text:
    John P. Persch, App’lt, v. J. Wesley Allison, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Pleading—Complaint—More definite.
    Where, in an action to rescind an agreement on the ground of fraud, a list attached to the agreement enumerates forty patents by number and date, but the complaint does not assert that none of them were owned or controlled by the company, but only states that it did not own or control those “ necessary to operate, license or use the automatic exchanges,” the defendant is entitled to know which ones in the list are referred to, and the plaintiff will be required to make the complaint more definite and certain by stating which of the forty patents the company did not own.
    Appeal from an order requiring the plaintiff to make his complaint more definite and certain.

      Hugo Hirsh, for app’lt; George Zabriskie, for resp't.
   Brown, P. J.

This action was brought to obtain a judgment rescinding a contract between the parties, and to obtain the return. of certain notes and money delivered to the defendant under the contract, and to recover damages. A copy of the agreement was attached to the complaint. By it the defendant agreed to assign and transfer to the plaintiff his right, title, and interest in a license of the Strowger Automatic Telephone Company, for the state of Pennsylvania. A copy of the license was attached to the agreement, with a list of forty patents controlled by said company. The complaint alleged that the plaintiff was induced to enter into said agreement by "the representations of the defendant that said company was “ the owner, licensee, patentee, and had control of the necessary patents to use arid operate automatic telephone" exchanges by automatic switch boards, without the use of central offices, and that no other persons or corporations had received or purchased or were then the owners or controlled the right to the exclusive use and operation of said automatic telephone system for the state of Pennsylvania, bnt that said license conveyed said sole and exclusive right to use arid operate and license said telephone exchange in the state of Pennsylvania.” It further alleged (in the sixth paragraph) that all of said representations so made by the defendant Allison, to the plaintiff, were false and untrue; that the" license issued by the said company to the said defendant, J. Wesley Allison, was worthless, as the said company had no right, title, or power to grant said license; that it was not the owner or licensee of said patents necessary to operate, license and use automatic telephone exchanges in the manner hereinbefore described, and that said Allison possessed no right, title, or interest in said exchange or company which could be utilized ; that on or about the 1st day of August, 1893, and previous to the execution of said license, the said company entered into an agreement with one-Cassius M. Upton in and by which it agreed to sell and deliver to him- a license, and to convey to him, by a good and sufficient deed, the sole and exclusive right to use, operate, and license automatic telephone exchanges in the states of Pennsylvania, New Jersey, Ohio, and Michigan; and that the said Upton fully complied with the conditions of said agreement: but that said company failed to comply with the said agreement; and that an action is now pending in a court of competent jurisdiction, brought by said Upton against the said company, for a specific performance of said contract.

We are of the opinion that the order appealed from was properly granted. It required plaintiff to specify what patents are referred to in the sixth paragraph of the complaint. The list attached to the agreement enumerates forty patents by number and date. It is not asserted that none of .them were owned or controlled by the company, but that it did not own or control those “necessary to operate, license, or use automatic exchanges.” The defendant is entitled to know" which ones in the list are referred to. Again, the allegation that the défendant possessed no right, title, or interest in said exchange or company that could be utilized is very indefinite. The defendant is entitled to know what the plaintiff means or refers to by the word “ utilized ” ; whether he intended to claim that the patents were worthless or impracticable, and, if so, whether the claim referred to all or only a part of those named in the list, or whether the claim was that the defendant’s interest in the patents was of such a meager character that its assignment to the plaintiff would not transfer to him a right which he could use in a practical way or manner. The allegation in the seventh paragraph that the company had failed to comply with its agreement with Upton would appear to be unnecessary to the plaintiff’s cause of action, but, if it is to remain in the complaint, •it should be made sufficiently definite for the defendant to know what facts he will be called upon to meet at the trial. The plaint iff may, however, elect to strike out that part of the seventh paragraph^ and he should have permission to omit it from the amended complaint. With this modification, the order should be affirmed, with costs.

Order modified so as to permit plaintiff to amend his complaint, as indicated in the opinion, and, as modified, affirmed, with $10 costs and disbursements.

All concur.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    In the Matter of Proceeding to Compel the Executors of Bernard Travis, Deceased, to Pay Interest on Certain Legacies.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895).

    Interest—Legacies.
    Infant grandchildren of the testator are entitled to interest on their respective legacies from his death, where the will works an equitable conversion and the executor does not, within a reasonable time after the death of the testator, sell the land so as to provide a fund for the payment of debts and legacies.
    Appeal from an order, granting an application to compel the executor to pay interest on certain legacies.

      Joseph C. Crane, for app’lts; Platt & Thompson, for resp’ts.
   Brown, P. J.

The will of Bernard Travis, deceased, was admitted to probate on June 3, 1892. It contained the following provision:

“.Seventh. I do hereby direct my hereinafter named executors and trustees, the survivor or survivors of them, to set apart from my estate the sum of three thousand dollars, and I do hereby give and bequeath the said sum to them, to have and to hold the same in trust, and the interest and income arising therefrom to be paid to and equally divided between my three grandchildren, Lewy Travis, Augusta Gr. Travis, and Bobert H. Travis ; and, upon their respectively attaining the age of twenty-one years, I do give and bequeath to each of them the sum of one thousand dollars, to be paid from the aforesaid sum.”

This proceeding was instituted in October, 1894. The affidavit of the executors filed in answer to the petition states that the personal property is insufficient to pay the legacies, and they must be paid from the sale of real estate, and that a large portion thereof had been taken by the city of New York, and that the remaining portion had not been sold. It does not appear from the appeal papers that any evidence was given by the executors in support of the allegation of their affidavit which I have quoted, and we are not informed as to what part of the real estate was taken by the city of New York, nor for what purpose, or at what price, or under what statute the city acquired the land, or of the relative value of that taken by the city and that held by the executor. ' By the will of the testator, the executors were directed to sell the testator’s real estate “upon such terms, and at such price, and in such manner” as they should deem for the best interests of the estate. No reason is assigned why such portion of the real estate as was not taken by the city has not been sold. The direction of the will worked an equitable conversion of the land, and, while the executors-are entitled to a reasonable time in which to effect a sale, in the absence of all explanation, we are of the opinion that two years was ample time within which to have complied with the direction of the will. The evident intention of the testator was that the sum of $3,000, bequeathed by the seventh clause of the will, should be set apart, within a reasonable time, for the benefit of his grandchildren, and they are entitled to interest on their respective legacies from the testator’s death. Cooke v. Meeker, 36 N. Y. 15; King v. Talbot, 40 id. 76.

No excuse was shown by the executors for not complying with the direction of the will, and the order should be affirmed, with $10 costs and disbursements. All concur.


text:
    Oliver W. Cook, App’lt, v. New Amsterdam Real Estate Association et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Deposition—Examination before trial.
    An affidavit by defendant’s attorney for the examination of plaintiff before trial is defective, where it does not state that the facts alleged were known to such attorney nor the sources of his information.
    Appeal from an order, denying a motion to vacate an order directing plaintiff’s examination before trial.

      Henry W. Smith, for app’lt: Amasa J. Parker, Jr., for resp’t Albany Nat. Bank.
   Brown, P. J.

The affidavit upon which the order for the plaint-

iff’s examination was granted was defective in not showing the materiality of the plaintiff’s testimony to the knowledge of the attorney who made the affidavit, or stating the source of the attorney’s information, and the reason for not producing the affidavit of his informant. The affidavit states that issue had been joined in the action by the service of an answer by the Albany Bank, but it does not state the nature of the defense. It states that the attorneys had been informed that the mortgage was not a bona fide mortgage ; that it was not given for a valuable consideration, but made for the purpose of enabling some of the stockholders of the real estate association to obtain title to the mortgaged property by foreclosure proceedings upon a claim not in existence; but it does not state that such facts were known to the attorney making the affidavit, nor does it state the source of the information. Such an affidavit is fatally defective. Hale v. Rogers, 22 Hun, 21; In re Bronson, 78 Hun, 351; 60 St. Rep. 725. The order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


author: Cullen, J.

text:
    Caroline Meyer, Resp’t, v. Mary Mallon et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Judgment—Y acation.
    A motion to open a foreclosure judgment, made after the lapse of seventeen years, will be denied on the ground of loches, where the judgment roll contains an affidavit of personal service of the summons and complaint, which is opposed only by an allegation in the moving affidavit that, to the best of defendant’s recollection, the summons and complaint were not served on her.
    Appeal from-on order, denying a motion to set aside a judgment of foreclosure and sale, and to permit the defendant to answer. •

      Norman A. Lawlor, for app’lts ; Martin J. Keogh, for resp’t.
   Cullen, J.

This is an appeal from an order of the special term denying the application of the defendant Mallon to set aside a judgment of foreclosure and sale, and permit the defendant to-answer. We think the application was properly denied, on the ground of the gross loches of the appellant. The judgment sought to be vacated was rendered on the 9th day of June, 1877. This application was not made until October, 1894, after a lapse of over seventeen years, The judgment-roll" contains an affidavit, of personal service of the summons and complaint upon the appellant, made by the plaintiff’s attorney, who has since deceased. This positive oath should outweigh the statement in appellant’s-affidavit, which is simply to the effect that, to the very best of her recollection, there were not any summons and complaint served upon her. The judgment was therefore regular, and now, after it has stood for this long period, and the sale made under it unchallenged, should not be opened.

The order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Harry Cowdrey, Resp’t, v. Lawrence A. Turner, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    1. Mortgage—Foreclosure—Advertisement.
    Mortgages can be foreclosed under the statute only where they contain, a power of sale aud have been recorded in the county where the property is situated.
    2. Same.
    In such case, where the mortgagee or his assignee purchases, it is necessary that the affidavits of sale, and publication be recorded before the title to the purchaser becomes complete.
    Appeal from a judgment in favor of plaintiff.

      Hathaway & Montgomery, for app’lt; S. F., F. H. & H. Cowdrey, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court of Kings county affirming a final order of a justice of the peace in summary proceedings to recover the possession of land. The respondent is the agent of one Sarah Cbauneey Savage. She was the mortgagee of the premises the subject of these proceedings. That mortgage was forclosed- by advertisement under the statute. Thereupon under subdivision 2, section 2232, Code Civ. Proc., her agent instituted these proceedings to recover possession of the mortgaged premises from the appellant, who is in possession under the mortgagor. We think that there are two fatal defects in these proceedings. The petition presented to the justice of the peacce. was insufficient. It simply stated that Sarah Savage purchased the premises upon a foreclosure of the mortgage by proceedings taken as prescribed in title 9, „c. 17, of the Code of Civil Procedure. Mortgages can be foreclosed under the statute only where they contain a power of sale, and when they have been recorded in the county where the property is situated. These requirements were jurisdictional, and should have been averred in the petition. People v. Burdick, 23 St. Rep. 429, The second objection to the plaintiff’s recovery is that it appeared on the hearing that she had not filed and recorded the affidavits of sale, of publishing, and service of notice, as prescribed by sections 2396-2398. Under the Revised Statutes, and before the Code, it was held that, where the mortgagee or his assignee purchased, it was necessary that the affidavits of sale and publication should be recorded-before the title to the purchaser became complete, such affidavits acting as -a substitute for the deed; which it was impossible for the mortgagee to execute to himself. Arnot v. McClure, 4 Denio, 41; Bryan v. Butts, 27 Barb. 503. We do not understand the authority of Arnot v. McClure’ in this respect to have been overruled by subsequent decisions. In Tuthill v. Tracy, 31 N. Y. 157, it was held that a sale pursuant to the statute bars the equity of redemption without affidavits being made; but it was also held that, until the affidavits are made and filed, the title of the purchaser was merely equitable. In Mowry v. Sanborn, 68 N. Y. 143, the case of Arnot v. McClure is reviewed. It was there held that common-law proof of the service of the notice of sale. could be admitted to supply a defect in an affidavit of service ón file. But that decision proceeded on'the ground that affidavits of service of notice of sale were not required, by the statute as it then stood, to be filed or recorded. The question would now seem put at rest by the provisions of the Code. Section 2400 provides:

“The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title, in like manner, upon payment of the purchase money, and compliance with the other, terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay purchase money, until the affidavits, specified in that section, with respect to the property purchased by him, are filed or delivered or tendered to him for filing.” •

This enactment that a purchaser other than the donee of the power acquires title withont the filing and recording of the affidavits, is equivalent to a declaration that the donee of the power, when the purchaser, must file and record the affidavits to complete his title. That this was the intention of the codifier is plain from the notes of Mr. Throop to this section and section 2396.

The judgment of the county court and of the justice of the peace should be reversed, with costs and disbursements.

All concur.


author: Bartlett, J.

text:
    In the Matter of Thomas F. Gilroy, as Commissioner of Public Works. Mary M. Gouverneur et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed March 6, 1895.)

    1. Condemnation pboceedings—Damages.
    In a proceeding to condemn real estate, the fitness of the property for . the use, to which the condemning party intends to put it, may be considered in estimating its market value.

      2. Same—Oath.
    The omission of the word ' ‘ faithfully ” from the oath of the commissioners will, unless waived, invalidate the proceedings.
    3. Same—Jurisdiction.
    The non-residence of the commissioners does not affect the jurisdiction, and an objection thereto may be waived.
    Appeal from an order, confirming the report of the commissioners, and from an order denying a motion to set aside the report.

      Eugene Frayer, for app’lts; H. T. Dykman, for resp’t.
   Bartlett, J.

This proceeding was instituted in 1891, by the commissioners of public works of the city of Mew York, to acquire certain real estate in the town of Carmel, in Putnam county, for the maintenance, preservation, and increase of the supply of pure and wholesome water, for the city. It related originally chiefly to the fee of the land under water constituting the bed of Lake Gilead; but it was also designed to extinguish any adverse claims which might exist in reference to a number of other pieces of property in Putnam and Westchester counties, which the municipal authorities of Mew York had previously -attempted to acquire, for like purposes. The matter was subsequently extended by stipulation so as to refer to the same commissioners the question of the compensation to be made to the same claimants for an undivided third part of the mines and minerals in certain lands in the town of Southeast, in Putnam county, which the city likewise sought to acquire. The commissioners awarded the claimants $4,200 for the fee of Lake Gilead, and merely a nominal sum for the mines and minerals. The claimants now appeal from the order of the special term confirming the report of the commissioners, and also from an order denying a motion to set aside the report, on the ground that the commissioners had not taken the statutory oath, and because two of the commissioners were neither residents of the county where the property of the claimants was situated, nor residents of some adjoining county.

The principal question presented by the appeal from the order confirming the report is whether the commissioners did not adopt an erroneous measure of damages, in excluding from consideration as an element in the market value of the property to betaken, the existence of any demand for such property on the part of the city of Mew York. The record plainly shows that they proceeded upon the theory that the existence of any such demand could not be considered as an element of market value. So far as the rule which they followed was merely a decision that the desirability of the particular property to the city in view of its necessities was not the legal measure of damages, it was correct. The commissioners went much further than this, however, and practically held that the availability of the property for use in connection with the water supply of Mew York. City could not be taken into account by them in'determining what was the fair .market value of the premises. In so doing, 'it seems to me,' they disregarded the great weight of authority as to the proper measure of compensation in-cases of this kind.

A question similar to that before us arose in the case of Trustees v. Dennett, 5 Thomp. & C. 217, which was decided by the general term of this department more that twenty years ago. It was a proceeding to acquire an interest in a pond, from which to supply the village of College Point with water. The owners desired to prove that the pond possessed a value as a source of water supply to cities, and sought to show that there was only one other pond available for like purposes within an area of six miles. They were not permitted to do this, and the court held that the commissioners erred and set aside their report. In Re New York, L. & W. R. Co., 27 Hun, 116, the land sought to be taken was peculiarly adapted for railroad purposes. The commissioners took that fact into consideration in awarding compensation to the owner, and the general term of the third department sustained their action in so doing, and in refusing to value the premises as agricultural hinds only. “Here was a narrow strip of land,” said Boardman, J., “formerly used as a way, and only of value fór a way. The-owner holds it for such purpose only, expecting the time will presently come when he can utilize it to his own profit, or sell it to some one else for such purpose. Why, then, are not the purposes for which it is held and the uses to which it is adapted proper elements in its value?” The same question may be asked with reference to Lake Gilead, in the present proceeding. To ignore its adaptability to furnish water to the city of New York is to-leave out of consideration the most important element which gives it any value in the market. The doctrine that the fitness of lands-for particular purposes is an element in estimating their market, value in condemnation proceedings is supported by the decision of the supreme court of the United States in the case of Boom Co. v. Patterson, 98 U. S. 403. There the property was desired by a. boom company for the purpose of constructing a boom in the-Mississippi, and was peculiarly adaptable for such purpose. The value was assessed at more than $9,000, having reference to the-adaptability of the lands to the construction of a boom, but at only $300 if such fitness were left out of view. The supreme court affirmed the judgment for the larger amount, holding that their suitableness for forming a boom was a fact which the owner had a right to insist upon as an element in ascertaining the value of' his lands. Mr. Justice Field, in the course of the opinion, cites with approval the case of Young v. Harrison, 17 Ga. 30, which was a proceeding to acquire a site for the abutment of a bridge, wherein the supreme court of Georgia held that the value of the-land for a bridge site was to be considered in assessing the compensation to be made to the owner. To the same effect is a well-considered decision in an Arkansas case, Railway Co. v. Woodruff, 49 Ark. 381, where the land was to be condemned for the erection of a railroad bridge. The contention was that as the defendant had no right to bridge the Arkansas river, while the plaintiff possessed such right, the defendant, as owner, could not have any damages based upon a use to which he could not put thé property himself. The court, however, refused to adopt this view, holding that the probable demand there may be for suburban property for depot and bridge sites is a recognized factor in the market value of such property. A similar rule as to the measure of compensation, where the power of eminent domain is exercised for the acquisition of reservoir sites, has been laid down in a number of cases. Town Co. v. Neale, 78 Cal. 63; Waterworks v. Drinkhouse, 28 Pac. 681; Alloway v. City of Nashville, 88 Tenn. 512. In the case last cited, it is well said that market value “includes every element of usefulness and advantage in the property. If it be useful for agriculture or for residence purposes, if it has adaptability for a reservoir site or for the operation of machinery, if it contains a quarry of stone or a mine of precious metals, if it possesses advantages of location or availability for any useful purpose whatever, all these belong to the owner, and are to be considered in estimating its value.” Without further citation of authorities, I think it is sufficiently clear that the commissioners in the case at bar erred in excluding from consideration an essential element in the market value-of the property under condemnation; that is to say, its adaptability to furnish a portion of the water supply of the city of Hew York. It follows that their report should be set aside.

This conclusion renders it unnecessary to pass upon the objections to the form of oath, and to the residence of two of the commissioners, except so far as some suggestion from the general term may be useful upon the new appraisal which must be had. In my opinion, the omission of the word “faithfully” from the constitutional oath which the statute required the commissioners to take was a material omission, sufficient to invalidate the proceeding, unless the parties can be held to have waived the objection by going on without calling attention to the defect until the report was made. Merritt v. Village of Portchester, 71 N. Y. 309.

As to the nonresidence of two of the commissioners, that was a matter of which the claimants had notice by the terms of the order appointing them. It did not affect the jurisdiction, and the objection now comes too late, having clearly been waived by the conduct of the claimants.

Order confirming report of commissioners reversed, and report set aside with $10 costs and disbursements, and a new hearing directed to be had before other commissioners.


text:
    Katharina Weidner, App’lt, v. George Weidner, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Divorce—Opening default.
    Tlie order, opening a default in an action for divorce so as to permit the defendant to litigate the charge of adultery made against him, should require him to pay the alimony awarded, where he does not assert his inability to pay it, or •that the amount is out of proportion to his means, or that it is not necessary for the support of plaintiff and her children.
    Appeal from an order setting aside a decree for divorce and permitting the defendant to come in and defend the action.

      Charles J. Patterson, for app’lt; Almet F. Jenks, for resp’t.
   Brown, P. J.

This action was brought by the. plaintiff for an absolute divorce. At the time it was commenced the defendant was living at Allentown, in the state of Pennsylvania, and the summons was served by publication. The defendant did not appear, and on November 8, 1889, judgment was entered dissolving the marriage, and directing the defendant to pay to the plaintiff, for the support of herself and children, the sum of $15 a week. The order appealed from sets aside the judgment, and opens the default, and permits the defendant to appear and defend the action, unless the plaintiff “permits the judgment to be so amended that she will have no claim upon said defendant for support, past or future.” In case such amendment is permitted, the motion to open the default was denied. We are of the opinion that the conditions imposed upon the plaintiff are unjust towards her, and that the order should be modified. It appears that prior to the year 1889 the parties were residents of the city of Brooklyn. The defendant had suspicions as to the fidelity of his wife, and charged her with having committed adultery with one Henry Loeffler. These charges are reiterated in the defendant’s affidavit used upon this motion, but, inasmuch" as they were made the subject of judicial investigation, they are not entitled to any consideration her.e. In 1886, the defendant sued Loeffler in the city court of Brooklyn for alienating the plaintiff’s affections, and about the same time instituted an action for divorce against the plaintiff, charging her with adultery committed with Loeffler. The action for alienation of affection was tried in March, 1887, and resulted in a verdict and judgment in Loeffler’s favor, and in April, 1888, the action for divorce against the plaintiff was dismissed. In September, 1887, the plaintiff sued the defendant in the city court for a limited divorce on the ground of cruelty. No defense was made, and on November 18, 1887, judgment was entered granting to the plaintiff $15 per week alimony, and directing defendant to give security for its payment. Up to November, 1887, the defendant resided in Brooklyn, and it is very clear that he moved to Pennsly vania to escape from the enforcement of the judgment in the separation suit No alimony has ever been paid under that decree. In April, 1889, this action was commenced! The defendant admits in his moving affidavit that he received the summons and complaint, but swears he paid no attention to them, because he believed it was impossible for his wife to produce witnesses who would swear to the accusations made against him. In 1893 he moved to Newark, N. J. While there he met his wife, and he was then told of the judgment of divorce,.and the'amount of alimony which it was adjudged that he should pay. Thereafter he returned to Brooklyn, and, a copy of the judgment having been served upon him, an order was made on May 28, 1894, directing him to show caiise why he should not be punished for contempt in neglecting to comply with its terms. Three days later application was first made to set aside the judgment and open the default.

Laying aside the charges made in the defendant’s affidavit as to the plaintiff’s relations with Loeffler, which we do not think worthy of serious consideration, in view of the result of the suit against Loeffler, the main grounds upon which the defendant asks to have the judgment set aside are (1) that the testimony as to his adultery was false, and (2) that prior to the action for separation he had conveyed a considerable part of his property to the plaintiff. We are of the opinion that the defendant should have an opportunity to try the accusation of adultery made against him, and, so far as the order appealed from permits him to come in and defend the action, we agree with the conclusion of the special term. But the charge that defendant transferred a large part of his property to the plaintiff is met by the statement that the parties owned four houses and lots'in Brooklyn, the title to which stood in their joint names, and that the property was divided- between them, and the conveyance to the plaintiff was but a transfer to her of one-half of this property. If such be the fact, there can be no inference that the defendant has already provided for the plaintiff’s support; and, in this view of the case, if the facts permit the conclusion that the decree of divorce should stand, it would seem unjust to deprive the plaintiff of the provisions made therein for her support. The defendant does not now assert his inability to pay the amount of alimony awarded by the judgment, nor does he claim that the amount was out of proportion to his means, nor that it was not necessary for the support of the plaintiff and her children. It was the same amount awarded by the city court in the separation suit, and that decree has never been appealed from or complied with. And we fail to see the justice of requiring the plaintiff to surrender all provisions made for her support as a condition of retaining the benefit of the judgment of divorce. While it may be true, as the defendant testifies, that he never received the copy of the judgment of divorce, which was mailed to him at Allentown, he must be presumed to have had notice that such a j udgment was likely to be rendered against him. He was served with the summons and complaint, and knew that the suit was pending, and the charges that were made against him. He knew of the judgment in the separation suit, and he could not have supposed that, if alimony was granted in this action, it would be any less in amount than that granted in the separation suit. He took no steps to defend the suit; and after he had, according to his own admission, received actual notice of the judgment and its terms, he waited nearly nine months before he took any proceedings to vacate it. In view of this long delay to protect his rights, of the amount of alimony awarded to the plaintiff in the separation suit, and the fact that defendant left the state to escape the enforcement of the decree in that action, we are of the opinion that the judgment in this action should not be opened, unless the alimony allowed therein is paid.

The order should therefore be modified so as to provide that, upon payment by the defendant of the amount of alimony due under the judgment, the motion will be granted, otherwise it is denied, with costs; and, so modified, the order appealed from is affirmed, with $10 costs and disbursements to the appellant

All concur.


author: Merwin, J.

text:
    National Cash Registering Company, App’lt, v. Harry C. Coleman, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Execution—Leviable interest.
    Under a conditional contract of sale, whereby the goods are to remain the property of the vendor until paid for, the purchaser has no leviable interest in such goods before full payment, which can be seized on an execution issued on a judgment for the purchase price.
    Appeal from an order, vacating and setting aside the return of the execution issued on a judgment in favor of plaintiff.

      Miller, Gridley & Pratt, for app’lt; Albert T. Benedict, for resp’t.
   Merwin, J.

In November, 1892, the plaintiff delivered to the defendant a cash register, in pursuance of a written contract, signed by the defendant, by which he agreed to pay therefor the sum of $175, of which $30 was tobe paid down in cash, and $10 monthly thereafter; and it was provided that, in case of default in making any payment, the plaintiff might take possession of and remove the register, and the balance of the purchase price should at once become due and payable. It was also in the writing agreed that the title of the register should not pass until the same was paid for in full, and should remain the property of the plaintiff until that time. Payments to the amount of $100 were made upon the contract, and then default was made. The plaintiff thereupon took possession of the register, and still has it. Soon after taking possession, the plaintiff brought suit against the defendant for the balance of the purchase price, being the sum of $75 ; and on the 7th August, 1894, recovered judgment therefor. An execution was issued thereon to the sheriff of Onondaga county-, and by him returned wholly unsatisfied, on the 5th September, 1894. Thereafter the plaintiff commenced proceedings against defendant supplementary to execution, and then the defendant moved at special term to set aside the return of the execution, and the order appealed from was made. The ground for setting aside the execution was stated in the order to be “ that the defendant has a leviable interest in the register, and that the sheriff did not levy upon the same, because he was informed by the attorneys for the plaintiff that the defendant had no interest subject to levy therein.” The arrangement between the parties was a conditional sale, and there is no doubt about its validity. Frank v. Batten, 49 Hun, 94; 17 St. Rep. 476, and cases cited. The title, as between the parties at least, did not pass. Herring v. Hoppock, 15 N. Y. 409; Comer v. Cunningham, 77 N. Y. 397. In such a case, as it has been held in numerous cases, the purchaser has no leviable interest until the purchase money is fully paid. Strong v. Taylor, 2 Hill, 326 ; Herring v. Hoppock, supra ; Cole v. Mann, 62 N. Y. 1.; Burchell v. Green, 6 Misc. Rep. 236, affirmed in 80 Hun, 602 ; 61 St. Rep. 869 ; Freem. Ex’ns, § 124, and cases cited. The recovery of the judgment, as long as it remained unsatisfied, did not affect the title of the plaintiff in the property. Hil. Sales, 23 ; Root v. Lord, 23 Vt. 568 ; Vaughn v. Hopson, 10 Bush, 337.

In Brewer v. Ford, 54 Hun, 116, 120; 26 St. Rep. 888, it is said:

“ The rights asserted by the plaintiff that, under the contract, he may retain the title to the property, and at the same time enforce the vendee’s promise to pay the purchase price, are not inconsistent, and both propositions have their foundation in the agreement, which was in all respects lawful as between the parties thereto.”

See, also, Marvin Safe Co. v. Emanuel, 12 St. Rep. 662 ; 21 Abb. N. C. 182, and note at page 197.

There is nothing in the case to indicate that the plaintiff has waived any of its rights. If, as the defendant suggests, the plaintiff is to be treated as mortgagee, the-defendant would have no leviable interest in the property, as the defendant is in default, and the plaintiff is lawfully in possession. The defendant would have only an equity of redemption, which is not the subject of seizure and sale on execution. Nichols v. Mead, 2 Lans. 225. If the defendant claims that the right of plaintiff to sue for and recover the balance of the purchase price was affected by its retaking possession of the property, that was a matter to be raised in the action, as the retaking was before it was commenced. It is not a question that can be considered here. We are referred to no authority which requires the plaintiff to have its lien—if it be called that—foreclosed by allowing the property to be sold on the judgment which we assume it had a right to recover for the balance of the purchase money. It has a right to collect, if it can, its judgment in the ordinary way. It only seeks to recover its debt; it does not claim to hold the register after the debt is paid. We fail to see how it can legally be said that the defendant has any leviable interest in the register. It follows, therefore, that the order of the special term cannot be sustained/ -

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

All concur.


author: Coffin, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Joseph Spears, as Executor of William C. Spears, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed December, 1894.)

    1. Will—Construction.
    The words in a will, “ to he sold or held as long as he may deem best for the interest of my heirs,” do not create a trust, but confer only a power of sale, to be exercised in the executor’s discretion.
    2. Executor—Assets.
    It is the duty of an executor to convert the personal estate into money with as little delay as may consist with the interests of the estate, especially where the delay engenders an expense in keeping the property.
    Judicial settlement of the accounts of an executor.
    The will, omitting the formal parts, was as follows :
    “I hereby make my brother Joseph Spears, sole executor, and leave to his judgment, as he may see fit, the disposal of my real and personal property, to be divided among my heirs as his judgment may deem best and most fitting to him, and to be sold or held as long as he may deem best for the interest of my heirs.”

      Sackett & Lang, for executor; Samuel Keeler, for contestant, William J, Spears, and special guardian for minors.
   Coffin, S.

The first' thing to be considered is whether the rents accrued from and the expenditure upon the real estate at Clausen’s Point are proper items to be considered upon this accounting, or have any proper place in the account. This depends upon the construction of the will. It seems quite clear that no valid trust under the statute of uses and trpsts is-created. The cases on the subject are numerous, but only a few need be cited. Smith v. Bowen, 35 N. Y., 83 ; Cooke v. Platt, 98 id. 35 ; Chamberlain v. Taylor, 105 id. 185; Clift v. Moses, 116 id. 144; 26 St. Rep. 405. The use of the word “disposal” can mean nothing more than a sale, and the words, “to be sold or held as long as he may deem best for the interest of my heirs,” confer only a power of sale, to be exercised in the executor’s discretion. In fact, the will confers only a power of sale for. the purpose of division among his heirs in the manner he may deem most fitting. The title vested in the widow and heirs, and so remains, subject only to the exercise of the power. The remedy, if any, in regard to the rents and the claim for expenditures, must be sought in some other tribunal having a jurisdiction which this court does not possess. The two horses mentioned in the inventory remain unsold, partially for the alleged reason that the sale was deferred at the request of the parties in interest, with the expectation or hope that they might bring a larger sum in the future. It is the settled rule that the duty of an executor is to convert the personal estate into money with as little delay as may consist with the interests of the estate, and this rule applies with greater force where the delay engenders an expense in keeping the property. The executor should have disposed of these horses as speedily as fairly possible, without regard to the wishes of the beneficiaries, unless all were sui juris, which they Yere not. • The delay has caused a large expense for their care and keep, which the executor seeks to have allowed to him. He should be charged with the value fixed by the inventory, and allowed, for care and keep for six months, which gave him ample time for their conversion into money, and with interest from that period. The executor must be held liable for the value of the plants and shrubs in the greenhouse, which were personal property, and whose destruction was due to his negligence. Their value ;is not satisfactorily established, but it is believed that at an auction or private sale they would not have yielded a net amount of more than $150, and the executor should be charged with that sum. The contestants seek to surcharge the executor’s account by adding to the debtor side the one-half of the sum of about $2,300, which was in bank in the joint names of himself and the deceased. Of course, it was incumbent on them to establish this claim, and they examined the executor, who furnished all the evidence on the subject, with that view. He testified-that the whole belonged to him, and the facts stated by him tend to show that such was. the case. It is not, therefore, a debt due the' deceased from him. The executor should be charged with the net rents of the premises on Second avenue, New York, where not already so charged. It was and is leasehold property, and therefore assets. Counsel for contestants is content that it remain unsold, as it produces a satisfactory income. The corrections of the account should be made according to the stipulation as disclosed by the minutes of the testimony. If the decision of any point has been omitted, attention may be called to it on the settlement of the same, when it will be disposed of. Ordered accordingly.


text:
    In the Matter of the Judicial Settlement of the Accounts of Josephine S. Dusenberry et al., as Administrators of Jonah C. Brundage, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed December, 1894.)

    Contract—Services—Members op pamily.
    Declarations by a father, in the absence of his daughter and not communicated to her, that she “ought to be paid,” and that “she should be paid for what she did for him,” do not rebut the presumption that her services were gratuitous.
    Judicial settlement of the accounts of administrators. Presentation of a claim for services rendered to decedent as housekeeper and nurse.

      Platt & Thompson, for claimant; James B. Lockwood, for next of kin.
   Coffin, S.

The only matter in controversy in this case is in regard to the claim made by the administratrix for services etc., rendered to the deceased during his lifetime. There is no evidence whatever of any express or implied contract between the deceased and the claimant as to compensation for her services ; and in the absence of such contract, express or by fair implication, the authorities are abundant to the effect that she cannot recover, because of the relation between parent and child, the presumption being that such services were gratuitous, and such as were due from the child to the parent. Williams v. Hutchinson, 3 N. Y. 312; Marion v. Farnan, 68 Hun, 383; 52 St. Rep. 314, Ulrich v. Arnold, 120 Pa. St. 170. Other cases might be cited, but these are deemed sufficient.

The only proof on which it is sought to base the inference that-there was a contract is that the deceased said to others: She ought to be paid.” “ She should be paid for what she did for him.” In no instance was the claimant present when these declarations were made, nor were they communicated to her, and they are not evidence of either an express contract or of a mutual understanding which would take the matter out of the well-settled rule. The claim is rejected.

Ordered accordingly.


author: Gaynor, J.

text:
    Peter Donald, Pl’ff, v. Thomas Elliott, Def’t.

      (Supreme Court, Westchester County Circuit,

      Filed January, 1895.

    1. Waste—Assignee of lessee.
    An action of waste cannot be maintained, where the waste has been committed, not by the lessee, but by his assignee of the remainder of the term.
    2. Same—Covenants.
    The lessee cannot relieve himself from the general covenant of waste and a special covenant that no wood should be cut down, by transferring the leasehold.
    Motion for a judgment for treble the amount of damages, and a motion to set aside the verdict on the ground that, conceding the waste, the defendant is not liable therefor.

      John H. Ferguson, for pl’ff; William Riley, for def’t.
   Gaynor, J.

The plaintiff let his farm to the defendant for a term of five years; the lease, in addition to the usual covenant against waste, containing a covenant that no wood should be cut down by the tenant. It contained no provision against subletting or assigning. This lease was extended three times, namely, for three years, then for one year, and again for one year. The complaint is, in S3 many words, that the defendant, in violation of the covenants contained in the said lease, did negligently suffer waste to be committed upon the said land, in that he suffered certain specified trees to be cut down and carried away, three barn doors to be torn off, the barn floor to be torn up, and the chicken house to be pulled down, whereby the said land was damaged in the sum specified ; and judgment for treble damages is prayed for, in accordance with the statute against waste (Code Civ. Proc. § 1655.) The plaintiff had a verdict, and now moves for judgment for treble the amount thereof, while the defendant moves to set the verdict aside, on the" ground that, conceding the waste, the defendant is not liable therefor; the proof being that the same was committed, not by him, but by his assignee of the last four months of the term, after he had delivered exclusive possession to him.

If the action must be considered one for waste, as the plaintiff’s counsel insists, I think the verdict must be set aside. The action could not be maintained under the common law, for the action for damages for waste did not lie at common law against a tenant for years. Blackstone says (2 Comm. 283) that, “in our ancient common law, * * * waste was not punishable in any tenant, ■save only in three persons,—guardian in chivalry, tenant in dower, and tenant by the curtesy,—and not in tenant for life or years. And the reason of the diversity was that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life or for years came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee, and if he did not it was his own fault.”

In the three specified cases, the relation being created by the law, the owner of the fee had no covenant to sue upon, and was therefore remediless, except as the law gave him a right of action; whereas, in leaseholds, the lessor could put covenants in the lease, for the breach of which he would have right of action. It has deen denied that the common-law rule was thus restricted. 2 Reeve, Eng. Law, 73, 184. But it is uniformly so stated by commentators. Co. Litt. 54; Bac. Abr. tit. “ Waste” H; Com. Dig. tit. “ Waste”; 2 Bl. Comm. 283 ; 4 Kent, Comm. 79. But the statutes of Marlbridge (52 Hen. III. c. 23) and of Gloucester (6 Edw. I. c. 5) extended the action to all tenancies for life and for years, the former enacting that “ farmers shall not make waste * * * without special license had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convicted, they shall yield full damage, and shall be punished by amerciament grievously ” ; and the letter enacting that “ a man from henceforth shall have a writ of waste in the chancery against him that holdeth by law of England, or otherwise for term of life or for term of years, or a woman in dower. . And he that shall be attainted of waste shall lose the thing that he has wasted, and, moreover, shall recompense thrice so much as the waste shall be taxed at.” The penalty of treble damages, first introduced by this statute of Gloucester, survives with us. All tenants for life and for years, under tenancies created by lease or other act of the owner, being thus made liable to the action for waste, the same as tenants by act or operation of law, we need to inquire whether the right of action continued against them after assignment of the leasehold, for the waste of the assignee. The rule was that if tenants by the curtesy or in dower “ grant over their whole estate, and the grantee doth waste, yet the heir shall have an action of waste against them,” but that “ in all other cases the action of waste shall be brought against him that did the waste (for it is in the nature of a trespass,) unless it be in the case of a ward,” etc. Co. Litt. 54. The reason why the right of action in the heir for waste done by the grantee of the tenant in dower or by the curtesy was against such tenant, and not against the assignee, was put upon the ground of privity; but, if the heir also granted the reversion, such privity was lost, and his grantee had to sue the assignee of the tenant. This subtle and arbitrary distinction in respect of tenancies in dower and by the curtesy long survived. Bates v. Schraeder, 13 Johns. 260 ; 2 Kent, Comm. 131. But it never had any application to tenancies created by the' act of the owner of the fee, which is the case in hand. “ If tenant for life or for years assign his estate, waste lies against the assignee for waste done after the assignment.”. Com. Dig. tit. “ Waste,” c. 4; Bac. Abr. tit. “ Waste,” H. Though not there stated, this rule seemed to be recognized in Cook v. Transportation Co., 1 Denio, 103.

That the rule was as above stated, in respect of tenancies for years and for life created by act of the owner, appears conclusively from the later statute (11 Hen. VI. c. 5) against the abuse of such tenants letting and granting their estates nominally in order to escape liability for waste. The statute, “ because that * * * the said tenants have oftentimes let and granted their estates * * * to i; many persons to the intent that they, in the reversion, that is to say their lessors, their heirs or their assigns, might not have knowledge of their names, and after the said first tenants continually occupy the said lands and tenements, and thereof take the profits to their proper use, and in the said lands and tenements commit waste and destruction, to the disinheritance of them in the reversion,” provided that they in the reversion, in such case, might maintain the writ of waste against such tenants, as though such nominal grant and lease by them had not been made. If the action lay against the first tenant in every case, notwithstanding an assignment by him of his term, there was no need for this statute against sham or colorable assignments. This same provision, with the provisions of the two earlier English statutes cited, may be traced through the statutes of this state (Laws N. Y. 1787, c. 6; 1 Rev. Laws, p. 62; 2 Rev. St. 334) down to their latest enactment in our Code of Practice, where one might well be least likely to look for provisions of substantive law (Code Civ. Proc. sections 1671-1658). These provisions of the Code are the gist of the three English statutes, and their lineal successors in this state against waste, and of the rules thereunder, which have been cited above. Section 1651 provides that “an action for waste lies against a tenant by the curtesy, in dower, for life or for years,- or the assignee of such tenant, who during his estate or term, commits waste upon the real property held by him without a special and lawful written license so to do ; or against such a tenant, who lets or grants his estate, and, still retaining possession thereof, commits waste without a like license.” Here we have the provisions of the statutes of Marlbridge, of Gloucester, and of 11 Hen. VI., defining those liable for waste, carefully summarized, and, in addition, the rule that in case the waste be committed by the assignee of the tenant, the action therefor lies against such assignee; and . in this respect the former distinction in the case of tenants by the curtesy and in dower, above noticed, is abolished. It is contended that the provision for an action against the assignee of the tenant is permissive only, and does not prevent the action from being brought against the tenant; but whatever uncertainty there might be in this respect concerning the interpretation of this section of the Code is prevented by tracing, as has been done above, the evolution of the law of waste which this Code provision summarizes, and makes homogeneous.

It follows from the foregoing that the present action cannot be maintained as an action for waste, the waste having been committed, not by the defendant, but by his assignee of the remainder of the term. But the action may be upheld as one for damages for breach of the covenants of the lease, namely, the general covenant against waste, and the special one that no wood should be cut down. The defendant could not relieve himself of these covenants by transferring the leasehold. Bac. Abr. tit. “ Covenant," E ; Walton v. Cronly, 14 Wend. 64; House v. Burr, 24 Barb. 525. The motions for treble damages, and to. set aside the verdict, are therefore each denied.


author: Landon, J.

text:
    Frederick L. Russell, by Guardian, etc., Pl'ff, v. New Jersey Steamboat Company et al., Def'ts.

      (Supreme Court, Albany County Circuit,

      Filed December, 1894.)

    Carriers—Explosives.
    Bluminating gas, compressed into steel cylinders of insufficient strength to hold it, though liable to explode by its tendency to expand when heated, is not within section 4472 of U. S. Revised Statutes.
    Action for personal injuries, caused by the explosion of a steel cylinder containing compressed gas.

      Countryman & Du Bois, for pl’ff; W. P. & R. K. Prentice and Hugh Reilly, for def’t.
   Landon, J.

(orally.)—If there is any liability in this case on the part of the steamboat company, it arises in consequence of the statute. The steamboat company is a common carrier, and ordinarily has a right to carry the ordinary articles of merchandise. This statute (Rev. St. U. S. § 4472) was enacted to prevent the carrying, on steamboats carrying passengers, of loose hay, loose cotton, loose hemp, camphene,,nitroglycerine, benzine, benzole, coal oil, crude or refined petroleum, or other like explosive burning fluids or like dangerous articles. Now, is this illuminating gas an explosive burning fluid like any one of the fluids or articles mentioned in the statute ? We can all see from the testimony that it is not. Moreover, we have the testimony of Prof. Nason that it is not. In one sense it is a fluid. It is not the explosive burning fluid like camphene, or like naphtha, or benzine, or benzole, or other fluids mentioned. I have taken pains to have this case proceed upon the line of exact explanation, so far as it could be had, of the quality of the article with which we are dealing, and we are enabled to see ourselves this is not a like explosive burning fluid as benzine, naphtha,' or the other articles mentioned. Now, is it a like dangerous article ? I think the question is whether the article with which we are dealing, namely, the illuminating gas, can be found by the jury upon the evidence to be in like manner dangerous as any of these other articles previously mentioned. We have seen from the evidence of the professor in what manner camphene, and nitroglycerine, and benzine, and benzole, and naphtha, and the other articles are dangerous articles. They are dangerous in consequence of their inflammability. The article we are dealing with is illuminating gas, and that gas, as I have already remarked, is not per se dangerous. Taking the testimony of the professer, the gas is not dangerous in the sense that any of these articles are dangerous. The danger does not arise from the article itself, but from the use to which the article is put, namely, compressing it in-a cylinder which the cylinder is not strong enough to hold it. It is the danger that arises from overcharging the cylinder beyond its strength. Is that danger like the danger which arises from any of the other articles ? The danger does not arise in any of these other articles, as I understand it, in consequence of the weakness of the vessel which contains them, or the overcrowding them or overpressing them into that véssel. The danger arises in consequence of the element of danger which inheres in the very nature of the composition itself. Here the element of danger does not inhere in the elements of the article itself, so that the danger that exists here is not in the article, but in the improper overcrowding of the cylinder which contains the article, and that was the act of the oxygen company. By adding conditions which are not shown to have been added in this case, namely, escaping and mingling with air and contract with flame, this gas may be converted into an explosive gas, but I do not consider that branch of the case, because, as I say, we must proceed upon the evidence, and the evidence does not show these conditions existed here. Therefore I think the statute does not cover this case, and I shall dismiss this complaint. I may add—although we have not had any discussion upon the subject—that there is another ground upon which I think this complaint ought to be dismissed, and that is lack of notice to the steamboat company. The only notice it had are these printed bills upon which is written “Oxygen.” They are falsely marked. If what I have said is true,—that the article itself is not dangerous, but the manner of its compression constitutes the element of danger,—then the fact that the cylinders were billed “Oxygen” was no notice to the company of its dangerous character, as it was no notice of the overcharge of the cylinders, which made the article dangerous. I direct a dismissal of the complaint.


author: Clearwater, J.

text:
    In the Matter of the Application of James S. Carpenter to Alter a Highway.

      (Ulster County Court,

      Filed March 12, 1895.)

    Eminent domain—Award—Appeal.
    The award of commissioners, on conflicting evidence, will not be disturbed on the ground that it is excessive.
    Motion to vacate the award of the commissioners, appointed to assess-the damages resulting from the alteration of a highway.

      Eckert & Westbrook, for the motion; John Rusk, for the commissioner of highways; Eldorus Dayton, for the owner of the land affected.
   Clearwater, J.

At the October, 1894, term, upon due notice to all persons interested, an order was made appointing three commissioners to determine whether a proposed alteration of one of the leading highways in the town of Marlborough was necessary, and, if found so to be, then to ascertain and assess the damages resulting therefrom. .It is admitted that the notices required by the statute were duly posted in three public places in the town, and were served upon all the persons designated by the statute. These notices, among other things, recited the appointment of the com^inissioners, the purpose for which they had been appointed, and stated that they would meet at a specified public place in that town, on a day named, tq- view the line of the proposed alteration, hear objections, and take testimony. In addition to bring duly posted and served upon the town officials, and the persons affected by the proposed alteration, notice of the proceedings of the commissioners was duly published in a public newspaper, printed in the town, having a local circulation of about 600 copies. The commissioners duly met at the designated time and place, and, having properly qualified, adjourned to a subsequent date, of which notice was duly posted and served and published in the same newspaper. At the adjourned day the commissioners again met, at the time and place to which they had adjourned, viewed the premises involved in the proposed alteration, and proceeded to the investigation and determination of the matters intrusted to them. In all these proceedings the town of Marlborough was represented by its commissioner of highways, a man of more than ordinary intelligence and ability, and by counsel. It was admitted by every one that the proposed alteration was necessary, and that it was important to the interests of the town and the traveling public that it should be made; also, it was agreed that, to made the alteration effective, it would be necessary to widen the highway at a point which would necessitate the taking of a strip of land about 270 feet in length on Main street and twenty-three feet in width on Western avenue, in the village of Marlborough. Upon the corner thus involved is a three-story dwelling house, with an addition, •used as a restaurant, belonging to John Badner. The highway at that point is the principle street of the village, and the main thoroughfare used by the public of the vicinity and of the interior in going to and from the station of the West Shore Railroad and the steamboat landing on the Hudson river. The commissioners, after personally viewing the premises, and hearing all the testimony offered, decided that the alteration was necessary, and assessed the damages resulting therefrom at $4,500. This report was duly filed, and notice of the filing and a motion for its confirmation regularly given. No objections having been filed, and none being made, the report was duly confirmed on the 13th day of November, 1894. So far as is disclosed by the proceedings, none of the persons who unite in this motion either appeared before the commissioners or gave any attention to their action. Some time after the order of confirmation had been entered, notice was given that they would apply at the January, 1895, term for an order vacating or modifying the award. No ground for so doing is specified in the motion papers, and the only one urged on the argument was that the amount of damages awarded is too great. It is not claimed that there was any irregularity in the appointment or the proceedings of the commission. It is not disputed but that the proposed alteration is both necessary and important, and that damages to some amount will result as a consequence of its being made, nor is it urged that any rule of law has been violated. In fact, so far as the record or moving papers disclose, the entire proceeding has been conducted in strict accordance with the statute governing proceedings of this character, and I am therefore at a loss to conjecture upon what legal ground it is supposed the court has the right to interfere with the award. It has neither the right nor power, if it had the inclination, to substitute its own judgment for that of the commissioners. They are bylaw selected with special reference to their fitness for the position, and the duties they are expected to discharge, and such experience as they have may be brought to their aid in the performance of their office. They are to be guided by their own judgment, as they view the premises, and can better estimate the amount of damage sustained than can a court sitting in review of their action. For the court to arbitrarily set aside their award, unless some error of law is plainly manifest, would be to usurp the functions which the statute confers upon them, rather than a judicial exercise of its own discretionary power. This is, and long has been, the well-settled rule governing cases of this class. In re Public Parks, 53 Hun, 280; 25 St. Rep. 9; In re Staten Island Rapid Transit Co., 47 Hun, 396; 14 St. Rep. 924; In re Central Park, 51 Barb. 277; In re Main Street, 54 St. Rep. 936; In re William and Anthony Streets, 19 Wend. 678; In re Pearl Street, Id. 651; In re John and Cherry Streets, Id. 659; In re Harman Street, 16 Johns. 231; In re Furman Street, 17 Wend. 649. An examination of the affidavits used on this motion demonstrates the wisdom of the rule as it has prevailed for many years. Of the twenty-two persons whose affidavits are presented to the court, seven disinterested citizens, entirely familiar with the premises, swear that the amount awarded by the commissioners is just, fair, and none too high. Four estimate the damages at $3,000, two at $2,500, one at $2,000, one at $1,500, one at $1,000. Four think the amount awarded is too large, but do not say what sum they think would be proper, while two gentlemen swear that the property of Badner will be quite as valuable, if not of greater value, after this strip of land, 270 feet by 23 feet, involving his dwelling and restaurant, has been taken for the purpose of the alteration. It will thus at once be seen that if the court had the power, and were disposed, to vacate this award, and to send the matter back to the same or to a new commission, precisely the same difficulty would be encountered. There would still be a great divergence of view as to the sum which should be given, and the commissioners would be confronted with a situation none the less, and doubtless far more, perplexing than the one originally presented. The commissioners are all men of the highest personal character, of broad experience, and of sound judgment. The regularity of their proceedings is not questioned, and I can discover no sufficient legal reason for interfering with their award, and the motion to vacate it is therefore denied, with costs.


text:
    In the Matter of James F. Quigley, Police Justice.

      (Supreme Court, General Term, Second Department,

      Filed March 8, 1895.)

    1. Police justice—Removal.
    In order to warrant the removal of a police justice from office,, the .evidence must show that the judicial acts were corrupt, or that there was intentional violation of the laws governing a magistrate, or that there was a disregard of the legal rules that amounted to legal misconduct.

      2. Same.
    What acts constitute misconduct on the part of a police justice for which he should he removed from office.
    Proceeding to remove from office a police justice of the city of Brooklyn.
    Ass. Corp. Counsel Yonge, for the prosecution; A. H. Dailey and A. D. Bell, for Police Justice Quigley.
   Brown, P. J.

(orally).—When the court rendered a decision in the Watson case it considered the rules that should apply in the case. These rules were that the court thought that the evidence against the accused should show that the judicial acts were corrupt, or that there was intentional violation of the laws governing a magistrate, or that there was a disregard of the legal rules that amounted to legal misconduct. Applying the rules laid down in the Watson case, there was evidence of judicial misconduct found, but on the whole the court was unable to say that there had been an intentional violation of duty. In applying the same rule in this case the court is led to a different conclusion from that which was reached in the Watson case. The court still holds that a magistrate should not be removed because the court disagrees with him in the construction of .the law. We recognize the fact that we must give great latitude.to the magistrate in the administration of the law, and must recognize the discretion the law gives to a magistrate on matters of law. In reviewing this case we find not only one or two instances in which the accused has violated the laws,—instances in which we disagree with him,—but we also find in the given period from the inception of the trials of cases that arose out of the violence that attended the strike until February 6th, when he was first notified that this action would be instituted, a uniformity of conduct going to show that he intended to violate his duty. And we find a total disregard of inferences that should have been drawn from the evidence in many cases that were before him.

We do not propose to take up all the cases that came before the magistrate in the period mentioned, but will consider two or three of them, which will indicate his intentions as a magistrate. The first case is that of Acker, who was charged with throwing a stone at a ear and' hitting a passenger in the back. The police officer who made the arrest testified at the trial of Acker that he saw the assault committed, so far as the throwing of the stone was concerned, but in the evidence there was some difference of testimony as to whether the passenger was struck. The stone was thrown, and that was the violation of the law. It made no difference whether the passenger was struck with the stone or not, as far as the question of holding Acker for trial was concerned. Yet Acker was discharged by the magistrate. It was the same with the case of Connolly, who was arraigned on a charge of assaulting a motor man. Although the motor man claimed that he had been treated with violence, yet, as no corroborative evidence of his statement was adduced, the defendant, Connolly, was discharged. The only other case the court will cite is that of Mullen. There was no-doubt that two men had been taken from a car to Odd Fellows'" Hall on Palmetto street. It was proven, not only by the police-officers who made the arrest, but by others, that Mullen was in the hall where he was arrested, and also that he was in a closet near the door of the hall. The case was tried and Mullen was discharged. He had testified in the ease that he was not in the hall when he was arrested. This was palpably untrue. There was no excuse for the discharge of the defendant. By referring to therein arks of the magistrate we find that they were not only improper, but that they tended to the encouragement of disorder-prevailing in the community. When we consider the time this was done, it was a perversion of justice. He said to those men that they had a perfect right to take the men from off the car if they could do so in an orderly way. “ There is no law in this state,”" he said, “ that prevents you from taking those men from the car.” The men, on the contrary,' had no right to step upon a car for that purpose. It was the same as though the magistrate had said to-the accused and to their companions that they could be themselves the judges of the law. Again, we find a fact of still greater-significance in that in the previous period of time when the strikers’ cases were considered, up to February 6th, only one prisoner,, and that one in a case of minor importance, was held by the magistrate. All the others were discharged or were adjourned from time to time. One other case the court will refer to that is in the same line -with those quoted. A man was arraigned before the magistrate charged with assault in the third degree. The mag istr'ate had jurisdiction of the case. There is no doubt of that. He had exclusive jurisdiction, but when the testimony was taken it was found that the assault was of such an aggravated character that the magistrate decided that the accusation should be of assault in the second degree. The remarkable feature of this decision was that although the magistrate said the assault was in the second degree the case was immediately adjourned, and it has not yet been disposed of. We would not pay so much attention to this case if we did not take the other cases into account, and consider the fact that the disposition of the cases prior to February 28th indicate an intention on the part of the magistrate to violate his official duty. Looking over the whole ground in reference to-the partial discharge of the magistrate’s duty, with great regret we-have decided that he should be removed from office.

All concur.


author: Dykman, J.

text:
    In the Matter of the Application of Hubert C. Thompson, as Commissioner of Public Works.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    1. Appeal-Condemnation proceedings.
    An appellate court will not interfere with the report of commissioners-in condemnation proceedings upon the mere question of damages, unless the; amounts awarded are so great or so small as to be palpably unjust.

      2. Same.
    No principle of law is violated by the failure to allow damages where no property is appropriated.
    Appeal from an order confirming the awards made by the commissioners.

      Alex. Thain, Arthur Furber, Robert L. Morrison, A. Oldrin Salter, James R. Marvin, Martin J. Keogh, James A. Deering, Ralph Hickox, and Joshua C. Sanders, for app’lts; William H. Clark, for resp’ts.
   Dykman, J.

This is an appeal from an order confirming the report of commissioners of appraisal. The proceeding was instituted by the commissioner of public works, and the claims for damages are based upon the diminution of the water flowing through the Bronx river by reason of the construction of the dam at Kensico. There is no claim in this proceeding for property taken or appropriated. The Kensico dam was constructed across a gorge through which the river Bronx flowed. The stream was small at that point in the dry season, and it appears from the evidence in this case that when the dam was in course of construction the stream was turned aside, and all the water passed through a five-inch pipe. After the completion of the dam, the reservoir was filled, and the water was conducted through pipes to the reservoir near Williams Bridge. The maintenance of the dam and the passage of the water through the pipe line constituted a diversion of the water, and it became necessary to quiet the claims of the riparian proprietors along the Bronx river for damages which might result to them from the decrease of the water in the river by reason of such diversion. To that end commissioners of appraisal have been appointed for different sections of the river, and they have all made their reports to the court, which have been duly confirmed. The commission in this proceeding had charge of the section of the river from Williams Bridge south. In some cases the commissioners have awarded substantial damages, in others nominal damages, and in others they have allowed nothing. Mo principle of law is violated bv the failure to allow damages where no property is appropriated. Especially will that rule prevail in this case., in consequence of a fact which may as well be stated here. It now turns out that the quantity of water flowing through the Bronx river has not been diminished, but, on the contrary, it has been actually increased in the dry season by the construction of the Kensico dam. That fact was established by unquestionable evidence. Lewis S. Onderdonk, who formerly resided near the dam, stated the fact generally, and then testified as follows:

“A number of years ago I plowed the ground below the dam that was owned by an old man named Davis. I plowed a strip of ground between Bronx river and the highway leading to White Plains, and then the ground there was just as dry as it was in any other part of the farm, and to-day its- banks seems to be saturated with water, so that at the foot of this slope where I plowed, it is grown up with flags like a pond, which was surprising to me until it was explained that this water was filtering through thé ground on the eastern side of the dam.”

The Davis property was immediately below the dam, and then .came the -land of James D. See, within half a mile of the dam. Mr. See was examined as a witness in this procoeding, and it is to be gathered from his testimony that the dam was constructed in this way: A stone wall was first built across the gorge, and then earth was filled in, both on the upper and lower side of the wall. It is usually denominated an “earth dam,” In relation to the quantity of water his testimony is as follows :

“I lived thereat the time this dam was constructed, and was' there almost daily. In the construction of the dam they blew out a good many rock, to get a good foundation. It was lime rock and they opened a couple of large veins. I think there were two. I think I testified before another commission that there were two. There was quite a large- volume of water from those two veins, and they were below where the mason work of the present dam is. After they built the masonwork, they filled in below with dirt. That water from those two veins—and they are large—runs through this dirt, and comes out of the bank below and out of the bank wall. They had to take large stone from the bank wall to let that water out and save the bank. That water flows into the bed of the brook below the dam. Those veins are deep, and there never has been a drought yet that affected them. During the times of "drought we get water from those veins below the dam that we did not get before, and the consequence is that in times of drought the water which is below the dam, in coming through my place, the volume is larger than it was in times of drought before the erection of the dam, and the quality of the water is a great deal better for us. That is my explanation. During the time of the drought—I think it was two years after the completion of the dam—I watched that stream below the dam, and made a remark at the time that in my judgment there was more water running through that dam than ran through the dam in times of drought before the dam was built. I am of the opinion still. I am sure of it. I would not change back, if I owned the property to-day, for $1,000. I think 1 was benefited $1,000, instead of being damaged $1,500, that the city gave me.”

Gfeorge W. Birdsall, the chief engineer of the department of public works of the city of New York, was examined as a witness, and upon his cross-examination testified as follows;

Q. You» do not mean to say that the water that runs down the Bronx river from that point down to the Lorillard point is as much now as it was before the construction of that dam, do you ? A. In dry seasons, yes. Q. Do you mean to say that in. dry seasons that dam does not retain any water? A. There is as much water passing it as there was going past it before. Q. You mean to say that it does not retain any water in dry spells ? A. Only what is stored back of it. Q. But some of that comes down in dry spells? A. Certainly. ■ Q. Then it does, during dry spells, prevent water from coming down beyond it, which would come
down were it not there ? A. No, sir. Q. Where would that water remain ? A. It goes through the rock of the Kensico dam. By actual measurements in dry weather there is just as much water passes that dam as there was passing it before this construction, the water being stored above the dam, and being higher than it is below, the pressure forces it through the rock underneath the bottom of the dam. Q. Then the dam is not perfectly constructed? A. There is no dam in the world perfectly constructed.”

That evidence stands upon the record unanswered, and constitutes a complete refutation of the theory upon which the claims for damages in this proceeding are presented. „ Such demands are all based upon the diminution of the quantity of water in the Bronx river in the dry season, by reason of the construction of the Kensico dam. They relate solely to the dry season, because at all other times the flow of water is plentiful; and the evidence recited shows that, instead of being diminished, the flow of water was increased, in the dry season by the construction of the dam.

As the complaints of the appellants relate only to the insufficiency of the awards for damages, and the evidence shows that no damage has resulted from the cause assigned, our examination might terminate here; yet it may be well to proceed somewhat further. There are no legal errors in the proceedings of the commissioners, and they have adopted no erroneous rules of damage in making their awards. Under such circumstances an appellate court will not interfere with the .report of commissioners upon the mere question of damages, unless the amounts awarded are so great or so small as to be palpably unjust. That rule is settled in this state, and in this district we have had many occasions for its application. See In re Staten Island Rapid Transit Co., 47 Hun, 397 ; 14 St. Rep. 924. The reason for the rule has been stated in varied language as follows: The commissioners are required to view the premises, and by such examination they obtain a knowledge of the location and condition of the property and its availability, which is not recorded, and which is never presented to the appellate tribunal. Such knowledge is deemed so important that the law contemplates the possibility of an award based on a view alone, for the commissioners are only required to take the proofs offered by the parties; and, if none is offered, they make their award without it. Again, the commissioners are authorized to seek information by outside inquiries, prosecuted by themselves alone, and to act upon the knowledge thus obtained. That evidence also remains unwritten, and is never presented to the appellate court. So it is, therefore, that while the commissioners may be controlled entirely by the knowledge they derive from those two sources, the appellate court knows nothing of it. Moreover, when testimony is taken by the commissioners, it necessarily consists almost entirely of the opinions of witnesses respecting values, and no tribunal is ever bound by such opinions. Especially is that so with respect to commissioners of appraisal. Opinions respecting values of property and resulting damages usually differ very widely, and the commissioners are required to exercise their own judgment in respect thereto. These considerations are sufficient to justify the reluctance with which the courts interfere with the awards of commissioners upon the mere question of their size. ' So far from being open to criticism, we deem the awards ample in size in all the cases before us in any view which can be taken.

The greatest complaints are made by mill owners, but it is a fact proved in these cases, as well as derived from history, both past and current, that water power in this country has ceased to be valuable. The centers of trade have changed, and steam power has superseded water power. Steam power can be planted at any place where it is required by business, while water power can only be utilized where it is found, and business must seek it there. Great complaint is made by the owners of mills and water power on the river, and their contention is that the commissioners should have allowed them a sum sufficient to pay the cost of replacing by steam power the water power of which the owners had been deprived by the diversion of the waters of the Bronx river. That contention ignores the rule of law which prescribes the measure of compensation for property appropriated for public use, and, without any reference to the decrease in value of the property by reason of the diversion of water, requires the allowance of a sum of money which will pay for a steam engine of sufficient power to replace the water power. Several engineers were permitted to testify respecting the cost of supplying the water power, or rather of reproducing the same by steam ; also in respect to the amount of money it would require to produce an annual income at five per cent, to meet such expense annually. But all the testimony of that character was erroneously admitted. It was irrelevant and immaterial in any and every view. The riparian proprietors had the right to the natural flow of the water as an appurtenant to their land. They had no property in the water, and it had no value to them independent of their land or real property, and therefore its value to them was measured by the injury which its diversion -inflicted upon their real property to which this water was appurtenant. The question before the commissioners therefore was what, in fact, had been the effect of the diversion of the water upon the property to which it was appurtenant; was its actual value reduced? If it was, the amount of such reduction in value, or the amount of the difference between the actual value with the diversion and its value if there had been no diversion of the water, was the measure of compensation. Such being the rule of damage, all the testimony in relation to the replacement of the water power by steam was erroneous. The appellants cannot complain of the error, however, because the testimony was introduced by them; and the city cannot assign the admission of the testimony as error, because it has not appealed. It is probable, however, that the testimony was harmless, as it was not followed by the commissioners, and there is nothing to show that they adopted any erroneous rule of damage. The theory upon which the claimants in these cases proceeded is this: They take the drainage area of the Bronx river from its source to its mouth, and the drainage area of the river above the dam, and claim that the proportion of the latter to the former shows the proportion of the water diverted. That theory leaves out of view entirely the effect of impounding the water in the reservoir, and makes diversion equivalent to diminution of the stream. Moreover, it includes the wet season as well as the dry, while in the former there can be no injury, as we have seen, because the river is always full, and in the latter we have seen that there is no diminution. It is stated several times in the points of the respective appellants that there was a conceded diversion of the water, by which it seems to be meant that the engineers assumed such diversion in making their calculations. If anything further is intended, it is sufficient to say that no such concession was justified.

After a most careful examination, we find no cause for interference with the report of the commissioners, or with the order for its confirmation, and the order should be affirmed, with costs.'


text:
    In the Matter of the Estate of Charles H. Edwards, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    1. Tax—Transfer—Gift causa mortis.
    Property, passing by virtue of a gift causa mortis was subject to taxation under chapter 723 of 1887.
    2. Same.
    The donee was held, under the facts in the case, to have failed to establish that the pass books were not taxable on the ground that his donor was not the owner of them.
    Appeal from an order imposing a tax.

      Harris & Corwin, for app’lt; Emmet R. Olcott, for resp’t.
   Dykman, J.

This is an appeal from an order of the surrogate of Kings county confirming a tax under the transfer tax laws. The fácts are these: On the 16th day of October, 1888, Charles H. Edwards made a gift causa mortis to James A. Ridden of a tin box and it contents. The box contained sixteen savings bank books, seven of which represented accounts standing to the credit of Charles H. Edwards, and nine of which represented accounts standing to the credit of Thomas Edwards. Thomas Edwards was the father of Charles H. Edwards, and he died before Charles, who was his only relative and heir at law. The appraiser appointed by the surrogate valued the property at $26,227.48. and that valuation was confirmed, and a tax was imposed upon that sum under the transfer statute of this state.

The donee of the gift has appealed from the order, and insists that there can be no tax upon the amounts represented by the bank books which stood in the name of Thomas Edwards, because Charles H. Edwards was not the owner of such accounts. The facts developed fail to justify that contention. The bank books were in the possession o'f Charles H. Edwards, and Ridden, the donee, received them from him. All the title he ever had to any of the bank books was derived from his donor, and that title was affirmed by the court of appeals. Ridden v. Thrall, 125 N. Y. 572 ; 35 St. Rep. 913. It is to be collected from the affidavit, of Ridden, printed in the appeal book, that, when he made a claim against the banks for the money standing to the credit of Thomas Edwards upon the nine bank books which contained his name, he was confronted by a claim of the representatives of the estate of Thomas Edwards, which he compromised by paying them the sum of $5,000. Thereupon he received the money from the banks, and he received it as owner. He did not acknowledge the claim of the representatives of Thomas Edwards to the ownership of the money. He merely acknowledged them as adverse claimants, and made a compromise with them. In other words, he bought them off by paying them about one-fifth of their claim. He took no assignment from them, but, as between him and the banks, he evidently based his claim to the money upon the donation of Charles H. Edwards. The legal effect of his compromise with the representatives of the estate of Thomas Edwards was to quiet their claim, and perfect his title to the property which he received from his donor.

The appellant also contends that property passing by virtue of a gift causa mortis was not subject to taxation under the statutes which were in force in 1888, when the gift in question was made. That statute was as follows:

“ After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state, * * * or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, * * * shall be and is sulyect to a tax.” Laws 1887, c. 713, section 1.

This statute evinces the intention of the legislature to subject to a tax all property which should be transferred by a gift to take effect after the death of the grantor or bargainor. The title to the property passed to the appellant upon its delivery to him by the donor, but the gift was subject to revocation at all times during the lifetime of the giver, and in that sense it took effect in enjoyment after the death of his grantor. He could not have maintained an action for the recovery of the money represented by the bank books during the lifetime of Charles H. Edwards, and therefore he could not enter upon the full enjoyment of the gift until after his death. The gift, therefore, seem to fall within the spirit and intention of the statute, and the tax was therefore properly imposed.

The order should be affirmed, with costs.

All concur.