text:
    Romanna Jeaume et al., Resp’ts, v. The New York, Lackawanna & Western R. Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 2, 1891.)

    Railroads—Appropriation of street—Basements.
    Pursuant to permission given by tile common council of the city defendant proceeded to construct its railroad through the street in front of plaintiffs’ premises and in doing so erected an embankment 24 feet wide with the retaining walls nine feet from the curb, and which was about three feet high in front of said premises. The embankment was paved and two tracks laid thereon. No-e of the steps required by the charterto be taken for a change of grade appear to have been taken. Feld, that this was a permanent and exclusive appropriation of the street to the use of defendant, and not merely a change of grade, and entitled plaintiffs to maintain an action for damages for deprivation of their easement of access from their premises.
    Appeal from judgment in favor of plaintiffs.

      Loughlin, Ewell & Hough, for resp’ts; Rogers, Locke & Milburn, for app’lt
   Titus, J.

This action and two others, Strasser v The N. Y., L. & W. R. Co., and Reining v. The N. Y., L. & W. R. Co., involve the same question of the plaintiff’s right to recover, the facts being similar in each case, argued at the same time, and submitted substantially upon the same brief by the defendant’s counsel The gist of the action is based upon the fact that the defendant built an embankment in and along Water street, on which it laid tracks to operate its railroad. The fee of the street is in the city of Buffalo.

Water street in front of the plaintiff’s premises is forty-eight feet wide between the curb lines; the embankment is twenty-four feet wide and the retaining wall nine feet from the curb line of the street. The embankment commences at Commercial slip and runs westerly along Water street to Commercial street, where it reaches its greatest elevation, being nearly six feet above grade.

From that point it runs on down grade westerly past Maiden Lane and past the plaintiff’s premises to a point 356 feet west of Commercial slip, where it touches the grade of the street Opposite the plaintiff’s premises the walls of the embankment are from two feet six inches to three feet in height. There is no approach to or way of getting onto this elevated surface for footmen or teams except at Commercial slip, where stone steps have been erected for persons passing along on foot, and an approach of gradual elevation for teams crossing Water street There is no approach from Maiden Lane to the elevated road, and, to get onto it from that point the plaintiff must 'pass westerly along the side of the embankment to where it approaches street grade, or go easterly past Maiden Lane to Commercial street and up the approach in that street. When he gets onto the elevated grade, he finds two railroad tracks in front of his premises occupying, including the space between the tracks, fifteen feet, with a space of four feet on one side, and five feet on the other to the outer edge of the retaining wall. The surface is paved with stone. In front of the plaintiff’s premises teams cannot pass each other by reason of this structure. The plaintiff’s lot is west of Maiden Lane and on the north side of Water street.

The principal question presented by these facts is, is this such a permanent and exclusive appropriation of a portion of the street as will authorize the plaintiffs to maintain an action against the defendant for damages, or, is it a simple change of grade of the street, made in the manner pointed out by the charter?

I regret that I cannot concur with my learned associate in the conclusion reached by him in the Reining case.

It cannot be denied, I think, that the structure, built as it is of solid quarried stone retaining walls, filled in between with clay and gravel and paved on the surface, is a permanent structure Whether that portion of the street occupied by the embankment is exclusively occupied by the defendant company within the meaning of the decision in Story v. The Elevated R. R. Co., 90 N. Y., 122, as explained and construed by subsequent decisions in the court of appeals, is not quite so clear.

From the arguments used by the learned judges of the court of appeals in the discussion of this question, it seems to me that it must be assumed, that if a wall had been built along the street in front of the plaintiff’s, premises, of the height and character of the retaining walls now standing thére, of sufficient width only to enable the defendant to lay its tracks, that such a structure would be such an exclusive appropriation of the street, to the purposes of the defendant, as would entitle him to maintain this action, because, in that case, it could not be claimed that the embankment was a simple change in the grade of the street, but an absolute and exclusive appropriation of it so as to destroy, in part at least, the easement which the plaintiff as abutting owner has in the street.

How wide, then, and how much surface must the embankment cover, that it shall not be deemed a structure devoted exclusively to the uses of a railroad ? Clearly it must depend somewhat upon the facts proven in a given case.

Judge Tracy, at page 170, in the Story case, says : “ Whether a particular structure authorized by the legislature is consistent, or inconsistent, with the use of the street for street purposes must be largely a question of fact, depending upon the nature and character of the structure authorized.” The verdict in this case must be considered as a finding in the affirmative on this proposition, although the precise question was not submitted to the jury. In this connection the learned judge continues: “The extent to which the plaintiff’s property is appropriated is not material It cannot, nor can any portion of it, be appropriated to the public use without compensation.” Again at page 171: “ The fee remained in the owner making the dedication, and he having sold lots abutting upon the street, the purchaser * * * obtained a perpetual right of way over the space called a street to the full extent of its dimensions. Whether the bed of the street was excepted from the grant of the city, and the title thereof never vested in the grantees, or whether the bed of the street was included in the grant and passed to such grantees, is of little importance, as in either event the plaintiff has a private easement of a right of 0 way in the street, coupled with an express covenant that the entire space marked on the map as Front street shall forever be kept as a public street” And follows with the conclusion that the defendant’s road encroaches upon the plaintiff’s easement and appropriates his property to its uses, which it cannot do without making compensation. The fact that the embankment is not of the dimensions which I have supposed does not, it seems to me, make any difference. The plaintiff cannot go onto the elevated portion of the street from Water street in front of his premises, but, as appears, must go around by Commercial street, thus being deprived, of access to that portion of the street from his premises, and is, therefore, deprived of that right of access to the street, which, as an abutting owner, he is entitled to. 3 Kent’s Com., 432; Elliott on Eoads and Streets, 557.

As to the elevated portion of the street he occupies the same position as the public and can get onto it in no different way, so that he is deprived of that peculiar easement in the street; namely, access from his property, which is recognized as appurtenant and incident to his ownership of the premises.

The elevated road is twenty-four feet wide in front of the plaintiff’s premises, on which are two tracks running parallel with each other, leaving no sufficient space for the public to drive over and •along the street, unless it be upon the track of the .railroad, 'While it is possible to drive along on this surface with teams, as it might be on any railroad track, can it be said that that portion of the street is not devoted exclusively to the use of the defendant for railroad purposes ? If a person should drive upon the elevated portion of the street, he could not get off at Maiden Lane, and it would, it seems to me, not only be careless, but extremely dangerous to attempt it There is no place to turn out; no street to turn onto to avoid an approaching train, and the alternative of being run over by the engine or precipitated down on to the street below is presented. Practically, it amounts to an exclusion by the defendant of the public from the use of that portion of the street by reason of the danger attending it; what is impracticable and dangerous to do, should not be done; and if a party is deprived of the use of a street without great hazard to himself, it seems to me it amounts to- a deprivation of his right to use it.

In the Story case it was possible to use the street Light and air were not entirely shut off, but a portion of the street above the surface was appropriated to the exclusive use of the elevated railroad, which shut off some of the light and air, and the iron posts standing in the street prevented facility of access to the premises of the plaintiff. In this view it can make no difference whether the defendant company was required to pass over Commercial slip at a certain elevation above the water in the canal or not. That fact cannot prejudice the plaintiff, or affect his right so as to deprive him of access to the street

It is claimed that the Fobes case, 121 N. Y., 505; 31 N. Y. State Rep., 828, has in some manner explained and limited the effect of the Story case, and that the law as there laid down is 'inconsistent with the plaintiff’s right to recover in this action. I confess I do not so understand it. In that case tracks were laid upon the surface of the street, presenting no permanent obstruction to travel by the public, and nothing except the occasional passage of trains to interfere with the unobstructed access to the plaintiff’s premises.

In speaking of the Story case, Judge Peckham says: “The case embodied the application of what was regarded as well established principles of law to a new combination of facts, amounting, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, * * * which amounted to a taking of some portion of the plaintiff's easement in the street for the purpose of furnishing light, air and access to his adjoining lot. * * * The structure permanently, and at every moment of the day, took away from the plaintiff some portion of the light and air which otherwise would have reached him, and interfered with and took away from him his facility of access to his lot.” The learned judge lays stress upon the fact, that in the Fobes case the surface of the street was not interfered with but was subjected to an additional burden not inconsistent with its use as a street, for which an abutting owner can have no right of action. In the case before us there can be no question but that the embankment takes away from the plaintiff his right of facility of access to his lot, and seriously interferes with the convenient use of it I cannot see that the Fobes case in any way limits the Story case, nor does it appear that the learned court intended to change the rule as applicable to cases where the facts warranted the conclusion that there is an absolute appropriation of the street to the exclusion of the public, as I believe is warranted in assuming in the case before us. In the Lahr Case, 104 N. Y., 268; 4 N. Y. State Rep., 340, the principle of the Story case is emphatically affirmed. Chief Judge Ruger, in the opinion of the court, says : “ The doctrine of the Story case, therefore, although pronounced by a divided court, must be considered stare decisis upon all questions involved therein, as establishing the law as well for this court as for the people of the state whenever similar questions may be litigated. Wherever, therefore, the principles of that case logically lead us, we feel constrained to go and give full effect to the rule therein stated: that abutters upon public streets in cities are entitled to such damages as they may have sustained by reason of the diversion of the street from the use for which it was originally taken and its illegal appropriation to other and inconsistent uses.” This rule is practically concurred in by all of the judges of the court, Judges Bari and Finch adding a memorandum, that “ it gives abutting owners only damages for the construction of a railway in front of their premises resulting from the taking or destruction of their street easements of light, air and access.”

It is claimed that the Ottenot case, reported in full in 28 ¡N". Y. State Rep., 483, is decisive of the character of the structure erected in Water street, and is controlling here. In that case the plaintiff’s lot was situated on Commmercial street forty feet south of the exterior line of Water street. The embankment complained of was erected by the defendant under the authority of the city as an approach to the crossing on Water street, and, as I understand from what was said by the leaned judge who wrote, the opinion in that case, it had reference to the construction of the approach and not to the structure in Water street, as the character of that structure was not necessarily in question, or the right of the defendant to construct it. The street was not subjected to any new use; no railroad tracks were laid on the embankment, and it continued to be devoted simply to street purposes; the learned judge saying: “The railroad was built by lawful authority through Water street, and of its existence there and of any damages caused thereby, the plaintiff had no right to complain, as he was not an abutting owner on that street and had no property rights therein.” I do not think this case is decisive of the question involved here, for the reason that there was no railroad in Commercial street and no question of appropriation of the street for railroad purposes. While the opinion was written by one of our most learned and distinguished judges, it is not concurred in by a majority of the court and the judgment was reversed upon other grounds not involving the questions here discussed.

The case of Conklin v. R. R. Co., 102 N. Y., 107; 1 N. Y. State Rep., 677, was followed, in which the facts were similar to the facts in the Ottenot case. It seems to me, therefore, that the structure in Water street must be held a permanent structure, and, to the extent that it occupies the street, an absolute appropriation to the exclusive use of the defendant’s railroad.

Whether the elevation in Water street is a legal structure, assuming that it is simply a change of grade, has not, heretofore, been considered by this court. While the question is not now raised by the plaintiff’s counsel in this case, it is claimed by the learned counsel in the Reining case that the proceedings pointed out by the charter to be pursued in opening and changing the grade of streets has not been followed, and, consequently, it is claimed that the change of grade was wholly unauthorized by law.

Inasmuch as these cases were, by consent of the various counsel . engaged in them, argued before all of the judges, with the understanding that the facts in each case were the same in all, I deem it not inappropriate to consider that question as bearing upon this casa; the more so, as my learned associate has discussed the question in his opinion in the Reining case, and as the evidence upon this question is precisely the same in both cases. To call this structure in Water street a change of grade is a misnomer. It is an embankment built by the defendant for railroad purposes and not for street purposes, and is for the benefit and profit of the defendant, and not for the accommodation or convenience of the public. The grant of the city of Buffalo to it was a free gift of inestimable value to the stockholders and owners of that corporation, and in its relation to the rights of individual property owners the company must rely upon the letter of the law and not upon a loose or favorable construction by the court, to enable it to escape the payment of reasonable damages to individual property owners necessarily resulting from the building of its railroad in the street. The learned counsel for the defendant so persistently characterizes the structure as a change of grade of the street, that without considerable examination we are led into the use of the phrase without quite comprehending what is required by the charter to effect a change of grade, and what was done by the city which has effected a change, or whether it has been done or attempted to be done by the city authorities at all. Section 28 of the general railroad act, chapter 140, Laws of 1850, authorizes a railroad to construct its road along the streets of the city, with the consent of the municipality, and by § 19, title 3 of the city charter (chapter 519, Laws of 1870) : “ The common council, by a vote of two-thirds of all its members elected, may permit the track of a • railroad to be laid in, along or across any street or public ground.” It appears that in 1882 the common council, with the approval of the mayor, granted permission to the defendant corporation to lay their tracks along Water street, pursuant to the authority given by the charter, and so far as the consent of the city could' give authority the company had the right to lay their tracks in Water street

These proceedings of the common council simply give the consent of the city of Buffalo, as authorized by the general railroad law, in pursuance of the authority conferred upon the common council by § 19 of the charter above referred to. No steps are necessary in granting such authority but an application by the company and a resolution by the common council authorizing it. The steps pointed out by the charter to change the grade of a street were not taken. There is nothing to indicate that anything more was intended than to pass a resolution giving the permission authorized by the charter. If this is true, then the defendant’s construction that a change of grade has been effected cannot be upheld, unless the requirements of the charter to effect a change of grade are meaningless words. I cannot assent to the proposition. From an examination of the provisions of the charter, it seems that certain steps are required to be taken and a degree of formality is pointed out which was deemed essential by the legislature to be observed before the established grade of a street could be changed. The reasons for such a formal proceeding are so numerous and obvious that they readily suggest themselves. The property owner is, in some manner, to be apprised of what is intended to be done by the common council, that he may be heard, not only on the question of taxation, but that his interests in the street may be consulted and protected through his representatives in the council, and that if his property has been damaged, 'that he may have to resort to the methods provided by the charter to indemnify himself for the damage he has sustained. Section 2 of title 9 provides, that the grade of the street shall be established and described and a description of such grade and all alterations thereof shall he recorded by the city clerk. Section 7 authorizes the common council to change the grade of streets, and when the expense exceeds $500, it is provided by § 8 that the work shall not be done but by a vote of three-fourths of all the members elected to the common council, after notice of intention to order the work has been published three times a week for two weeks or unless the improvement has been applied for by a majority of the owners of land fronting on the street representing two-fifths of the feet front of land on the street in which the improvement is to be made.

Section 17 provides that when the city shall alter the recorded grade of any street, the owner of lands fronting on the street whose property has been damaged may, within one year, present his claim to the common council and the sum allowed shall be assessed upon the property benefited. It will be observed that this section is found in the title of the charter making provision for the care and change of grade of the streets, and has no necessary connection with that provision of the charter which authorizes the common council to grant permission to railroads to lay their tracks in the street It would be quite difficult, it seems to me, to comply with the charter and assess a tax upon the property benefited by constructing this embankment in Water street, unless it was upon the property of the defendant, because it is not observable how any of the property along Water street is benefited by this structure. It is not claimed that any of these provisions were observed in -the proceedings which resulted in granting the right of way to the defendant, but by some unexplained short-cut the council has changed the grade of the street, entirely ignoring the mode of procedure provided by the charter, without intending to do so.

It occurs to me that the common council obtained no jurisdiction of the matter to enable it to change the grade of the street, and could not have levied a valid assessment upon property to pay the expense incurred, and hence could not legally pay the plaintiff or any other person whose property was damaged by the so called change of grade. This, it seems to me, is a proper test: Could the common council levy a valid assessment upon property for damage accruing to abutting owners for the structure in Water street without in any way conforming to the provisions of the charter authorizing a change of grade to be made ? I am aware that it is said in the Ottenot case that the plaintiff should have pursued his remedy under the provisions of § 17 of the charter. The fact was undoubtedly overlooked that that section had reference to the change of grade in the manner pointed out by the charter, and not to damages resulting from building an embankment under the authority of the common council, given pursuant to § 19 of title 3. The fact that the property owners are not called upon to pay for the embankment cannot affect the question, for they have other rights, besides the one of paying taxes, which are to be considered in this connection, and not the least of these is the right to damages if they have, been injured by the unlawful act of the defendants.

The plaintiff has had no opportuntity to present his claim to the city, as he has received no notice that the grade was to be changed, unless he must take notice from the fact that work was in progress. The charter does not make the minutes of the common council notice to the public for any- purpose when such notice is required to be given, and the statute of one year limitation might run before he could receive notice that proceedings for a change in the grade of the street had been instituted. The provisions of the charter, so far as they have been passed upon, have been, uniformly strictly construed by the courts, and no act of the common council not expressly authorized by it has been upheld. The city possesses only such power as the legislature has conferred upon it, and it can only exercise such power in the mode pointed out by the statute giving it. It, therefore, seems to me that there has been no change of grade in Water street, within the meaning of the charter, but simply a permit to the defendant to lay its tracks in that street; and no opportunity has been presented to the plaintiff to present a claim for damages to the city, and no authority is given the city to pay damages for proceedings instituted under that provision of the charter. If the defendant is otherwise liable for damages, it cannot shield itself by the fiction of a change of grade in the street under authority from the common council, as no such authority has been given by it.

I have considered none of the other objections in the case relating to the admission of evidence, because in the interest of these litigants and the public the question of the right to rrmiritairt these actions should be first determined and set at- rest

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

Beckwith, Ch. J., concurs; Hatch, J., did not sit.


source: Caselaw Access Project

author: Beckwith, Ch. J.

license: Public Domain

text:
    Caroline Smith et al., Pl’ffs, v. Mary Siblich et al., Def’ts.

      (Superior Court of Buffalo, General Term,

      Filed February 2, 1891.)

    Partition—Parties.
    The complaint in an action of partition alleged that S., an owner of a, share in the property, conveyed his interest “subject to a claim of one J., to be adjusted and paid out of the said interest conveyed,” and that such interest afterward passed by descent to certain of the defendants; that defendant G. claims an undivided interest in the land by virtue of a judgment against S., recovered subsequent to such conveyance. On demurrer-interposed by G-., Held, that whatever the actual character of J.’s claim may be it is nothing more than a personal right to receive a sum of money which the owner of the land has a right, and .is perhaps under an obligation to pay, and this does not create in J. the sort of interest which makes him a necessary party to such an action.
    Demurrer to complaint.

      D. G. Jackson, for pl’ffs; David F. Day, for deft, Peter Grasz.
   Beckwith, Ch. J.

This is an. action for the partition of lands situated in this city.

The issue of law presented for our consideration is raised by a demurrer interposed to the complaint by Peter Grasz, one of the defendants. The objection specified is “ a defect of the parties to the action,” and the particular defect pointed out is that D. Gr. Jackson, mentioned in the complaint, is not made a party.

There is an allegation in the complaint that Michael Strick at a date mentioned conveyed by deed all his interest in the premises sought to be partitioned to his son, Andrew Strick, “ subject, however, as expressed in said deed, to a claim of one David Gr. Jackson, to be adjusted and paid out of the said interest conveyed.”

The complaint further sets forth that this interest or share conveyed to Andrew Strick afterwards passed by descent to certain of the defendants mentioned and that it is an interest in a part only of. the lands sought to be partitioned. It is further alleged that the defendant, Peter Grasz, claims an undivided interest in the lands by virtue of a judgment obtained against Michael Strick, which judgment as it is further alleged was recovered at a time subsequent to the deed of the same share which refers to the claim of David Gr. Jackson. The complaint, therefore, puts the defendant, Grasz, in the posture of asserting ownership of the undivided share or interest which Michael Strick conveyed to his son, Andrew, subject to the unadjusted claim of Mr. Jackson. The question raised by the demurrer interposed by the defendant, Grasz, is not whether it might not be convenient to have Mr. Jackson brought in as a party, nor whether the court on motion might not order him to be brought in, but whether it appears on the face of the complaint that he is a necessary party, so necessary that the omission of his name makes the complaint demurrable. The supposed defect in the complaint is pointed out in the demurrer in the following language: “ There is a defect of parties to said action, it appearing that D. Gr. Jackson mentioned in said complaint as the owner, of an interest and estate in the premises described in said complaint is not made a party to said action either as plaintiff or defendant.”

It may be conceded that if it appears, as assumed by this demurrer, that said Jackson is “ owner of an interest and estate in the premises,” he ought to be made a party.

But all there is in the complaint upon which the demurrer is predicated is the language already cited, found in the deed from Michael Strick to his son, by which deed he conveys a share of the premises, “ subject, however, to a claim of one D. Gr. Jackson, to be adjusted and paid out of the said interest conveyed.”

The decision of the question raised by the demurrer must turn upon the meaning of the language quoted. If, as the demurrer assumes, it means that Jackson is the owner of an interest and estate in the land, then he is a necessary party and the demurrer is to be sustained. But can the words cited “ subject to the claim of D. Gr. Jackson,” be construed so as to have that meaning. The most ordinary use of the word claim is the assertion of a right residing in the speaker in relation to an obligation or duty-owing to him from another. That may be called a personal right.

“ What is a claim? It is in just judicial sense a demand of some matter as of right made by one person of another to do or forbear to do some act or thing as a matter of duty." Story, J., in Trigg v. Pennsylvania, 16 Peters, 615.

It is true the word has the opposite employment of designating as an object the existence of an interest, and sometimes the extent of an interest, in land or other property with which the right asserted is connected. The statute, Code, § 1568, speaks of a claim by virtue of the right of dower. There is, for example, the claim of a vendee under a land contract of ownership, and to have his interest made a legal one by the deed of his vendor; and the claim of the pre-emption settler on public land is his interest in the land. But this use of the word claim as signifying an estate or interest in land or other property cannot be the one it bears in the deed from Michael Strick. The specification, “ subject to the claim of one- D. Gr. Jackson,” is followed by words which show that the claim referred to is one of the kind first mentioned.

It is a claim to be adjusted and paid; a personal right in Jackson, secured by a charge on the land. It might mean, it is true, some specific incumbrance, or an equitable lien like that arising from an advancement of purchase money upon a promise of a mortgage. But whatever the actual character of Jackson’s claim may be, still, upon a fair construction of the language, it is nothing more than a personal right in him to receive a sum of money which the owner of the land has a right, and is, perhaps, under an obligation to pay. That does not create in Jackson the sort of interest in the land which requires him to be made a party. His claim is to be paid out of the land, but he is not entitled, by the language in the deed, to have a share or part set off to him in severalty.

To have and hold one’s interest in real estate in severalty is a common law right, a legal right. Smith v. Smith, 10 Paige, 473.

The object of an action for partition is the recovery of ‘-possession, or the establishment of a right to the possession of land, and primarily, the final relief consists in obtaining the possession of a specific parcel of land. Who are necessary parties will appear from a view of the objects of the action. The general principiéis a division of the estate. The mode in which a partition is effected in equity is that after the interests of all parties have been ascertained, either by evidence in the case, or by the master’s report, a commission is issued to persons nominated by the parties, or, if necessary, by the court, directing them to enter on and survey the estate, to make a fair partition thereof, to allot their respective shares to the several parties, and to make a return of their having done so to the court” The decree formerly did not operate like a modern judgment to divesta party of title from the whole and re-invest in a particular parcel of the premises. The procedure was that after the confirmation of the return of the commission a decree was entered, “ That the plaintiffs and defendants respectively convey to each other their respective shares, and deliver up the deeds relating thereto, and that the allotted portions respectively be held in severalty.” Adams’ Eq., page 236 (8th Ed. by Ralston).

The decree operated on the parties personally, coercing mutual conveyances by persons who had something which they could convey. The accomplishment of these primary objects of the action would not necessarily bring in mere incumbrancers of the entire premises or of an undivided share. To such effect were the decisions in this state prior to the adoption of the present statutory procedure. Sebring v. Mersereau, 9 Cow., 344; Harwood v. Kirby, 1 Paige, 469; Wotten v. Copeland, 7 Johns. Ch., 140.

Suppose Jackson were brought in as a party defendant and should put in his answer. ' If we have interpreted correctly the meaning of the language in Michael Strick’s deed, he could only set forth the character of his claim and that its payment was. charged on Strick’s undivided share of the' land. He could not himself claim a share of the land, but only pecuniary relief. He could not show any ownership which would require him to be brought in as a party in order to enable the court to make a complete partition. But, further, admitting that Jackson has a lien on the-specified undivided share in the land, it is not material to the defendant Grasz that he be made a party to this action for partition among the owners. His absence could not prevent Grasz from establishing his title to the interest conveyed by Michael Strick as against the heirs, nor hinder him from enlarging as much as possible the dimensions of the parcel to be set off in severalty.

The demurrer admits the allegation in the complaint that the defendant Grasz acquired his claim to the land after the conveyance by Michael Strick, and even if Grasz should bo able to establish a title superior to that of the defendant heirs, it would not be necessary for the court to determine the question of priority as between Jackson's and Grasz’ claims in order to make partition. If the defendant Grasz should succeed in showing a better title than the heirs named to the share that belonged to Michael Strick, and obtain its allotment to him, it might be convenient for him to have it determined whether Jackson’s claim attached as against him, but it would not be essential that the court should decide that question in order to effect a perfect allotment of the parcels. If the court can determine the controversy before it without prejudice to the rights of others, or by saving their rights, then a demurrer for non-joinder of such parties is not well taken.” Wallace et al. v. Eaton et al., 5 How. Pr., 102; Code, § 452.

A judgment setting off the shares in severalty would not prejudice Jackson asserting his lien, nor Grasz contesting it. But the-provisions of the Code of Civil Procedure seem to determine the question raised by this demurrer. Actions relating to property are regulated by special provisions contained in that act See chap. 14, art. 2, for the provisions regulating the action for partition. Section 1538 prescribes who are -necessary parties to the action. Section 1540 declares that “ the plaintiff may, at his election, make a creditor having a lien on an undivided share or interest in the property a defendant in the action.”

And in case of a sale of the premises instead of actual division subsequent sections of the Code fully provide for the protection of persons having claims in the nature of liens whether present as parties or otherwise. Leinen v. Elter, 43 Hun, 249; 4 N. Y. State Rep., 412.

The demurrer must be overruled, with leave to the defendant to answer on payment of the taxable costs for trying an issue of law, and the disbursements.

Titus and Hatch, JJ., concur.


author: Titus, J. Beckwith, Ch. J.

text:
    Laura Wooden, Pl’ff, v. The Western New York & Pennsylvania R. R. Co., Def’t.

      (Superior Court of Buffalo, General Term,

      Filed February 2, 1891.)

    1. Negligence—Parties.
    An action under the statute of a foreign state can only be maintained in this state by such parties as are designated by the statute giving the right of action. '
    2. Same—Action for death caused in foreign state.
    The husband of plaintiff was a brakeman in defendant’s employ, and was killed while in the performance of his duties in the state of Pennsylvania. The statute of that state is similar to that of this state, hut pro- ’ vides that the widow may maintain the action and the damages shall go to the widow and children in the proportion that they would take other personal property in case of intestacy. Held, that the action was properly brought in this state in the name of the widow.
    3. Same—Pleading.
    The complaint alleged that the statute of Pennsylvania conferred upon the widow the right to maintain the action; that by the said statute the persons entitled to the damages are the widow and children, and that the action is brought by plaintiff in behalf of herself and children. Held, that the allegations were not repugnant. (Per Beckwith, Oh. J.)

      Demurrer to complaint.

      Harlow C. Curtiss, for pl’ff; Rogers, Loche & Milburn, for def’t.
   Titus, J.

The defendant demurs to the plaintiff’s complaint, on the ground that the plaintiff has no legal capacity to sue, and chat such action under the statute in such case made and provided must be brought by the administratrix of the goods, chattels and credits of George W, Wooden in her representative capacity, and cannot be brought in the individual name of the plaintiff.

From the complaint it appears that on the 4th day of January last, George W. Wooden, a resident of this city, employed as a bralceman by the defendant, -was killed while in the performance of his duties at Parker’s station, in the state of Pennsylvania. It further appears that, by the laws of Pennsylvania, whenever the ' death of a person shdll be caused by the unlawful violence or negligence of a person, that the husband or widow, and the children of such deceased, shall be entitled to recover damages for such injury causing death, and that the amount so recovered shall go to them in the proportion that they would take other personal estate in case of intestacy; that the plaintiff, Laura Wooden, was the wife, and Gertrude E. Wooden, Charles W. Wooden and George E. Wooden were the children of said deceased, and are entitled in case of a recovery to such share as by the laws of that state they would be entitled to in case the deceased had died intestate possessed of a personal estate.

Under this statute it has been held by the supreme court of Pennsylvania that the widow is entitled to bring suit, and the sum recovered shall go to the survivors in the proportion they would take personal estate in case of intestacy. Huntingdon & Broad Top Railroad Co. v. Decker, 84 Penn., 419.

This construction of the statute by the courts of Pennsylvania is controlling on the courts of this state, and if the statute of Pennsylvania be of similar import and character as the laws of this - state in giving a right of action, then such action can be" maintained in this state. Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48.

It appears that by the laws of Pennsylvania, when no suit is brought by the injured party during his life, the widow, children or parents of the deceased, and no other relative, are entitled to recover damages for the injury.

There would, under the statute, be no necessity for the appointment of an administrator to bring an action, as the statute expressly names the persons who bring such an action, and because •the recovery does not belong to the estate of the deceased, to be treated as other assets are in the payment of debts, but to certain of his next of kin, the widow, children or parents of the deceased.

In this state, “ the executor or administrator of a decedent who has left him or her surviving a husband, wife or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof, if death had not ensued.” Sec. 1902, Code Civil Procedure.

Such an action must be brought by the personal representatives of the deceased, and the damages, when recovered, are exclusively for the benefit of the wife or next of kin, and when collected must be distributed as if they were unbequeathed assets. Sec. 1903, Code Civ. Procedure.

The laws of the two states are very similar in their provisions giving a right of action for wrongfully causing the death of a person; and if the proper person has been made plaintiff to bring this action, it can be maintained in this state.

It is claimed by the defendant’s counsel that the action should have been brought by the plaintiff as administratrix, and not being brought by her in that capacity it must fail.

I am not aware of any statute of this state regulating the practice or providing who shall bring actions in cases like the one under consideration. This is what is generally known as a transitory action in character, and as this state has a similar statute giving a right of action in such cases, it may undoubtedly be brought here.

It is said in Leonard v. Columbia Steam Navigation Co., supra.t that the remedy in such cases is given by the courts of one state upon the principle of comity which is due by one sovereign state to another under similar circumstances.

While the right to bring the action and the beneficiaries under the statute are the same in Pennsylvania as in this state, the person who shall bring the action is not the same. There it is the widow, children or parents; here, it is the executor or administrator ; there, no right of action exists in favor of such an officer,, and no recovery can be had in her name as such representative, and as the courts of this state simply take jurisdiction and give effect to the statute of another state and allow a recovery, can an action be maintained in this state by a person who is not authorized or recognized by the statute of Pennsylvania, as having any right to bring the action.

In Dennick v. The Central Railroad Company, 103 U. S., 11, it was held that where the statute of Rew Jersey gave a right of action to the personal representatives for an injury resulting in the death of a person, caused by the wrongful act or neglect of another, that such .an action was properly brought in this state by an administrator appointed under our laws, and that the suit could only be brought to recover under that statute in the name-of the personal representatives of the deceased.

In Leonard v. Columbia Steam Navigation Co., supra, the intestate was killed by the explosion of a boiler in the state of Connecticut, which was occasioned by the negligence of the defendant. The statute of that state gave a right of action to the representatives of a person killed by the neglisrence of any railroad company. It was held that the statute of-Rew York was similar in character, and that an administrator appointed under the laws of this state could maintain an action for the injurv here.

In Stallknecht v. The Penn. Railroad Co., 13 Hun, 451, in an action m the supreme court of this state for killing a person in New Jersey, the courts say that, “ the cause of action having been created by the law of New Jersey, and conferred upon the personal representatives of the person killed, and she presenting ner claim, this court is open for her redress. * * * The action is for the enforcement of a right of action created by another state, and conferred upon persons dwelling within our own.”

In Books v. Borough of Danville, 95 Penn., 158, the supreme court, in speaking of the right of the husband to bring an action for the death of bis wife, say: “No other persons have been clothed with the right, and hence no other persons can maintain such action. The present action is brought by an administrator, * * * but the legislature has not declared that such a person can maintain such an action, and hence the right to do so does not exist.”

While in most of the states the action is required to be brought in the name of the personal representatives of the deceased, some of the authorities place the right to bring the action in another state than where the injury was received upon the ground that the" statute of such state expressly confers the right of action upon the administrator.

As it appears that the administrator cannot maintain an action in Pennsylvania, and that the action must be brought in the name of the persons designated by the statute, it is difficult to see how a person not authorized by the laws of that state to bring an action can come into this state and in express violation of the statute creating the right of action as construed by the courts of that state, bring an action in the name of an administrator.

The right of action and the person who can maintain it under the statute are inseparable, and when there is no person in being to bring an action to enforce the right answering to the description of those mentioned in the statute, no right, of action exists in favor of any one, and the benefit intended by the law necessarily falls for want of a proper party. The right of action and the right of the designated persons who may bring it are fixed by the statute creating it, and if the action is brought in this state it must be brought by'the only party who has the right to maintain it in that state.

The plaintiff is the widow of the deceased, and under the law of Pennsylvania is the proper and only person who can maintain the action there, and it seems to me that in taking jurisdiction in this state only such parties can maintain the action as are designated by the statute giving the right of action. If these views are correct, it follows that the demurrer must be overruled, with costs.

Beckwith, Ch. J.

While concurring in the conclusion reached by Titus, J., that the demurrer must be overruled, I will add a few observations as to the theory of cases of this kind and the grounds of my decision. It may not be material to determine the source of that right upon which a relative or representative can come into court and maintain an action for causing the death of a person. It is a right preserved or conferred by statute. It may be regarded as a right that at one time belonged to the decedent which has been preserved, carried over and vested in a relative or representative for the benefit of the next of kin (see statute of Connecticut, cited in Leonard v. Columbia Steam Navigation Co., 84 N. Y., 54), or it may be regarded as a right created originally by the statute and giving a right of action to the relatives or next of kin or some artificial person or representative for their benefit. In this latter supposition the statute and the right, to be consistent with established theory, imply the existence in the relatives or next of kin of an antecedent right to advantages and benefits assumed as likely to result to them from the continuance in life of the intestate.

While the intestate was employed on the defendant’s trains of cars he had an original vested legal right to continue safe in his person from the consequences of any wrongful negligence on the part of the defendant. If from such negLigence he received an injury, immediately thereupon he acquired a remedial right against the defendant; a right to receive the pecuniary equivalent of his injury. This remedial right came into existence instantly with the injury, and became vested in him however immediately death ensued.

This vested right to the pecuniary equivalent, called damages, comes near answering the legal conception of property or right of property. But at common law, on account of its theory of the non-transferability of the right of action identified with the remedial right, only the person injured could maintain an action, and if death followed the injury the remedial right to damages was said to die with the person who had sustained the injury. But in our day the legislatures of most of the states have enacted laws to correct the possible injustice resulting from the rule of the common law. The statutes which have been enacted either preserve and transfer the remedial right that had belonged to the deceased, or they create a new remedial right in favor of the relatives and next of kin when the death of a person has been caused by the wrongful negligence of another. The true theory probably is that the statute creates a new remedial right on behalf of relatives. To such effect are the decisions in this state. Hegerich v. Keddie, 99 N. Y., 267. It is a right to damages, to have and receive a money compensation. In general theory of law the person who possesses such a remedial right may come into court and maintain an action for the recovery of the damages. At common law, and in our customary habit of thought, the person having such a remedial right, that is to say a right to compensation for a wrong done, has a right to come into court and conduct an action; have the benefit of the legal procedure for the recovery of the damages. The remedial right and the action were identified and indivisible.

Eow a person coming into our courts to carry on an action founded on a right alleged to have been conferred by the laws of another state would be obliged to show that the laws of that state did confer such a right. But the right alleged might be one that. our laws do nob recognize. Under the common law, for example, our courts could not recognize the existence in anybody of a right to damages for the death of a person. Bichardson v. N. Y. C. R. R. Co., 98 Mass., 85. It would be necessary, therefore, for the party instituting an action in our courts to allege a claim containing the elements of some cause of action recognized by our law. If a party comes into our court with a remedial right recognized by our law, he necessarily is entitled to move the court and avail himself of the legal procedure which has been established by the state. In the case before us the complaint alleges the creation by the statutes of Pennsylvania of a right to damages for wrongfully causing the death of a person; that the statute of New York has-created the same right and invested substantially the same persons with the benefit of it, in Pennsylvania the widow and children, in New York the widow and next of kin, and the complaint alleges-that the statutes of the two states are similar.

It cannot be maintained then that the plaintiff has not set up a cause of action because she has alleged a remedial right not known to our law. Our law allows damages for wrongfully causing the death of a person. And this identity of the right is all there is that is material to the jurisdiction of a court of the state of New York of an action founded on a right given by the law of another state.

In general, under the theory of the common law, the person who has sustained the wrong, who holds the contract that has been broken, who is the possessor of the primary right that has been violated, is the person who acquires the remedial right to damages and a right of action,.a standing in court to obtain the damages as the object of the action. And when it is alleged that, a certain person has a right to maintain an action to recover damages for a certain wrong and that certain other persons are entitled to recover damages for that wrong, there is, on the 'face, at first,, a striking repugnancy in the allegations, arising out of the assumption and habit of thought that the right to the damages and the right of action must be found in the same person. When the-statute makes a defendant liable to relatives for a wrong causing death it raises a legal implication that some antecedent right of the relatives was violated. But in New York the statute does-not give the right of conducting the action to the relatives who-have sustained the injury and are entitled to the compensation, but to an administrator who may have no interest whatever in the recovery. The right of action is thus separated from the right to-compensation and is a mere instrument given the administrator' for the benefit of others. The complaint distinctly alleges that by the statute of Pennsylvania this right of action is conferred upon the widow. Though a bare right of action, a mere right or power' to carry on an action, perhaps in trust for others, nevertheless it is a right The exercise of that right in this state does not contravene the policy of any law of this state. One of the grounds of the demurrer is that such an action can be brought only by an administrator of the goods, chattels and credits of the intestate. But the complaint does not show that the state of Pennsylvania gave any right of action to the administrator and the plaintiff does not claim to recover upon any such right. When in this state the administrator is authorized to bring this sort of action it is not because there is any essential connection between the particular action and the administration of the estate, but because the statute has accidentally nominated that representative of the intestate to the trust m favor of the relatives.

The portion of the complaint at'which the demurrer is aimed is that part which alleges that there was in force in Pennsylvania a statute which provides “ that whenever the death of a person shall be occasioned by unlawful violence or negligence, the widow of any such deceased may maintain an action for and recover damages for the death thus occasioned; that the persons entitled to recover damages for any such injury causing death shall be the husband or widow and the children, and the sum recovered shall go to them in the proportion they would take his other personal estate in case of intestacy, as provided in said statutes and laws; and that said statute is similar in its import and character to the provisions of the Code of Civil Procedure of the state of New York with reference to actions to recover damages for a wrongful act, neglect or default by which a person’s death has been caused.”

It is claimed by the defendant that the allegation that the widow may maintain the action, and the allegation that the persons entitled to recover damages are the husband or widow and the children are inconsistent and repugnant allegations. The demurrer does not specify that the complaint shows a defect of parties plaintiff, but that it does not state facts sufficient to constitute a cause of action. It is argued that there is no allegation in the .complaint warranting a suit by the widow on behalf of herself and her children. In the first place it may be noticed that the allegations show that the statute of Pennsylvania is like the statute in force in New York, and it is expressly alleged that the statute of Pennsylvania is similar in its import and character to the provisions of the New York statute with reference to actions to recover damages for a wrongful act by which a person’s death had been caused. The defendant, with the New York law before it, called upon to answer such a complaint, may see at once the situation. The defendant within the jurisdiction of the state may be assumed to know the peculiar character of this statutory action for damages for causing death; that in the state of New York the action itself is maintainable by a party who may have no interest in the recovery and that the persons entitled to the sum that may be recovered are the widow and children, who nevertheless cannot carry oh the action themselves. Having this knowledge of the relations of the actor and the parties who are interested in the recovery, and who, upon judgment, are entitled to receive or recover the compensation due them, it would seem that the pleader could make out without much effort the intention of the plaintiff to allege a similar cause of action to that which would be made under the statute of New York.

First he would find an allegation not in terms declaring aright, of recovery in the widow, but that the statute of Pennsylvania provides that the widow may maintain an action for and recovendamages for the death occasioned, which is appropriate language-for expressing the same sort of capacity to carry on an action which is given an administrator in this state. Then comes the general language that the persons entitled to recover damages are the relatives, the sum recovered by the judgment to be apportioned, and further on the allegation that the plaintiff brings the action in behalf of herself and children. It would seem in such a case to require no great stretch in the way of construction to-make out that the second of the allegations claimed to be repugnant was designed and intended to show expressly who are the-parties interested in the damages to be recovered in the action which the widow was empowered to maintain.

Ordinarily an allegation that certain persons are entitled to recover damages involves an allegation that those persons are entitled to carry on the action for the recovery of such damages, and it is true that at common law the person who had the right to the remedial relief, that is to say, the damages obtained at the-end of the action, had also the right of action and the right to-carry on the action. The right to the relief and the right of action were one and indivisible. As a general proposition it is true that the person interested in the recovery is the person who must maintain the action. And such is the force of habit that it is difficult for the trained lawyer to disassociate the elements of a. right of recovery so as to think of the mere right of recovery as. something independent of the right of action. But that is what, is done by all these modern statutes for the recovery of damages-for negligently causing the death of a person. And, therefore, in actions of this kind it is not unjust to require the complaint to be-read in the light of the scheme and policy of these new statutes. The complaint first alleges that the statute of Pennsylvania confers upon the widow authority to carry on the action, and secondly alleges that by the statute the persons entitled to recover the-damages are the husband or widow and the children and that the-sum recovered in the action must go to them in the proportions-they would take the intestate’s personal.property. It is claimed by the defendant that the second allegation is repugnant to the first and that the two allegations ought to be construed so as to amount to an allegation that the widow and children together, and not the widow alone, have the right of action, and the construction is claimed to be due the defendant upon the rule or maxim that inconsistent and repugnant allegations should be construed most strongly against the plead en

But why should these allegations be construed against the plaintiff ? The defendant is not as yet inconvenienced in its defense. The second allegation does not absolutely and necessarily mean that the widow and children possess together the right of action; the language admits of the construction that they in certain shares are entitled to the compensation to be recovered for the injury. The word, recover, itself, often means to get or obtain something, without including the idea of an action. Were this an action where the plaintiff must be the party having the pecuniary interest, or the person whose primary or substantive right 'has been violated, it' would be difficult to give consistency to the allegations; but the action being of a new character, created by the statute, which separates the action from the persons entitled to the benefits of the recovery, it seems possible, without injustice to the defendant, to give a construction to the allegations that will support the complaint against the claim of insufficiency. The rule that an inconsistent allegation must be taken most strongly against the party framing the allegation is not an arbitrary rule which the court m ust run after and hasten to enforce. There is certainly a rule of the kind still recognized notwithstanding the command of the Code, which, like any other logical principle or maxim of law, is operative when properly applied. In the cases cited by the defendant’s counsel there were circumstances warranting the adoption of the rule. In Clark v. Dillon, 97 N. Y., 370, at the close of the evidence, the defendant asked for a nonsuit, as I take it, on the ground that the plaintiff had not proved that the defendant made the excavation which occasioned the injury. The plaintiff claimed that the fact which was alleged in the complaint was not denied by the answer. The denial in the answer was of uncertain meaning and ambiguous. The plaintiff had gone to trial relying on the interpretation by which the answer admitted the allegation of the complaint. It plainly, then, under the .circumstances, would not have been just for the court to rule in favor of the defendant by construing an ambiguous pleading in favor of the party who left it ambiguous. There I contend the ruling was made in accordance with the Code, with a view to substantial justice. So, in Bates v. Rosekrans, 23 How., 98, the defendant had not set up the pretended counterclaims as counterclaims. The court held that the plaintiff might well conclude that the answer was designed to set up only the defense of payment,” and so come to trial. The court refused to rule that the alleged counterclaims were admitted for want of a reply, but the Code of Civil Procedure, § 519, declares that pleadings must be liberally construed with a view to substantial justice between the parties. That rule would seem to require a complaint to be sustained unless some injustice will thereby be done to the defendant.

■The rule insisted upon by the defendant was not of universal application at common law, for under that system of pleading it was held that where an expression is capable of different meanings, that should be taken which would support the declaration and not the other, which would defeat it, and that it ought to be construed in that sense in which the party framing the pleading must be understood to have used it supposing he intended that his allegations should be consistent. 1 Chitty PI., 273. Upon the considerations now suggested I have reached a conclusion adverse to the defendant upon its claim to have the allegations of the plaintiff construed for repugnancy in a way that will vitiate the complaint, although in reaching this conclusion I have been held back by the recurring difficulty of escaping from the habitual conception of the legal identity of a right to recover and a right of action. The propositions deducible from what I have said or meant to say, are: When a man loses his life in consequence of the culpable negligence of another, by the common law" no right •of action is preserved or created in favor of his relations or personal representative. But in the state of New York, where a man receives a personal injury occasioned by the wrongful negligence of another which results in Ms death, a statute of the state creates immediately a right in his widow and next of kin to have and receive (recover) a pecuniary compensation for their injury. By that statute the bare right of action as an instrument for redress is separated from the pecuniary right of the next' of kin and vested as a power in the personal representative, executor or administrator, of the decedent; or it may be claimed that the combined right of recovery and action is placed in the personal representative in trust. When an action is brought in a court of this state for a fatal injury of the kind done in- another state, the plaintiff must allege and show that the statutes of'that state do, on account of the injury and death, create a like right in favor of the relatives of the deceased to have compensation for their loss, and that the plaintiff is the person vested either with the primary right to the pecuniary compensation or the right of' action, medium jus persequendi.

That the statutes of the foreign state have created a substantive right to compensation in favor of the relatives of the deceased person, which character of right the laws of New York also recognize as a legal right, is the only material requirement. It is immaterial who is the appointee under the statute to carry on the action, whether the personal representative of the deceased, the widow, or all the beneficiaries together; that is a mere incident immaterial to the jurisdiction of the court. The question is, does the person who comes into court come with a vested right which our laws recognize as an actionable right.

The plaintiff alleges that by the statutes of Pennsylvania she is vested with a right of action against the defendant for negligently causing the death of her husband in Pennsylvania, and that the persons entitled to recover damages are, by the statute of Pennsylvania, the widow and children of the deceased, and that the sum recovered is distributable to them, and that she -brings the action in behalf of herself and the children. The injury alleged, and for which, it is alleged, the statutes of Pennsylvania gave a right of action, is an injury for which the laws of New York also give a right of action of the like character. A complaint containing such allegations should be looked at in the light of the policy and provisions of the statutes which create the right upon which the action is brought, and that being done, it seems not difficult to understand and harmonize the allegations claimed to be repugnant. The law of construction is found in the Code, which is that the pleading must be liberally construed, with a view to substantial justice between the parties. I do not think any injustice is done the defendant if we construe the criticised allegations as stating that the right to carry on the action is vested by the statute of Pennsylvania in the plaintiff, and that the persons vested with the right to receive the pecuniary compensation which may be recovered are, by the statute of Pennsylvania, the widow and children.

Demurrer overruled, with costs.

Hatch, J., concurs.


author: Corlett, J.

text:
    Reuben W. Gifford, Receiver, App’lt, v. Aretas W. Rising, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1890.)

    Supplementary proceedings -Action by receiver.
    The duties of a receiver in proceedings supplementary to execution are ended when the judgment he is appointed to enforce is fully paid. After that he cannot by virtue of his receivership collect additional demands. When, by virtue of his receivership, the judgment is not actually paid, but abundantly secured, and the receiver has enough in his hands to extinguish the judgment, he will not be allowed to recover other judgments or collect other demands.
    Appeal from a judgment of the Niagara county court, reversing a judgment of a justice’s court.

      Henry M. Davis, for app’lt; George D. Judson, for resp’t.
   Corlett, J.

Samuel S. Rising died in October, 1879, leaving a will which was admitted to probate. In the will he devised to his son Chauncey, and Jane, his wife, an annuity of §200, one hundred payable on the 28th day of October, and the other on the 28th day of April of each year. He also devised to the respondent 133 acres of land, charged with the payment of the annuities. The respondent accepted this devise, took possession of the land and paid the annuities up to and including the 28th day of October, 1882, and before the 12th day of October, 1885, certain other claims, the amount of which was matter of controversy between the parties.

On April 26, 1875, Washington Gifford recovered a judgment against Chauncey W. Rising, to enforce the payment of which the plaintiff was appointed receiver in proceedings supplementary to execution on the 26th day of August, 1885, by the county judge of Niagara county.

In June, 1886, an action was commenced to recover the amount of the unpaid legacies. Issue was joined in that action, the cause was referred, a trial was had which resulted in a report in favor of the plaintiff, upon which judgment was entered for §590.71. The defendant appealed from that judgment, which was affirmed, 55 Hun, 61 ;30 N. Y. State Rep., 310, the court holding, among other things, that during the joint lives of Chauncey and wife, the annuities belonged to him. This judgment was paid in March, 1890, and satisfied the judgment upon which the plaintiff was appointed receiver.

In October, 1889. the receiver commenced another action against the respondent to recover three more annual legacies of §200 each, accruing between June 26th, the date of the commencement of the first action, and October 26, 1889. In February, 1890, judgment was recovered for $739.10, including interest and costs, no part of which has been paid.

Before judgment in the last action, this action w”as commenced in a justice’s court for $100 for the annuity falling due October 28, 1889, in which judgment was recovered on the 9th day of December of that year for $106.32 damages and cpsts. From this judgment the .defendant appealed to the county court, where, in March, 1890, the justice’s judgment was reversed. - From the judgment entered on the reversal the plaintiff appealed to this court.

The learned county judge before whom the appeal was heard, wrote the following opinion:

“ The papers contained in the return in this action show clearly that the plaintiff, in a prior action in the supreme court, recovered a judgment against the defendant for the full amount of the judgment in respect of which the plaintiff was appointed receiver of Ohauncey W. Rising, and that on the trial of this action no evidence was given tending to show that the receivership had been extended, or to show what amount remained unpaid, if anything, upon the claim represented by the receiver plaintiff.
“ The action seems to have been brought upon the theory that as the plaintiff had been appointed receiver of the property of the judgment debtor, he had a right without proof of any fact beyond that of his appointment to recover any property of the judgment debtor or any debt due him.
“ This, I believe, a mistaken view of the law. The receiver, under the rule laid down in O'Connor v. The Mechanics' Bank, 7 N. Y. Supp., 380; 27 N. Y. State Rep., 1, is not entitled to recover more than enough to satisfy his claim, particularly as against a third party, as in this case. It seems that the recovery in the first action in the supreme court is prima facie, at least, proof that the plaintiff has recovered all he is entitled to recover as against the defendant here. The judgment is not sustained by the evidence, and should be reversed, with costs.”

The case shows that the judgment affirmed on appeal to this court was sufficient to pay the one to enforce which the plaintiff was appointed receiver. There is no proof showing, or tending to show, that the judgment was not'perfectly good ; in fact it appears that it was afterwards fully paid, and enough realized to pay the judgment to enforce which the receiver was appointed. In addition to this, security was given on appeal to this court.

The duty of a receiver in proceedings supplementary to execution are ended when the j udgment he is appointed to enforce is fully paid. After that he could not by virtue of his receivership collect additional demands. When, by virtue of his receivership, the judgment is not? actually paid, but abundantly secured, and the receiver has enough in his hands to extinguish the judgment, no reason is seen why he should be allowed to recover other judgments or collect other demands.

The conclusion reached by the county court was correct, and the judgment must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    William Wallace, Resp’t, v. The Vacuum Oil Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Negligence—Trial—Objections to evidence.
    In an action to recover damages for injuries caused by defendant's negligence, expert evidence was received to the effect that plaintiff’s condition was not likely to improve. The only objections taken to the question propounded were that they were immaterial and incompetent. Held, that such objections presented no question for review, as they were general; the precise grounds of objection should have been stated.
    2. Same—Damages.
    Plaintiff was injured by an explosion. The evidence tended to show that he lost the sight of one eye ; that his hearing was affected ; one finger stiffened and deformed ; a portion of his head numbed and neck stiffened ; the head tilted and face unnatural and mottled ; that bronchitis was produced which had assumed a chronic form including asthma ; that his heart was affected, nervous system shattered and spine injured. Reid, that a verdict for $14,000 was not excessive.
    Appeal by the defendant from a judgment entered upon a verdict at the Monroe circuit, and from an order denying a new trial.

      Marsenus H. Briggs, for app’lt; E. B. Fenner, for resp’t.
   Corlett, J.

On the 21st day of December, 1887, the plaintiff was injured in the Jefferson Mill in the city of Rochester, by an explosion of naptha. He brought an action against the defendant to recover damages. A trial was had in March, 1890. which resulted in a verdict for the plaintiff of $14,100. The defendant moved for a new trial on exceptions and because of excessive damages, which was denied; judgment was entered on the verdict, from which and the order denying the motion for a new trial, the defendant appealed to this court.

The plaintiff had been at work as second miller in. the Jefferson flouring mill in Mill street in the city of Rochester for four or five years before the injury. There was a city sewer under the mill from which various odors emanated, but the plaintiff’s health was not impaired by them. The plaintiff was a strong, healthy and vigorous man about fifty-nine years of age. He had never been prevented by sickness from attending to his duties in the mill.

The defendant is a corporation engaged in the manufacture of naptha and other products of petroleum. Its refinery is in the southern part of the city of Rochester.

A little north of West Main street, the Municipal Gras Company was engaged in the manufacture of illuminating gas, and required for its business large quantities of naptha.

In 1881 the defendant caused a three inch pipe to be laid from a point near the Municipal Gras Works to .its own works, a distance of a mile and a half. This pipe was used for the purpose of bringing to the. defendant from the Rochester & Pittsburg Railroad, which ran near the Municipal Gras Company, its supply of' crude pretroleum. This pipe continued to be used for this purpose until the fall of 1884, when the defendant made other arrangements, and began to use the same pipe for the delivery of naptha to the gas company, which was continued down to the explosion. The pipe was laid in the bed of the abandoned Genesee Yalley Canal. At a point 2,000 feet south from, the northern end of the pipe, and about a mile north from its southern end, Atkisson street bridge crosses the railroad. Near this place, under the railroad track, there was a large trunk sewer blasted in the rocks beginning some distance south of Atkisson street and extending north in the bed of the canal and by connection with other sewers ultimately discharging into the Platt street sewer running under the Jefferson Mill, situated in Brown’s race, and from thence into the Genesee river. • ■

For some time prior to the accident the city of Rochester had been engaged in constructing a sewer on Atkisson street of considerable depth, which opened at right angles into the trunk sewer under the railroad. Excavations exposed the lower side of the track which had been supported by heavy beams for the purpose of constructing the work. Under one of these timbers the workmen had exposed the defendant’s pipe. During the progress of this work it became necessary to remove the rock to a depth of many feet under the pipe. Blasting was resorted to for that purpose. By the blasts, rocks and timber were violently thrown against the under part of the pipe, resulting in bending it upward and causing its fracture..

The last time the pipe was used before the accident was the 7th day of December. On that day naptha was delivered from the defendant’s works to the Municipal Gas Company to the amount of 12,000 gallons. Upon the following- day the first blast exploded under the pipe. This caused a deflection of the pipe which was noticed by several persons a day or, two after.

On the 21st day of December, just before noon, the defendant received an order from the gas company for more naptha. It sent its servant, Sweeny, to the gas works to receive the supply demanded, and about noon commenced sending it to the gas works. Sweeny remained there until 2 o’clock, and finding that no naptha had come went to the defendant’s works to ascertain the cause. It was then learned that the naptha escaped through the rupture in the pipe; that while the defendant had sent naptha in large quantities, it all escaped into the main sewer and the connecting ones, and thence into the mill, thus producing the explosion.

No claim is made that the plaintiff was guilty of any negligence which contributed to the injury; nor does the learned counsel for the appellant argue that the defendant v-as not guilty of the negligence which caused the accident. This concession is based upon former decisions of this court. Lee v. Vacuum Oil Co., 54 Hun, 156 ; see also memorandum on p. 634; 26 N. Y. State Rep., 814, 984.

The defendant comes here with two contentions: One, that there were material errors in the admission of evidence on the trial; and the other, that the damages were- excessive.

The evidence admitted to which exceptions were taken is as follows :

“ Q. Taking into consideration his age, his injuries as you have come to know them, is it your opinion that the trouble with the' heart is likely to become less in his case; that there will be an improvement or not?”

Objected to, as immaterial and incompetent

Beceived. Exception.

“• Q. Assuming the man’s age to be from fifty-eight to sixty years, and judging from that and from the whole history of his case and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve to any extent in his case or not ?”

Objected to, as immaterial and incompetent

Beceived. Exception.

“A. I think he is not likely to improve.

“ Q. The same question in regard to his neck and spine and the position of his head; what do you say in regard to that trouble, from your history of the case and your experience with it ?”

Objected to, as immaterial and incompetent .

Beceived. Exception.

“ A The spinal trouble would improve were it not for the fact that he is obliged to carry himself in this condition. That will keep up an irritation of the spine continually, because this stiffening cannot be removed.

Q. Judging from all the ailments in this case, all that you have learned of, is it your opinion that the disability of Mr. Wallace which now exists in various forms, whatever they may be, that he is likely to grow better and his condition improve or not ? ” .

Objected to. Beceived. Exception.

“A. He is not likely to grow better.”

Evidence of the character received is admissible. Griswold, v. N. Y. C. & H. R. R. R. Co., 115 N. Y., 61; 23 N. Y. State Rep., 729; Turner v. City of Newburgh, 109 N. Y., 309; 15 N. Y. State Rep., 93; McClain v. Brooklyn City R. R. Co., 116 N. Y., 468; 27 N. Y. State Rep., 549; Alberti v. N. Y., L. E. & W. B. R. Co., 118 N. Y., 77; 27 N. Y. State Rep., 865; Jones v. Utica & R. R. R. Co., 40 Hun, 350; Strohm v. N. Y. L. E. & W. R. R. Co., 96 N. Y., 305; Tozer v. N. Y. C. & H. R. R. R. Co., 38 Hun, 100.

It is the general rule, for obvious reasons, that where evidence of the character offered is admissible, an objection is not available on appeal unless the grounds are clearly and distinctly pointed out. If for any reason a question is objectionable in form, or if it covers too much ground or embraces various elements which ought not to be included, particular attention should'be called to those objectionable parts so that the question could be modified or withdrawn, and put in such a form as not to be objectionable. Where the difficulty could not be obviated by a specific objection if taken, a general objection is sufficient Merritt v. Seaman, 6 N. Y., 168.

In all other cases, objections must be specified or they are not available.

In Merritt v. Briggs, 57 N. Y., 651, 652, the defendant, as a witness on his own behalf, was asked this question: “State on whose credit the cattle were bought?” This was objected to generally, no ground of objection being stated. The objection was overruled; the witness answered that he bought them on Mr. Hall’s credit» It was held that the question was incompetent, as it called for the opinion of the witness, but as the objection was general, the exception was not available. All the cases are to the same effect Crawfords. Metropolitan Elevated R. R. Co., 120 N. Y., 624; 30 N. Y. State Rep., 866; McGean v. Manhattan R. R. Co., 117 N. Y., 219; 27 N. Y. State Rep., 337.

In Ward v. Kilpatrick, 85 N. Y., 413, 417, the court say : “ The form of the question could have been changed or the party might have acquiesced in the incorrectness of the evidence and withdrawn the question entirely.”

Humero us cases have been decided applying this rule to a great variety of facts. Quinby v. Strauss, 90 N. Y., 664; Tooley v. Bacon, 70 id., 34; Williams v. Sargeant, 46 id., 481; Marston v. Gould, 69 id., 221.

All of the objections in the case at bar were general Hone of them stated the precise ground upon which the question was objectionable. The grounds of the objection stated were that the evidence was immaterial and incompetent It need not be said that such objections do not call attention to any specific grounds of the slightest importance. If the evidence was simply immaterial, its admission would not be causé for reversal. Besides, the appellant’s position now is that the evidence objected to was material. The objection of incompetency is only a general. one. The exceptions, therefore, to the admission of evidence present no questions for review.

Was the verdict excessive? The learned counsel for the appellant admits that the plaintiff received serious injuries; also, that he was disfigured for life.

The evidence on the part of the plaintiff tended to show that he lost the sight of one eye; that his hearing was injured; one finger stiffened and deformed; a portion of his head numbed and neck stiffened; the head tilted and face unnatural and mottled; that bronchitis was produced, which has assumed a chronic form, including asthma; that his heart was affected; nervous system shattered; his spine injured ; in short, that he had been made a physical wreck, and that the balance of his days would be without comfort and full of suffering. Also, that he had paid out for doctoring a large sum of money, and incurred other liabilities for medical aid. It appeared that before the injury he was full of life and vigor.

It is true that his chances of life, on account of his age according to the Horthampton tables, would only he about nine years. But this expectation would not have been increased over five or six years, no matter what his age was, by the same tables. A person at twenty-one has only a little more than five years in store for him more than one of sixty. This simply illustrates the proposition that where a person has survived, the perils of life for sixty years his relative expectations for its continuance are much .greater than when he was twenty-one.

In a case like this the question of damages must, as a general rule, rest with the jury. Minick v. City of Troy, 19 Hun, 253, 258; Kiff v. Youmans, 20 id., 125; Walker v. Erie R. R. Co., 63 Barb., 266; Hickinbottom v. D. L. & W. R. R. Co., 15 N. T. State Rep., 11; aff’d, 33 id., 312.

So far as the case shows the jury was not affected by prejudice or other improper considerations.

The charge of the. trial court on that subject was favorable to the defendant. The jury and court had before them the plaintiff and all the witnesses, and the trial court after the verdict saw no reason for setting it aside because of its being excessive.

The judgment and order must be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    Etta Alexander, Resp’t, v. The Rochester City & Brighton R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Negligence—Street railroads.
    Plaintiff was a passenger on one of defendant’s cars. As she arose to ring the bell the car collided with lumber, protruding from the rear of a wagon being driven on the other track and which was being turned therefrom, and she was struck in the back and knocked to the floor of the car. The evidence as to the speed of the car and whether it contributed to the accident was conflicting. Held, that the court properly submitted to the jury the question whether the driver was driving faster than he should have done.
    S. Same.
    When the driver of a street car knows that one of the tracks is occupied by a heavy wagon loaded with lumber protruding from the rear, he should also know that the wagon so loaded might leave the track at any time, and that in leaving the lumber might swing around in such a way as to strike some portion of the car, and under such circumstances the duty of vigilance is imposed upon him, and unusual speed might materially increase the risk.
    3. Same—Damages.
    Plaintiff’s evidence tended to show that she was school teacher; that she received very serious'injuries about the spine and suffered great pain in her back and head; that her leg became, and for a long time was, paralyzed, and that her life was and would continue to be one of pain and suffering. Held, that a verdict for $8,000 was not excessive.
    (Dwight, P. 3., dissents.)
    Appeal by defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury in a cause tried at the Monroe circuit, also from an order denying a motion for a new trial on the minutes.

      Raines Bros., for app’lt; P. Chamberlain, Jr., for resp’t
   Corlett, J.

On the 22d day of October, 1887, the plaintiff became a passenger on one of the defendant’s cars. She paid her fare, and rode down East Main street in a westerly direction. The defendant had two tracks, and the plaintiff rode on the north one-While going down East Main street, the car collided with lumber protruding from the rear of a wagon which was being driven in an easterly direction upon the south track of the defendant’s road. The injury occurred when the lumber wagon was leaving the track. She was struck in the back, and knocked from her seat to the floor of the car.

The cause was tried in February, 1890, before a justice and jury at the Eochester circuit. It resulted in a verdict of $8,000 in favor of the plaintiff. A motion for a new trial on the minutes was made by the defendant and denied; judgment was entered on the verdict, and the defendant appealed from the judgment and order to this court

The evidence on the part of the plaintiff showed that she was a teacher in one of the public schools of the city of Eochester; and tended to show that she received very serious injuries about the spine, and suffered great pain in her back and head; that one leg became, and for a long time was paralyzed; in short, that by reason of the injury she became almost a physical wreck, and that her life was, and would continue to be one of pain and suffering.

, On the part of the defendant, the evidence tended to show that she taught school as usual after the accident and alleged injuries, and that in fact their extent and the degree of her suffering were magnified foy the purpose of increasing the verdict. The place of the accident was in the central part of the business portion of the city, and at the time it occurred the plaintiff rose to ring the bell for the purpose of leaving the car, she having reached her destination. The place was near the mercantile center.

The wagon upon which the lumber was loaded which caused the injury was going in the opposite direction from the car upon which tide plaintiff rode, and up grade on the south track of the road. The wheels were running in the grooves of the rails. Ho car was following the wagon, and the one in front was so-far in advance as not to impede its progress. There was nothing in the situation to indicate at what point the lumber wagon would'leave the defendant’s track, or what distance it would continue to travel upon it.

The evidence tended to show that it was the custom of heavy laden wagons to drive along the defendant’s tracks. The accident was caused by the wagon turning to leave the track upon which it was travelling, thus turning the lumber, which protruded from four to eight feet back of the wagon, through the window of the car in which the plaintiff was a passenger, thus inflicting the injuries. The car was about fourteen feet in length.

The evidence on the part of the plaintiff tended to show that the car was being driven down grade at an unusually rapid rate; that it was somewhat behind time, and as one witness expressed it, it was proceeding with such speed as to indicate that it was-going to a fire. The evidence on the part of the defendant tended to show that the speed was at the usual rate.

The evidence on the part of the plaintiff also tended to show that the rapid rate' of speed might have contributed to the production of the accident; while the defendant’s evidence tended to prove the reverse.

The charge of the trial justice clearly and fully submitted all the controverted questions of fact to the jury. The defendant’s counsel took no exceptions to the charge as made, but made the following requests to charge:

Defendant’s counsel asked the court to charge, that if in the opinion of the j ury the collision was occasioned by slipping of the wheels upon the track, the driver having applied the brakes with diligence, the company is not liable.

The court: The jury must determine, first, whether he was driving faster than he ought to have driven, and whether he could have avoided the accident if he had been driving at an ordinary rate of speed and exercising such prudence and caution as a driver of ordinary prudence and caution would have done under the circumstances. If he did exercise such prudence and caution, and the ■accident happened in the way which I have been requested to charge, then the company is not liable.

Defendant’s counsel: The point in regard to that request is, that if, when the driver of the wagon turned out, the driver of the car immediately applied his brake and did all he could to stop the car, and the wheels then slipped, and the accident occurred by ' reason of that progress of the car, the defendant is not lihble.

The court: It depends upon whether he was exercising ordidinary prudence and caution in driving. If he was, and he could not stop the car in time to avoid the accident, then the plaintiff cannot recover.

Defendant’s counsel excepted to the refusal of the court to charge .as requested.

Defendant’s counsel also asked the court to charge, that the driver of the car had a right to assume that the driver of the wagon would use ordinary diligence in turning out from the track.

The court—The driver of a car must use ordinary prudence and caution, and when he sees danger ahead he has no right to assume any risk in reference to it, but must use his best judgment to prevent such accident and injury.

Defendant’s counsel excepted to the refusal of the court to charge as requested.

Defendant’s counsel asked the court to charge, that the presumption is, under all the circumstances of the case, that the collision was occasioned by the negligence of the driver of the wagon.

The court—1 leave that to the jury.

Defendant’s counsel excepted to the refusal of" the court' to charge as requested.

Defendant’s counsel asked the court to charge, that it me driver, of the wagon did not begin to turn from the track Vuntil .he hadj passed the driver of the car, that in that case_the,ratejDf^speed^is, immaterial.

The court—That is'a question of fact forlthe -juryá

Defendant’s counsel excepted to the refusal of the court to charge as requested.

The rulings of the learned trial justice upon the above requests were correct Do error requiring a reversal can be predicated upon any of them.

It must be borne in mind that the defendant was the owner-having charge of each of the tracks of its street railroad It had the right of way over them in preference to wagons and other vehicles. In the very nature of things, heavy wagons laden with lumber traveling upon either track would require on the part of the company the exercise of caution and vigilance. A wagon loaded like the one which caused the accident, with lumber projecting so far in its rear, would naturally attract attention. It was self-evident that at some point it would leave the track, and that in leaving it the rear end of the lumber would swing across and might hit the cars going in an opposite direction on the north track. The lumber wagon was visible to the driver of the car for a long distance, so far as appears. It was upon the defendant’s track. The place was in a populous part of the city. Under such circumstances, it is manifest that caution and vigilance in the protection of passengers devolved upon the company. The defendant would not be excused in overlooking what the ordinary observer would notice.

The learned counsel for the appellant argues with great earnestness that the driver of the car upon which the plaintiff rode had a right to assume that the driver of the wagon would perform his duty and do no act endangering the passengers on the car, and that, therefore, the driver of the car was relieved from the duty of special vigilance. But it is obvious that when the driver knew that one of the defendant’s tracks was occupied, not by its cars, but by a heavy wagon loaded as described, he also knew, or ought to have known, that the wagon so loaded might leave the track at any time, upon which it traveled only by tolerance and user, and that, in leaving, the lumber might swing around in such a way as to strike some portion of the car he was driving. Under such circumstances the duty of vigilance was imposd upon him, and unusual speed might materially increase the risk.

The trial justice, therefore, was right in submitting that question with others to the jury. This view was acquiesced in to such an extent by the learned counsel for the appellant that no exceptions were taken to any portion of the charge.

The case could not be withdrawn from the jury. In its various, aspects it presented questions of fact. The force of this view is. strongly illustrated by the adverse views of the learned counsel for the appellent and respondent in their arguments. Do question of law was presented which would have warranted a nonsuit.

The latest case in the court of appeals to which attention has. been called is Hill v. Ninth Avenue R. R. Co. et al., 109 N. Y., 239; 14 N. Y. State Rep., 844, where it appears that the plaintiff was riding on a street car in the city of Dew York which was driven .with unusual speed, and that she was struck by the pole, or shaft. of a truck which penetrated through the front panels of the car, and thus injured her. The court held that it was not a reasonable or natural inference that such an accident happened without some carelessness on the part of the driver of the car, and that driving at an unusual rate of speed was inferentially one cause for the accident calling for an explanation, and which required a submission of the ■ case to the jury- The judgment below was reversed, and the learned counsel on each side in their arguments cite nearly all the cases bearing upon the question of under what circumstances questions of negligence should be submitted to the jury. To the same effect is Palmer v. D. & H. C. Co., 120 N. Y., 170; 30 N. Y. State Rep., 817.

The learned counsel for the appellant also insists that the damages are excessive. Suek was not the judgment of the jury or “trial court. They saw the plaintiff, and heard all the witnesses. If her evidence on the subject of the extent of her injuries, including that corroborating her, is correct, the verdict was not excessive. That question was more clearly within the observation of the trial court and jury than this court.

The following cases, among numerous others which might be cited, illustrate the caution which courts exercise in granting new trials because the verdict is excessive. Avery v. N. Y. C. & H. R. R. R. Co., 17 N. Y State Rep., 417; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1; affirmed, 76 N. Y., 594; Harrold v. N. Y. Elevated R. R. Co., 24 Hun, 184.

The judgment and order must be affirmed.

Macomber J., concurs; Dwight, P. J., dissents. „