions of chapter 606 of the Laws of 1875; usually referred to as the “ Rapid Transit Act.” By the resolution of the rapid transit commissioners, as embodied in the articles of association, certain routes were determined upon and located; to which the necessary consents of the public authorities and of property owners were also obtained. Subsequently, by condemnation proceedings under the statute, the new company duly acquired the fee to a strip through private lands, over which one of the routes had been located and concerning which the present controversy has arisen with the authorities of the city of New York. In June, 1884, chapter 522 of the laws of that year was enacted by the legislature, by the provisions of which the laying out of certain new parks was authorized in the Twenty-third and Twenty-fourth wards of the city. One of these parks, therein designated as “ St. Mary’s Park,” included within its limits the strip of land in question, which the railroad company claimed title to as a part of the located routes defined in its articles. The commissioners of estimate, for the appointment .of whom this act made provision, in the course of proceedings by the city authorities to acquire the lands for the parks, reported upon a certain amount to be paid to the plaintiff as the value of the strip of land in question; which, report was confirmed by the court against the company’s objections made both to the taking of the land and because of the failure of the commissioners to make any estimate of the damage resulting from the deprivation to the company of its franchise.

The plaintiff refused to take the amount of compensation adjudged to it, bu-t the city authorities claimed, nevertheless, to have acquired the fee to the land; took possession thereof as a part of the authorized area of St. Mary’s park, and by resolution of the common council and by acts of its officers prevented the plaintiff from proceeding with any work of construction within that area. This action was then brought on the equity side of the court, and the relief demanded is a judgment that prior to the passage of the act creating the new parks the plaintiff had the right to acquire for its railroad purposes the title to the strip of land through the tract designated as St Mary’s park; that by the proceedings of appraisal it had acquired that title and was not divested thereof by the order confirming the report of the commissioners under the new Parks act, and that the defendants should be enjoined from preventing the plaintiff from constructing its railways as required by its articles of association.

The court below, at special and general terms, has denied to the plaintiff the relief it has demanded, and the learning and ability of the judges, whose opinions are contained in the record before us, add to the responsibility of coming to a conclusion at variance with that reached by them after their consideration of the questions. I am conscious, too, of the necessity of so expressing the reasons which influence our conclusion as to lend to the force of mere authority the substance of sound judicial exposition.

The question which is presented to us relates to the effect of the passage of the new Parks act-of 1884 upon any then existing franchises and rights of the plaintiff- corporation. If by its organization, under the rapid transit act of 1875, it had become possessed of the franchise to construct, operate and maintain its. railroad over the routes designated and located by the mayor’s commissioners, which operated to vest in it a legal right to have-the lands affected by the designation, then I think we must hold that the act of 1884 was inoperative to take away, or to authorize the deprivation or curtailment of such a right.

The text of the opinions rendered in the supreme court is that the plaintiff at the time of the passage of the new Parks act in 1884 had acquired no' actual ownership in the land in question and had not commenced the proceedings to acquire such ownership. Therefore, it was considered that by the act of 1884 there was an exclusive devotion of the land to strictly park purposes, which was a use inconsistent with a railroad use, and that any inchoate right, previously acquired by the plaintiff, to proceed to the acquisition of the land for the construction of its railway was defeated.

The learned justices seem to have fallen into two errors. They have given to the language of the new Parks act a construction by which the particular tract of land designated for St. Mary’s park is appropriated to such a purpose to the exclusion of the plaintiff’s railway; and they have failed to recognize the acquisition and possession by the plaintiff of an indestructible franchise, in the exercise of which the condemnation of the fee in the land was but an incidental feature and in furtherance of a scheme which the organization of the corporation had given vitality to and to which, in the view I take, the land had become subjected by the paramount exercise of sovereign power. The learned justice at special term admitted that at the time of the passage of the new Parks act of 1884 the lands through St. Mary’s Park “ had been lawfully designated under a general act as part of the general route of the plaintiff’s railroadbut because not “ devoted to a railroad use actually in exercise,” he thought that “ there was no actual prior use to be considered by the legislature.”

In the discussion of this case our first consideration should be given to the legal status of a corporation which has been organized under the rapid transit act of 1875. When, by the determination of commissioners, appointed by direction of the act by the public authorities for that purpose, the public necessity for a railway has been established, they are required to fix and determine the route, or routes, of that railway; and they are given the exclusive power to locate them over the. streets and lands in city or county. They must decide upon the plans for the construction of the railway, or railways, with all the “ accompaniments in tracks and buildings, and other requisite appliances upon the route or routes, and in the locations determined by them.”

They must fix and determine the time within which such railway or railways, or portions of the same, shall be constructed and ready for operation; the maximum rate of fare and the amount of capital stock, etc. They must then prepare articles of association for the company to be formed; “ in which articles shall be set forth and embodied as component parts thereof the several conditions, requirements and particulars ” determined by the commissioners, pursuant to the preceding sections of the law; and which further shall provide for the release and forfeiture “to the supervisors of the county of all rights and franchises acquired by .such corporation, in case such railway shall not be completed within the time and upon the conditions therein provided.” When the whole capital stock has been subscribed, in books opened upon public notice by the commissioners, and the prescribed percentage has been paid in, the subscribers meet for organization and elect directors, to whom the commissioners are to deliver a certificate of organization, setting forth the articles of organization. Three of the directors are then to make an affidavit as to stock subscriptions and payments and that it is intended in good faith to construct, maintain and operate the railway or railways, in the articles of association mentioned. The certificates and articles are to be filed and “ thereupon the persons who have so subscribed such articles of association and all persons who shall become stockholders shall be a corporation, etc.” Chap. 606, Laws of 1875, §§ 4 to 9. All that the legislature has prescribed in these sections is essential to the legal incorporation of the new company and for the enjoyment and enforcement by it of corporate rights and privileges, and on the other hand, when so legally organized, the company’s rights are fixed, and its sphere and plan of operation are limited and rigidly defined. All that remains for it to do is to proceed with the building and operation of its road in the manner planned, and upon the routes located by the commissioners and which are set forth in its articles of association. Differing from the ordinary railroad corporation, organized under the general railroad act, which is privately formed and which, as to the scope and conditions of its undertaking, has little fixed upon organization except the termini of the road and the counties it will pass through, the company organized under the Eapid Transit Act of 1875 springs into existence fully equipped and endowed with rights and privileges; with its line of way already designated and its structures and appliances already planned ; of which nothing is alterable by its members. The act of 1875 was a scheme devised for furnishing within large cities and in counties quick steam railway communications, and that the construction of any such railway should only be when and where a public necessity existed, and as would best subserve the-public advantage, the determination as to the necessity and as to the number and location of the routes and as to details of the formal organization of the company which should operate them, were matters entrusted to public agents, to be selected by the mayor of the city or the county supervisors. Thus these were fundamental features which were planned for the new corporation, and were fixed and beyond the control and power to change of its future members.

With the ordinary railroad company, formed under the general railroad act, the enterprise, as to construction and operation, is inchoate after it is erected into a corporation; whereas the corporation which is erected under the Eapid Transit Act commences its existence and operations with everything planned and, except in details, perfected. Its line of road is located and the streets, places or lands over which it is defined by the commissioners are impressed as with a public use and are dedicated to the purposes and uses of the corporation to be organized.

In the case of the New York Cable Co. v. The Mayor, etc., of New York, 104 N. Y., 31; 4 N. Y. State Rep., 308, it was said of the Eapid Transit Act that its distinguishing feature was that “ the company to be organized is not left at liberty, as are railroad companies formed under the general railroad act, and as were those which, formerly were created by special acts, to decide for themselves upon the plan of construction; but that subject was placed under the exclusive control of the commissioners, in addition to the exclusive power to locate the route or routes.”

The route, or routes, located are unalterable by the company, and I think the property over which the line of the route runs must be affected as fully for -the purpose as it would be in a case where, under the general railroad act, a corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to-all persons affected thereby. In such a case we have held that the corporation “ has acquired the right to construct and operate a railroad upon such line,” and that “by its proceedings it has impressed upon the lands a lien in favor of its right to construct which ripens into title through purchase or condemnation proceedings.” Rochester, H. & L. R. R. Co. v. N. Y., Lake Erie & W. R. R. Co., 110 N. Y., 128; 16 N. Y. State Rep., 838.

The very scheme, which the legislature devised' and enacted into a general law in 1875, involved the appropriation and devotion of the lands covered by the route designated by the commissioners to the corporate use of the railroad company to be organized. That would seem to be a necessary and legitimate construction, if we would give efficacy to the legislation and sense and force to the provisions for the creation of the new corporation and for its confinement to certain routes in the operation of its corporate franchises.

It seems to me that when the proceedings, instituted under the Rapid Transit act of 1875, have terminated in the organization of a corporation, which must construct, maintain and operate a railroad upon certain routes prescribed and located by commissioners, as the public agents directed by the act to be appointed for that purpose, the lands necessary for the purpose have been as much appropriated and devoted to that exclusive use by sovereign power as though it had been so declared in some especial enactment When the route, or routes, were located, upon which the railroad of the new corporation should be constructed, what other legal effect could follow except a subjection of the land affected to this species of public use, as through the exercise of paramount right?

The subsequent purchase, or condemnation of the fee in the lands in the course of the railroad construction, was merely incidental, and was necessary in order to compensate property owners for the land taken and to effect a transfer of the legal title. The right which the plaintiff acquired to construct and operate its railroad upon the route described in its articles of association lacked nothing for its efficacy or completeness. It had become an obligation, and was one of the unalterable conditions and a fixed public feature of the corporate existence. When to it were subsequently added the consents of municipal authorities and of property owners, was any feature wanting to the fullest franchise in such respects ? To say that the right to appropriate the land on the designated routes for railroad use was not vested, but merely inchoate; in my judgment, would he a great misapprehension of the effect and value of formal, proceedings, conducted under legislative authority and direction, and of the formal consents of the public authorities to the projected line. A striking feature of this public law, which authorizes the appropriation of the streets and lands within a county for railroad uses, when the necessity for such has been determined by public commissioners, is the imperative nature of the direction to construct, under the penalty of a forfeiture, within the time fixed, and upon the conditions set forth in its articles. How can a franchise, so conferred by the legislature, be deemed inchoate and defeasible ? Is not its possession an element of the security upon which capital has been subscribed and loans have been made to the company ? The construction of this railroad had been proceeded with upon the plans of the com mission ers and with reference to the projection _of the route upon the line designated and consented to. The company’s funds had been expended with reference to its road being constructed upon the plans and routes designated by the public agents. In the case of the Broadway Surface Railroad, People v. O'Brien, 111 N. Y., 1; 19 N. Y. State Rep., 173, the corporate franchise, acquired under the authority of the legislature and the consents of the municipal authorities, to lay tracks and to run cars upon Broadway, was held by us to be a right indestructible by the legislature, and to constitute property in the highest sense of that term.

I think we must conclude that the statutory proceedings which resulted in the organization of the plaintiff corporation had the effect of vesting in it the absolute and exclusive franchise to build upon the route located for it and to the use of which the lands were devoted, through the exercise of the paramount right of sovereign power; which franchise was unimpaired, with respect to the right to take and use the land in question, by the fact that the work of actual construction had not reached it at the time the legislature passed the act for the new parks. The articles of association, under which this corporation was formed, were its charter with the state and though a deprivation of the franchises granted may be within the power of the legislature to authorize, if some public necessity should demand it, we should not deem that power exerted, in the absence of some unequivocal expression of the legislative intent

The new Parks act of 1884 does not expressly exclude the plaintiff from the tract appropriated to St Mary’s Park; nor is there any reference to, or mention of, the plaintiff in its provisions. Can we justly say that a legislative intention to make so exclusive an appropriation for park purposes appears from the terms of the act? Shall we imply such an intention from its general grant of power ? It is true that the legislature has said that the tracts designated for these parks “ are all hereby declared to be respectively public places and public parks for public use and public purposes;” but these are general terms, which, describe the character and object of the legislative grant. They do not necessarily conflict with the completion and maintenance of the plaintiff’s railroad upon a route authorized and located within the tract now set apart for one of the parks. The continuance of such a prior public use may have been deemed by the legislative body quite consistent with the new use of a public park. It may indeed be conceded that the legislature had in view, in enacting the new Parks act, a particular and existing public need; but it is not necessarily to be inferred, or implied from language which is applicable to a legislative provision for that purpose, that a prior public use, also intended for the public accomodation, is to bo destroyed.

It is wiser to assume that the legislature intended that the two uses should stand together, as equally subserving the public interests. The integrity of the prior appropriation for the purposes of the plaintiff’s incorporation should not be assailed upon the basis of an implication from the general terms of an act, which we may believe to have been framed with actual knowledge of the plaintiff’s condition and upon the belief that the operation of the plaintiff’s franchises, as directed in its articles, would be in the line of the general public interests. If it was necessary to the conclusion to-establish knowledge upon the part of the legislature as to the plaintiff’s incorporation and construction, that could be shown by the fact that there was made to that body a report by its commission; to which reference is made in the act and which contained information of the plaintiff’s progress in the work of construction. But such knowledge is not essential. What we hold is that as the legislature, in enacting this chapter providing for the creation of new parks, did not expressly.confer the power upon the defendants to take the lands for such a purpose, to the exclusion and deprivation of the plaintiff company, such a power does not flow from the general and descriptive terms in which the legislature declared the object in view. There is not enough in the new Parks act to warrant the presumption that its effect was meant to extend to the injury of the other important public use. The appropriation of the described tract to the purposes of a public park was subject to the exercise by the plaintiff of its franchise to maintain and operate its railroad upon the strip of land across the park. The power which had been conferred upon it to proceed with and upon such a route was never taken away expressly or by any reasonable intendment, and the subsequent appropriation of the tract to a public park use was necessarily made subject to the plaintiff’s chartered rights.

The case of The Matter of the City of Buffalo, 68 N. Y., 167, is much in point upon the intent to be ascribed to the legislature. There the act in question (which was the city’s charter) authorized the city to acquire the fee of any lands within its boundaries for canals and other public uses, and it endeavored to extend a canal through lands already appropriated for railroad purposes. It was held that if there had been a legislative appropriation of the lands to another important public use, it was not to be presumed that the unlimited power of the city to take any lands was meant to extend so as injuriously to affect the railroad use. It was said that a legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms. To ■defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear.” And it was considered to be manifest that the city’s project would not be a tolerable interference with the existing public use of. the railroad which might' be compensated for in damages, but an entire superseding of it by another public use; which effect the court refused to presume the legislature intended. The fact that in that case the power to take was as to any and all lands within the city boundaries, while in the present case the power is conferred as to a particular tract, is not material. In the absence of express language no implication of an intention to supersede the prior devotion to the public use of the plaintiff’s railroad can be predicated upon the general ternas of an act which does not require such by reason of some inherent necessity; or for the attainment of an object not otherwise to be effected. A construction of an act should be avoided which would injuriously affect the rights of others, and that sense should be attached to its provisions which will harmonize its objects with the preservation and enjoyment of all existing rights.

Considered in this way the act of 1884, creating these public ■ parks, leaves intact and unaffected the public railroad uses to which the lands included within the park areas had been subjected ; whether, as in the present case, the railroad was not yet actually constructed upon the land appropriated for the purpose, or, as in several known instances, the railroad was in actual operation. Though, in a certain sense, a public park use may be said to be inconsistent with a railroad use of property; still that is not a view which we should logically take when considering the effect of the legislative appropriation to park uses upon another important public use previously authorized by the legislature. The public accommodation is the object of the latter; as the public pleasure and recreation are the objects of the former. We may justly assume, from the absence of explicit language, or from .the knowledge possessed by the legislative body of tne facts, that the park use was believed to be subserved by the continued operation of ■the railroad. However that may be, the subsequent appropriation of the lands to park purposes, for want of terms conveying a different intention, was subject to all rights acquired by the plaintiff corporation, and to the operation of its franchises. •

The complaint sufficiently set -forth the grounds upon which the plaintiff was entitled to relief ; and the judgments and orders at the special and general terms below should be reversed, the demurrer interposed by the defendants to the complaint should be overruled, and judgment should be entered below against the defendants granting to the plaintiff the relief prayed for.

AH concur, except FnsrcH, J., absent.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Florence Dudley, Resp’t, v. The Westcott Express Co., App’lt.

      (City Court of New York, General Term,

      Filed October 22, 1891.)

    Negligence—Action fob damages fob fbbsonal injtjbies.
    Whether a mother who permits her child three years and four months-old to go out unaccompanied into the street for the purpose of-buying candy has omitted to exercise a proper degree of care and watchfulness is not a question of law to be decided by the court, but a question of fact which must be submitted to the jury to be determined from all the surrounding circumstances. Verdict for such a child plaintiff sustained.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiff and from an order denying new trial on the minutes.

      Jerotoman & Arrowsmith, for resp’t; E. Luther Hamilton, for app’lt.
   Van Wyck, J.

The plaintiff, who sues by a guardian ad litem for injuries received by being run into and over by a horse and wagon belonging to and under the control of the Westcott Express Co., was, at the time of the accident, a little girl three years and four months old and resided with her parents at No. 234 East Forty-second street, south side of the street, between Second and Third avenues, in a five story apartment house. There is no court yard to the house, and four families live on each story. Mrs. Dudley testifies that her child, the plaintiff, was a bright and. intelligent child; that she had on this occasion given her a penny with which to buy candy, and that her child had gone out to buy the candy at a store four houses east of her home, and that she went there once in awhile; and that on this occasion the little girl had been out of her presence three or four minutes.

The witness Whiting testified that he noticed the wagon coming up from Third avenue towards Second avenue, going east; it was going very fast; the driver of it was lashing the horse; that is what made tlje witness look back, because he was going so fast; he was going'up very fast; he was on the south side of the street at the time; he was going straight up and witness was watching; when he came near Second avenue he turned a little more south towards the sidewalk, and just as he turned the horse, where the child came from witness didn’t know, but witness saw the child all of a sudden under the wagon; she got knocked down, and that when he was passing the driver was whipping the horse all the time.

Mr. Minnough, a witness, testified that when he met the defendant’s wagon he saw the horse going in jumps and springs; he was jumping; the driver was putting the gad on him at the time;, putting the whip on him; the driver continued to lash the horse and the horse to jump.

Mr. Standridge, another witness, testified that before the accident he saw the man coming down, standing up in the wagon, cutting and slashing the horse, and it on a run, and the horse going twelve and a half to fourteen miles an hour.

The witness Trainer testified that the driver was standing up in the wagon and was laying the whip on the horse and the horse was jumping from one side to the other; first he was on the south side of the street and then he came over to the north side and then he recrossed the track and went over to the south side and went east; that witness stood on the sidewalk and watched all along until the accident occurred, but that the witness was not right on the ground, right on the very spot where the accident ■occurred; that he could see the child thrown down but he could not see whether it was the horse or wagon that touched the child; that the driver was laying on the whip and the horse was breaking into what we call a gallop.

Another witness, Mr. O’Connell, testified that when he first saw the horse and driver he was on the track like, and between the paving stones on the south side of the street; he tried to cross ■over; he was going zigzag and witness saw the little child there; saw her getting knocked down and fall under the wagon wheel and saw the driver lashing up the horse with some kind of a.stick ■or whip or his reins, and the horse kicking up monkey shines and galloping, and that after witness saw this fellow lashing this horse that way he saw the child knocked down in the street and run over, and that had he, the witness, been there himself he would have just got run over the very same.

Dr. Jeoffrey, who attended the child on every day for three weeks, and two other witnesses gave evidence as to the severe ■character of the child’s injuries. This closed the plaintiff’s case, whereupon the defendant moved for a dismissal of the complaint, which was refused. The defendant offered no evidence. The ■counsel then summed up the case, and Chief Justice Ehrlich, in a carefully considered charge, submitted the case to the jury, who returned a verdict for the plaintiff.

The court of appeals in the Weil case, 119 N. Y., 147 28 N. Y. State Rep., 944, in which the plaintiff suing for damages for personal injuries received while playing in the street was a girl ■only two years of age, held that the question whether her parents had exercised that care and restraint over her that the law requires in case of children of such tender years should have been submitted to the jury, and reversed the judgment of nonsuit, sending the case back for that question to be tried by the jury. The trial judge would have undoubtedly committed a fatal error if he had ruled, as matter of law, in the case at bar that the mother, by .allowing the child plaintiff to go out into the street unattended for the purpose of buying candy, had neglected to observe that degree of care in' regard to the movements of her child that the law imposed upon her. And so, too, it would have been error for the judge to have ruled, as matter of law, that the horse had been driven in a manner such as would have been indulged in by a careful and prudent man, or that the child had not been injured by defendant’s horse or wagon, or that she or her mother had been negligent ; and all of these questions would have been so ruled had the defendant’s motion to dismiss the complaint been granted.

The evidence shows that plaintiff was entitled to the verdict, and her judgment must be affirmed, with costs.

Hewburger, J., concurs.


text:
    Henry Wallerstein, Resp’t, v. The American Surety Co., App’lt.

      (City Court of New York, General Term,

      Filed October 22, 1891.)

    1. Pleading—Demurrer.
    . On trial of demurrer to answer for insufficiency, defendant may attack the complaint for insufficiency, but only at the trial and must then impress his attack on the record so as to inform the appellate authority that he has so attacked it, otherwise his objection will not be heard on appeal from the judgment.
    2. Undertaking—Surety on appeal.
    An undertaking whereby a surety undertakes that an appellant will pay the value of the use and occupation of premises if a judgment is affirmed is a contract of suretyship, and the respondent need not first resort to his remedy against appellant, but may proceed directly against the surety upon defendant’s failure to pay when the judgment is affirmed.
    Appeal from judgment sustaining plaintiff’s demurrer to answer for insufficiency.

      Ira Leo Bamberger, for resp’t; Osborn & Beatty, for app’lt.
   Van Wyck, J.

Before considering the merits of defendant’s appeal from the judgment sustaining plaintiff’s demurrer to the affirmative defense in the answer for insufficiency, an investigation should be made of the question whether the general term should listen to defendant’s objection, that the complaint does not state facts sufficient to constitute a cause of action, since he has made no such objection at the trial of the demurrer at special term, but does so for the first time on the hearing of this appeal. It is the established rule of practice that on the trial of a. demurrer to an answer for insufficiency, the defendant can attack the complaint on the ground of its insufficiency, but can he remain silent at the trial as to such defect and still have the right to make available objection upon the hearing of the appeal from the judgment. Such is the contention of the defendant’s counsel. It does seem that the maintenance of an orderly system of practice requires an investigation of this question.

Judge Pratt, in writing, at general term, in dismissing an appeal in Pope v. Dinsmore, 29 Barb., 367, says : “ It is claimed on the part of the defendant that an objection to the sufficiency of the complaint may be taken for the first time upon appeal. If that be so, this appeal cannot be dismissed. It is true that when the complaint does not state facts sufficient to constitute a cause of action, the objection need not necessarily be made by demurrer. • But the question, in my opinion, should, in some form, be raised and passed upon at special term or circuit before the party objecting should be allowed to appeal. . Under the Code, the appeal tO' the general term seems to be provided for the review of actual determinations of the court at circuit and special term.” And Judge Gilbert, also at general term, in Howell v. Mills, 7 Bans., 193, says: “ The complaint contains no averment that the plaintiff was in possession of the premises to be partitioned. Neither of the defendants interposed a demurrer on this ground, nor was the objection taken at special term in any form. We think it cannot be presented here for the first time.” Although these two cases did not present nor consider a question similar to the one now under investigation, and cannot, therefore, be deemed positive authority, still they involved the same general principles of practice. However, it would seem that the court of appeals lias passed practically upon the same question in Hofheimer v. Campbell, 59 N. Y., 269, in which the allegations of the complaint were not denied, and on the trial no proof thereof was made or offered, but the answer alleged an affirmative defense, which the judge, at trial, decided was not good in law and refused to allow proof thereof, to which defendant duly excepted, whereupon a verdict was directed for plaintiff for the sum claimed in the complaint No objection was there made to the sufficiency of the complaint, but on the hearing at the general term of the appeal taken by the defendant, his counsel, then, for the first time, made specific objection that the complaint did not state facts sufficient to constitute a cause of action; and Chief Justice Church, writing for affirmance of the general term, said: “ It is insisted that the attention of the court below was not called to any defect in the complaint, and that no such question can be raised here. I think this point cannot be taken here. It was assumed that the facts stated constituted a cause of action. The defendant did not move for a nonsuit. If the objection had been taken at the trial, the complaint might have been amended and the additional facts supplied. It is a general rule in the trial of actions that defects which, if pointed out, may have been supplied or avoided, will not be available on appeal. That section (meaning 148 of the old Code, which corresponds to 499 of the new Code) merely provides that the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by the omission to raise the question by answer or demurrer, the effect of which is that such objection may be taken on the trial. In general such objections are waived if not taken by the pleadings or on the trial. It would be manifestly unjust to permit an objection for the first time in this court which the party had every opportunity to present in the court below, and which if made might have been obviated. The question presented is not free from difficulty, but we think it is not available in this court.”

The conditions presented .at the trial in the Hofheimer case were such that no disputed questions of fact were tried, but the judge was called upon to try the very same questions of law which he would have tried if he had been holding a special term and hearing the demurrer to the affirmative defense set forth in the answer.

This case would seem to establish as the best practice the rule that a defendant on the trial at special term of a demurrer to the answer for insufficiency may. attack the complaint for insufficiency, but must so impress his attack on the record as to inform the appellate authority that the same had been made at the trial, before he will be allowed to question the sufficiency of the complaint on the appeal from the judgment.

The unreported decision by Judge Truax is not at variance with this rule of practice; he was sitting at special term, supreme court, and properly allowed the defendant to attack the sufficiency of the complaint when hearing plaintiffs demurrer to the answer, but he cites the case of Parsons v. Iiayes, 50 N. Y. Superior Court, 29, which apparently holds a different rule of practice, and the case of People v. Booth, 32 N. Y., 397, which merely holds that ■on demurrer to answer for insufficiency the defendant may attack the complaint for its insufficiency. This is the undoubted rule of practice, but that case does not hold that such attack can in the first instance be made on appeal, nor does it appear therein that the attack was not made on the trial at special term, and hence it must he assumed that it was first made at the trial.

The Parsons case was an appeal to the superior court, general • term, from an order overruling some of the demurrers interposed by plaintiff to some parts of the answer, which the judge writing says should be dismissed, as no appeal lies from such an order, but only from an interlocutory judgment entered thereon, and on the conclusions which the judge finds as matters of law. That is the practice, but the appeal was not dismissed, and the judge writing proceeds to consider, for some reason, the appeal as an appeal from such a judgment; possibly both counsel may have consented that the general term might consider the matter de nova, or may be it was considered as an appeal from an order where the general term exercises authority to give affirmative relief to the party opposing the motion, as held in Bennett v. Lake, 47 N. Y., 93, and yet it would seem from the opinion that the plaintiff had objected to the general term considering any objection to the sufficiency of the complaint. At any rate the appeal was considered on its merits, and the sufficiency of the complaint fully investigated, and final conclusion reached that the complaint was not insufficient, and that the plaintiff’s demurrers to the answer were properly overruled. Judgment was affirmed, and Truax, J., dissented. It can hardly be said that this case is an authority upon the question now under discussion. The rule laid down in the Hojheimer case tends to a more orderly system of practice than the one contended for in the Parsons case.

The objection of this defendant, the Surety Co., to the complaint would seem to be technical, for, at most, plaintiff has accidentally omitted to add the words !i mentioned in said undertaking ” after the word “ defendant where he alleges that defendant has not paid the value of the use, etc.; and it is fair to assume that had objection been made to this omission at the trial, that the judge would have allowed it to have been supplied, if requested to do so. Moreover, should the general term consent to hear defendant’s objection originally it would have all the authority of the special term including that of allowing plaintiff to amend his complaint, but the assumption and exercise generally of such original authority by a general term would lead on and on until its appellate authority might be lost sight of in the labyrinth of original questions which would be presented for consideration.

The plaintiff’s demurrer on the other hand is substantial and directed at the very substance of the defense, and if sustained would merely leave the defendant as contesting the reasonable value of the use and occupation, and thus is reached the consideration of the question whether the affirmative defense in the answer is good in law. The defendant Surety Company did, by the undertaking sued upon, undertake, that if the judgment appealed from, which was for $260 and the recovery of immediate possession of certain real property, is affirmed, the appellant Bohanna will pay the costs of appeal, the sum directed to be paid by the judgment appealed from, and the value of the use and occupation of the property from the time of taking such appeal until the delivery of possession pursuant to such judgment. The judgment appealed from was affirmed and it seems that the $260 and the costs have been paid but the value of the use and occupation has not been paid, and this action is brought for the same against the Surety Co. by the respondent in that action. The substance of the affirmative defense of the surety" is that the amount of the value of such use and occupation has not been adjusted as between Bohanna, the appellant, and Wallerstein, respondent, by action or otherwise. The undertaking is a contract of suretyship by which the surety assumes to perform the contract of the principal debtor (Bohanna) if he should not, and is a direct liability to the plaintiff for the act to be performed by the debtor, which was the payment of the value of the use and occupation of the premises.

The surety’s liability by action was fixed upon the default of 'the principal debtor, and of which it must inform itself from the principal debtor. It was not necessary for plaintiff to first bring another action against the principal debtor for such value, and if he had done so, and had prosecuted the same to judgment, it could have been of no avail in an action against the surety, who would not be liable for the costs of the same and could still force the plaintiff to prove the value of the use and occupation. The complaint shows that the judgment appealed from, which directed that plaintiff have immediate possession, was entered and appealed from May 21, 1889, and that the final judgment of affirmance was filed December 20, 1890, and hence the plaintiff was on that day entitled to possession and to the value of the use and occupation from “the time of the taking of said appeal until the delivery of possession,” and which had certainly been stayed by the giving of this undertaking until the day of final judgment of affirmance.

.The Surety Company must be presumed to have notice of all defaults of the principal debtor, and if the amount prayed for in the complaint is excessive, the Surety Company should "communicate with Bohanna, to whom it must look for indemnity, arid inform him of the condition of this action and ascertain from him what is the reasonable worth of the use and occupation, and upon such information offer judgment for the just amount owing, for otherwise it may have a larger bill of costs taxed against it. The final judgment of affirmance was for immediate possession and the value of the use and occupation of the premises. The only thing remaining to be done is to ascertain the amount of such value.

In thé case of Hatch v. Elkins, 65 N. Y., 489, the defendant bound himself to indemnify plaintiffs against all losses which they might sustain by acting as stockbrokers for one Badger in short sales of stocks, and thereafter plaintiffs had rendered to Badger an account showing the amount of his losses, which he had acknowledged as correct, but no action had been brought against Badger, and in this action against Elkins, the surety, it was properly held that this account was no evidence against the defendant and that plaintiff must, prove de nova the amount of losses by the short sales of stock for Badger. Hence, what idle form it would be to compel the creditor to first adjust his losses with his debtor before suing the surety, if such adjustment can in no way bind the surety.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.