author: Andrews, J.

text:
    Robert Croasdale, Resp’t, v. Daniel M. Lanigan, App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    Easement—Lateral support op land—License, when revocarle.
    Plaintiff and defendant were adjoining owners. In grading his land for building, defendant removed soil along plaintiff’s line to a depth of several feet, and negotiations were opened as to the construction of a retaining wall. Defendant refused to construct it, but finally wrote to plaintiff that he had decided to give him the two feet he bad asked to build his wall on. The plaintiff built the wall of flat ordinary building stone, not hewn, and without mortar or cement, ninety feet long, two feet in width and four feet high, but defendant upon learning how -it was constructed notified, plaintiff that he had not agreed to give a deed, and as the wall was not built according to the understanding he intended to tear it down. Held,. that defendant had merely given a paroi license, which was revocable at. his option, and he could not be restrained from tearing down the wall.

      Appeal from judgment of the supreme court, general term, fourth department, affirming judgment entered at Onondaga special term, restraining the defendant from taking down or interfering with a retaining wall, built by plaintiff between the premises of. plaintiff and defendant.

      Lawrence T. Jones, for app’lt; M. M. Waters, for resp’t.

       Reversing 36 St. Rep., 575.

   Andrews, J.

This case presents a question of importance' from the principle involved, although the particular interest, affected by the decision is not large.

The action was brought to obtain equitable relief by injunction, to restrain the defendant from tearing down a stone wall erected on the defendant’s land, by the plaintiff, under an alleged paroi license from the defendant, and in the'erection of which the-plaintiff expended in labor and materials a sum exceeding $100. The parties are the owners of adjoining lots fronting upon a public street. The plaintiff’s lot is west of the lot of the defendant. The land in its natural state descended toward the east. In 1886-the plaintiff graded his lot and in so doing raised an embankment several feet high along his eastern line, adjacent to the-lot of the defendant, and erected a house on his lot In 188T the defendant graded his lot, and in so doing excavated the earth up to his west line, adjacent to the embankment on the plaintiff’s lot, to the depth of four or more feet, thereby removing" the natural support to the lot of the plaintiff as it was in its original state. Before the defendant had completed, his excavation the parties had an interview and the question of the support of the plaintiff’s embankment arose. The plaintiff claimed that the defendant was bound to build a wall where his excavation was. The defendant denied his obligation to do so and referred to the-fact that the plaintiff had raised his land several feet higher than it was in its natural state. The plaintiff wanted the defendant to-sell him two feet of his land to build a wall upon, which the defendant declined to do.

Both parties agree that the wall was spoken of. The plaintiff' testified that nothing was said between them as to what kind of a wall the plaintiff would build, nor as to its height, dimensions or quality. The defendant, on the other hand, testified that the plaintiff stated he would build a wall laid up in mortar, pointed on the side facing the defendant’s (proposed) house, and cement it on top with Portland cement. Some days after the interview, and on the 13th day of April, 1887, the defendant addressed a letter to the plaintiff, in which, after referring to their previous interview, he said: “ While perfectly satisfied that I am justified in grading my lot as far as I have done, and that if at any time your embankment should topple over on my land, that I could claim damages, yet perhaps I was a little hasty and somewhat unreasonable with you the other night, and although I came away fully determined to stand on my rights, and keep every inch of ground that belonged to me, since then I have thought the matter over seriously, put myself in your place, so to speak, and decided to give you two feet asked for to build your wall on.”

The plaintiff on the same day replied in writing, saying: I will be glad to accept your offer in the spirit in which it was given, and thus end a disagreement, etc. I expect to go to work immediately to build the wall, and will go as far into my bank as is consistent with its safety. I will also modify as much as I can the grade of the bank along the side and the front.” The plaintiff thereupon proceeded to build a wall on the defendant’s land, the building of which occupied four or five days. He first made a contract with a mason to build a mortared wall, and lime and sand were drawn upon the place to be used therefor. But for some reason he changed his mind, and he built the wall of “ flat ordinary building stone, not hewn into shape, and not packed into regular courses, nor dressed at all,” and without mortar or cement. The wall was ninety feet in length, two feet or less in width, and four to six feet high.

It does not appear that the defendant saw the wall during the course of its construction, except that he was upon the lot on one occasion when the foundation was being laid, nor does it appear that he knew that the wall was to be laid up loose, or at any time consented to the erection of such a wall as was constructed. Within two weeks after the wall was completed he notified the attorney for the plaintiff, who, at the request of his client, had written him demanding a deed of the two feet, that he had not agreed to give a deed, and that the wall was not built according to the understanding, and that he intended to tear it down.

This case was tried and decided upon the theory that the plaintiff had a license from the defendant to build the wall on his land, which when executed became in equity irrevocable. It was riot claimed on the trial, nor is it now claimed, that there was any contract on the part of the defendant to sell the land occupied by the wall to the plaintiff, which by reason of part performance equity will enforce. The claim and the finding is that the license to enter upon the defendant’s land, when acted upon by the plaintiff, conferred upon him a right in equity in the nature of an easement to maintain the wall on the defendant’s lot. If this claim is well founded, there has been created, without deed and in violation of the statute of frauds, an interest in the plaintiff and his assigns in the land of the defendant, impairing the absolute'title which he theretofore enjoyed, and subjecting his land to a servitude in favor of the adjacent property. It is quite immaterial in 2-esult that this intei-est claimed, if it exists, is equitable and not legal. An incumbrance has been created upon the defendant's lot and his ownership, to the extent of such interest, has bee2i divested.

We are of opinion that this judgment is opposed to the rule of law established in this state. There has been much contrariety of decision in the courts of different states and jurisdictions. But the courts in this state have upheld with great steadiness the general rule that a paroi license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is nevertheless revocable at the option of the licenso2-, and this although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the licensor. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood. It gives security and certainty to titles which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land is clearly defined and well understood and is indisputable. But to change what commenced in a license into an irrevocable right on the ground of equitable estoppel is another and quite a different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed should be observed, than to leave It to the chancellor to construe an executed license as a grant depending upon what in his view may be equity in the special case.

There are several circumstances in the present case which rendu- the enforcement of such a jurisdiction a dangerous precedent The only license claimed is contained in the letter of April 13th. 'The language is: “I have decided to give you the two feet you asked for to build your wall on.” How far the wall was to extend, its character, or how it was to be built, is not stated.

Referring to the previous interview to which the letter alludes, the evidence of the plaintiff of what was said at the interview leaves the whole matter indefinite and uncertain. He testifies that neither the description, dimensions and character of the proposed wall were spoken of. The testimony of the defendant is to the contrary, but perhaps it is to be assumed that the trial judge adopted the testimony of the plaintiff.

Upon the case made by the plaintiff upon the letter and the prior conversations, if it was a case of contract, it is difficult to see how it could be enforced in equity. The cases are decisive that equity will only enforce a paroi contract for an interest in land when the contract is definite and certain in all its parts. The extent of the injury which will be suffered unless equity intervenes is also an element to be considered when its extraordinary jurisdiction is invoked. Here the amount expended by the plaintiff in reliance upon the license was comparatively small. The most reasonable inference is that the plaintiff confided in the good faith of the defendant as his security that the wall would be permitted to remain. It does not appear that anything was said as to the time it should be maintained. It is claimed that the wall was built for the benefit of both parties. This is founded on the assumption that the defendant’s excavation removed the natural support of the plaintiff’s land, and subjected him to liability. But this would not take the case out of the statute nor authorize the interference of equity to enforce the license as a grant in equity. The same element of common benefit is found in the case of Cronkhite v. Cronkhite, 94 N. Y., 323.

The trial judge refused to find the facts as to the effect which would have followed from the defendant’s excavation in case the plaintiff’s land had continued in its natural state. He tried and decided the case on the theory that the license, when executed, became irrevocable. In this, we think, he erred. The cases of Mumford v. Whitney, 15 Wend., 380, and Cronkhite v. Cronkhite, supra, are, we think, decisive of this action.

Judgment reversed, new trial granted, costs to abide event.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Michael J. Finnell, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    Negligence—Railroads—Brakeman.
    Plaintiff, an experienced brakeman and acquainted with the locality, in broad daylight, jumped from the tender on which he was riding and while slowly walking upon a branch track and trying to couple a car to-the tender, caught his foot between two ties where there was no ballasting and was run over and injured. Held, that the fact that defendant had not ballasted the track did not constitute negligence, and plaintiff was guilty of contributory negligence in walking between the tender and the car while the engine was in motion for the purpose of removing the link, the engine being entirely under his control. ^
    Appeal from judgment of the supreme court, general term,, fourth, department, affirming judgment in favor of plaintiff.

      Louis Marshall, for app’lt; Edmund O' Conner, foe resp’t.

       Reversing 36 St. Rep . 1020.

   Earl, J.

In September, 1888, the plaintiff was a brakeman in the service of the defendant, and while attempting to couple a car to the tender of an engine upon a branch' track, one of his feet was caught between two ties and he was run over and. very badly injured; and this action was brought to recover his damages.

While this case appeals very strongly to our sympathies, we are unable to uphold this recovery. The plaintiff was an experienced brakeman and was acquainted with the locality where the accident happened. The branch track was not constructed for the purpose of running trains of cars thereon, but for the purpose of storing cars and making up trains. It was not ballasted like the main track, and at the place of the accident there were some ties between which there was no ballasting whatever. The condition of the track, however, was perfectly visible, as it was broad daylight at the time of the accident. The plaintiff was upon the tender of the engine as it backed from the main track upon the branch. He had entire control of the movements of the engine, and could order it to be stopped at any time by a motion of his hand to the engineer, and thus it was backing upon the branch track under his direction.' As it backed for several hundred feet the condition of the track was plainly visible to him standing upon the brake-beam at the rear of the tender. It backed at the rate of about two miles an hour, about half as fast as a man would ordinarily walk. It became necessary for the plaintiff to draw an iron bolt and take out the link which was in the drawhead of the tender, throw it over the hook which was in the drawhead of the car, and thereafter it was to be replaced in the drawhead of the tender and there fastened by the bolt At a short distance from the car, while the tender was thus being backed, he jumped off the tender into the middle of the track and attempted to remove the link from the drawhead while he was slowly walking back between the tender and the car, and as he was thus walking he claims that his foot caught between two ties, his toe partly under one and his heel against the other, and that it was thus fastened so that he could not withdraw it, and that the wheels of the tender passed over his legs. He claims that the defendant was negligent in not ballasting this branch track so as to make it safe for him to walk thereon and to discharge his duty as brakeman while standing thereon. But we do not understand that railroad tracks are ballasted for the purpose of making them safe for brakemen to walk upon, but for the purpose of making them firm and safe for the passage of trains, and we do not think the defendant neglected any duty it owed the plaintiff in not ballasting the track at. the place where the accident occurred. It is not claimed that there was any trap in the track, or that the track was in any respect defective or dangerous, except in that it was not ballasted. A brakeman is engaged in a business attended with many risks, and it is difficult to see how this recovery can be upheld without casting all the risks of the employment upon the railroad company.

But still further; the plaintiff was clearly guilty of contributory negligence. There was no rule of the company and no emergency that made it necessary for him to walk between the tender and the car while the engine was in motion for the purpose of removing the link. The engine was under his control He could have remained on the tender or on the side of the track until the car and tender were brought near together,, and then he could have stopped the' engine and drawn the link and made the coupling without danger. He knew the condition of the track, as it was before him perfectly visible, and he took the chances of walking upon the track while he was engaged .in withdrawing the link, the engine being in motion; and thus he did an unnecessarily careless thing, which contributed to this most unfortunate accident. This case is singularly like that of Penn. Co. v. Hankey, 93 Ill., 580, and that case is a very precise authority for the conclusion we have reached. This case is unlike that of Plank v. New York Central, etc., R. R. Co., 60 N. Y., 607. There, in the night-time, the plaintiff’s intestate was directed by the conductor of the train to couple some cars on the side track, and while engaged in so doing he stepped into a sluice way or trench across the track about two feet wide and deep, which was walled up with stone on each side. There was a trap left in the roadbed which rendered the track dangerous to any employee of the company who had occasion to be there in the night-time; and there it was very properly held that it was a question of fact for the jury whether the track was an ordinarily reasonable and safe place for the performance of a brakeman’s duties. This is more like the case of Appel v. B., N. Y. & P. R. Co., 111 N. Y., 550; 20 St. Rep., 90, where plaintiff’s intestate, a switchman employed in defendant’s yard in helping to make up and distribute trains, while engaged in his employment caught Ms foot in a “ frog17 which connected two converging tracks and was used to effect the-transfer of cars from one track to the other, and before he could release himself he was run over and killed.

In an action to recover damages for his death, it was claimed that blocks of wood could be placed in the openings of frogs- and thus prevent such accidents. It appeared that the intestate: had been in defendant’s employ for some years and for quite a length of time in and about the yard where the accident happened,, and was acquainted with the frog and knew that it was not blocked; and it was held that the intestate in accepting and continuing in the employment assumed the hazard of all known and. obvious dangers, and that he was chargeable with notice of the difficulty in removing the foot when caught in the frog and of the-danger to be apprehended therefrom; and therefore, that a cause of action was hot made out and a refusal to nonsuit was error. Here in this case it cannot be said that the track was obviously dangerous to a prudent brakeman. The accident was a very unusual one, not likely to occur, and easily guarded against by any brakeman carefully discharging his duties. Knowing the condition of this track, he should not have walked upon it except with, the greatest circumspection. As the engine was entirely under his control he should either have stopped it or had it move so* slowly that no accident could come to him.

We are, therefore, of opinion that the judgment should be reversed and a new trial ordered, costs to abide event

All concur, except Cray, J., not voting.


text:
    Charles A. Breck, Resp’t, v. Frederick A. Ringler, Impl’d, App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    Contract—Saxe of business—Agreement not to engage in same line..
    Defendant sold to plaintiff the entire plant and the good will of the-business of zinc etching and agreed not to engage in the same line of business in any form or manner for five years, and also that for any forfeiture or- non-compliance with the agreement he would pay a sum stated, which was agreed upon as liquidated damages. Subsequently he became engaged in electrotyping and stereotyping and in that business used zinc-etchings manufactured by plaintiff and other persons. Held, that this-was not a violation of the agreement.
    Appeal from judgment of the supreme court, general term,, first department, affirming judgment recovered on the verdict of a jury.

      Henry Daily, Jr., for app’lt; Delano 0. Galvin, for resp’t

       Reversing 36 St. Rep., 617.

   Earl, J.

In March, 1886, the defendant entered into an agreement with the plaintiff whereby he sold to him the Electro Light-Photo Engraving Company plant at 157 and 159 Williams street, New York, consisting of machinery, appliances, fixtures and stock on hand, and every and all appliances used in the business and connected therewith in any manner whatever, together with the-good will of the business, the title and name thereof and the right to do business under the title and name, for the sum of $14,000, to be paid by the plaintiff. He also assigned to the plaintiff the lease of the premises in Williams street where the business was carried on. He further agreed as follows: “ Said Frederick A. Bingler shall not carry on the same line of business, the good will of which is hereby agreed to be sold to the party of the second part, and shall not be employed by or enter into any partnership with any person or persons in carrying on the same line of business in any way or manner whatever for the term of five years from the first day of April, 1886, and for any forfeiture of or noncompliance with this portion of this agreement within said period of time the said Frederick A. Bingler shall pay unto the said party of the second part the sum of $5,000, which is hereby agreed upon as liquidated damages, and shall be due and owing to the party of the second part immediately upon such forfeiture or non-compliance.”

The plaintiff, claiming that the defendant had violated this portion of the agreement, brought this action to recover the stipulated sum of $5,000 as liquidated damages.

What is the precise scope of this agreement ?

(1.) That the defendant will not carry on the same line of business. (2.) That he will not enter into the employment of any person or persons who carry on the same line of business. (3.) That he will not enter into partnership with any person or persons who carry on the same line of business. This is plainly the meaning of the agreement

How, did the defendant violate this agreement ? The particular line of business sold by the defendant to the plaintiff was that of zinc etching, and it is undisputed that he never thereafter carried on that business. He had no machinery or implements, or plant of any kind by which he could make zinc etchings, and he had no workmen engaged in that business. He was - engaged in the business of electrotyping and stereotyping, and in that business used zinc etchings manufactured by other persons; and no claim is made that he did not have the right so to use them. There is no proof that he ever manufactured a single plate of zinc etching; but what he did do in a few instances was to employ others, who were engaged in the business of zinc etching, to manufacture for him some zinc etching plates. Among others he employed the plaintiff to do this, and generally when he was called upon for a zinc etching plate or had occasion to use one in his business, he employed the plaintiff to make it. There were a few instances in which he employed some other person who was engaged in that business to make zinc etching plates for him, and in doing this the plaintiff claims he violated the agreement There is nothing in the agreement which prohibited him, if he wanted a zinc etching plate, or if any friend or customer of his desired one, to procure some one who was in the business to make it for him. He did not agree that no one but the .plaintiff should carry on the business ; nor did he agree not to patronize any one else in that business. All he agreed to do was not to engage in that line of business himself, and not to enter into partnership with any one, or into the employment of any one engaged in it And he did none of these things.

We think it unnecessary to detail the evidence more fully. It is sufficient for us to say that we are unable to find in this record any evidence whatever that the defendant violated the letter or spirit of the agreement he made with the plaintiff.

The judgment should therefore be reversed and a new trial granted, costs to abide event

All concur.


text:
    Frank Leslie, Resp’t, v. George F. Bassett et al., App’lts.

      (Court of Appeals,

      Filed January 20, 1892.)

    Bills and Notes—Accepted draet—Parties.
    Defendants accepted a draft drawn on them by the American Exchange to provide the latter with funds to meet a draft drawn on them by A & Co., and accepted by them as an accommodation to defendants, and said draft was transferred by the Exchange to plaintiff, before maturity, in payment of advance of interest to accrue on an antecedent debt. The goods represented by the draft were ordered by defendants of A & Co., and shipped by the latter in Liverpool to New York, the Exchange delivering the bills of lading by its agent in New York to defendants, on receiving said draft, on the 10th of April. Two days later the Exchange was declared insolvent and a receiver appointed. Held, that neither the Exchange nor the plaintiff as transferee could maintain an action on the draft.
    Appeal from judgment of the New York superior court, general term, affirming a verdict in favor of the plaintiff.

      Joseph A. Shoudy, for app’lts;. Charles M Rushmore, for resp’t.

       Reversing 39 St. Rep., 146.

   Andrews, J.

According to the settled law of this state, as established in Coddington v. Bay, 20 Johns., 637, and reaffirmed in subsequent cases, the plaintiff having taken the draft as security for or in nominal payment of interest to accrue on an antecedent debt, it was subject in her hands to any defenses which would have been available to the defendants in case the draft had not been transferred and the action had been brought by the drawees against the defendants as acceptors. The plaintiff on receiving the draft surrendered no securities, extinguished no liability for the principal or interest of her debt against the Exchange, and the most favorable construction of the transaction in her behalf is that she received the draft as conditional payment of the interest to accrue on the loan. It cannot be doubted that, in case the draft was not paid, she would have recourse on her original obligation against the Exchange to recover the interest for which the draft was taken in nominal payment Se Phoenix Ins. Co. v. Church, 81 N. Y., 218, and cases cited.

The plaintiff stands upon the right of the Exchange, and the right of the latter to recover if it still held the-draft and had' brought the action is, in this case, a test of the plaintiff’s rights. The real consideration of the draft in suit was the obligation assumed by the Exchange to accept and pay the drafts of Alcock & Co., drawn upon it for goods purchased by Bassett & Co. from Alcock & Co. Bassett & Co. desired credit for purchases to be made by the firm from Alcock & Co. The Exchange agreed with Bassett & Co. to accept the drafts by Alcock & Co. upon its London house at ninety days, drawn for goods sold by Alcock & Co. to Bassett & Co., of New York. In order to put the Exchange in funds to meet its acceptances of the drafts of Alcock & Co., Bassett & Co. agreed to accept drafts drawn by the Exchange upon Bassett & Co. for equivalent amounts payable in New York, to mature twenty days before the drafts which it should accept drawn by Alcock & Co. The control which was retained by the Exchange over the goods was intended as additional security for its liability on its acceptances.

The Exchange was in no real sense the vendor of the goods. The goods represented by the draft in question were ordered by Bassett & Co. from Alcock & Co., were sent by the latter firm to the agent of Bassett & Co. in Liverpool, and were shipped to New , York under bills of lading running in the name of Bassett & Co., which were attached to the draft drawn by Alcock & Co. upon the,Exchange. , The possession by the Exchange of the bills of lading enabled it to control the delivery of the goods in New York, and on arrival there the bills of lading were delivered to Bassett & Co. by the New York agent of the Exchange on receiving the draft in suit, together with a banker’s trust receipt to secure the application of the proceeds of the goods to the payment of the draft. Bassett & Co. have at all times, and are now, liable as vendees of the goods to Alcock & Co.

There was undoubtedly a good consideration for the draft in question when it was drawn. But if the consideration has failed, the Exchange could not enforce the draft, nor can the plaintiff, who has succeeded to its rights, and stands in its shoes.

The evidence shows that the draft was transferred by the Exchange to the plaintiff on the 9th or 10th of April, 1888, within one or two days after its date. On the 12th of April the Exchange was declared insolvent and a receiver was appointed. The evidence tends to show that it is hopelessly bankrupt Its debts are unpaid. The plaintiff has received not to exceed $7,000 or $8,000 on her loan of $50,000, and this sum has not been realized out of the assets of the Exchange, but out of individual securities of Grillig, assigned by him to the plaintiff.

Bassett & Co., as has been sáid, are still liable to Alcock & Co. for the price of the goods, and if liable on the draft in suit will be compelled to pay for the goods twice over, leaving them as their only recourse a worthless claim against a bankrupt concern.

Under the circumstances disclosed by the evidence we are of opinion that neither the Exchange nor its successor could maintain an action on the draft, and that the plaintiff as transferee is in no better position.

We deem it unnecessary to consider whether the transfer of the draft to apply upon an antecedent debt of the plaintiff against the Exchange was a wrongful diversion of the draft from the purpose for which it was to be used. It is sufficient that the consideration has failed, and this constitutes a good defense to the action.

The court therefore erred in directing a verdict for the plaintiff, and for this error there should be a reversal of the judgment.

Judgment reversed and new trial granted, costs to abide event

All concur.


author: Bradley, J.

text:
    The People, Resp’ts, v. Stanley H. Lowndes, App’lt.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)
    Criminal law—Unlawfully planting oysters—Penal Code, § 441.
    An indictment for an offense under Penal Code, § 441, is defective where it merely charges the planting of oysters by a non-resident without the consent of the owners of the waters or shore, and omits the subsequent words of the statute “on his own account or for his own benefit, or the benefit of a non-resident employer.”
    Appeal from judgment entered upon the order of the general term of the supreme court in the second judicial department, affirming judgment of the court of sessions of the county of Suffolk.

      James 0. Carter and Martin J. Keogh,, for app’lt; Charles B. Street and N. S. Aclclerly, for resp’ts.

       Reversing 30 St. Rep., 168.

   Bradley, J.

The purpose of the indictment, against the defendant was to charge him with the violation of the statute which provides that “ A person who, not being at the time an actual inhabitant and resident of this state, plants oysters in the waters of this state, without the consent of the owner of the same, or of the shore, or gathers oysters or other shell fish from their beds of natural growth, in any such waters on his own account or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor, punishable by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars, or both.” And the indictment was that, “ The said Stanley H. Lowndes, then not being an actual inhabitant and resident of the state of New York, at the town of Huntington in the county of Suffolk aforesaid, on the 14th day of July, 1888, willfully and wrongfully planted oysters in the waters of Huntington Bay in said town and county without the consent of the owners of the same, to wit: the board of trustees of the town of Huntington, against the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.” The defendant demurred to the indictment on the ground that it failed to state facts 'sufficient to constitute an offense against the criminal law. The demurrer was overruled and exception taken. The defendant thereupon entered his plea of not guilty. And the trial resulted in his conviction.

It appeared by the evidence that in July, 1888, the defendant was engaged in planting oysters in Huntington Bay ; that he was then a resident of the state of Connecticut; and that he was doing his work as the employe of his father, John Lowndes, also a resident of that state, who twenty years before had staked out the grounds and buoyed them, off at the place in question in the bay, and thereafter had been engaged in planting natural oysters and gathering the cultivated oysters there.

In the view of the trial court the only question of fact was whether the place where the oysters were planted by the defendant was within the town of Huntington; and that was dependent upon the northern boundary of the royal patent from the crown made by Richard Nieholls, Governor General, etc., November 30, 1666, to the freeholders and inhabitants of the town of Huntington, confirmed by the charter of Thomas Dongan, captain general and governor in chief of New York, etc., August 2, 1688, and by Benjamin Fletcher, captain general and governor in chief, etc., October 5, 1694. These colonial patents or grants bounded tire land embraced within them on the north by the Sound, that is, what is known as Long Island Sound. The bay was an open one widening to the north; and it is claimed on the part of the defense that the bay is within the Sound; and that the determination by the court that Northport bay was within the limits of the royal patent has no essential application here because that was a land-locked harbor. Brookhaven v. Strong, 60 N. Y., 72; Robins v. Ackerly, 91 id., 98. If the bans in quo was not within the colonial patent or grant it was the property of the state, and passed to the trustees of the town of Huntington by the legislative act of cession of May preceding the time of the alleged offense. Laws 1888, chap. 279. The view taken of the case renders it unnecessary to consider the question of the northern boundary of the-premises embraced in the patent, or the effect upon the rights of John Lowndes of the act of cession of 1888. Nor is it necessary to inquire whether any other question of fact bearing upon the intent of the defendant should have been submitted to the jury, as urged by the defendant’s counsel. The case may be disposed of upon the exception taken to the ruling upon the demurrer.

The statute was passed with the view to discrimination between those persons who were and those who were not residents of the state and in favor of the former to the exclusion of the latter for the purpose of planting and gathering oysters in its waters. This, to that extent, is a lawful exercise of legislative power over the common property of the citizens of the state. McCready v. Virginia, 94 U. S., 391.

The statute created two offenses. One for planting oysters in the waters of the state, and the other for gathering oysters and other shell fish from their natural beds in any such waters. The words “ without the consent of the owner of the same or of the shore,” include the owners, whoever they may be, and are applied to the person planting who is not then an actual inhabitant or resident of the state. If this is all that is essential to the offense and all that is made requisite by the statute the indictment was sufficient.

But it is quite evident that such is not the construction intended or to which the statute is entitled. The subsequent words, “ on his own account or for his own benefit, or the benefit of a nonresident employer,” are applicable alike to both offenses. It may be that a different legislative intent may have been applied to the interpretation of the section, if reference to a person not being an inhabitant and resident of the state had by express repetition been made applicable to the offense of gathering oysters, etc., but the words “on his own account,” etc., relate back to the person first and only mentioned at the opening of the section. And while those words are more closely in position connected with the statement of the second offense than with the other it seems clear that they were intended to be attached and made essential to the offense first mentioned in the section. It is quite difficult to see that it was intended to so discriminate • between the offenses as not to make that of gathering oysters from their natural beds a criminal offense unless done by a non-resident on his own account or for his own benefit or the benefit of a non-resident employer, and not to make those conditions requisite to the offense of planting oysters. The other view of the provisions of the section and that upon which the indictment was framed might lead to the inquiry whether the provisions purporting to create the offense of planting contain all the requisites of a criminal offense. They certainly might be construed to impute a crime to a person not chargeable with the offense. The owner mentioned in the statute refers to the owner of the waters of the state, and this means waters within the state by whomsoever owned. A person not having the title may have the right to plant oysters in such waters. He may take it by license. And he may employ a person not an inhabitant and resident of this state to plant oysters there. And the privilege of a citizen of any one of the United States, no less than that of a citizen of this state, to accept lawful employment and perform service within it has the constitutional guaranty that “ the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” U. S. Const., art. 4, § 2; Slaughter House cases, 16 Wall., 77.

But the construction given to the statute in question renders it unnecessary to pursue further the subject of constitutional guaranty, or to seek to apply it to the present case. And as an essential element of the statutory offense of planting oysters by a non-resident is that it be done on account or for the benefit of the person doing it, or for the benefit of a non-resident employer, the failure to charge that fact in the indictment was a substantial omission. And the rule which requires for its support when challenged that all ingredients essential to the offense be alleged renders the indictment fatally defective. People v. Gates, 13 Wend., 311; People v. Allen, 5 Denio, 76; Eckhardt v. People, 83 N. Y., 462; U. S. v. Carll, 105 U. S., 611.

While the words used in a statute to define a crime need not be strictly pursued in the indictment, words conveying the meaning of those employed by the statute to express the ingredients of the offense may be used. Code Grim. Pro., § 283. Imperfections in matter of form may be disregarded, Id., § 285, but the substance of all that is requisite to the offense must be alleged. Pontius v. People, 82 N. Y., 339; People v. King, 110 id., 418; 18 St. Rep., 353; People v. Clements, 107 N. Y., 205; 11 St. Rep., 384.

The question here is not one of form or particularity of statement of the matters essential to the crime, but of entire failure to allege them in any manner. It is urged that because the two offenses mentioned in § 441 of the Penal Code had separate sources in prior statutes, Laws 1866, chap. 404, § 6; Laws 1879, chap. 87, the provisions should have the construction that they were there severally entitled to. But it may be observed that the provisions of that section of the Laws of 1866 embracing both of the offenses materially differ in structure from those in the statute under consideration. And the other prior statute referred to, amendatory of Laws 1878, chap. 302, had relation only to raking or gathering of oysters or other shell fish by non-residents of the state on their own account and for their own benefit, or on account or for the benefit of non-resident employers, and was not confined to taking them from their beds of natural growth. That statute could not have been effectual to deny to the owner, although a non-resident, the right of taking his oysters from the waters of the state, if he owned any which he had planted there. People v. Hazen, 121 N. Y., 313; 31 St. Rep., 72. In the case last cited the constitutional question was not considered, nor was it necessary to do so for the purpose of the result reached. We fail to find anything in the prior statutes before mentioned to legitimately indicate a legislative intent in support of the construction of the present statute contended for on the part of the prosecution. And the view here taken of its construction leads to the conclusion that the judgment should be reversed and the defendant discharged.

All concur.


author: Landon, J.

text:
    Abel R. Higgins, App’lt, v Abigail McConnell, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    Attachment—May be levied upon interest oe purchaser of land.
    The interest of a defendant under a contract for the purchase of land, upon which he has made partial payments and is in possession, and entitled to a conveyance upon completing his payments, can be levied upon by virtue of an attachment duly issued in an action against him in the supreme court.
    (Haight and Brown, JJ., dissents.)
    Appeal from judgment of the general term, in the fifth judicial department, entered upon an order directing final judgment dismissing the complaint and reversing an interlocutory judgment in favor of the plaintiff entered upon an order of the special term overruling defendant’s demurrer to the complaint.

      J. F. Parkhurst, for app’lt; Hakes, Page & Acker, for resp’t

       Reversing 30 St. Rep., 958.

   Landon, J.

The question presented by the demurrer to the complaint is whether the interest of a defendant under a contract for the purchase of land, upon which he has made partial payments and is in possession, and entitled to a conveyance of the land upon completing his payments, can be levied upon by virtue of an attachment duly issued in- an action against him in the su-. preme court

We think it can. Section 644, Code Civ. Pro., provides that the sheriff must execute the warrant of attachment “ by levying upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff’s demand, with the costs and expenses.” This in terms provides for a levy upon real property, and admits of the distinction between the property itself and an interest in the property, and suggests that the authority to levy upon the real property of the defendant is no authority to levy upon the real property of another in which the defendant has only some interest less than a legal estate. But § 645. was added; it was a new provision, and declared that “The real property which may be levied upon by virtue of a warrant of attachment includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant."

The interest of the defendant under this contract for the purchase of the land comprises the actual possession, the right of possession and the right to acquire the right of property. It is a valuable interest, and is alienable.

The question whether the interest of a person holding a contract for the purchase of land was bound by a judgment and could be sold upon execution, was, prior to the Revised Statutes, the subject of frequent and conflicting decisions. The court of errors in 1819, in Bogert v. Perry, 17 Johns., 351, held that it could not be, but the supreme court subsequently held that it could be, if the holder of the contract was in possession. Jackson v. Scott, 18 Johns., 94; Jackson v. Parker, 9 Cow., 73.

The Revised Statu tes provided that such an interest should not be bound by the docketing of any judgment or decree, nor sold by execution issued thereon. 1 R. S., m. p. 744, § 4. The question, as we learn from the reviser’s notes, was one of public policy, and in order to mitigate the injustice of the rule adopted, the following sections provided that such an interest might be reached by means of an action in the nature of' a creditor’s bill.

These provisions are substantially re-enacted in §§ 1253,1874M5, of the Code of Civil Procedure; the corresponding provisions of the Revised Statutes were repealed by chapter 245, Laws 1880.

Section 1253 provides that: “ The interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment” It is thence argued by the defendant that the interest in question cannot be attached. But the argument is untenable if this section and § 645 are reconcilable, one with the other.

It does not necessarily follow that a provision as to the effect of a judgment and execution, in the absence of an attachment, controls other provisions as to their feffect when aided by an attachment. Section 1370 prescribes the requisites of an execution where a warrant of attachment issued in the action has been levied by the sheriff. Section 708, subd. 2, prescribes the duty of the sheriff to whom such an execution is issued. He does not relevy upon any of the attached property; the execution simply authorizes him to sell it.

There are valid reasons why an attachment should reach the interest of a holder of a contract for the purchase of land. He may be a non-resident and never come within the state so that personal service can be made upon him. In such case the personal judgment which must precede a judgment creditor’s action cannot be obtained. But if his interest can be seized upon .attachment, jurisdiction of that interest can be obtained and it can be disposed of to satisfy the domestic creditor. Code Civ. Pro., § 707. The reasons which withdraw the interest in question from the binding force of a judgment and execution are technical, .•and the relaxation of the rule in the case of attachments seems to ■be in the interest of substantial justice. The letter of § 645 permits this attachment; other provisions show the policy of the law :to be to extend the scope of this remedy; it can scarcely be doubted that when the framers of § -645 employed the words “ any interest in real .property ” to indicate what was attachable, that :this peculiar interest which had engaged the attention of the -courts and legislature was considered; and if we concede that it was not, it would still remain to be held that, if it had been con■sidered, the language of the section would have been different. It was held in Wright v. Douglas, 2 N. Y., 376, in reference to .the provision for the attachment “ of all the estate, real and personal. of such corporation,” that “ the statute in terms applies to an equitable as well as a legal interest inlands.” Section 645 does not appear to be less comprehensive, and we see no reason why we should narrow its scope by construction.

There is a provision in the contract that the vendee will not assign the same without the written consent of the vendors; this provision concedes the alienable quality of the interest and provides by the personal covenant of the vendee against it. Such a ■covenant is not broken where the transfer is by the operation of a judgment. Jackson v. Silvernail, 15 Johns., 278; Jackson v. Corliss, 7 id., 531; Smith v. Putnam, 3 Pick., 221. The defendant has not assigned. Roosevelt v. Hopkins, 33 N. Y., 81.

The judgment of the general .term should be reversed, with ■costs, and the interlocutory judgment of the special term affirmed, with caste of the general term.

All concur, except Haight and Brown, JJ., dissenting.


author: Haight, J.

text:
    James F. Mason et al., Resp’ts, v. George Y. Smith et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    J.. Sale—Duty of vendee upon delivery.
    Upon an executory contract for the sale and delivery of goods it is the duty of the vendee on the arrival of the goods or within a reasonable time thereafter to examine them and determine whether or not they are of the kind and quality ordered, and if found not to comply as to quality and kind to promptly rescind the contract and either return or offer to return the goods to the vendor.
    2. Same—Rescission.
    Writing a letter of complaint in October as to goods shipped in August, and stating that vendee is not satisfied with them and that they would prefer not to accept them even at a ten per cent allowance, etc., does not amount to a rescission of the contract, and where in response to such a letter the vendors write that vendee might return such goods as were not. satisfactory and they would replace them,and a part are returned on October 26, another quantity Oclober 28th and the balance on November 3, with complaint as to their quality .the vendors would be justified in understanding and believing that the goods returned were to be replaced in accordance with their letter.
    (Bradley, J., dissents.)
    Appeal from, a judgment of the general term of the supreme court, third department, affirming a judgment entered upon a verdict directed by the court.

      Arthur R. Robertson, for app’lts ; John-M. Carroll, for resp’ts.

       Affirming 28 St. Rep., 519.

   Haight, J.

This action was brought to recover the contract, price for gloves sold. The plaintiffs are manufacturers and importers of gloves at Johnstown, N. Y. The defendants are retail sellers of gloves and other dry goods in Kansas City, Mo.

On the eighth day of April, 1887, the defendants ordered from the plaintiffs a quantity of gloves of a specified quality and price, thereafter to be imported and delivered. On the 31st day of August, 1887, the gloves were shipped, and received by the defendants on September 17th thereafter. The defendants carefully examined every pair of the gloves so received, and finding some of them defective, on the 6th day of October, 1887, returned two- and one-half dozen to the plaintiffs, with the following letter:

“ Gentlemen :
“We return to you to-day, IT. S. Ex., kid gloves, as per enclosed bill. You will find on examination that they are not perfect, and for this we will ask you to kindly credit our account with amount
“We have, at this late date, examined every pair of this glove and are not at all satisfied with them. Would much rather return same to you than to place them on sale, as they do not open up as we think they should. We should prefer not to accept these even at a 10 per cent allowance.
“ Should have advised you at an earlier date but could not make proper examination sooner. Awaiting your reply, we remain,
“ Yours resp.,
“G. Y. Smith & Co.,
“T. C. S.”

The plaintiffs credited the defendants with the price of the-gloves returned, and on October 22d wrote the defendants acknowledging the receipt of the goods and that the gloves were not of the quality that they should be, and conclude as follows:

“You are at liberty to examine our goods, pick out-the seconds, and all the goods (leaving the matter to your judgment and idea. of what is fair) which are not satisfactory you may return, and we will be glad to send you in exchange A Ho. 1 goods. We wish to do what is right in this matter and trust that in the above proposition you will find proof of the fact.
“ Hoping this will meet your approval and awaiting returns, we are,
“ Yours very truly,
“ Mason, Campbell & Co.”

After the receipt of this letter, the defendants on the 26th of October, 1887, returned 37 7-12 dozen gloves, with the following letter:

Gentlemen :
“ Your favor of the 22d inst received and contents carefully noted. After making another thorough examination of the kid gloves in question, we have decided to return them. This we do to-day by H. S. Ex. We enclose bill and ask you to please credit us with the amount.
“Yours truly,
“ G. Y. Smith & Co.,
“T.C. S.”

On October 28, 1887, the defendants returned another quantity of gloves with the following:

'“ Gentlemen :
“We return to you to-day, U. S. Ex., Ho. 864 2 7-12 dozen M m’s Gloves. These goods are worse than the worst of seconds, and are such that we cannot use. In ordering we gave our order for first quality goods, not seconds, as sent.
“ With these return the Ladies’ Black Piques, and will ask you to kindly credit both lots. We do this very reluctantly, but are compelled to do so, in order to protect both our customers and ourselves.
“Yours resp.,
“ G. Y. Smith & Co.,
“T. C. S.”

On Hovember 3, 1887, the defendants returned the balance of -the gloves remaining unsold, with the following:

“ Gentlemen :
“By to-day’s Exp., we return to you the Ho. 946 kid gloves. We have kept these until now, thinking that we could possibly dispose of them, but we find that they are so entirely unsatisfactory that we think it best to return them now.
“We think that you will plainly see that we are justified in doing this. We hope that you will have no hesitancy in crediting them. Please do so, and greatly oblige,
“ Yours truly,
“G. Y. Smith & Co.,
“T. C. S.”

On the return of these goods the plaintiffs under date of Hovember 10, 1887, forwarded to the defendants other goods of like numbers and quantity of A No. 1 quality in accordance with the proposition embraced in their letter of October 22, 1887, with the following letter:

“ Gentlemen :
“We are in receipt of your favors of October 25th, October 27 th and November 3d, with goods referred to in each respectively.
“We have examined every pair of these goods, and this day, according to agreement, we return to you other goods perfect m every particular, as follows: * * *
“Yours truly, etc.,
“Mason, Campbell & Co.
“D. M.”

The defendants refused to receive these goods and caused them to be returned to the plaintiffs without opening the box contain-, ing them. The plaintiffs refused to receive them on their return and brought this action to recover the purchase price.

The contract for the sale and delivery of the gloves was executory. It became the duty of the defendants on the arrival of the-goods or within a reasonable time thereafter to examine them and. determine whether or not they were of the kind and quality-ordered, and if they were found not to "comply as to quality and kind, to promptly rescind the contract and either return or offer to return the goods to the plaintiffs. Reed v. Randall, 29 N. Y., 358; Gaylord Manufacturing Co. v. Allen, 53 id., 515; The Coplay Iron Company (Limited) v. Pope, 108 id., 232; 13 St. Rep., 480.

As we have seen, the defendants had examined every pair of the-gloves before October 6th. They expressly so state in their letter of' that date. There could consequently be no question of fact for the jury as to whether they had been given a reasonable opportunity to examine, for on that day they had examined and then returned to the plaintiffs such goods as they saw ñt, and they were accepted and the amount thereof credited to the defendants. If the defendants had not desired to keep the other goods they should have-then rescinded the contract and either returned or offered to return them, and in failing to do this they must be deemed to have-elected to retain them under the contract. Beck v. Sheldon, 48 N. Y., 365.

It is true that the defendants in their letter of that date complained as to these goods, and state that they are not satisfied with them; that they would rather return them than to place them on-sale, as the goods do not open up as the defendants think they should, and that they would prefer not to accept them even at a ten per cent allowance. But this does not amount to a rescission of the contract. The most that can be claimed is that it is an invitation for a proposal modifying the terms of the contract. Such, a proposal was incorporated in the plaintiffs’ letter of October 22d-It was, in brief, that the defendants might return such goods as were not satisfactory and they would replace them with A No. 1 goods, and on the receipt of this by the defendants the goods were returned without a word or suggestion that they were not returned. in accordance with the offer made. Under these circumstances we think the plaintiffs were fully justified in understanding and believing that the goods returned were to be replaced by new goods in accordance with their letter; that such a conclusion would be warranted from a fair interpretation of the correspondence referred to. It is apparent-that this construction should prevail, for, as we have already shown, the time in which the defendants had the right to rescind the contract and return the goods under the original contract had passed. They could legitimately do so only under the offer of October 22d.

Stress is laid by the appellants upon their request to “ credit us with the amount ” in their letter of October 26th, but it does not appear to us that this request has any significance or that it gave the plaintiffs notice or led them to understand that the goods were not returned in accordance with their proposal of the 22d. It is the usual practice among dealers of the character of these parties to charge for the goods when shipped, and if returned to credit back, and in case new goods are shipped to again charge for such goods. Such is the way in which their books are ordinarily kept. If, the goods returned were accepted by the seller he would of course credit them upon the account of the purchaser, even though he was to send new goods in their place.

The judgment should be affirmed, with costs.

All concur, except Beadley, J., dissenting, and Landon, J.,, not sitting.

Beadley, J., dissents on the ground that whether or not there was any agreement between the parties which permitted the plaintiffs to send to the defendants and required the latter to accept gloves in place of those returned to the plaintiffs after their letter of October 22, 1887, to the defendants, was a question of fact, which should have been submitted to the jury. And therefore the defendants’ exceptions to the refusal to submit the question to them and to the direction of the verdict were well taken.


author: Follett, Ch. J.

text:
    Emory J. Bishop, Resp’t, v. The Agricultural Insurance Co., App’lt.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1, Insurance (vire)—Waiver of proof of loss.
    Where the parties more than seventy days after the fire enter into a contract in writing to submit the question of the amount of loss to appraisement, it is a waiver of the provisions of the policy that proofs of loss must be furnished within sixty days.
    2. Same.
    Where the general agent and appraiser who called to settle the loss and execute the appraisal agreement said that proofs of loss need not be furnished, as the damages would be soon appraised and settled, and where the local agent also said after the fire that it would be unnecessary to furnish, proofs of loss, the question of waiver is one of fact for the jury.

      3. Same.
    Where the company’s appraiser refuses to agree upon “a disinterested umpire,” the fact that an appraisal has not been made is not a defense to an action upon the policy.
    Appeal from a judgment of the general term of the supreme •court in the fifth judicial department, which affirmed a judgment entered on a verdict.
    October 15, 1887, the plaintiff’s barn and its contents were destroyed by fire, at which time the property was insured by the defendant for $3,100, under a policy known as “ Standard Fire Insurance Policy of the State of New York.”
    October 17th the plaintiff gave personal notice of the loss to Samuel E. Clark, defendant’s local agent who effected the insurance, and requested him to inform the defendant of the fire, which he agreed to do, and immediately did. On the 21st of that month Addice E. Dewey, defendant’s general agent and adjuster, called on the plaintiff pursuant to the notice and had an interview about settling the loss.
    The plaintiff testified, and in this he was not disputed, that the liability of the defendant was not denied, the only controversy being over the value of the property destroyed, which it was agreed should be appraised pursuant to the following provision in the policy: “ In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested, umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall, determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”
    The plaintiff and the defendant, by its general agent and adjuster, on that day entered into a written contract of which the following are the material parts :
    “It is hereby agreed by Emory J. Bishop, of West Barre, of the first part, and the Agricultural Insurance Company, of Water-town, New York, of the second part, that David I. Langworthy, together with Charles H. Headley (with a third person, to be appointed by them before the appraisal, who shall umpire on matters •of difference only), shall appraise and estimate at the actual cash value the damage by fire on the 15th day of October, 1887, to the property belonging to said Emory Bishop as specified herein, which appraisement or estimate by them, or any two of them, in writing, as to the amount of such loss or damage, shall be binding on both parties; it being understood that this appointment is without reference to any other question or matter of difference within the terms and conditions of the insurance, and is of binding effect only as far as regards the actual cash value of or damage to such property,” * * * “ returning said damage in the form of a detailed statement and in accordance with this agreement.”

      The plaintiff selected Charles H. Headley, and the defendant David 1. Langworthy, for appraisers.
    November 4th, Langworthy called on Headley at Medina, a village ten miles from the plaintiff’s residence, for the purpose of first selecting an umpire, and then going to the scene of the fire and appraising the value of the property destroyed. Headley being on that day engaged in a law suit declined' to proceed with the business, but agreed that he would on some day thereafter. Langworthy and defendant’s local agent then called on the plaintiff at his home, and made some investigation into the value of the property destroyed. Nothing further was done until November 28th, when Headley wrote Langwortbv declining to act as an appraiser, and thereupon the latter wrote that fact to the plaintiff and requested the selection of another. December 22d the plaintiff telegraphed Langworthy that he had secured another appraiser and asked when he would make the appraisal. Thereupon Langworthy appointed December 30th, pursuant to which he met the plaintiff at Medina, and Alderson Nixon was selected in the place of Headley, and .his name inserted in the written agreement. Nixon and Langworthy separated on that day without agreeing upon an umpire. Nothing further was done in the matter until January 24th, 1888, when Langworthy inquired of Nixon by letter why he had not heard from him, and suggested that the matter should be closed up. February 6th, 1888, proofs of loss sufficient in form and substance were served on the defendant, but were rejected on the sole ground that they were not served within sixty days after the fire. February 23rd, Langworthy again wrote Nixon suggesting that the appraisal should be closed, but hearing nothing, again wrote on March 12th, insisting on the same thing. April 4th, Langworthy met Nixon at Medina and suggested different persons to act as umpire. On that day Nixon informed Langworthy that he had been directed by the plaintiff not to correspond with him,-and that he should have nothing further to do with making an appraisal.
    April 13, 1888, this action was begun, which resulted in a verdict and judgment for the plaintiff which was affirmed by the general term.

      S. M Mllcins, for resp’t; A. H. Sawyer, for app’lt.

       Affirming 30 St. Rep., 600.

   Follett, Ch. J.

But three of the many issues raised by the pleadings were contested at circuit: (1) Did the defendant unreasonably and in bad faith refuse to agree on an impartial person to act as umpire. (2.) Is the defendant estopped by its conduct from asserting as a defense the fact that plaintiff failed to serve proofs of loss within sixty days. (3) The value of the property destroyed.

The only questions argued in this court arise on the first ancL second of these issues, and are presented by the motion for a non-suit made at the close of the plaintiff’s evidence, renewed at the close of the evidence, by a motion to direct a verdict for the defendant, and bv the exceptions to the charge and refusals to charge. The original agreement naming the appraisers was draft■ed by the general agent of the defendant, was signed by him in behalf of the company, and by the plaintiff on the 21st of October, 1887, and was delivered to the defendant’s agent and taken away by him; December 30th, Langworthy produced the appraisal contract at Medina, erased Headley’s name and inserted Nixon’s in its place.

On this occasion Langworthy named three persons, any one of whom he would accept as umpire, all of whom were unknown to the plaintiff and Nixon, and they were unwilling to accept of either. Nixon selected several persons whom he was willing to accept, but the two appraisers separated without agreeing upon an umpire, and they never reached an agreement Langworthy would not accept of any person selected by Nixon, and Nixon would not of either of the three suggested by Langworthy. On the trial considerable evidence was given tending to show that the persons selected by Langworthy had been frequently employed by insurers as appraisers and umpires, and it was insisted that the defendant through its appraiser Langworthy réfused to agree upon “ a disinterested umpire.’’ If this was true, the fact that an •appraisal had not been made was not a defense to the action. Uhrig v. Williamsburgh Fire Ins. Co., 101 N. Y., 362; 1 St. Rep., 17. This question of fact was submitted to the jury under conservative instructions, and was found for the plaintiff. It cannot be said that there is no evidence in the record which tends to •sustain this branch of the verdict. There was no error in the refusal of the court to charge, in substance, that the defendant was not bound by whatever Langworthy did, or failed to do, in respect Ho the selection of an umpire. Langworthy was the nominee of the defendant and he owed a duty to select an umpire, and if he improperly neglected this duty the consequences cannot be charged to the plaintiff. Under the evidence the court was not required to charge that Langworthv did not represent the defendant in the conduct of the appraisal.

Among other provisions contained in the policy is a clause that the assured shall furnish proofs of loss to the insurer within sixty days after the fire, as is provided in lines 67 to 80, inclusive, in the “Standard Fire Insurance Policy of the state of New York.”

It is also prescribed by the Standard policy: “ This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for, and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required;” and it is now insisted that the defendant not having waived in writing the performance of the stipulation that proofs of loss should be furnished in sixty days, that' no recovery can be had on the policy.

A party to a contract, containing a provision that it shall not be modified or changed except by a writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct; and so the acts of an agent, who possesses the power of the principal, or who has been held out by the principal to possess his power in respect to the provision alleged to have been altered or changed, may also estop his principal. Messelback v. Norman, 122 N. Y., 578; 34 St. Rep., 549; Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y., 500.

December 30, 1887, more than seventy days after the fire, the parties entered into a contract in writing to submit the question of the amount of the loss to appraisement, which was a waiver of the provision in the policy, that proofs of loss must be furnished within sixty days. The evidence warrants the inference that this contract to submit the amount of loss to appraisers was continually in the hands of defendant from the date, October 21st, when first executed, until the time of the trial, and that the negotiations were not unknown to it In addition, the plaintiff and his wife testified, without objection, that when the general agent and appraiser of the defendant called to settle the loss and executed the appraisal agreement, he said that proofs of loss need not be furnished as the damages would be soon appraised and settled. This was denied by the general agent. The plaintiff also testified, without objection, that defendant’s local agent, who issued the policy, also told him, after the fire, that it would be unnecessary to furnish proofs of loss. This the local agent denied, but these issues were submitted to the jury and found for the plaintiff. Under such circumstances, the question whether the defendant had waived the presentation of proofs of loss was properly submitted to the jury as a question of fact.

It may be remarked, in passing, that no defense on the merits was presented to the jury, the payment of the policy being resisted solely on the grounds that an appraisement had not been had, and formal proofs of loss had not been served within the time limited by the policy.

The judgment should be affirmed, with costs.

All concur.


author: Vann, J.

text:
    Joseph Grafton, App’lt, v. William Moir, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    Easement—Eight of wat.
    A deed reserved a “ right of way through and over" a carriage or alleyway, eighteen feet wide, in the rear of the premises, to a stable, so long as the same was occupied as a private stable. Held, that such a reservation covered only the right to a convenient and sufficient mode of ingress and egress. There being no express reservation of light and air, none will be implied. Subject to the above limitation, the grantee may occupy a part of the alleyway by a building, even though it extended over the alleyway so long as a sufficient space was left in width and height for the passage of carriages, loads of hay, etc.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon the decision of the court at special term.

      This action was brought to restrain the defendant from obstructing an alleyway over which the plaintiff had a right to pass in order to reach his stable.
    In 1852, one Davis owned a parcel of land on the corner of Fifth avenue and Thirty-first street in the city of New York, with a frontage of about 112 feet on the former and 150 feet on the latter. After subdividing said parcel into four lots, substantially equal in size, fronting on the avenue, he erected a house and stable on each, and laid out an alleyway about eighteen feet wide, extending from Thirty-first street across the rear of the property so as to afford access to the stables. Thereafter, and on June 1, 1852, he conveyed the corner lot, reserving a right of way over the alley to the stables on the other three lots, and subsequently it was conveyed to the defendant with the same reservation. After this conveyance had been recorded, and on December 31, 1852, said Davis conveyed the third lot from the corner with a right of way over the alley, and subsequently the same was conveyed to the plaintiff. The stables fronting on the alley were each twenty-six feet in front by twenty-two feet in depth, with a cellar, main floor and hay loft. In front of each was a brick, vault, about three feet wide, covered by a grating, and next to each vault was an uncovered and unprotected inclined plane or roadway, extending a little more than three feet from the stable wall out into the alley and descending into the cellar. The alley was paved and was closed on Thirty-first street by an iron gate, fastened to stone posts, which were ten feet and eight inches apart When the gate was open the passage way was about nine feet wide, the rest of the space being occupied by the gate, posts and a fence running from the posts to a building.
    The defendant’s rear building has never been used as a stable, but the other three have been so used, the cellar for stabling horses, the first story as a carriage house and the upper floor for the storage of hay and grain. The stalls for the horses were in . the front part of the cellar facing the areas in the alley, which furnished light and ventilation. The alley was used for the passage of light carriages, as well as for the heavier vehicles that carried in hay, straw and grain and carried out refuse. Furniture was also occasionally drawn in that way and ashes drawn out.
    The defendant has constructed over the alleyway at the rear of his premises a brick building one story high, resting on iron girders that are supported by walls on either side. The gate has been removed and the entrance is now fourteen feet ten inches wide in the clear, where it used to be nine feet. A portion of the space formerly occupied by the vault is used for steps to descend into the cellar, and there is a substantial iron railing around the opening. Outside of the railing the alleyvray is twelve feet five inches wide and at all other points under said structure sixteen feet eight and one-half inches wide. The roadway formerly leading into defendant’s cellar has been removed. The distance from the surface of the alleyway to the bottom of the building over th$ alleyway varies from ten feet seven inches to about eleven feet, the difference depending upon the grade of the pavement beneath, which is lower in. the center and higher at the sides. The doors leading into plaintiff’s stable are fourteen inches lower than the opening over the alleyway under said building.
    The trial court found that “ the carriageway through the defendant’s premises is as convenient in regard to breadth for egress and ingress of vehicles as it was before the defendant made the ■changes ” in question, and that “ it does not appear that the ingress or egress of any vehicles has been in any respect interfered with or rendered less commodious by reason of the alterations made by the defendant over or upon the alleyway.” It was further found that “ it does not appear that any vehicle has ever been driven into the alleyway which could not be conveniently driven under the structure as it now exists; that the alleyway, as it now exists upon the premises of the defendant, has sufficient light and air for all purposes of egress and ingress; that hay and straw are commonly furnished to customers in the city of Hew York in bales, and, as ordinarily loaded upon a single truck, a load of hay or straw could pass under the building erected by the defendant over the alleyway; that it is usual for the sellers of hay or grain' in the city of Hew York to deliver hay and straw at the stables of customers without special charge for delivering, and the seller of feed makes up the loads with reference to the height of the doorway through which his vehicle may have to ■pass; that hay and straw can be conveniently delivered at the stable of the plaintiff in accordance with the usage of business in the city of Hew York without any inconvenience or cost to him by reason of the building constructed over the alleyway by the defendant; that such vehicles as ordinarily go to livery stables and private stables can readily and conveniently pass under an opening ten feet high; that the ingress and egress to and from the plaintiff’s stable are convenient, and the changes made by the defendant have not interfered with the plaintiff’s reasonable use of the alleyway and his convenient access to and egress from his stable.”
    As conclusions of law the court found that the plaintiff has no right to claim that the whole of the carriageway should be left open for his use, but only so much thereof as will not interfere with his access to or egress from the stable to which it is an appurtenance; that he has no right to light or air by means of the alleyway, except such as is necessary to make the access to the premises effectual; that the only easement to which he is entitled is the right of passage, which is preserved in its integrity, and that no right of the plaintiff has been infringed by the erection in question. The complaint was dismissed on the merits, with costs.

      Treadwell Cleveland, for app’lt; Stephen H. Olin, for resp’t.

       Affirming 30 St. Rep., 314.

   Vann, J.

The right of the defendant to erect the building in question depends upon the reservation contained in the deed dated June 1, 1852, by which the original proprietor of the four lots conveyed the first to the defendant’s grantor, and is not at all dependent on the reservation in the later deed, dated December 31, 1852, by which said proprietor conveyed the third lot to the; plaintiff's grantor. The rights of the defendant were defined and fixed by the earlier conveyance, and were not cut down or affected by the later conveyance, to which he was neither party nor privy. The reservation in the deed under which the defendant claims, and which created the easement over the alley so far as it affects, his premises, is in these words:

“Reserving, nevertheless, to the owners and occupants of the-three houses and the three stables on the easterly side of Fifth avenue, next north of the premises above conveyed, the right of way through and over the carriage or alleyway in the rear of the; said above-granted premises to the three stables next north of the' one standing on the rear of the above-granted premises as long as. the said three stables shall be occupied as private stables.”

As the conveyance was in fee, it vested in the grantee and his assigns all the rights of absolute ownership, except as restricted by the reservation, which, being in favor of the grantor, is to be construed most strongly against him. Duryea v. Mayor, etc., 62 N. Y., 592, 597; Borst v. Empie, 5 id., 33, 39; Jackson v. Blodget, 16 Johns., 172; Jackson v. Gardner, 8 id., 394; Ives v. Van Auken, 34 Barb., 566.

The reservation is of “ the right of way through and over the carriage or alleyway ” to the stables, and is to continue as long as the stables are “ occupied as private stables.” The grantor did not reserve the alleyway itself, but the right of way over it, which means simply the right to pass over it Bodfish, v. Bodfish, 105 Mass., 319; Kripp v. Curtis, 71 Cal., 63; Stuyvesant v. Woodruff, 1 Zab., 136; Williams v. R. R. Co., 50 Wis., 76; 2 Washburn Real Prop., 275.

The right of way was not reserved for all purposes, but for the use of private stables only, as the right continues while the buildings are used for that purpose and ceases when the specified user-ceases. It was not bounded or defined, except as it was limited to the use named. Nothing except ¿ right of way as thus limited was reserved. While the alleyway, as laid out at the date of the grant, was eighteen feet wide, the right to pass over every part of that eighteen feet was not reserved, unless that right was necessary in order to pass and repass in the usual way and with the usual means, between the stables and the street. - The use by the grantor of the words “ carriage or alleyway” in the alternative indicates that he regarded “ carriageway ” and “ alleyway ” as meaning the same thing, and that he meant by neither the alley as laid out, but the carriageway that passed over the alley. In fact ho did not use the word “ alley ” by itself, at all, but he is presumed to have had in mind the existing condition of things upon which his conveyance was to operate.

Thus we have a right of way reserved, but not specifically defined, and the rule in such cases is that the way need be only-such as is reasonably necessary and convenient for the purpose for which it was created. Atkins v. Bordman, 2 Metc., 457; Bliss v.. Greeley, 45 N. Y., 671; Bakeman v. Talbot, 31 id., 366, 370; York v. Briggs, 7 St. Rep., 124; Maxwell v. McAtee, 48 Am. Dec., 409; Rexford v. Marquis, 7 Lans., 249; Matthews v.D. & H. Canal Co., 20 Hun, 427; Spencer v. Weaver, id., 450; Tyler v. Cooper, 47 id., 94; 16 St. Rep., 545; affirmed 124 N. Y., 626; 35 St. Rep., 997; Washburn on Easements, 244; Goddard on Easements, 333.

When the right of way is not .bounded in the grant, the law bounds it by the line of reasonable enjoyment. The defendant, as the owner of the land, has the right to use it in any way that he sees fit, provided he does not unreasonably interfere with the rights of the plaintiff. All that is required of him is that he shall not so contract the alleyway, either vertically or laterally, as to deprive the plaintiff of a reasonable and convenient use of the right of passing to and fro. Thus the grant of a right of way 41 through and over ” a space twenty feet wide was held to be “ the grant of a convenient way within those limits.” Johnson v. Kinnicutt, 56 Mass., 153.

As is said in Goddard on Easements, 332 : “ A right of way along a private road belonging to another person does not give the dominant owner a right that the road shall be in no respect altered or the width decreased, for his right does not entitle him to the use of the whole of the road unless the whole width of the .road is necessary for his purpose, but is merely a right to pass with the convenience to which he has been accustomed; * * * .and even where a right of way was granted over certain roads marked on a plan and one was described there as forty feet wide, it was held that the grantee was entitled to only a reasonable enjoyment of a right of way, and that such reasonable enjoyment was not interfered with by the erection of a portico, which extended a short distance into the road, so as to reduce' it at that point to somewhat less than forty feet.” Citing Clifford v. Hoare, L. R, 9 C. P., 362; Hutton v. Hamboro, 2 Foster & Finlason, 218.

Was eighteen feet in width, or more than eleven feet in height, essential to the reasonable enjoyment by the plaintiff of a mere right of passing to and fro with such vehicles as are used at private stables ? Is not the right of way, as it now is, all that is reasonable and necessary for the purpose for which it was granted ? When the terms of the reservation are considered in connection with the nature and condition of the premises granted at the time of the execution of the deed, the purpose that the parties are presumed to have had in view and the use which in practice they have made of the way, as found by the trial court, we are of the opinion that the defendant has not interfered with the reasonable enjoyment by the plaintiff of the easement created by the grant.

It is insisted, however, in behalf of the plaintiff, that he is entitled to the light, air and ventilation coming through and over the open space which constituted the alley at the date of the deed. If the alley itself had been reserved, or the right to use it for every purpose, a different question would have arisen, but neither the alley nor the alleyway was reserved, nor anything except the right of way over the alleyway or carriageway. The language of the reservation confers upon the plaintiff simply the right of passage, and, as incidental thereto, such light and air as are necessary to the convenient enjoyment of that right. There is no provision which expressly or impliedly requires that the entire space at the rear of defendant’s building shall be kept open forever, so that the plaintiff’s stables may have air and light. A right of way to' a stable does not carry with it such light and air as the stable needs, but such as the right of way needs for its reasonable enjoyment.

As was said in Atkins v. Bordman, supra, the leading case upon the subject: “As to the darkening * * * the defendants were not liable for damages, unless, from the length of the passage-way, it was so darkened as to render it unfit for the purposes of a passage-way. We may conceive of a covered passage of eight or ten feet high, of a length so considerable that unless openings were left there would not be light enough admitted at the ends to enable persons to use it with comfort for the purposes of a passageway, but unless darkened to that extent, it is not a case for damages.” Citing Parker v. Smith, 5 Car. & P., 438; Back v. Stacey, 2 id., 465; Wells v. Ody, 7 id., 410; Pringle v. Wernham, id., 377.

In Gerrish v. Shattuck, 132 Mass., 235, the defendant built over “a passage-way four feet wide” that had been reserved “in, through and over ” certain premises, but placed no part of his building on the surface of the ground and left the way unobstructed for a reasonable height above. It was held that the plaintiff, as the dominant owner, had “ no right to light and air above the way,” and that she had “ only the light of passing and re-passing with such incidental rights as are necessary to its enjoyment.”

To the same effect is Burnham v. Bevins, 144 Mass., 88.

But where the easement was “ a passage-way five feet wide in the clear for light and air ” and “ always to be kept open for the purpose aforesaid,” it was held that the dominant owner had a right to the open and unobstructed passage of light and air from the ground upwards and throughout the length of the passageway. Brooks v. Reynolds, 106 Mass., 31.

If the alley-way in question had been protected by a restriction of that kind, the claim of the plaintiff would have had a basis in the deed, which would have shown on its face that it was. the purpose of the parties to create something more than a mere right of passage. As it is we can find no such intention, because, as we have held, the deed calls for a right -of way and nothing more. The space at the rear of the plaintiff’s premises is under his exclusive control, subject to the right of way over it, and he can ventilate and light his stable by keeping that space open, hut he cannot prevent his neighbor, two doors away, from building on his own land, even if it cuts off some light and air, as long as a suitable passage is left open, with enough light and air to conveniently use it. .

Upon the facts as found and under the conveyance as we construe it, no right of the plaintiff has been interfered with by the defendant, and the judgment should, therefore, be affirmed, with costs.

All concur.


text:
    Rudolph Hoffeld, App’lt, v. The City of Buffalo, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Taxes—Over assessment—When action cannot be sustained fob.
    The assessment upon plaintiff’s land for the extension of streets in the city oí Buffalo was largely in excess of the benefit derived by it from the work, and the assessment was not made upon the parcels of land benefited in proportion to such benefit, as required by defendant’s charter, but no fraud was alleged on the part of the assessors. Held, that while it may be that relief upon that state of facts might be given upon a direct review by certiorari of the assessment, they do not furnish any support for collateral attack upon it by action.

      2. Same.
    Mere error in judgment of the assessors is not the subject of what was formerly known as a bill of review; and is not the subject of review by action collaterally.
    8. Same.
    The assessors having considered the buildings and other improvements upon the different parcels, determined that the amount of benefits was not affected by them, and assessed it upon the lots respectively without regard ' to the value of the buildings. Held, no error.
    Appeal from judgment entered upon order of the general term of the supreme court, in the fifth judicial department, affirming judgment entered upon decision of the special term in favor of the defendant.

      M C. Sprague, for app’lt; George M. Browne ¡mñ. Philip A. Laing, for resp’t.

       Affirming 28 St. Rep., 985.

   Bradley, J.

By this action in equity the plaintiff sought to have it adjudged that an assessment made upon his land in the city of Buffalo was void, and for that reason to restrain its collection and' stay a pending proceeding to set it off against a sum awarded to him by the city for his property there appropriated for a street.

In proceedings had for that purpose pursuant to the statute, lands were taken for the extension of Lord street from Seneca street to Seymour street, awards were made to the owners of the lands so taken, and the common council of the city fixed the amount to be raised to pay for the improvement at $22,440.70, and directed the board of assessors to assess it upon the lands to be benefited by the improvement in proportion to such benefit. The board of assessors thereupon made up an assessment roll assessing certain lands in the aggregate the amount so fixed, for the purpose of paying the cost and expense of the improvement. The plaintiff’s land was assessed $14,775.78. He complains of this, and asserts: 1. That his land was not proportionately assessed. 2. That'it was assessed beyond the benefit received by it; and, 3, that the assessment amounted to a substantial confiscation of his property without compensation. The proceedings taken by the common council with a view to the assessment, and those of the board of assessors in making it, were apparently regular, and it must "be assumed they were so in fact unless the contrary .was made to appear. Laws 1870, chap. 519, tit. 7, § 36.

"Upon the subject of local assessments the defendant’s charter provided that the common council should estimate and fix the-amount; that the assessments he made by the board of assessors ; and that they should assess the whole amount upon the parcels of land benefited by the improvement in proportion to such benefit. Id., tit. 6, §§ 1, 2, 3. It is not claimed that any land outside the-district upon which the assessment was made should have been included -in it as benefited by the work. Nor is any fraud on their part in making it alleged. The plaintiff’s case rests mainly upon the alleged fact that the assessment on his land was largely in excess of its proportionate benefit derived from the improvement. Evidence was given tending to prove the fact and" the trial court so found, and further, that the assessment upon the plaintiff’s land was largely in excess of the benefit derived by it from the work and that the assessment was not made upon the parcels of land benefited in proportion to such benefit. "While it may be that relief upon that state of facts may have been given upon a direct review by certiorari of the assessment, it is difficult to see how they can furnish any support for collateral attack of it by action. The statute seems to have devolved upon the assessors of the defendant the duty and power of determining the district benefited by a local improvement and of making the proportional assessment upon the respective parcels of land. Those matters are left-to the judgment of the board of assessors; and “it shall be presumed that every * * * assessment made * * * is. valid and regular and that all the steps and proceedings required by law were taken and bad until the contrary shall be made to-appear.” Id., tit. 7, § 36.

This, upon the evidence and findings, was a case of over assessment- on the plaintiff’s land. If this was the result of mere error in judgment of the assessors it is not the subject of what was. formerly known as a bill of review ; and, like the determination by any tribunal of matters brought within its jurisdiction, their judgment is not the subject of review by action collaterally. It is -urged that in view of the large excess in the amount of the-assessment upon the plaintiff’s land over its due proportion it must be assumed that the assessors proceeded on some erroneous principle or rule in making it If the evidence would have justified the inference to .that effect in the court below, it did not, as matter of law, require such conclusion - and, therefore, the question is not here for consideration. While the excess may be so greatly out of proportion as to permit the inference of corrupt purpose or of adoption of an erroneous rule of estimate, the matter of excess is one of degree only; and if in one case an assessment having the support of jurisdiction of the assessors and of presumption of regularity may, upon the evidence. of witnesses to the effect that it was disproportionately made upon the lands, be vacated in a collateral action, the question would be an open one in every case where some one or more-. of the persons whose lands are subjected to assessment deem. themselves aggrieved for such cause. It is for the legislature to-provide such means for direct review of the discretionary or judicial power of municipal officers in making assessments and levying taxes as may be deemed essential to the protection of the rights of the property owner. The rule is fundamental that equality in the imposition of the burden of taxation is of the very essence of the right, and consequently the failure to observe that principle in a statute providing for assessments and their apportionment as applied to the property benefited would render it invalid. While this perfection must be in the law under which the-assessors proceed, the execution of it dependent upon their judgment may not be free from criticism although made in good faith.

' It is, however, urged that the assessment was made upon a wrong principle and is, for that reason, illegal. This is founded upon the concession at the trial, and the finding accordingly, “ that, the assessors in finally determining the amount to be assessed for the benefits upon each of the pieces of land assessed fixed those-amounts without regard to the value of the buildings or other improvements upon the respective parcels, for the reason that they determined that the amount of benefits was not affected by the improvements.” It appeared that upon the plaintiff’s land and. some other of the lands assessed, there were buildings and that, other lots within the assessment were vacant. The assessors did not fail to consider the improvements on the lands, and having determined that the amount of benefits was not affected by them, assessed it upon the lots respectively without regárd to the value of the buildings. This was not in violation of the rule embraced, within the reason given in Kennedy v. City of Troy, 77 N. Y., 493, for the decision in Clark v. Village of Dunkirk, 12 Hun, 181; 75 N. Y., 612, and was in harmony with the views of the court-upon which O'Reilley v. City of Kingston, 114 N. Y., 439; 23 St. Rep., 799, was determined. The facts so found do not show that-the assessors proceeded on a wrong rule of law in making their estimate of the benefits to the lands assessed.

The assessment does not, therefore, seem to have been illegal in the sense requisite to the support of an action for relief against it. In a case for such relief the proceedings are regular, and qn their face valid, .but by reason of something extrinsic the record they are illegal. In that case relief may be had in equity. Strusburgh v. Mayor, etc., 87 N. Y., 452. So far as appears in the present case, the cause of the plaintiff’s complaint may have been the result oE mere error in judgment of the assessors. And although the assessment was not illegal, it may have been erroneous. In that view it is not important whether or not chapter 358 of the -Laws of 1865 remains in force, as the actions there referred to had relation to illegal assessments. It cannot here be seen what may have been the result in the court below if fraud or corrupt purpose on the part of the assessors in making the assessment had been alleged in the complaint, as in such case it may be that inference to that effect may have been permitted by the evidence. -

Although we find no support for the action, the facts so tend to show the assessment erroneous to the prejudice of the plaintiff that the denial of costs is justified.

The judgment should be affirmed.

Judgment affirmed, without costs.

All concur.