author: Earl, J.

text:
    The Excelsior Brick Company, App’lt, v. The Village of Haverstraw, Resp’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Village—Street—Discontinuance.
    Under the provision of the Village Incorporation Act, a resolution of the board of trustees discontinuing a street is sufficient for that purpose.
    3. Same—Petition or certificate.
    In such case, no petition or certificate of freeholders is necessary.
    3. Same.
    The provision of 3 R. S. 1249, 7th ed, applies to streets in villages incorporated under the general act.
    4. Action to enjoin interference with land—What interest necessary.
    Possession, occupancy and use of land, under claim of title, entitle a party to maintain an action to enjoin interference therewith.
    5. Appeal—Findings.
    The appellate court cannot look into the evidence for the purpose of reversing findings of fact and law, to which no exceptions have been taken.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at special term.
    ' The nature of the action and the facts, so far as material, are stated in the opinion.

      Irving Browne, for app’lt; JS. A. Brewster, for resp’t.

      Reversing 50 St. Rep. 513.

   Earl, J.

The plaintiff commenced this action to restrain the defendant from interfering with its land and causing an irrepara-* ble injury thereto, and also to recover damages caused by the defendant thereto. The defendant claimed that the land was in a public street and that it was, therefore, authorized to interfere therewith, in the improvement of the street, and upon that ground the complaint was dismissed.

It is not disputed that the land in question constituted a street at some time prior to the acts complained of by the plaintiff, but it claims that the street had been discontinued and had thus ceased to exist. In June, 1887, the trustees of the village of Haverstraw formally adopted a resolution discontinuing the portion of Division street now in question, and the plaintiff claims that that resolution was effectual to discontinue the street. But the court below held that it was ineffectual for that purpose for the reason that the certificate of twelve freeholders was not obtained before the passage of the resolution.

The defendant was incorporated' as a village under the general act for the incorporation of villages, chapter 291, Laws of 1870, in section 1, title 7, of which it is provided as follows: “A village incorporated under this act shall constitute a separate highway district within its corporate limits exempt from the superintendence of any one except the board of trustees, who shall be commissioners of highways in and for such village, and shall have all the powers of commissioners of highways in this state, subject to this act, and as such they shall have power to discontinue, lay out, open, widen, alter, change the grade, or otherwise improve roads, avenues, streets, lanes, crosswalks and sidewalks; and for that purpose may take and appropriate any land in said village; but no road, avenue, street,"lane or sidewalk shall be opened or altered unless all claims for damages on account of such opening or altering shall be released without remuneration except on the written petition of at least ten freeholders residing in said village, which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and shall be filed in the office of the clerk of the village.” This section gives the trustees, as commissioners of highways, full power to discontinue, lay out and alter streets within the village, subject, however, to the limitation that they shall not open or alter any street where the damages have not been released, except upon the written petition of at least ten freeholders residing within the village. It is clear but for that exception they could open or alter any street without any petition, and the exception does not apply to the discontinuance of a street. If it had been intended to limit the powers of the trustees to discontinue a street by the condition precedent of the petition of the freeholders it would have been so provided. In the general laws relating to highways and highway commissioners (2 R S. 1238, etc., 7th ed.) it is provided that highway commissioners may not, in the cases specified, open, alter or discontinue highways without the certificate of twelve freeholders. It certainly could not have been the intention of the lawmakers that before any street in this village could be opened or altered, there was not only to be the written petition of the ten freeholders as provided in section one, but also the certificate of twelve freeholders as provided in the general highway laws of the state.

We think that the special requirement of the petition of the ten freeholders in the case of opening and altering a street indicates-very clearly that a street may be discontinued by the trustees without any petition or certificate of freeholders. It cannot be-supposed that the legislature would authorize the laying out and-altering of a street upon the unsworn petition of any ten freeholders and require the certificate of twelve disinterested freeholders, summoned and acting under oath, before'a street could be discontinued; and this construction of the language used in this section is in harmony with the decisions in People ex rel. Mizner v. Hair, 29 Hun, 125, and in The Matter of the Village of Rhinebeck, 82 N. Y. 621, where similar provisions in other village charters were construed. The difference in the language used in the charters there under consideration from the language used in the section-now under consideration is not sufficient to warrant a different, construction.

We think, therefore, that the resolution of the defendant’s trustees was effectual to discontinue the portion of Division street now under consideration.

But it had ceased to be a street for another reason. It was found by the trial judge that the part of Division street now in question “ had not been used or traveled by the public for more than six years prior to the commission of the acts complained of;” and in the general highway laws of the state, 2 R. S. 1249, 7th ed., it is provided that all highways “ that have ceased to be traveled or used as highways for six years shall cease to be a highway for any purpose.” In Horey v. Village of Haverstraw, 124 N. Y. 273; 35 St. Rep. 360, that provision was held applicable to a street in that village, and under the authority of that case, upon the finding of the trial judge, this portion of Division street had ceased to be a street prior to the commission of the acts complained of in this action.

But the claim is made on the part of the defendant that the plaintiff had no title to the land upon which the acts complained of were committed, and that, therefore, it could not maintain this action. But the finding of the trial judge is, “ that prior to 1887 John Derbyshire became the owner of lands in Haverstraw, N. Y., lying between Rockland street and the Hudson river, and located on both sides of that part of Division street, so called, where some of the acts complained of were committed, and on both sides of Allison street, so called, where other of such acts were committed.

“ That about June 14, 1887, said Derbyshire inclosed said portions of said streets with his own land by a fence, and entered into the possession of and occupied and used the same under-claim of title in common with his adjoining lands down to January, 1890, when he conveyed all of his said lands, and all of his right, title and interest in and to said streets to the plaintiff, who has ever since enjoyed like possession and use; ” “that the plaintiff has owned and used its said property as stated in paragraph two of the amended complaint: ” and in that paragraph the allegation is “ that the plaintiff is, and for some time has been, the owner of certain lands in said village of Haverstraw, lying between Rockland street in said village and the Hudson river, which lands have during such period been used and occupied mainly for the purpose of carrying on the business of manufacturing bricks and the excavation of materials necessary for use in such business.” And he found, as a conclusion of law, that the possession of the plaintiff was a sufficient title, as against the defendant, to the lands embraced within the lines of the streets in question.

While we may look into the evidence given upon the trial for the purpose of sustaining the findings of the court, we are not authorized to look into it for the purpose of reversing findings of fact and law to which no exceptions have been taken; and we must, therefore, take these findings as conclusive for the purpose of the present appeal, and hold that the plaintiff, in the absence of any right whatever on the part of the defendant, had sufficient title and possession for the maintenance of this action.

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

All concur.

Judgment reversed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    De Witt C. Reed, Resp’t, v. Nathaniel Chilson et al., App’lts.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Jurisdiction—Notice or retainer.
    The service of a general notice of retainer by an attorney for a nonresident defendant gives the court jurisdiction of the person of such defendant.
    2. Same.
    In the absence of service of process within the state, appearance by the defendant or levy upon property under an attachment, no jurisdiction is acquired.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made June 2, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at circuit without a jury. This was an action brought upon a judgment recovered by plaintiff against the defendants in a court of the state of Michigan-on August 9, 1887. The facts, so far as material, are stated in the opinion.

      Myron H. Peck, Jr., for app’lts; Edwin Me Knight, for resp’t.

       Affirming 40 St. Rep. 960.

   O’Brien, J.

— The plaintiff has recovered upon a judgment rendered in the courts of Michigan for a deficiency arising upon foreclosure and sale of mortgaged premises in that state in the year 1887. When the present action was commenced the plaintiff and one of the defendants were residents of Michigan, and the other a resident of North Dakota. In December, 1889, the summons in.this action was served upon both defendants without the state, pursuant to an order of publication. A warrant of attachment was also issued to the sheriff of the county where the action was brought, but no" property was levied upon. On the 30th of January, 1890, the defendants entered a general appearance in the action by an attorney of the court, who served a general notice of retainer. In April following an answer was served by the same attorney, alleging that neither of the defendants were residents of the state or had any property therein, and that the court had no jurisdiction of the action. It also alleged that in the year 1886 the plaintiff recovered in the court of that state a judgment upon the identical cause of action contained in the complaint, and that such judgment was a bar to this suit. The appeal, therefore, presents two questions: (1) Whether the court had jurisdiction to render this judgment. (2) Whether the former judgment is a bar.

The service of the notice of retainer was a voluntary general appearance in the action, and equivalent to personal service. Code Civ. Pro. § 424; Olcott v. Maclean, 73 N. Y. 223 ; Ward v. Roy, 69 id. 96 ; Og. & L. Ch. R. R. Co. v. V. C. R. R. Co., 63 id. 176; Jones v. Jones, 108 id. 415; 13 St. Rep. 838; Morse v. Stanton, 57 N. Y. 649.

It is urged that the defendants were obliged to appear and present the facts to the court or suffer default, and, therefore, the appearance; was not voluntary. This does not change the effect of the appearance. When a party does not intend to subject himself to the jurisdiction of the court he must appear specially for the purpose of raising the question of jurisdiction by motion, or he may allow the plaintiff to go on and take judgment by default without affecting his rights, since no judgment entered without service of process could bind the defendant, and the question of jurisdiction would protect him at any stage of the proceedings for its enforcement, provided it has not been waived by his •own act But if the defendant elects to come before the court and there try the questions, he cannot afterwards deny the jurisdiction, or to be heard to claim that it was not a voluntary appearance. The court had jurisdiction of the subject of the action. It was the judgment of the court of a sister state which the plaintiff had 'the right to enforce here if jurisdiction of the person could be obtained, though the defendant resided in another state. The former judgment was not a bar, as it was void for want of jurisdiction. There was no service of process within the state, no appearance by the defendants and no levy upon property under an attachment. In the absence of personal service within the state or a general appearance, the court had no jurisdiction to render the judgment without proof of the granting of an attachment and a levy by virtue thereof upon property of the defendants within the state. Code, § 1217. There was no such no such proof made, and it is not claimed that the facts existed upon which it could have been made. Without it, mere service out of the state, though in pursuance of an order of publication, did not.give jurisdiction to render the judgment.

It follows that the judgment is right and should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Gray, J.

text:
    Rosa Williams, Resp’t, v. Palmer G. Williams et al., App’lts.

      (Court of Appeals,

      Filed April 10,1894.)

    Evidence—Declarations.
    The declarations and acts of a grantor, subsequently to his grant, are not admissible in disparagement, or to the prejudice of his grantee’s rights.
    Appeal from judgment of the general term of the supreme ■court, entered upon an order made December 9, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. This was an action of ejectment. The facts, so far as material, are stated in the opinion.

      Lynn J. Arnold, for app’lts; Giles B. Everson, for resp’t.

       Affirming 49 St. Rep. 919.

   Gray, J.

The plaintiff has recovered a verdict, in ejectment, ’.against these appellants ; who were in possession of certain lands, claiming as heirs at law of Benjamin R. Wi-lliams deceased. The plaintiff claimed to own the lands in fee, and to be entitled to then-possession, under a deed executed and delivered to her by Williams in April 1890. There was sufficient evidence, with respect to the making of this deed, its delivery to the plaintiff and the consideration for the grant, to support the verdict of the jury and it will not be disturbed, in the absence of any material errors committed upon the trial. The appellants, however, rely upon exceptions to certain rulings by the trial judge; of which we need only consider those by which were excluded the declarations of the grantor, Williams, made to third persons, after his grant of the lands, and which were offered by the defendants, to prove that he had not intended to make an absolute conveyance to the plaintiff. It was their theory that he had only divested himself of his property to avoid threatening embarrassments of litigation ; out of which he eventually came, free of trouble. We think his declarations were wholly inadmissible as against his grantee. This admissibility is sought to be defended upon these grounds ; that the grantor remained in possession and his declarations were proper to characterize that possession ; that they were admissible tó show the intent with which the deed was executed and that they were admissible as part of the res gestee. But all of these grounds are answered by the fact that Williams had executed and delivered to plaintiff the deed of these lands, and was not in their possession under any claim of title. If the action had been by creditors to set aside the conveyance, upon the ground of its having been fraudulently made, the declarations of the grantor would then have been admissible to characterize his possession. Loos v. Wilkinson, 110 N. Y. 195, 211; 18 St. Rep. 110. In such a case, as it was said in Loos v. Wilkinson, they would be regarded as in the nature of res gestee declarations and competent on the question of the grantor’s fraud. But there is no such question in this case, and there is no occasion to depart from the long-settled and familiar rule that the declarations or acts of a grantor, subsequently to his grant, will never be permitted to be shown in disparagement, or to the prejudice, of his grantee’s rights. 1 Phil. Evid. [C. & H.’s Notes] 223 ; Jackson v. Aldrich, 13 Johns. 106 ; Padgett v. Lawrence, 10 Paige at p. 180 ; Vrooman v. King, 36 N. Y. 477. The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Peter Folmsbee, Resp’t, v. The City of Amsterdam, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)
    1. Municipal corporations—Streets—Change op grade.
    Where the title of an abutting owner extends to the center of the street, the municipality, if it illegally and wrongfully excavates or otherwise interferes with the street, is liable to him for the damages.
    2. Same.
    To change the established grade of a street under the charter of the city of Amsterdam, there must be both a petition and compensation.
    3. Same.
    The grade of a street may become established by usage, acquiescence and recognition without any formal ordinance on the part of the mun'cipality.
    4. Same—Assessment.
    An assessment, which includes the expense of a sidewalk on a street, not ordered by the common council to be constructed, and to construct which the owner had no notice, is void.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    This action was brought to recover damages to certain lots belonging to plaintiff on Spring street, in the city, formerly the village of Amsterdam, alleged to have been caused by changing the grade of the street, and also to vacate an assessment upon said lots for sidewalks constructed in front of them on Spring and Kimball streets.
    The premises in question were situated on the corner of Spring and Kimball streets, and were purchased by plaintiff in 1872, his title extending to the centre of the highway. Since 1850 Spring street has been graded and used by the public, and work done thereon by the village authorities, and sidewalks built on each side of it, the grade and location thereof being fixed and adjusted by the village trustees. More than twenty years ago Kimball street was opened and laid out as a street connecting with Spring street. In August, 1887, plaintiff was notified by the defendant that he was required to build sidewalks, curbs and gutters in front of his premises on Spring street, within sixty days from date of said notice, the sidewalks,'curbs and gutters to conform to the grade established by ordinance of defendant’s common council October 5. 1886. In December, 1887. defendant excavated on Spring street, cutting it down several feet in front of plaintiff’s lots, and relaid the sidewalks at the new grade. This, was done without any petition or consent on the part of the abutting owners, and without payment of damages.
    The assessment for laying sidewalks in front of plaintiff’s lots included the expenses of the sidewalk on Kimball street, which the common council had not by ordinance ordered to be constructed, and which plaintiff had not been notified to construct, as required by said charter (§ 98). Further facts are. stated in the opinion.

      jEdward J. Maxwell, for app’lt; W. B, Dunlap, for resp’t.

      Affirming 49 St. Rep. 51.

   Earl, J.

This action was brought by the plaintiff to recover damages to his lots bounded on Spring street in the city of Amsterdam, caused by changing the grade' of the street, and also to vacate an assessment made upon the lots for sidewalks constructed in front thereof on Spring and Kimball streets. , The plaintiff recovered a judgment for his damages and vacating the assessment, and that judgment is brought under review by this appeal.

(1) Except as some statute may provide for compensation to an abutting owner whose land is injured by a change in the grade of a street, lawfully made, he is without remedy, and however serious his damage may be he can receive no compensation. Dill. Mun. Corp., §§ 990, etc.; Radcliff's Executors v. The Mayor, 4 N. Y. 195. But where the title of the abutting owner extends to the centre of the street, whoever, without authority of law, illegally and wrongfully excavates.or otherwise interferes with the street,.is responsible to him for the damages. Here the city caused the street adjoining the plaintiff’s lots to be cut down several feet, and unless this was legally done by authority of law it is responsible to him for his damages. It claims that it was authorized to change the grade of the street under its charter. § 95, chap. 131 of the Laws of 1885. That section provides that the common council shall have power to cause any street “ to be graded, paved or repaired,” and to determine by resolution what part or portion, if any, not exceeding twenty-five per centum, pf the expense thereof shall be paid by general tax upon the city, and what part or portion shall be defrayed by special assessment upon such portions of the real estaté and against the owners and occupants thereof as the assessors of the city shall deem more immediately benefited by the improvement. In the same section, it is provided, however, that “when .the grade of a street has been established and the street graded accordingly, the grade shall not be changed and the street graded according to the changed grade, except upon petition of the owners of a majority of the lineal feet fronting on the part of the street to be graded, or unless compensation be made to the owners of property injured by the regrading, such compensation to be determined by agreement or by the three commissioners to be appointed by the county court of Montgomery county or the supreme court,” etc.

Abutting owners are frequently seriously injured by changing the grades of streets in front of their" property, and, as has been stated, without some special provision of law, they are without remedy. This provision in the charter of the defendant'was inserted to give relief in such cases. It was intended to provide for all cases where the previously established grade of a street shall have been changed so as to cause damage to the abutting owners, and the statute must be so construed as to give effect to the policy thus indicated. Before the grade of a street which has been once established can be changed two things must occur, there must be the petition of the owners of a majority of the lineal feet fronting on the street to be graded, and compensation must be made to the owners of the property injured by the regrading. The literal reading of this portion of the section would require only one of these two things, either the petition or the compensation. But to effectuate the plain purpose of the statute the word “ or ” should be “ and ” or “ nor,” and such a change in a word, to give effect to the plain intention of the legislature, is sanctioned by many precedents. Unless the language be so. read an abutting owner might be opposed to the improvement of a street in front of his premises and yet if a majority of the owners petitioned for the improvement he would be without any remedy for the damages thereby caused to him. His damages are just as great whether the improvement has been petitioned for or not and the fact of the petition should not subject him to damages without compensation. It is said that § 95 in the defendant’s charter was copied substantially from § 98 chapter 150 of the Laws of 1872 the charter of the city of Kingston and in that section'the word “ nor ” is used in the particular provision now under consideration instead of the word “ or.” So we are of the opinion that assuming that the grade of Spring street had been once established its grade could not be changed, except upon the petition of the owners of a majority of the lineal feet fronting upon the part of the street to -be graded.

It is said however on the part of the defendant that the grade of this street had never been previously established and therefore, that this was not a case of change of grade. We think,, upon the undisputed facts in this case, that the grade of the street had become established. It had been used as a public street for more than forty years. Houses were built compactly on both sides, conforming to the grade of the street as it then existed, and the street was graded and improved by the city and its predecessor, the village of Amsterdam. Sidewalks, had been built under the direction of the municipal authorities upon grades given by them, and thus it is clear that the grade had become established by long usage, and by the acquiescence and recognition of the village and the city. The claim that the grade of a street could become established within the meaning of the statute under consideration only by a formal ordinance of the municipality finds no sanction in the language used. There are many streets in cities ahd villages the grades of which have not been established by ordinances. They have either been left in their natural condition or worked and improved from time to time by the tnunicipal authorities without the formal establishment of any definite grade, and when upon such streets buildings are erected conforming to the existing grade, if that grade be changed, the mischief arises for which the provision in § 95 was intended to provide. With. out referring minutely to the evidence in this case, we think sufficient appears to show that the grade had become established prior to 1887 when the defendant caused the change of grade of which the plaintiff complains. There are precedents for the conclusion that the grade of a street may become established by usage, acquiescence and recognition without any formal ordinance on the part of the municipality McCall v. Village of Saratoga Springs, 29 St. Rep. 699 ; Bartlett v. Village of Tarrytown, 30 id. 341; O'Reilley v. City of Kingston, 114 N. Y. 439 ; 23 St. Rep. 799 ; Matter of Whitmore v. Village of Tarrytown, 137 N. Y. 409 ; 51 St. Rep. 69. Therefore, as there was no petition for changing the grade of this street as required by the section of the statute referred to, the defendant was wholly without authority to inaugurate the change, and its interference'with the street was wrongful and illegal, and it became responsible to the plaintiff for any damages thereby caused to this property.

It also appears that the contract for doing the work was made without authority, and hence the defendant is without any justification whatever for its interference with the street in front of the plaintiff’s premises.

But the claim is further made on behalf of the defendant that the plaintiff’s only remedy for damages caused to him by the change of grade was that given by the section, to wit, the appraisal of the damages and the award of compensation by three commissioners. But the remedy there provided can be i n voiced only in the case of the lawful change of grade of the street. Where the change is utterly illegal and void there is no authority for the appointment of commissioners, and such commissioners if appointed, would have no jurisdiction to determine and award thé compensation. Hence, the only remedy for the plaintiff was by action to recover his damages.

(2) The assessment for laying side walks in front of plaintiff’s premises on Spring street was utterly void for the reasons stated in the opinion of the referee. It is sufficient to condemn the assessment that it included the expense of the sidewalk on Kimball street, which the common council had not by ordinance ordered to be constructed, and which the plaintiff had not by any notice been required to construct as provided in the charter of the defendant. Our conclusion, therefore, is that the judgment is right and should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Bartlett, J.

text:
    The People ex rel. Rignal D. Woodward, App’lt, v. Simon W. Rosendale, Attorney-General, etc., Resp’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    Corporations—Insurance—Certificate of approval.
    Where the proposed company seeks to carry on, as a part of an insurance business, the inspection and certification as to the sanitary conditions of buildings and premises, such business is not within the purview of S 70, chap. 690 of 1893.

      Appeal from order óf the general term of the supreme court in the third judicial department, made December 5, 1893, which reversed an order of "special term granting an application for a writ of mandamus, the nature of; which and the facts, so far as material, are stated in the opinion.

      Bignal D. Woodward, for app’lt; T. M Hancock, Attorney-General, for résp’t. ' 1 1

       Affirming 57 St. Rep. 447.

   Bartlett, J.

The relator appeals from the order of the general term, third department, reversing order granting a writ of peremptory ihandamus, commanding the attorney-gen eral to attach his certificate of approval to the declaration and charter of a proposéd corporation; to he called “ the Sanitary Inspection and Insurance Company of Néw York,” the relator and others having sought to organize the 'same under chapter 690, Laws of 1892, known as “the Insurance Law.” Section 70 of said act provides for the incorporation of cómpanies to conduct the various kinds of insurance therein referred to by filing in the office of the superintendent of insurance a declaration and charter in manner and form as therein prescribed. Section 10 of said act reads as follows, viz.:'

“ When Application is made tó the superintendent of insurance by any persons desiring to become incorporated as an insurance corporation or for authority to transact the business of insurance in this state, under or pursuant to any declaration and charter presented’ for filing in the insurance department, or any amended declaration or charter required by law to be filed or approved by the superintendent, the superintendent shall not file such declaration and charter or grant such , certificate of authority until such declaration and charter shall have been examined by the attorney-general and certified by him to the superintendent to be in accordance with the requirements of law.”

In pursuance of this section the superintendent of insurance submitted the declaration and charter in the case at bar to the attorney-general to be examined by him and certified to be in accordance with th’e requirements of law. The attorney-general transmitted to" the superintendent of insurance an opinion in writing, reading in part as follows, viz.:'

“In‘reply, permit' me - to say that this application is made under subdivision 8, § 70 of the Insurance Law. The business proposed to be carried on is the inspection and certification as to the sanitary conditions of buildings and premises against loss or damage to life or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the’insurance of ' landlords, lessees, tenants or occupants of houses,- flats,,office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes or leaks, to walls, ceilings, furniture or goods; and for the doing of such other business as may be lawfully- connected with the business of sanitary -inspection, care and insurance, under subdivision 8 of § 70, article 2 of chapter 690 of the Laws of 1892.
“In my opinion, this is not a kind of casualty insurance such as is specified in any of the subdivisions of § 70; nor is it a kind of insurance that can be lawfully carried on under said section.
“I, therefore, decline to attach my certificate of approval to said proposed declaration and charter.”

The relator thereupon applied to the special term for a peremptory writ of mandamus to compel the attorney-general to certify to the superintendent of insurance 4hat the said declaration and charter were in accordance- with the requirements of law; this application was granted. The attorney-general appealed to the general term where the order was reversed, the court holding mandamus was not the proper remedy and refusing to consider the merits of the case.

As we are of opinion that the learned attorney-general correctly decided the question submitted to him, we do not deem it necessary to consider the question of remedy discussed in the courts below. The proposed company seeks to carry on as a part of an insurance business, according to its declaration, “ the inspection and certification as to the sanitary conditions of buildings and premises.” This is not insurance in any legal sense, but an entirely distinct kind of business not within the purview of the statute now under consideration. We, therefore, hold that the declaration and charter of the proposed company were not in accordance with the requirements of law, and are not entitled to be filed in the office of the superintendent of insurance. The general term order, for the reasons stated, is hereby affirmed, with costs.

Order affirmed.

All concur.


text:
    The People, Resp’t, v. John Connor, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Jurisdiction—Relationship.
    Section 46 of the Code of Civil Procedure applies to all trials, civil and criminal.
    2. Trial—Mode—Criminal action.
    The defendant is not entitled to separate trials before separate juries, of each issue raised by the pleadings, but to only one trial and one jury.
    3. Same.
    The order in which the issues should be disposed of is a matter in the discretion of the court.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order made November 9th, 1892, which affirmed a judgment of the court of sessions of Delaware county entered upon a verdict convicting defendant o.f the crime of grand larceny in the second degree. The facts, so far as material, are stated in the opinion.

      Abram, G. Crosby, for app’lt; William F. White, for resp’t.

      Affirming 48 St. Rep. 25.

   O’Brien, J.

The defendant was convicted in the court of sessions of the crime of grand larceny in the second degree. On the trial, which resulted in the judgment now under review, the defendant interposed the general plea of not guilty, and also a special plea of a former trial and conviction to the indictment. These pleas were tried separately before the same jury, and the questions involved in this appeal arise upon exceptions taken upon or growing out of the trial of the issue made by the special plea. It appeared that the former trial was had before a court composed of the county judge and two justices of the peace, temporarily designated by order to serve as members of the court, by reas.on of the death of one of the justices of sessions and the absence of the other. One of the justices of the peace so designated was related to the defendant within the sixth degree, and so incapable of acting as a member of the court during the trial, by'§ 46 of the Code of Civil Procedure. The trial proceeded apparently without any knowledge of the fact, and certainly without any reference to it, and the jury found a verdict of guilty. After the verdict the fact that one of the members of the court was so related to the defendant was presented to the court by affidavits in support of a motion in arrest of judgment. The court, though holding that the motion was not based upon any defect in the indictment, nor founded upon any facts appearing on the face of the record within § 331 of the Code of Criminal Procedure, set aside the verdict, and the court having been reconstituted in a manner to obviate the objection, the indictment was continued to the next term, when the trial under review was had. A jury having been drawn and impaneled, the court directed that the issue upon the special plea be tried before that arising upon the general issue. The trial proceeded, and proof of the relationship of the justice on the former trial to the defendant was made, the defendant’s identity established and all the proceedings on the first trial shown. The court instructed the jury that the plea of former conviction was not sustained unless there was in fact a lawful trial and conviction. That if the former trial was before a court, one of the members of which was related to the defendant within the prohibited degree, then the court was improperly constituted and without jurisdiction in the case; and so the result would be a mistrial, and no bar to another trial. The defendant’s counsel excepted to these instructions, and the jury determined the issue upon the special plea in favor of the People. The court then directed that the trial proceed upon the issue raised by the plea of not guilty. The defendant’s counsel objected to further proceedings before the same jury, and asked that the proceeding be suspended until the questions already tried could be reviewed upon appeal, which request was denied. The defendant’s counsel then asked permission to examine each member of the jury as to any bias formed from the evidence and proceedings upon the special plea that would disqualify him from serving as a juror on the trial of the general issue. The request was denied. The district attorney then gave evidence in support of the charge in the indictment, and the jury rendered a verdict of guilty.

There was no error in the charge or rulings of the court with respect to the.effect of the former trial and verdict. Section 46 of the Code applies to all trials, civil and criminal. The court before which the first trial was had was so constructed that it was. without jurisdiction to try the particular case, and hence all proceedings before it in the case were absolutely void. In contemplation of law there was no trial and no conviction. The trial and verdict were such only in form, without the power of j urisdiction to give to them any validity or legal effect whatever. When the verdict had been recorded, no legal result had been accomplished that had the slightest effect upon the rights or liberty of the defendant. It could not be said that he was once in jeopardy within the legal and constitutional meaning of that term, since it implies a verdict or a trial before some court possessing jurisdiction.

The request of the defendant’s counsel to suspend the trial after the determination of the issue.upon the special plea raises no question of law. The request to be permitted to examine the jurors before proceeding to the trial of the general issue is based upon the notion that the defendant had the right to separate trials before separate juries of each issue raised by the pleadings. There is no authority for the claim. There was but one indictment and one charge and the defendant’s pleas constituted his answer and defense to the accusation. He was entitled to but one trial and could demand but one jury. The order in which the issues should be disposed of was a matter in the discretion of the court, which had power to direct them to be tried separately or together, and whatever course was adopted the trial must be one continuous proceeding and the rights of the defendant with respect to the examination of the jury were the same as if the plea of not guilty alone appeared upon the record. He had no more right to stop the trial while in progress in order'to ascertain the effect which the evidence given had upon the minds of the jury than he would have had if there was only a plea of the general issue. The questions in the ease have been so fully and thoroughly examined by the learned judge who gave the opinion at general term, in which we concur, that any very extended discussion now is unnecessary. The conclusion of the learned court below is so well sustained by reason and authority that we might well have disposed of the case upon the views there expressed without any formal statement of our own. The judgment must be affirmed.

All concur.

Judgment affirmed.


text:
    The People ex rel. John J. Griffin, App’lt, v. Austin Lathrop el al., Resp’ts.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Veterans—Preference—Discharge.
    The provisions of chap. 313 of 1884, as amended by chap. 464 of 1887, do not abrogate or repeal a power to discharge which existed prior to its passage.

      2. Samé.
    In the absence of restraints imposed by the Constitution or statute, the power of appointment implies the power of removal, when no definite term is attached, by law, to the office.
    3. Same—Act of 1889.
    Chap. 382 of Í889, in express terms, confers, upon the agent and warden, power to appoint and remove the keepers.
    Appeal from an order of the general term of the supreme court in the second judicial department, made May 8, 1893, which affirmed an order of special term denying an application for a peremptory writ of mandamus to compel the reinstatement of the relator as keeper of Sing Sing state prison. The facts, so" far as material, are stated in the opinion.

      Horace D. Ellsworth, for app’lt; T. E. Hancock, Attorney-General, for resp’ts.

      Affirming 54 St. Rep. 371.

   O’Brien, J.

The relator, an honorably discharged soldier, had served for many years as a keeper in the state prison at Sing Sing, from which position he was discharged by the agent and warden in September, 1891, without any charges being made against him or any fault on his part in regard to the performance of the duties of the place. Another honorably discharged soldier was-appointed in his place. The relator applied to the court for a peremptory writ of mandamus to compel his reinstatement, which was denied, after a hearing, and the order has been sustained by the General Term.

The sole question presented by the appeal is one of power. If the agent and warden had the legal authority to discharge the relator and appoint another person in his place the court cannot control the use of this power nor interfere with the exercise of discretion or advise the officer touching the performance of his duties. The discharge of the relator might not be regarded, under all the circumstances, as just or wise, but the courts have nothing to do with these questions. We have the right to look into the ■question of power, but the writ demanded by the relator could not issue except to require the superintendent or warden to perform some act which the relator could demand as a legal right. The contention in behalf of the relator is, that he was illegally discharged, and that he is entitled to be reinstated in the position from which he was removed and this by force of the terms of the statute. Laws of 1887, chap. 464. By that act the legislature has declared that “In every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the Civil Service Laws, rules or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties involved.”

The second section provided that “all officials or other persons having power of appointment or employment, in the public service, as set forth in the first section of this act, are charged with the faithful compliance with its terms, both in letter and spirit, and a failure therein shall be deemed a misdemeanor.”

It will be seen that though this statute prescribes the duty of officers possessing the power of appointment, it contains no language that abrogates or repeals the power to discharge which existed before the first enactment of 1884. By § 4, article 5 of the Constitution the appointment of certain officers in the prisons, including guards or keepers, is vested in the agent and warden. The language of the section is such as to justify the inference that this power was subject to legislative regulation. Assuming that it is, the question arises whether the legislature has, in fact, made any regulation abrogating or in any way restricting the power of the agent and warden to remove his appointees at his discretion. In the absence of restraints imposed by the Constitution or by statute the power of appointment implies the power of removal when no definite term is attached to the office by law. People ex rel. Cline v. Robb et al., 136 N. Y. 180; 37 St. Rep. 8.

It is quite clear, therefore, that prior to the enactment of the statute, upon which the relator relies, he could have been discharged at the discretion of the warden. The statute has not abrogated this power. In fact it is silent on the subject of the power to discharge and only imposes a duty upon the appointing officer when making appointments to prefer honorably discharged soldiers. But even that duty is not imposed by the statute in absolute or unqualified terms, but it is left to the judgment and discretion of the appointing power to determine in each case whether or not the soldier claiming the preference possesses the business capacity necessary to discharge the duties of the place. If the officer authorized to make an appointment refuses to perform the duty imposed by this statute, or acts in bad faith, or abuses the discretion reposed in him, he may be subject to indictment or impeachment, or both, but the power of removal is not abrogated or restricted. The duty of the warden in making appointments of guards and keepers in the prisons is of the most important and delicate nature. The. appointees should be capable of forming a correct judgment in regard to the conduct of prisoners, able to discern their motives and purposes and to meet an emergency when necessary. They should possess the necessary qualities of temper, courage and loyalty. No statute can be drawn so as to describe an ideal appointment to a place the duties of which involve the care a.nd control of convicts in the prisons of the state. The selection in the end must be left to the discretion and judgment of some one, and this the statute fully recognizes. To compel the superintendent or warden, charged with the management of the prisons and responsible for the manner in which the duty is discharged, to reinstate, against his judgment, a discharged keeper or guard would introduce into prison management a most mischievous principle. It might and probably would produce great demoralization and tend to the destruction of all order and discipline. It would have much the same effect upon prison discipline, though perhaps in a less degree, that it would have upon military discipline if appointments and removals in the army were to be regulated by the writ of mandamus.

The case has thus far been considered without reference to another statute. Laws of 1889, ch. 382. This statute in express-terms confers power upon the agent and- warden to appoint the keepers and to remove them. It expressly applies to the prisons and was enacted subsequent to the statute giving preference in-certain cases to soldiers, and subsequent to the Civil Service Laws. It leaves the appointment and removal of keepers and guards in the prisons to the judgment and discretion of the agent and warden, subject to the approval of the superintendent. It enacts the same policy outlined in the constitution itself, and which the legislature did not intend to disturb by the so-called Soldier Law of 1887. But even if all this were otherwise and it could be maintained that the discretion of the appointing power is restricted by the former act, then these restrictions must be deemed to be removed by the latter statute which alone contains-the rule upon which appointments and removals in the prisons must be regulated. So the discharge of the relator was within the power and discretion of the agent and warden. It is within the same discretion to reinstate him or not, and hence the writ - of mandamus was properly refused. The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Finch, J.

text:
    Louis Rapps et al., Resp’ts, v. Henry Gottlieb et al., Def''ts. Bettie Stern, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Assignment—Rights on assignee.
    The assignee of a mortgage takes subject to the equities between the original parties and has no greater rights than the original mortgagee.
    3. Same—Exception.
    The exception to this rule applies to the transfer of conceded existing legal rights, wherein questions arise as to equities between subsequent holders.
    3. Same—Doctrine as to innocence.
    The doctrine that, where one of two innocent parties must suffer, etc., is a rule of last resort, applicable only where all others fail.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an drder made February 13, 1893, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term. This action was brought to have canceled as a cloud upon title and satisfied of record a bond and mortgage executed by the plaintiffs to the defendant Henry Gottlieb, and assigned by him to the defendant Bettie Stern. The facts, so far as material, are stated in the opinion.

      Alfred Stedcler, for app’lt; Jacob Manheim, for resp’ts.

       Affirming 51 St. Rep. 195.

   Finch, J.

We must assume in this case that the mortgage which the plaintiffs seek to cancel as a cloud upon their title never had a valid inception, and failed to become a subsisting security. The finding is that the bond and mortgage, after having been duly executed, were delivered to one Gottlieb “ upon the express understanding” that he should advance nine hundred and twenty-five dollars as the consideration, and that until such advance was made the “ bond and mortgage were to be invalid, void and of no effect.” In other words, there was only a conditional delivery of the security, depending for its validity upon the advance of the money, and so the creation of a debt which the bond and mortgage could secure. Gottlieb never advanced the money, but, availing himself of his possession of the instruments, assigned them to the defendant Bettie Stern, who took them in good faith and for value. Relying upon that fact, she now claims to be protected in her ownership, and to hold and enforce the securities against the mortgagor. She has been defeated and required to deliver up and cancel the instruments as being without consideration and void, and appeals from that decision.

The rule is conceded that the assignee of the mortgage takes subject to the equities between the original parties, and has no greater rights than the original mortgagee. The mortgage, therefore, was invalid in the hands of the assignee, because her assignor could not enforce it against the mortgagor. But while conceding this rule, the appellant claims that there are exceptions to it, and cites the cases in which the owner of property has negligently, or from over-confidence, clothed another with its apparent ownership and with seeming authority for its transfer, and in which, by estoppel or otherwise, the innocent assignee for value has been protected. Obviously, such an exception applied to this case would annihilate the rule, for in all cases of the assignment of a mortgage invalid between the original parties its existence when it ought not to have existed indicates the negligence or over-confidence referred to as the basis of the exception. Hone of those cases relate to the transfer of a mortgage, which is but a security or lien and enforcible only in equity, but all of them were instances in which the assignor had the legal title and the means of transferring it in the most effectual manner. They related to the transfer of a conceded existing legal right, and respected the equities, not between the original parties, but between subsequent holders dealing in one way or another with the valid securities. The appellant’s chief reliance is upon McNeil v. Tenth Nat. Bank, 46 N. Y. 325, and Moore v. Metropolitan Nat. Bank, 55 id. 41. In neither case was there any question between the original parties. In the one the plaintiffs owned certain shares of bank stock by a title perfectly valid as between them and the corporation of issue, and without any existing equities in favor of the latter. That stock the plaintiffs pledged and the pledgees made a further transfer to the defendant bank and all the questions arose, not between the original parties to the stock obligation, but between the subsequent holders. In Moore v. Metropolitan Bank the plaintiff held a certificate of indebtedness issued by the capítol commissioners. There was no question of its validity or of any equity in behalf of the state, but the whole-quarrel was among the transferees, and respecting their dealings with a- security concededly valid as between the original parties. It was argued in that case that protection to the assignee as a holder in good faith and for value would make all non-negotiable securities at once negotiable, to which the court retorted : “ Not so. No one pretends but that the purchaser will take the former subject to all defenses valid as to the original parties.” These-cases, therefore, in no manner infringe or work exceptions to the uniform rule that the assignee of a mortgage has no greater right against the mortgagor than belonged to the original mortgagee.

A further argument is made founded upon the doctrine that where one of two innocent parties must suffer from a wrong he must bear the loss whose action enabled the wrong to be done; but that doctrine applies only in an emergency. It solves problems which have no other solution; it supplies a ground of decision where all others are absent; it operates as a reason when nothing else can master the situation ; it is a rule of last resort, applicable only where all others fail; it is a doctrine subordinate and not dominant, which reverses no other, but submits to the authority of all, and is adequate to an ultimate decision only when it has the field to itself. Any wider view of it would make it a disturbing force, tending to unsettle and destroy the most firmly fixed doctrines of the law. • It is good and useful—in its place— but will always make trouble if not kept where it belongs. Applied to this case it would, as I have already suggested, destroy the doctrine which we have long and steadily held, that the assignee of a mortgage takes no greater right than belonged to the original mortgagee, for the apparent mortgagor who does not owe the debt and the assignee who has parted with his money may each be innocent and one must suffer, and that one would be the party who signed the mortgage and set in motion the sequence of results. If it is always remembered that the doctrine as to innocence on both sides operates only when other solutions are not available, or possibly in aid of proper solutions, very much of needless confusion will be avoided. I think, therefore, that the decision below was right and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Erastus K. Burnham, Resp’t, v. Cape Vincent Seed Company, App’lt.

      (Court of Appeals,

      Filed, April 10, 1894.)

    1. Warehouseman—Receipts—Section 633 of Penal Code.
    Section 633 of Penal Code is designed to protect the bona fide holder of negotiable warehouse receipts, and not the acceptor of a draft drawn against the consignment, where he takes the cargo from the possession of the warehouseman without his permission.

      2. Same.
    Where the acceptor fails to pay the draft drawn against the consignment and the warehouseman pays it on demand from the holder for the cargo, which the acceptor had taken without his permission, and the draft with the warehouse receipt was duly transferred to said warehouseman, he is entitled to recover from the acceptor the amount of the draft.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order made December 9th, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. This action was brought, among other things, to recover the amount of a draft drawn by R R Cole, and accepted by the defendant in payment for a cargo o£ peas, which was paid by plaintiff and transferred to him by the Ontario Bank, on which it was drawn. The facts, so far as material, are stated in the opinion.

      E. 0. Emerson, for app’lt; N. F. Breen, for resp't

       Affirming 49 St. Rep. 918.

   Bartlett, J.

Tins is an appeal from a judgment affirming a judgment in favor of plaintiff on the verdict of a jury at Jefferson county circuit, and from an order denying a new trial. The plaintiff was a warehouseman residing at Cape Vincent- in this st'ite. On' the 2d of October, 1890, one Cole, a seed dealer at Kingston, Ontario, shipped from that port to Cape Vincent, by steamer “ Khartoum," a cargo of peas consigned to the Ontario Bank of Kingston, care of plaintiff. On the 3d of October, 1890, said cargo arrived in Cape Vincent and was deposited in plaintiff’s elevator, and a warehouse receipt was issued and delivered to Cole stating that the peas were held subject to the order of the Ontario Bonk of Kingston. Cole thereupon drew a ninety days’ draft against this consignment on defendant, which was duly accepted October 13, 1890, the defendant to have possession of said cargo on payment of the draft, the warehouse receipt to be held as security meanwhile. Cole then attached the warehouse receipt to the draft and procured discount by the Ontario Bank. The defendant failing to pay the draft when due, the Ontario Bank demanded of plaintiff the cargo of peas held by him as security for its payment. The plaintiff claimed that the defendant, after accepting the draft, had, without authority, taken possession of the peas; he, therefore, paid the draft, and thereupon it was duly transferred to him by the Ontario Bank, together with the warehouse receipt. The plaintiff then brought this action, setting up in his complaint three causes of action, viz.: first, on the draft so paid; second, for value of certain peas received by defendant and never accounted for, but no part of the cargo in question; third, for storage of the cargo of peas involved in the first cause of action. The main contest was over the first cause of action. The defendant denied that it had received any portion of the cargo of peas stored as security for the payment of the draft; also alleged that plaintiff had parted with the custody of said cargo in violation of § 633 of the Penal Code which forbids warehousemen to deliver to another property covered by a receipt, and for that reason could not maintain this action. The question of fact as to whether the defendánt had taken from the custody of the plaintiff, without his permission, and before the maturity of the draft, the cargo of peas held as security for its payment, was properly submitted to the jury, and their verdict in favor of plaintiff is conclusive. ^

The defense based on plaintiff’s violation of § 683 of the Penal Code has no foundation in fact or in law. The section referred to is designed to protect the bona fide holders oí negotiable warehouse receipts by inflicting a severe penalty on warehousemen who wrongfully deliver to third parties property covered by the receipts. In the case at bar the plaintiff held the cargo of peas as security for the Ontario Bank, and if, before the bank’s debt was paid, he had wrongfully delivered it to the defendant, he would have been criminally liable under § 633 of the Penal Code, and the bank could have proceeded against him in a civil action for damages. Colgate v. The Pennsylvania Co., 102 N. Y., 120; 1 St. Rep,, 166; First National Bank of Cincinnati v. Kelly, 57 N. Y., 34. The facts in this case show that the. section quoted has no application. The plaintiff before this action was commenced had paid the claim of the Ontario Bank and was subrogated to all its rights as against the defendant; his cause of action was on the draft although inartificially pleaded ; the defendant, by the verdict of the jury, is found to have received the cargo of peas which was covered by the warehouse receipt held by the bank, and there is no reason, in morals or in law, whv it should not pay the draft accepted in payment for property it Las reduced to possession. As to the second and third causes of action it is unnecessary to discuss them in detail; it is sufficient to say that the verdict of the jury is warranted by the evidence. The judgment must, therefore, be affirmed unless the exceptions in the case dislose errors of law calling for reversal.

The defendant’s counsel took a large number of exceptions to the charge of the trial judge and to his refusals to charge as requested, but they are disposed of by the view we take of this case on the merits. There were numerous exceptions taken during the trial, all of which have been examined. We are of opinion that none of them requires special comment unless it be the exception to receiving in evidence a certain telegram sent by defendant’s vice-president, J. H. Howard, to Cole, the consignor of the cargo of peas in question. The objection was made that this telegram was not sufficiently proved to entitle it to be read. Assuming the telegram to have been improperly received, it worked no prejudice to the defendant, as its counsel had previously introduced in evidence a letter from Howard to Cole dated the day after the telegram and referring to it, and repeating an offer therein contained of partial payment on the amount due Cole from the defendant for said cargo of peas. The judgment and order appealed from are affirmed with costs.

All concur, except O’Brieít, J., not voting.

Judgment accordingly.


text:
    Edwin Beardsley et al., Resp’ts, v. The Lehigh Valley Railway Company, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    Condemnation proceedings—Award—Railroad crossing.
    An award, in condemnation proceedings, in the absence of proof that the damages allowed rested in any degree upon the form or manner of constructing the railroad crossing, is no defense to an action brought to compel the company to construct an underground crossing.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 4, 1892, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term. The nature of the action and the facts, so far as material, are stated in the opinion.

      A. P. Rose, for app’lt; James C. Smith, for resp’ts.

       Affirming 48 St. Rep. 485.

   Finch, J.

Two questions of law are raised in this case. The action is in equity to compel the defendant company to construct an under-grade crossing on the plaintiff’s farm. One of the reasons now given for such a crossing is that there may be in that manner provided a safe and convenient passage for cattle to reach water which would be much more inconvenient and unsafe if the only crossings were at grade. The defendant answered that such inconvenience had already been allowed and paid for in condemnation proceedings, and some of the evidence at that time given was recited as proof of the fact. There was testimony that the line of the railroad would leave the adequate and reliable supply of water wholly on one side of the track and the resulting inconvenience was taken into account. But the award was necessarily made upon the assumption that proper and suitable crossings would be made by the company, and the damages given are not shown to have rested to any extent upon the form or manner of constructing the crossings. Witnesses may have given their opinions on the supposition that the crossings would be at grade, but they did not say so and it does not appear that they excluded from their minds the possibility of an under-crossing, or that their estimates of the general damage to the farm would have been less if they had taken that possibility into account. The defendant promised nothing of the kind, and did not reduce or seek to reduce the damages by agreeing to give such a crossing. Both parties must be assumed to have stood upon their legal rights as to suitable crossings, and those rights survived the award and were in no manner extinguished or affected by it. That doctrine was substantially held in Jones v. Seligman, 81 N. Y. 190.

The second objection arises upon defendant’s exceptions to the admission of opinions showing the difference in value of the farm with or without the under-crossing, and recent decisions of ours are cited as authority. Roberts v. N. Y. Elevated R. R. Co., 128 N. Y. 455; 40 St. Rep. 454; Avery v. N. Y. C. & H. R. R. Co., 121 N. Y. 31; 30 St. Rep. 471. No such specific objection was interposed to the evidence. Mitchell v. Met. Elevated R. Co., 132 N. Y. 552; 43 St. Rep., 476. And since no judgment for damages was given, the opinions bore only upon the general question involved', and were not vicious in the sense of determining the identical questions of fact submitted for a decision.

Neither ground of appeal warrants a reversal.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Sidney B. Roby, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Railroads—Basement.
    While the easement exists in the land for the uses and purposes of its road, the company is entitled to the exclusive use, possession and control of the land.
    Same—Abandonment.
    The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of them-. selves sufficient to constitute an abandonment.
    3. Jud&ment—Modification.
    Modification, instead of a reversal of judgment, is not proper, where an interested person is not a party to the action.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made the first Tuesday of October, 1892, which denied a motion for a new trial and ordered judgment in favor of plaintiff upon a verdict directed on trial at circuit.
    This was an action of ejectment.
    Prior to July 13,1835, the Tonawanda Railroad Company acquired by condemnation proceedings for the use ana accommodation of its railroad the land, being twenty-five feet in width, now in question. The defendant has succeeded to the rights of that railroad company, and the plaintiff has succeeded to the rights of the original owner of the land, subject to whatever rights therein belong to the defendant. The plaintiff brought this action to recover possession of the land, alleging in his complaint, among other things, that “ the said New York Central and Hudson River Railroad Company had abandoned the use of the tracks laid across plaintiff’s premises and had ceased to use said tracks for railroad purposes ; that the use of said tracks is not necessary for the purposes of said railroad, and that they are of no public use whatever, and for some time past the tracks of said railroad company have been used only and exclusively for private purposes; that the said tracks are an obstruction upon plaintiff’s premises and the defendant continues to remain unlawfully in possession of said premises.” The defendant in answer to the complaint simply put in issue the allegations thereof quoted. Upon the trial of the action, at the close of the evidence, the trial judge decided that the plaintiff had title in fee to the land described in the complaint, and that he was entitled to the possession thereof, and he directed a verdict in his favor. The judgment upon that verdict having been affirmed the defendant has appealed to this court.

      Albert H. Harris, for app’lt; William F. Cogswell, for resp’t.

       Reversing 48 St. Rep. 201.

   Earl, J.

The strip of land in question was near the easterly terminus of the Tonawanda railroad, and since its acquisition for railroad purposes a track has been maintained thereon which has connection with the main track of the' defendant's railroad. In April 1889, the defendant and Arthur Gf. Yates of the city of Rochester, entered into an agreement whereby the defendant made a lease to Yates covering the land in question and other lands in the same vicinity for a term of fifteen years from the first day of May, 1889, at an annual rental payable quarterly. It was provided in the agreement that the land covered by the lease was to be used only for a coal yard and trestles for the purpose of receiving and handling coal transported over the railroad of the defendant. It reserved the right to terminate the lease at any time upon giving six months written notice; and Yates covenanted not to assign the lease or underlet the premises or any portion thereof. It agreed to furnish the ties and iron rails necessary for the use of the trestle and lay the tracks and keep them in repair, and he agreed to make all repairs in and about the trestle at his own expense, and to furnish the materials to construct the same, and at all times during the continuance of the lease to keeep the same in good repair and condition for use. It reserved from the lease “ the use and control of the said track and trestle for all the purposes of a railroad, together with the strip of land twenty-five (25) feet in width adjoining the Erie canal, acquired for the purposes of said railroad.”

It appears that under this agreement Yates went into possession of the land, built the trestle thereon, by raising the tracks, built a shed over the tracks inclosing the tracks and trestle, and made coal bins or pockets beneath the same ; that he had the sole and exclusive use of the land and- trestle for his coal business; that no one else except the defendant and its agents and employees and persons having business with Yates could have any access to the track and the land, and that the only use the defendant made of the land and the track thereon was for the delivery of coal to Yates. Substantially upon this evidence the court below held that the defendant had abandoned the use of this strip of land for the purposes of its railroad; that the land had, therefore, reverted to the plaintiff, and that he was entitled to recover the same in this action.

The interest of the defendant in this strip of land was a permanent easement for the uses and purposes of its railroad. Heard v. City of Brooklyn, 60. N. Y. 242 ; Miner v. N. Y. C. & H. R. R. Co., 123 id. 242 ; 33 St. Rep. 211; Weston v. Foster, 7 Met. 297; Proprietors of Locks, etc., v. N. & L. R. R. Co., 104 Mass. 1. While this easement exists the defendant is entitled to the exclusive use, possession and control of the land, and the owner of the fee has no right to use, occupy or interfere with the same in any manner whatever. Under the general laws of the state, railroad corporations are bound to keep their tracks guarded and protected by fences and cattle guards, and there is no right of crossing by the owners of adjoining property except at farm crossings, to be built for the use of adjoining farm owners. While it has been held in some cases that the owner of a fee, subject to the railroad easement, has some right to use the land taken, not inconsistent with the easement, the better view of .the law, supported by the greater weight of authority, is that the use of the railroad company while the easement exists is exclusive of the owner of the fee. Pierce on Railroads, 159, 160 and cases cited ; Mills on Eminent Domain, § 208 ; Hazen v. B. & M. R. R. Co., 2 Gray, 574 ; Munger v. Tonawanda R. R. Co., 4 N. Y. 849.

We think the evidence does not show that the defendant had abandoned this strip of land, or its easement therein, so that the owner of the fee became entitled to the possession thereof. An easement may be abandoned by unequivocal acts showing a clear intention to abandon, or by mere non-user, if continued for a long time. The mere use of an easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment-. Washburn on Basements, 2d ed.631, et seq. and cases cited; Hoggatt v. Railroad Company, 34 La. An. 624 ; Curran v. City of Louisville, 83 Ken. 628; Proprietors of Locks, etc., v. N. & L. R. R. Co., 104 Mass. 1; White's Bank of Buffalo v. Nichols, 64 N. Y. 65 ; Crain v. Fox, 16 Barb. 184; Snell v. Levitt, 110 N. Y. 595; 18 St. Rep. 611. Under these authorities the acts claimed to constitute the abandonment of an easement must show the destruction thereof, or that its legitimate use thas been rendered impossible by some act of the owner thereof, or some other unequivocal act showing an intention to permanently abandon and give up the easement. Here there were absolutely no acts of the kind mentioned. The defendant could put an end to the lease to Yates at any time by giving the six months notice. It continued to use the track passing over the land in question for railroad purposes, to wit, the transportation of coal to Yates, and it actually reserved the use and control of the track and land for railroad purposes. I can assert with great confidence, after a diligent examination of. the books, that no authority can be found holding that upon such facts an easement has been absolutely lost to the owner thereof. x

The court below, therefore, erred in ordering judgment for the plaintiff, absolutely taking this land from the defendant.

But the learned counsel for the plaintiff asks that instead of reversing the judgment we modify it so as to give judgment to the plaintiff, subject to the proper easement of the defendant. This we ought not to do. The action was commenced, tried and decided solely on the ground that the defendant had forfeited its rights in the land question. Yates is not a party to the action, and he has not been heard. We ought not to pass upon his rights under his lease without hearing him. Upon the plaintiff’s theory of his rights, Yates is a necessary party to this action, and before the new trial he should be made a party. Code, §§ 1502, 1503. The case of Proprietors of Locks, etc., v. N. & L. R R. Co., supra, is not an authority for the modification asked, though such a judgment as the plaintiff now wants by the modification was there given. There, the lessees, as I infer, were actually represented in the litigation. The facts were all agreed upon without reference to the pleadings or the parties. There it was stipulated that if “ the demandants have any cause of action against the railroad corporation or their lessees, or either of them, such judgment is to be rendered in this action against the tenants as the demandants w'ould be entitled to recover upon the facts, in any form of action against the tenants or either of their lessees.”

Besides, we are not now, upon the evidence appearing in this record, prepared to pass upon the rights of Yates under his lease and the power of the defendant to use this land substantially as it now uses it. The matter is not free from doubt, and we leave it to be determined upon fuller argument and a more careful presentation of the facts when the proper parties are in court, simply calling attention to the following authorities, in addition to those above cited; Morawetz on Corporations, § 190; People ex rel. Fairchild v. Preston, 140 N. Y. 549; 56 St. Rep. 480; W. U. Tel. Co., v. Rich, 19 Kansas, 517 ; Illinois Cent. R. R. Co. v. Washen, 17 Ill. App. 582; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454: Carolina Cent. R. R. Co. v. McCaskill, 94 N. C. 746 ; Pierce v. B. & L. R. R. Co., 141 Mass. 481; Hooper v. Burne, 1 Q. B. Div. 339 ; Mullener v. Midland R. R. Co., 11 Ch. Div. 611; Reformed Church v. Schoolcraft, 65 N. Y. 134; In re N. Y. C. etc., R. R. Co. v. M. G. L. Co., 63 id. 230; Strong v. City of Brooklyn, 68 id. 1; In re N. Y. C. etc., R. R. Co., 77 id. 248; In re the application of the Staten Island Rapid Transit Company to Acquire Lands, 103 id. 251; 3 St. Rep. 48

Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide event.

Judgment reversed.

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


text:
    William N. Dickinson, Resp’t, v. James H. Hart, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Damages—Contract.
    Upon the breach of a contract, whereby the defendant agreed to furnish the plaintiff with certain facilities to carry on certain business for a certain percentage of his gross sales, the rule of damages is the agreement to the plaintiff at the time of its breach.
    3. Same—Uncertain elements.
    Even though the elements from which the jury are to determine the amount of damage are uncertain and problematic, they may be sufficient to form the basis for the verdict.

      Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made December 12th, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for alleged breach of a contract.
    Plaintiff, who was engaged in the stationery business, on April 6th, 1887, entered into an agreement with defendant, who was a jeweller and occupied a store in the city of Brooklyn, which is set forth in the complaint. Plaintiff moved his business into the store and carried it on pursuant to the agreement for two years, when defendant moved his business to another store, taking away the shelving and the show cases, including that furnished for plaintiff’s use. He let one-half of the store to a dyeing establishment, and the other half, to a second-hand clothier, which would necessitate the putting of a partition through the centre of the store. No show case or shelving were afterwards offered plaintiff by defendant. Plaintiff left the store and engaged in business elsewhere. A verdict for $3,000 was rendered in his favor.
    The further material facts are stated in the opinion.

      James Troy, for app’lt; Charles J. Patterson, for resp’t.

       Affirming 50 St. Rep. 504.

   Earl, J.

At the time of making the agreement hereinafter set out, the plaintiff had had large experience in the stationery business, and the defendant was the owner of a store on Fulton street, in the city of Brooklyn, in which he carried on the jewelry business. The agreement is as follows :

“Brooklyn, Kings Co., April 6th, 1887.
“ This agreement, made this day between James H. Hart and William N. Dickinson, both of said city of Brooklyn, certifies that James H. Hart hereby agrees to furnish to William N. Dickinson one show case with suitable shelving, also the use of one show window every alternate week during the first year for the purpose of conducting a stationery business in the store 318 and 315 Fulton street, all stock for same to be supplied and all expenses of the department to be borne by William N. Dickinson, in consideration for which privilege William N. Dickinson is to pay to James H. Hart five per cent, of gross sales from date to May 1st, 1888, and ten per cent of gross sales from May 1st, 1888, to May 1st, 1892.
“Accounting to be made monthly.
“ James H. Hart.
“We N. Dickinson.”

The plaintiff entered the store and carried on the stationery business as provided in the agreement, until about the first of May, 1889, when he claims the defendant ousted him from the store, and broke up his business, and he .brought this action to recover his damages, and he recovered a judgment for $3,000.

Upon the argument is this court the learned counsel for the defendant called our attention to many exceptions taken by him upon the trial; but we do not deem it important to notice many of them particularly.

The agreement provided that the plaintiff might carry on his business in the defendant’s store for a period of about five years, to the first day of May, 1892. It was evidently contemplated by the parties that the stationery business should become a department in the defendant’s store, where he was carrying on the jewelry business. The defendant could not after the plaintiff entered upon his business in the store, so change the character of the business to be carried on there and the arrangements of the store as to make it wholly unfit and unsuitable for the plaintiff’s business. The contract was made, not only in reference to the plaintiff’s business, but also to the defendant’s business. While the defendant may not have been obliged to continue the jewelry business, yet he could not so change the internal arrangement of the store, and so introduce other business therein as to render impracticable and unprofitable, and destroy the plaintiff’s business.

We think upon all the evidence it was a question of fact for the jury to determine whether the defendant by what he did and said did not oust the plaintiff from the store, break up his business there and violate the agreement he had made with him; and in submitting the evidence to the jury upon that branch of the case we think the trial judge did not violate any rule of law.

This agreement did not really create the relation of landlord and tenant between the parties. The defendant agreed to furnish the plaintiff with certain facilities to carry on certain business in his store, and the plaintiff was bound to carry on that business there during the period specified in the agreement and to pay the defendant for the privileges accorded to him in the store a certain percentage of his gross sales. The agreement created a business arrangement for the benefit of both parties. The counsel for the defendant is, therefore, in error in claiming that the rule of damages to be applied in this case is that which would have been proper if the relation of landlord and tenant had existed. In such a case, where there has been an eviction, the general rule, to be varied by circumstances is, that the tenant is entitled to recover the difference between the rent reserved and the value of the use of the premises. But the peculiar nature of this agreement is such that the only general rule of damages which could be applied was the value of the agreement to the plaintiff at the time of its breach. Taylor v. Bradley, 39 N. Y. 129; Wakeman v. Wheeler & Wilson Mfg. Co., 101 id. 205; Bernstein v. Meech, 130 id. 354; 41 St. Rep. 700.

While the elements from which the jury could determine the amount of the plaintiff’s damages were more of less uncertain and problematical, yet we think they were sufficient to furnish a basis for the verdict. The plaintiff proved the gross amount of his sales in each of the two years he was in the defendant’s store, and the amount of his net profits, showing that during the last year his sales and profits had largely increased. He also proved what income he was able to make in his business elsewhere during the succeeding year, and what he was able to earn after his business in defendant’s store had been broken up; and from these and other facts appearing in the record there was a basis, however unsatisfactory, for the amount of damages awarded by the jury.

We have carefully scrutinized the rules of law laid down by the judge during the trial and his charge to the jury, and we are satisfied that he committed no error.

While the verdict is quite large and if we had the power to deal with it we might regard it excessive, we have no alternative but.to affirm the judgment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Peckham, J.

text:
    Toney DeLuka, App’lt, v. Richard Goodwin et al., Resp’ts.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Guaranty—Payment.
    In an action on a guaranty simply of payment of the installments specified. in a building contract when the house arrived at certain stages, the complaint is properly dismissed, where the conditions under which the unpaid installments were to become due had not happened.
    2. Same—Construction.
    The contract of guaranty was construed to secure the payment of the several sums agreed to be paid to the contractor by the agreement between him and the principal at the times and in the manner therein specified.
    Appeal from judgment of the general term of the city court of Brooklyn, entered upon an order made November 30, 1892, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at special term.
    This was an action upon a guaranty executed by defendants and annexed to a building contract entered into by plaintiff with the firm of D. C. Boss & Go.
    The guaranty in question and the facts, so far as material, are stated in the opinion.

      Joseph A. Burr, for app’lt; Paul F. DeFere, for resp’ts.
   Peckham, J.

The sole question here arises as to the meaning of the guaranty signed by defendants.

The plaintiff had entered or was about to enter into a contract with Miller & Boss to do the mason work upon some houses which they were then intending to erect in Brooklyn on land which they had purchased from the defendant Goodwin. They had agreed with Goodwin to build the houses of a specified kind, and he had agreed with them to loan them the sum of $15,000, to be secured by their bond and by a mortgage on the land. The loan was to be made in installments as the work progressed on each house and at certain specified stages of the work.

The agreement between plaintiff and Miller & Boss was in writing, and the plaintiff was to be paid a certain named sum when the basement walls on any three buildings were built ready for the second tier of beams, and certain other sums when certain .other and further work bad been done, the sum total being $16,-750. The defendants then signed the guaranty which follows the agreement between plaintiff and Miller & Eoss, and it is in this language:

“In consideration of the party of the second part above named entering into the covenants contained in the foregoing agreement, and in consideration of the sum of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, we, Eichard Goodwin and John W. Phelps, hereby jointly and severally guarantee to the said Toney De Luka, party of the second part as aforesaid, the payment of the several sums agreed to be paid to him in the foregoing agreement at the times and in the manner therein specified.
“Dated July eighth, 1890.
“Goodwin & Phelps.”

After the execution of the agreements above mentioned the plaintiff entered upon the work and did everything he was called upon to do by his agreement with Miller & Eoss up to the 26th of August, 1890, when they notified him to stop work, and it would have been necessary to stop in a few days in any event owing to their inability and failure to comply with their obligation to furnish timber so that the work could be carried on. The plaintiff was at all times ready, able and willing to carry on his contract with Miller & Eoss, and would have completed the work according to his contract if he had not been prevented by their action. The defendants on their part had also carried out their contract with Miller & Eoss, and the discontinuance of the work was not, rendered necessary by reason of any failure on the part of the defendants.

The court found as a fact that after deducting from the contract price of the work the sum necessary to complete the performance of the contract by the plaintiff, and the sum already paid to him on account thereof, there would be a balance of $4,399. This sum the plaintiff claims the defendants must pay by reason of the above guaranty, although the houses have not been built or the work done as provided in the plaintiff’s contract with Miller & Eoss.

If this guaranty is to be construed as one which guarantees the whole and entire performance of the contract on the part of Miller & Eoss, then the defendants would probably be liable, while if it be treated as one which simply guaranteed that Miller & Eoss would pay the plaintiff certain amounts of money at certain periods of the progress of the work provided for in the contract, it seems to be plain that the plaintiff has failed to prove his case.

We think the latter construction of the contract of guaranty is the true one.

The first reason that causes us to think so is that the contract itself says so in plain language. The defendants simply guarantee the payment of the several sums agreed to be paid the plaintiff by the agreement between him and Miller & Eoss at the times and in the manner therein specified. That seems to be a plain and unambiguous contract and one which does not require the aid of surrounding circumstances to make clear its meaning. But if they are looked at the meaning seems to remain the same. The defendant Goodwin owned the land, which b,e sold to Miller & Ross, and they were to put up the houses and he agreed to loan them $15,000 to be paid in installments as the work of building progressed. By a subsequent agreement Goodwin & Phelps agreed to advance to Miller & Ross an additional $1,000, secured by another bond and mortgage, and payable, with interest, on or before six months from their date. The circumstances surrounding the parties were such that defendants might be ready to make such a contract of guaranty as we think this was, and be at the same time quite unwilling to guarantee the full performance of the contract by Miller & Ross. If they simply were to guarantee the payment at the prescribed times they knew that as each installment became due the plaintiff from Miller & Ross the security of defendants’ mortgage upon the land and buildings became better, and they might- be willing to run the risk of the honest application of the loan made Miller & Ross to the building of the houses, while they would be unwilling to risk and to guarantee their ability to go on with the performance of the contract in other respects, such as placing the building and keeping them in readiness and condition for the work by plaintiff. The result shows the reasonableness of the distinction.

Miller & Ross have been- unable to go on with their work in furnishing lumber so that plaintiff might do his work, and it is from no fault of defendants that Miller & Ross have so failed. The fact now appears that the buildings have not arrived at that stage when any further payments are due plaintiff under the contract, and consequently no breach of defendants’ contract has occured. The defendants have not guaranteed that Miller & Ross should furnish the lumber. They only guaranteed they would pay certain amounts when the houses arrived at certain stages in the progress of their erection. They have not yet been thus far built. There is nothing in the language of the guaranty which imposes an obligation on defendants’ part to see to it that Miller & Ross will so act that plaintiff will be enabled to go on and build the houses and thus complete his contract with them. On the contrary, the guaranty is quite clearly otherwise. Nor are the defendants estopped from asserting that the conditions upon which they agreed to guarantee the payments to plaintiff have never happened. There is no question of estoppel in the case.

We think the decision made by the special term was correct, and its judgment dismissing the complaint should be affirmed, with costs.

All concur.

Judgment affirmed.