author: Maynard, J.

text:
    Josie Quilty, by Guardian, Resp’t, v. Rebecca B. Battie et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Animals—Husband and wife.
    Defendants were husband and wife; living together. The husband bought a dog and brought it on the premises, then belonging to him, but afterwards transferred to the wife, who, knowing the dog to be vicious, continued to harbor it on the premises after they became hers. Held, that she had such freedom of control over her own real property that her husband could not, without her consent and against her will, establish and maintain a nuisance upon it, and she was liable for the resulting injury.
    2. Same—Parties.
    The husband is not a proper party defendant in an action against the wife for a trespass committed by her in the care and management of her separate -estate.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff entered upon verdict.

      Matthew Hale, for app’lts ; C. C. Van Kirk, for resp’t.

       Reversing in part 39 St. Rep., 932.

   Maynard, J.

The plaintiff has recovered against both defendants, who are husband and wife, for injuries resulting from the bite of a vicious dog. The liability of the wife is disputed on the grounds that she is a married woman; that the dog belonged to her husband, and that she is not responsible for the trespasses committed by it. There is no conflict in the evidence upon any material point affecting her liability. She had been the owner of the premises where the dog was kept since December, 1887. They formerly belonged to her husband, and when she acquired title the dog remained there and was fed and cared for by her. It was shown to have ' had vicious propensities to her knowledge, and on one occasion she interfered to protect it when a person, whom it had attacked, attempted to strike it in self defense. She bore the expenses of the household, and with her husband constituted the entire family. There is no proof in the record that he had any property there, except the dog, or that he had the care or management of his wife’s property, or was in possession of it as her tenant, or assumed to control or direct her with respect to the domestic animals which should be kept upon the place.

As stated in Addison on Torts (D. & B. ed., p. 230), it is not material, in actions of this character, whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he keeps the dog; and the harboring a dog about one’s premises, or allowing it to be, or resort there, is a sufficient keeping to support the action. As soon as such an animal is known to be mischievous, it is the duty of the person whose premises it frequents to send it away or cause it to be destroyed.

The trial judge charged the jury, in substance, that if the dog was vicious and Mrs. Battie knew it, and with such knowledge of its viciousness kept and harbored it upon her premises, she was liable for the injury which plaintiff had sustained. It is not denied that this instruction was unexceptionable, unless the defendant was relieved from liability because of the fact that the dog was the property of her husband, and that he lived with her in the house and upon the premises where it was harbored and kept. A vicious domestic animal if permitted to run at large is a nuisance, and a person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance, and for all the damages directly resulting from it. The question, therefore, presented by this appeal, when plainly stated, is, whether a married wonjan under the laws of this state has not such freedom of control over her own real property that her husband can, without her consent and against her will, establish and maintain a nuisance upon it.

The form in which it here arises most favorable to the appellants, is upon their request for an instruction to the jury that the husband is the head of the family and controls what domestic animals shall be admitted to the household, or kept about the house; to which the trial judge responded: “Iso charge where the husband is the owner of the property, but where the wife is the owner of the property; I decline to charge that.”

The married woman’s act of 1848 (chap. 200, amended by chap. 875 of 1849), empowered Mrs. Battie to take and hold this real property to her sole and separate use, and to convey and dispose of it and its rents issues, and profits in the same manner and with like effect as if she was unmarried; and declared that it should not be subject to the disposal of her husband, or liable for his debts.

There does not seem to be much room for doubt as to the scope and object of this legislation. It effectually removed the common law disability of the wife, which deprived her of the possession and control of her property during coverture; and, to that extent, it extinguished the common law rights and powers of the husband. Because it is in derogation of his common law privileges it is to be rigidly applied and not extended by implication beyond its strict letter; but it is also a remedial act, and as to its clearly expressed subject-matter it should have a liberal construction. Full and absolute ownership of all property which the wife might have or acquire, with all its incidents, privileges and burdens, was evidently conferred upon her by this statute. In the acquisition and enjoyment of such property, she shall be deemed to be an unmarried woman. Marital control of it was completely abrogated ; not a trace of it was permitted to remain.

Her husband is thus placed upon the same footing as a stranger, and has no greater authority than a stranger to impose a burden upon her separate estate, or to restrict, or embarrass her in the exercise of exclusive dominion over it Afterwards came the act of I860, chapter 90, amended by chapter 172 of 1862, which materially enlarged her rights and powers; and, among other things, provided that her property should, notwithstanding her marriage, be and remain her sole and separate property, and might be used, collected and invested by her in her own name, and should not be subject to the interference or control of her husband. Eor was she left powerless to enforce these newly acquired rights. Section 3 of the act of 1862, subsequently incorporated into § 450 of the Code, provided that in all matters relating to her separate property she might sue and be sued as if she . were sole. She has the same remedies to prevent or restrain her husband from unlawfully interfering with her property as she has against any other person. -If he keeps upon her premises a ferocious animal, she has the same authority of law to protect herself against this infringement of her property rights as against a like trespass by a neighbor.

In Minier v. Minier, 4 Bans., 421, the general term of the third department, held that the wife could maintain ejectment against her husband, and Judge Parker, in his opinion, says that it is both logical and reasonable to construe the acts of 1860 and 1862 “ as entitling her to bring just such a suit against her husband in relation to her property as she may bring against any other person.” And as to her property, he further says: “ The relation of husband does not affect it; as to it, the parties are strangers to each other.”

In Baum v. Mullen, 47 N. Y., 579, Chief Judge Church, in commenting upon the effect of the act of 1$62, says that with respect to her own property, the wife “is to be treated as unmarried. All the rights of an unmarried woman are conferred upon her, and all correlative obligations are imposed. The statute has -declared equality of rights, and equality of obligations and duties; and courts have no alternative but to enforce both. The wife is liable in the same manner and to the same extent for frauds or torts committed in the management of her property as she is upon contracts relating to it.”

In Rowe v. Smith, 45 N. Y., 230, the wife was held liable for damages resulting from the trespasses of her cattle, which had strayed from her premises to the lands of another, upon the ground that the same duty was imposed upon her, with respect to the care cf her property, as upon others, and Judge Andrews, in his opinion, puts and answers the question which is directly involved in this case. At page 233, he says: “ If the defendant should permit a nuisance upon her premises to the injury of her neighbor, would she not be liable in an action for the injury ? The unlawful use permitted by her of her separate estate, in the case supposed, would make the action one relating to her separate estate, and in this case the violation of the duty incident to the ownership of the property has, we think, the same result, and brings the action within the intendment of the statute.”

It must be borne in mind that we are not dealing with a case where a domestic animal is a trespasser upon the wife’s property, or where the husband may have brought it and maintained it there without her consent. The jury found that she kept and harbored it upon her own premises; and the evidence is sufficient to support the finding. She could at any time have required him to remove it, and could have caused it to be destroyed, if compliance with the request had not been promptly granted. There was no actual coercion here and none can be implied. She not only assented to the maintenance of the dog upon her premises, but voluntarily assumed the burden of it. The provisions of the statutes we' have been considering relate exclusively to the property rights of the parties to the marriage contract. Other marital rights are not affected by them: The husband is still the head of the family ; the master of the house. He is entitled to the help and companionship of the wife; the control 'and discipline of his children, and^ the regulation of 'the domestic affairs of the house-' hold. He may require the family to live with him in such suitable home as he may provide; but if by the grace of his wife he maintains a home upon her property, he cannot use such property in any way not assented to by her. All such conjugal rights are unimpaired, but the right to keep a vicious animal upon his wife's premises without her.permission is not one of them, unless there is some rule of the common law, which we have not "been able to discover, that regards a dog as a necessary part of the equipment of a well ordered household.

We are referred to three cases in the supreme court of Massachusetts, Com. v. Wood, 97 Mass., 225; Com. v. Carroll, 124 id., 30; Com. v. Pratt, 126 id., 462, but the decision of each was put upon grounds entirely consistent with the views we have here expressed. They hold that the husband may, in the exercise of his conjugal authority, prohibit the use of the house, which is the home of his family, for immoral or criminal purposes, even when it is upon-the premises of his "wife; for he may determine who shall visit the house, and it is his duty for the good of the family to prevent dissolute and criminal characters from resorting to it, and if he fails in the discharge of this duty, and the house becomes disorderly or' it is employed for the purpose of violating the excise laws, he becomes criminally responsible as the keeper of a disorderly house, or of a place where intoxicating liquors are sold contrary to law. In Com. v. Wood the court say : “ How far he may exercise force in restraining her is n.ot precisely settled. But there can be no doubt that he may exercise as much power as may be reasonably necessary to prevent her, as well as other inmates of the house, from making it a brothel.”

It will be seen that the right to control her in the lawful use which she shall make of her property was not involved. It was a question of the extent of the conjugal authority of the husband over the members of his family of which no legislation has yet attempted to deprive him.

The defendant, -Joseph M. Battie, has also appealed from the,, judgment against him. He has been made liable, not on the ground that he was the owner of the dog, or that he co-operated with his wife in the commission of a wrong, but solely on the ground of his marital liability for the torts of his wife. The principles we have applied for the purpose of sustaining this judgment against her necessarily require his exemption from liability as her husband. Under proper allegations and proofs, he who owns and he who harbors a vicious animal may both be made responsible for a resulting injury in the same action. But there is no averment in the complaint that he was the owner of the dog or knew of its vicious habits. At the commencement of the trial he moved for a dismissal of the complaint as to him, which motion was improperly denied. This error might perhaps be disregarded or cured by amendment, if the jury had found that he had knowledge of the vicious propensities of the dog; but that question was not submitted to them, and without a finding to that effect we do not see how his liability has been established.

As the law was in 1889, when this cause of action arose, the husband was required to respond for what were called the personal torts of the wife; but a trespass committed by her in the care and management of her separate estate was not classed among such wrongs, and it has been repeatedly held that in such cases the husband was not a proper party defendant. Rowe v. Smith, 45 N. Y., 230; Baum v. Mullen, 47 id., 577 ; Fitzgerald v. Quann, 109 id., 441 ; 16 St. Rep., 395; Mangam v. Peck, 111 N. Y., 401; 19 St. Rep., 78.

The judgment must be affirmed as to the defendant Eebecca B. Battie, with costs, and reversed as to the defendant Joseph M. Battie, and the complaint dismissed as to him, with costs in all courts.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Hudson River Telephone Co., Resp’t, v. The Watervliet Turnpike & R. R. Co., App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Highways—Respective bights oe telephone companies and electric RAILWAYS.
    The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be-deemed to be in subordination to this use, unless a contrary intent is clearly expressed, and a telephone his no easement in the public streets and is not entitled to relief because an electric road deranges the electric currents-upon its lines of wire by means of induction or conduction.
    3. Same.
    Plaintiff had accorded to the public by the manner in which it has-elected to use its franchise the unrestricted right of passage, and it cannot question the form in which such right shall be enjoyed, so long as it is of lawful origin and is utilized with proper care and skill.
    3. Same.
    Under chap. 333,‘Laws 1863, and the ordinances of the common council of the city of Albany defendant was invested with authority to adopt the trolley system of electric propulsion, and was not limited to such methods of operating street surface railways in cities as had then been invented and were then in actual use.
    4. Same.
    Defendant was not subject to the provisions of § 13, of chap. 353, of the Laws of 1884, as amended, requiring the approval of the railroad commissioners and the consent of the owners of one-half in value of the property abutting upon the streets.
    5. Costs—Extea allowance—Injunction.
    The court denied a motion for an extra allowance of costs upon the ground of a want of power and assigned as a reason “that the action being to restrain the defendant from employing a particular system only and over a part only of the road, the franchise was not involved and there is, therefore, no basis on which an allowance can be estimated.” Held, error; whether there shall be any allowance at all, or what the amount of it shall be, and how far the hardships of the plaintiff's situation shall affect the allowance, if at all, are questions primarily to be considered by the special term.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment entered upon report of referee, and granting a new trial, and also from order of same court, affirming order denying motion for an extra allowance of costs.

      John S. Wise and Marcus T. Hun, for app’lt; E. Countryman and John A. Delehanty, for resp’t.

       Reversing 39 St. Rep., 953, 966.

   Maynard, J.

All the injuries of which the plaintiff complains are due to the adoption by the defendant of the single trolley system of electric propulsion. It becomes, therefore,' of the first importance to determine whether this change of motive power was authorized by law. The plaintiff makes a vigorous attack upon the right'of the railway company to the enjoyment of such a franchise, and urges many grounds in support of its position. We cannot assent to the argument of the learned counsel for the defendant, that the determination of this question is immaterial, because the state alone, by its attorney-gen eral, can bring suit for a usurpation of corporate powers, or because, ordinarily, the local authorities must prosecute for an unlawful obstruction of the streets, not involving the appropriation of private property. In the case.of a corporation, exercising a delegated authority for the public benefit, the áctionable. quality of a private injury resulting therefrom may depend upon the legislative will, and the aggrieved party may be without remedy, if the damage sustained is the result of the proper exercise of a power or privilege conferred by law, and a right of action is not given by express enactment This immunity from liability does not, however, extend to acts which •are ultra vires, or which are equivalent to a confiscation or condemnation of the property rights of the citizen, unless provision is made for due compensation. If the sovereign power lias never granted to the defendant the right to make use of electricity in the traction of its cars in the streets of Albany, it must respond to the plaintiff, and to all others whose lawful pursuits are invaded by its illegal procedure.

But, we think it is clear that under the act of 1862 (chap. 233), and the ordinances of the common council of the city, the defendant was invested with the authority to adopt this method of transportation, and to place in the streets in question the apparatus and fixtures necessary for its practical and efficient use. The choice of a motive power is not expressly limited, in the statute, except by the exclusion of the force of steam. It is not impliedly limited except that the power selected must not be of such a kind, or require such a mode of application, as will make it a public nuisance, or render the passage of the streets unsafe or dangerous for travelers availing themselves of the ordinary means of locomotion.

The report of the referee removes all doubt with reference to the safety and practical usefulness of the system adopted by the defendant. He finds, in substance, that it is the most efficient and economical and the best thus far devised, and less liable to accidents, through the displacement of machinery, than any other trolley system; that it subserves the public interests and satisfies the public wants with respect to transportation; that it is not prejudicial to the public health, or dangerous to human life; and that no other system of electric propulsion of cars has thus far been demonstrated to be as practicable, effective and advantageous, both to the public and to private interests, as the overhead, single trolley system.

As the evidence is not contained in the record, these findings must be deemed to have been supported by competent proofs, and they leave no room for the contention that the use of this system is unsafe or dangerous, or in any degree a public nuisance.

The act of 1862 cannot properly be limited to such methods of operating street surface railways in cities as had then been invented, and were then in actual use. The words of the statute are to be interpreted according to their natural and obvious meaning, and as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered as well as existing modes of operation, Electricity, as a natural and applied force, was then well known, and it is reasonable to infer that its adaptation as a propelling power was even then anticipated. It would be an unj ust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scop'e of their legislation to the present, and to exclude all consideration for the developments of the future.

If any presumption is to be indulged in, it is that general legislative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass, the inventive and progressive tendency of the people. The application by the defendant for this new grant of power must have reminded the legislature that in thirty years its original franchise of a turnpike way had proved inadequate for the wants of a thickly populous community, and it could not have failed to perceive that in a like period of time the operation of street cars by horse power might become obsolete, or undesirable. It, therefore, wisely provided for the occurrence of such an emergency. It is not to be denied that it is a sound rule of statutory construction which permits nothing to be taken in a grant of corporate powers that is not plainly expressed, or unequivocally given, or not demanded by necessary implication. The defendant claims nothing more; but the plaintiff endeavors to cut down the franchise bestowed by eliminating from the statute the general words of the grant As, in 1862, these railways were run exclusively by animal power, the provision in § 4 of the act, which authorizes the defendant to adopt any mechanical or other power, or the combination of them, which it might choose to employ, except steam, was superfluous, if its range of selection is to be confined to the motive forces which had then been discovered and employed. The history of plaintiff’s franchise is instructive upon this point. It is an intruder in the public streets, and not possessed of any property rights which a court of equity can be invoked to protect, if the canon of construction which it insists upon applying to the grant of the defendant’s franchises shall be •allowed to prevail. It is incorporated under the act of 1848, •chap. 265, providing for the formation of telegraph companies. At that time, and for twenty years afterwards, the art of telegraphy, as known and practiced, did not include the transmission •of human speech by means of the telephone over wires strung upon poles. But it has. been held in other states and countries, and, as we think, rightly, that this form of transmitting messages through the medium of an electric current passing over extended ■wires is authorized by a statute for the incorporation of telegraph •companies; although when the act was passed such form of communication was unknown. Wisconsin Telephone Co. v. Oshkosh, 62 Wis., 32; The Cumberland Telephone & Tel. Co. v. The United Electric Railway Co., 42 Fed. Rep., 273 ; Attorney General v. Edison Telephone Co., L. R., 6 Q. B. D., 244.

It would also be a narrow and illiberal construction of the statute to hold that the defendant was irrevocably bound by the choice of a motive power made in 1862. It then selected the only practicable one; but the authority to employ others was not thereby exhausted. It was a continuing privilege and was intended to be potential whenever and as often as the means of public travel might be improved or facilitated by its exercise. Equally flexible was the power given to the common council of the city to impose such reasonable conditions upon the enjoyment by the defendant of the franchises of a street railway company as, in their judgment, the interests of the public seemed to require. Their authority in this respect was coincident in extent with the company’s right of selection. They could limit the municipal assent to a railroad operated in a specified way, as they did by the ordinance of 1862/ and while that remained unmodified no other method could -be lawfully used, and they could by a subsequent ordinance, as in 1889, authorize the necessary changes to foe made in the equipment of the streets for the introduction of electricity as a propelling force. This power is fairly infer able for the original act, and may also, perhaps, be deduced from the provisions of the city .charter, which authorize them to regulate the use of the streets by railways.

This case is clearly distinguishable from that of the Third Avenue Railroad, 112 N. Y., 396 ; 21 St Rep., 8, cited at length by plaintiff’s counsel. There the railroad company had no express grant of legislative authority, and the consent of the municipality was refused. It attempted to override the local authorities and compel them by mandamus to give their approval to the opening and excavation of the streets for the purpose of substituting^ a sub-surface mode of operation, when the granting of the permission plainly involved the exercise of judgment and discretion. It was held that under such circumstances the department of public works could not be coerced to act favorably upon the company’s application. But the case is not authority for the broad proposition for which the plaintiff contends, that where the right to select a motive power is expressly given and is not limited either as to time or kind, and a selection has been made with the approval of the city authorities, the company cannot subsequently adopt a new and better system of propulsion upon obtaining the municipal consent thereto.

The defendant was not subject to the provisions of § 12 of the street surface railroad act of 1884, chapter 252, as amended by chapter 531 of the Laws of 1889, requiring the approval of the railroad commissioners and the consent of the owners of one-half in value of the property abutting upon the streets. It had the right to make the change under the act of 1862, upon obtaining the consent of the common council, and hence it is embraced within the saving clause contained in § 18, which declares that the act of 1884 shall not interfere with, repeal, or invalidate any rights theretofore acquired under the laws of the state by any horse railroad company ; or affect, or repeal any right of an existing street surface railroad company to construct, extend, operate and maintain its road in accordance with the terms and provisions of its charter and the acts amendatory thereof. Inchoate as well as perfected rights are saved by such a provision. N. Y. Cable R. Co. v. Mayor, 104 N. Y., 1; 4 St. Rep., 308.

The defendant’s authority to use electric motors in the propulsion of its cars in the streets of Albany, and to operate them by the single trolley system, cannot, therefore, be successfully questioned, and, unless some actionable damage has resulted, or will result, to the plaintiff therefrom, its complaint was properly dismissed by the trial court

There is no question of prior equities involved. It is a matter of strict legal right. Neither priority of grant, or priority of occupation can avail either party. The plaintiff has a franchise, which is entitled to protection; but the prime difficulty it encounters grows out of its subordinate character. It has been given and accepted upon the express condition that it shall not obstruct or interfere with the enjoyment by the defendant of its franchises. The plaintiff is not using the streets for one of the purposes to which they have been dedicated as public highways, while the defendant is occupying them in such a manner as to expedite public travel and promote the public use to which they were originally devoted. The condition contained in the plaintiff’s grant would have been imp'ied had it not been expressly named.

The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed. The inconvenience or loss which others may suffer from the adoption of a mode of locomotion authorized by law which is carefully and skillfully employed, and which does not destroy or impair the usefulness of a street as a public way, is not sufficient cause for a recovery, unless there is' some statute which makes it actionable. A different rule prevails if there has been an encroachment upon private rights to the extent of an appropriation of private property, and it was upon this ground that the decision in the elevated railroad cases was placed. Story v. N. Y. E. R. R. Co., 90 N. Y., 122; Lahr v. Met. E. R. Co., 104 id., 268; 4 St. Rep., 340. It was there held that an abutting owner has an easement of light, air and access in the street in front of his premises, of which he cannot he lawfully deprived without compensation by the erection and use of an elevated railway structure. But the plaintiff has no easement in the public streets. It is there by virtue of a legislative grant,' revocable at the pleasure of the power which made it, constituting, while it continues, a valuable franchise, which is recognized as property in the fullest sense of the term. People v. O'Brien, 111 N. Y., 1; 19 St. Rep., 173. The plaintiff’s title to-this property is, however, encumbered by a condition which-diminishes its value, and it cannot rightfully complain of the burden which it has voluntarily assumed. It is a part of its compact with the state that the maintenance of its lines of communication shall not prevent the adoption by the public of any safe, convenient and expeditious mode of transit, such as the defendant's system has been shown to be. It is not deprived of any property right, but is simply compelled to yield the subservience which it is bound to render under the charter which gave it existence.

These conditions necessarily dispose of one of the grounds upon which the plaintiff claims to be entitled to relief from the special injury sustained by the acts of the defendant, namely, the derangement of the electric currents upon its lines of wire by means of induction, as it is called in electrical dynamics.

It seems to be indispensable to the successful prosecution of-the plaintiff’s business that it should make use of an exceedingly weak and sensitive current of electricity. By a law of electric force, not clearly defined or understood, the transmission of a powerful current, such as the defendant must use to supply motion to its cars, along a line of wire parallel with and in close proximity to the plaintiff’s wires, induces upon the latter an additional current, which renders the operation of the plaintiff’s telephones at all times difficult, and sometimes impracticable. It is found that this disturbance cannot be avoided by the defendant without a complete change of the system adopted, and the use of motors which are more expensive, more dangerous and less useful and efficient. It is obvious that to require such change to be made would be to grant to the plaintiff, by a decree of the court, that which the legislature has expressly and intentionally withheld. But the plaintiff is exposed to another danger which deserves consideration. Its system of communication is only partially established m the public streets. Its telephones are located upon the premises of its subscribers and patrons, and at a central exchange, which is upon private property. Its instruments are connected by branch wires with the main wires suspended upon the poles in the streets. To render their respective plants available, both parties must have a return electric current, and both use the earth for that purpose. The plaintiff grounds its wires upon private property and, in many cases, connects them with the gas and water pipes and in this way establishes and completes its required circuit. It is immaterial whether its wires are grounded upon its own property, or that of others who permit the plaintiff to so use their premises. Its possession as a licensee would be lawful while the license continues.

The defendant allows the electric current used for the movement of its cars to escape, or to discharge, at least in part, directly from the rails into the ground, from whence it spreads or flows by reason of the conductivity of the earth upon plaintiff’s grounded wires, and the most serious loss which the plaintiff sustains results from this cause, which is scientifically known as conduction. The defendant insists that it has an equal right with plaintiff to make use of this property, or law of nature, in the conduct of its business, just as all are entitled to the common use of the air and the light of the heavens, which, in a certain sense, is undoubtedly true. But the defendant does something more. It does not leave the natural forces of matter free to act, unaffected by any interference on its part. It generates and accumulates electricity in large and turbulent quantities, and then allows it to»escape upon •the premises occupied by the plaintiff, to its damage.

We are not prepared to hold that a person, even in the prosecution of a lawful trade or business upon his own land, can gather there by artificial means a natural element like electricity, and discharge it in such a volume that, owing to the conductive properties of the earth, it will be conveyed upon the grounds of his neighbor with such force, and to such an extent as to break tip his business, or impair the value of his property, and not be held responsible for the resulting injury. The possibilities of the manifold industrial and commercial uses to which electricity may eventually be adapted, and which are even now foreshadowed by the achievements of science, are so great as to lead us to hesitate before declaring an exemption from liability in such a case. It is difficult to see how responsibility is diminished or avoided because the actor is aided in the accomplishment of the result by a natural law. It is not the operation of the law to which the plaintiff •objects, but the projection upon its premises, by unnatural and .artificial causes, of an electric current in such a manner and with such intensity as to materially injure its property. It cannot be questioned that one has the right to accumulate water upon his ■own real property and use it for a motive power, but he cannot discharge it there in such quantities that, by the action of physical forces, it will inundate his neighbor’s lands and destroy his property, and shield himself from liability by the plea that it was not his act, but an inexorable law of nature that caused the damage^ Except where the franchise'is to be exercised for the benefit of the public, the corporate character of the aggressor can make no-difference. '

The legislative authority is required to enable it to do business-in its corporate form; but such authority carries with it no lawful right to do an act which would be a trespass if done by a private-person conducting a like business. If either collects for pleasure- or profit the subtle and imperceptible electric fluid, there would seem to be no great hardship in imposing upon it, or him, the same duty which is exacted of the owner of the accumulated water power; that of providing an artificial conduit for the artificial product, if necessary to prevent injury to others.

But the record before us does not require a determination of the question in this form. The use which the plaintiff is making of its grounded wires is part of its system of telephonic communication through the public streets and a necessary component of the service it maintains there under the permission of the state, and is subject to the condition that it shall not incommode the use of the streets by the public. ■ It is one indivisible franchise, and is in its entirety subservient to the lawful uses which may be made of these thoroughfares for public travel. In this respect no distinction can be made between the injuries resulting from induction and conduction.

In the disposition of this appeal there has been no occasion to make any application of the rule that where a public use authorized by law takes no property of the individual, but merely infects" him by proximity, the necessary interference in his business- or in the enjoyment of his property occasioned by such use furnishes no basis for damages. Radcliff’s Exr v. Mayor, 4 N. Y., 195 ; Bellinger v. N. Y. C. R. R., 23 id., 42 ; Moyer v. N. Y C. & H. R. R. R., 88 id., 351; Uline v. N. Y. C. & H. R. R. R., 101 id, 98;. Am. Bk Note Co. v. N. Y. E. R. R. Co., 129 id., 252 ; 41 St. Rep., 531. Under such a rule it would be a grave question whether the injuries to which the plaintiff is subjected, would not if made permanent, constitute a servitude upon its property which could not be imposed without compensation, provided the parties were occupying the streets upon an equal footing. As was said by Judge Andrews in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y., 14.; 3 St. Rep., 56: “ It is, in many cases, difficult to draw the line and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts an, injury for which the law affords a remedy.”

We are spared the task of discrimination in this case, by reason of the legal attitude which the plaintiff has assumed in its-occupation of the streets. It has accorded to the public, by the manner in which it has elected to use its franchise, the unrestricted right of passage, and it cannot question the form inwhich such right shall be enjoyed, so long as it is of lawful origin, and is utilized with proper care and skill. The defendant’s mode of conveyance of passengers is of this character, and the plaintiff can no more justly complain of its loss from this source than it could if, by the jarring of loaded vehicles passing up and down Broadway, its delicate and sensitive instruments were displaced, and their beneficial nse impaired or destroyed.

There is also an appeal by the defendant from an order denying a motion for an extra allowance of costs. The decision of the •court below was placed upon the ground of a want of power, and the special reason assigned was “ that the action being to restrain the defendant from employing a particular system only, and over a part only of the road, the franchise was not involved, and there is, therefore, no basis on which an allowance can be estimated.” In denying the motion for this sole cause, we think the supreme court erred. The subject matter of the controversy litigated was the right of the defendant to use the single trolley system in the operation of its road upon Broadway and South Ferry street, and the prayer for relief in the complaint is that an injunction issue “ restraining the defendant from operating its said railroad through the city of Albany by the electric system herein described.” If the right, thus sought to be perpetually enjoined, has a money value, and there was any evidence in the moving papers tending to establish such value, the court had jurisdiction to entertain the motion, and it was its duty to exercise its discretion and dispose of the application upon its merits. We have examined the record sufficiently to satisfy us that there was some proof of this character. One witness testifies that the right of the defendant to run its cars by electric motors upon the single trolley system in the •city of Albany is worth to the company the sum of at least $300,000, and as against the double trolley system, or any other known system, at least $76,000.

We are not permitted to say how much this and other similar evidence may be worth. We are dealing exclusively with a question of power. Whether there shall be any allowance at all, or what the amount of it shall be, and how far the hardships of the plaintiff’s situation shall affect the allowance, if at all, are questions primarily to be considered by the special term and can be safely entrusted to its determination. The authorities cited in the •opinion of the general term were all cases where no evidence was presented as to the commercial value of the right, or franchise •question, and the decision was, that in the absence of such evidence it could not be presumed to have a particular value. The just inference from them is, that if such proofs had been submitted, the court might have considered them as the basis of an allowance. The People v. The Genesee Valley Can. R. R. Co., 95 N. Y., 666 ; Conaughty v. Saratoga Co. Bk., 92 id., 401; Heilman v. Lazarus, 12 Abb. N. C., 19.

The order of the general term, granting a new trial, must be reversed and the judgment entered upon the report of the referee affirmed, with costs in all courts.

The order denying the motion for an additional allowance must be reversed, with costs, and the motion remitted to the supreme •court to be there heard upon its merits.

All concur.


text:
    The People, Resp’ts, v. Michael Murphy, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Criminal law—Evidence—Proof of handwriting.
    Upon the trial of a person charged with arson two anonymous letters were, introduced, one threatening to burn the house of a woman in the employ of the owner of the burned buildings in case she did not leave him and that he would burn the employer’s property if he did not discharge a girl, and the other written five days after the fire containing an implied threat of further harm unless he did as the writer requested, and this was. followed by expert testimony showing that the letters were written by the-same person who wrote the specimens of genuine handwriting of the prisoner. The prisoner called other experts and no objection was made to* the letters except that they were incompetent anchimproper. Held,t hat an objection to the mode of proof was not available on this appeal; that as the evidence objected to was not in its essential nature incompetent, all grounds of objection which might have been obviated if they had been-specifically stated must be deemed to have been waived.
    3. Same.
    Upon the cross-examination of the experts, the defendant submitted to* them nine different specimens of handwriting to compare with the letters and specimens, and to say whether they were the same handwriting. Each gave a different answer, and four testified that the same person wrote the-letters and the other specimens. Defendant then offered to prove that the-nine specimens were written by the prisoner’s brother, and the evidence was excluded. Held, no error; the defendant was bound by the replies of the witnesses to the questions put and could not go further and litigate the immaterial issue of the authenticity of the additional specimens submitted by him for such a purpose.
    3. Same.
    Defendant had been discharged from his position as coachman three months before the fire, and knew that a poison called “ London Purple had been used to spray vines, etc., and the People were allowed to prove that on the night of the fire and before, a span of horses and a pony and a. cow belonging to the owner were poisoned with “ London Purple,” and that his carriages, etc., were destroyed, while his brother’s, in the same barn, were not. Held, that the evidence was competent as supporting the-inference that the malicious injury to the personal property was done upon the same night the fire occurred, and by the incendiary, and as a part of the same criminal scheme which resulted in the destruction of the barn.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of Niagara county sessions,, convicting defendant of the crime of arson in the third degree.

      Richard Crowley, for app’lt; P. F. King, dist. atty., for resp’ts.

       Affirming 44 St. Rep., 7.

   Maynard, J.

The defendant was convicted of the crime of arson in the third degree. The evidence was purely circumstantial, as it ordinarily is in the proof of this class of crimes. It is-unnecessary to review it in detail, but it was sufficient, we think,, if believed by the jury, to connect the defendant with the commission of the offense charged and to support their conclusion that he was the perpetrator of it.

On the trial two anonymous letters were introduced in evidence and, undoubtedly, had an important bearing in securing defendant’s conviction. One was written to a woman in the employ of the owner of the burned building, threatening to burn her house in case she continued in his employment, and requesting her to tell the owner that he would burn his property, too, if he did not discharge a servant girl with whom the defendant had a standing quarrel. The other letter was written four days after the fire, and was addressed to the owner of the building, and contained an im-. plied threat of further harm unless he did as the writer requested, which, it was argued, had reference to the request in the former letter for the discharge of the servant girl. The prosecution resorted to the method authorized by chapter 36 of the Laws of 1880, in order to prove that these letters vvere written by the defendant. A number of specimens of his genuine handwriting were put in evidence and six expert witnesses were called, all of whom, after a comparison of the letters with the specimens shown to have been genuine, testified, with different degrees of positiveness, that the letters and the specimens were all written by the same hand.

It is now objected that this mode of proof of defendant’s handwriting was unauthorized; that it was not a case of a disputed writing within the provisions of the act of 1880; that the statute was only intended to change the rules of evidence formerly in force, where the authenticity of the paper is directly the subject matter of the issue to be tried, as in the case of the denial of the execution of a note, or a deed, or a will, or any other instrument relied upon as the foundation of an action or defense. It is insisted that all of the reported cases are of this character, and the language of Chief Judge Huger, in Peck v. Callighan, 95 N. Y., 75, is quoted, where it is said: “ The disputed writing referred to in the statute relates only to the instrument which is the subject of controversy in the action, and the specimens of handwriting admissible thereunder are those of the person purporting to have executed the instrument in controversy.”

Whatever intrinsic merit there may be in this contention, we do not think it is available to the defendant upon this appeal. Ño such objection appears in the record.- The genuine specimens were received in evidence, and the expert witnesses called and permitted to make the comparison and give their opinion upon the subject, without any intimation from the defendant that such proof was inadmissible. The defendant himself even called two expert witnesses, and had the benefit of an opinion from them, after a comparison of the letters with the genuine specimens, to the effect that at least one of the letters was not written by the same person as the concededly genuine exhibits. When the letters were offered in evidence there was no objection to their reception on the ground that the proof of their genuineness was insufficient; but they were objected to solely on the ground that the letters themselves were incompetent and improper as evidence, an objection which pertains to the subject matter of the proof offered, and not to the method of its presentation, or to any of the preliminary steps to be observed in its introduction. If the defendant had seasonably objected to the evidence of comparison of handwriting, and the objection had been sustained, the prosecution might have been able to have furnished sufficient common law proof of the genuineness of the letters to have authorized their admission as evidence, for one of the expert witnesses was a bank officer who had seen the defendant write, and who might have testified front his personal knowledge of the defendant’s'hand writing that, in his • opinion, he wrote the letters in question; and other like testimony might have been produced.

The evidence objected to was not in its essential nature incompetent and, therefore, all grounds of objection which might have been obviated, if they had been specifically stated, must be deemed to have been waived. Turner v. City of Newburgh, 109 N. Y., 301; 15 St. Rep., 93 ; Bergmann v. Jones, 94 N. Y., 51.

Upon the cross-examination of the expert witnesses for the prosecution, the defendant, for the purpose of testing the accuracy of their judgment, submitted to them' nine different specimens of handwriting, and each was asked to compare them with the letters and specimens put in evidence by the People, and to say whether, in his opinion, they were in the same handwriting. Each gave a different answer, and, with two exceptions, each testified that some of the specimens were written by the same person who wrote the letters and the other specimens; but no two-witnesses agreed as to the particular specimens which were so written. The defendant then offered to prove that these nine-specimens were not in the handwriting of the defendant, but were written by his brother ; and the evidence was excluded. We can. discover no error in this ruling. It was a collateral matter, properly used for the purposes of a cross-examination, and the defendant was bound by the replies of the witness to the questions put. It served as an impressive warning to. the jury to closely scrutinize the expert evidence, because of the want of concurrence of judgment on the part of the witnesses when they were required to compare the letters with specimens of whose authorship they were ignorant; and, to that extent, the cross-examination was-valuable and proper, although it must rest somewhat in the sound discretion of the trial court to determine how far it shall be carried. But the defendant could not be permitted to go farther and to litigate the immaterial issue of the authenticity of the additional specimens submitted by him for such a purpose. Hilsley v. Palmer, 32 Hun, 472. It would give rise to a multiplicity of collateral issues which might render the litigation interminable ; for the People would have the right to disprove, if they could, the testimony offered and by a comparison of handwriting show that these specimens were not written by the defendant’s-brother.

The case of the First National Bank of Hornellsville v. Hyland, 53 Hun, 108; 25 St. Rep., 446, affirmed by this court, 125 N. Y., 711; 35 St. Rep., 993, is not applicable here. The inquiry upon cross-ex-ami nation was there limited to the genuineness of other signatures which were already in evidence.

Nor does the case of the Mutual Life Ins. Co. v. Suiter, 131 N. Y., 557 ; 42 St. Rep., 394, aid the defendant. It was there held that a party was not necessarily limited to the genuine signatures, introduced by his adversary for the purpose of comparison, but-should be permitted to put in evidence other genuine signatures in order to afford as wide a range for comparison as might be practicable.

But the handwriting offered here was not that of the defendant, but of a stranger to the controversy, and the object of its proposed introduction was not for the purpose of comparison under the act of 1880, but to affect the degree of credit to be given to-the testimony of the expert witnesses.

The defendant had been in the employ of the owner of the burned barn as coachman and gardener, and was discharged some three months before the fire because of the ill feeling between him and the servant girl. He was familiar with the location and arrangement of the barn and other buildings upon the premises, and knew that a poisonous preparation, called London Purple, was kept on a cupboard in the barn, and he had used it in spraying vines and for the destruction of insects in the garden. The People were permitted to prove, under defendant’s objection, that upon the night of the fire, and before it occurred, a span of horses and a pony and cow, kept in the barn and belonging to the owner, were poisoned with London Purple and all died shortly afterwards ; that his carriage in the same barn was hacked and the curtains and cushions cut into shreds; that his carriages and cutters in an adjoining carriage house were cut and damaged; but his brother’s carriages and cutters in the same barn were not injured. The evidence was sufficient to support the inference that the malicious injury to the personal property was done upon the same night that the fire occurred and by the incendiary, and as a part of the same criminal scheme which resulted in the destruction of the barn. Under such circumstances the evidence was competent. Hope v. People, 83 N. Y., 427. It very clearly tended to" prove that the fire was not accidental; that its origin was in stigated by malice and not from the desire of gain; that it was kindled by some person having the intimate knowledge of the defendant in regard to the situation of the property, and it was properly received, even though it may have tended to establish the defendant’s guilt of another crime than the one set forth in the indictment oh trial.

There is no other exception in the record requiring attention, and the judgment of conviction should be affirmed.

All concur.


author: Finch, J.

text:
    Frederica Preuster, App’lt, v. The Supreme Council of the Order of Chosen Friends, Resp’t.

      (Court cf Appeals,

      Filed October 11, 1892.)

    Benefit societies—Forfeiture—Waiver.
    The application of R. for membership in the defendant organization contained an untrue statement as to his age, which under the terms of his certificate forfeited his rights to all benefits and privileges. Two years after his admission R. made application for an allowance on account of disability, but having heard rumors as to his age the council obtained a certificate of birth from Saxony, showing the fraud, and about six weeks after, on the report of the committee, the council voted to expel him. During said six weeks one or more assessments were collected, the secretary of tile council who received such assessments being a member of the investigating committee. Held, that this did not constitute a waiver of the forfeiture of membership on the part of the council, as it was bound to treat the accused member as innocent until satisfied of his guilt.
    Appeal from judgment of the supreme court, general term, fifth department, reversing order of special term granting plaintiff’s motion for a new trial, on case and exceptions, after a verdict for the defendant directed by the court at the circuit, and ordering judgment for defendant on the verdict.

      Frank Brundage, for app’lt; Cuthbert W. Pound and H. H. Morse, for resp’t.

       Affirming 38 St. Rep., 605.

   Finch, J.

That the right of Reim, under whose certificate the plaintiff claims, to membership in the order defending was liable to forfeiture for his false statement of his age is well established by the proofs. Without reference to the baptismal certificate, held to be incompetent as evidence, there was enough to show that while representing himself at the time of his application to be sixty years of age he was in fact at least sixty-one. Upon a question of life insurance the age of the applicant is always more or less material, because it is necessarily a prominent factor in the risk assumed. While it appears to be true that nothing in the. constitution of the order forbids an insurance upon a life beyond the age of sixty, yet the real age is material, ana the evidence indicates that the custom and habit of the order was not to accept a membership after the age of sixty had been reached. The table of rates appearing in the papers stops at about that age, and it is manifest that if the applicant had told the truth the risk might have been declined. His certificate of membership upon its face shows that it was granted upon the conditions specified'in his application, and the rules and regulations of the order; and one of the conditions contained in the form of application was that any untrue or fraudulent statement made therein, or a suspension or expulsion from the order, should forfeit the right to all privileges or benefits thereof.

It is alleged in the complaint, not only that the representation of Reim as to his age was untrue, but also that it was fraudulent, and the evidence tends to support that inference. Whether the "statement was knowingly or ignorantly false, the result of a forfeiture followed in accordance with the terms of the contract, and -operated as a'complete answer to the plaintiff’s claim unless the forfeiture was effectually waived, and it is upon such a waiver that the whole contention of the plaintiff rests.

In considering that question, it is necessary to recall the facts and the dates of their occurrence ; and we may admit them to be, substantially, such as the appellant claims them tobe from the • evidence in the record. The first information of a false statement of his age in the application of the member reached the secretary of the local council about a year after the issue of the certificate, but in the "form of a rumor, and obviously without any proof of its accuracy or truth, and coming from no reliable or authoritative source. It seems to have raised no serious doubt in the mind of the officer, and the membership of Eeim remained nnassailed until about two years later, when he made application for an allowance on account of disability. That application to the local council turned its attention to the rumors which had existed, and a committee was appointed to investigate them and ascertain the truth. That truth was not easily reached outside of those who were interested to conceal it; and one of the modes of inquiry adopted by the committee was an application to the foreign authority in Saxony having a registry of the birth of Eeim. That certificate, showing the falsehood of his statement, was received by the committee at least as early'as June twenty-third. It made a report in favor of expulsion on July thirteenth, and on the 28th of July the council heard the report read, and voted to expel. Ho assessments were collected after that date, but one or more were collected between the receipt by the committee of the foreign certificate and the committee’s report to the local council.

The secretary of that council, who received such assessments, was a member of the investigating committee, and his alleged knowledge of the fraud is sought to be imputed to the council and to the defendant. The secretary was an officer of the local council, appointed by it, and subordinate to its authority. The Supreme Council had no direct control over him, and could reach him only through his immediate superiors. Assuming that the local council may be deemed within its sphere the general agent of the defendant association, and that by receiving or expelling members it could in some measure bind or release the order, and so might have waived the forfeiture incurred, the court below has held that the evidence did not establish such waiver, and I concur in that opinion: Certainly there was no intention to waive the forfeiture on the part of the local council, or manifested by its action. It was bound to treat the accused member as innocent until satisfied of his guilt; and having full knowledge of the facts, and was not required to act by choosing between a waiver and a forfeiture until the truth was reached in a form and so supported by evidence as to make it a duty to act decisively in one direction or the other. The accused member, pending the investigation, must be deemed to have voluntarily taken the risk of its result. He must have known that it was in progress, and that his assessments were paid and received upon an assumption of his innocence which would fail if, in the end, the truth should he disclosed. After the knowledge obtained from the foreign registry reached the local council through the report of its investigating committee no assessments were collected or accepted. The council seems to have conducted the investigation with reasonable diligence. If it had purposely or negligently delayed the inquiry with a view to get as many assessments as possible before the forfeiture, and with full knowledge of the truth, a different question would be presented. But here it acted in good faith and promptly insisted upon the forfeiture when satisfied of the fact that it had been deceived.

Two circumstances are to be specially remembered in arriving at a conclusion. Ho authoritative notice of his true age was ever given by Eeim, or those who represented, him, and which, for that reason, bound him, and so put the company to its election. There was simply an accusation by third persons, never admitted by the ■deceased, and the truth or falsity of which was open to inquiry. In addition, it is to be observed that the foreign' certificate, objected to by the appellant, was held inadmissible by the general term, and did not justify the action of the local council. It proved nothing on the trial, and so proved nothing to the local council, which acted without any knowledge, except inadmissible hearsay, and so acted at its peril. The fact established on the trial contradicted the certificate, and of the real fact the local council never had any full knowledge until after premiums were refused. Pending the inquiry, there was knowledge of an accusation never admitted by the assured, and the truth. of which was in doubt. Until the council heard the evidence and acted upon it as satisfactory, it cannot be said that it had full knowledge of the actual fact, which all the time, and even down to the trial, was in dispute. If notice of the truth had been given by Eeim, or those representing him, so as to have bound them and required the belief of the insurer, a different conclusion might be required. But knowledge of an accusation is by no means a necessary knowledge of the fact, and the real truth as to the age of the assured was never lawfully proven till the date of the trial, and then by evidence which never came before the local council at all. Their action at the date of the expulsion may estop them from denying a then existing knowledge; but before that date, neither by estoppel, nor as matter of fact, can it be said that full knowledge ■existed.

We think the conclusion of the general term was correct, and the judgment should be affirmed, with costs.

All concur.


author: Earl, Ch. J.

text:
    The People ex rel. Ebenezer G. Blakslee, App’lt, v. The Commissioners of the Land Office, Resp’ts.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Land grant—Deed—Reservation in.
    An owner of the upland along a navigable stream, who at the time of conveying the same owns no land under water and has no grant from the state, can make no valid reservation of such land in his deed, and has no standing to resist the title of his grantees or their assigns under a grant of such lands under water from the commissioners of the land office or to review the action of the commissioners!
    2. Same.
    The fact that relator, a few years before the grant of the land under water to the B. Co., had as president of said company caused the refuse of its foundries to be deposited in the water so as to raise the land above the surface thereof, did not make him the proprietor of the “adjacent lands.” As between him and the state it still legally remained land “under water.”
    Appeal from judgment of the supreme court, general term, third department, confirming proceedings of commissioners of the land office, granting land under water to the E. Gr. Blakslee Manufacturing Company, and quashing writ of certiorari brought to review the same.

      Francis Larkin, for app’lt; Alfred Taylor, for resp’ts.

       Affirming 39 St. Rep., 643.

   Earl, Ch. J.

The E. Gr. Blakslee Manufacturing Company made application to the commissioners of the land office for a grant of certain land under the water of the Hudson river, and based its application on the ground that it was the owner of the adjacent upland, and the grant was made. The relator then instituted this proceeding by certiorari to review and reverse the action of the commissioners on the ground that the grant was made in violation of the Revised Statutes, which give the commissioners power to make such grants, but provide that “ no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.” 1 R. S., 573,7th ed., § 67. The relator claims that the company was not the proprietor of the adjacent land.; and that even if it was the proprietor of any, it was not to the extent in width of the land granted.

The matter was very carefully and thoroughly, examined and investigated by the commissioners of the land office, and it is very difficult, if not impossible upon this record, in which the facts are not plainly presented, to determine whether or not they erred as to the ownership of all the adjacent land by the company.

It is sufficient for the present purpose that the relator was not the owner of the adjacent land, or of the land granted, and that thus he was in no way aggrieved by the determination of the commissioners. Even if the grant to the company was void, he was in no condition to complain of it.

It is a cardinal principle, as applicable to proceedings by certiorari as to other legal proceedings, that a party cannot be heard in court who has no interest in the matter pending, nor can he appeal from a determination by which he is in no way aggrieved. Code, § 2127; Colden v. Botts, 12 Wend., 234; Ex parte Mayor of Albany, 23 id., 277 ; The People ex rel. Moore v. The Mayor of New York, 5 Barb., 43; The People ex rel. Merchants National Bank v. Coleman et al., Commissioners of Taxes, 41 Hun, 341; 2 St. Rep., 615.

There is no pretense that the relator is the proprietor of any of the adjacent upland. Reuben Quimby formerly owned all the adjacent land, and his title thereto by several mesne conveyances came to the company. He conveyed the land by two deeds in 1853. In the first deed he conveyed what is called in the record parcel one. That is an absolute deed without any reservation or exception. In the other deed he conveyed parcel two, and that deed contains this clause: “Containing all the land within said boundaries excepting and reserving to said Quimby, his heirs and assigns, all the water rights and privileges and all the water grants and rights in the Hudson river west of the said railroad which now do or hereafter may appertain or belong to the above described premises, the same and in the same manner as if these presents had not been made.” Quimby owned no land under water, had no grant from the state and was simply an owner of the adjacent upland which he granted. • The relator has succeeded to whatever rights or interests Quimby‘was able to convey by virtue of the clause above quoted, and we have held that that -clause was wholly ineffectual, and that by virtue of it Quimby retained nothing' which he could convey. The E. G. Blakslee Manufacturing Co. v. E. G. Blakslee’s Sons Iron Works, 129 N. Y., 157; 41 St. Rep., 178.

The relator, therefore, derived no right to or interest in the adjacent land or the land under water from Quimby. But he seems to place some reliance upon other facts. A few years before the grant to the company he, being president of the company, caused the refuse from its foundries to be deposited in the water west of the railroad upon some of the land under water, subsequently granted to the company, and by this deposit the land was raised above the water. He certainly acquired no title to the land by thus entering upon it without any right and filling it up, and he did not thus become the proprietor of the “ adjacent lands ” within the meaning of the statute above quoted. As between him and the state it still.legally remained land “under water,” to be dealt with as such. The grant of the land to the company invaded no rights of his, and caused him no legal grievance.

The relator is therefore without any standing to maintain this proceeding, and the order appealed from should be affirmed, with costs.

All concur, except Maynard, J., not sitting.


author: Andrews, J.

text:
    In the Matter of the Probate of the Will of James Stewart, Deceased.

      (Court of Appeals,

      Filed October 11, 1892.)

    Appeal—From surrogate’s decree probating will—Notice op appeal —Code Civ. Pro., § 2576.
    It is not necessary, in a notice of appeal from the decree of a surrogate admitting a will to probate, to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them. It is sufficient where it, in general terms, is taken “from the decree and each and every part thereof.”
    Appeal from judgment of the supreme court, general term, second department, reversing decree of surrogate of Kings county refusing to admit to probate a will of James Stewart, alleged to have been made'in 1887, and the codicils thereto, alleged to have heen made in 1888, and admitting a will made in 1881 and codicil thereto made in 1884.

      Wm. D. Veeder and D. W. Northup, for app’lts ; W. B. Maben, for resp’ts.

       See 39 St. Rep., 801.

   Andrews, J.

The general term on appeal from the decree of the surrogate, which admitted to probate the will of 1881, and the codicil thereto, and denied probate to the will of 1887, on the ground that it was obtained by fraud and undue influence, ¡reversed the decree “ on questions of fact ” and directed issues to be framed and sent to a jury for trial. The appeal to this court is taken on the ground that the general term had no power to review the facts, for the reason that the notice of appeal to the general term did not specify that the appeal was taken on the facts, but was in general terms only “ from the decree and each, and every part thereof.”

It is insisted that upon such a notice only questions of law presented by exceptions were brought before the general term, and that it could not reverse on the facts upon a consideration of the weight or preponderance of evidence, or because in its judgment the facts should be re-examined by a jury. The appellant relies in support of this contention upon | 2576 of the Code of Civil Procedure. That section, which is found in the article relating to appeals from orders or decrees of surrogates, is as follows: “ The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate as prescribed by law for the making and settling of a case upon an appeal in an action.”

The claim is that if the appellant desires a review upon the facts in the supreme court, he must so specify in his notice of appeal. Section 2576 does not require that such specification should be made, nor is it elsewhere prescribed, but this, as is claimed, is an implication from the language of the section. We are not satisfied that this contention is well founded. Section 2574, which prescribes how an appeal may be taken, declares that it must be by written notice to be served, referring to the decree or order appealed from, and stating that the appellant appeals from the same or from some specified part thereof.”

It is not required that the grounds of the appeal shall be stated in the notice. If under § 2576 it is necessary to specify that the appeal is upon the facts, in order to give jurisdiction to the appellate court to review them, it would seem equally necessary that if the appeal was upon the law, it should be so specified in order to enable the court to review the exceptions. We think § '2576 was intended to declare affirmatively the power of the general term to review both the facts and the law on appeals from surrogate’s decrees, and was not intended to regulate the practice in bringing appeals, except to require that when the appeal is from a decree rendered upon a trial of an issue of fact, a case must be made and settled, as on an appeal in an action. That was done in this case.

The question of undue influence in procuring the will of 1887 was the issue litigated and upon which the determination of the .surrogate proceeded, and a large volume of testimony was presented to the general term, and that court on reviewing the facts reversed the decree and ordered issues. The notice of appeal ' informed the respondent that the entire decree was challenged and the case prepared exhibited both the questions of fact and law involved.

The rule that in an action tried by a jury a motion for a new trial is necessary to enable the general term, to review the facts, is based upon reasons wholly inapplicable to the case of a trial before a surrogate. Burger v. Burger, 111 N. Y., 528; 20 St. Rep., 105.

We are of opinion that the point urged is not well taken and that the general term had jurisdiction to review the facts.

The question is new and it is proper under the circumstances to dismiss the appeal, leaving the parties to be governed by the order of the general term.

All concur.


author: Gray, J.

text:
    Jerusha Vaughn, Resp’t, v. The Village of Port Chester, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Municipal corporations—Assessments—Payment under coercion.
    Plaintiff had contracted to sell certain land to the hoard of education, and to convey free of incumbrance. When the deed was to be delivered an assessment for grading stood against the property, and the warrant was in the hands of the receiver. On the day he returned it the board of village trustees passed a resolution for the advertisement and sale of all property upon which the assessment had not been collected, and refused to allow a deposit of sufficient of the purchase money to abide the result of a test suit as to the validity of the assessment. Thereupon, plaintiff paid the amount under protest. Subsequently, the assessment was determined to be illegal. Held, that the payment was not voluntary, but was made under such coercion by law as would sustain a recovery back of the moneys.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Maurice Dillon, for app’lt; Wilson Brown, Jr., for resp’t.
   Gray, J.

The plaintiff has succeeded below in vacating an assessment imposed upon her property by the defendant, upon the ground of its illegality, and by the judgment she has been awarded the recovery back of the moneys she had formerly paid in discharge of the assessment. The assessment was laid in 1878, and was in the nature of a re-assessment, to cure defects invalidating an earlier assessment for the expense of grading ay avenue in the village. The payment of this assessment was made in January, 1880, and under these circumstances. The plaintiff had contracted to sell to the board of education the property in question, and • to convey free of incumbrance. When the deed was to be delivered, this assessment stood against the property, and the warrant for its collection was in the hands of the receiver of taxes, not yet returned. The receiver returned his warrants on January 5, 1880, and, on the same day, the board of village trustees passed a resolution for the advertisement and sale of all property upon which the assessments had not been collected. An effort to arrange for a suspension of the enforcement of the assessment failed, the vendee of the property being willing to agree to take the deed, and that there might be a deposit of sufficient of the purchase money to abide the result of a test suit as to the validity of the assessment. Thereupon, and on January 24, 1880, the plaintiff paid the amount due under the assessment, protesting, at the same time, against being compelled to make the payment. Subsequently the illegality of the assessment was determined, in an action commenced in March, 1880, to obtain such a determination; the final decision of this court being given in January, 1886. Tingue v. Port Chester, 101 N. Y., 294; 1 St. Rep., 9.

Upon the trial of the present action, the illegality of the assessment complained of was conceded, on the strength of our decision, and the litigation has turned upon the question of whether the payment was made under such coercion by law as would sustain a recovery back of the moneys. The defendant insists, andi that presents the only ground upon which we need consider its appeal, that the payment was voluntary on the plaintiff’s part. If that were true and it was made simply to enable her to close with the vendee for the sale of the property, then the appellant should prevail. If a payment of an illegal assessment is made to successfully close a business transaction, it is a payment for convenience and, therefore, voluntary. To make it involuntary, it must be made because of coercion in fact, or coercion by law. The former would be exemplified in some duress of person or of goods, and the latter would exist if a warrant was out for the collection of the assessment, or where such proceedings had been taken under the charter of the municipality as should, or could, result in the enforcement and realization of the assessment. Bruecher v. Port Chester, 101 N. Y., 240; Redmond v. Mayor, etc., 125 id., 632; 35 St. Rep., 917; Tripler v. Mayor, etc., 125 N. Y., 617; 36 St Rep., 141.

This plaintiff did not pay this assessment until there did exist such a legal compulsion as would justify her conclusion that, payment alone could prevent the" enforcement of the collection by the village authorities. Admitting that the receiver of the village lacked sufficient power to enforce his warrant, there, nevertheless, was the further step taken by the village trustees-upon the receiver’s return, by the resolution directing the treasurer to sell. When proceedings to collect the assessment had taken such legal shape as that the payment might be enforced by a sale authorized to be made, then the payment by the plaintiff could not be termed a voluntary one, within the doctrine laid down in the cases of Peyser v. Mayor, etc., 70 N. Y., 497 ; Horn v. New Lots, 83 id., 100 ; Bruecher v. Port Chester, supra, and Tripler and Redmond v. Mayor, etc., supra.

This plaintiff was not obliged to pay the assessment to successfully complete a sale of her property ; for the vendee was willing to take title, under indemnity against the future obligation to pay the assessment. She paid the assessment when" proceedings to collect it had reached that point that the collection was threatened to be enforced by a sale of her property. I do not think she was obliged to wait any longer to see what would actually be done, after the board had thus authorized the advertisement and sale. She was justified, then, in paying to the village treasurer in order to protect her property and to prevent incurring the further expense contemplated.

T think the judgment should be affirmed, with costs.

AH concur.
      Affirming, 39 St. Rep., 793.


text:
    The People, Resp’ts, v. Stephen Tower, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Indictment—Waiver on objections.
    Where the objection to the improper joinder of two distinct offenses in one count in an indictment is not taken by demurrer, the objection is waived and does not constitute one of the grounds for which judgment can be arrested.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment and conviction of the Niagara county sessions, entered on verdict of jury convicting Stephen Tower of the crime of forgery in the second degree.

      Richard Crowley, for app’lt; P. F. King, dist-atty, for resp’ts.
   Andrews, J.

—The indictment contained but a single count and charged that the defendant “ did make, forge and alter, and put off as true,” the endorsement of one Diez on a promissory note. The forging and the uttering of a forged promissory note, or of an endorsement thereon, are distinct and separate offenses, and each under our statute constitute the crime of forgery in the second degree and subject the offender to the same imprisonment. Penal Code, §§ 511, 521.

On the trial the defendant’s counsel, at the close of the case on the part of the prosecution, requested the court to direct a verdict for the defendant on the ground “that the indictment charges the defendant with having made and forged the signature of Diez, and that the evidence does not warrant a conviction of the crime of which he is charged in the indictment,” and after verdict he moved an arrest of judgment, stating the same ground. The motion to direct a verdict and the motion in arrest were each denied, and exceptions to the rulings thereon present the only questions of law urged on this appeal.

There was a conflict of evidence upon the point whether the endorsement of Diez, which was admitted to be a forgery, was written by the defendant But the evidence justified a finding that he wrote the endorsement or procured it to be written, being present at the time, aiding and abetting the forgery. In either case he was properly charged as principal. Penal Code, §29; State v. Rucker, 93 Mo., 88; Chidester v. State, 25 Ohio St., 433. It is not controverted that the defendant uttered or offered to pass the note with the forged endorsement.

The principal point urged for a reversal is that the indictment is bad for duplicity in charging two distinct offenses in one count, viz. : the forging and the uttering of the forged endorsement It was held in People v. Rynders, 12 Wend., 428, that a count for forging an instrument could be united with a count for uttering the same instrument in the same indictment, and that the prisoner might be properly tried on both charges at the same time.

Sections 278 and 279 of the Code of Criminal Procedure prescribe that an indictment must charge but one crime and in one form, except that the crime may be charged in separate counts to have been committed by different means, and that where the acts complained of may constitute different crimes, such crimes maybe charged in separate counts. Under the Code it is, perhaps,, doubtful whether the two offenses of forgery and uttering the-forged instrument could be properly united in the same indictment. The crimes are distinct, 'arising upon different acts, although each constitutes the offense of forgery in the second degree. But. assuming that the offenses could not be united in the same indictment, the remedy is pointed out in the Code, and that is by demurrer. Code Crim. Pro., § 323. Where not taken by demurrer, the objection is waived and does not constitute one of the grounds for which judgment can be arrested. Code Crim. Pro., § 467. It was formerly held that a prisoner was entitled to avail himself on motion in arrest of every objection in substance or form which could have been taken on demurrer to the indictment Nelson, J., People v. Wright, 9 Wend., 193. But the practice was not uniform, and it was held in some courts that the objection of duplicity was no ground for motion in arrest. See Polinsky v. People, 72 N. Y.. 72, and cases cited.

In this case there was no objection taken on the trial to the-form of the indictment. The verdict was general, and the sentence was appropriate to either offense. Under the circumstances^ the point raised is not tenable.

The judgment and conviction should be affirmed.

All concur.

       Affirming 48 St. Rep., 164.


author: Per Curiam.

text:
    Russell Brusie, Resp’t, v. Peck Brothers & Co., App’lts.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Trial—Evidence—Patents.
    The complaint in an action asked for an injunction, annulment of & contract for manufacturing and selling a patented machine, damages and an account of salés. On the trial plaintiff proceeded as for a recovery of royalties upon the machines which defendants had made and sold claimed to be similar to plaintiff’s. The court refused to receive in evidence the-letters patent offered by defendants. Held, error; as they were receivable in evidence to aid in the construction of the claim which was set up against the defendants.
    3. Same.
    The court charged the jury that they were not to consider the question of the mutual rescinding of the contract, and refused to charge that if the parties mutually agreed to rescind the contract that nothing could he recovered except royalties on the machine in question to that date. Held, error; in view of the manner in which the case was tried.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered upon the verdict of a jury and order denying motion for new trial on the minutes,

      Rohert Sewell, for app’lts; D. J. Dean, for resp’t.

       Reversing 42 St. Rep., 801.

   Per Curiam.

The plaintiff was the owner of letters patent of the United States, securing to him the exclusive right to make, use and sell a lawn sprinkler, and by an agreement in writing with him the defendants acquired the sole right to manufacture and sell the patented machine. The contract called for the performance of certain acts on defendants’ part and the payment of a certain royalty. In the following year disputes occurred between the parties and this action followed.

The complaint set up the making of the contract and alleged a violation by defendants of their contractual obligations, in certain respects stated, and the fraudulent practice of competing with and underselling the plaintiff upon the market by a machine resembling the plaintiff’s, but inferior and of less value. The relief prayed for was an injunction, the • annulment of the contract, damages and an .account of sales. The answer admitted the contract ; denied performance by plaintiff; averred a faithful compliance on the defendants' part; denied the alleged breaches and fraudulent practices; set up the difficulty of selling plaintiff’s machines by reason of the excessive price fixed for their sale, and alleged -that to supply the demand at a less price they did make and sell a sprinkler of their own, which did not infringe upon the plaintiff’s.

When the parties came to trial, a number of years after the issues were joined, the plaintiff, after putting in the contract and endeavoring to prove, by the evidence of one of the defendants and of two expert witnesses, that certain machines made by the defendants were actually the same in operation and result as the plaintiff’s, rested ; the concession being made as to the amount of royalties due, if any were due. The defendants on their side offered the plaintiff’s letters patent in evidence; but were not permitted. The rest of their case consisted in evidence tending to show a mutual abandonment of the contract in the year following its making, and in the evidence of witnesses to show characteristic differences in the two machines; sundry attempts to prove that the principle of plaintiff’s machine was long previously known, or what the plaintiff’s patent covered, having failed under the judge’s rulings. The plaintiff, in rebuttal, endeavored to prove the differences in the machines. The trial judge submitted to the jury this one question : “ Do each of the three lawn sprinklers, exhibits B, U. and D., substantially embody the same device or idea and accomplish practically the same results by means of the same mechanical principles? ”

The looseness with which this action was tried out and the disregard by the parties of the particular issues tendered by the pleadings would dispose us to let the judgment stand as a final settlement between these litigants, if it were possible. But two errors, which are pointed out by the appellants, were sufficiently grave to require us to order a new trial.

The plaintiff, abandoning the grounds set out in his complaint, proceeded as for a recovery of royalties upon the lawn sprinklers which the defendants had made and sold. When the defendants offered in evidence the letters patent issued to the plaintiff they should have been received. Their exclusion presents the first o£ the two serious errors committed in the trial. The plaintiff’s objection was upon the ground of their immateriality; but they were very material in aid of a proper understanding as to what the patent covered and the contract called for. If the defendants were liable for royalties, it was because they were manufacturing and selling the particular machine which was invented and owned by the plaintiff and as to which the contract spoke, into which they ha 1 entered. The letters patent were receivable in evidence to aid in the construction of the claim which was set up against the defendant. Upon no conceivable ground could they be properly excluded, upon the issue tried, and it is not easy to perceive how their introduction could prejudice any legal right of the plaintiff.

The very question presented to the jury, if we should concede its propriety in such an action, would require the presence in the evidence of the patent record and its construction by the court, for the understanding by the jury of the rights and obligations of the parties under the contract.

The appellants - excepted to that part of the charge which instructed the jury that they were not to consider the question of the rescinding of the contract. The trial judge assigned as a reason that there was no evidence upon that point. He also refused to charge that if the parties mutually agreed to rescind the contract in April, 1874, that nothing can be recovered except royalties on the Brusie machine up to that date. In these rulings the trial judge greatly erred. It is true the answer did not plead rescission as a defense; but in the way the cause was tried and the precise issues mutually disregarded, we must hold that upon the issue as tried the defendants were entitled to have the jury pass upon the question of whether there had, or had not, been a mutual agreement to rescind, upon the evidence of the acts and conduct of the parties. This evidence consisted in a letter written by plaintiff in April, 1874, a few months after the contract, in which, upon the ground therein stated of a ’failure by the defendants to perform the terms of the c'ontract, the plaintiff said he considered that they “ have forfeited their right under it; ” that he shall no longer “consider himself bound by it,” and “shall hold them responsible for any damage that may occur to him by the further manufacture or sale of the lawn sprinkler by them.” Ho answer was made to this, apparently ; but the patterns were, a few days thereafter, returned to plaintiff upon his insistance, and the defendants’ treasurer testified that they “ ceased manufacturing the machines known as the Brusie machines after receiving his notice; ” and, again, that “it was not till we received written notice that we ceased manufacturing.” If the jury believed, upon this evidence, that the defendants had ceased to continue under the contract, and that there had been a mutual rescission of the contract, the right of recovery under this action would have been limited to that time. For any violation of the plaintiff’s patent rights, such as could be claimed after the contract had ceased to-exist, the plaintiff’s remedy was by another action and in another forum. While the plaintiff was resting upon his contract and claiming a liability in the defendants to make payments by force of its terms, it certainly was competent for the defendants to show tnat the contract had been mutually rescinded. Indeed, the plaintiff’s counsel seems to have thought so; for he made no objection to the evidence offered on that point.

For the errors mentioned, the judgments below should be reversed, and a new trial ordered, with costs to abide the event. All concur.


text:
    Charles Spencer, App’lt, v. The State, Resp’t.

      (Court of Appeals,

      Filed October 11, 1898.)

    Board of clams—Appeal.
    Where a claim is wholly rejected by the hoard of claims and no award of any sum is made, the light to recover some sum must conclusively appear on appeal to this court in order to raise a question' of law, or there must have been some material and erroneous ruling adverse to the claimant, which prejudiced him in the prosecution of his case.
    Appeal from an award of the board of claims rejecting claim.

      T. E. Hancock, for app’lt; S. W. Rosendale, for resp’t.
   Per Curiam.

The light of the claimant to damages against the State occasioned, as alleged, from the overflow of Butternut Creek upon his lands in the winter and spring of 1886 and 1887, depended upon a question of fact.

It was contended on the part of the claimant that the overflow was caused by the discharge into the creek of water from the long level of the Brie Canal at a point over Butternut Creek, which escaped through a defective dam built by the state across the canal immediately east of the point where the canal passes by an aqueduct over the creek, and was discharged through an opening in the flooring of the aqueduct into the creek below.

It was contended on the other hand, by the state, that the overflow was caused by unusual freshets which occurred at intervals during the winter and spring, which surcharged the creek beyond its capacity, whereby the water overflowed its banks and was. discharged on the lands of the claimant and other lands in the vicinity, and there remained until April, 1887. This was the issue litigated before the board of claims, and the board decided adversely to the claimant on the ground, as stated in their report, “ that the overflow of the farm of the claimant, and the injury and damage sustained by him by reason thereby, were caused by and the result of the heavy rains and freshets aforesaid.”

The issue involved a question of fact purely, and its determination presents no question of law, unless it appears that there was an absence of all evidence to support the finding above recited, and that evidence was given by claimant tending to show that the overflow and damages were attributable in whole or in part to the action of the state. There was no substantial controversy on the ‘trial as to the fact that water was discharged during the winter through openings in the aqueduct into Butternut creek above the lands of the claimant. But there is a considerable discrepaney in the evidence as to the quantity so discharged. To the extent of such discharge it of course increased the volume of water flowing in the creek, and presumably added to the overflow, and if the addition from this source produced or contributed to the damage sustained by the claimant, he was entitled to compensation.

There was evidence from which the board might have found that the overflow and consequent damage were to an appreciable extent caused by the discharge of the water from the canal. It is unnecessary for us to express an opinion upon the weight of evidence upon this point, as we have no jurisdiction to consider it, since by the terms of the statute vesting in this court j urisdiction of appeals from awards of the board of claims, appeals can be taken “ upon questions of law only arising upon the hearing of the claim, or upon the excess or insufficiency of such award or order.” Laws of 1887, chap. 507. Where a claim is wholly rejected, and no award of any sum is made, the right to recover some sum must conclusively appear in order to raise a question of law, or there must have been some material and erroneous ruling adverse to the claimant, which prejudiced him in the prosecution of his case.

In opposition to the case made by the claimant, there was considerable evidence given in behalf of the state, tending to show that large and almost unprecedented freshets occurred from time to time during the winter, on and after December 1, 1886, whichi largely increased the volume of water in the creek, and caused the overflow; that large tracts of land within the town, not affected > by the waters of the creek, were overflowed; that by reason of the lower level of the lands of the claimant, and the want of any sufficient outlet, and the detention by ice, the water remained on the land. In short there was evidence tending to show, or from which it could be inferred, that the discharge from the canal did not occasion the overflow, and that the whole injury would have been sustained if no water from the canal had been discharged into the creek. Under such a state of the evidence we cannot review the finding of the board of claims upon the fact" litigated.

The counsel for the claimant refers to several exceptions to evidence. We think it was competent for the state to show the obstructions created by bridges and railroad embankments below the farm of the claimant, hindering the discharge of the water in the-creek. It was relevant in considering the effect of the freshets, and their tendency to produce an overflow. The evidence admitted against the objection of the claimant, to the -effect that the building of the Jamesville reservoir had’ impaired the condition of the claimant’s lands, and that freshets had been less frequent since the reservoir was constructed, was, we think, incompetent.

But in view of the ground on which the decision was placed, this evidence could not have affected the result, and was harmless.

Upon the whole, we see no ground upon which this court can interfere with the award.

The award is therefore affirmed, with costs.

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