author: Lewis, «T.:

text:
    ELI WHITE, Respondent, v. MERRICK SHELDON, Appellant.

      Basement — an owner may me Ms land as he pleases, although he thei'eby obstructs the flow thereon of the surface water from am adjoining lot — no rights an'e acquired by lapse of time under a user by permission of the owner of the servient estate.

    Water issuing from springs at the base of a range of hills flowed sluggishly and without any determinate channel or bed over the lands of the plaintiff, then over the adjoining lands of the defendant, and thence over the lands of an adjoining owner to a natural creek. Originally the water spread over a considerable portion of the defendant’s lot, which was known as the swamp lot. About forty years before the trial the defendant dug a ditch across his land, running from the plaintiff’s line to the line of the owner adjoining on the other side. Thereafter the latter owner extended this ditch across his land to the stream, and the plaintiff extended. it across his land to the sources of the springs. As the ditches became filled up by the cultivation of the farms they were from time to time reopened.
    After the defendant had acquired title to his farm he cultivated it without regard to the ditch, plowing across and thereby obstructing and filling it up. He also obstructed the flow of the water from the end of the plaintiff’s ditch, which ditch the plaintiff had recently widened and deepened so that it discharged more water than formerly.
    In an action by the plaintiff to recover the damages occasioned by these acts of the defendant the court charged that the plaintiff had a right to have the water flow over the land of the defendant, as it had flowed for the last twenty years, and that the defendant was guilty of a trespass if he in any way interfered with such flow of the waters.

      Held, error.
    That the character of the user and the circumstances attending it were such as to show that it was a mere privilege enjoyed by the leave of the owner of the servient tenement and not adverse in its nature; and that this being so no lapse of time would prevent the owner of the servient estate from using and cultivating his land as he should prefer, although the natural flow of the surface water from the plaintiff’s land might be thereby obstructed.
    Appear from a judgment in favor of the plaintiff, entered upon a verdict at the Livingston Circuit, and from an order of the Special Term, denying a motion for a new trial.
    The parties are owners of adjoining farms in Livingston county. South-west of the plaintiff’s premises several springs issue from the base of some hills and the water therefrom settles into swamps, and in a sluggish manner spreads out into wet places or swales and works its way in a north-easterly direction through a culvert under what was the Genesee Yalley canal, constructed by the State in the year 1838, and from thence through and over a depression in the surface of plaintiff’s farm and on to defendant’s land, formerly spreading over a considerable portion of defendant’s land so that his was known as the “ swamp lot.” There are no springs upon the lands of the parties. The owner of defendant’s farm, some forty years before the trial, dug a ditch across his farm, extending from the line between his and plaintiff’s land, in a north-easterly direction towards Samp’s creek. The owners of the lands between defendant’s premises and Samp’s creek extended this ditch to such creek, and shortly thereafter the owners of plaintiff’s farm dug a ditch from the culvert under the canal across and through the lowland on their farm, connecting it with defendant’s ditch. These ditches were constructed to expedite the flow of water across these lands. Though not constructed at the same time, the action of each proprietor was taken because of the action of the previous mover in the enterprise. The ditches were so constructed that at first they did not drain the surface water from the adjoining lands of the farms, excepting such as might percolate through the banks of the ditch.

      By the cultivation of the farms and other causes, the ditches filled up and were from time to time again opened. By cultivating his land and from natural causes at the time of the commission of the acts complained of, the ditch on defendant’s land had become, in places, substantially obliterated, the land occupied by the ditch being cultivated by defendant in the same manner as he cultivated the balance of his farm. The plaintiff, just prior to the commission by defendant of the acts complained of, deepened and widened the ditch on his farm the whole length thereof, making it about three feet deep and four feet in width. By means thereof the flow of water was expedited, thereby discharging it in larger quantities upon defendant’s premises than would otherwise have been the case.
    Defendant purchased his farm in 1872. It was occupied by a tenant until 1876. He then went into occupation personally, remaining in possession until the commission of the acts complained of. In the cultivation of his land, defendant ploughed through and over the ditch, leveling its banks so that the surface water on either side thereof could flow without obstruction into it.,
    The evidence tends to show that in so doing the ditch was more or less filled up, this being one of the acts of defendant, complained of by the plaintiff. The evidence also tended to show that after the opening by plaintiff of his ditch, as above stated, the defendant put obstructions therein upon ■ his premises, building a small sod dam near the line of plaintiff’s land, thereby causing the water to set back in the ditch on plaintiff’s land, and that he also entered upon plaintiff’s land and made openings in the bank of plaintiff’s ditch, thereby causing water which had accumulated therein to be discharged upon plaintiff’s premises, to his damage. These facts were all controverted upon the trial by defendant.

      W. A. SulMvcm, for the appellant.

      A. J. Abbott, for the respondent.
   Lewis, «T.:

The learned judge at circuit charged the jury that under the circumstances of the case the plaintiff, when he came upon the premises, had a right thenceforward to an enjoyment of such an easement in the lands of the defendant, for the flow of his water across the lands of the defendant, as these lands had enjoyed for-twenty years previous to that time, whether it was a natural or an artificial stream. That if there had been a ditch or channel across the defendant’s land through “which these waters had been accustomed to flow for twenty years, before the time yrhen the alleged trespass of the defendant was committed, the defendant was guilty of a trespass if he in any manner interfered with such flow of such waters so as to set them back upon the premises of plaintiff. That each of these parcels of land, if this right to discharge water had been maintained for twenty years, acquired such a right as to the lands below. .That if that right had continued for twenty years up to the time these questions arose, the plaintiff had the right to have it continue as it had continued during the twenty years. That the twenty years establishes the right to the continuance of the existing state of things. That it was the duty of the defendant, if the right had continued for twenty years, to maintain this ditch upon his premises in such condition that the flow of water over them' might be the same as it had been during the twenty years. He had ho right by raising the bottom of his ditch or by putting obstructions in it — certainly much less by going upon the plaintiff’s premises and putting obstructions in it — to obstruct the flow of the water. That whatever have been the acts of the defendant upon his own land, or upon the lands of the plaintiff, which have interfered with the flow of the water as the plaintiff had the right to have it flow, was a trespass upon the plaintiff and entitles him to recover such damages as he has shown that he has sustained by reason of such acts.

The defendant excepted to the charge “ that the plaintiff had the right to enjoy such an easement as had been enjoyed for twenty years.” He also excepted to the charge that if the defendant interfered with the flow of waters as they had flowed for twenty years, he was liable. The jury was, in effect, instructed if water had continued to flow across defendant’s land, through the ditch for twenty years prior to the commission of the acts complained of, the defendant was liable if he caused the ditch by any means to be .filled or the bottom of it to be raised so as to set back the water upon plaintiff’s land, even if the interference with the ditch was the result of cultivating defendant’s farm as farms are usually cultivated. These ditches were constructed and maintained by the owners of these lands for their mutual convenience. At times they were allowed to be filled up and remain in that condition for a time; were again cleaned out at the pleasure of the several proprietors, not being kept in the same condition for any great length of time.

There is nothing in the case showing that the occupants of plaintiff’s farm, until this contention arose, made any claim of right to use the defendant’s ditch for the passage of water accumulating on plaintiff’s farm, at most it was a user by implied license,

i The charge of the court was that twenty years’ enjoyment gave the owner of plaintiff’s premises a prescriptive right to the easement on defendant’s land. The draining of plaintiff’s land through defendant’s ditch being by the license and permission of the owner thereof, plaintiff’s use and enjoyment was not adverse and did not ripen into a right by prescription. (Wiseman v. Lucksinger, 84 N. Y., 44; Smith v. Miller, 11 Gray, 148 ; Nichols v. Wentworth, 16 N. Y. Weekly Dig., 353.)

In case the user is of such a character and the circumstances attending it are such as to show that it was a mere privilege enjoyed by leave of the proprietor of the servient tenement, it is not adverse. (Trask v. Ford, 39 Maine, 437; Angelí on Water Courses, § 210.)

In White v. Chapin (12 Allen, 516, 518) the court say, in regard to the flow of surface water from upper upon lower land over the natural surface o'f the earth: “ The law is clearly settled that no length of time creates any easement by which the owner of the lower land is prevented from using his own land as he will, although the natural flow may be stopped thereby and set back upon the upper estate.”- (Angelí on Water Courses, § 108»; Kauffman v. Griesemer, 26 Penn. St., 407.) The evidence failed to establish the existence of a natural water-course. The judge so charged the jury. Until the digging of the ditches by the parties the surface waters formed a swale, without any defined bed or established banks.

The plaintiff must maintain, under the charge of the court, in order to sustain this judgment, that he had a right to the flow of the water through the ditch or channel across defendant’s land, and that defendant was guilty of trespass if he in any manner interfered with such flow of such waters, so as to set them back upon .plaintiff’s premises, and that he jiad the right for all time to an enjoyment of such an easement in the lands of the defendant, as plaintiff’s lands had enjoyed for twenty years previous to that time, without change or diminution. If plaintiff’s land has this right, then defendant is prevented from cultivating his far m in the ordinary manner farms are cultivated, if, by so doing, he shall interfere in any respect with the flow of such waters, or change the manner of discharging them. No person has the right to relieve his own land from standing water, or prevent its accumulation thereon by discharging it through the ditches or drains upon the lands of his neighbor. (Foot v. Bronson, 4 Lans., 51; Bellows v. Sackett, 15 Barb., 96 ; Barkley v. Wilcox, 86 N. Y., 140.)

As the proof tended to show that a portion of the . damages sustained by plaintiff was the result of this setting back of water, caused by the partial filling up of the ditch upon defendant’s land, by the, cultivation thereof by defendant in the manner farms are ordinarily cultivated; and the jury, under the charge of the court, being permitted to take those acts of the defendant into consideration in estimating the damages the plaintiff sustained, we think the. jury were misled, and that the plaintiff recovered a larger verdict than he would if the true rule had been stated to them by the court, and for this reason we think the judgment should be set aside, and a new trial granted, costs to abide the event.

Barker, Haight and Bradley, JJ., concurred.

Judgment and order reversed, and a new trial granted, with costs to abide event.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    FLORENCE A. BOUGHTON, Respondent, v. CATHARINE BOGARDUS, as Administratrix, etc., of GEORGE O. BOGARDUS, Deceased, Appellant.

      phidence — when inadmissible as relating to a personal 1/ra/nsaetion with a deceased person— Code of Oivil Procedwre, see. 828.
    In this action, brought to recover .the value of services rendered by the plaintiff to the defendant’s intestate prior to February 7, 1883, the defense of payment was pleaded. Upon the trial the defendant produced a receipt executed by the plaintiff by which she acknowledged the receipt of fifty dollars from the intestate in full of all demands, of whatsoever nature or kind, “up to date February 11, 1882,” and proved that she had delivered it to the deceased. The plaintiff was then allowed, against the defendant’s objection and exception, to answer the following question: “Please state what, if anything, has been done to that receipt since you signed it and delivered it to the intestate? ” She answered, “In full of all demands, of whatsoever nature or kind, up to date, February 11, 1882, has been added since. That was added after he took it from my hands; those were not on when I signed it.”

      Held, that the evidence was inadmissible as relating to a personal transaction between the witness and the deceased.

    After the plaintiff had, under the objection and exception of the defendant, read various entries from her account book showing payments by the deceased to her to apply in part payment for the services rendered by her, she was asked and against the defendant’s objection and' exception allowed to answer, the following question: “That is all he has ever paid you except the fifty dollars you gave him a receipt for? ”
    Held, that the evidence was inadmissible, under section 829 of the Code of Civil Procedure, as it tended to contradict the claim of the defendant that a larger amount had been paid to her by the deceased.
    Appeal from a judgment of the Monroe County Court, entered upon the report of a referee, in favor of the plaintiff against the defendant as administratrix, etc., for the sum of $366.16 damages, besides costs.
    The action is for services rendered by respondent, as a housekeeper for George C. Bogardus, deceased,, for two different terms,, the first commencing January 27, 1879, and ending February 7, 1882, and again commencing July 17, 1882, and continuing to and including October 24, 1883, at the agreed price of three dollars a week. The defendant’s answer denies the indebtedness, pleads a counter-claim and also payment. After the joinder of issue and before trial George C. Bogardus died, and the appellant, Catharine Bogardus, having been appointed administratrix of his estate, was substituted as defendant. *

      J. 8. Garloolc, for the appellant.

      George H. Humphrey, for the respondent.

         Marsh, v. Brown, 18 Hun, 319; Sweet v. Low, 28 Hun, 438. [Rep.

   Lewis, J.:

Plaintiff established the rendition of the services, as claimed in her complaint, and that for'the term ending February 7,1882, they amounted to the sum of $472.28, and for the term commencing July 17, 1882, after deducting ten weeks the plaintiff was absent, to the sum of $168. The main question litigated was whether the sum of $472.28 for the first term of service had been paid by the deceased. The defendant claimed it had, and, to prove such payment, produced upon the trial a receipt, and after proving its execution by plaintiff and its delivery by her to the deceased, read the same in evidence in the words and figures following :

“ Received of G-. O. Bogardus, Sr., fifty dollars, in full of all demands of whatsoever nature or kind up to date, February 11,1882.

“F. A. BOUGHTON.”

This instrument, unexplained or uncontradicted, bearing date as it does after the performance of the first term of service, was conclusive evidence that the plaintiff had received payment therefor. (Lambert v. Seely, 17 How. Pr., 432 ; 1 Greenl. Ev., § 305.) If this sum of $472.28 had in fact been paid, then the indebtedness of the estate to plaintiff, after deducting the sum of eighty dollars and fifty cents, which it was admitted upon the trial had been paid, to apply upon the services rendered for the term commencing July 17, 1882, left due the plaintiff less than $100. Plaintiff, to break the force of this receipt, was permitted to testify, notwithstanding the objection of the defendant, that this receipt had been changed since its delivery by her to the deceased. She was asked the following questions: Question by Mr. Humphrey — “Please state what, if anything, has been done to that receipt since you signed it and delivered it to the intestate ? ” Objected to by Mr. Davidson as incompetent under section 829 of the Code of Civil Procedure. Court rules that testimony is allowed so far as it does not relate to any personal transaction or communication with the deceased.”

A. “In full of all demands of whatsoever nature or kind up to-date, February 11, 1882, has been added since. That was added after he took it from my hands. Those were not on when I signed it.” ■ Defendant’s counsel moved to strike out the answer as incompetent under section 829 of the Code of Civil Procedure. Motion denied and exception duly taken by defendant.

The objection was sufficiently broad and specific. It indicated to the court that defendant claimed that the witness, being a party to the action, was not competent to testify upon the subject of the receipt, as it related to a personal transaction with the defendant’s intestate. (Sanford v. Ellithorp, 95 N. Y., 52.)

It was so understood by the referee, as appears by what follows. In answer to the objection, the referee said : “ Court holds that testimony allowed, so far as it does not relate to any personal transaction or communication to the deceased.” After the answer of the witness was given, speaking to a personal transaction with the deceased, the defendant at once moved to strike out the answer as incompetent under section 829 of the Code. Motion was denied and ■ exception duly taken. The execution and delivery by the plaintiff to the deceased of this receipt, was clearly a personal transaction between herself and deceased. The administratrix produced the paper. It was a receipt in full of all demands plaintiff had against deceased to its date, showing that be had paid her in full for the first term of services. The plaintiff is permitted by her own evidence to change the effect of this receipt so that it becomes simply a receipt for fifty dollars. If she were a competent witness to change its import and meaning in one particular, she was competent to alter it into anything she chose, or to destroy its effect altogether. If a witness had testified upon the trial to being present at the payment of the fifty dollars by deceased to plaintiff, and. that plaintiff then stated to deceased that the payment was in full of all demands to date, it would not be claimed that plaintiff was a competent witness to contradict the evidence. The referee, as appears from his report and opinion, gave to this receipt the force and effect simply of a receipt for fifty dollars. The only evidence tending to establish that it was not in fact what it purported to be, was this testimony of the plaintiff. The referee erred in the admission of this evidence. After the plaintiff had, under the objection of defendant, read various entries from her account book, showing payments by the deceased to her to apply in part payment fpr her services, her counsel asked her the following question: “ That is all he has ever paid you, except the fifty dollars you gave him a receipt for %

This question was objected to by defendant as incompetent under section 829 of the Code. The objection was overruled and exception duly taken. The witness answered: “ I noted down everything as he paid it.” This evidence was incompetent, and the admission of it was error. It tended to contradict the claim of defendant that the deceased had paid her a larger amount of money.

Judgment should be reversed and a new trial granted before another referee, costs to abide the event.

Barker, Haight and Bradley, JJ., concurred.

" Judgment reversed and new trial granted before another referee, costs to abide event.


text:
    FRANK W. ELWOOD, Appellant, v. CHRISTOPHER W. FORKEL, Respondent.

      Lease — a holding over operates to renew it with all its terms'and covenants — when damages for breach of a lessor's covenant may be set up in an action by him for rent.

    The plaintiff leased certain rooms in a building owned by him to the defendant to be used as a studio, the lease containing a covenant on the part of the plaintiff that he would heat the demised premises by means of a steam-heating apparatus in the building. The defendant continued to occupy the rooms after the expiration of the term. In this action, brought to recover three months’ rent, he set up as a counter-claim a claim for damages sustained by reason of the failure of the plaintiff to properly heat the building. Upon the trial evidence offered by him to show that the plaintiff had failed to heat the rooms, and that the plaintiff on being notified of the fact promised to improve the heating apparatus if the defendant would continue to occupy the rooms, was rejected.

      Held, that this was error.
    That the holding over of the tenant impliedly renewed the old lease with all its terms and covenants.
    That as the damages sought to be recovered were occasioned by a breach of a covenant contained in the lease they might be set up as a counter-claim in an action to recover the rent.
    Appeal from a judgment of the Monroe County Court, reversing a judgment of the Municipal Court of the city of Rochester, an favor of the plaintiff, for forty-eight dollars and five cents.

      Joseph S. Uwnn, for the appellant.

      Fanning <£ WiVAams, for the respondent.
   Lewis, J.:

The appellant leased, by a written lease to respondent, a room in appellant’s building in the city of Rochester, for the term of fourteen months, from February 1, 1880, at the annual rental of $150, the premises to be used as an artist’s studio. The lease contains a covenant that the landlord will heat the demised premises by means of the steam heating apparatus in the building. The respondent entered and continued in possession of the room, holding over after the end of the term mentioned in the lease. The action was for the rent due for the months of March, April and May, 1881, during which time the respondent occupied the premises. The rent for these months was not paid. Defendant, in his answer, claimed $200 damages as a counter-claim, for breach of the covenant to heat the room. He offered on the trial to prove that .during the time he occupied the room under the lease, the building was insufficiently heated, so as to render it at times uncomfortable, and so that he could not work at his profession; and, upon complaint being made to the landlord, he promised at divers times to improve the heating if defendant would continue in occupation. The evidence thus offered was excluded. The tenant holding over, there was an implied renewal of the lease upon the same terms contained in the lease. (Schuyler v. Smith, 51 N. Y., 309 ; Laughran v. Smith, 75 id., 210.) The damages sought to be proved having arisen' from a breach of one of the covenants'of the contract, upon which the action was founded, were a legitimate counter-claim. (Myers v. Burns, 35 N. Y., 269 ; Cook v. Soule, 56 id., 420.) The case of Edgerton v. Page, 20 N. Y., 281, relied upon by appellant’s counsel, is not an authority against this doctrine. In that case the acts of the landlord complained of were wrongful, a trespass, and hence could not form the subject of a counter-claim in an action for the rent. The fact that respondent occupied the premises during the time the rent accrued, did not prevent his claiming damages for the breach of the covenant to heat the premises, especially as the •offer was to prove that the landlord promised, from time to time, to remedy the defect. (Myers v. Burns, 35 N. Y., 269 ; Cook v. Soule, 56 id., 420; Rogers v. Ostrom, 35 Barb., 523 ; Walker v. Shoemaker, 4 Hun, 579.)

Judgment of the County Court should be affirmed, with costs.

Bradley and Haight, JJ., concurred; Barker, J., not voting.

Judgment of the County Court affirmed, with costs.


author: Angle, J. :

text:
    MICHAEL SMITH, Respondent, v. THE BUFFALO STREET RAILROAD COMPANY, Appellant.

      Contract between employer and employee — right of the employer to discha/rge the employee without any just came.

    The plaintiff worked for the defendant, a street railroad company, as a car driver, under a contract made in February, 1882, by which the company agreed to pay ' him one dollar and thirty-five cents for each day’s service, “and at the expiration of one year, should said second party remain and continue in the employ of the said Buffalo Street Railroad company, and not otherwise, said party of the first part will pay said party of the second part; the further sum of twenty-five cents for every day’s services rendered by said second party to said first party during said year;.and every year thereafter the second party shall remain and continue in the employ of the first party the above terms shall apply. The pcm'ty of the first part may dischcvrge the party of the second part at any time.”

    In November, 1882, the plaintiff was discharged by the company. In an action by the plaintiff to recover the twenty-five cents per day for the number of days services he had rendered, the court submitted to the jury only one question, that is, whether the plaintiff’s conduct was such that the defendant was justified in discharging him, and refused to charge, as requested by the defendant’s counsel, that the defendant had the right, under the contract, to discharge the plaintiff without any cause.

      Held, that the court erred in its charge, and in its refusal to charge.

      Quaere, as to whether the plaintiff could have recovered if he had shown that the defendant had discharged him when his year was nearly up for no other reason than to wrong, cheat and defraud him out of the said twenty-five cents a day. (Per Angle, J.)
    Appeal from a judgment of the Erie County Court, entered upon a verdict of a jury in favor of the plaintiff, and also from an order denying a motion for a new trial made upon the minutes of the County Judge.
    The action was brought to recover twenty-five cents additional pay for each day the plaintiff worked as a car driver for defendant under a sealed contract dated February 7, 1882. By that contract defendant agreed to pay plaintiff one dollar and thirty-five cents for every day’s service rendered the defendant, payable semi-monthly, on the tenth and twenty-fifth days of each month. After the expiration of one year, should plaintiff1 continue and remain in defendant’s employ, and not otherwise, the defendant promised to pay pjaintiff the further sum of twenty-five cents for every day’s service rendered to defendant by plaintiff during said year; and every year thereafter the plaintiff should remain and continue in the employ of defendant the above terms should apply. The- contract then provided that the defendant might discharge the plaintiff at any time. The plaintiff agreed faithfully to discharge the duties of driver, and to faithfully observe and keep all rules and regulations of defendant.
    Under this contract plaintiff worked for defendant until about the middle of .November following when defendant discharged him, paying him for his service one dollar and thirty-five cents for each day. The complaint alleges that plaintiff was discharged without any just cause or provocation, and without any fault on his part, he having at all times faithfully performed his duty. The complaint also alleges that defendant discharged plaintiff for the reason that his year would be up in about six weeks, and that their only reason for discharging him was to wrong, cheat and defraud him out of the said twenty-five cents per day.
    The answer denies the above allegations in the -complaint and alleges that plaintiff violated and disregarged the conditions of the contract, and that he did not observe and keep the rules and regulations of defendant, but conducted himself so negligently and carelessly about his employment that he caused injury to the passengers on defendant’s cars to the damage of defendant, and that for the reasons aforesaid defendant discharged-plaintiff. Among the by-laws of the defendant was one providing that a driver should abstain from intoxicating drinks.
    Upon the trial evidence was given by defendant tending to show that plaintiff did not abstain from intoxicating drinks, that he was intoxicated while on duty on election day, 1882, and that he had been guilty of negligence and unfaithfulness.
    At the close of the evidence defendant’s counsel moved for a non-suit on the contract that had been read in evidence, and upon the ground that there had been sufficient shown to warrant plaintiff’s discharge under the contract.
    The charge of the judge submitted but one question to the jury, viz., whether the plaintiff’s conduct was such that the defendant was justified in discharging him ? - The defendant’s counsel asked the court to charge the jury, that the defendant had the right to discharge this driver without any cause under the contract, which request was denied, and an exception was taken to such denial.

      Porter Norton, for the appellant.

      Strong c& Brendell, for the respondent.
   Angle, J. :

The contract is for no particular term of service, it however contains the following provisions: “And at the expiration of one year should said second party (the plaintiff) remain and continue in the employ of the said Buffalo Street Railroad Company, and not otherwise, said party of the first part (the defendant) will pay said party of the second part the further sum of twenty-five cents for every day’s services rendered by said second party to said first party during said year, and every year thereafter the second party shall remain and continue in the employ of the first party the above terms shall apply. The party of the first part may discharge the party of the second' part at any time.”

The main question discussed on the appeal is, whether the county judge was right in submitting it to the jury to determine whether the plaintiff’s conduct was such that defendant was justified in discharging him, or, was the counsel for the defendant right in asking the court to charge, as matter of law, that the defendant had the right under the contract to discharge the plaintiff without any cause.

In Tyler v. Ames (6 Lans., 280 [Fourth Dept.]) the contract was to employ an agent for a year if hé “ could fill the place satisfactorily.” In the opinion (p. 281) the .court say: “ If he (the employer) is required to prove facts and circumstances that would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as without süch a clause he would have the right to dismiss the plaintiff if he does not properly perform his duties.”

In Spring v. Ansonia Clock Company (24 Hun, 175) the contract was to pay certain wages to the employee, provided his work and services should be to the satisfaction of the employer, and the court say (p. 116), “without the provision for that purpose introduced into the contract, the law secured to the defendant the right to discharge the plaintiff at any time for cause, and it must be assumed that the provision on that- subject was inserted in the contract to enable the defendant to exercise more power in discharging than could have been exerted in its absence. The contract of the defendant to pay is subject to the proviso that the services shall be to its satisfaction, and that fact is subject to no determination but the will of the company expressed through the proper agency. The determination of the question whether the services of the plaintiff under, this contract were satisfactory, belonged entirely to the company, subject to no control from the courts. The will of the company is the only tribunal to which the 1 question can be referred.’ Again, on page 177, the court say: The paper did not leave the reason for the discharge open to dispute. In case the defendant should be dissatisfied with plaintiff’s {work and services,’ then the right upon the plaintiff’s part should cease. In other words, the employment was during the pleasure of the defendant.” (See, also, Smith v. Douglass, 4 Daly, 192, in which the case of Lynch v. Stone, 4 Denio, 356, is evidently by mistake referred to as an authority.) The same rule prevails in Massachusetts (McCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass., 136; S. C., 18 Am. R., 463); also in Connecticut (Zaleski v. Clark, 44 Conn., 218; S. C., 26 Am. R., 446).

In Yermont the rule is perhaps somewhat different, and the party who has the right to reject, if not satisfied, must act honestly and in accordance with the reasonable expectation of the other party as implied from the contract, its subject-matter and surrounding circumstances. His dissatisfaction must be actual, not feigned; real, and not merely pretended. (Manuf. Co. v. Brush, 43 Vt., 528 ; Daggett v. Johnson, 49 id., 345.) And in New York there are some cases which if not distinguishable from those above cited look in a different direction, and some of them towards the Yermont rule, and some to the rule that the law will determine when the party ought to be satisfied. (Folliard v. Wallace, 2 Johns., 395 ; Wetterwulgh v. Knickerbocker Building Assn., 2 Bosw., 381; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 475, 479; Miesell v. Globe Mut. Life Ins. Co., 76 id., 115, 119; The Mayor, etc., of New York v. Cooper, 49 Supr. Ct. R., 409.) But whatever might be the result of an effort to distinguish or reconcile these authorities, none of them question the binding effect of such a provision as the one in question here, giving to the employer the power to discharge •the employee at any time, at least unless it should appear that the discharge was for the purpose of cheating and defrauding the employee.

Upon the trial the issue made by the averment in the complaint that defendant discharged plaintiff for the reason that his year was nearly up, and that the only reason for discharging him was to wrong, cheat and defraud him out of the said twenty-five cents a day, did not receive much attention. The case appears to have been submitted, and the verdict to have been rendered upon the issue whether the defendant had reasonable cause to discharge plaintiff, and nothing is intended in this opinion to anticipate or express any view upon the issue of fraud above referred to, or its materiality, or what should be the result of any verdict or judgment which would cover that issue.

Judgment of Erie County Court and order denying new trial reversed, and a new trial directed in that court.

Barker, Haight and Bradley, . J J., concurred.

Judgment and order reversed, and new trial granted in Erie county court, costs to abide event;


author: Childs, J.:

text:
    CITY OF ROCHESTER, Respondent, v. ERNEST M. CLOSE, Appellant.

      City of Bochester — power of the common council to pass ordinances —1880, chap. 14, sec. 40, sub. 16.
    By subdivision 16 of section 40 of chapter 14 of 1880, the charter of the city of Rochester authorizes the common council thereof to make, modify and repeal such ordinances, by-laws and regulations, as it may deem desirable, “ to regulate the ringing of bells and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises in the streets.” Claiming to act under the authority conferred by the said section the common council passed an ordinance forbidding all sales of watches, jewelry, silver and silver-plated ware, diamonds, pearls and other jewelers’goods by public auction after sunset of any day.

      Held', that the said section of the charter did not authorize the passage of the ordinance.

      Certiorari to review the trial and conviction of the defendant for a violation of an ordinance of the city of Rochester by the police justice of the city of Rochester.
    The defendant was arrested on the 19th day of February, 1883, upon a warrant issued by the police justice of the city of Rochester, charging him with having, on the 17th day of February, 1883, violated section 1 of chapter 5o of the penal ordinances of said city, relating to the sale of jewelers’ goods at auction. The ordinance in question reads as follows: *
    “ All sales of watches, jewelry, silver and silver-plated ware, diamonds, pearls and other jeweler’s goods, by public auction, in the city of Rochester, by an auctioneer, shall be made in the daytime, and between sunrise and sunset; and it shall, after the passage of this ordinance, be unlawful for any person to expose for sale, at public auction, any goods of the class specified, after sunset of any day, under a penalty of fifty dollars for each offense.”
    The complaint alleged the incorporation of plaintiff; the due passage by the common council of plaintiff, of the ordinance in question, its due publication, and that it -was in full force and effect from and after the date of its passage; that on the 17th day of February, 1883, defendant, at his store on West Main street, in said city, sold at public auction, he acting as auctioneer, after sunset of that day and up to nine o’clock in the evening, divers articles, watches, jewelry, ¡filverplated ware and other goods contrary to the provisions of said ordinance. The defendant’s answer was a general denial.
    Evidence was given by the plaintiff tending to show that defendant, on the 17th day of February, 1883, after the hour of sunset and before nine o’clock n. m., within defendant’s store 'in Rochester, offered and sold at auction a silver watch, and also tending to establish the other allegations in the complaint. After the plaintiff had rested, defendant moved for a dismissal of the complaint, upon the ground, among others, that said council had no authority to pass the ordinance in question, and that the same was void. The police justice denied this motion and rendered judgment against the defendant for one penalty of fifty dollars. Subsequently the defendant was arrested upon an execution issued by Baid police justice upon said judgment, and paid said sum of fifty dollars.

      O. M. Allen, for the appellant.

      J. N. Becldey, for the respondent.
   Childs, J.:

It was conceded, on the trial before the police justice, that the common council derived its authority to pass the ordinance in question solely from subdivision 16 of section 40 of the city charter, which reads* at follows :

“ To regulate the ringing of bells, and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises in the streets.” And the points submitted by the respondent refer to the same provision of the charter as authorizing the common council to pass the same. The question as to the authority of the council to pass this ordinance is, therefore, sharply presented, and the answer involves a construction of the statute which, it is claimed by the respondent, confers such authority. An ordinance passed by a municipal corporation must be made to conform strictly to the provisions of the charter. (Cowen v. Village of West Troy, 43 Barb., 48 ; Thompson, Treas., v. Schermerhorn, 6 N. Y., 92.)

The statute does not purport to authorize the council to regulate the sale of goods at auction, but to regulate the “ ringing of bells, and the crying of goods and other commodities, for sale at auction or otherwise, and to prevent disturbing noises in the streets. Ye think it is manifest from a careful reading of this statute that taken together it was intended to authorize the common council to pass such ordinances relating to the matters embraced therein as would insure the peace and quiet of the public, and prevent such noises and disturbances in the streets of the city as would tend to destroy the same. It has been and is an almost universal custom to employ persons known as criers, to announce sales of property at auction, such crier going about the streets ringing a bell for the purpose of attracting attention, and then making proclamation of the place where and of the kind of goods or property to be sold at auction.

Webster defines the word cry as follows: “ To make oral and public proclamation of, to notify or advertise by outcry, especially things lost or found, goods to be sold, etc., public advertisement by outcry,, proclamation, as by hawkers of their wares.”

The statute authorizes the council to regulate the ringing of bells and the crying (not selling) of goods and other commodities for sale at auction or otherwise,” that is, the advertising of any sale of goods, by oral and public proclamation,by outcry; and it is to this manner of advertising a sale that the statute refers, and to regulate which it confers authority upon the common council. It will be observed that the statute authorizes the council to regulate the crying of goods and other commodities for sale in any other manner than at anction, which, if the sale is authorized to be made the subject of regulation, would extend to every sale made at retail over the counter in the ordinary course of business.

It will not be contended that the statute would apply in such a case or confer any authority upon the council to in any manner regulate such a sale, yet the language of the statute includes such a sale as completely as a sale at anction. Should a merchant adopt the plan of advertising his goods for sale by oral and public proclamation by outcry, such manner of advertising could be regulated by ordinance of the common council. This was the authority intended to be conferred by the legislature in passing the statute under consideration, and the language employed being apt for that purpose, it cannot be extended to embrace other subjects not within the legislative intent. The ordinance in question was doubtless passed for the purpose of protecting the public from imposition in the purchase of a class of goods, the quality of which cannot well be determined by artificial light, and for that reason every intendment should be indulged in support of its validity, but the statute, which it is claimed confers the only authority upon the council for its passage, is in derogation of the common law and must be strictly construed.

We think the statute does not confer any authority on the council to regulate or prohibit a sale of goods at auction within the store or building of the seller, but that it relates solely to the manner or custom of advertising a sale by public outcry, and authorizes the council to regulate that custom or manner of advertising, but not to interfere in any manner with the sale, whether at auction or in any other manner adopted by the seller.

As a result of this conclusion, the ordinance in question is void, and for a violation- thereof no action could be maintained by the plaintiff. The judgment rendered by the police justice should be reversed, with fifty dollars costs and also disbursements to defendant, and the plaintiff ordered to restore to the defendant the sum of fifty dollars, collected from bim on execution issued on such judgment.

Haight, Bradley and Angle, J J., concurred.

Judgment reversed, with fifty dollars costs and disbursements, to be taxed by the clerk, and plaintiff ordered to restore to defendant the fifty dollars collected of bim by execution issued on the judgment.


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    SHERMAN KINGSBURY, Plaintiff, v. THE BRADSTREET COMPANY, Defendant.

      Libel — where there is no ambiguity, the construction of it is for the court.

    In an action brought against the defendant, a commercial agency company, to recover, damages for an alleged libelous publication, it appeared that the defendant had published in a circular sent to its customers the following reference to the plaintiff: “Canandaigua. Kingsbury, Sherman. Gro. * *” At the bottom of the circular was the following: “* * For explanation, please call at our office.”

      Held, that as the words used by the defendant were not capable of any construction which would render them actionable, the court properly directed a verdict in favor of the defendant.
    That evidence offered by the plaintiff to show what effect the publication of the statement would have upon the mind of his creditors was properly excluded.
    Motion by the plaintiff for a new trial, on exceptions ordered to be beard at the General Term in the first instance, after a verdict bad been directed in favor of the defendant.

      Hewry M. Field, for the plaintiff.

      John H. Bird, for the defendant.
   Childs, J.:

Tbis action was brought to recover damages from the defendant for printing and circulating an alleged libel upon the plaintiff. The alleged libel consisted in the publication _ and circulation by the defendant, a corporation engaged in the business known as a mercantile agency, of a circular among its customers and correspondents containing the following reference to the plaintiff: “ Canandaigua. Kingsbury, Sherman. Gro. * * ” At the bottom of the circular was the following: “ * * For explanation, please call at our office.” At the conclusion of the evidence the court held that the publication was not libelous, and directed the jury to find a verdict for the defendant. The law applicable to the. case is well settled by the authorities as follows:

First. The proprietors of a commercial agency engaged in collecting and publishing, for circulation among all its patrons, information as to the standing and financial credit of merchants and traders, are liable for a false report thus disseminated injurious to the credit of the subject of it, although made in good faith and upon information deemed reliable. (Sunderlin v. Bradstreet, 46 N. Y., 188.)

Second. In an alleged libel, if the application or meaning of the words is ambiguous, or the sense in which they were used is uncertain, and they are capable of a construction which would mate them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine upon all the circumstances, whether they were applied to the plaintiff and in what sense they were used. (Sanderson v. Caldwell, 45 N. Y., 398.)

TKvrd. In all civil suits, the question of libel or no libel, where it arises solely on the face of the publication, is a question of law, upon which the jury must follow the direction of the court. (Matthews v. Beach, 5 Sandf., 256 ; Green v. Telfair, 20 Barb, 11.) The publication complained of in this action does not, by any statement therein contained, or by implication, suggest either that the plaintiff was insolvent or financially embarrassed ; it contained no information or suggestion as to plaintiff’s standing as a man or a merchant. It clearly appears, by an inspection of the circular, that the stars placed opposite his name had no other signification than as a mai-ginal reference, so that the entire matter contained in the circular and relating to defendant would read: “ Kingsbury, Sherman, Gro.; for explanation call at our office.” And to the same effect is the testimony of the witnesses called and examined by the .plaintiff as to the meaning of the stars. There is no ambiguity in the language here used, neither is the sense in which the words were used uncertain, and they are not capable of a construction which would make them actionable. Therefore the testimony offefed by the - plaintiff, in reference to the effect the publication would have upon the mind of the witness or the creditors of the plaintiff was properly excluded by the court, and it became a question of law for the court to determine whether such publica tion was or was not libelous. We have examined the other excep tions in the case, and none of them appear to be well taken. The case was correctly disposed of at the circuit, and the defendant should have judgment on the verdict, with costs.

Haight and Bradley, J J'., concurred.

Motion for new trial denied, and judgment ordered for the defendant on the verdict.


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    WILLIAM H. ROBINSON, Appellant, v. NATHANIEL HALL, Respondent, Impleaded, etc.
    • Practice — a final judgment cannot be entered until all the issues are disposed of— the remedy of a party aggrieved by the irregular entry of a judgment is by motion at Special Term and not by appeal.

    To the complaint in this action, which contained five separate causes of action, the defendant demurred, upon the grounds that there was an improper joinder of causes of action, that the second cause of action therein stated did not state, facts sufficient to constitute a cause of action, and that the third cause of action did not state facts sufficient to constitute a cause of action. Upon the hearing of the issues raised hy the demurrer it was decided that the second cause of action as set forth in the complaint did not state facts sufficient to constitute a cause of action. The defendant thereupon entered a judgment dismissing the complaint as to the second cause of action and for costs. Upon an appeal taken by the plaintiff from this .judgment-:

      Held, that as the issues of law raised by the first and third grounds of demurrer had not been decided, no final judgment could be entered. '
    That the remedy of the plaintiff was not by appeal, but by a motion at Special Term to have the judgment so irregularly entered vacated and the remaining issues properly disposed of.
    That the appeal should be dismissed.
    Appeal by the plaintiff from a .judgment, entered in Monroe county upon a decision at' a Special Term sustaining a demurrer to the complaint interposed by the defendant.

      J. M. Dunning, for the appellant.

      A. FI. Harris, for the respondent.
   Childs, J.:

The defendant demurred to the complaint herein upon the ground:

First. That the causes of action have been improperly united.

Second. That the complaint, in the second cause of action therein set forth, does .not state facts sufficient to constitute a cause of action.

Third. That the complaint, in the third cause of action therein set forth, does not state facts sufficient to constitute a cause of action.

The complaint contained five separate causes of action.

The issue of law raised by the demurrer was argued at the Monroe Special Term, and the justice presiding held and decided “ that said second cause of action contained in the complaint herein does not state facts sufficient to constitute a cause of action. The demurrer is sustained and the complaint must be dismissed as to said second cause of action, with costs to the defendant,” and directed judgment to be entered accordingly. Upon this order the defendant entered judgment dismissing the complaint as to said second cause of action and for forty-six dollars and forty-nine cents costs to the defendant.

The issues of law raised by the first and third grounds of demurrer remain undetermined, therefore no final judgment could be entered (Code of Civil Pro., § 1021; Masters v. Barnard, 6 How., 113; Belknap v. McIntyre, 2 Abb., 366; Bucking v. Hauselt, 9 Hun, 633; Brevoort v. Brevoort, 8 J. & S., 211), and' the entry of judgment for costs by defendant was irregular.

The remedy of the plaintiff was, therefore, by application to the court at Special Term, and not by an appeal to this court. (Johnson v. Carnley, 10 N. Y., 570; Ingersoll v. Bostwick, 22 id., 425.) On such an application the court could set aside the judgment irregularly entered and make such order as would properly dispose of tiio remaining issues raised by the demurrer, and, in case the demurrer should be overruled as to such issues, save to the defendant the right to answer upon such terms- as should be imposed. We are aware that the General Term has entertained an appeal and reversed in similar cases, but it does not appear that the attention of the court in those cases was called to the question here discussed. We are of the opinion that correct practice requires us to refuse to entertain this appeal, and to remit the parties to the Special Termj where their rights'can all be settled. We express no opinion as to the correctness of the decision sustaining the demurrer.

This appeal should, therefore, be dismissed, but as both parties are at fault in their practice, without costs and without prejudice to the right of plaintiff to apply to the court at Special Term for such relief as he shall be advised.

Bradley and Haight, JJ., concurred.

Appeal dismissed, without costs to either party, and without prejudice to the right of the plaintiff to apply at Special Term for such relief as he may be advised.


author: Barker, J.:

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    HELEN MOORE and Others, Plaintiffs, v. ALLISON OVIATT, Defendant, Impleaded, etc.

      Mvidence — meaning of the words “interested in the event’’ in section 829 of the Code of Civil Procedure — motion for a new trial after the enti'y of'an interlocutory judgment.

    In an action of partition brought by a daughter and a granddaughter of the deceased owner against his son and widow, the latter interposed no answer, while the son alleged that land had been conveyed by the deceased to the granddaughter’s father, as an advancement, and that the same should be set off against the share to be allotted to her. Upon the trial the son sought to prove by the widow, who joined in the deed to the deceased son, that it was given without consideration, as an advancement.

      Held, that it was error to reject the evidence as inadmissible under section 829 of the Code of Civil Procedure.
    The words “interested in the event,” as used in the said section, are to be limited in their application to the particular issue or question as to which the witness is to be examined.
    After an interlocutory judgment has been entered a motion for a new trial may be made at a General Term, without taking any appeal from the judgment.
    Motion by the defendant Allison Oviatt for a new trial, founded on a case in an action for the partition of lands, after an interlocutory judgment had been entered on the report of a referee, and before final judgment had been awarded.

      No appeal was taken from the interlocutory judgment, and the motion is made in this court in the first instance.

      George H. Phelps, for the motion.

      J. Ii. db M. B. Jewell, opposed.
   Barker, J.:

Thomas V. Oviatt died intestate, the owner in fee of the lands sought to be partitioned in this action. His heirs-at-law were his two children Helen Moore, one of the plaintiffs, Allison Oviatt, one of the defendants, and Frances Oviatt, one of the plaintiffs, who is the granddaughter of the deceased and only child of Miles M. Oviatt, deceased. His wife Olive Lydia survived him, and she is also made a party defendant. In the complaint the estate of each of these parties in the premises described is fully and correctly set forth, as the same descended to and vested in them as the widow and heirs-at-law of the deceased. The defendant Allison appeared and answered, admitting all the material facts averred in the complaint, and set up as a partial defense that his father in his lifetime deeded certain lands and premises to his son Miles M., by way of an. advancement to him, and demanded that in making partition of the premises the same be taken into consideration by the court in allotting to the plaintiff Frances Oviatt her share in the premises. ^ The plaintiffs served a reply to this answer denying the facts therein set forth. The widow did not answer. The issue thus joined was referred to a referee to hear and determine, and in his report he found against the defendant Allison on the question of the alleged advancement.

Qn the trial it was established that the decedent in his lifetime and on the 5th day of June, 1869, conveyed certain lands of which he was then the owner in fee simple, to his son Miles M., the father of the plaintiff Francis, and that the value of the same at that time was $1,000. In this conveyance the widow joined releasing her inchoate right of dower in the premises. The defendant Allison called as a witness in his behalf the defendant Lydia, the widow, and offered to prove by her that the conveyance mentioned was executed without consideration, and as a deed of gift and was intended as an advancement to the grantee, Miles M. Oviatt, out of the real estate of the ancestor. The plaintiffs objected on the ground that the witness is a party to the action and interested in the event, and the testimony proposed would be in her own interest and against the heirs of Miles M. Oviatt; that the plaintiff Francis Oviatt is a survivor of Thomas V. Oviatt and Miles M. Oviatt, and that the witness is a survivor of Thomas V. Oviatt and a party to this action and is incompetent under the provisions of section 829 of the Code of Civil Procedure.

In my opinion Mrs. Oviatt was a competent witness to prove the fact in the issue tried before the referee. All persons and parties are competent as witnesses on the trial of all issues, unless they are excluded by reason of the exceptions existing to this general law of evidence, as provided in section 829 of the Code of Civil Procedure. A witness does not come within the excepted cases as therein provided, unless he is interested in the event of the issue on which he is called to testify, or that he be the .person from whom the party calling him derived his interest or title in the subject-matter in litigation, and the person against whom he is called derives his interest or title in the same subject-matter from or through a deceased person. Here the widow, who was called as a witness by the defendant Allison Oviatt, was not interested in any degree in the question of the alleged advancement. Her only interest in the event of the action was the establishment of her dower right in the lands described in the complaint, of which her husband died seized. This estate of the witness, in the lands to be partitioned, was admitted in and by the pleadings. She is wholly indifferent, in a legal sense, which way the issue between the other parties may be decided. Her right of dower will be the same in .either event, as her husband died seized of the premises. If the plaintiff Frances shall be excluded from taking any share of the lands in question, by reason of an advancement made to her father, it will not cut off the widow’s dower in any part of the lands, nor do any of the parties contend that it will. If the alleged advancement.be made out, it will not secure to the widow dower in the lands conveyed for that purpose, for she joined therein releasing her inchoate right of dower. No reason is assigned for disturbing the conveyance, and none -of the parties ask that the title which it seemed to Miles M. be in any degree impaired or disturbed. It is clear beyond all doubt that the witness bas no interest in the question on which she was called to testify.

. By section 829, persons or parties interested in the event of the action are excluded as incompetent witnesses in the particular' instances mentioned .therein, and it is argued by the plaintiff, as the witness was interested in the event of the action, then, by force of the language used, the case falls within the letter of the statute, and the witness was properly held incompetent. The words “ interested in the event,” should be construed to mean, and be limited in their application to the issue or question as to which the witness is called to testify. Such was the rule well established in the common-law' courts on the question of competency, before the Code, and the same had no broader application when applied in courts of equity, where questions of fact were frequently litigated between particular parties to the suit, in which the other parties had no interest whatever. The interest which operates to disqualify a witness, must be such that he will either gain or lose by the direct legal operation and effect of the judgment of the court disposing of the fact in dispute, and also the interest which produces incompetency, must be present, certain and vested, and not remote or contingent. (1 Greenl. Ev., § 390; Hobart v. Hobart, 62 N. Y., 83; Miller v. Montgomery, 78 id., 283; Steele v. Ward, 30 Hun, 555.)

It is unnecessary to cite instances in which the eommon-l^w rule was applied, where a party defendant who had suffered a default was held to be a competent witness for either of the other parties on the trial of issues joined between them. The rule, however, may be found correctly laid down, and some of the cases where it has been applied cited in 1 Greenleaf, sections 356, 357, 361, 395. It will be seen, on examination of the eases, that the rule was applied by the common-law courts in actions on contract, in tort and ejectment.

The construction for which the plaintiff contends would have the effect to increase instances of incompetency of witnesses on the ground of interest, where it is the purpose of the statute to limit the disqualifications to the particular class of persons mentioned in section 829. The ruling of the referee excluding the declarations made by the grantor before the delivery of the deed, as to his intention and purpose in making the same, was correct and was not the foundation for a good exception, as it does not appear that the grantee was present at the time they were made. The subsequent ruling, excluding the declarations of the grantor made in the presence of the grantee, was erroneous, if it distinctly appeared from the other evidence that they were, made under such circumstances as to imply the grantee’s assent to the truthfulness of the statement. Other questions than those embraced within the issue and ¿uch as usually arise in partition suits were referred to the refereq to investigate and wore passed upon in his report. The judgment was interlocutory and not final. The motion for a new trial was therefore properly made in this court in the first instance, as provided in section 1001, without an appeal from the interlocutory judgment. (Church v. Kidd, 3 Hun, 262; Stanton v. Miller, 65 Barb., 58; Old Code, 268; Produce Bank v. Morton, 52 How., 162.)

The interlocutory judgment and the report of the referee are set aside and a new trial granted before another referee. All questions of costs remain until final judgment.

Bradley and Haight, JJ., concurred.

Interlocutory judgment reversed and a new trial ordered before-another referee. All questions of costs reserved until final judgment..


text:
    In the Matter of the Petition of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Respondent, for the Appointment of Commissioners to Appraise Certain Lands of THE UNION STEAMBOAT COMPANY, Appellant.

      Taking of'land for railroad purposes — the existence of the corporation must be proved — what proof of signing of the a/rticles of association is required — what powers may be delegated ■ by the subscribers — a road that has leased its line may apply to take land — the necessity for the taking of the land must be established to-the satisfaction of the cowt.

    An application for the appointment of commissioners to appraise the damages to be occasioned by the talcing of land for the purposes of a railroad, may be-resisted by the landowner upon the ground that the petitioner has not been ' legally incorporated.

      Upon such' an application the petitioner produced a duly certified copy of the articles of association, filed as required hy law in the office of the secretary of state, from which it appeared that the said articles were subscribed by twenty-six persons, but that in three instances the name of the subscriber was written' not by the subscriber himself but by a person purporting to sign as his attorney.
    Section '3 of chapter 140 of the Laws of 1850 provides that ‘ ‘ a cony of any articles of association filed and recorded in pursuance with this act * * * shall he presumptive evidence of the incorporation of such company and of the facts therein stated,”

      Held, that it was to be presumed that the persons signing the names of the three subscribers were duly authorized by them so to do.
    That although the subscribers must themselves determine the various facts to be stated in the articles of incorporation and could not delegate the power to agree upon the terms of the organization of the company, yet that after they had come to an agreement upon these matters they might delegate to another person the power to do the formal act of affixing their signatures.
    The fact that a railroad company, organized under the laws of this State and carrying on its business herein, has leased and transferred for the term of its corporate existence its road and business to a foreign railroad corporation, and that the latter has taken possession of the said road and is managing and conducting the business thereof, does not prevent the domestic corporation from applying to acquire the title to lands necessary to be used in carrying on the business.
    The statute requires that the length of the road, as near as may be, shall be stated in the articles of association. The articles in question stated the termini of the road, and that its length was to be about 800 miles.

      Held, that this was sufficient.
    In reviewing an order of the Special Term appointing commissioners to appraise damages upon the application of a railroad company, it is the duty of the General Term to examine the evidence and determine whether the petitioner has fairly made out a case establishing that the premises are necessary for its use. Where, however, the necessity is shown to exist, and it is shown that the company has acted in good faith and exercised a reasonable discretion, the court Will not interfere.
    Appeal from an order made at a Special Term appointing commissioners to appraise the damages to be sustained by the taking of certain property for railroad purposes.
    The petitioner is a railroad corporation organized under the general laws of the State to construct and operate a railroad from Binghamton to the city of Buffalo. The line of the road'was constructed and ready for operation in October, 1882. These proceedings were instituted in June, 1883, to acquire title to the lands described in the petition for the purpose, as therein stated, “ of erecting and maintaining warehouses for the reception of freight and merchandise to be transported by it, and for delivery and transfer to others of freight transported by it, and for the purpose of operating its said railroad and for the purpose of its incorporation.” The premises mentioned have a frontage of 322 feet on Buffalo river, and are bounded on one side by a slip which connects with the harbor and the Erie canal, and is navigated by canal boats and the smaller class of lake vessels. The steamboat company is a corporation organized under the laws of the State of Now York, and is engaged in lake transportation, carrying passengers and freight to and from the principal ports in all the western and upper lakes, carrying a large amount of freight and owning and having in its use from sixteen to twenty propellers. The Delaware, Lackawanna and Western Railroad Company is a railroad corporation organized under the laws of the State of Pennsylvania, the line of its route being from Binghamton to Jersey City. Since the line of the petitioner’s road has been completed and ready for operation, it has executed a lease of its road and transferred the operation of the same to the Delaware, Lackawanna and Western Railroad Company for the entire period of its corporate existence, which was expressed in the articles of incorporation to be 100 years. After the lessee entered into the possession of the property and commenced the management of the road these proceedings were instituted, the Delaware, Lackawanna and Western Railroad Company not being a party thereto. The steamboat company appeared and filed an answer denying all the material allegations set forth in the petition, and the issues of fact were referred to a referee to take the evidence and report the same to the court with his opinion thereon. The referee found as facts, that the petitioner was duly created a corporation under the general statutes of this State, and that the property in question was necessary for the uses and purposes set forth in the petition. This report was confirmed at Special Term, and commissioners were appointed to fix the compensation which should be paid the Union Steamboat Company. From such order the steamboat company appeals.
    Proper and timely exceptions were taken to all the findings of fact and of law by the referee, which the appellant seeks to review on this appeal.

      George 8. Hibbard, for the appellant.

      Bowen, Rogers $ Bodice, for the respondent.
   Barker, J.:

The appellant makes' the point that the petitioner was never legally organized as a corporation. One of the grounds stated is, that less than twenty-five persons made and signed the articles of association filed with the secretary of state.

The general railroad law, under which the petitioner claims to be created a body corporate, provides that “ any number of persons, not less than twenty-five, may form a company for the purpose of constructing and operating a railroad; and, to effect such purpose, may make and sign articles of association.” (Chap. 140, Laws of 1850, § 1.)

The statement of facts required to be set forth in such' articles are mentioned in the same section, followed by a provision that they shall not be filed until there is indorsed thereon an affidavit, made by at least three of the directors named in the articles,, that the amount of stock required by this section has been in good faith subscribed, and ten per cent paid in cash thereon as aforesaid; and that it is intended to maintain and operate a road mentioned in such articles of association, which affidavit shall be recorded with the articles of association as aforesaid. For the purpose of making proof of the existence of such corporation after the same has become duly organized, it is further provided that “ a copy of any articles of association filed and recorded in pursuance with this act, or of the record thereof, with a copy of the affidavit indorsed thereon or annexed thereto, and certified to be a copy by the secretary of state or his deputy, shall be presumptive evidence of the incorporation of such company and of the facts therein stated.”

The articles in question were filed on the 26th day of August, 1880, and on the hearing a copy duly certified was read in evidence. The legislature has made it a condition precedent to the act of incorporation and as preliminary thereto, that not less than twenty-five persons shall make and sign articles in form and effect in compliance with the first section. Unless this act be done it is not in the power of any judicial tribunal to declare that a corporation does exist. To hold otherwise would be to defy and defeat the object and purpose of the law-making power of the State. In view of the extended powers conferred on such corporations the condition is eminently wise and judicious. When such companies are legally created they are intended to be for the public benefit and use, and the legislature has conferred upon them the power to take private property for its necessary use on paying a fair and just compensation therefor.

It is a point now well settled that railroad corporations organized under and in pursuance of the usual provisions of general laws must perform all conditions precedent before they can condemn private property for their own use. When proceedings are instituted by the company for that purpose they may be successfully resisted and defeated by the landowner, if it be established that the petitioner has not a legal corporate existence. The right to condemn private property for public use by a corporation has its foundation in the fact that there is a full and complete corporate existence, without which the proceedings cannot be maintained. (In the Matter of B. W. and N. R. Co., 72 N. Y., 245 ; Brooklyn Steam Transit Co. v. City of Brooklyn, 78 id., 531; Utley & Godfrey v. Union Tool Co., 11 Gray, 139 ; Pierce On Railroads, 6, and cases there cited.)

This brings us' to the question, did the petitioner prove on the hearing before the referee that twenty-five persons made and signed the articles of association filed with the secretary of state ? A certified copy of such articles is the only proof on the subject. By the same it does appear that the names of twenty-six different persons are subscribed thereto. The names of four of such persons purport to be subscribed by other persons. Thus, Sidney Dillon, per James H. Ham;” “John S. Blair, by Sam Sloan, Atty.;” “ George Bliss, by Morton Bliss; ” “ Wm. E. Dodge, by J. T. Huff.” Opposite these names is written the number of shares of capital stock taken by each and the place of residence of each is also given. No other proof was given that the persons who wrote the names of these several subscribers were authorized so to do.

We think and hold that by force of the statute yrimafaeie proof was thus made that all the names subscribed to the articles, including those of Dillon, Blair, Bliss and Dodge, were genuine and the subscription by the persons last named, by others, was duly authorized by them. The statute’ is very plain as to the effect to be given by the court, as evidence, to a certified copy of the articles and the affidavit thereto attached, for it declares that they shall be presumptive evidence of the incorporation of such company and of the facts therein stated.” It has been frequently held by the courts, that under this and similar provisions in other statutes, a certified copy is proof, prima facie, of the genuineness of the signatures thereto attached, in an action against a subscriber for .the amount of stock purporting to be subscribed by him. This has been so held in cases where there were no facts or circumstances in existence upon which the law of estoppel could be applied. Such rulings have been upheld for the sole reason that the legislature has seen fit to declare certain articles- shall be received as prima facie evidence that they are in all respects genuine and as the acts of the persons whose names appear thereto as subscribers. This rule of the statute will seldom work an injury or great hardship to individuals, and as a law of evidence is one of gi’eat public as well as private convenience. An individual who has been instrumental in bringing about co-operation among a sufficient number of persons to create a corporation, who have agreed upon all the terms and conditions required by the statute, and caused articles of association to be prepared in due form, may, as we think, be authorized to do the manual act of signing the names of such others thereto. The person who does the manual act of writing the name of the subscriber is the mere amenuensis of the one who engages him to make the subscription. If the statute forbids a subscription being made in this manner, then a - person who is disabled and cannot write his name cannot become an original incorporator. As to the four persons' already named it appears, from the face of the paper, that they did not, each for himself, personally subscribe their names- thereto, but it does appear that that act was done by another person whose name also appears on the face of the instrument. In our opinion the statute is broad enough in its terms to justify the ruling that the presumption is that the signing was the authorized act of the persons whose names are attached to the articles as subscribers and incorporators. In reaching this conclusion we do not intend to affirm that any number of persons, not less than twenty-five, can delegate to an agent or attorney power and authority to make and agree upon articles of association, and determine for them, and in their name, upon all the matters which the statute requires to be done, and agreed upon before a company can be created. As to such matters they must be determined by the judgment and common agreement of the incorporators thems.elves.

We concur in the position of the appellant that such power cannot be delegated, and for the manifest reason that no such power or right exists in any individual to delegate such matters to another. But the mere act of signing the articles, after the terms of the same have been agreed upon, by and under the direction of the proposed incorporators, is a very different thing, and that act maybe delegated to another to do.

Another objection to the- legal organization of the company has been made, based upon the alleged omission, on the part of the incorporators, to comply with the statute, in omitting to make the proper statement in the articles of association as to the length of the proposed road. The statute requires “the length of such road, as néar as may be,” to be stated in the articles. Each termmi is mentioned, and this is followed by a statement that the length of the road and branches “is to be about, three hundred miles, and the capital stock is fixed at ten millions of dollars.” The affidavit attached to the articles states that “ at least one thousand dollars per mile, for every mile of railway proposed to be constructed, to wit, three hundred miles, has been and is subscribed thereto, and ten per cent in cash has been paid thereon in good faith to the directors named in the said articles of association.” The statute does not require exactness in making the statement as to the length of the proposed road, but it is sufficient if the statement, as made, gives its approximate length. We think there has been a substantial compliance as to the other matters required to be set forth in the articles.

By the instrument called the lease, the petitioner transferred to the lessee the full and unreserved right to manage and operate the road, and to do and control all the business connected therewith. The' rent reserved to the lessor, and the time and manner of payment, the conditions of forfeiture, and the right of re-entry by the lessor, were stipulated for with careful detail. The lessee has taken possession of the road, and is now operating the same in connection with its own line, which extends from Binghamton to Jersey city; the two roads, operated together, make a continuous route from New York to Buffalo.

It is now contended by the appellant that this act of the lessor corporation is illegal and in excess of its legitimate power, being in effect a surrender of its franchise and is contrary to public policy, and for that reason it should be held as a matter of law, that the petitioner is incapacitated from exercising the right of eminent domain conferred upon it by the legislature, and that the court should dismiss this application upon these grounds. Without the consent of the legislature the lease would be invalid as an unauthorized act on the part of the lessor corporation. It has, however, been adjudged that power has been conferred on railroad corporations organized under the general laws of this State, to lease their roads and property and transfer the management and operation of the same to another railroad corporation. (Laws of 1839, chap. 218; Woodruff v. Erie Railway Company, 93 N. Y., 616 ; People v. A. and Vt. R. R. Co., 77 id., 234; T. and B. R. R. Co. v. B. H. T. and W. R. Co., 86 id., 107; Foster v. N. Y. C. and H. R. R. R. Co., 46 id., 644.) The circumstance that the term of the lease is during the corporate life of the lessor rather than for a shorter period, does not distinguish the case in principle from those just cited. The enabling act places no limitation as to the length of the term for which agreements of this character may be made. Neither is the lease invalid, for the reason that the lessee is a foreign corporation. There is no provision in the act prohibiting a lease by a railroad company organized under the laws of this State to a foreign corporation, on the contrary, the language of the statute is sufficiently broad to embrace them, and so far as the consent of this State is necessary to make them competent to accept a lease and assume the control and management of a railroad corporation organized under our laws, the language of the statute is very comprehensive in this particular, and permits any railroad corporation to contract with another railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed in such contract. The statute received this construction in the case of Ogdensburg, etc., R. R. Co. v. The Vermont, etc., R. R. Co. (16 Abb. [N. S.], 249), and we concur in the views there expressed.

It is a cherished policy of this State to favor and facilitate interstate commerce, and to invite the trade and traffic of other communities over our own lines of transportation, inducing merchants to seek a market in our towns and cities. To effect this purpose is one of the aims of the enabling’act of 1839. The roads of the lessor and lessee, when run in connection, make a continuous line between, two of the most widely separated and important cities and harbors in the State, the route also commands, in addition, a large local coal traffic, in which trade the general public are interested and benefited. By the laws of comity a 'foreign corporation organized under the laws of another State can, within the jurisdiction of this State, exercise such corporate powers and franchises as are conferred upon it by the law of its creation, unless prohibited by the laws of this State. This privilege is conferred uppn corporations as freely and fully as it is upon citizens of another State. Under this rule foreign corporations can do in this State, within the limit of their charter powers, precisely what a domestic corporation can lawfully do. (The People v. The Fire Association of Philadelphia, 92 N. Y., 324; Hollis v. Drew Theological Seminary, 95 N. Y., 175.)

The lessee being in the use and management of the petitioners’ road under a valid lease, it could, under the provisions of the twenty-first section of the general statute, acquire title to land necessary for the purpose of running and operating the road under such lease by instituting, in its own name, the proceedings .therein provided. As we have, as we suppose, found a statute authorizing the making of the lease, and another authorizing the' lessee to exercise the right of eminent domain in particular instances, the court cannot declare the proceedings unauthorized and as against public policy. (Hollis v. Drew Theo. Sem., supra.)

Without legislative authorization' a foreign corporation cannot exercise the right of eminent domain, but when such power is bestowed it may. This was settled In the Matter of Townsend (39 N. Y. 175), and the doctrine was reaffirmed in the Court of Appeals In the Matter of the United States (96 N. Y., 227; see, also,. Pierce on Railroads, p. 145). These proceedings were initiated after the execution of the lease, and after the lessee had commenced the use and operation of the road, but these acts do not take from the petitioner the right to resort to the power conferred upon it by the law under which it was organized, to condemn lands necessary for the use and operation of the road, and to enable it to carry out the object and purpose of its organization, and to discharge the duties it has undertaken to perform for the public. The execution of the lease did not terminate its corporate life. It continued to exist as a legal entity, and remained under the same obligations to the public as it did before the leasing, with the right and power still existing in the State to compel it to go .on and discharge all its duties to the public by compelling it to run and operate its road in such a manner as the public interests may require. The petitioner has a standing in court for the purpose of accomplishing the object set forth in its petition. (Abbott v. J. G. and K. H. R. Co., 80 N. Y., 27; Kip v. N. Y. and H. R. R. Co., 6 Hun, 27; Mills on Eminent Domain, § 63.)

This brings us to the consideration of the question whether the averments set forth in the petition, that the lands are necessary for the use and operation of the road, is fairly supported by the evidence. It is the question which has caused us the most difficulty in reaching a solution. The subject would be quite free from doubt were it not for the special and particular use to which the owner is devoting the premises sought to be acquired by the petitioner. It is not disputed but that the railroad necessarily requires a frontage and dock facilities in Buffalo harbor for the proper, profitable and convenient transaction of its business at that place, and that it also needs in addition to the frontage and facilities already acquired, a further dockage of about 300 feet; just about the width of the dock owned by the steamboat company. The land already secured by the petitioner is adjacent to this property.

In disposing of the question thus presented we are of the opinion that this court has the power, and that it is our duty to examine the evidence and determine whether the petitioner has fairly made a case, establishing that the premises are necessary for its use in receiving, discharging and storing lake freight.

We are also of the opinion that the determination by the petitioner that the lands are necessary in handling this class of freight is not conclusive upon the court. That is a judicial question and is to be determined as a question of fact by the court from the evidence and circumstances of the case, before the right of eminent domain can be exercised in behalf of the petitioner to acquire title to the lands mentioned. The legislature has not delegated to railroad corporations the power to determine what lands are necessary to be appropriated to their use in transacting their business. As to the necessity and extent of the appropriation the court must determine. But when- the necessity is shown to exist, and a reasonable discretion has been exercised by the corporation, and it has acted in entire good faith in making the selection, the court will not interfere. (In the Matter of the N. Y. C. R. R. Co., 66 N. Y., 409; R. and S. R. R. Co. v. Davis, 43 id., 137; In the Matter of the N. Y. C. and H. R. R. R. Co., 77 id., 264.)

The referee has found, and the Special Term has concurred in his conclusion, that the railroad company has acted in good faith in selecting these lands for its use, and we do not hesitate in yielding our concurrence on this particular question. We have failed, in our examination 'of the case, to discover any reason for a bad motive on the part of the railroad company towards the appellant, or in their purpose in selecting this site for the transfer and storage of its lake freight. It might well be supposed that the most friendly relations, so far as business is concerned, would exist between these •companies, as each is interested in enlarging and increasing facilities for bringing freight into Buffalo harbor, designed for transportation beyond its own line. This leaves for our consideration only the question of necessity. The railroad has already acquired 620 feet of frontage, and, .with the acquisition of the land now sought, it it will have a total frontage of about 950 feet. It seems to.be established, beyond all fair controversy, that the reasonable wants of the company require more than 620 feet river dockage, and that 950 feet will not be in excess of its necessities, present and prospective. All the proofs are in one direction on this question. The New York Central and the Erie Railway Company have acquired, and are in the use of, dockage not less capacious than that sought to be secured by the petitioner. The fact which has troubled our minds the most, and produced a hesitancy in yielding to the petitioner’s demand, is not that it does not require so much dock accommodation as is asked for, but as to the necessity of ' having a part of such accommodation on the premises now owned by the steamboat company, and used by it in carrying on its business as common carrier on the lakes.

There is not now any railroad connection with the docks of the steamboat company by which it can receive from cars, or transfer to them, lake freight, nor does it seek to have any such accommodations established so as to do that class of business on these premises. The defendant does an extensive transportation business, owning and running from sixteen to twenty propellers, and ninety-two per cent of its freight is and has been for many years transferred to one of the existing railroad lines, and it receives about the same per cent of its up lake business from the same company. The business done at these docks by the steamboat company is the receipt and delivery of what is termed town freight, that is, the Buffalo city business, and in amount it is only eight per cent of its entire business.

The referee has found, and we think it well established by the evidence, that for the town business, this locality is the most feasible and desirable of any place in Buffalo harbor; and if the same is condemned to the use of the petitioner, and the steamboat company establishes itself elsewhere, it will be most likely to suffer some loss in this kind of business. The petitioner will not acquire any portion of the business which the steamboat company may lose thereby. It can be compensated for such,loss by the compensation it will receive for the property taken, for the advantages possessed by this property in this respect must give to it an exceptional market value. It may be conceded, and the appellant gave some evidence tending to establish, that the petitioner might have made the selection of another site which would have secured to it all necessary facilities required for the purposes mentioned in the petition. ,That is not, however, a sufficient reason why this application should be denied by the court. The location of the business sites of the company is within the discretion of the managers, and the courts cannot supervise it. The legislature has committed to the discretion of the corporation the selection of lands for its use, and if the same is made in good faith, and there is a necessity of acquiring the lands, and the same are suitable, the courts cannot control the exercise of the discretion, or direct which of several plots of ground shall be taken. If this selection was made from unworthy or malicious motives, and not in the interests of the public, the court, doubtless, then would have the power, and in exercise of its discretion would withhold its consent to the appropriation. (In re N. Y. and H. R. R. Co. v. Kip, 46 N. Y., 555.). These lands front upon Prime street, along and «through which the petitioner has laid down and is operating a track. This privilege was acquired from the proper authorities of the city of Buffalo. The appellant attacks the validity of such proceedings, and claims that the railroad company did not acquire any legal right to occupy the street tor that purpose. We are of the opinion that this question cannot be raised by the appellant in these proceedings, with a view of defeating the same, and we therefore do not pass upon any of the questions pressed upon our attention in this connection. Other questions of minor importance are made and argued on behalf of the appellant. We have examined all of them, and none appear to Be well taken, and they cannot avail the appellant in these proceedings. The order appealed from is affirmed, with costs and disbursements.

Bradley, J\, concurred; Smith and Haight, JJ., not sitting.

Order affirmed, with ten dollars cost and disbursements.