text:
    Susanne L. Ehmer, Resp’t, v. Title Guarantee and Trust Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Principal and agent—Mistake—Liability.
    An agent who, by negligence, purchases a lot for its principal other than the one it is authorized to buy, is liable for the additional cost occasioned by such neglect.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Edward E. Sprague, for app’lt; J. T. Mareau, for resp’t.
   Brown, P. J.

The question raised by this appeal relate to the measure of damages applicable to the' facts of the case. The material facts, as determined by the jury and now agreed upon by counsel, are substantially as follows: The plaintiff, having verbally contracted with one O’Neil to purchase the premises known as Ño. 125 Fourth avenue, in the city of Brooklyn, employed the defendant to prepare the contract, examine and insure the title, and to represent her in the transaction. The purchase price was to be $4,000, and the premises were to be conveyed subject to a mortgage of $9,000. By an error of defendant, the written contract of sale described Ño. 123 Fourth avenue as the premises to be sold to the plaintiff, and defendant accepted for the plaintiff, from O’Neil, a deed for No. 123, subject to a mortgage for the amount aforesaid, and paid to him the sum of $4,000, which it had theretofore received from the plaintiff, and thereupon issued to plaintiff a policy guaranteeing her against all defects in, or incumbrances upon, the title so conveyed. Plaintiff thereupon entered into possession of No. 125 Fourth avenue, and continued in possession thereof until June, 1893, when she was evicted by the then owner thereof, who appears to have been a purchaser under a foreclosure of a second mortgage. At the time O’Neil entered into the contract with the plaintiff, he owned both premises. They were of equal value, and each was incumbered with a first mortgage of $9,000, and, at the time of the conveyance, No. 125 was subject to a second mortgage of $5,000. Plaintiff discovered the error in the conveyance about three months after the delivery to her of the deed, and, subsequent thereto, in an action brought for that purpose recovered a judgment against O’Neil, reforming the deed, and inserting therein the description of No. 125 in lieu of No. 123 Fourth avenue. The court charged the jury that, if they found for the plaintiff, she was entitled to recover $4,000, with interest from June 1, 1893, the date of the eviction, if the property was then worth that sum above the incumbrance ; and it refused to charge that it was the duty of the plaintiff, upon discovering the mistake in the description, to sell the premises actually conveyed to her for the highest price obtainable, and thus reduce the damages, and that, in the absence of any evidence that there was a difference in the value of the two houses, defendant was not liable for more than nominal damages. The exception to these rulings presents the question to be considered on this appeal.

The duty which the defendant owed to the plaintiff under its contract was not to pay over to O’Neil the sum of $4,000, which it had received from the plaintiff, until it received from him a conveyance of No. 125 Fourth avenue, subject to no other incumbrance than a mortgage of $9,000. This obligation the defendant was bound to perform with reasonable care ; and if, by reason of its negligence, it parted with the money which it received from the plaintiff without obtaining for her a title to the property named, it immediately became liable to return to her that sum. The proposition that, because it received for her a deed for property of equal value, therefore she suffered only nominal damages, is plainly unsound. The purchase of a piece of land cannot be likened to the purchase of corporate stocks or merchandise. Each piece of land has a character and location of its own, and differs in some essentials from all other real estate. The plaintiff had a right to the conveyance of the lot of her choice, and she was not bound, in her relations with the defendant, to accept some other piece of land, for the sole purpose of relieving it from the loss arising from its neglect. When it appeared, therefore, that the result of the defendant’s management of the business was that it had obtained from O’Neil the title to a piece of land other than that which the plaintiff intended to purchase, it became immediately liable to restore to her the money it had received from her. Nothing that the plaintiff did after she discovered the mistake relieved the defendant from the liability to restore the mopey. It has not been charged with the costs of the action against O’Neil to reform the deed, as it might have been, if that action was prosecuted in good faith; and the fact that a second mortgage on No. 125 was foreclosed, and the plaintiff evicted from the property, has not increased the defendant’s liability. The pertinent and material fact in the case is that it received from the plaintiff $4,-000 with which to acquire for her the title to. a specific piece of land. It has not acquired the land, and it has paid away the money. The jury having found this to be the result of negligence, the obligation to restore the money is plain.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Joseph Spears, as Executor of William C. Spears, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Executors—Real estate.
    If an executor or administrator assumes possession of property which descends to the heirs of an intestate or passes under the will of a testator to the devisees, and collects the rents, the remedy of the persons entitled to such rents is by an action at law.
    2. Surrogate—Jurisdiction.
    The surrogate has no jurisdiction to determine controversies arising in regard to the real estate of a testator or intestate, to which he has no right of possession.

      3. Will—Construction.
    A will, which leaves to the executor the disposal of the testator’s property, does not create a trust, nor give to him any title to, or right of possession of, such real estate so as to entitle him to collect the rents thereof.
    Appeal from part of the decree of the surrogate.

      Sachett & Lang, for app’lt; /Samuel Keeler, for resp’ts.
   Brown, P. J.

This appeal is from a part of the decree of the surrogate of Westchester county, rendered in a proceeding for the final settlement of the accounts of the appellant as the executor of the last will and testament of William 0. Spears, deceased. The case states that the account of the appellant “purported to contain a full statement of all the rents and expenditures on the real estate belonging to said William 0. Spears from the time of his death down to June 1, 1894, which showed that the sum of •eight thousand and fifty-one 37-100 dollars was expended on said real estate for taxes, water rates, repairs, etc.” All parties interested objected to this part of the account, and the surrogate decided “ that no estate in the real property of the testator was vested by his will in the executor, and no trust in relation to the real estate was created by the will.” All items for rents and expenditures were therefore stricken from the account. Property that descends to heirs of an intestate or passes under the will of - a testator to devisee does not go to executors or administrators, and, if they assume possession of it, and collect the rents, the remedy of the persons entitled to it is by a proper action at law. A surrogate has no jurisdiction to determine controversies arising from such matters. His power to control the conduct of executors and administrators is limited to property of which they have the right of possession. Calyer v. Calyer, 4 Redf. Sur. 305; Shumway v. Cooper, 16 Barb. 556.

The will of the testator was as -follows :
“New York, Feb. 28th, 1891.
“I, William 0. Spears, being of sound mind, and being about to go to Florida, make this, my last will and testament. I hereby make my brother Joseph Spears my sole executor, and leave to his judgment, as he may see fit, the disposal of all my real and personal property, to be divided among my heirs as his judgment may deem best and most fitting to him, and to be sold or held as long as he may deem best for the interest of my heirs.
“William 0. Spears.” -

This instrument did not create a trust, and the executor took thereunder no title to the testator's real estate. Its legal effect was to grant to the executor.a power for the purpose of the division of the land among the heirs, who took the title subject to the execution of the power. 1 Rev1. St. p. 729, § 56; Cooke v. Platt, 98 N. Y. 35; Chamberlain v. Taylor, 105 N. Y. 185; 7 St. Rep. 517. The appellant had no authority, therefore, as executor, to collect the rents of the land, or make expenditures thereon, and his acts in so doing were not a subject of accounting before the surrogate.

The part of the decree appealed from must be affirmed, with costs, to be paid by the appellant.

All concur.


text:
    George H. Passey, Resp’t, v. Horace Craighead, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal—Facts.
    The facts can only be reviewed upon an appeal from an order denying a motion for a new trial and, to give the court jurisdiction to hear such an appeal, the order denying t’>e motion must be duly entered.

      Appeal from a judgment, entered on a verdict in favor of plaintiff.

      William A. Boyd, for app’lt; Frederick W. Sherman, for resp’t.
   Brown, P. J.

The facts in this case are-not before the court for review. While the notice of appeal purports to be from an order denying a motion for a new trial, there is no such order in the case. The record states that a motion for a new trial was made upon the judge’s minutes, and denied, and there is an exception to that ruling. The exception is not, however, available to the appellant on an appeal from the judgment. The facts can only be reviewed upon an appeal from an order denying a motion for a new trial, and, to give the court jurisdiction to hear such an appeal, the order denying the motion must be duly entered. Ehrman v. Rothschild, 23 Hun, 273; Boos v. Insurance Co., 64 N. Y. 242. Hone of the exceptions to the rulings of the court are well taken. The action was to recover damages sustained from the bite of a dog. The plaintiff testified to a conversation with the defendant which, if believed, showed the dog to be vicious, and that the defendant was aware of its character. This testimony required the submission of the case to the jury, and the exception to the denial of the motion to dismiss the complaint cannot be sustained. The counsel has called our attention to many circumstances tending to weaken the plaintiff’s testimony, but their consideration was all for the jury, and affect only the weight of evidence. As we are confined, in our review of the case, to the consideration of legal questions, the argument is without weight. We have examined the exception to the rulings upon the admission of evidence and to the charge of the court, but none of them require the reversal of the judgment.

The order must be affirmed, with costs

All concur.


text:
    Eva Joel, App’lt, v. Woman’s Hospital in the State of New York, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Neglig-ettob—Hospital—Hubse.
    A hospital, which is a public charitable corporation, is not liable for the negligence of a nurse, if it has not omitted to exercise due care in her selection.
    Appeal from a judgment, dismissing the complaint on the merits.

      L. J. Morrison, for app’lt; H. JET. Vernon, for resp’t
   Brown, P. J.

The plaintiff was a patient in the defendant’s hospital from September 15 to December 15, 1892. While there she was placed under the influence of an anaesthetic during the performance of an operation. The evidence showed that patients, after undergoing operations, were usually placed on beds that were heated with bottles of hot water. The plaintiff was placed in a bed heated in that manner, but from which the nurse had neglected to remove the bottle, and the consequence was that her foot, coming in contact with the bottle, was severely burned. The evidence showed the defendant to be a public charitable corporation, and the appellant does not now deny that such is its character. Being such, we are of the opinion that the complaint was properly dismissed. Van Tassell v. Man. Eye & Ear Hospital, 39 St. Rep. 781, presented a case similar to that now before this court, and it was there decided by the general term of this department that the defendant was not liable except for the omission to exercise due care in the selection of its surgeons and other employes. In the absence of any controlling authority in state, we are bound by that decision. The great weight of authority, however, supports the ruling of the trial court. MeDonald v. Hospital, 120 Mass. 432; Insurance Patrol v. Boyd, 120 Pa. St. 624; Doyle v. Infirmary, 80 N. Y. 631; Harris v. Woman's Hospital, 27 Abb. N. C. 37; 39 St. Rep. 98; Allen v. State Steamship Co., 43 St. Rep. 386; O'Brien v. Steamship Co., 154 Mass. 272. In the case of Galvin v. Hospital, 12 R. I. 411, the ruling of the trial court, to which exception was taken, was much broader than in the case before us. In that case a verdict was directed for the defendant on the ground that a public charitable corporation was exempt from liability for any negligence on the part of its trustees, agents, etc. While there is very much in the opinion tending to support the appellant’s contention, the case as presented by the exception is not necessarily an authority in her favor.

The judgment must be affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Oscar Lagerquist, Resp’t, v. United States Industrial Insurance Company, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Triai—Direction of verdict.
    Where both parties unite in requesting the court to direct a verdict, they are both deemed to have agreed that the facts may be determined by it, and its decision will be sustained if there is any evidence to uphold it.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Johnston & Johnston, for app’lt; J. Edward Swanstrom, for resp’t.
   Dykman, J.

This is an appeal from a -judgment in favor of the plaintiff for the sum of $254.52, which was entered on the verdict of a jury directed by the court after a trial before a jury, and also from an order denying a motion for a new trial on the minutes of the court. At the close of the testimony on both sides the counsel for the defendant requested the trial judge to direct a verdict for the defendant, on the ground that there was a breach of the warranty contained in the policy, and also false representations which voided the policy. The trial judge then asked the plaintiff if he requested the direction of a verdict, and was answered in the affirmative. Thereupon the trial judge directed a verdict for the plaintiff. Then the counsel for the defendant requested permission to go to the jury, and the trial judge then stated that he denied the motion of the defendant and granted the motion of the plaintiff, and directed a verdict for him. There was an exception to such direction.

The record presents no error. When the counsel for both parties unite in requesting the court to direct a verdict, they are both deemed to have agreed that the facts might be determined by the trial judge, and this decision will be sustained if there/be any evidence to uphold it. Dillon v. Cockcroft, 90 N. Y. 649; Mayer v. Dean, 115 N. Y. 556; 26 St. Rep. 375. In this case there was ample evidence to support the decision of the trial judge, and this order, denying the motion for a new trial on the minutes of the court, must be affirmed, with costs.

Pratt, J., concurs; Brown, P. J. dissents.


author: Pratt, J.

text:
    Patrick Hart, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts. George Waldie, Resp’t, v. Same, App’lts. Mary Ann Wright, Resp’t, v. Same, App’lts. Stephen Ryder, Resp’t, v. Same, App’lts.

      (Supreme Court, General Term, Second, Department,

      Filed July 26, 1895)

    Equity—Retaining jurisdiction.
    Where an action against an elevated railway for damages and for an injunction has been begun before any move is made to acquire the easemeuts in the street, though the company has operated its road eight years, it is proper to refuse a motion to stay the action till the termination of a condemnation proceeding, or to send the case to the circuit.
    Appeal from an order, denying a motion to send the cases to the circuit, or for a stay until the determination of condemnation proceedings.
    Hoadly, Lauterbach & Johnson ( William B. Paige, Jr., of counsel), for app’lt; Stephen M. Hoye (Francis B. Whitney, of counsel), for resp’ts.
   Pratt, J.

These actions were for damages for depriving the plaintiffs of light and air, and depreciating in value the plaintiffs’ property, by the building and operating a railroad in the street fronting plaintiffs’ premises.

Under all the circumstances, the court at special term was justified in denying defendants’ motions. The complaint asked for equitable relief, by an injunction restraining a continuous trespass. From an examination of the pleadings it cannot be said that the case does not come under tne head of equitable jurisdiction. It is a familiar rule that, a court once having obtained jurisdiction, it can dispose of all the issues in the case, and give such relief as the facts warrant. It is true that the practice formerly was to send such cases before a commission, and to stay the cases until the coming in of the report of such commission, and it was within the power, of the court to have taken such ■course with these cases, but we think it was discretionary whethef to do so or not. The railroad has been built and operated about eight years, and no move has been made by the defendants to acquire the easements in the street until after the commencement of these suits. This long delay was a sufficient cause to justify the plaintiffs in seeking relief, and the court in denying the motion. Notwithstanding the demand of the defendants, the remedy of going before a eonimission, it is plain, was not as speedy or as adequate relief as an immediate bearing before the court. There have been many cases like these in the last few years, but I have been referred to none or heard of none where a similar one has been dismissed as not within the powers of a court of equity to entertain. Had the defendants sought, under the statute, to acquire the right, the court would have probably stayed the suits until such proceedings were completed, but the plaintiffs having first commenced suit, jurisdiction attached and the motions were properly denied.

Orders affirmed, with costs.

All concur.


text:
    George Waldie, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Evidence—Opinion.
    Where the trial was "before the court, testimony, even though in the form of an opinion or conclusion rather than a statement of fact, will not be held misleading or prejudicial.
    Appeal from a judgment in favor of plaintiff.

      Hoadly, Lauterbaeh & Johnson ( William H. Paige, Jr., of counsel), for app’lts; Stephen M. Hoye (Francis R. Whitney, of counsel), for resp’t.
   Pratt, J.

This is a land damage suit, or action for loss of fee and rental value, in respect of premises on Adams street, in the city of Brooklyn. The defendants’ railroad was constructed and commenced to be operated in 1888. The premises consisted of a three-story and basement brick building, with brown-stone trimmings, thirty-five feet deep by twenty and one-half feet front; lot fifty feet deep. The motions made i n this case to send it to the ■circuit for trial, or to stay the suit until the damages were ascertained by commissioners, were properly overruled. See opinion in the case of Hart v. Brooklyn E. Railroad Co., decided at this general term, 69 St. Rep. 432.

There is no merit in the exception to the answer of the witness who testified that the cinders and dust turned the house black. It was more a fact than an opinion. At any rate the court could not have been misled to the prejudice of the defendants. Such matters are largely in the discretion of the court, and where the-case is tried before the court, without a jury, there is less chance of a decision being made erroneous by. the testimony, whether it. comes in the-form of an opinion or conclusion, or stated as a mere fact.

As to the amount of damages, we think there is evidence sufficient to support the conclusion arrived at by the judge who tried the case, and even if the damages were more we should find we would not be justified in reversing the judgment, which was based upon a trial by a judge who saw the witnesses and heard them testify, and could better judge of their truthfulness, fairness, and judgment than we can. We cannot see that there can be any objection as to the form of the judgment. It appears plainly enough that the court has assessed the damages upon the evidence. What he decided was the amount which the property was depreciated by interference with the light and air and access-to the premises. The amount of damages was a mere fact, which the court has found.

We think the judgment should be affirmed, with costs.

All concur.


author: Brown, P. J

text:
    Patrick Hart Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    /1. Evidehce—Elevated bailway—Damages.
    Upon, the trial of an action against an elevated railway for damages, evidence as to the rental value of property, other than that of the plaintiff, before and after the construction of the road, is inadmissible.
    2. Appeal—Harmless error.
    A judgment will not be reversed for error in the admission of testimony, when the court is satisfied, upon an examination of the whole case, that the appellants have not been prejudiced thereby.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion to send the case to the circuit, or for a stay pending condemnation proceedings.
    Hoadly, Lauierbach & Johnson and William H. Page, for app’lts; Stephen M. Hoye and Francis B. Whitney, for resp’t.
   Brown, P. J

Upon the trial of this action the court admitted evidence as to the rental value of property, other than that of the plaintiff, before and after the construction of the defendants’ road. The defendants objected to the admission of such testimony, and excepted to the ruling of the court. We are of the opinion that the testimony was inadmissible, and should not have been received. Huntington v. Attrill, 118 N. Y. 365; 29 St. Rep. 5; In re Thompson, 127 N. Y. 463; 40 St. Rep. 200. The rule stated in those cases is as applicable to rental value as to fee' value. In re Thompson it was said that “ a party may not establish the value «of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken.” But, although the ruling admitting the testimony was erroneous, we do not think that it affected the result reached by the court. The amount allowed for loss of rental was small, and is supported by other competent evidence, and the rule is well settled that a judgment will not be reversed for error in the admission of testimony, when the court is satisfied, upon an examination 'of the whole case, that the appellants have not been prejudiced thereby. McGean v. Man. R. R. Co., 117 N. Y. 219; 27 St. Rep. 337. The appellants have not, in this case, been prejudiced by the testimony admitted, and the judgment must be affirmed.

The defendants also appeal, in this and three other cases argued at this term of the court, from an order denying a motion to send the cases to the circuit for trial, and also denying a motion to stay the trial of the action pending condemnation proceedings. The cases were all of an equitable character, and were properly triable at the special term, and defendants were not entitled to a jury trial. The condemnation proceedings were commenced after the actions were at issue and upon the calendar of the court for trial. The decision made by this court in Re Brooklyn El. R. Co., 76 Hun, 79; 57 St. Rep. 652, is not therefore applicable, as in that case the actions which were stayed were commenced after condemnation proceedings were instituted.

The motion was properly denied,- and the order must be affirmed.

Judgment and order affirmed, with costs.

All concur.


text:
    Stephen Ryder, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895)

    Evidence—Elevated bailway—Damages.
    In an action against an elevated railway for damages, the burden rests upon the plaintiff to make out his case by a fair preponderance of testimony, and it is not sufficient for him to show only that Ms property had depreciated in value since the construction of the railroad, but it is incumbent upon Mm to produce testimony from which the court can fairly infer that the loss was to be attributed to the company.
    Appeal from a judgment in favor of plaintiff.

      William H. Page, Jr., for app’lt; Francis B. Whitney, for resp’t
   Brown, P. J.

We are of the opinion that the judgment appealed from is not sustained by the weight of evidence, and should be reversed. The property owned by the plaintiff is described as Ho. 379 Lexington avenue, and consisted of a lot 100 feet in depth, upon which there is a small frame building, standing back some distance from the street, and nearly fifty feet from the defendant’s structurc. The railroad was constructed and in operation in the year 1888, The plaintiff was not called as a witness, and it does not appear who occupied the property during any portion of the period involved in the action, nor what the actual rents have been before or since, the construction of the road. The respondent refers to the witness Baynard on this subject, but I understand the testimony of that witness on the subject of actual rents to refer to 367 Lexington avenue, where he lived, and not to the plaintiff’s house. The only testimony as to rental or fee value introduced by the plaintiff was that of one expert witness, who testified that rental values had fallen, since the construction of the road, from $22 to $16 per month, and fee values from $2,600 to $1,800. Opposed to this testimony was that of four expert witnesses called by the defendant, who testified in substance that both the rental and fee values of the property had increased since the construction of the road, and five specific pieces of property near that of the plaintiff were shown to rent for more at the present time than before the road was built,- and several pieces of property in the immediate neighborhood were also shown to have sold for a higher price since the construction of the road than before. While it is true that the increase in value of the several properties might be due to other causes than the existence of the railroad or the general rise in value, it is equally true that, if plaintiff’s property has depreciated, it may have done so from causes other than those to be referred to the railroad, and there is not a word of testimony in the case from which it can be inferred that, if the value of the plaintiff’s property has fallen, such is the result of the existence and operation of the railroad. The burden rested upon the plaintiff to make out his case by a fair preponderance of testimony. It was not sufficient for him to show only that his property had depreciated in value since the construction of the railroad. Very many causes may have operated to reduce the value of the property during the seven years that'have elapsed since the railroad was first constructed, and it was incumbent upon the plaintiff to produce testimony from which the court could fairly infer that the loss was to be attributed to the defendant. In the absence of any explanation why the plaintiff was not sworn as a witness we must infer that his testimony, if it had been given, would not have sustained his cause of action. As the case was rested wholly upon expert evidence, the decided weight of testimony is upon the side of t.he defendant.

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


text:
    George A. Powers, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Damages—Elevated bailwat—Causes.
    Where, in an action against an elevated railway for damages, it appears that the damages to the fee of the property was occasioned by two or more causes, for one of which the company is responsible, but for the other or others of which it is not responsible, the plaintiff must fail if it is just as probable that they were occasioned by the one cause as by the other cause or causes.
    Appeal from a judgment in favor of plaintiff.
    Hoadly, Lauterbach a; Johnson, for app’lt; Fred Ingraham, for resp’t.
   Pratt, J.

This is a land-damage action for loss of fee and rental value to the lot situated on Ela(tbush avenue, at the corner of Flatbush and Fifth avenues and Pacific and Dean streets, in the city of Brooklyn. The motion in this case to strike the same from the equity calendar and send it to the circuit for trial, and also the motion to stay proceedings until the damage could be assessed by commissioners, were properly overruled. See opinion in the case of Hart v. Brooklyn El. R. Co. (decided at the present general term of trial), 69 St. Rep. 432.

There are a large number of findings made by the court, by the request of both parties, and a large number of exceptions, most of which upon examination disclose no error sufficient to reverse the judgment; in fact the case was tried with great fairness and care. The rule is well settled that if the findings of the plaintiff are modified or nullified by findings for the defendant, then the defendants npon this appeal can claim those which are most favorable to them. If seems to me that the evidence is conclusive that there was no fee damage here to the property facing upon Flat-bush avenue or Fifth avenue, except at the point where it turns from Flatbush avenue into Fifth avenue. Indeed, the court has found substantially that the building of the road has benefited the property upon Flatbush avenue, and has failed to show any damage upon Fifth avenue that the property has received by reason of the road. At the point where it turns from Flatbush avenue into Fifth avenue it encroaches upon the sidewalk, and, of course, as the judge remarked at the trial, it could not fail to damage the property to some extent. Indeed, the court has found that the property, taken as a whole, described in the complaint, has received a special benefit for business purposes by reason of the operation of defendants’ road. It is not claimed or found that the property, so far as it borders on Dean street, has been injured by the presence of the defendants’ road. The court has also found that the effect of the proximity of the defendants’ stations to the property described in the complaint is advantageous to the business portion of the premises, and produces a special benefit for business purposes, so that the damages, if any, by the findings of the court and by the evidence, must be confined to the corner where the railroad turns from Flatbush avenue into Fifth avenue. There is no question as to what appears as well settled that in this class of cases the plaintiff is not entitled to recover any greater sum as damages to the use of the premises in suit than the net amount of consequential injury thereto, after setting off the known , value of the said property, from the said railroad against any injury or inconvenience therefrom.

There can be no question, as a matter of fact,—indeed the court has so found,—that the fee value of the land on Flatbush avenue, irrespective of any building thereon, has largely increased since the authorization and construction of the elevated railroad. He has also proved and found that the business of stores in the vicinity of the property described in the complaint has continued to improve in value. It is also claimed that the building of the road has made the plaintiff’s property more accessible by drawing people in the vicinity, and increasing traffic and business, and that the property for business purposes has been greatly benefited.

The court also refused to find that the existence of a large stable adjacent to the line of property described in the complaint, and extending from Dean to Pacific streets, has appreciably impaired the value of said property. The detrimental effect of a stable is conceded in the testimony of Bennett, Brown, Dougherty and Rustin. All agreed in the statement that a stable depreciates the value of property next door to it, of course.

The court also refuse to find that the failure to erect buildings and otherwise improve the property described in the complaint has impaired the said value of said property. This conclusively appears from the plaintiff’s own witnesses.

The court also refused to find that, if it appeared that the damages to the fee of the property described in the complaint were occasioned by one or two or more causes, for one of which the defendant is responsible and for the other or others of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and he must fail if it is just as probable that they were caused by the one cause as by the other cause or causes. This refusal to find was an equivalent to saying that he could not be bound by that rule of law in estimating the damages, which we think was error. Searles v. Railway Co., 101 N. Y. 661. The application of such a proposition of law is apparent, for the reason that a number of cases appeared in the proof by virtue of which diminution of fee value, if any were found, might be accounted for, and opposed to this is the testimony of plaintiff’s experts alone, stating that the fee value is less now than when the road was built, from which the road is argued to have been the cause of the depreciation. The rule of law to be applied was that, if the court was unable to ascertain between these two causes whether it was due to the one or the other,—that is, the unimproved character of the property reflecting upon itself, the existence of the stable, or the panic of 1892, or any other of numerous proven causes, as compared with the construction and operation of this road,—then the court was bound to decline to award damages to the plaintiff, who is bound to make out his case by a preponderance of proof. Cranston v. N. Y. C. & H. R. R. R. Co., 103 N. Y. 614; 4 St. Rep. 300.

It seems to me that, looking at the evidence in connection with the findings I have referred to, proposed by the defendant, that the court has found a difference between the injury to the property and the benefits accruing to the property from the road altogether too large. The decision is inconsistent with the findings and proofs submitted by the defendant. It is true that, so far as the court has really announced upon the trial any propositions o£ law, no criticism can be made; but we are bound to put the most favorable construction upon all the findings in favor of the defendant, and where one is inconsistent with the findings for the plaintiff, the whole finding must give way to the finding for the defendant. The form of the judgment, we think, is insufficient compliance with the Code of 1894, yet it is impossible to tell the”grounds upon which the conclusions were reached, except by the examination of the opinion and of the various findings for the plaintiff and defendant. It is perfectly clear that •only five or six lots upon Flatbush and Fifth avenues could have been injuriously affected by the elevated road, and the proof is that even now the lots would sell for as much or more than before the road was constructed. It may be observed that the lots upon the corner of Fifth avenue and Flatbush avenue are only fit for ■business purposes, and as such they are much more valuable than for dwellings, and in that respect it seems the property has been improved rather than depreciated.

The judgment is reversed, and new trial ordered.

Dykman, J., concurs; Brown, P. J., dissents.


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    William Spring, Resp’t, v. Watron H. Bowne, as Surviving Partner, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Pleading—Vabiance.
    A variance may be disregarded where there is no proof that the adverse party was misled to his prejudice.
    Appeal from a judgment,- entered on a verdict in favor of plaintiff.

      Wikox, Adams & Green, for app’lt; Stewart & MacJclin, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on a verdict of a jury. The suit was brought to recover damages for an injury to a canal boat. There is no exception in the case, except to a denial of the motion to dismiss the complaint, made when plaintiff rested, and again when the evidence closed. The action was one which, under the old practice, would have been called an action on the case. The, plaintiff undertook to transport in his canal boat a cargo of coal, consigned to the defendant from Wee-ha wken to Zeregas dock, in Westchester creek, and he claimed that, upon his arrival at the creek, the defendant assumed to tell him where to place his boat for the purpose of delivery, and that, by complying with the orders of defendant, his boat grounded, and was stranded and damaged. It was tried and submitted to the jury as a negligence suit. There was an allegation in the complaint that defendant promised and agreed, in case plaintiff complied with his request to move his boat to a place designated by the defendant for the purpose of unloading, to guaranty and ■save plaintiff harmless against injury. Upon this obligation the plaintiff offered no proof, and this fact was made by the defendant his principal ground of objection in the case, insisting that it. was such a variance as to prevent the plaintiff’s recovery. This' is not sound. There was a good cause of action stated in the complaint, leaving out the guaranty or indemnity clause, and it was competent for the court to treat it as surplusage. The rule is well settled that a variance may be disregarded, when no proof is furnished that the adverse party has been misled to his prejudice. Code, §§ 539-541. Hauck v. Craighead, 4 Hun, 561; Grossler v. Lissburger, 19 Wkly. Dig. 291. The issue was whether the evidence of plaintiff, if believed by the jury, brought the case within the rule that the “owner or person having the control of such a structure (to wit, a dock) is liable in damages to one, using due care, coming to it at his invitation or inducements, express or implied, on any business to be transacted by him, for an injury occasioned by the unsafe condition of the structure or1 the access to it.” The evidence warranted the inference that the defendant assumed control of the dock and told plaintiff where to place his boat. The case was so fairly and clearly put to the jury by the charge of the judge, to which no exception was taken, that there could have been no misunderstanding by the jury. The motion for a new trial was rightly overruled. We think the evidence in the case fully sustains the verdict, and that no error was-committed upon the trial.

Judgment affirmed, with costs. All concur.


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    Leibinger and Oehm Brewing Company, Resp’t v. Frederick H. Ernst, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Contract—Promise to pat third person.
    Where an agreement was alleged to have been made by the mortagor with the intended purchaser of the mortgaged chattels for the application on the mortgage of part of price tobe paid by such purchaser, and the-money was paid to his attorney and so receipted for, and upon the subsequent denial of such agreement by the mortgagor, the attorney paid the whole amount to him, the mortgagee cannot recover any portion of such purchase price from the attorney.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Henry' 0. Botty {Harmon H. Shook, of counsel), for app’lt; M.\ Hallheimer, for resp’t.
   Pratt, J.

In the early part of June, 1894, Lubersen verbally contracted to sell a saloon to Shoeffel, and was paid $25 on account of the purchase. On June 14th, Lubersen executed a written conveyance of the saloon for the expressed consideration of $100, subject to a mortgage of $1,000, and left it with the defendant, his attorney, to be delivered to the purchaser. On the 16th the purchaser and his attorney called on defendant to reeeivethe conveyance, and stated to him that Lubersen had agreed that the $75 unpaid balance of purchase money might be applied to reduce the mortgage. Defendant replied that he had not been notified of such agreement, but on receiving the $75 executed and delivered to the attorney of the purchaser a paper as follows :

New York, June 16th, 1894.
Rec’d from M. F. Lubersen the sum of $75, to be paid to Leibinger & Oehm Brewing Co. as part payment for goods sold and delivered hy said Brewing Co. to Lubersen.
(Signed) • Fred B, Ernst.

Later, when Lubersen saw defendant, he denied that he had agreed to apply the $75 to reduce the mortgage, and claimed that, it be paid to him, which was done. When the $75 was demanded by the brewing company, defendant refused to pay, and this action was brought. On the trial the principals and attorneys were all examined as witnesses. No proof was offered that Lubersen had in fact agreed to apply the $75 upon the mortgage. The defendant sought to show that Lubersen never did so agree, and the testimony was excluded. The defendant testified that at the time he gave the receipt he stated that he had no personal knowledge of the arrangement to apply the $75 on the mortgage, and should not pay it over without the authority of Lubersen. But the court held that the receipt was a contract that could not be modified by paroi, and directed a verdict for the plaintiff. Numerous objections are urged to this ruling. One apparently well taken, is that the agreement to apply the $75 on the mortgage seems to be a naked promise. No consideration moved to defendant, nor is any shown to have moved to his principal. It is not claimed that Lubersen ever authorized defendant to make the promise. And if it be, as sought to be shown, that Lubersen never agreed to apply the $75 on the mortgage, plainly the defendant would have had no ground to refuse to pay that sum to Lubersen on his demand. The $75 in defendant’s hands was received by him as attorney, which was known to all parties. Had the money in fact been placed in defendant’s hands as recited in the receipt, with instructions to pay it to plaintiffs, Lubersen could have countermanded the order at any time before it was paid over. Nor is there any evidence that plaintiffs ever changed their position in reliance upon the receipt. Upon the whole case we are of opinion that the plaintiffs did not establish a cause of action, and that the judgment must be reversed, and a new trial ordered, with costs to abide the event. All concur.


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    Jane Hussey, Resp’t, v. New York Recorder Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Pleading—Complaint—Libel.
    A complaint for libel, which sets out the libelous article and then alleges that plaintiff, by reason thereof, was injured and brought into public ridicule and damaged in her profession and' business, is sufficient without connecting her with the article, or showing that her name appeared therein, or alleging her profession or business.

      Appeal from an interlocutory judgment, overruling a demurrer to the complaint, interposed on the ground that it did not state facts sufficient to constitute a cause of action.
    The complaint, omitting the formal parts, is as follows:
    First. That the defendant is a domestic corporation, doing business as printers, publishers and proprietors of the newspaper known as the New York Recorder, having its main office or place ■of business at No. 15 Spruce street in the city of New York.
    Second. That on the 13th day of December, 1893, the defendant in this action falsely and maliciously published and caused to be published and circulated in the said newspaper the following false, scandalous, malicious and defamatory libel, to wit:
    "“Crazy Triplets—One Sister Takes Another to Bellevue, a Third Visits Them, and All are Declared Lunatics.
    “Susan, Elizabeth and Minnie Bassett came into this world, practically at the same time, thirty-five years ago. None of them married, and now all have been declared insane. Susan took Elizabeth to Bellevue last Friday, and asked that an inquiry might be made concerning her mental condition. The doctors soon decided that the woman was insane, and, while the examination was going on, Susan acted so strangely that she, too, was detained. She was pronounced a lunatic yesterday. The third sister had been in a Brooklyn hospital, suffering from nervous troubles, and when she heard of Jier sister’s whereabouts she insisted upon visiting them. She was allowed to do so yesterday, in company with a nurse, and upon arriving at Bellevue she, too, became insane. She was taken back to Brooklyn, and the others were sent to the Blackwell’s Island Asylum.”
    Third. That in a certain part of said libel there was and is contained, among other things, the false, scandalous, malicious, defamatory and libelous matter, following of and concerning the said plaintiff:
    ■“ Crazy Triplets—One Sister Takes Another to Bellevue, a Third Visits Them, and All are Declared Lunatics.
    “Susan, Elizabeth and Minnie Bassett came into this world, practically at the same time, thirty-five years ago. None of them married, and now all have been declared insane.. * * * The third sister had been in a Brooklyn hospital, suffering from nervous troubles, and when she heard of her sisters’ whereabouts she insisted upon visiting them. She was allowed to do so yesterday, in company with a nurse, and upon arriving at Bellevue she, too, became insane. She was taken back to Brooklyn.”
    Fourth. That such scandalous and defamatory matter was and is untrue.
    Fifth. That, as plaintiff is informed and believes, defendant knew the same to be untrue at the time of publishing the same.
    Sixth. That such scandalous and defamatory matter was so published bv defendant recklessly, and without investigation, or adequate investigation, as to the truth of the same, before such publication, and was so published for the sole purpose of sensation, as plaintiff is informed and believes.

      Seventh. That by the publication of the above-mentioned false, wicked, scandalous, malicious, defamatory and libelous article, the plaintiff has suffered greatly, and has been and still is greatly injured in her good name, fame and credit; that plaintiff has been brought into public ridicule, scorn, scandal and disgrace; besides, plaintiff has suffered great mortification, besides damage to plaintiff’s profession and business,'—in all to plaintiff’s damage ten thousand dollars ($10,000). Wherefore, plaintiffs demand judgment against the defendant, in the sum of ten thousand dollars ($10,000), besides the costs of this action.
    Burnett, Stayion & Hagen, for app’lt; Wm. M. Benedict, for resp’t.
   Pratt, J.

I entertain no doubt of the propriety of the action of the learned trial judge in overruling this demurrer. The case of Moore v. Francis, 121 N. Y. 199; 30 St. Re¡). 467, so much relied on by appellant, is an authority against it. We think the complaint states a plain cause of action for libel. We fail to find in the opinion in that case the words apparently quoted in defendant’s points. Judgment affirmed, with costs, with leave to defendant to answer within twenty days, on payment of costs. All concur.


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    The People ex rel. Joseph E. Smith, App’lt, v. Frederick E. Wurster, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Certiobabi—Return.
    Where the denials in the return, on certiora/ri, consists of conclusions of law, the court will consider the petition as well as the return.
    2 Municipal corporation—Fireman—Discharge.
    A surgeon, appointed to attend the sick members of the fire department, is a member thereof so as to protect him from removal without charges and trial.
    Certiorari to review the decision of the commissioners of the fire department of the city of Brooklyn in discharging relator.
    The following is a copy of the petition for the writ:
    “ The petition of Joseph E. Smith respectfully shows: First. That, at all the times hereinafter mentioned, petitioner was, and still is, a duly-qualified, licensed physician and surgeon, a citizen of the United States of America, and a resident and elector of the city of Brooklyn, county of Kings, and state of New York. Second. That, on or about the 31st day of March, 1886, petitioner was duly appointed a member of the fire department of the city of Brooklyn, to wit, a surgeon therein; received membership badge, marked “ Surgeon,” and a fire-box key, and a key to the different engine houses in said department; and was assigned to do dnty in district known as No. 2, which district comprises all that part of the city of Brooklyn lying north of Parkway and east of Washington avenue. Third. That petitioner thereupon duly qualified and entered upon the discharge of the duties of said office, and continued to perform the same until on or about the 28th day of February, 1894 ; that the services performed by petitioner between the 31st day of March, 1886, and the 28ih day of February, 1894, consisted of attending sick, injured, or disabled members of the fire department of the city of Brooklyn needing medical aid, and, whenever a second fire alarm in petitioner’s district, or third fire alarm in all parts of said city, was sounded, to respond thereto, and attend all fires when said alarm or alarms were1 sent out; and petitioner has attended and performed service as a member of said department, pursuant to its rules and regulations, during the past eight years, at upwards of one hundred fires ; that section 13 of chapter 2 of the rules and regulations of the uniformed force of the fire department of the city of Brooklyn provides: ‘The surgeons of the department shall be known as district surgeon No. 1 and No. 2, respectively. The district of No. 1 shall comprise all that part of the city lying west of Washington avenue, and the district of No. 2 shall comprise all that part of the city lying north of Parkway and east of Washington avenue. They shall attend all cases of sick, injured, or disabled members of this department, as soon as reported to them, and shall attend to alarms of fires as directed by the chief engineer.’ Fourth. That, on or about the 1st day of February, 1894, pursuant to law, the Honorable Charles A. Schieren, mayor of the city of Brooklyn, as such officer, appointed Frederick W. Wurster commissioner of the fire department of the city of Brooklyn, and said Frederick W. Wurster thereupon duly qualified and entered upon the discharge of the duties of said office, and has continued ever since, and still is, the commissioner of said fire department of the city of Brooklyn. Fifth. That, on or about the 28th day of February, 1894, said Frederick W. Wurster, as commissioner of the fire department of the city of Brooklyn, notified petitioner that he removed petitioner from his office in said department, and said commissioner has ever since refused to recognize said petitioner as a member of said department, or to allow petitioner to perform duty therein, or receive the pay of his said office. Sixth. That no charge or charges were ever preferred against petitioner as a member of said department, and no hearing or public trial was ever given petitioner by the head of said department ; and said attempted removal was without cause, and is not founded upon any charge preferred against petitioner, trial had, or hearing thereon, as required by law. Seventh. That, at the ti me of said attempted removal, to wit, the 28th day of February, 1894, petitioner was employed on the force for extinguishing fires in the city of Brooklyn, and had been so employed ever since the 31st day of March, 1886. Eighth. That, under the provisions of the charter of the city of Brooklyn relating to said department, petitioner was obliged to perform such duties relative to said office, above mentioned, as the commissioner of said department imposed upon or directed him to perform. Ninth. That said attempted removal of petitioner from membership in said department was had without cause, without a public trial by said commissioner as the head of said fire department; and petitioner was not found guilty or convicted of misconduct or neglect of duty or adjudged incapable of performing his duty; that petitioner was not convicted of any of the offenses specified in section 9 of title XIII of chapter 583 of the Laws of the state of Hew York for the year 1888, and the acts amendatory thereof. Wherefore petitioner prays that a writ of certiorari issue herein, directed to said Frederick W. Wurster, as commissioner of th'e fire department of the city of Brooklyn, commanding him to return to this honorable court all proceedings had and remaining before him touching the appointment and removal of petitioner from the fire department of the city of Brooklyn, together with his answer to all the allegations contained in this petition and the affidavit of John Ennis hereto annexed.”

      Edward F. O'Dwyer, for relator; Albert G. McDonald, for resp’t.
   Pratt, J.

Considering all the circumstances, I think plaintiff should be held to be a member of the force for extinguishing fires. To determine the question, the court will consider the petitioner for the writ and affidavits annexed thereto, as well as the return. The denial of the conclusion of law in the return is a futile method of defeating the relator. The latter was certainly not employed as a laborer, but as a necessary member of the fire force. It is clear he was originally appointed on the force, where he served for nearly ten years, after being qualified regularly. It is too late, and too transparent a fiction to succeed, to claim the relator is not on the force.

Judgment for relator. All concur.


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    The People ex rel. Daniel Dougherty, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal corporation—Fireman—Discharge.
    A laborer in the fire department is not a fireman within a statute prohibiting a discharge without a trial.
    Certiorari to review the decision of the commissioner of the fire department of the city of Brooklyn in discharging the relator.

      Edward F. O'Dwyer, for relator; Albert G. McDonald, for resp’t.
   Pratt, J.

Relator cannot be properly said to be a member of the force for extinguishing fires, but was employed, as his appointment shows, as a laborer. Taking the case of People v. Fire Com'rs, 28 Hun, 495, as the true interpretation of the law, the relator cannot_ be said to be a member of the fire force, but comes under the designation of those who can be removed without charge and a trial.

Writ quashed. All concur.


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    The People ex rel. William Kinsella, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Cébtiobabi—Retubn—Tbavebse.
    Where the return to a certiorari traverses the facts alleged in the writ and the papers on which it was granted, the hearing will be confined to the facts stated in the return.
    2. Same—Opinion.
    In such case, a statement in the return that relator is not a member of the force amounts only to an opinion, and the facts and circumstances, attending his relations to the force and appearing in the writ, return and papers, must be considered and the issue decided upon them.
    3. Municipal gobpobation—Fibbman—Dischabse.
    A laborer, appointed by a fire commissioner, is not a member of the fire department, requiring a trial before dismissal, though he is given a badge and a fire-box key, and might be called upon to hold a hose at a fire.
    Certiorari to review the decision of the fire commissoner of the fire department of the city of Brooklyn in discharging the relator.

      Edward F. O’Dwyer, for relator: Albert Gr. Me Donald, for resp’t.
   Pratt, J.

I think the relator was a member of the force for extinguishing fires, although it is denied by the respondent. The case relied on by respondent (People v. Board of Fire Com'rs of City of New York, 73 N. Y. 437), has been qualified so" that the case is not to be heard and decided alone upon the return, but upon the return and the papers upon which it was granted. People ex rel. Peck v. Commissions Dep't Fire & Buildings, 106 N. Y. 64; 8 St. Rep. 664. In that case Judge Earl in writing the opinion, said: ,

“ The practice prior to the adoption of the present Code requires that a hearing upon the return to the wtit of certiorari should be solely upon the return. People v. Fire Com’rs, 73 N. Y. 437. But by section 2138 of the present Code it is now required that a hearing upon the return of the writ of certiorari must be had ‘upon the writ and the return and the papers upon which the writ was granted.’ Under this section when the return meets the allegations of fact contained in the writ and the papers upon which it was granted, and traverses them, then the hearing must be confined to the facts stated in the return.” 106 N. Y. 64; 8 St. Rep. 664.

The respondent’s statement that the relator is not a member of the force amounts only to an opinión, ¡but the facts and circumstances attending his relations to the force, and appearing in the writ, return, and papers, must be considered and the issue decided upon them.

Where a man is appointed temporarily, or as a laborer merely, he cannot be said to be a member of the force, although he might be called upon to hold the hose at a fire. It depends somewhat upon the intention of the parties making and accepting the appointment. The giving of a badge and fire-box key are not eon-elusive, but the test is to be determined upon all the facts and circumstances disclosed. It is stated in the return that relator was hired as a laborer, never wore the uniform of the department, and never was upon the pay roll. From all the facts I am constrained to hold that he was never a member of the force, within the meaning of the statute requiring a trial before the department. can discharge him, but that he falls within the class that the commissioner can discharge without trial.

Writ quashed, without costs. i.

All concur.


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    The People ex rel. John J. Donlon, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal corporation—Fireman—Discharge.
    A coal passer, appointed by a fire commissioner, is not a member of the force extinguishing fires within the statute, prohibiting the discharge of a member of the force without a trial.
    Certiorari to review the decision of the commissioner of the fire department of the city of Brooklyn in discharging the relator.

      Edward F. QDwyer, for relator; Albert Q. Me Donald, for resp't.
   Pratt, J.

Whatever may have been the status of the relator prior to January 10, 1893, it appears in'the récord of the fire department that upon that day he resigned, and that upon the next day he was appointed as a coal passer. This is a position as. laborer, and is not within the class of persons under the statute entitled to trial before they can be discharged. It also appears-upon the minutes of the fire department that his original appointment was “temporarily as a laborer” in the department. I therefore find he was not at any time a member of the force for extinguishing fires.

Writ quashed, without costs.

All concur.


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    The People ex rel. Frank Bernard, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal corporation—Fireman—Discharge.
    A laborer, appointed by the fire commissioner, though he wears the uniform and assists at fires, is not a fireman within the statute, prohibiting the discharge of a member of the force without a trial.
    Certiorari to review the decision of the commissioner of the fire department of the city of Broooklynin discharging the relator.

      Edward F. O'Dwyer, for relatorAlbert Q. Me Donald, for resp’t.
   Pratt, J.

We are of the opinion that the relator herein was employed simply as a laborer, and as such was not of the force for extinguishing fires. The fact that he may have assisted at fires, or worn the costume of a fireman, is immaterial. He was in the employ of the fire department as a day laborer, and could have been called upon to perform any duty.

Therefore the writ should be quashed, without costs.

All concur.


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    The People ex rel. Michael J. Daly, App’lt, v. Supervisor of the Thirty-First Ward of the city of Brooklyn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal corporation—Opening- streets.
    Where the board of supervisors direct the opening of a street as a whole, the appointment, by the supervisor of the town, of commissioners for a part only of the street renders the proceeding void, and such defect is not cured by an order confirming the grading commissioners’ report.
    Appeal from an order, denying a motion for a peremptory mandamus.

      James G. Ghurch, for app'lt; II. B. Hubbard, for resp’t.
   Brown, P. J.

The relator, under a contract with grading commissioners, is engaged in the work of grading Neptune avenue in the town of Gravesend, and seeks a peremptory mandamus to compel the respondent, as supervisor of said town, to issue bonds of the town in compliance with the provisions of chapter 171, Laws 1893. The power of directing the improvement in question was committed by the legislature to the supervisors of Kings county, and, on June 13, 1892, by a resolution of said board, authority was given to open and grade the avenue “from West Sixth street to the westerly line of old lot 47, excepting that part between the Shell road and West Eighth street.” The resolution provided for the appointment of opening commissioners to estimate and award damages to the owners of lands, buildings, and other improvements taken from the street, and to assess the same upon the property benefited, and that the report of said commissioners should be confirmed by the supreme court or county court of Kings county, after due notice to all parties interested. It further provided that, after the confirmation of the report of said opening commissioners, the supervisor of the town should appoint three grading commissioners, who were empowered to cause the street to be graded, constructed, and improved as a public highway, and to assess the expenses thereof upon the lands and premises which, in their judgment, should be benefited by the improvement; and the report of the grading commissioners as to such assessment was required to be confirmed by the court in the same manner, and upon like notice, as the report of the opening commissioners. The report of the grading commissioners, which is attached to and made a part of the affidavit of the respondent,'states that they were appointed by the supervisor of the town, for the grading and improvement of the avenue from West Fifteenth street to the westerly line of old lot 47, and it appears that they were not appointed as such commissioners for the portion of the avenue between West Sixth street and West Fifteenth street.

The supervisor had no power to appoint commissioners, except in strict accordance with the resolution of the board of supervisors. The resolution of the board established the procedure to open the street,' and alone conferred jurisdiction upon the supervisors to act; and the intent of the resolution of June 12th was to open and grade the whole street, as therein designated, in one proceeding, and the expense thereof was to be assessed upon the lands and premises benefited by the improvement as a whole. To divide the street and grade it in sections, and make a separate assessment of the expense of each section upon property benefited by that section, might work great injustice, and would be in direct conflict with the resolution of the board of supervisors, and overthrow absolutely the intent of the board in the assessment of the expenses of opening the street. We are of the opinion, therefore, that the supervisor of the town had no power, under the resolution of June 12th, to appoint grading commissioners for a part of the street, and that such appointment, and all proceedings based thereon, including the contract with the relator’s assignor, were void. The order confirming the commissioners’ report did not cure this defect in the proceedings. The error was jurisdictional, and the order of confirmation does not reach the order of appointment. Its validity was not necessarily a question before the court on the motion to confirm the commissioners’ report. The appellant contends that this defect was cured by a subsequent resolution of the board of supervisors, passed December 12, 1892. That resolution changed the location of Neptune avenue between West Sixth and West Fifteenth streets by shifting it forty feet to the south. The northerly part of the original street was to be closed, and the resolution provided for proceedings to acquire title to the land included in the strip. It did not establish a new proceeding for the grading of the full width of the avenue between the streets named. In terms, it is made applicable only to the southerly one-half of the avenue as changed. Section 1 of the resolution provides for the “opening of the southerly one-half, * * * as thus changed, and the closing of the northerly one-half, as opened.” Section 2 provides for the appointment of three opening commissioners, “ for the purpose of opening said southerly one-half of Neptune avenue.” And section 18 provides for the appointment of three grading commissioners, “ who shall enter upon the lands and premises taken for said avenue, as aforesaid, and cause the same to be graded.” There is no reference in this resolution to the resolution of June 12th, and no reference to any other proceedings, or lands taken for the street; and the words “ lands and premises taken for said avenue, as aforesaid,” plainly have reference to the lands named in section 2, viz. “the southerly one-half of the avenue as changed,” and which were to be taken for said avenue by the opening proceedings provided for in that and subsequent sections of the resolution. The effect of the resolution of December 12th was, therefore, to repeal the prior resolution of June only so far as it applied to the northerly one-half of the avenue, as opened, but left it in full force as to the southerly one-half, as opened; and it provided an entirely new proceeding for the opening and grading of the southerly one-half, as changed. The appointment of the grading commissioners with whom the relator’s contract was made, should, therefore, have included the northerly half of the avenue, as changed, between Sixth and Fifteenth streets; and that omission is fatal to the validity of the relator’s contract It is very likely that there would have been practical difficulties in the way of grading the avenue between the streets named, and assessing the expense thereof, upon the property benefited, in two separate proceedings. But such difficulties arise from the resolutions of the board of supervisors, and that body is the only tribunal than can correct them. The bonds which it is sought to compel the respondents to issue are, by the statute authorizing them, made payable out of the assessments for grading the street, and the court should not issue a mandamus to compel their issue, if it is apparent that a serious question would arise as to their validity.

The order must be affirmed, with costs.

All concur.


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    Charles E. Morson, Resp’t, v. Town of Gravesend, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Municipal corporations—Policemen—Salary.
    Where the amount, certified hy the town commissioners to be necessary to pay police force is raised by the board of supervisors and paid over to the commissioners, the salaries of the policemen are payable only from such amount; and though the amount is exhausted before full payment, the town is not liable for the balance.
    3. Same!
    The commissioners! statement to be presented to the town treasurer as provided by section 3, chap. 445 of 1887, refers to the same statement as is required to be presented to the board of supervisors, and the amount certified is to be raised by taxation only in case it is not paid out of funds in the treasury.
    Appeal from a judgment in favor of plaintiff.

      H. B. Hubbard, for app’lt; Wm. K C. Mayer, for resp’t.
   Brown, P. J.

This action was brought to recover a balance claimed to be due to the plaintiff for services as police officer. The complaint alleged and the referee has found tliat the plaiutiff was employed by the defendant as one of its police officers on Junel, 1890, and that he performed the duties of such office until April 1, 1894, and that the employment was under and by virtue of chapter 445 of the Laws of 1887 and the acts amendatory thereof. The plaintiff testified that he was discharged on October 27, 1893, and there is no testimony in the case that he was employed after that date.

We are of the opinion that the action cannot be maintained. Chapter 445, Laws 1887, created a board of police commissioners of the town of Gravesend, to be composed of the supervisor and justices of the peace of the town, with power to employ such persons as policemen as they should from time to time deem necessary. The board was empowered to determine the compensation to be paid to the policemen, and such other incidental expenses as should be necessary to carry out the provisions of the act, “ subject to the limitations” therein contained. It was directed to present to the board of supervisors of Kings county, on or before their first meeting in August of each year, a statement of the amount necessary to pay the expenses of said commissioners for the fiscal year commencing on the 1st day of January thereafter, not exceeding $15,000; and the board of supervisors was directed to cause the amount named in said statement to be levied and assessed on the taxable property in the town, or upon districts of said town benefited by the act, as should be determined by the commissioners, and the amount so levied was to be paid over to said commissioners, who were authorized to expend the same for the purpose of said act. By chapter 55, Laws 1892, the amount authorized to be raised by the commissioners was increased to $30,000. Section 3 of said act further contained the following provision :

“ Said statement may, however, be made and certified to, by the commissioners to the treasurer of said town, and if the said treasurer shall have funds, not otherwise provided for by law, sufficient in hand after paying or providing.and reserving sufficient moneys for the schools, roads and bridges of said town for the fiscal year, he shall pay the amount or amounts thereof to the said commissioners on the presentation of a certificate signed by a majority of them, then the said statement shall not be made to the said board of supervisors, as herein otherwise required to be made.”

Towns in this state are corporations of a very limited corporate capacity. They have no general power to enter into contracts or to incur obligations the payment of which can be enforced against the town. By the revised statutes a town was empowered “ to make such contracts * * * as may be necessury to the exercise of its corporate or administrative power,” and it was provided that “ no town shall possess or exercise any corporate power, except such as are enumerated within this chapter or shall be specially given by law or shall be necessary to the exercise of the power so enumerated or given.” 1 Rev. St. p. 337, §§ 1, 2. In Lorillard v. Town of Monroe, 11 N. Y. 394, in speaking of the powers and liabilities of towns, Judge Denio, after quoting the above provision of the statute, said:

“ In all other respects,—for instance, in everything which concerns the administration of civil or criminal justice, the preservation of the public health and morals, the conservation of highways, roads and bridges, the relief of the poor, and the assessment and collection of taxes,—the several towns are political divisions, organized for the convenient exercise of portions of the political power of the state, and are no more corporations than the judicial or the senate and assembly districts.”

See, also, Town of Fishkill v. Fishkill Road Co., 22 Barb. 634.

The town law (chapter 569, Laws 1890) has not enlarged the town’s corporate capacity. The second section of that act declares 'them to be municipal corporations, “ formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been or may be conferred or imposed upon it by law.” Persons dealing with town officers are charged with notice of the limited corporate 'capacity of the town, and it is therefore incumbent upon one who asserts the fact of an indebtedness to him from the town to point out the act of the legislature which authorized and empowered the town to incur the debt.

It is very plain that the act creating the board of police commissioners of the town of Gravesend has not authorized the town to employ policemen, nor has it created and given to a person employed as a policeman any right of action for his salary against the town. It has created a board of public officers with power to employ policemen, and it has provided a fund from which those employed can be paid. When that fund has been raised and paid over to the commissioners, no further liability exists against the town, and none can be imposed upon it. The town cannot be made liable to’provide any further sum by the misfeasance of the commissioners, and if they exhaust the fund by the employment of more men than it will pay, or in any*other way, no cause of action is thereby created against the town, and no liability can be enforced against it. In this case it is conceded that the annual appropriation up to January 1, 1894, was duly levied and raised upon the property of the town, and paid over to the police commissioners. Such being the fact, the plaintiff has no cause of action against the town. There is nothing in Kip v. City of Buffalo, 123 N. Y. 152; 33, St. Rep. 83, in conflict with the views here stated. The plaintiff in that action was regularly appointed to office by the mayor of the city, and was entitled to a reasonable compensation for his services. The charter provided a way for raising all sums which were properly a charge against the city, and as the common council had refused to appropriate the amount necessary to pay the plaintiff, his right to sue was sustained. In this case, as I have already pointed out, the plaintiff’s salary was payable from a certain designated fund, which has been raised and paid to the commissioners as provided by law. The plaintiff must look to that fund for his pay. His contract is with the commissioners, and not with the town; and if the appropriation has been exhausted or diverted or misapplied, he may possibly have a right of action against the commissioners personally, but he clearly has none against the town.

The plaintiff calls our attention to the provisions of section 3 of the statute which I have already quoted, and claims that the sum to be raised by taxation was additional to that to be paid to the commissioners by the treasurer of the town. I do not agree to this construction of the law. The commissioners’ “ statement ” was to be presented to the treasurer of the town. This refers to the same statement as is required to be presented to the board of supervisors; It was a statement of the amount necessary to pay the expenses of the commissioners, and was limited to $15,000. If it was presented to the treasurer it is expressly provided ‘‘it shall not be made to the board of supervisors.” It is clear from this latter provision that the appropriation was limited to $15,000. It was to be raised by taxation, provided it was not paid out of funds in the treasury. This provision cannot be construed so as to create any general liability on the part of the "town for the expenses of the commissioners.

The judgment must be reversed, and the complaint dismissed, with costs. All concur.


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    Leonard Knox, Resp’t v. Town of Gravesend, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal from a judgment in favor of plaintiff.

      Hubbard & Rushmore, for app’lt ; Grout, De Fere & Mayer, for Tesp’t.
   Brown, P. J.

This action is of the same character as that of Morson v. Town of Gravesend, 69 St. Rep. 450. Following the view there expressed, we should reverse the judgment and dismiss the complaint. But the appellant concedes an indebtedness to the plaintiff of $180, and a liability upon the part of the defendant therefor. The judgment must therefore be reduced to that amount and, so modified, is affirmed, without costs.

All concur.


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    John Sahr, Resp’t, v. Theodore E. Scholle, App’lt,

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Animals—Humane society—Liability.
    An officer of a society for the prevention of cruelty to animals is liable for an abandoned animal killed by him, unless he proves that it was past recovery for any useful purpose. The determination of the two reputable citizens, referred to in section 656 of the Penal Code, if made without notice to the owner, is not conclusive on him.
    3. Same—Proof.
    The evidence, in this case, was held sufficient to establish that the abandoned animal was past recovery for any useful purpose.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Jay S. Jones {George F. Elliott, of counsel), for app’lt; Clarence Edwards, for resp’t.
   Brown, P. J.

This action was brought to recover the value of a horse which was killed by the defendant. In justification of his act, the defendant proved that he was an officer of the American Society for the Prevention of Cruelty to Animals, and alleged that the horse was found abandoned, and, in the judgment of two reputable citizens called by him to view the animal in his presence, appeared to be injured past recovery for any useful purpose. Pen. Code, § 656.

It was incumbent upon the defendant, in order to establish his defense, to prove the fact that the horse was injured past recoveiy for any useful purpose. The determination of such fact by two reputable citizens called to examine the horse, as required by the statute, was not conclusive upon its owner. Before there could be such a conclusive determination as would result in depriving the owner of his property, he was entitled to a hearing. In that way only can acts of the legislature conferring upon public officers the right to destroy private property be harmonized with the constitutional provision securing to every person due process of law before his property can be interfered with. A person whose property has been destroyed by a public officer, acting pursuant to a statutory authority, without notice to the owner, may always, therefore, have his common-law action for damages ; and, if he can prove that the fact which authorizes the officer to act did not exist, he is entitled to a judgment. This subject has recently been .examined in the court of appeals, and the law applicable to the case stated in People ex rel. Copcutt v. Board of Health of City of Yonkers, 140 N. Y. 1; 55 St. Rep. 416. The court properly charged the jury upon the subject, and the exception thereto was not well taken. Upon the facts, however, there should be.a new trial. The horse was shot by the defendant on June 22,1893, about four o’clock in the afternoon, in a vacant lot, some distance from the highway and from the plaintiff’s stable. The plaintiff testified that he cleaned the hoi’se in the morning, and that he was then all right, and had not been used for two days ; he did not see him again until after he had been shot, and he.then discovered no wound upon him, except a small scar over the left eye; that he procured other people to examine him, among them Dr. Brooks, a veterinary surgeon. He, however, called none of those witnesses, and gave no reasonable excuse for failing to produce them at the trial. On the other hand, the defendant called six witnesses, all of whom appeared to be wholly disinterested, and who testified that the horse was in an emaciated condition, having bruises about the head and body, which were raw and bloody ; that he was lying down among a lot of stones, and was unable to get upon his féet. The evidence upon the part of the defendant left, we think, no i-com to doubt but that the hoi’se was past recovery, and was in such a condition as to justify the defendant in killing him.

For these reasons, the judgment and order should.be reversed, and a new trial granted, with costs to abide the event.

All concui’.


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    Benjamin Tuthill, on Behalf of Himself and All Others, etc., Resp’ts, v. Mary R. S. Goss et al., Individually and as Administratrix, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Fraudulent conveyance—Partnership.
    In an action l)y a firm creditor to set aside a fraudulent conveyance of individual property made by a deceased partner in his life-time, it need not appear that the plaintiff’s remedy against the surviving partner had been exhausted.

      2. Husband and wife —Insurance.
    The amount of premiums paid by a husband, in excess of five hundred dollars annually, for insurance on his life for the benefit of his wife, can be recovered on his death by his creditors in an action against her and his personal representatives.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    The first cause of action set out a judgment in favor of plaintiff against decedent and one Sawyer, as copartners, which remains unsatisfied ; and plaintiff seeks to set aside the transfer by decedent as such judgment creditor, without alleging that his remedy at law against Sawyer is exhausted. The second cause of action is founded on Laws 1870, ch. 277, providing that “it shall be lawful for any married woman by herself and in her name (or in the name of any third person with his assent as the trustee) to cause to be insured for her sole use the life of her husband, * * * but when the premium paid in any one year out of the property or funds of the husband shall exceed $500 * * * such excess, with interest thereon, shall inure to the benefit of his creditors decedent having effected insurance on his life, payable to his personal representatives, and having subsequently assigned the policy to his wife.

      Galvin D. Van Name, for app’lts ; Thomas J. Bitch, for resp’t.
   Pratt, J.

The opinion at special term covers the questions so fully that further discussion is unnecessary. The statements in the eighth subdivision of the defendant's pleading are appropriate for an answer, but out of place in a demurrer. They were therefore properly disregarded at special term, as not being properly before the court.

The judgment must be affirmed, with costs, with leave to answer on payment of costs.

All concur.

The opinion of Mr. Justice Cullen at special term is as follows :

I think both causes of action, as set out in the complaint, are valid. As to the first cause of action, little need be said The judgment created a joint and several obligation against each defendant. As to a several defendant, it was not necessary to exhaust the remedy at law against one defendant before proceeding in equity against the other. As to the second cause of action, it may be conceded that our statute has no extraterritorial effect. But this admission is not fatal to the plaintiff’s claim. First, it is alleged that the deceased was a nonresident only up to the year 1885. Any payments made by him subsequent to that time in violation of the statute can be recovered. Second, it may well be doubted whether our statute, instead of being restrictive, is not the reverse. That is to say, the statute gives the wife a title to the insurance as against creditors, which, if it were not for the statute, would be subjected to the claims of creditors. The complaint charges that the deceased was insolvent. The money that was applied to the premiums on the policy belonged to the deceased’s creditors, and without the statute they could have followed the fund, and recovered the full amount, or possibly the-whole proceeds. Holmes v. Gilman, 138 N. Y. 876; 52 St. Rep. 873.

Judgment for plaintiff on demurrer, with costs, with leave to-defendant to answer on payment of costs.