author: Bookstaver, J. Pryor, J., (dissenting.)

text:
    Thomas D. Hurst, Resp’t, v. The Trow’s Printing & Bookbinding Co. et al., App’lts (2 cases).

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Bills and notes — Termination of contract.
    Defendants were indorsers upon notes given by one L. to plaintiff in consideration of the exclusive right to use, for three years, certain plates belonging to plaintiff and an agreement by him not to publish, during that time, works competitive with those covered by the contract. Plaintiff complied fully with the terms of the contract. After several of the notes had been paid, L. began to make default, and finally plaintiff notified him, after previous warning, that in consequence of such failure to pay he elected to terminate and rescind the contract, and returned the notes which had not yet matured, to which L. replied, consenting that the contract be wholly rescinded and annulled. Held, that, under the circumstances, the word “ rescind ” was synonymous with “ terminate ” and abrogated the contract only from the time of the notice, and that defendants were not released from liability upon the prior notes which remained unpaid.
    (Pryor, J., dissents.)

      Appeal in each action from a judgment against the defendants, entered upon the verdict of a jury directed by the court, ancí¡ from, orders denying motions for a new trial.

      Frederic R. Kellogg, for app’lts; Andrew Gilhooly, for resp’t.
   Bookstaver, J.

The two actions were tried together and were founded upon two promissory notes given by John W. Lovell under an agreement between himself and the plaintiff, which provided, among other things, that during the period of three years after the date of the contract, Lovell was to have the exclusive right to have impressions printed from certain plates belonging to Hurst, and that during the same period the latter should not publish directly, or indirectly, any works competitive to those covered by the terms of the contract; and for these exclusive rights the agreement provided that Hurst should receive the sum of $90,000, for which sum Lovell should give him thirty-six negotiable promissory notes, each for $2,500, payable at intervals of one month, respectively, each to be drawn to the order of Trow’s Printing & Bookbinding Company, to be indorsed by them and by the defendant Lange. The agreement also provided that this sum of $90,000 was intended not only to include the right to use the plates, but also a consideration for the relinquishment of competing business, and that if the plates were destroyed before the termination of three years, it should not be considered as abating the payment of any portion of this sum. The agreement further provided for the purchase by Lovell of a large amount of book stock and sheets, and that Lovell should be bound at the end of the three years, or at such earlier time as he might desire, to purchase all the plates covered by the contract for the sum of $75,000, in addition to the $90,000, before mentioned, and that from the making of said purchase Hurst should become bound to refrain from entering into any competing business for twenty-five years after the date thereof, with certain exceptions.

Under this contract the thirty-six notes provided for in the agreement were delivered to the plaintiff, each made by Lovell and indorsed by the defendants, as provided for in the agreement. Subsequently fifteen of these notes fell due and were paid at maturity, but the sixteenth and seventeenth notes of the series, which are the ones in suit in these actions, were not paid, as was also the case with the six others falling due thereafter. After the delivery of these notes to the plaintiff, he transferred the two in question to Samuel J. Kerr, by whom these actions were originally commenced, but subsequently, in December, 1891, the notes were taken up by the plaintiff from Kerr, and he again became their sole owner, and remained so down to and including the time of the trial. On March 9, 1892, there being at the time seven notes of this series unpaid, including the two now under consideration, Hurst sent the following letter to Lovell: “ Law Office of Andrew Gilhooly, Temple Court Building, 5 Beekman street, Hew York, March 9, 1892. John W. Lovell, Esq, Dear Sir, Yoúr nonpayment of your note for $2,500, payable March 7, 1892, under our contract of March 4, 1890, is a breach of condition on jour part, and, in view of the repeated defaults on previous notes, I cannot let it pass. I hereby give you notice that your rights under the contract depend on the due payment of the obligations therein referred to, and the performance of the conditions therein named on your part; and these must hereafter be promptly made and performed by you. If the above note, dishonored on the 7th inst., is paid without further delay, and no further default occurs, I am prepared to waive any'claim I may have to rescind the contract; otherwise, I shall enforce my right to do so. Yours, etc., Thomas D. Hurst.” On April 4, Hurst reiterated the statements contained in that letter by another of that date; and on April 9, 1892, the note of April 7 having gone to protest, signed a letter prepared by his lawyer, which is as follows: “Law Office of Andrew Gilhooly, Temple Court Building, 6 Beekman street, New York, April 9, 1892. John W. Lovell, Esq. Dear Sir, Referring to my written notice to you, bearing date March 9, 1892, notifying you that I should enforce my right tó rescind my written contract with you, dated March 4, 1890, in case your note for $2,500, payable March 7, 1892, under said contract was not paid without delay, or in case any further default occurred on your part in the performance of the said contract, I now notify you that in view of your continued default in the payment of said note for $2,500, payable March 7, 1892, and of your repeated and continued defaults in the payment of previous notes given under said contract, and your default in the payment of your note for $2,500, payable April 7, 1892, under said contract of March 4, 1890, I hereby terminate and rescind my said written contract with you, bearing date March 4, 1890, and herewith return to you eleven notes given under said contract of March 4, 1890, for the sum of $2,500 each, dated March 4, 1890, and payable to the order of Trow’s Printing & Bookbinding Company, at 26, 27, 28, 29, 30, 51, 32, 33, 34, 35, 36 months, respectively, after date.

“ Yours, etc., Thomas D. Hurst.”

Inclosed in this letter were the eleven notes mentioned therein. To this letter Lovell replied as follows:

“New York, April 9, 1892.
Thomas D. Hurst, Esq., 134 Grand street, New York:
“ Dear Sir — I have received your favors of April 4 and April 9, in regard to our contract of March 4, 1890, in which you inform me that you .rescind this agreement I have carefully considered the whole matter, and have concluded to acquiesce in this rescission, and I, therefore, hereby notify you that I consent and agree that the contract in question shall be and is wholly rescinded and annulled.
“ Yours very truly,
“ J. W. Lovell.”

Meanwhile, and up to the 9th of April, 1892, Hurst had com pletely performed all of the terms of the above mentioned agreement on his part to be performed, and Lovell had enjoyed the exclusive use of the plates referred to in the agreement, and Hurst had refrained from publishing the books he had undertaken not to publish. The eleven notes returned, as before stated, were all notes maturing after April 9, 1892. The" eight notes maturing before that date, then outstanding and unpaid, were retained. Of these Hurst, on April 9, 1892, held and owned five, including the two in question in these actions, which actions were then pending; and the remaining three were in suit by other parties against Lovell and the defendants herein.

The foregoing facts appearing at the trial, the court, when all the evidence was in, at the request of the plaintiff, directed a verdict in his favor for the full amount of the notes, with interest, to which the defendants excepted, and this exception raises the only question to be considered upon this appeal.

The direction was made at the close of the evidence on motion by both parties for the direction of a verdict, one in favor of plaintiff and the other for the dismissal of the complaints and a judgment in defendant’s favor, and neither party asked to go to the jury upon any question ; thus submitting to the court for its determination any questions of fact that may have arisen upon the evidence in the case. This gave to the judge the office of the jury, and brings up the question whether there was sufficient evidence to support the trial judge’s decision. Green v. Shute, 15 Daly, 358; 28 St. Rep., 175; Gilder v. Davis, 45 id., 690; Burrows v. Atlas S. S. Co., 46 id., 533; Mayor, etc. v. Sands, 39 Hun, 519, 524.

Appellants contend that the rescission of the contract of March 4fh discharged both the maker and the indorsers of the notes in suit from any liability thereon. This would be the case if the notices served by Hurst upon Lovell amounted to a rescission in the ordinary acceptation of that term. Graves v. White, 87 N. Y., 463; 2 Dan. Neg. Inst., § 1306; Freeth v. Burr, L. R., 9 C. P., 213; Mersey S. & I. Co. v. Naylor, L. R., 9 App. Cas., 434; Mills v. Parkhurst, 126 N. Y., 93; 36 St. Rep., 512, Bishop on Contracts, § 827; Creighton v. Haggerty, 50 Super., 9 ; Weeks v. Robie, 42 N. H., 320; Conrow v. Little, 115 N. Y., 394; 26 St. Rep., 527; Fowler v. Bowery Savings Bank, 113 N. Y., 450; 23 St. Rep., 130, and many others which might be cited. The question then arises as to what was really intended by the plaintiff’s notice of April 9, 1892. Did he thereby mean that he rescinded the contract ab initio or only from and after April 9, 1892, the date of the notice? And this depends upon the construction to be given to the words, “ I hereby terminate and rescind my said written contract,’ ” to be determined in the light of surrounding circumstances. Good writers often use the word “rescind” in the narrower sense of terminate a contract as to future transactions. Thus in making a note at p. 145, 28 Abb. N. C., Dr. Abbott says, “ The word ' rescind ’ is often used and not improperly used to mean cutting off.” Thus Bispham, Eq. J., 556, § 506, says a dissolution of the partnership is a “rescission of the contract,” meaning of course a rescission as to future transactions. The words “ rescission ” and “rescind” are used simpliciter by the highest authorities to indicate in some cases partial rescission or termination, as well as to indicate in other cases annulment ab initio. Thus Leake on Cont., 3 ed., 1892, p. 53, says, “In a case of money lent under a special contract which was afterwards rescinded by mutual agreement, it was held that the money still remains due, the rescission relating only to the further execution of the contract.” Fry, J., says, in Bluck v. Capstick, L. R., 12 Ch. D., 863, in speaking of the dissolution of a partnership which involved the refusal by defendant, an incoming partner, to pay his bonus or premium after three months joint conduct of the business, the pretext for his refusal being the allegation that plaintiff had not fairly performed on his part, “ I must have regard to the circumstances which have led to the dissolution of the partnership. * * * The allegation of misconduct on the part of the plaintiff failed, and in rny opinion the defendant has in effect rescinded the partnership agreement without any excuse,” and he thereupon went on to decree payment of the premium agreeably to the terms of the partnership; thus showing that the rescinding spoken of was not an absolute rescission or annulment of the partnership ab initio, but a termination or rescission restricted to the future. This is made still clearer by the headnote, which states the case as one “ where a partnership is dissolved before its natural expiration, &c., without payment of the premium * * * the partner who has agreed to pay it ” (if his-fault is the sole cause of the dissolution) “ will be ordered to pay the whole of it notwithstanding the dissolution.” In 2 Pars, on Cont.. 7 ed., 677, (star paging) we find these words: “ And a suit for the recovery of damages for a breach of the contract is equivalent to a notice of rescission”; citing Graham v. Holloway, 44 Ill., 385. In Mann v. Palmer, 3 Abb. Ct. App. Dec., 162, the headnote is “ Acquiescence in the rescission of the ex-ecutory contract is not necessarily a waiver of an existing claim for profits made under it.” Obviously a single word, like the word rescind, cannot be wrenched from its context and construed alone in its unqualified, strict and technical sense in disregard of the surrounding circumstances. To ascertain the import of the notice the intent must be gathered from the instrument considered as a whole. “ It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words so as to prevent the simple intention of the parties from taking effect, and where the language is susceptible of more than one interpretation the courts will look at the surrounding circumstances when the contract was entered into,the situation of the parties and of the subject matter of the instrument.” French v. Carhart, 1 N. Y., 102, app’d Bridger v. Pierson, 45 id., 604; Kenyon v. Ass'n, 122 id., 258; 33 St. Rep., 467. And this rule has been applied even to the interpretation of charters and legislative enactments. McGaffin v. City of Cohoes, 74 N. Y., 387. On the general question under consideration, see also Blossom v. Griffin, 13 N. Y., 569; Zimmer v. Settle, 124 id., 42; 35 St. Rep., 218.

Under the light of these authorities we think the circumstances surrounding the making and termination of the contract should be considered. It is undisputed from the 4th of March, 1890, the date of the contract, down to the 9th April, 1892, Hurst had in all things performed his part of the contract, inasmuch as Lovell had enjoyed the exclusive use of the plates down to the latter date, and Hurst had refrained from publishing, as he agreed, any works in competition to those mentioned in the agreement. Hence, by virtue of such performance, Hurst had, on the 9 th April, 1892, earned, and had a vested right of action on all of said series of notes maturing prior to April 9, 1892, and then unpaid. Hone of these were returned at the time of giving the notice; some of them were then in action. Lovell had, in violation of his contract made default in the payment of eight of the series. In consequence of these repeated defaults on Lovell’s part, Hurst was clearly justified on April 9th in terminating the contract as to its unexpired part, and in holding Lovell upon his contract and notes given thereunder for the liability already incurred on his previous defaults. In re Kelly, 51 Fed. Rep., 194; Cunningham v. R. R. Co., 63 Hun, 439, 443; 44 St. Rep., 723; Strack v. Hurd, 41 id., 777; Gardner v. Clark, 21 N. Y., 399. In giving Lovell notice of such termination of the contract, Hurst was not confined to any particular form of words, so long as their import was to terminate •the contract in respect "to its unexpired period. If, instead, of using the expression “ terminate and rescind,” Hurst had written that he had terminated the contract as of the date of the notice, or had coupled with the word “ rescind ” words showing express reservation of his accrued rights, this would have meant simply that he terminated the contract only as to its unexpired period. McCreery v. Day, 119 N. Y., 1; 28 St. Rep., 597; Roe v. Conway, 74 N. Y., 201; Duncan v. Ins. Co., 46 St. Rep., 242. In the light of the surrounding circumstances, has he done anything else than this ?

But it is claimed that we must give effect to all the words in the contract. We do this in this case by making the word “ rescind” equivalent to the word “terminate,” and hence regard it as mere tautology and synonymous with terminate. The curious in such matters would see in this no more than a survival of that disposition which draftsmen exhibited when the fee bill was in part regulated by the folio, and they became expert in the use of a large vocabulary of words having the same or similar meaning, in order to increase the number of folios.

It is quite true, as contended for by the appellant, that as a general rule where there has been a breach of a contract, the party performing has the right to consider such breach as a basis for rescinding and abandoning the contract, or to treat the contract as subsisting and sue for the enforcement of the unperformed obligation, and the election to rescind the agreement bars the pursuit of the other alternative. Yet this is so only in cases where the contract is rescinded in tote and ab initio. In such cases he cannot regard the contract as existing and not existing at the same time; he must choose between the two. But, as before shown, there are numerous cases in which the party performing the contract on his part may terminate it as to the future and still hold the delinquent party for its performance up to the time of its termination. In addition to what has been said, we may call attention to the familiar illustration of an ordinary lease for a number of years, where it is provided that the same shall continue for a definite period of time with instalments'of rent to be paid monthly; if the lessee neglects to pay these monthly instalments, the landlord may allow the lease to go on to the end and sue for the whole rent due, or he may at any time by the commencement of summary proceedings obtain possession of the leased property, and thus terminate the lease, and yet he may thereafter sue the lessee and recover for the rent due up to the time of the dispossession. And we have no doubt whatever but that the contract under consideration falls within the latter class of cases.

Again, all the facts in this case were undisputed. • If conflicting inferences were to be drawn from these facts, the action of the parties in requesting the court to direct a verdict made it the judge of those inferences to the same extent that the jury would have been had not such requests been made; and we think there is quite sufficient in these cases to warrant the judge in drawing the inference he did in favor of the plaintiff’s contention.

But, it is claimed on behalf of appellant that even conceding Lovell might be held upon the notes due and unpaid at the time of the rescission, the indorsers were thereby discharged because of the modification of the contract between Lovell and Hurst; inasmuch as the only liability of the defendants to the plaintiff is as sureties for Lovell, the sole party to the contract It is difficult to see how a cancellation of a contract is a modification of it. The terms of the contract were in no way changed by such termination, and if Lovell viras not discharged from the obligation he incurred before the rescission, we cannot see how his sureties could be. As before shown, all the unpaid notes up to the date of the rescission had been fully earned by Hurst by the performance of the contract on his part, and Lovell had had all the benefits of the contract up to its rescission; and in our opinion the notes were in the nature of rent for the plates, etc., and the defendants were liable for its payment. We fail to perceive any force in the argument that the defendants were injured by such rescission ; on the contrary, it appears to us that it was greatly to their advantage, as in consequence of it they were relieved from a large liability which, if the contract had been allowed to continue, they or their principal Lovell would have had to meet, with non-resulting advantage to the indorsers.

The contention that the sureties were released because of an extension of time granted the principal is not well founded. Such a contention is based solely upon the letters written by the plaintiff to the defendant, which, instead of extending his time to pay the notes, really were intended to press upon him the necessity for immediate payment The mere failure to sue upon the notes when due never releases the indorser.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.

Pryor, J., (dissenting.)

I am unable to concur in the prevailing opinion.

The notes in suit were given in execution of the agreement of the 15th June, 1892; but that contract was “rescinded” and “ annulled ” by the mutual consent of the parties ; and by consequence all rights acquired under it ceased and determined. A rescission of a contract imports, proprio vigore, a relinquishment of every benefit and a dissolution of every obligation dependent upon it; and by the act of rescission each party is restored to his original position and relation. It is a contradiction in terms to assert a right under a rescinded contract; and “ neither party can thereafter invoice it against the other.” McCreery v. Day, 119 N. Y., 1; 28 St. Rep., 597; Graves v. White, 87 N. Y., 463, 466; Brewster v. Wooster, 131 N. Y., 473; 43 St. Rep., 657; Fullager v. Reville, 3 Hun, 600. By rescission of the contract, of which they were an incident, the notes became incapable of enforcement. Otherwise, however, had they been reserved from the operation of the rescission, but of that there is no hint, the words being “ wholly rescinded and annulled.”

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Andres W. Ketcham et al., Resp’ts, v. Isidor Cohn et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Trespass — Adjoining owners — Entry to shore up building.
    A land owner has no right, in order to protect an adjoining building from injury by intended excavation of his land, to enter upon and shore up said building without the permission of its awner; and if such unlawful entry be made, the person causing it will be liable for the damage resulting from the trespass, although the shoring be done by an independent contractor and in a skillful manner.
    Appeal from a judgment of this court entered on the verdict of a jury rendered at trial term, and from an order denying a motion to set aside the verdict and for a new trial.

      Nathaniel Myers, for app’lts; Eugene S. Ives, for resp’ts.
   Bookstaver, J.

In the spring of 1882 the plaintiffs were co-partners composing the firm of A. W. Ketoham & Co., wholesale dealers in millinery goods, and were the lessees and occupants of the ground floor and cellar of the premises No. 632 Broadway, New York city. At the same time the defendants were the owners of the adjoining premises on the south, Nos. 628 and 630 Broadway, and were causing an old building upon those premises to be torn down and a new one to be erected in its stead, making excavations for that purpose to a depth of twenty-two feet below the curb. This action is brought for the trespass alleged to have been committed by the defendants upon the plaintiffs’ premises by their act of shoring up the building occupied by "the plaintiffs to prevent it from falling into the excavation upon their lots. To do this shoring, defendants made a contract with one Goodwin. The employes of this contractor entered upon the premises of the plaintiffs, broke open the wall of the building, put large beams or needles through the wall and upon the premises of the plaintiffs, and as appears by the testimony this caused material damage to the property of the plaintiffs.

It was not claimed that the work of shoring up was negligently or improperly done, or that it could have been done in any other way than that employed. One of the plaintiffs testified that he could not state any other way in which that building could have been shored up, and the testimony of Goodwin, the contractor, is to the same effect. The evidence further shows that the building occupied by the plaintiffs was, for a distance of nearly 100 feet back from the Broadway front, an old three story brick building, and that its foundations extended only some nine feet below the curb, while on the rear of the premises was merely a one story frame extension without foundations, and resting immediately upon the ground. And it is very apparent from the testimony in this case, that the southerly wall of the building occupied by the plaintiffs must have fallen but for the shoring up. At the close of plaintiffs’ case the defendants moved for the dismissal of the complaint, and the like motion was made at the close of the whole case, both of which were denied and defendants excepted. The defendants also requested the court to charge the jury:

(1) “ If the plaintiffs refused to afford Mr. Goodwin or the defendants the necessary license to enter on their premises and to do such things as were necessary to preserve the southerly wall of No. 632 Broadway from injury, and to properly support the same during the excavations upon No. 630 Broadway, and if, by reason of the condition |nd location of said wall at the time when said excavations were commenced, the said wall was in danger, if such excavations were made, of falling upon defendants’ premises, the defendants had a right to protect themselves against such an occurrence and are not liable to the plaintiffs for such acts of themselves, or their subcontractors or servants, as were necessary to prevent the same, provided said acts were free from negligence.’’ (2) “ If the plaintiffs forbade Mr. Goodwin or his employes from, entering their premises for the purpose of preserving the southerly wall of 632 Broadway and supporting the same during the éxcavations upon the defendants’ premises, such action had the same effect upon the rights of the parties to this action as a refusal by the plaintiffs to afford a license for that purpose, and if, by reason of the condition and location.of said wall at the time when said excavations were commenced, the said wall was in danger, if such ■ excavations were made, of falling upon the defendants’ premises, the defendants are not liable to the plaintiffs for such acts of themselves, or their subcontractors or servants, performed without negligence, as were .necessary to prevent such falling of such wall.” (3) “If the plaintiffs refused to afford the necessary license to enter their premises and to do such acts as were necessary to preserve the southerly wall of No. 632 Broadway from injury, and to properly support the same during the excavations upon No. 630 Broadway, or forbade Mr. Goodwin from entering their premises for that purpose, the defendants are not chargeable for any acts done without negligence which were necessary to prevent the said wall from falling upon their premises, or at most are chargeable only with nominal damages therefor.” The court refused to charge these requests, and exceptions to such refusal were duly taken by the defendants.

The chief question involved by these refusals to the charge of the court are: .

First. Was any trespass committed ?

Second. If a trespass was committed, are the defendants liable ?

Third, Were the plaintiffs damaged by the trespass, and in what amount ?

The first of these questions is one of fact The appellants concede that certain persons employed by Mr. Goodwin, the contractor, entered upon the premises of the plaintiff. This entry would constitute a trespass if unauthorized. The appellants, on the trial, contended that such persons entered by virtue of a license and permission of the plaintiffs. Whether or not the appellants had such license or permission to enter upon their premises was fully and fairly presented to the jury by the learned judge who tried the case. The evidence on behalf of the plaintiffs that no license or permission had been given was positive and in our judgment sufficient to warrant the jury in finding in favor of the plaintiffs on that contention, and, consequently, their finding is binding upon us, and we must conclude that a trespass has been committed.

We then come to the consideration of whether or not the defendants are liable for the acts of the persons who committed the trespass, and this is the chief one to be determined on this appeal. It appears from the testimony that the defendants made a contract with the firm of F. & S. E. Goodwin to do the shoring necessary to erect the buildings 628 and 630 Broadway.

It further appears that Mr. Goodwin is one of the most experienced shorers in the city of New York. He testified : “ After forty years experience, I know of no other way in which I could have shored up that brick wall, the south brick wall of 632 Broadway, than the way which was employed.” It was the employes of Mr. Goodwin who committed the trespass, by reason of which the plaintiffs were damaged, and this was so charged at the request of the defendants. There is no proof to the effect that Mr. Goodwin did not do his work with skill and diligence; therefore, the necessary effect of the contract whereby the defendants employed Mr. Goodwin was the trespass and damage consequent thereupon. It is the well settled law of this state that if the work done under a contract necessarily produces an injurious result, the person for whose benefit the work is done cannot shield himself by showing that it was done by an independent contractor. Dorrity v. Rapp, 72 N. Y., 307; Town of Pierrepont v. Loveless, id., 211. It is also the well settled rule in other states, and is well expressed by the court in the case of Atlanta & Florida R. R. Co. v. Kimberly, 87 Ga., 161, also reported in 27 Am. St., 231. The general rule of law upon this subject, says the learned judge delivering the opinion of the court, is: “ Where an individual or corporation contracts with another individual or corporation exercising independent employment for the latter to do a work not in itself unlawful or attended with damage to others, such work to be done according to the contractor’s own methods and not subject to the employer’s control or orders except as to the result to be obtained, the employer is not liable for the wrongful or negligent acts of the contractor or any of the contractor's servants. To the general rule there are several exceptions. Where the work is wrongful in itself, or if done in the ordinary manner would result in a nuisance, the employer will be liable for injury resulting to third persons, although the work is done by an independent contractor. This is upon the principle that- if one contracts with another to commit a nuisance, he is a trespasser by reason of his directing or participating in the work. In other words the rule is, that if the act or neglect which produces the injury is purely collateral to the work contracted to be done and entirely the result of the wrongful acts of the contractor and his workmen, the proprietor is not liable; but if the injury directly results over the work which the contractor engaged and was authorized to do, he is equally liable with the contracto]'.” See also Blake v. Ferris, 5 N. Y., 48; Pack v. Mayor, etc., 8 id., 222; Kelly v. Mayor, etc., 11 id., 432; Herrington v. Lansingburg, 110 id., 145; 17 St. Rep., 92. And it seems to follow from this fact that the defendants in this case were liable for the trespass of Goodwin’s employes.

But appellants contend that the trespass, if a technical one, was for the benefit of the plaintiffs, and to minimize the damage which they otherwise would have sustained by the doing of a lawful act upon their' own grounds, which necessarily involved some loss to the plaintiffs, who were not entitled either at common law or under the statute to have a building occupied by them supported by the soil of the adjoining premises, and consequently no damagesuan be recovered by them for injuries which they have sustained solely through the excavations made upon such premises; relying on Dorrity v. Rapp, supra. It is an elementary principle in reference to private rights that every individual is entitled to the undisturbed possession and lawful enjoyment of his own property; but the mode of enjoyment is necessarily limited by the rights of others, otherwise it might be destructive of their rights altogether. As was said in Hay v. Cohoes Co., 2 N. Y., 159, where the defendants, a corporation, dug a canal upon their own land for the purposes authorized by their charter, and in doing so it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff’s dwelling upon the land adjoining ; “ the defendants had the right to dig the canal; the plaintiff the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender the particular use of his land than that another should be deprived of the beneficial use of his property altogether,' which might be the consequence if the privilege o£ the former should be wholly unrestricted. The ease before us illustrates this principle, for if the defendants, in excavating their canal, in itself a lawful use of their land, could in the manner mentioned by the witnesses demolish the stoop of the plaintiff with impunity, they might for the same purpose, on the exercise of reasonable care, demolish his house, and thus deprive him of all use of his property. The use of land by the proprietor is not, therefore, an absolute right, but qualified and limited by the higher right of others and the lawful possession of their property.

To this possession the law prohibits all direct injury without regard to its extent or the motives of the aggressor. A man may prosecute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of the adjoining proprietor even for the purpose of lawful trade. Aldred's case, 9 Coke, 58. He may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal act in an unlawful manner. In Rolle’s Abridgment, 565, it was said that if A. erects a new house upon the confines of his land next adjoining the land of B., and B. afterwards digs his land so near the land of A. that it falls, no action can be sustained by A. The purpose of B. in the case stated, in digging upon his own land, was lawful and so, for aught that appears, were the means taken to accomplish it. The right of A. to occupy and use his land in a particular manner was qualified and limited by a similar right in B. Ho action, consequently, could be sustained. ‘A man, however, cannot dig his land so near mine,’ adds the reporter, ‘as to cause mine to slide into the pit’ In the last case the injury would consist in depriving one of a part of the soil to which his right was absolute. Ho degree of care in the excavation by the pit owner would, I apprehend, justify the transfer of a portion of another man’s land to his own.” And the doctrine of Hays v. Cohoes Co. has ever since been sustained in this state. Pixley v. Clark, 35 N. Y., 520; Losee v. Buchanan; 51 id., 476; Marvin v. Brewster Iron Mining Co.,55 id., 538, 558; Jutte v.Hughes, 67 id., 267, 273; Heeg v. Locht., 80 id., 579, 583; Herrington v. Lansingburg, 110 id., 145; 17 St. Rep., 692. See also 9 Hun, 353; 3 Lans., 282; 2 E. D. Smith, 202; 21 Barb., 409. Chap. 456, Laws 1885, providing, “ That whenever excavations hereafter commenced, for building or other purposes, on any lot or piece of land in the city and county of Hew York, and the city of Brooklyn, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury,” does not modify the owner’s right to make such excavations upon his own land as it existed by common law, but merely imposes • upon him a statutory duty which he is bound to perform on the condition named in the law; the right to excavate remains intact; the only effect of the act is to give a new assurance to the owner or occupant of the adjacent lot But neither it or any other rule of law, that we are aware of, gives the party making the excavation liberty or license against the will of the owner of the adjacent lot to commit' a trespass upon his premises. The appellant argues as if he was under the necessity of fate to excavate his lot to the depth he desired, and that he had no alternative but to do so. Yet the necessity was entirely of his own creation. He could do it or not, as he saw fit. Having himself determined to do it, he must take the responsibility of such determination. He need not have shored up the adjacent wall; and if he had excavated his own premises in a careful ‘and lawful manner, he would not have been responsible to the plaintiffs for any injury they might have sustained by reason thereof. But appellants contend that the shoring up was necessary for the safety of their employes, and without such shoring up the work could not be done. If this were so, then, as was said in Hays v. Cohoes Co., supra, he must abandon that mode of using his property or be held responsible for all damages resulting therefrom. Besides, in this case, he did not confine himself to his own land, he actually entered upon the land of the respondents by inserting the needles in the walls of the building occupied by them. And in the case last cited it was expressly 'held that he could not enter upon the land of his neighbor for any such purpose.

Appellants also contend that the damages sustained by the shoring up of the plaintiffs’ wall ought not to haye been allowed at more than a nominal amount because the acts done by them, even if there was a trespass, were without malice and largely for the purpose of minimizing the injury which the plaintiffs would otherwise have suffered. But whatever damage the plaintiffs did suffer was not in invitum or ex necessitate, but arose from the voluntary act of the defendants, and whatever the amount of it, they must be responsible for it

We, therefore, think the exceptions taken to the refusal to dismiss the complaint and to the refusals to charge were not well taken. We arrive at this conclusion with reluctance, for its effect cannot but be to retard the growth of large cities and put obstruction in the way of the erection of larger, more beautiful and substantial buildings in the place of dilapidated and antiquated ones, when the owners of adjacent property are so churlish as to refuse permission to shore up as provided by the act before mentioned, or where the landlord of the adjacent property has let it to tenants and the permission of both cannot be obtained. To us it seems as if the views of the late learned Judge Bronson in Radcliff's Ex’rs. v. Mayor, etc., of Brooklyn, 4 N.Y., 203, were wise and far seeing and tended to the benefit of the public even if at some loss and inconvenience to private individuals. In the course of that opinion he said: “But still I think the reasoning unsound; referring to the respective rights of adjacent owners; especially in reference to properties in cities and large towns. If the doctrine were carried out to its legitimate consequences it would often deprive men of the whole beneficial use of their property. • An unimpoved lot of land in the city of Brooklyn would be worth little or nothing to the owner unless he were allowed to dig in it for the purpose of building, and if he may not dig in it because it will remove the natural support to his neighbor’s soil, he has but a nominal right to his property which can only be made good by negotiation and compact with his neighbor. A city could . never be built under such a doctrine. I think the law has superseded the necessity for negotiation by giving every man .such a title to his own land that he may use it for all the purposes to which such lands are usually applied, without being answerable for the consequences, and provided he exercises proper care and skill to prevent any unnecessary injury to the adjoining land owner. The saying of Rolle may have been a wise one in his day, but it is not well adapted to our times.” But as before shown, this view of the law has not been sustained in this state, and we must follow the law as we understand it, leaving it to legislative authority to correct any evils that may lie in the law as it now exists and is expounded by the courts.

Other exceptions were taken by the appellants during the course, of the trial, but none of them were argued by either counsel upon the appeal, either orally or in his brief, and we do not, therefore, think it necessary to examine them at length.

The judgment should be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    The Domestic Sewing Machine Co., App’lt, v. Margaret Barr, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Sale — Conditional—Alteration of conract.
    Plaintiff leased a machine to defendant on the usual terms, with privilege of purchase on payment of its value; the title to remain in plaintiff until paid for. The machine not being satisfactory, it was exchanged for another, and the number of the latter was inserted in the contract instead of the first one. Held, that the alteration in this respect was not a material one, and that the written contract, notwithstanding the erasure, would control the agreement between the parties.
    Appeal from a judgment rendered against plaintiff in the district court of the city of New York for the third judicial district.

      H. B. Kinghorn, for appl’t; Anthony J Griffin, for resp’t.
   Bookstaver, J.

This was an action of claim and delivery to recover the possession of a Domestic sewing machine, Ro. 1,150,-468, which the défendant had rented of the plaintiff, under the usual contract, with privilege of purchase upon paying the agreed value, in this case sixty dollars. The defendant paid five dollars cash and received a credit of ten dollars for an old machine, and thereafter the rent was to be five dollars per month, and the defendant was to be allowed a discount of ten dollars additional if she elected to purchase and pay cash for the machine within sixty days. The contract further provided that the title to the machine should remain with the plaintiff until the money agreed upon had been fully paid. On the trial it appeared that the first machine given to the defendant was not satisfactory, and another was given her, whereupon the number of the new machine was inserted in the contract in lieu of the old, as defendant claims, without her knowledge, and it was upon this ground chiefly that the justice based his judgment in defendant’s favor. While it is quite true that any material alteration of a written contract without the consent of both parties to it will avoid it, yet in this instance we do not think it was in the least material, as it only conformed the agreement to the facts, went but to the identity of the machine, and did not in any way change any of the terms of the contract. The defendant herself distinctly testified that she did not look at the number as anything; and even on the argument of the appeal in this case the respondent admits as much, but claims that it was sufficient in order to enable the defendant to offer proof varying the contract. In this we think the counsel and the court below erred, and that the written contract, notwithstanding the erasure, should control the agreement between the parties. Besides the learned judge who tried the case, who was so uniformly careful in his decisions, evidently erred in regard to the amount tendered and as to the amount which was to be tendered, for his statement of these amounts differs from the testimony given by the defendant herself.

The judgment should, therefore, be reversed, and a new trial in the court below ordered with costs to the appellant to abide the event

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Newton Squire, Resp’t, v. Benjamin B. Senia et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Arrest-'-Undertaking.
    An order vacating an order of arrest issued in an action for conversion, which has become final hy lapse of time in which to appeal, is a final decision that the plaintiff in such action was not entitled to the order of arrest, notwithstanding that the action may result in a judgment in his favor, and the cause for arrest and the cause of action were identical.
    Appeal from a judgment for plaintiff, entered upon a verdict directed by the court. Action to recover upon an undertaking given to obtain an order of arrest, pursuant to the provisions of § 559 of the Code of Civil Procedure.

      William R. Wilder, for resp’t; T. D. Kenneson, for app’lts.
   Bischoff, J.

The facts, as they transpired on the trial of this action, are the same as in Squire v. McDonald et al., herewith decided, 50 St. Rep., 762, and the question urged for review does not differ in any respect from the one there discussed.

We affirmed the judgment appealed from upon the ground that the order vacating the order of arrest issued against the plaintiff in an action against him for the alleged conversion of personal property, and which had become final by lapse of time within which an appeal therefrom should be taken, is a final decision that plaintiff in the action for conversion was not entitled to the order of arrest, notwithstanding that the action may result in a judgment for plaintiff, and that because of the identity of the cause for arrest with the cause of action such a judgment would imply that the plaintiff was entitled to an order of arrest.

The judgment herein appealed from must, therefore, likewise be affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.


text:
    Annie Haines, Resp’t, v. Denman Thompson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Contract — Statute of frauds.
    A contract for services to commence in futuro, and to endure for " thirty-five or forty weeks, perhaps a year,’’ is not necessarily one for a year, and not within the statute of frauds, and hence need not be in writing.
    2. Same — 'Theatrical—-Evidence.
    An oral contract for the services of an actress provided that plaintiff should be engaged the same as the rest of the company, “two weeks notice on either side.” Held, that evidence to show that this phrase had a definite and well understood meaning in the making of such contracts was admissible as showing that both parties understood it in a particular sense.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff, which was entered upon a verdict; and affirming also an order refusing a new-trial.
    Action to recover damages for defendants’ breach of a contract for the employment of plaintiff’s services as an actress by her alleged wrongful discharge.

      David Gerber, for resp’t; Edward Brown, for app’lts.

       Reversing 46 St. Rep., 285.

   Bischoff, J.

An order of the city court of New York which refuses a new trial is not appealable to this court. Code Civ. Pro., § 3191; Wilmore v. Flack. 96 N. Y., 512; Smith v. Pryor, 169; 30 St. Rep., 553.

The contract of employment was made in June, 1888, the services thereunder to commence on the 23d day of August following. It was oral, and construing the evidence most favorably for defendants, was to the effect that the employment should endure for “ thirty-five or forty weeks; perhaps a year.” No obligation was thereby created to continue the employment for a year, and hence the contract was not Within the statute of frauds, and was not required to be in writing. Blake v. Voight, 45 St. Rep., 606; Court of Appeals, May 31, 1892.

But we are of the opinion that the trial court erroneously excluded evidence offered by defendants, which tended to show that the words “two weeks notice on either side” had a definite and well understood meaning in the making of contracts for theatrical services, and that plaintiff so understood them. In Hannay v. Zerban, 16 Daly, 372; 33 St. Rep., 653, we held that parol evidence of the meaning of a somewhat similar phrase was inadmissible to add to the contract. But that was the case of a written contract, and so is inapplicable here. Nor was the error excluding the evidence in the present case cured because defendant Ryer was subsequently permitted to testify to his own understanding of the phrase, since that did not show plaintiff’s understanding of it; or because the court charged the jury that “ defendant testifies positively that he told her, plaintiff, it was on two weeks notice. If you find that to be so, of course you find that that was the contract, not a custom.” No evidence which tended to show that plaintiff understood the phrase in any particular sense was permitted to go to the jury.

It appeared on the trial from her own admission that plaintiff was discharged upon a previous notice of two weeks. The complaint alleged that plaintiff was employed for the season commencing on or about August 23, 1888, and ending on or about June 1, 1889, and that she was wrongfully discharged. The answer denied this. Defendant Ever, with whom the contiact was made, testified that at the time of making it he said to plaintiff “ You must become engaged here like all the rest of the company, two weeks notice either side.” He further testified that the phrase “ two weeks notice either side ” had a well known meaning in the theatrical profession, and the question, what does it mean ? was excluded on the ground that the right to terminate the employment upon two weeks notice was not specifically pleaded by the answer.

It is, however, a well settled rule of pleading that under a denial the defendant will be permitted to give in evidence anything which disproves the allegations of the complaint, O'Brien v. McCann, 58 N. Y., 373, and by showing what the contract really was, that it was not as alleged in the complaint. Marsh v. Dodge. 66 N. Y., 533; Bien v. Abbey, 36 St. Rep., 791; Wheeler v. Billings, 38 N. Y., 263; Hier et al. v. Grant, 47 id., 281. " Evidence that “ two weeks notice either side ” was part of the contract tended to disprove that the contract was as alleged in the complaint, and evidence that this phrase was understood by both parties to mean that either party was at liberty to terminate it upon two weeks previous notice to the other certainly tended to disprove the alleged breach of contract on defendants’ part, the wrongful discharge of the plaintiff. The attempted proof of the meaning of the phrase “ two weeks notice either side ” was not to show that there was a custom in the theatrical profession whereby either of the parties could upon two weeks notice to the other terminate any contract; but that, if defendants’ version of the contract be true, a seemingly obscure part of it was undergtood by both contracting parties in a particular sense. The evidÉice offered and excluded thus tended to establish an integral part of the contract.

The judgment appealed from should be reversed and a new-trial ordered; with costs to appellants to abide the event

Daly, Oh. J., and Pryor, J., concur.


author: Mayham, P. J.

text:
    Frank H. Kittle, Resp’t., v. Israel Huntley, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Executors and administrators — Liability for funeral expenses.
    An executor or administrator is liable for the suitable and reasonable burial expenses of his testator or intestate if he have assets enough for that purpose, even if by reason of his absence or neglect the funeral was ordered by another.
    2. Same — Evidence—Value of casket.
    In an action to recover for burial expenses evidence as to the price of the casket as between the manufacturer or wholesale dealer and the undertaker is immaterial, as such articles have a market value, as fixed by the-trade, as between the undertaker and his customers, and the value must be measured by such market price.
    This is an appeal from a judgment entered upon the report of a referee.

      McClellan & McClellan (Robert H. McClellan, of counsel), for app’lt; Davenport and Hollister (William H. Hollister, of counsel), for resp’t.
   Mayham, P. J.

The complaint in this action alleges in substance that the plaintiff is an undertaker, and as such took charge of and superintended the burial of Roxanna Dual, deceased, and performed the work and furnished necessary materials, and paid, laid out, and expended moneys necessary for and connected with such burial services, all of which were worth the sum of $127.

The complaint alleges also that the deceased left a last will and testament, wherein she named the defendant as sole executor, and that such will was duly proved and the defendant was duly appointed as executor thereof, and duly-qualified as such, and entered upon the discharge of his duties as executor, and that as such he received personal assets belonging to the estate of the deceased of the value of $700, and that the plaintiff before the commencement of this action demanded of the defendant, as executor, the payment of his claim for such burial services, while the defendant held such funds as executor, and payment was refused, or neglected.

The answer admits the allegations of the complaint, as above in substance set forth, but alleges that the plaintiff acted at the instance and by the employment pi one Sarah Yallee, and alleges that the burial expenses were extravagant and too expensive, considering the circumstances of the deceased.

The only real questions presented by this appeal are:

First. Whether the defendant is liable under the circumstances of this case for the funeral expenses of the testator.

Second. Whether the amount allowed by the referee was sustained by legal evidence.

Third. Whether on the trial the referee committed errors which prejudiced the legal rights of the defendant.

The law seems well settled that an executor or administrator of a deceased person is liable for the suitable and reasonable burial expenses of the testator, or intestate, if he have assets sufficient for that purpose, and if such personal representative, by reason of absence or neglect, fail to furnish such burial in the first instance, he is liable to the one who incurs such expenses, so far as he has assets of the deceased in his hands. Patterson v. Patterson, 59 N. Y., 583, 584, and cases there cited.

We think all the essential facts to fix the liability upon the defendant for the payment of reasonable and suitable burial expenses in this case are conceded and admitted by the pleadings, unless it can be claimed that Mrs. Yallee incurred the expense and was charged by the plaintiff with it.

This the referee refused to find, and we think his determination upon that point fully sustained by the evidence, and correct. We are also of the opinion that the finding of the referee as to the amount which the plaintiff should be allowed is fully sustained by the evidence in this case, and the burial expenses were not unreasonable in amount, in view of the estate left by the deceased, and her station in life, as appears by the evidence.

The remaining question is, whether the referee committed any error in receiving, retaining or rejecting evidence under the objection, motion or offer of the defendant, for which this judgment should be reversed.

It is insisted, by the learned counsel for the appellant, that it was competent for him to inquire into the price of the casket as between the manufacturer or wholesale dealer and the undertaker or retail dealer’, and that the witnesses should have been compelled to answer that inquiry, or their testimony given on the part of the plaintiff stricken out.

' We are not prepared to subscribe to that doctrine, as applied to this case, where the article of merchandise, as in this case, has a market value, as fixed by the trade, as between the undertaker and his customers. The cost price between the manufacturer and the undertaker would not, in such a case, furnish a correct criterion as to the price between the undertaker and his customers, and an inquiry into it would lead to unsafe and unprofitable speculation on the part of the court or jury .as to the rate of profit which should be charged by the undertaker, and would not be evidence of the market value between the last named parties ; that value must be measured by the market price between the undertaker and his customers, as regulated by competition and the law of demand and supply.

While a wide range of inquiry should be allowed on the cross-examination of a witness as to the value of property, when its value is in dispute, we think it should be confined to the market value, which is actually the subject of inquiry between the parties, when sold at retail, and not the price as between the wholesale dealer and the retail dealer, as was sought to be proved in this case.

But if there be doubt as to the correctness of this'rule, we think that there was sufficient evidence of an unobjectionable character to sustain the finding of the referee as to the value of the materials and services furnished and rendered to uphold the report and judgment, and that no error was committed by the referee for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    Wilson I. Lettis, App’lt, v. Norman Horning, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Animals — Vicious—Liability of owner.
    The owner of a vicious animal, in possession of his bailee, who declines to take care of it at the request of the latter, or to consent to proper measures being taken to prevent its doing a mischief, is liable for injuries done by it.
    2. Same — Farm lease.
    Defendant leased a farm to one K. to work on shares, the lease providing that he should leave twenty cows “ now on said farm,” one bull, etc. The bull left there was. vicious during the first month, and defendant, on being notified, refused to to take care of it, or consent to its being shut up. Plaintiff was afterwards injured by said bull. Held, that the bull was not leased to K., but was in his possession as bailee to care for it for defendant’s benefit, and that defendant was liable for such injury.
    Appeal by plaintiff from judgment of nonsuit.

      H. Dunckel (A. J. Nellis, of counsel), for app’lt; H. M. Eldridge (Z. S. Westbrook, of counsel), for resp’t.
   Putnam, J.

This action was brought to recover damages for injuries received by plaintiff from a vicious bull owned by the defendant. Plaintiff was an employee of one William Kelly, who, by written contract, took the defendant’s farm for one year from March 1, 1891, to work on shares. The contract provided that defendant should leave twenty cows, now on said farm, one bull, three hogs, etc. Kelly was to work said farm and take good care of the cows and stock. The milk, butter and cheese to be divided between the parties. Kelly took possession of the farm, under the contract, on March 1, 1891, and of the twenty cows and a bull left there by the defendant.

There was evidence that plaintiff was seriously injured by the bull, and also that defendant knew of the dangerous character of the animal prior to the injury. The trial judge granted a non-suit on the ground that, under the contract, Kelly had the sole control of the animal. That it was a proper one when first furnished, and afterwards became vicious. That it was the duty of Kelly to take care of it. He had the absolute control, and could hamper or shut it up whether the owner consented or not. That while Kelly was so in possession, and had control of the animal, the liability for plaintiff’s injury, if any, was his, and not that of the defendant

It is not clear that the trial judge was correct in stating that it was conceded that the bull was a proper one when delivered to Kelly. The occupancy of the latter commenced on March 1, 1891. Testimony was given on the trial showing that during the latter part of that month the bull was vicious and dangerous. This being so, it may be doubted whether the animal was not also dangerous during the first of the same month.

Under the contract between plaintiff and Kelly to work the farm on shares the bull was not leased to the latter, but was in his possession as a bailee. The trial judge properly held that “ Kelly was paying a part of his obligation to defendant for the lease of the property, by seeing that the cows were properly served with the bull, so that they would come around in the ensuing season. That defendant furnished the bull for that purpose.” This is undoubtedly a correct view of the contract and shows that Mr. Kelly kept the animal for the benefit of Mi'. Horning.

Hence this case differs from Atwater v. Lowe, 39 Hun, 150 and Van Slyck v. Snell, 6 Lans., 302. In those cases the cattle had been rented to the tenants for a term of years and the latter had the sole control and charge of them, the possession of said stock for their own benefit. In this case Kelly was merely the keeper of defendant’s bull for defendant’s sole benefit. Also the cases of Ryan v. Wilson, 87 N. Y., 471; Mellen v. Morrill, 126 Mass., 545; O'Brien v. Greenbaum, 25 St. Rep., 405, cited by defendant, were where the real estate in question had been leased by the owners for a period, and it was held that the owner, having parted with the possession and control of the property, was not liable for an injury caused by its condition during the pendency of the tenancy. In-this case, as we have seen, while possession of the dangerous animal was given to Kelly, it was given to him for the benefit of defendant and Kelly took said property not as a lessee, but rather as bailee of Mr. Horning. Marsh v. Hand, 120 N. Y., 315; 30 St. Rep., 1003, was a case somewhat similar to the one under consideration. In that case one Hand was sued as the owner, and Cumber as the party working the farm on shares, and to whom, under the contract between the parties, which was similar to the contract in this case, the possession of the dangerous animal was given.

In that case, in his opinion, Justice Bradley uses the following language : “ He ” (Cumber), “ as well as the Hands, had an interest in the use of the stock, and was liable for the injury resulting from the trespass upon the plaintiff’s premises, but inasmuch as the defendants Hand had neither parted with the title to the stock left by them upon the farm or rented it to Cumber, they were also liable for any trespass committed by such stock upon the lands of another.” “ The relation of Cumber, as the bailee, and his duties assumed with respect to it, did not have the effect of releasing them, who were the general owners, from liability.”

I think the learned justice stated the correct doctrine applicable , to such a case. The owner of a dangerous animal, having knowledge of its dangerous character, cannot, by delivering possession to his bailee, escape liability for damages resulting from the trespass of such animal. The gravamen of the action is in the keeping of the vicious animal with knowledge of its propensities. Muller v. McKesson, 78 N. Y., 195. And the owner of the animal keeps it when in possession of his bailee.

In Marsh v. Hand, supra, the defendants were held not liable, only upon the ground that the ram which caused the injury was purchased without authority and without the knowledge or consent of the defendants.

To hold Kelly, in this case, solely responsible for plaintiff’s injury, would be most unjust. Under the contract defendant was to furnish twenty cows, then on the place and one bull. The bull, it will be seen, is not specified as being on the place. The animal delivered, either at the time or soon afterwards, became vicious and dangerous, and defendant was notified of the fact. He refused to consent to have the animal shut up, day or night. He declined to take care of it, and also to furnish a ring and chain to be put in his nose. It is not consistent with justice that the owner of a vicious animal, in possession of his bailee, who declines to take care of it at the request of the latter, or to consent to proper measures being taken to prevent the animal /from doing a mischief, should escape, liability for injuries done by it, or that the bailee should be liable for such injuries. The bailee, in this case, seems to have been blameless. The vicious bull was put in his possession, under the contract, and he was bound to receive it. He promptly notified the owner of the dangerous character of the animal and endeavored to induce him to consent to proper measures being taken to prevent its doing any injury.

I think that defendant as the owner of the animal was liable for the injuries caused by the vicious propensities of his bull, if he knew prior to the attack by the animal upon plaintiff of his dangerous character.

If, under the contract, the defendant and Kelly could be deemed tenants in common of the bull, Sheldon v. Skinner, 4 Wend., 525, the former was also liable. Oaks et ux v. Spaulding et al., 40 Vt., 347.

It is claimed by respondent that the action cannot be maintained because the testimony shows that plaintiff was guilty of contributory negligence. I see very little in the evidence indicating any such negligence on the part of plaintiff, but clearly this is not a case where that question could be properly taken from the jury. Muller v. McKesson, 73 N. Y., 195.

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

Mayhay, P. J., and Herrick, J., concur.


text:
    Fred C. Laidley, Assignee, Resp’t, v. James Rogers et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Depositions — Interrogatories—Oral cross-examination.
    Where it appears that the witnesses to be examined on commission are important ones, and that it will be difficult, if not impossible, L r the opposite party to so anticipate their testimony as to properly frame written cross interrogatories, a proper case is made out for allowing an oral cross-examination, with a right in the moving party to orally re-examine.
    Appeal from order allowing two commissions to examine witnesses and denying defendants’ motion to insert provision for an oral, cross-examination.

      Kellas & Munsill (John P. Kellas, of counsel), for app’lts; Thomas Cantwell and William P. Cantwell, for resp’t.
   Putnam, J.

This is an appeal by defendants from an order, made on motion of plaintiff, that two commissions issue to examine two witnesses on interrogatories to be annexed to said commissions, and denying defendants’ request to have a provision inserted in said order that they be allowed an oral cross-examination of said witnesses.

It is evident from an examination of the affidavits and papers in the case that the witnesses so proposed to be examined by commission are very important ones. They are doubtless plaintiff’s principal witnesses to establish his cause of action. It is apparent from the nature of the case that it would be difficult, if not impossible, for the defendants to so anticipate what these witnesses would testify to as to properly frame written cross-interrogatories.

I think defendants, if they desire, should have the right to orally cross-examine these witnesses. The court, under §| 898, 894, of the Civil Code, have the power to direct an oral commission, and have often exercised the power in similar cases. Smith v. Talmadge, 3 Monthly Law. Bul., 97; Parker v. Lithgoe, 36 St. Rep., 981; Wainright v. Low, 49 Hun, 283; 17 St. Rep., 693.

On appeal from the order it is our duty to consider and pass' upon the case on its merits. Jemison v. Citizens Savings Bank of Jefferson, Tex., 85 N. Y., 546.

The order should be modified as follows: It should provide that the commission issue in the ordinary form with leave to the defendants to cross-examine the witnesses orally; they, however, to pay the expenses of the commission attendant on said cross-examination; plaintiff to have the right to subject the witnesses to an oral re-examination if desired ; he to bear the expenses thereof. The plaintiff may also, if he so elects, have an oral direct examination of said witnesses instead of an examination upon interrogatories.

I think the order should be modified as above, without costs to either party.

Mayham, P. J., and Herrick, J., concur.


author: Herrick, J.

text:
    In the Matter of the Application of the Saratoga Gas & Electric Light Company, App’lt, v. Byron J. Town, Receiver, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Appeal — Dismissal of.
    Application for a. mandamus was made by a town board to compel a corporation to repay to a receiver of taxes a certain sum; the justice refused to grant the mandamus, and the board appealed. Thereafter they adopted a resolution that the matter be stopped, and their attorneys and the attorney for the corporation and receiver were so notified. The attorney for the corporation and receiver moved for a dismissal of the appeal. The attorney for the board opposed the motion without their authority. Held, that the appeal should be dismissed.
    Motion to dismiss appeal.

      Winsor B. French, for app’lt; Charles S. Lester and E. T. Brackett, for resp’t.
   Herrick, J.

On the application of the Saratoga Gas & Electric Light Company, an order was made by a justice of this court directing the receiver of taxes of Saratoga Springs to pay certain moneys to the Gas & Electric Light Company; the receiver paid over the moneys as directed by said order; the board of street commissioners of Saratoga Springs applied to the justice granting said order for a mandamus compelling the said Gas & Elec.trio Light Company to repay to said receiver the money paid by him to said Gas & Electric Light Company; the justice refused to grant the mandamus, and from such refusal the board of street commissioners appealed to this court, and such appeal was placed upon the calendar of this court for the January term, 1892; thereafter the said board of street commissioners adopted certain preambles in relation to the matter, and a resolution reading as follows:

Resolved, That further prosecution of said proceedings and of the appeal, or of any step in such proceedings, be and the same is hereby abandoned and stopped, and the attorney who has appeared for this board in such proceedings, is hereby directed to take no further steps, and to do no other act in such matters.”

The board directed that a certified copy of such resolution be served upon the attorney for the board of street commissioners, and also that the counsel for the Gas Company and the receiver be notified of the same.

The counsel for the respondents in this appeal, the Saratoga Gas & Electric Light Company, and Byron J. Town, receiver of Saratoga Springs, present the preamble and resolution of the board of street commissioners, together with an affidavit as to the status of the case, to this court, and ask that the appeal be dismissed. The counsel for the board of street commissioners oppose such motion, and ask that the appeal be proceeded with.

The adoption of the resolution is not denied.

It is not claimed that there is any fraud or collusion between the parties in relation to the matter.

As a general rule it is a matter of right that a party who has commenced a litigation may discontinue it, unless substantial rights of the other parties have accrued and injustice will be dorie to them by a discontinuance. Matter of Butler, 101 N. Y., 307; Winans v. Winans, 124 id., 140; 34 St. Rep., 850.

In the case last cited, it was held that an application to discontinue was addressed to the legal, not the arbitrary discretion of the court. But in that particular case it was held that the public must be regarded as a party, and that in the public interest a discontinuance might be refused.

In the case at bar the respondents to the appeal are not only willing, but ask, that the appeal be dismissed, so that we have all the parties to the record uniting; there is no claim that the rights of any persons not parties to the record will be affected, and it is not an action or proceeding like Winans v. Winans, where the public can be considered a party.

The fact that the attorney for the appellant opposes the dismissal of the appeal, in the absence of any claim of fraud or collusion or lien upon the matter in controversy, is of no consequence. Roberts v. Doty, 31 Hun, 128; Root v. Van Duzen, 32 id., 63.

This is not a case where the attorney is in fact a party in interest, where he has a lien upon the claim, and where there has been a collusive settlement in fraud of his rights, and in the absence of any such facts it seems to me that it would be very unseemly for the court to refuse, at the request of an attorney, to grant the desire of all the parties to a contention that the litigation be settled.

The purpose of courts is to settle contentions and controversies, not continue them, and they will aid parties, not embarrass them, in making amicable adjustments of their difference.

The motion to dismiss the appeal is granted. No costs having been asked, none are allowed.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    The People ex rel. The Hamilton Park Company v. Edward Wemple, late Comptroller, et al.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Taxes — Sale—Cancellation.
    . Chapter 217, Laws of 1891, confers upon the owners of land sold for taxes the power and right to apply to the comptroller to cancel a tax sale.
    2. Same.
    Certified searches of title, verified by affidavit, presented to and filed with the comptroller by the owners of land sold for_ taxes upon application for cancellation of the sales, are competent evidence of the facts which they contain.
    This is a writ of certiorari, brought for the purpose of reviewing the action of the late comptroller of the state of New York, in canceling three several tax sales, and the certificates and deeds issued and made in pursuance thereof under which the relator claims title to a large tract of land in township 36, in Hamilton county.

      The writ is directed to Frank Campbell, the successor of Wemple, and the present comptroller of the state.

      Charles J. Hardy (Esek Cowen, of counsel), for relator; Stedman, Thompson & Andrews (Arthur L. Andrews, of counsel), for resp’t.
   Mayham, P. J.

The comptroller, in the year 1877, sold for unpaid taxes accruing from 1867 to 1870 inclusive, in township No. 36, in Hamilton county, 17,245 acres of land, more or less, being all that remained of the township after deducting certain exceptions as described in the certificates of sale, and by his deed thereafter made, dated January 29, 1884, conveyed the same to Charles W. Durant

The comptroller also, in 1881, sold for unpaid taxes of 1871 to 1876 inclusive, in the same township 20, 954 acres of land, more or less, being the land not under water of all that remained of that township after making certain exceptions described in the certificate of sale; and on the 29th day of January, 1884, gave his deed as comptroller to Howard A. Durant for the same.

In 1885 the comptroller sold for unpaid taxes of 1877 to 1882 inclusive the same lands that were sold by him in 1881 in that township, and executed therefor a comptroller’s deed, dated April 9, 1889, to Howard M. Durant.

The return shows that the relator succeeded to the title acquired by Charles W. and Howard M. Durant, after the conveyances to them by the comptroller, but at what precise time the record on this certiorari does not disclose.

On December 9, 1885, the Adirondack R. R. Co. applied to the comptroller to cancel the tax sales of 1877, 1881 and 1885, on the ground that they covered property belonging to the company; and which, under the laws of the state, were exempt from taxation. On the application, the comptroller held that the former owner of the land is not a proper party to apply to the comptroller to cancel a tax sale, and denied the application. And his decision was dated June 23, 1888.

On the 27th of December, 1889, an application was made by Janet' L. Durant, Edward L. Molinoux and the legal representative of the Adirondack Eailway Co., to the comptroller, to cancel the tax sales for the year 1885. That application was made on the ground that the taxes for the year for which it was made were not extended by the board of supervisors of the county, but by the individual supervisor of the town.

On the 17th of November, 1891, an application was filed in the office of the comptroller by the Adirondack Eailway Co. and certain of its grantees, asking for a rehearing of the application filed December 30, 1885.

This application was opposed by the relator, but was, on the 30th of December, 1891, granted by the comptroller by the following order:

“ State of New York,
“ Comptroller’s Office,
“Albany, Dec. 30, 1891.
“ It appearing to my satisfaction that the lands described as Hamilton county, Totten & Crossfield’s purchase, Township 36, N. W. corner, 1,000 a., S. E. corner, 2,000 a., during all of each of the years, 1867 to 1882, inclusive, belonged to the Adirondack Company, its assigns or successors, and that said lands, pursuant to the provisions of chapter 236, Laws of 1863, and amendatory and subsequent acts, were then exempt from taxation.
“ And it further appearing to my satisfaction that the board of supervisors of Hamilton county, in 1867 to 1882, inclusive, failed to extend any taxes on the assessment rolls of the Town of Long Lake, the cancellation of 1877, 1881 and 1885 tax sales of said lands, as well as of the part of said township subject thereto, in accordance with the requirements of chapter 217, Laws of 1891, is hereby ordered.
“ Edward Wemple,
Comptroller.”

The relator, by this writ, seeks to review this determination of the comptroller; and insists that that officer wholly misconstrued the effect of chapter 217 of the Laws of 1891, under which he assumes to act in vacating these tax sales.

The principal questions, or, at least, the first question, presented for consideration on this certiorari is, whether chapter 217 of the Laws of 1891 confers upon the owners of land sold for taxes the power and right to apply to the comptroller to cancel a tax sale.

Prior to the enactment of that chapter, it had been held by the court of appeals in the' case of People ex rel. Wright v. Chapin, Comptroller, 104 N. Y., 369; 6 St. Rep., 837, that the owner of the land sold for taxes by the comptroller was not permitted to test the validity of the sale by an application to that officer to set aside the sale. In that case the court uses the following language, in the discussion of this question: “ The owner of the land is not a party to the proceedings, nor can he be permitted in this way to-test the validity of the sale or tax. In such a controversy the purchaser would have an interest and right to its protection in the courts by the usual course of legal prooceedings.

“ The statute contains no intimation of a legislative purpose to deprive him of that right. It gives no process to bring him in; confers no power to compel witnesses. In short, it creates no court, provides for a single transaction to which the comptroller and purchasers are the only parties.”

Acting upon this decision the comptroller, on the 23d of January, 1888, in disposing of an application of the Adirondack Railway Company for cancellation of certain tax sales of lands in township 36, Hamilton county, used this language : “ After careful consideration of the matter, I think the application must be denied under the authority of People ex rel. Wright v. Chapin, Comptroller, 104 N. Y., 369—372; 6 St. Rep., 837. In that case the court of appeals held that the former owner is not the proper party to an application to the comptroller to cancel a tax sale, and has no right, and would not be permitted in any way to test the validity of the sale;” holding that the authority conferred upon the comptroller to test the validity of tax sales was for the benefit of the purchaser bn such sale, and concerned no one but the state, the purchaser, and the town or county from which the unpaid tax was returned.

It would thus seem that the law upon that subject was authoritively settled,■, until the decision of the People v. Turner, 117 N. Y., 237; 27 St. Rep., 158, which again seemed to involve the question in doubt, the court, after discussing the constitutional requirements of notice of the time and place at which the taxpayer may be heard before his property can be taken upon tax assessments and tax sales, Ruger, Oh. J., uses this language: But more than this, after the tax has been returned to the comptroller, the taxpayer has still the right, both before and after a sale of his property, to appear before that officer and make proof of any illegality in the tax levy, and demand that such tax and any sale made thereon shall be cancelled by him,” citing §§ 83 and 84, of Laws of 1855.

“And finally, the act of 1885 itself provides for the exercise of the right of the comptroller to cancel taxes and sales illegally made, when the taxes have been legally paid, or when the town or ward had no legal right to assess the land.

These rights were not only open to the taxpayer to exercise at any time previous to the act of 1885, but the right of all persons to exercise them was also preserved in all cases for six months after the passage of that act.”

This case was decided in November, 1889, and before the enactment of chapter 217 of the Laws of 1891, and it is insisted by the comptroller that this latter act was passed in part to relieve the question from the confusion in which, by the two decisions from which we have quoted, it was apparently involved.

Chapter 217 of the Laws of 1891 amends § 2 of chapter 427 of the Laws of 1855, so as to read as follows: “The provisions, of this act are hereby made applicable to all the counties of this, state, except the counties of Cattaraugus and Chautauqua, but shall not affect any action, proceeding or application pending at the time of its passage, nor any action that shall be begun, proceedings taken, or application duly made within six months thereafter, for the purpose of vacating any tax sale, or any conveyance, or certificate of sale made thereunder.

“All applications heretofore, or hereafter made to the comptroller, for the cancellation of any tax sale, by any person interested in the event thereof, shall be heard and determined by him and his-determination shall be subject to review by certiorari or otherwise.”

The whole question upon this branch of the case is as to the effect to be given to the words “ interested in the event thereof,"' in the above quoted section.

If that language can be construed as broad enough to embrace all persons interested in the land, then the comptroller was clearly authorized to entertain the application of the original owner to have the tax sale set aside, so that such owner might be reinstated in the land of which by such sale he was deprived.

If on the other hand these words only related to the event of the assessment and sale, without reference to the title to be affected by it, then within the case of Wright v, Chapin, supra, the only persons interested must be held to be the purchaser, the town, and the state through the comptroller, and the original owner would still be within the disabilities indicated by that case.

But was the original owner of the land sold under a tax sale interested in the event, either of the sale or of the proceeding to set aside or cancel the sale ? I think he was, and as this language under discussion was not in the Laws of 1855, which are amended by the Laws of 1891, I think it may be fairly inferred that the legislative intent in the enactment of this amendment was to allow the original owner, as a person interested in the event, to apply for the cancellation of a tax sale of his lands. Clearly the event of a sale and conveyance of the title of the original owner of land would affect his interest

His title would be clouded by an apparent government sale, and while it might not be such a cloud as could be removed by action if any defect could be found in the proceedings when the purchaser sought to enforce his title, yet the owner could not be said to be other than interested in the event.

If we are right in this conclusion, then the original owner had a right to apply under chap. 217 of the Laws of 1891, for a cancellation of this sale, unless the rights of such owner were barred, or in some way waived or lost

This view is strengthened from the fact that we are asked in this proceeding to review by certiorari, given by the same chapter and section, the acts of the comptroller.

As the comptroller assumed to cancel this tax sale under the provisions of chap. 217 of the Laws of 1891, it is clear that he regarded the law under which he acted in his order of June 23, 1888, as changed by its provisions.

There is great force in the contention of the learned counsel for relator, that in this proceeding the purchaser of the land under the tax sale is divested of his title, against his will, without a day in court, and is thus deprived of his opportunity of defending his title.

But in purchasing under a tax sale, he takes the qualified title subject to the power of the comptroller to cancel such sale on his ascertaining that the tax for which the sale was made was invalid, or illegally, or improperly, imposed or had been duly paid. It seems to follow, therefore, that the title of the relator, acquired under this special statutory proceeding in derogation of the common law, by which the owner is sought to be divested of his title, is, by the very statute by which the authority to sell lands for unpaid taxes, by the comptroller, subject to be defeated by the comptroller, under whose authority it was made, when he, who is the statutory tribunal to pass upon that question,, shall determine that the tax was illegally assessed, or has been paid, and the purchaser under such sale takes subject to that contingency. But the learned counsel for the relator insists that if it be held that the comptroller had a right to entertain the application of the original owner, then this proceeding brings before this court the question of the sufficiency of the. evidence upon which he acted in the cancellation of the tax sales of 1877, 1881 and 1885.

This is in the nature of a demurrer to the sufficiency of the legal proof before the comptroller to uphold this order as matter of law; and while the court on certiorari will not pass upon disputed questions of fact, it will look into the return, to see if the final conclusion of the officer, or tribunal, whose decision is under review, is justified by the proofs. People v. Board of Police, 39 N.Y., 506; People v. Board of Assessors of Albany, 40 id., 154; People v. Eddy, 57 Barb., 593

As disputed questions of fact cannot be litigated in this proceeding, we are only required to look through the record to ascertain whether there is any evidence before the comptroller from which the conclusion can be reached that these tax sales were illegal, and void, for want of jurisdiction in the person or persons by whom the tax was assessed and levied by the board of supervisors of Hamilton county against these lands.

It is objected that there was not sufficient evidence before the comptroller, when he cancelled the sales of 1877 and 1881, that the lands were at the time of the assessment owned by the Adirondack Railway Company, and were exempt from taxation.

If we are to take the certified searches of title presented to, and filed with the comptroller on the application of the Adirondack R. R. Co. for the cancellation of these sales as competent evidence to be considered by him on that application, his conclusion that that corporation had title to these lands is fully sustained. But it is insisted by the relator that there is no statute making such certified searches evidence in these proceedings, and hence that they were not competent evidence of the facts which they contain, and that the comptroller could act only upon the conveyances themselves, and that as they are not returned the return contains no legal evidence of the title in the Railway Co.

The practice of receiving proof by affidavit by the comptroller in proceedings of the character which would not be competent in a common-law action, seems to have obtained in proceedings of this character, and have received judicial sanction.

In the People ex rel Ostrander, 105 N. Y., 309, 7 St. Rep., 209, which was a proceeding before the comptroller to cancel a tax sale, the comptroller declined to act upon proof by affidavit and the court of appeals upheld a mandamus to compel the comptroller to act upon such proof.

In the case at bar the correctness of the abstracts of the deed and records referred to in the return were verified by the clerk, in whose custody they were found, and were also verified by the affidavit of Joseph M. Lawson. It is true that this affidavit as to the abstract being a full and correct abstract of the title of the railway company is on information and belief, but the correctness of the abstract given is positively verified in that affidavit, and the completeness of the search being certified by the clerk, within the principle of the decision of People ex rel. Ostrander, supra, that certificate may be treated as an affidavit, then we see no defect-in the proof upon which the comptroller assumed to act

It is quite true that this kind of proof would not be competent in an action of ejectment between the relator and the railway company. Handley v. Greene, 15 Barb., 601; Baker v. Kingsland, 10 Paige, 366; Lansing v. Russell, 3 Barb. Ch., 325. But, as we have seen, the courts have sanctioned a different rule of evidence in this class of cases.

But, it is further urged by the relator that there is no evidence before the comptroller that the road was completed as required by chap. 236 of the Laws of 1863, so as to give its land immunity from taxation.

Upon this subject the comptroller, it appears, relied upon the state engineer’s report of railroads for 1878, upon the faith of which the United States bonds deposited with the comptroller had been surrendered.

It is true that the engineer’s report is not set out in haec verba, but the year, volume, and page being given, I think that a sufficient compliance with the requirements of the writ as to the return of evidence upon which he acted in making the order. Again, the comptroller refers to the opinion of the attorney-general upon that subject, in which that officer officially advises the comptroller, in answer to a question, as follows: “I think the evidence is sufficient and satisfactory.”

'As it had been officially determined by the attorney-general and a former comptroller that the act had been complied with by the railway company so as to exempt it from taxation, it would seem that the comptroller in making the order of cancellation in this case could have relied upon such official acts.

If then the comptroller was right in assuming from the evidence that the railway company had immunity from taxation under the act of 1863, and the various amendatory acts thereto, then it must follow that the board of supervisors had not power to levy a tax upon or against such lands, and their acts in doing so were cor am, nsnjudice and void. It was also established by proof, before the comptroller, that the tax on which the sale of 1885 was made was not extended by, or under, the direction of the board of supervisors, but by each individual supervisor after the final adjournment of the board. Such an act would be clearly unauthorized and would be a clear violation of duty for which the tax would be void.

But it is also insisted 'by relator that the proceedings were clearly barred, and every error, omission and defect in these tax sales were clearly cured by the provisions of chap. 445 of Laws of 1885.

By that act the comptroller’s certificate, in four years after its issue, and after the expiration of two years from the delivery of the comptroller’s deed, and six months after the passage of the act, is presumptively conclusive. If the defects complained of were mere irregularities, or informalities in levying these taxes, by an officer or board having jurisdiction and authority to impose the tax, then within the letter and spirit of the act of 1885 this application would clearly have been barred by lapse of time between the time of sale to the relator, or its grantor, and that of making this application, unless the application could be treated as pending at the time of the passage of the act of 1885, or the amendment of 1891, and thus come within the saving clause which exempts pending actions and proceedings from the application of these acts.

But the view we take of this proceeding does not make it material for us to consider whether this order was made as the renewal of a motion which had been denied in 1888, or is regarded as an original application.

The defects in the tax sale in this case, for which the comptroller set it aside, related to the jurisdiction of the supervisors to impose a tax upon lands exempt from taxation by statute from 1867 to 1882 inclusive, and the failure of the supervisors to extend the tax during the same time and that by reason thereof the supervisors, and taxing officers, never had jurisdiction to impose the tax.

The sale was, therefore, void for want of jurisdiction, and did not, therefore, come within the limitation prescribed by chapter 448 of the Laws of 1885. In Ensign v. Barse, 107 N. Y., 329; 12 St. Rep., 39, the court in this class of proceedings recognize a distinction between a case of mere irregularity, and one of want of jurisdiction. The irregularity is cured by the lapse of time, and the title vests in the purchaser after the period fixed by the statute.

But in case of absolute want of jurisdiction, the rights of the owner by a void sale are not disturbed, and this doctrine would seem to be elementary. In Cromwell v. MacLean, 123 N.Y., 474; 34 St. Rep., 85, Peckham, J., says: “ If the proceedings of the taxing power have been so fatally defective, on account of a failure to comply with the requirements of the statute, that no title to the property of the tax-payer has passed to the purchaser at the tax sale, I do not think there is any correct principle upon which can be based the claim that the tax-payer, nevertheless, holds his property, from that time on, at the mercy of the legislature, or subject to its power to validate and give life and effect to the otherwise void sale.” The case of Joslyn v. Rockwell 128 N. Y., 334; 40 St. Rep., 274, is substantially to the same effect

We are, therefore, of the opinion that the order of the comptroller must be confirmed, and the writ of certiorari quashed, with fifty dollars costs and printing disbursements to the defendants.

Putnam and Herrick, JJ., concur.