author: Andrews, Ch. J.

text:
    The People, Resp’t, v. Thomas A. Welch, App’t.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Jurisdiction—State.
    State courts have civil and criminal jurisdiction, in the absence of any prohibition in the Federal constitution or laws, over the navigable waters within state limits.
    3. Same.
    Powers granted the federal constitution are not exclusive, unless made so in terms, or prohibited to the states, or are incompatible with the exercise of a concurrent jurisdiction.
    3. Same. .
    In the absence of any such exclusion, state jurisdiction may be exercised, though congress has vested jurisdiction over them in' the federal courts.
    4. Same.
    No presumption that state authority is excluded, arises from the mere fact that congress has legislated. There must be express words of exclusion, or a manifest repugnancy in the exercise of state authority over the subject.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 20, 1893, which affirmed a judgment of the court of general sessions of the peace in and for the city and county of Hew York entered upon a verdict convicting defendant of the crime of manslaughter in the second degree.
    The facts, so far as material, are stated in the opinion.

      Lorenzo Semple, for app’lt; John D. Lindsay, for resp’t.

       Affirming 57 St. Rep., 42.

   Andrews, Ch. J.

The defendant was convicted at the court of general sessions held in and for the city and county of Hew York, of the crime of manslaughter in the second degree, upon an indictment charging him with having, on the 15th of June, 1891, upon the Hudson river in said city and county, feloniously and willfully propelled and forced the steam tug “ F. W. De Yoe,” upon which he then was, against the yacht “Amelia,” on which was one Francis Jackson, thereby forcing the said Francis Jackson into the river, and causing his death by drowning. The record cantains an agreed statement of the facts proved, in substance, that the defendant Welch was duly licensed to act as a second-class pilot on steam vessels by the United States local board of inspectors of steam vessels for the district of Hew York; that while said license was in full force, and while the defendant was engaged in the actual performance of his duties as pilot under said license, a collision occurred June 15, 1891, on the Hudson river in the county of Hew York, between the steaw towboat on which the defendant was employed, and which at the time was under his control and management as pilot, and the sloop yacht “Amelia,” which collision was caused by the willful misconduct, negligence and inattention to his duties on said “ F. W. De Yoe,” of the defendant; that said collision so caused resulted in the sinking of the yacht “ Amelia,” and in the destruction of the life of Francis Jackson, who was at the time on board of the yacht, by drowning.

The sole question presented on this appeal is as to the jurisdiction of a state court to entertain jurisdiction of the offense established by the evidence, the claim in behalf of the defendant being that the federal courts have exclusive jurisdiction of the offense of which he was convicted. Section 5344 of the U. S. Bevised Statutes is as follows: “ Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel the life of any person is destroyed, and every owner, inspector or other public officer through whose fraud, connivance, misconduct or violation of law the life of any person shall be destroyed, shall be deemed guilty of manslaughter, and upon conviction thereof before any circuit court of the United States shall be sentenced to confinement at hard labor for a period of not more than ten years. ”

It is plain that the circumstances found bring the case within this section. The defendant was a licensed pilot. He was in charge of the steam tugboat as pilot at the time of the collision. The collision which resulted in the death, of Jackson was caused by the misconduct, negligence and inattention to his duties of the defendant, and, moreover, his misconduct was, as the jury found, willful, an element which does not seem to be necessary to constitute the crime defined in the statutes of the United States. In the consideration of the question of the jurisdiction of the state court there are certain indisputable propositions which it is imto bear in mind. The Hudson river is within the territory of New York, and is subject to its legislative jurisdiction. The criminal laws of the state apply to offenses committed on the waters of the river, whether above or below the ebb and flow of the tide, to the same extent as to like offenses committed upon the land, except in so far as the laws of congress, ■ under the constitution of the United States,- have asserted an exclusive jurisdiction. In United States v. Bevans, 3 Wheat. 336, the defendant had been indicted and convicted of murder in the United States court of Massachusetts, committed on board of a man-of-war of the United Stated in Boston harbor, he being at the time a marine on the vessel. The conviction was reversed by the supreme court of the United States on the ground that the place where the murder was committed was within the territorial limits of Massachusetts, and that as no law of congress had made a murder within the territorial jurisdiction of a state, on tide water or elsewhere, an offense against the United States, the state court alone had jurisdiction. In Smith v. Maryland, 18 How. U. S., 71, Mr. Justice Curtis, referring to the grant of admiralty and maritime jurisdiction in the United States Constitution, said: “We consider it to have been settled by this court, in United States v. JBevans, that this clause in the constitution did not affect the jurisdiction, nor the legislative power of a state, over so much of their territory that lies below high-water mark, save that • they parted with the power so to legislate as to conflict with the admiralty jurisdiction or the laws of the United States.” The rights of a state to exercise jurisdiction over navigable waters within its limits, and to subject persons and property thereon to the civil and criminal jurisdiction of its courts, in the absence of any prohibition in the federal constitution or laws, has passed unchallenged, and is an undoubted incident of sovereignty.

' Another proposition equally beyond question is that the crime of which the defendant was convicted is one defined by a statute of the state of New York, and that independently of any statute the facts established the crime of manslaughter, at common law. The Revised Statutes, after defining the crime of murder and what shall constitute the crime of manslaughter in the higher degrees, proceeded to declare (2 R. S., 662, § 19): “ Every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in the act to be murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.” It is scarcely necessary to cite authorities to show that the statute above quoted was simply declaratory of- the rule of common law, that a killing of a human being by culpable negligence is manslaughter. Wharton’s Crim. Law, §§ 361-5, and cases cited. The courts of this slate on the adoption of the state Constitution of 1777, became vested with the jurisdiction over offenses cognizable at common law, and this jurisdiction is unimpaired and in full force except in-so far ás it has been modified by state legislation, or was surrendered to the United States by the federal constitution, or has been taken away by act of congress lawfully enacted in execution of the powers conferred by that instrament. It is an excepted canon in the construction of powers granted to the general government by the federal constitution that state authority existing when the constitution was adopted is not excluded by the mere grant of similar powers to congress. The powers granted by the federal constitution are not exclusive, unless made so in terms, or prohibited to the states, or are incompatible with the exercise of a concurrent jurisdiction. But the principle has been grafted upon the subject that although powers conferred by the constitution upon congress are not in terms or in their nature exclusive of the power of the states, they may be made so by national legislation excluding the jurisdiction of the state in the particular manner, although within their original and antecedent authority. In Martin v. Hunter, 1 Wheat, 304, Judge Story, referring to the judicial power of the United States, said: “It is manifest that the judicial power of the United States is unavoidably in some cases exclusive of all state authority, and in all others may be made so at the election of congress.” The Judiciary Act of 1879 (U. S. Stats, at Large, vol 1, chap. 20) was framed upon this construction of the power of congress, and the jurisdiction of the courts of the United States was in some cases made exclusive, and in others the jurisdiction of the state courts not being in terms excluded, was left unaffected and was concurrent with the courts of the Union as to matters over which the state courts could, by their own powers and constitution, exercise jurisdiction. A distinction has been suggested as to the power of Congress to make the jurisdiction of the United States courts exclusive, between cases in which the state courts had jurisdiction antecedent to the adoption of the Constitution, and those where the right involved or the liability incurred arises exclusively under a law of Congress, and without which it would have had no existence. See Curtis on Const., § 141. But the recent cases of “ The Moses Taylor," 4 Wall, 411, and Clafflin v. Houseman, 93 U. S. 130, seem to be adverse to the distinction suggested and to hold that it is competent for Congress to exclude the jurisdiction of the state court in respect of all subjects upon which Congress may legislate. In “ The Moses Taylor ” it seemed to be conceded that the proceeding there under review was a matter as to which the original states through their courts could have exercised jurisdiction antecedent to the adoption of the Federal Constitution, and the decision was placed on the ground that the jurisdiction was excluded by force of the ninth section of the Judiciary Act of 1789, and vested exclusively in the district courts of the United States. See 1 Kent Com. 400. But it is obvious that to exclude the jurisdiction of the state courts over matters within their ordinary jurisdiction, the intention of Congress to exercise this power should be distinctly manifested and that the legislation relied upon to deprive the state courts of jurisdiction should be clear and unam- ' biguous. There can be no presumption that state authority is excluded from the mere fact that Congress has legislated. There must be express words of exclusion, or a manifest repugnancy in the exercise of state authority over the subject. See Curtis on Const. § 121.

It must, we think, be conceded that § 5344 of the Eevised Statutes of the United States was in its general purpose and enactment within the power of Congress, under the Constitutional grant of power to “ regulate commerce with foreign nations and among the several states ” (Art. 1, § 8), and the grant of judicial power in cases of “ admiralty and maritime jurisdiction ” (Art. 3, § 1), and, the-authority vested in Congress “to make all laws which shall be necessary and proper for carrying into execution ” the powers vested in Congress by the Constitution (Art. 1, § 8, sub. 17). The Hudson river is within the admiralty jurisdiction of the United States. The Genesee Chief 12 How. U. S., 443. The power to regulate commerce extends to the persons who conduct navigation as well as to the instruments used, and the United States courts may be invested by Congress with jurisdiction over offenses committed upon waters within the admiralty jurisdiction. Cooley v. Port Wardens of Philadelphia, 12 How. U. S., 299; United States v. Coombs, 12 Pet., 72; Curtis on Const., § 47.) The legislation of which § 5344 is the culmination, had its origin in the act of Congress of July 7, 1838 (5 U. S. Statutes at Large, p 304), entitled “an act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” It was extended by the act of February 28, 1871 (16 U. S. Statutes at Large, p. 456, § 57), and the provision in its present form was enacted in the revision of 1873, and forms § 5344, of title 70, of the United States Eevised Statutes, entitled “Crimes.” The power of Congress to enact rules for the government of vessels on waters within the admiralty jurisdiction; to prescribe the qualifications and duties of captains, pilots and other persons employed thereon ; to supervise the construction of steam vessels, with a view to secure the safety of passengers and others; to require licenses to be obtained by those engaged in navigation, and the inspection of steam boilers at recurring intervals, has been exercised without challenge, and a large body of rules covering these and cognate subjects have been enacted by Congress, or under its authority, and are to be found in the Eevised Statutes of the United States. The power to enact rules on a specified subject carries the power to enforce penalties for their violation. The primary purpose of § 5344 was to secure, by criminal sanctions, the observance by owners, officers, employees of vessels,' inspectors and other public officers, of the duties imposed upon them in connection with the business of navigation for the security of human life. Whether the section has, as is claimed, broader application than is justified by the power of Congress, we deem it necessary to consider. We have no doubt that, as applied to licensed officers or pilots, the enactment does not transcend its power.

It remains to consider whether the offense defined in the section is exclusively punishable in the courts of the United States. The states do not enforce the criminal laws of the United States. U. S. v. Lathrop, 17 Johns., 4. The state in punishing the defendant is not enforcing a statute of the United States. It is enforcing its own laws, which had an existence coeval with the formation of the State Constitution. The crime of which the defendant was convicted was primarily a crime against the peace and good order of the state. It was only a crime against the United States, because Congress, in the interest of navigation, had seen fit to enact a law making one species of homicide, when committed by an officer, pilot, etc., manslaughter punishable in the courts of the United State. There is nothing in the enactment itself which makes the jurisdiction exclusive. There is no repugnancy in the existence of concurrent jurisdiction in the state courts to punish under its laws this grade of homicide. The jurisdiction of the United States courts is not exclusive unless there is found elsewhere in the legislation of Congress, provisions of clear and unmistakable import, talcing away the jurisdiction of the courts of the state. The principle that Congress may lawfully exclude the jurisdiction of the state courts of offenses punishable under federal statutes was first applied by § 11 of the Judiciary Act of 1789, which declared that the circuit courts of the United States shall have “ exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides or the laws of the United States shall otherwise direct.” The jurisdiction of the state courts to punish under state laws offenses which are cognizable by the circuit courts of the United States was made by this section to depend upon affirmative legislation by Congress, giving the state courts concurrent jurisdiction. Subsequent to the act of 1789 laws were passed by Congress punishing the counterfeiting of the current coin of the United States and the uttering of the same. Chap. 49, Laws of 1806; chap. 75, Laws of 1807; chap. 44, Laws of 1816; chap. 65, Laws of 1825. These acts contain the following provision: “And be it further enacted that nothing in this act contained shall be construed to deprive the courts of the individual states of jurisdiction under the laws of the several states, over offenses made punishable by this act.” In 1847 the question whether the courts of Ohio could entertain jurisdiction under the laws of that state of the offense of passing counterfeit coin of the United States, came before the supreme court of the United States in the case of Fox v. State of Ohio, 5 How. U. S. 410, upon writ of error, after the conviction of the defendant in the state court of that offense. It was urged that the proviso in the Federal statutes above referred to did not affect the exclusive jurisdiction of the United States courts under § 11 of the Judiciary Act of 1789. The supreme court sustained the jurisdiction of the state court, and the decision necessarily adjudged that the' proviso in these statutes was a law of the United States, excepting cases of passing counterfeit coin from the clause in the act of 1789, giving exclusive jurisdiction to the United States courts of offenses cognizable under the laws of the United States. Mr. Justic Washington in Houston v. Moore, 5 Wheat, 26, gave the same construction to the proviso in the acts referred to. The case of United States v. Marigold, 9 How. U. S. 560, brought into question the jurisdiction of the courts of the United States to punish the crime of passing counterfeit coin, under the Federal statute, and in this case also the jurisdiction was affirmed. The two cases of Fox v. State of Ohio and United States v. Marigold established the proposition that the same act may be an offense both against the state and the United States and punishable in each jurisdiction under its laws. The same principle has been declared in other cases. Moore v. Illinois, 14 How. U. S., 13 ; Chief Justice Taney, U. S. v. Almy, Quarterly Law Journal, July, 1859; Ex parte Seebold, 100 U. S. 371.

Section 5328 of the United States Revised Statutes, which is one of the general provisions of tit. 70, entitled “ Crimes,” declares: “ § 5328. Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof.” Later on in this title is § 5344, making the misconduct, negligence or inattention to his duties of a captain, pilot, etc., manslaughter. The provision as to exclusive jurisdiction contained in § 11 of the Judiciary Act of 1789, is incorporated in substance into the United States Revised Statutes in the 20th sub. of § 629, which declares that the Circuit Courts of the United States shall have “ exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it may be otherwise provided by law.”

' If the question of the jurisdiction of the state courts in the-present case depends solely upon the construction of the clause in § 629, just quoted, and of § 5328 of the United States Revised Statutes, there could be little ground, under the decisions of the Supreme Court of the United States, construing the proviso in the Counterfeiting Acts, for denying such jurisdiction. Sec. 5328 is in legal effect a re-enactment of ,tbe proviso in those acts applicable to the crimes mentioned in title 70 of the Revised Statutes of the United States. The proviso in the Counterfeiting Acts was held to withdraw the crimes therein mentioned from the operation of the 11th section of the Judiciary Act of 1789, and to create an exception to the general rule declared in that section, excluding the jurisdiction of the state courts of offenses cognizable in the courts of the United States. The same construction, applied to § 5328, would make the jurisdiction of the state courts of the offense now in question, concurrent. But the confusion and uncertainty attending the subject is produced by another section of the Revised Statutes of the United States, first enacted at the time of the revision, being section 711. That section declares: “ The-jurisdiction vested in the courts of the United States in the cases hereinafter mentioned, shall be exclusive of the courts of the several states : First, of all crimes and offenses cognizable under the laws of the United States.” Construing this section upon its language alone and without reference to other sections mentioned, it would exclude the jurisdiction of the state courts over the offense of manslaughter committed by a pilot or other person employed on vessels, under the circumstances mentioned in section 5344. If such construction is imperatively required, it would result in the apparent anomaly of leaving to the state courts jurisdiction of the crime of murder committed on board of a vessel. on navigable waters within the territory of the state, whether by an officer, pilot or other person, and depriving them of jurisdiction of the crime of manslaughter, defined in section 5344. If the defendant had murdered Jackson, the state court would have undoubted jurisdiction of the crime. Manslaughter is one of the grades of criminal homicide. Can it be reasonably supposed that Congress, by an act which was primarily intended to enforce the observance, by persons engaged in navigation, of the rules it liad established for the security of life and property, intended further to oust the jurisdiction of the state courts over one grade of the offense of manslaughter, of which they before had undoubted jurisdiction, and where the offense, whether committed by a pilot or any other person, was primarily an offense against the state? It was made an offense against the United States also, by reason of the relation in which the offender stood to the United States, under its rules and regulations, which he was bound to observe. We think § 5328 must be construed as exempting from the operation of § 711 the cases specified in title 70, which were also offenses punishable under the laws of the several states. Under § 711, the states could not enforce the criminal statutes of the United States, as was attempted in substance under the law of Pennsylvania, involved in Houston v. Moore, 5 Wheat. 7. Nor, under § 711, could a state make an act criminal and punisable in its courts, which in its nature was an offense only, because made so by a law of congress. Section 5328 may perhaps be construed as confining the concurrent jurisdiction of the state courts, of offenses specified in title 70, to such offenses as were such under the laws of the states existing when that section was enacted, leaving the section to operate to prevent future legislation by the states concerning the crimes mentioned in that title, not before cognizable under state laws. But whatever may be the true construction of that section, to give it the broad application claimed, would, we think, ignore the true scope or meaning of § 5328, interpreted in the light of the previous decisions of the supreme court of the United States. We are not satisfied with the view taken in some of the circuit and district courts of the United States, that § 5328 was intended merely to permit a state court to punish a different offense involved in the same act. Such a distinction is very difficult to apply, and it grafts on the section a qualification of its general language. Many of the crimes specified in title 70 are, in their nature, exclusively offenses against the United States. Such offenses are withdrawn from state jurisdiction, because they are not and cannot be offenses against a state. We have seen that where the exercise of state authority is incompatible with the exercise of federal authority granted by the constitution of the United States, the state authority is superseded without express words. This principle applies as well to judicial as to legislative powers. Federalist, No. 82, by Hamilton. It was upon this principle, as we understand, that it was held by the supreme court of the United States (In re Loney 134 U. S., 372), that a state court had no jurisdiction to punish perjury, committed in a contested election" case, of a member of the house of representatives, under a, proceeding regulated by a law of the United States. The learned justice who delivered the opinion in that case, after stating that the power of punishing a witness for perjury in a judicial proceeding belongs peculiarly to the government in whose tribunals the proceeding was had, said: “ It is essential to. the impartial and efficient administration of justice in the tribunals of the nation, that witnesses should be able to testify freely before them, unrestrained by legislation of the state, or by fear of punishment in the state courts.. The administration of justice in the national tribunals would be greatly embarrassed and impeded,” etc. The cases of People v. Fonda, 62 Mich., 401, and Com. v. Felton, 101 Mass., 204, held that the state courts have no jurisdiction of the crime of embezzlement by an officer of a national bank of the funds of such bank. It is sufficient to say that the offense of embezzlement, under the National Bank Acts, was subject to the provisions of § 11 of the Judiciary Act, and is not one of the crimes exempted from its operation by § 5328 of the Revised Statutes of the United States. The contention that § 711 excludes the state courts from jurisdiction of all crimes enumerated in title 70, if sustained, takes from the state courts the power to punish the passing of counterfeit money of the United States, a convenient jurisdiction which they have exercised from the commencement, and which, as was assumed by Mr. Justice Gray, in the case In re Loney, still exists.

Upon the whole case we are of opinion that the state court had jurisdiction to punish the defendant for the crime proved. Its jurisdiction has hot, we think, been taken away by the legislation of congress. It would be a more satisfactory state of this law than now exists if it could be held that the court first acquiring jurisdiction should retain it, and that the judgment of one court in such a case as this could be pleaded in bar of a further prosecution for substantially the same offense in the courts of the other jurisdiction.

The judgment and conviction should be affirmed.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Catherine S. Hunter, Resp’t v. The Manhattan Railway Co. et al. App’lts.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Elevated Railways—Damages.
    In an action to restrain an elevated railway and for damages, if the court decides that the claim for equitable relief is well founded, it may proceed to assess the damages sustained, in its own discretion, and no absolute right exists to have them determined by a jury.
    8. Appeal—Exception.
    A point, not presented by the exception, cannot be considered on appeal to court of appeals.
    S. Evidence—Elevated Railway.
    In an action against an elevated railway, evidence is admissible to show the general effects caused by its maintenance and operation upon abutting and neighboring properties.

      Appeal from judgment of the general term of the superior court of the city of Hew York, entered upon an order made July 5, 1892. which affirmed a judgment in favor of plaintiff 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.

      Alexander S. Lyman, for app’lts; Henry R. Beekman, for resp’t

       Affirming 46 St. Rep., 906.

   Gray, J.

This is one of the many actions brought by property owners along the line of the elevated railroads in the city of Hew York, to obtain equitable relief by way of injunction, restraining their continuance and operation. The plaintiff’s property is ■situated upon Pearl and Water streets; having a frontage upon each street. The defendant’s road is upon Pearl street. The plaintiff, prior to March, 1887, was seized of a one undivided third part of the premises; being tenant in common with a brother, two sisters and the children of a deceased sister. Upon the day mentioned, she acquired by purchase at public sale the interests of her co-tenants. Having thus become the sole owner of the premises, she instituted this action in 1889. She claimed in her complaint for the damages sustained for a period of time prior to March, 1887, as well as since; alleging the execution of .assignments to her by the other owners of the premises of their rights of actions and demands for damages. When the trial came on, the defendants moved that the action be severed and that the claims for rental damages acquired by assignment be sent to a jury for trial. The motion was denied and it is urged that the denial was error. As the action was one in equity, where the main relief sought was an injunction against the continuance by the defendants of acts in violation of the plaintiff’s property rights, an award of damages, for what past injuries might be ■shown to have been inflicted, would follow as incidental to the main relief. In such an action, it is the settled rule that if the court decides that the claim for the equitable relief is well founded, it may proceed to assess the damages sustained, in its own discretion, and no absolute right exists to have them determined by a jury. Lynch v. Metropolitan R. R. Co., 129 N. Y. 274; 41 St. Rep., 541. When the plaintiff brought her action, she represented in her pei-son every interest in the property and if she were found and should be adjudged to be entitled to the equitable relief she demanded, in the exercise of the jurisdiction which it had acquired over the action, the court would have the right to assess the damages down to the time of trial, which had been suffered in the use of the premises. If they, as a matter of fact and of law, then belonged to the plaintiff, of what consequence is it that they were not, during all the time for which, they were awarded, hers to recover? The plaintiff was for all the time, for which a recovery of damages was permissible, an owner of the premises, with property rights for which she could demand protection and compensation. She became sole owner before the commencement of the action ; possessing as such the right, solely, to demand the equitable interference of the court to protect the rights appurtenant to that property. In addition, she, through assignments of all demands, was legally entitled to recover and to receive whatever damages should he ascertained to have been sustained in the diminished enjoyment of the' property as a whole. There was no j ust reason for a severance of the claim and for sending so much of it as was held under assignment to a jury trial. Such a course would have been opposed to the principle upon which a court of equity proceeds in the disposition of a cause before it. In the Shepard Case, 117 N. Y. 442, 27 St. Rep. 705, the widow of a deceased ténant in common joined with the surviving tenants in common as plaintiffs, in a similar action. She was joined in her capacity as administratrix, claiming the past damages to the estate of her intestate, as well as in her individual rights, as widow and claimant in dower. On demurrer to the complaint, it was insisted that she should not have been joined in her capacity as administratrix ; as her cause of action, as such, was to recover the temporary damages, which her intestate had sutained in bis lifetime and she had none arising out of the continuance of the road. But we held that though as administratrix she might have maintained a separate action at law there was no objection to her presence in the action; that the object of the Code and the aim of equity were to avoid a multiplicity of actions and to effect a complete determination of all matters, which may come into controversy between the same parties, by one action; and that there was no reason why separate actions should be brought by those upon whom had devolved, and who, in their combined personalties, represented, the property interests of the intestate owner. Without greater elaboration of this point, 1 think the application of the principle of that decision is decisive of this contention.

The appellants further contend that the plaintiff was allowed to recover for damages suffered by other persons, not parties to the action, and not secured to the plaintiff by assignment. They say that the evidence was wanting of the assignments by certain of of the former tenants in common. They are not in a position, however, to raise this point. The trial judge made the following finding of fact:

“That, prior to the commencement of this action, all the parties who were co-tenants with the plaintiff of the said premises prior to the 29th day of March, 1889, and had been such co-tenants for more than six years prior to the day last mentioned, duly assigned and set over for a valuable consideration to this plaintiff all their right or rights of action against the defendants for or by reason of the diminution in value of the said premises or the rental value thereof by reason of the maintenance or construction by defendants of an elevated railroad past the said premises.”

To this finding the defendants excepted as follows viz.:

“To the third finding of fact, and separately to so much thereof as finds that the plaintiff ever took from her co-tenants an assignment for valuable consideration of any rights of action as therein stated.”

The exception is to general to be available in the present manner. The finding is very comprehensive as to facts and their legal effect, and the exception fails even to suggest the defect in proof now relied upon. If it was intended to raise the point that there were lacking in the case some assignments of their rights by the former part owners, the exception should have specifically so stated; in order that, attention being called to the fact, an opportunity might be afforded either to supply an inadvertent omission, or to remit so much of the award as the plaintiff lacked evidence of title to through assignment. The. defendants might have raised the point by a request to find that the rights of action were not all assigned to the plaintiff; but, though they presented very numerous requests, there was no suggestion on this head. ¡Nor are appellants aided, upon this point, by the exception to the conclusion of law “that the plaintiff was entitled to judgment for the sum of $12,250, the amount of damages recoverable up to the time of trial by reason of the wrongful acts of the defendants, etc.” The exception only raised the question whether such a legal conclusion directing judgment for the plaintiff following upon the facts found. The exception should have specifically stated, and not having been specific, it cannot now be resorted to to reverse this judgment.

Exceptions were taken to the admission of evidence. Witnesses were examined for the plaintiff and shown to be expert in matters of real estate. One was asked the question: “ In your judgment was there anything in the condition of Beaver and Water streets which should induce the upward rise in values greater than would have existed in Pearl street had there been no elevated railroad?” Another witness was asked: “Would the existence of such a structure and the running of trains as described affect the rental value of the property in front of which it was constructed ? ” The witness being allowed to answer that “ It would affect the rental value; ” he was then asked, “Would it affect it favorably or unfavorably in your judgment? ”

The grounds of defendants’ objections were that those questions called for the opinion of the witness on the°point which the court was to pass upon. We think there was no error committed in overruling the objections. Within our decisions, in the course of this elevated railroad litigation, evidence is admissable to show the general effects caused by the maintenance and operation of the elevated roads upon abutting and neighboring properties. It is inadmissable to show what is the particular damage caused to the plaintiff's premises by the presence of the road; or to show what they would be worth, or what their rental value would be, without the road. Questions of this latter class have been held to be an invasion of the province of the court, or the jury ; and the rule, as it is now laid down, rigidly excludes questions calling for the judgment of the witness upon the question which is to be submitted and decided. But questions of the former class are permitted, for the reason that the general effects upon other properties and the existence and nature of a general injury being shown to the court, or to the jury, they will be better enabled to infer the amount of the damage suffered in the particular case before them. The question for the tribunal in each -case is, whether, by the construction and operation of the elevated railroad, there has been an intrusion upon the complainant’s property rights to his actual prejudice • and damage; and the determination of the question is to be made, not merely by what may be shown with respect to the fee and rental values before and since the railroad came into the street, but upon a view of its general effects upon other abutting premises and upon the neighborhood. If it shall appear that the presence and operation of the elevated railroad have been prejudicial to, and have damaged abutting properties, the part of the general loss, which is the complainant’s, is to be estimated by the court or by the jury, with such material in facts as they have and with such aid as the general view of the effect upon other properties, similarly situated, or furnishing a basis .for comparison and for judgment, can furnish. Exceptions were taken by the defendants to the admission of certain evidence, upon the cross-examination of a witness called by them to testify in their behalf as to values and effects. We think the character of the evidence given upon his direct examination warranted the questions addressed to him upon his cross-examination, and it is unnecessary to dwell upon the exceptions.

We find no errors committed upon the trial, which call for a reversal of the judgment, and the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O'Brien, J.

text:
    The People ex rel. George D. Forsyth, District Attorney, etc., Resp’t, v. The Court of Sessions of Monroe County, App’lt.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Criminal law—Suspension op sentence.
    Court of sessions has power,within limit provided by Section 12 of Penal Code, to suspend judgment after conviction.
    2. Same—Constitutional.
    The amendment of 1893 to the section does not encroach upon the power of the governor to grant reprieves and pardons.
    3. Same—Subsequent sentence.
    It does not preclude the court from passing the proper sentence when ever it appears to it to be advisable.
    4. Same—Mandamus.
    In such case, the granting of a writ of mandamus upon application to the district attorney, requiring the court to proceed to sentence and judgment, is error.
    Appeal from order of the general term of the supreme court in the fifth judicial department, made January 18, 1893, which, affirmed an order of special term granting an application for a writ of peremptory mandamus, the substance of which, and the material facts are stated in the opinion.
    77. R Halloch, for app’lt; Fred G. Hanford, for resp’t.

       Reversing 50 St. Rep., 234.

   O'Brien, J.

The question presented by this appeal is novel and important. The supreme court has by mandamus commanded the court of sessions to proceed to judgment in a criminal case and to pass sentence upon the defendant after conviction. The power of the court to grant the writ under the circumstances disclosed by the record is denied.

On the 4th of March, 1892, John Attridge was convicted in the court of sessions of Monroe county, composed of the county judge and two justices of sessions, upon his own plea of guilty, of the crime of grand larceny in the second degree. The defendant was a clerk in a mercantile firm and the offense consisted in the appropriation to his own use of a sum of money which belonged to his employers and which came to his possession or under his charge by virtue of his employment. There were supposed to be mitigating circumstances connected with the transaction growing out of his youth, previous good character and otherwise that were presented to the court through a petition signed by numerous respectable citizens who prayed that his sentence be suspended. Three days after the conviction he was brought before the court and, the county judge presiding, sentenced him to imprisonment. The two justices of sessions dissented and announced as the judgment of the court that sentence be suspended. The defendant was remanded to the custody of the sheriff but discharged soon after from the commitment upon habeas corpus, granted by a justice of the supreme court holding a court of oyer and terminer, on the ground that the sentence pronounced by the county judge, not having been concurred in by a majority of the court, was illegal. He was, however, remanded to the custody of the. sheriff, to the end that the court of sessions might pronounce a legal sentence in the case. He was again brought before that court on the 14th of March and the judgment thereupon given that sentence be suspended during good behavior. The county judge dissented, and the defendant was thereupon discharged from custody. On the 27th of June following, the supreme court at special term, upon the application of the district attorney, granted a peremptory writ of mandamus commanding the court of sessions to proceed to judgment and to sentence the defendant to the punishment proscribed by law. The order granting the writ has been affirmed at the general term. • ,

The precise question involved, therefore, is the power of a court of record, possessing jurisdiction in criminal cases, to suspend judgment after conviction. The court of sessions is a court possessing superior criminal jurisdiction and common-law powers. People v. Bradner, 107 N. Y. 1; 10 St. Rep. 667. It possesses all the powers formerly exercised by superior courts of criminal jurisdiction in England, except so far as these powers have been changed or abrogated by statute. There can, I think be no doubt that the power to suspend sentence after conviction was inherent in all such courts at common law. The practice had its origin in the hardships resulting from peculiar rules of criminal procedure, when the court had no power to grant a new trial, either upon the same or additional evidence, and the verdict was not reviewable upon the facts by any higher court. The power as thus exercised is described in this language by Lord Hale : “Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain or the indictment is insufficient, or doubtful whether within clergy. Also when favorable or extenuating circumstances appear and when are convicted of their first offense. And these arbitrary reprieves youths may be granted or taken off by the justices of gaol delivery, although their sessions be adjourned or finished, and this by reason of common usage.” 2 Hale P. C. ch. 58, p. 412. This power belonged of common right to every tribunal invested with authority to award execution in a criminal case. 1 Chitty Cr. L. [1st ed.] 617, 758. Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts and numerous adjudged cases. 2 Hawk. P. C. ch. 51, § 8; 1 Bishop’s Cr. Pro. §1124; 4 Bl. Com. ch. 31; People v. Graves, 81 Hun, 382; People v. Harrington, 15 Abb. N. C. 161; People v. Whipple, 9 Cow. 715 ; Carnal v. People, 1 Park. Crim. 262, 266; Commonwealth v. Dowdican, 115 Mass. 136 ; State v. Addy, 14 Vroom, 114 Weaver v. People, 33 Mich. 297; People v. Riley, 58 id. 260 ; Commonwealth v. Maloney, 145 Mass. 205 ; Sylvester v. State, 65 N. H. 193. The courts below were of the opinion that section twelve of the Penal Code deprives the court in all cases of any discretion with respect to the imposition of the punishment prescribed by law. The language of that section is as follows: “ The several sections of this Code which declares certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to impose the punishment prescribed.” This provision was not intended to, and did not, abrogate any power over the judgment which the courts possessed before. The provision is declaratory of the law as it always existed, for it was always the duty of the court to impose the punishment upon conviction, but this duty was never supposed to be inconsistent with the power to suspend the judgment till the next term of the court or indefinitely. Since the granting of the writ in this case the above section of the Penal Code has been amended by chap. 279 of the Laws of 1893, by adding to it these words: “But such court may, in its discretion, suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years, and such person has never before been convicted of a felony.” It is admitted by the learned district attorney that this amendment, though passed since the writ in this case, as the defendant in the indictment has not yet deen sentenced, and, if brought before the court for that purpose, pursuant to the command of the writ, sentence may be suspended if the enactment is valid. He meets this difficulty, however, by strenuously insisting that the amendment encroaches upon the power of the governor to grant reprieves and pardons, which is exclusively vested in him under the State Constitution. (Con. art. 4, § 5.) There can be no doubt that if the amendment distributes any part of the pardoning power conferred upon the executive to some other department of the government, the.legislation is in conflict with the Constitution and invalid. The power to suspend sentence and the power to grant reprieves and pardons, as understood when the Constitution was adopted, are totally distinct and different in their origin and nature. The former was always a part of the judicial power. The latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he never had committed the offense. It removes the penalties and disabilities and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. Ex parte Garland, 4 Wall., 333; U. S. v. Klein, 13 id., 128 ; Knote v. U. S., 95 U. S. 149.

The framers of the Federal and State Constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the Constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. Ex parte Wells, 18 How., 307. As this power was understood it did not comprehend any part of the judicial function to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate or in any degree restrict the exercise of the power in regard to its own judgments that criminal courts had so long maintained. The two powers, so distinct and different in their nature and character, were still left as they were before, separate and distinct, the one to be exercised by the executive and the other by the judicial department.

We, therefore, conclude that a statute which in terms authorizes courts of criminal jurisdiction to suspend sentence in certain cases, after conviction, a power inherent in such courts at common law, which was understood when the Constitution was adopted to be an ordinary judicial function, and which ever since its adoption has been exercised by the courts, is a valid exercise of legislative power under the Constitution. It does not encroach in any just sense upon the powers of the executive as they have been understood and practiced from the earliest times. The power to suspend the judgment during good behavior, if understood as expressing a condition, upon the compliance with which the offender would be absolutely relieved from all punishment and freed from the power of the court to pass sentence, is. open to more doubt. The legislature cannot authorize the courts to abdicate their own powers and duties or to tie their own hands in such a way that after sentence has been suspended they cannot, when deemed proper, and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion. Nor can the free and untrammeled exercise of this power or the right to pass sentence according to the discretion of the court be made dependent upon compliance-with some condition that would require the court to try a question of fact before it could render the judgment which the law prescribes. The statute must not be understood as conferring any new power. The court may suspend sentence as before, but it can do nothing to preclude itself, or its successors, from passine the-proper sentence whenever such a course. appears to be proper. This, we think, is all that the statute intends, and that was the-only effect of the judgment. It is a power which the court should possess in furtherance of justice, to be used wisely and discreetly, and it is perhaps creditable to the administration of justice in such, cases that while the power has always existed no complaint has been heard of its abuse. The order of the general and special terms should be reversed and the mandamus denied.

All concur.

Orders reversed.


author: O’Brien, J.

text:
    In the Matter of the Application of John P. Adams, as Commissioner of City Works of the City of Brooklyn, to Acquire Land for Street Purposes.

      (Court of Appeals,

      Filed, February 27, 1894,)

    Eminent domain—Damages.
    A person, who holds the title to land, songht to he acquired by the city, subject to an easement in favor of part of the' inhabitants on the line of the street, is entitled, upon its appropriaton as a highway for the whole public, to nothing more than nominal damages.
    Appeal from order of the general term of the supreme court in the second judicial department, made December 1, 1893, which reversed an order of special term denying a motion to confirm the report of commisssoners of estimate, granted said motion and confirmed said report.
    The facts, so far as material, are stated in the opinion.

      James G. Bergen, for app’lt; Almet F. Jenlcs, for resp’t.

       Affirming 66 St. Rep., 234.

   O’Brien, J.

The municipal authorities of Brooklyn instituted proceedings under chapter- 365 of the Laws of 1889, as amended by chapter 452 of the Laws of 1890, to acquire title to lands for street purposes within the limits of Fifty-first street between Third and Fourth avenues as laid out upon the commissioners’ map. The land formerly belonged to Thomas Hunt, who died in the year 1878, leaving a will, and his executor claimed substantial damages for the taking of the land, but the commissioners of appraisal awarded only nominal damages. The court at special term refused to confirm the report of the commissioners and it was set aside, but the general term reversed the order and confirmed the report," and the executor of Hunt has appealed from, the order of reversal to this court. Hunt purchased the lands in question for fanning purposes as early as 1834. In 1835 or 1836 commissioners, appointed pursuant to the provisions of chapter 132 of the Laws of 1835, made and filed a map showing the location of the city streets, and the lines of Fifty-first street, as shown upon this map, include the lands now sought to be acquired. The street, however, was never actually opened or regulated. In 1851, Hunt conveyed the adjoining lands by deed under the following description and reservation:

“Beginning at the northeast corner of Third avenue and Fifty-first street; running thence northerly along the line of said avenue to lands of Galvin T. Spear; thence east along the lands last mentioned 740 feet to the centre of Fourth avenue; thence south along the centre of Fourth avenue 100 feet to the northely line of Fifty-first street 740 feet to the place of beginning,” and contained the following clause: “Hot intending hereby to convey to the party of the second part any right, title or interest of, in or to the land adjoining the said premises, and forming a part of Fifty-first street.”

In 1864 the department of assessment of the city made and filed a map of the 8th ward, in which the lands in question are located, for the purpose of assessment, and the lands are there laid out, and Fifty-first street appears substantially as in the map of 1835. Since this map was filed no assessment was made or tax levied upon that part of the lands of Hunt embraced within the lines of Fifty-first street by the city or county. After the death of Hunt, his executor, in June, 1879, filed a map of the lands, laying them off in blocks, lots and streets corresponding to the commissioners’ map. There was indorsed upon this map, however, a notice to the effect that the streets and avenues thereon designated was for the purposes of description and reference only, and it was not intended to dedicate any of the lands lying within the lines of the streets and avenues to public use as such, or for any other purpose. Afterwards the executor conveyed lots, bounding them upon the street, to other parties, in which the lands in front of the lots so conveyed and within the street lines were in terms including. The question is whether the executor of Hunt was under these circumstances entitled, as matter of law to more than nominal damages for the lands taken, the title to which still remained in him, and included within the lines of Fifty-first street on the map mentioned. The application by the city to appropriate the land to the purposes of a street must be regarded as an admission that it had not been completely dedicated for that purpose before by the owner. There can be no doubt however, that the owner intended to and did devote the land to use as a street,' at least as between himself and his grantees who purchased lots bounded upon the street. They acquired an easement in the strip of land for use as a highway in order to have access to and from the lots purchased. They were entitled to have it kept open as a street for their benefit, and that thereafter the owner held the title incumbered an easement for the benefit of the grantees of the lots of which he had sold, and it was subject to that easement when this application was made. The rights which the several grantees of lots on both sides of this strip of land thus acquired impressed upon it all the characteristics of a public street, though it may not have been completely dedicated by the owner to that purpose, or4 accepted by the public authorities as a highway. This servitude thus impressed upon the land could not be extinguished except with the concurrence and by the united act of every person who owned a lot bounded by the street. The commissioners, therefore, could only award the owner the value of the public easement proposed to be taken, deducting, therefrom the value of the private easement which already incumbered the property, and we have held that in such cases the owner’s damages are nominal only as the added burden is itself but technical and nominal. In re Village of Olean v. Steyner, 135 N. Y. 347; 48 St. Rep., 66.

The principle upon which the general public right to the use of the land as a highway is acquired in such cases, without the payment of substantial compensation to the owner, was stated by judge Finch in the case just cited in these words: “ The-real burden is in no manner increased by absorbing, the private in the public right, or substituting the latter in the room and stead of the former, since, as burdens on the land, they are substantially identical.” The nature of the private casement and the damage to the owner by converting it into a public one are illustrated and explained by other cases. In re City of Brooklyn, 73 N. Y., 184; Lord v. Atkins, 138 id., 184; 52 St. Rep., 155; Cunningham v. Fitzgerald, 138 N. Y., 165; 51 St. Rep., 840; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 63; In re Eleventh Avenue, 81 id., 446; White’s Bank of Buffalo v. Nichols, 64 id., 73 ; Wiggins v. McCleary, 49 id., 346. It follows, I think, from principles thus established that the executor of Hunt held the title to the land sought to be acquired by the city subject to an easement in favor of a part of the inhabitants on the line of the street, and its appropriation as a highway for the whole public, with the attendant duty and obligation to keep it in repair, safe and suitable for public use, entitled him to nothing more than nominal damages.

The order appealed from, should, therefore, be affirmed with costs.

All concur.

Order affirmed.


author: Finch, J.

text:
    Maria A. Lewis, App’lt, v. Julia R. Duane, as Administratrix, etc., Resp’t.1

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Mortgage—Foreclosure—Advertisement.
    Mortgage, given to secure outstanding commercial paper up to a certain fixed amount, may be foreclosed by advertisement.

      2. Same—Amount Dub.
    Where no fraud is charged, and the mortgagor stands by silently and ,Affirming 52 St. Rep., 818. with approval, and makes no complaint, the court of appeals will be very slow to criticise or dispute, long after the sale, the amount asserted to be due.
    8. Same—When Foreclosed.
    When the mortgagee, by the terms of his agreement, becomes liable to the mortgagor to pay all judgments upon premises so far as* necessary to protect the latter from loss, and takes his own security subject to such payments, every one of which is eventually to be discharged, his right to resort to his security springs up at its maturity and is not postponed until his actual payments.
    4. Same—Trust.
    Such agreement plainly establishes the relation of mortgagor and mortgagee, and not that of trustee and beneficiary.
    8. Attorney and Client—Authority.
    An attorney, employed to foreclose a mortgage, has not, by virtue of his office, an implied authority to give away the entire right of his client and make nugatory the very duty he was employed to perform.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order made April 25, 1893, which affirmed a judgment in favor of defendant, entered upon the report of a referee.
    This action was brought in September, 1883, against defendant individually and as administratrix of Patrick H. Drake, and as executrix of Jane E. and Virginia M. Drake, for an accounting, and to redeem certain lands which Patrick H. Drake had claimed to own as purchaser under the foreclosure of a mortgage executed to him by Frederick Lewis and wife. The action was commenced by said Lewis and wife, and he having died, has been continued by the latter as successor in interest.
    The said mortgage was by its terms executed to secure the payment of $60,000 one year from date, with interest. An agreement was executed by said Drake at the same time of which the following is a copy:
    “Frederick Lewis and Maria A. Lewis, his wife, both of the Gitv of Binghamton, Broome county, FT. Y., have this 4th day •of June, 1873, executed and delivered to Patrick H. Drake, of the city and county of Hew York, a mortgage upon all their real estate, situate in the said county of Broome, for sixty thousand ($60,000) dollars. The value of the property covered by the said mortgage is about one hundred thousand ($100,000) dollars.
    “The intention of the undersigned by this said mortgage is to secure .the said Drake against all liability he has or may have incurred as indorser for the said Lewis. The precise amount of such liability as such indorser is unknown, but supposed to be about thirty-two thousand ($32,000) dollars.
    “ And also to secure the said Drake for advances which he is to make to liquidate and satisfy the large amount of judgments against the said Lewis which are a lien upon the property covered by the said mortgage.
    “ The said Drake in the taking of the said mortgage only desires to secure himself for the amount of his liability as such indorser, and for the advances which he is to make in taking up and satisfying the judgments against the said Lewis. Anything more than this is not contemplated by the said Drake.

      “ When the amount of such liabilities and advances is ascertained or liquidated then the said Drake to indorse same, or reduce said mortgage to the true amount so advanced by him. In case he shall assign or part with the control of the said mortgage. he is to account to the said Lewis for the full amount that said Lewis may have to pay upon the same, or which he will be liable to pay to the holder thereof. In the meantime the said Drake will take care of and protect the said Lewis and his property from the enforcement of any of the judgments against the said Lewis or his property and save the property of the said Lewis from sacrifice, and the said Lewis from damages and costs.
    “ And that he will at any time assign said mortgage to said Lewis’ order upon being reimbursed on his advances, in case he shall not have previously assigned the same.”
    The material facts are stated in the opinion.

      Edward K. Clark and Roger P. Clark, for app’lt; S. C. Willard, for resp’t.
   Finch, J.

The plaintiff’s right to an accounting under the agreement which made the mortgage from Lewis to Drake collateral to certain described liabilities and promised advances of the latter is apparently barred by the foreclosure of that mortgage which has vested the legal title in the purchasers at the sale and extinguished the mortgagor’s right of redemption. It is consequently, over the validity and operative force of that foreclosure » and sale that the controversy has been carried on both in the proofs and the argument addressed to the trial court and the general term, and it is substantially upon that point only that a final judgment is now sought.

The mortgage was given by Frederick Lewis and his wife in June of 1873, to Patrick H. Drake, as security for the sum of $60,000 to be paid in one year from that date. An agreement executed by the mortgagee at the same time indicates the purpose of the security, the consideration upon which it rested, and the "extent to which it was intended to operate. That agreement shows that Lewis was in embarrassed circumstances, unable to pay his debts, and exposed to executions which threatened a sacrifice of his entire property; that he had come""to Drake for help and protection, in the hope, by his intervention, of saving something from the wreck; and that the purpose was to put the debtor’s property in the hands of Drake, both to secure the latter for his large liability as indorser, and obtain for the former an application of his .property, without sacrifice, to the discharge of his debts The agreement estimates the value of the land mortgaged at “ about $100,000,” a sum which it did not bring and which was largely in excess of the actual market value; a result not strange in view of the almost invariable tendency of a failing debtor to overestimate the actual value of his assets. The agreement put Drake’s liability, as indorser for the mortgagor, at about $32,000, but conceded that to be only a supposition, and that the true amount was at the moment unknown. Equally uncertain was the total' of the judgments against Lewis which were already liens upon the lands mortgaged. Out of these uncertainties the sum of $60,000 was fixed upon for the purposes of the mortgage, as a sum likely to cover the prior liens upon the land and Drake’s liability as indorser. Such prior liens he was to assume and discharge, and pay off the notes which he had indorsed, and so far as he did so, to do it out of his own means during the year of grace which the mortgage secured to the debtor, and that instrument was to stand as security for the advances made and to be made and the indorsed notes paid and discharged.

At the end of the year, and the consequent maturity of the mortgage debt, Drake had paid out large sums of money under the agreement, which Lewis was unable to reimburse; and it became obvious that Drake would be compelled to resort to his security. The drain upon his own resources had become heavy and was daily increasing; he had borne the burden for the stipulated time, and since the debtor could not pay, it was just and proper to resort to his property pledged for that purpose. But Drake was not hasty or impatient. He bore the burden for still another year, and doubled the time for which Lewis had stipulated, but no relief came from the debtor and the hope of any had practically disappeared ; and Drake then foreclosed the mortgage by advertisement and cut off the mortgagor’s equity. That foreclosure was conducted in ^cpnformity with the statutory provisions, and is not criticised so far as a due observance of those provisions is concerned, but is assailed upon grounds which go to the mortgagee’s right to foreclose, to the amount which was asserted to have become due, and to the consequence claimed to have resulted.

The first proposition of the appellant is that the foreclosure was premature, because Drake agreed to advance the money necessary to pay off the incumbering judgments and had done so only in part. The referee finds as a fact that at the date of the foreclosure Drake had paid out under the agreement a little over $42,000 and that there remained outstanding judgments which were a lien to .the amount of $20,000 more. Now, the agreement did not purport to alter or change the maturity of the mortgage. There is no word in it to that effect. On the contrary, all the provisions are consistent with the explicit terms of that instrument which allowed Drake at the end of one year, in case of Lewis’ default, to resort to the mortgaged property itself for the means of carrying out and fully accomplishing the purposes of the agreement. Its stipulation contemplated an assumption by Drake of the judgments which were liens on the property, and because it was only after their payment that any surplus could be reached applicable to his liability as indorser; but while he became bound for their eventual payment, he had a right, after one year, to resort to the property itself for the means of carrying out the contract, and in the meantime was bound to pay judgments only when necessary to prevent a sacrifice of the property or an enforcement against Lewis personally. The mortgage debt, therefore, was due and payable when the foreclosure proceedings were commenced, and they were not prematurely instituted; unless there is force in the further contention that the amount secured was unliquidated, and was to be ascertained as a condition precedent to the foreclosure.

It may be that whéré a mortgage is given to secure unliquidated damages they must be fixed and ascertained before the mortgage can be foreclosed. Until then it is impossible to know what sum will redeem the security on the one hand or satisi'y it it on the other; but if in such case no foreclosure by advertisement can be had the rule applies only where the damages are strictly of that character. What such damages are is shown in Butts v. Collins, 13 Wend. 156, and what they are not is settled in Mowry v. Sanborn, 68 N. Y. 153. The former case describes them as resting in opinion merely, to be ascertained by the verdict of a jury, and not susceptible of computation or calculation. The latter case sustained a foreclosure by advertisement where the mortgage was given to secure outstanding commercial paper up a certain fixed amount. That is the situation here. The indorsed paper and the judgments were for settled and ascertained amounts. To schedule them correctly and add them together was all that was necessary to show for what sum the mortgage stood as security. Allusion is made to the provision in the agreement that the mortgage should be indorsed down to the actual amount due on it. That clause operates only when less than the principal is the amount of the debt, and has no application where the latter is in excess and no indorsement at all is requisite or permissible. , .

And that brings us to the appellant’s principal contention; which is that the mortgage was foreclosed for a much larger amount than was due on it. There is no allegation of any fraud upon the mortgagor. Proper notices of sale were served upon him, and they disclosed the claim of Drake that there was due on the mortgage the full amount of principal and interest. Lewis was either present or might have been present at the sale and made neither objection nor protest, and none is heard from him for years thereafter, not even when he is required to surrender possession, and not until Drake’s death had lessened the means of explanation. Where no fraud is charged, and the mortgagor stands by silently and with approval, and makes no complaint, we should be very slow to criticise or dispute, long after the sale, the amount asserted to be due.

But in spite of all difficulties flowing from the death of Drake, I think it is made quite apparent that when the mortgage was foreclosed very much more was due than the amount of its principal and interest. The referee finds that at such date Drake had actually paid out upon notes and judgments a little more than fortjr-two thousand dollars, and that there remained unpaid liens on the property to the amount of at least twenty thousand dollars more, exclusive of the accrued interest thereon. The evidence indicates, according to the computation of the respondent, the details of which are furnished for our inspection, and which appear to be correct, that at the date of the mortgage there were outstanding judgments which were liens on the property, and which Drake assumed and agreed to pay and discharge, and which he was obliged to assume before reaching protection for his own liability, to the amount of almost thirty-six thousand dollars, and notes on which he was charged as indorser to the amount of forty thousand dollars more, making a total exceeding the principal of the mortgage more than fifteen thousand dollars.

Some of the items which enter into the computation are criticised by the plaintiff, and the computation itself assailed for alleged inaccuracies.

It is said that Drake did not in all cases discharge the judgments of record, and assigned or caused some of them to be assigned to his wife. She was Lewis’ sister, and the transfers were with his assent. The language of the agreement shows that such a mode of protecting Lewis from damages and costs and his property from sacrifice was within the scope of the arrangement. The words are: “In the meantime the said Drake will take care of and protect the said Lewis and his property from the enforcement of any of the judgments against the said Lewis or his property, and save the property of said Lewis from sacrifice and the said Lewis from damages and costs.” That covenant was fully performed. Hone of the property was wasted or sacrificed on execution sales; it was all applied to the payment of Lewis’ debts; no judgment in any manner charges or menaces his estate; each and all of them are paid: and Drake only is a loser by the transaction.

It is said that until actual advances in payment of judgments were made the latter formed no part of the debt protected by the mortgage. But that was intended as an indemnity to Drake. He did not covenant to pay the outstanding judgments in express terms, but did agree to save Lewis harmless therefrom, and protect him against the sacrifice which would result from"their enforcement by execution sales. Drake’s liability attached at once, and on appellant’s own theory the morgagee became responsible to the judgment creditors.' Whether that be quite true or not, Drake, at least, by the terms of his agreement became liable to Lewis to pay all these judgments so far as neccessary to protect him from loss, and took his own security subject to such payments, every one of which was eventually to be discharged. Drake’s right to resort to his security sprang up at its maturity and was not postponed until his actual payments. Kohler v. Matlage, 72 N. Y. 259.

It is further insisted that the referee erred in not crediting upon the mortgage a sum of five thousand dollars paid to Drake by Lewis. The proof tends to show that the amount was applied by Drake upon a note by Lewis, ontside of and in addition to those embraced in the mortgage consideration.

There are many other criticisms upon the accounts as respects their details, but these were all submitted to the consideration of the referee and constituted elements of the question of fact upon which his finding ought to be and is conclusive upon us. We are unable to find any just reason for reversing his determination that at the date of the foreclosure at least the full sum of principal and interest was due on the mortgage.

But, assuming that to be true, the plaintiff urges that, by not discharging the judgments on the record, the mortgagee was enabled to make the sale and become the purchaser under the cloud of a seemingly double incumbrance, and so purchasers were prevented from bidding. But the result came from Lewis’ assent. Paid judgments were assigned to Mrs. Drake, instead of satisfied of record, with his knowledge and approval. He, at least, knew the truth and did not object. He might have explained, but did not. He might have required Drake to make the record correspond with the fact, but chose not to do so, and evidently preferred in his own interest that Drake should be the successful bidder. It is impossible not to see that such was his attitude. He knew very well that nobody could afford to take the property, burdened with its actual liability, except Drake, to whom it was a necessity if he hoped to obtain any protection; t and Lewis occupied the homestead, long after the sale, by Drake’s sufferance, while waiting for a purchaser. There is not only no claim of fraud made in the complaint, but not a single allegation of fact pertinent to a setting aside of the sale, and no such relief asked. Whatever of force there might have been under some circumstances in the objection made, it-has no just application as a ground of this appeal.

Hor can the effect of the foreclosure be avoided by the conténtion that the papers executed between the parties constituted a trust. They plainly established the relation of mortgagor and mortgagee, and not that of trustee and beneficiary. The mortgage was, as a mortgage always is, collateral to a' debt due or to become due to the mortgagee, which in this case was the liability of Drake as indorser, necessarily increased, in the result by the incumbering judgments first to be paid before protection of any kind could be reached. There were about the transaction no elements of trust beyond those which commonly attend a mortgage given as collateral. Williams v. Townsend 31 N. Y. 415. The result have been different if Lewis had not been made a party to the foreclosure so that his equity survived.

An effort was made in that direction through the agency of some parol evidence which was excluded at the trial but is now claimed to have been admissible. The attorney foreclosing the mortgage for Drake was Mr. Hotchkiss, who was dead at the time of the trial. Mrs. Lewis was asked this question : “Did Mr. Hotchkiss tell yon or say to Mr. Lewis in your presence that the foreclosure should make no difference as to the agreement between Mr. Drake and Mr. Frederick Lewis?” The question was objected to and excluded, and the plaintiff took an exception. The only authority of Mr. Hotchkiss was derived from his position as the attorney of Drake in' the proceedings for foreclosure. Ho other agency is shown, and the question presented is whether an attorney employed to foreclose a mortgage has, by virtue of his office an implied authority to give away the entire right of his client, and make nugatory the very duty which he was employed to perform. There ought to be and there can be but one answer to that question. The primary and principal purpose of the foreclosure was to extinguish the equity of redemption. For that purpose the notices were served upon Lewis and his wife, and the whole proceeding was a waste and a nullity without it. To assure the mortgagor that the legal effect of the pending foreclosure should be annulled and the rights of the parties nevertheless remain unchanged was to give away and destroy the entire right of the client and invalidate the proceeding itself. An attorney, as such, may not compromise the rights of his client outside of his conduct of the action, or accept less than the full satisfaction sought .or release his client’s right, or subject him to a new cause of action. Arthur v. Homestead Fire Ins. Co., 78 N. Y. 469; Barrett v. Third Avenue R. R. Co., 45 id. 635; Beers v. Hendrickson id. 665. The evidence offered could only be material by completely annulling the legal effect of the proceedings as against the mortgagor. The attorney had no such authority and the evidence was properly excluded.

Beyond the legal questions involved I have quite carefully gone through the evidence to see if Lewis has been in any manner wronged. • There is no possible basis for any such theory unless upon the ground that there was a real surplus of value in the pronerty mortgaged beyond the incumbrances and the conceded debt of Drake. There are some opinions in that direction but the weight of evidence, and especially the plain and decisive facts are the other way. Ho process can create the desired surplus except one which stands on opinions of cost or intrinsic worth instead of market value for purposes of sale, and which compels Drake to account for the property at double the amount which he was able to get on a sale.

I think the judgment should be affirmed, with costs.

All concur.

J udgment affirmed.