text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANCIS HERMAN, Appellant.

      Amendments to an indictment — power of the court to permit them to he made under . section 293 of the Oode of Criminal Procedure

    Upon the trial of the defendant upon an indictment charging him with having feloniously stolen, taken and carried away a case of shoes of the value of thirty-five dollars, and seventeen pairs of shoes of the value of three dollars each pair, of the goods, chattels and personal property of a certain corporation called the Bay State Shoe and Leather Company, the people failed to produce proof of the incorporation of the Bay State Shoe and. Leather Company, hut proved that Charles W. Bucklin was its superintendent, having the ■ lawful possession, care and custody of the property mentioned in the indictment. Before this evidence was taken an application was made on behalf of the people to amend the indictment by inserting the statement in it that Charles W. Bucklin was the owner of the stolen property. To the decision of the court permitting this amendment to be made the defendant excepted.

      Held, that power to make the amendment was conferred upon the court by section 293 of the Code of Criminal Procedure, and that its exercise of the power in this case should be affirmed.
    The cases bearing upon the right to make such amendments in this country and England, collated by Daniels. J.
    Appeal from a judgment of tbe Court of Sessions convicting the defendant of tlie crime of larceny.

      Abraham Suydam, for the appellant.

      McKenzie Semple, for the respondent.
   Daniels, J.:

The indictment charged the defendant with having feloniously stolen, taken and carried away a case of shoes of the value pf thirty-five dollars, and seventeen pairs of shoes of the value of three dollars each pair, of the goods, chattels and personal property of a certain corporation called the Bay State Shoe and Leather Company. On the trial the people failed to produce proof of the incorporation of the Bay State Shoe and Leather Company, but it appeared by the evidence that Charles W. Bucklin was its superintendent, having the lawful possession, care and custody of the property mentioned in the indictment. Before this evidence was taken an application was made on behalf of tlie people to amend the indictment by inserting the statement in it that Charles W. Bucklin was the owner of the stolen property. That amendment was made, and to the direction permitting it to be done the defendant excepted, and an application was made for his discharge for this reason, after all the evidence had been given upon the trial.

"Whether the court was right in permitting this amendment to be made to the indictment is the sole objection raised in support of the appeal. The amendment was made under the authority contained in section 293 of the Code of Criminal Procedure. That section has provided when a variance between the allegation contained in the indictment and the proof shall arise in respect to time, or in the name or description of any place, person or thing, the court in its judgment, if the defendant cannot be prejudiced in his defense on the merits, may direct the indictment to be amended according to the proof. It has been further provided by section 281 of the same Code that when the offense charged involves a private injury, and has been described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured, is not material. The section under which the amendment was allowed was considered by the learned counsel for the defendant to have been an infraction of one of the provisions of the Constitution of the State at the time Avhen the appeal was taken, but that was held otherwise in the case of People v. Johnson (4 N. Y. Crim. Rep., 591). And it is conceded that the same conclusion is substantially -sustained by an unreported decision made by the Court of Appeals, and a similar statute was held to be constitutional in Miller v. State (53 Miss., 403), and it was followed in Peebles v. State (55 id., 434).

The section itself providing for the amendment of an indictment has been enacted in very broad language, and it has provided for a variance between the allegation in the indictment and the proof respecting the name of the owner of the property, charged to have been stolen. Such a variance did appear upon the trial of this indictment, and it was to correct and avoid it that the -amendment was made. The name of the owner of the property was no material attribute whatever of the crime charged to have been committed by the defendant. It was included in no act of his in the way -of the commission or consumation of the crime. That was committed by feloniously taking or stealing the property mentioned in the indictment. It was not essential to the crime that the property should bo owned by any particular corporation or person, and the principal object of inserting the name of the owner in the indictment, was to enable the prosecutor to prove the fact that the property was taken without the consent of such owner. The amendment could in no manner prejudice the defendant in his defense on the merits, for the gist of the charge was that he had feloniously stolen this property. And he was as well able to secure his acquittal, or to meet and remove the charge, if he had the ability to do so, with the name of the superintendent inserted in the indictment as the owner, as he would have been if the name of the corporation :tself had remained as the owner of the property. The proof as to the absence of consent would be precisely the same in either instance, as long, as the fact ivas that the superintendent was the custodian and in the possession of the property. It was by his testimony, and his testimony alone, or evidence equivalent to that by which proof of this fact could legally be made. And as he was the custodian or bailee of this property it was regular and proper to allege him to have been the owner under the settled rule of practice governing this subject. (2 Bish. Crim. Pro., §§ 719, 720, and notes containing references to the cases.)

At the common law it is entirely clear that this amendment could not have been made to the indictment. (1 Bish. Crim. Pro. §§ 708-711; Ex parte Bain, 121 U. S., 1; McBride v. Com., 13 Bush [Ky ], 337.) But where this rule has been abrogated and changed by the statute, as it now has in this and other States, there the practice has been to permit similar amendments to be made by the court to an indictment. In State v. Bell (65 N. C. 313), an indictment was held to be good which contained the initial letter of the first name of the person mentioned in it. And in Mulrooney v. State (26 Ohio, 326), under a statute similar in its effect to the law of this State, an averment of ownership in two persons was held not to entitle the defendant to an acquittal when it appeared by the proof that the title was vested in one of the persons named. In State v. Manning (14 Texas, 402) the defendant pleaded, in abatement to the indictment, the incorrect statement of an initial middle letter of bis name, and that was held to be amendable under an act passed after the offense had been committed. The principle there stated by the court is specially applicable to this class of cases. For it was declared in the opinion that the name by which the party was indicted could have nothing to do with the question of his guilt, the character of the offense, the measure or degree of criminality the punishment attached to it, or with the evidence which should be sufficient .to warrant a conviction. (Id. 406.)

This principle was followed in People v. Johnson (supra), where the surname “ .Olyphant,” was charged to Olivet,” and the name, of Wilna,” .as .the town named in the indictment was changed to Champion; ” and that, the court on appeal held to bo authorized by this section of the Code. The same practice was pursued and sanctioned in State v. Jenkins (60 Wis., 599), where an information .against the defendant .for receiving stolen property was allowed to be amended by adding the name of the person committing the theft.

In State v. Snow (30 La. Ann., pt. 1, 401), a change was allowed .to be made upon the trial in .the date .of a forged bill. And in Murrah v. State (51 Miss., 675), the indictment was amended by changing the name of the owner of an animal alleged to have been criminally marked, from John Barton to John Thomas Barton. And in Miller v. State (supra), the surname of Blackman was .changed to Blackburn.

Statutory provisions of a similar description are contained in chapter 100 of 14 and 15 Victoria, section 1, and chapter 45 of 12 and 13 Victoria, section 10. And under these provisions a case similar to that now presented arose in Regina v. Fullarton (6 Cox C. C., 194), where the title to stolen property was laid in the wrong person, and it was held that the indictment might 'be amended as it was in this respect upon the trial. This practice was also followed In Regina v. Vincent (2 Den. C. C., 464). There the change was made from the name of Matthew Arckard to London Dock Company. And a somewhat similar change was allowed in Regina v. Pritchard (8 Cox C. C., 461), under a still earlier statute enacted during the reign of George the Fourth. This practice was also followed in the case of an indictment with intent to kill in Regina v. Welton (9 Cox C. C., 297). And the addition of the word ‘“Trustees” to the names of the persons mentioned in the indictment was permitted in Regina v. Marks (10 Cox C. C., 367). And in the description of the offices of certain justices named in an indictment for perjury in Regina v. Western (11 Cox C. C., 93). These authorities are evidently sufficient to sustain the course taken upon the trial of the defendant. The amendment was within the language of this section of the Code, and the authority for making it is very fully sustained by the decisions, where they have arisen either under this or other equally effectual statutory provisions. Where, however, the identity of the particular individual is material and made a part of the offense charged as was the accusation in State v. Morgan (35 La. Ann. 1139), which was an indictment for a rape, or for the sale of liquor, as was the fact in Blumenberg v. State (55 Miss., 528), there a change in the name of the person has not been permitted to be made. These cases are, however, exceptional, having no relevancy or bearing upon the disposition of this appeal. The conviction was accordingly right, and it should be affirmed.

Van Brunt, P. J., and Brady, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Daniels J.:

license: Public Domain

text:
    ERASTUS S. SPENCER, as Receiver of ROBERT H. BERDELL, Respondent, v. HARRIET B. BERDELL, Appellant.
    Lis pendens — when a receiver appointed in supplementary proceedings is pound by a judgment subsequently recovered against the judgment debtor, in ay, fiction pending at the time of his appointment.

    In this action brought by the plaintiff, as a receiver appointed in,supplementary proceedings, to recover the possession of certain premises in the city of New York which were alleged to have been fraudulently conveyed ,by ,the judgment debtor to the defendant Harriet B. Berdell, it appeared that ,the .order appointing the plaintiff receiver of the property of one Robert H. Berffell was entered, on November 34, 1876, upon a judgment recovered against him on October second of the same year. The defense to the action consisted in the fact that on November 33, 1876, a notice of the pendency of an action, together with the complaint, were filed, in an action brought by Robert H. Berdell, the judgment debtor, against the defendant herein, to redeem the premises in question and other property from a deed made by him to one Eliza Parkhurst, which was claimed to be in fact a mortgage; that, in that action, the defendant herein alleged that she was the owner of the property hy virtue of a conveyance executed to her by the said Parkhurst,. with the assent of Berdell, and that upon the trial of the said action, in 1883, judgment was entered declaring the defendant herein to be the absolute owner of this and the other property conveyed to her by the said Parkhurst.

      Held, That the judgment creditor became an incumbrancer upon the property, on October 2, 1876, when his judgment was recovered and a transcript thereof was filed and docketed, and was, under the provisions of section 132 of the Code of Procedure, bound by the judgment in the action brought by Berdell.
    That the filing of the order appointing the plaintiff a receiver operated as a conveyance of the property by the judgment debtor to him.
    That the plaintiff, as receiver, was bound by the judgment.
    Appeal by tbe defendant from a judgment recovered on a trial before tbe court and a jury.

      Charles E. Pushmore, for the appellant.

      Philip L. Wilson for the respondent.
   Daniels J.:

Tbe plaintiff, as a receiver appointed in supplementary proceedings, brought tbis action to recover tbe possession of premises situated on tbe easterly side of Broadway, near Forty-seventb street in tbe city of New York. He was appointed as sncb receiver in tbe fall of 1876, and tbe defense made to the action consisted of tbe fact that tbe judgment debtor, Robert H. Berdell, in 1875, brought an action to redeem this and other property from a deed made by him to Eliza "W. Parkhurst, which in fact being a security, was no more than a mortgage. In that action the present defendant by her answer alleged herself to be the owner of the property by virtue of a conveyance executed to her by Eliza W. Parkhurst, with the assent of tbe judgment debtor, and that she thereby became the absolute owner of tbe property in dispute. That action was tried béfoíe the court in the summer of 1883, and a decision was made followed by a judgment to tbe same effect, that tbe defendant Harriet B. Berdell became tbe absolute owner of tbis and other property, hy reason of the deed executed and delivered to her. Tbis judgment as well as the judgment in another action brought by Elizía W. Parkhurst against Robert H. Berdell and his wife, were interposed upon the trial of the present action as defenses, in bar of the plaintiff’s right to recover.

The effect of the judgment in the case of Parkhurst v. Berdell does not require to be examined, and should not be held to be entitled to any effect against the plaintiff as receiver, inasmuch as he does not claim under Eliza W. Parkhurst, and was in no manner represented by her in that litigation. And it resulted in no proceeding between the two defendants themselves, for which this receiver could be held to be in any respect responsible or by the result of which he could be affected.

But as to the action of Berdell against Eliza W. Parkhurst and Harriet B. Berdell, the case is entirely different. For there the title of the judgment debtor himself to this property was placed distinctly at issue, and it was held by the court upon what is to be presumed sufficient evidence to support the conclusion, that Harriet B. Berdell, and not this judgment debtor, from whom the receiver derived his title, was the owner of this real estate. And if this decision is operative or binding upon the plaintiff, then this action cannot be maintained by him.

To prove it to be so it was shown that a notice of the pendency of the action of Berdell against Parkhurst and Berdell, together with the complaint, were filed in that action, on the 22d day of November, 1875, while the judgment m the action in which the plaintiff was appointed receiver was not recovered until the 2d of October, 1876, and the order appointing the receiver in the supplementary proceedings was made on the twenty-fourth of November of the same year. And it was from that time only according to subdivision 1, of section 2468 of the Code of Civil Procedure, that he became vested with the real property of the judgment debtor. When the title was vested in him, it was subject to the action then pending concerning it in favor of the judgment debtor against Eliza W. Parkhurst and Harriet B. Berdell,' the latter being the defendant in this suit. At that time the plaintiff had the election to permit the action to proceed in the name of the judgment debtor notwithstanding his own appointment, or to apply to be substituted as plaintiff in the action in the place of the debtor. This he was at liberty to do under section 121 of the Code of Procedure, and afterwards by section 756 of the Code of Civil Procedure, but he took no proceeding for this purpose and the action continued in the name of the judgment debtor until it was finally tried and determined and the judgment-roll filed on the 30th of July, 1883, by which it was determined that the judgment debtor was not the owner of the property, but that it belonged to the defendant Harriet JB. Berdell.

According to the views expressed in Campbell v. Hall (16 N. Y., 575), this judgment having been recovered after the receiver acquired his title, would not have been conclusive against him upon the right of the judgment debtor without the filing of the notice of' the pendency of the action. In this respect a distinction has been maintained between actions for real property and for the recovery of personal property, by or in favor of persons acquiring rights or interests under one of the parties during the pendency of the litigation. (Holbrook v. N. J. Zinc Co., 57 N. Y., 627.)

Still it was also held in Jackson v. Stone (13 Johns., 447), that a person acquiring possession of real estate under the defendant in an action of ejectment was bound by the judgment afterwards recovered. But that rule seems to have been peculiar to that form of action. And it was probably to place the subject entirely at rest that the Code of Civil Procedure, as well as the preceding Code provided for the filing of a notice of the pendency of the action with or subsequent to the time of filing the complaint, where the object should be to affect the title to real property. The Code of Procedure was in force 'on this subject when the action was commenced and the notice and complaint were filed in the suit of Robert H. Berdell, and by section 132 of that Code it was declared that: “ Prom the time of filing only shall the pendency of the action be constructive notice to a purchaser, or incumbrancer of the property affected thereby, and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were made a party to the action.”

The judgment creditor became an incumbrancer upon the property on the 2d of October, 1876, when his judgment was recovered and a transcript of it was filed and docketed, and he by the language of this section was as much bound by the action of Berdell v. Parkhurst and Berdell, as though he had, in fact, been made a party to the suit. When the receiver was appointed he took no more than the right and title of' the judgment debtor, Robert H. Berdell, to the real estate in controversy. And as that had previously been subordinated to the preceding action, the receiver acquired it subject to the same incumbrance. Beyond that the order appointing him, only when it was filed, operated as a conveyance or transfer of the real property of the judgment debtor to the receiver. It was then, in fact, a conveyance by operation of law and subjected the receiver to the proceedings in the pending action as much so as though he had taken a deed from the judgment debtor Berdell, in form conveying the title to the property. It was, in substance, a subsequently executed conveyance and within this section of the Code as well as sections 1670, 1671 of the Code of Civil Procedure afterwards taking effect. He was bound by all the proceedings taken in the action of Berdell, the same as though he had been a party to the suit. He came in under him and subjected himself to the determination afterwards made in the action. He permitted the proceeding to go forward in the name of Berdell, without, in fact, taking the charge and control of it himself as he was authorized to do. The judgment which was recovered in that action adjudged Berdell, the judgment debtor, not to be the owner of the property now in controversy, but that the defendant m this action had become vested with the title to it, and was, at the time of the recovery of the judgment on the 18th of June, 1883, the owner in fee of the land, and no change in her title appears after-wards to have taken place. This judgment, with this proof of the filing of the complaint and the notice of the pendency of the action, should have been held conclusive upon the trial against the action of the receiver. He should not have been permitted, as he was to recover a judgment for the possession of the property or for its rents and profits.

This judgment should be reversed and a new trial ordered, with costs to abide event.

Van Brunt, P. J., and Brady, J., concurred.

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


author: Daniels, J.;

text:
    LUCY F. WYMAN, Administratrix, etc., of WILLIAM A. WYMAN, Deceased, Plaintiff, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Defendant.

      In what cases a company is required to give the notice prescribed by chapter 341 of 1870 before forfeiting a policy for non-payment of a premium- — when a revival of a forfeited policy will be held tobe a “ renewal ” thereof und&r the said act.

    Upon the trial of this action brought by the plaintiff, as the administratrix of her deceased husband, William A. Wyman, to recover the sum of $3,000, for which amount his life had been insured by a policy issued by the defendant on October 25, 1872, the complaint was dismissed upon the ground that prior to the death of the husband, which occurred on November 8, 1884, the policy had, by virtue of the terms and conditions contained therein, become null and void because of a failure to pay the annual premium which became due on the policy on October 25, 1884. Upon the trial it appeared from the testimony of the defendant’s agent that Wyman had also made a default in the payment of a quarterly installment of a premium which became due- on April 25, 1884, the payment of which on that day was, by the terms of the policy, essential to its validity; that before this payment became due he had, upon being requested by Wyman to extend the time for its payment, told him that he had no power to do so, but promised to hold the renewal in the office for four or five weeks, and said that if Wyman then came in and was in good health he had no doubt the company would accept the premium. Thereafter the assured came and paid the agent the premium, which was forwarded to and accepted by the company.

      Held, that by accepting the premium falling due in April, after the day on which it was payable, the company revived and reinstated the policy from the time the payment was made.
    That the policy was thereby “renewed,” within the meaning of that term as used in section 1 of chapter 341 of 1876, providing that no life insurance company doing business in this State should have power to declare forfeited or lapsed any policy hereafter issued or renewed, by reason of non-payment of any annual premium or interest, or any portion thereof, unless the notice thereby prescribed should be given.
    That as the notice required by this act was not given upon the failure of the assured to pay the premium falling due in October, the company could not declare the policy forfeited for his default.
    Motion by the plaintiff for a new trial on exceptions ordered to be first heard at the General Term.

      Samuel Greenbaum, for the plaintiff.

      Philip G. Bartlett, for the defendant.
   Daniels, J.;

The plaintiff, as the administratrix of the estate of her deceased husband, William A. Wyman, prosecuted this action to recover the amount of $3,000, for which his life had been insured by a policy issued by the defendant on the 25th of October, 1872. This policy provided for the payment of an annual premium of $123.60 on or before the twenty-fifth of October in every year during its continuance. It was also declared and agreed in the policy that it should be null and void in case any note given for the cash part of the premium on the policy should not be paid at maturity, or in case the interest should not be paid annually in advance on any note which might be given for any portion of the premiums; and further, that if the said premiums shall not be paid at the office of the company in the city of Hartford, Conn., or to an agent of the company on his producing a receipt signed by the president or secretary, on or before the date above mentioned, then in every such case the said company shall not be liable for payment of the sum insured, or any part thereof, and this policy shall cease and determine.

The annual premium which became due on the policy on the 25th of October, 1884, was not, at that time, paid, and because of that failure to pay, the policy, by its own terms, was declared forfeited. Policies of this general form have frequently been before the courts for consideration and construction, and where no other circumstance has intervened to relieve the assured, the courts have held the policy to become void on account of such a default. (Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y., 543, 551; Attorney General v. Continental Ins. Co., 93 N. Y., 70, 73; Robertson v. Metropolitan Ins Co., 88 N. Y., 541.) There can be no room for doubt, therefore, that this policy had become null and void, unless it was saved by the intervention of the statute hereafter referred to, from and after the 25th of October, 1884, by the failure to pay. the annual premium, and it was not revived or continued in force by the circumstance alone which was proved in the case, that the son of the assured paid the premium on the 10th of November, 1884, as long as the fact was that his father had died on tlie eighth, and that was unknown to the agent of the company to whom the payment was made. (Bennecke v. Ins. Co. 105 U. S., 355.

On the 3d of November, 1884, an interview took place at the office of the agency of the company in the city of New York, between the assured and the agent concerning his right to a paid up noliey. They did not agree as to this policy, on account of a difference between them relating to subsequent payments of interest upon the notes held by the company against the assured, and the agent then signed a stipulation extending the time for thirty days in which the assured might reach a conclusion regarding the taking of a paid up policy. That was at no time determined by the assured up to the period of his decease. This agreement was not made for the purpose, neither did it of itself have the effect of continuing the original policy in force. Its sole object was to allow the assured thirty days for investigation and consideration upon the question whether he would, or would not accept the paid up policy which the company was willing to issue to him. As to his immediately preceding default in the payment of the premium, no negotiations or agreement were entered into. Neither was the agent himself authorized to give him any indulgence on this subject. What then took place, therefore, in no manner aided or assisted the plaintiff in maintaining this action. As the law stood, before the statute presently considered was enacted, this policy would be avoided by the default in the payment of this premium. But it was proven by the cross-examination of the agent of the company by the defendant’s counsel, that Wyman had also made default in the payment of a premium which was due on the 25th of April, 1884. What this premium was has not been very clearly disclosed by the case. But it is to be inferred from the receipt given on the tenth of November and dated the 25th of October, 1884, that it was a quarterly installment of the premium payable upon the policy, and that its payment was essential, as well as the payment of the entire annual premium, to keep the policy in life. Before this part of the premium was due, the agents states that the assured requested him to extend the time of the payment of his premium, but he refused to do so, and said “ if I was ever so willing I have no power to extend the time of your payment, but I will hold your renewal in the office, I will not return it to the company for four or five weeks, and if you come in and are in good health, I hare no doubt we shall accept the premium, but I cannot extend the time. I have no power to and no desire to.” The same witness further testified that he did after April take the money, after it was due; that the assured came and paid it himself.

The failure of the assured to pay this premium at the time had the effect, under these provisions of the policy, to forfeit it as the statute referred to did not then apply to it, and the agent himself had no right to revive it without the action of the superior officers of the company. To restrain his authority in this respect, a notice appears to have been printed upon the policy to the effect that the insured will please take notice that no receipt for premium on this policy is valid unless signed by the president or secretary of this company at Hartford, Conn., and that no agent has authority to receive any premium without first presenting a regularly signed receipt from the president or secretary, or to interline, alter or otherwise change any policy, or to receive any premium after date of its being due without special permission from the officers of the company. But it is, nevertheless, to be inferred from the circumstances that the policy was afterwards reinstated and up to the 2oth of April, 1884, regarded as and was an insurance in force and effect, because of this April premium having been accepted by the company, and the policy in that manner in due form renewed from the time when the payment was made. That the object of the payment was to avoid the forfeiture and secure a renewal of the policy, is disclosed by the evidence of the agent which has already been cited. The forfeiture for this April default which wa3 in this manner encountered, was superseded and the policy renewed by the subsequent payment of this April premium, and its transmission to and acceptance by the company, which acceptance is to be inferred from the other facts in the case and the result of' this renewal was, after that,' to place this policy within the control of chapter 341 of the Laws of 1876, and to render it afterwards incapable of forfeiture without the service of a notice of not less than thirty, days to the insured, stating the amount of the annual premium, or interest due, and when due on such policy, and the place where such premium or interest might be paid. That such a notice was served was neither intimated nor proved njaon the trial. And while this policy was issued, before the enactment of the statute, as long as it was renewed after such enactment, it was brought within its provisions. For it has been made to include not only policies issued after the enactment, but also those which may afterwards be renewed, and this policy, from the evidence, was so renewed. If this term is not to have this effect, then it can manifestly have no application to renewed policies intended to be protected by the statute. And that construction would be opposed not only to its spirit, but also to its language. There was no legislative inability to include within the act such policies as should be renewed and continued in force after its passage. For, while not in form, a new policy after the insurance had become null and void, because of the non-payment of the premium and the renewal of it by the acceptance of the money yet in legal effect the policy would be otherwise, and it must have been so intended by the legislature in making the act applicable to a renewed policy. A prominent purpose which this phraseology must subserve, in the statute, is to include that class of policies that may have become forfeited and void, and are afterwards revived and continued by the action and assent of the company. They are, then, not only in the language of the statute, but also by the popular understanding of the terms, renewed policies of insurance, and by force of the statute incapable of subsequent forfeiture or anullment without the service of the notice prescribed in it. And the practice also of the company to be inferred from the testimony of the agent is to renew the policy in form, when the premium maturing upon it shall be paid and received. It has not been required by the act that the entire annual premium shall be defaulted to .bring the policy within the provisions of the law relative to notice, but it is sufficient that the case shall be one of “ non-payment of any annual premium, or interest, or any portion thereof,” to entitle the assured to this notice before the renewed policy may be avoided. The default of the assured in April, 1884, was of some portion of the annual premium. That, under the provisions of the policy,worked a forfeiture when the assured failed to pay the amount. It, for all practical as well as legal purposes, then ended the insurance, and as this part of the premium was afterwards accepted and undoubtedly received by the company, the policy was thereby from that time renewed and rendered subsequently non-forfeitable without the service of this notice.

The objection that the act does not include this insurance company is not tenable, for it has been made to include all life insurance companies doing business in this State, and this policy was issued in this State, and the company had and maintained an agency here, which brought it within the authority and control of the act.

The verdict should be set aside and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concurred.

Verdict set aside, new trial ordered, costs to abide event.


author: Bartlett, J.:

text:
    HARMAN M. McLEAN, Respondent, v. ALONZO ADAMS, Appellant.

      Commissioner to take testimony — must he without Mas or prejudice — the propriety of appointing him may he reviewed on appeal.

    A commissioner to take testimony in a foreign country should be a person who has no bias or prejudice in regard to the litigants or the”cause.
    While the functions of such an officer are regulated and strictly limited by statute, his powers are, nevertheless, readily capable of abuse, to the serious detriment of one party or the other; and where such abuse occurs it may often escape discovery when the commission is executed in a distant jand.
    A party is entitled, as a matter of right, to the appointment of a fair and unbiased commissioner, and if he thinks that right has been denied him, he may procure the order to be reviewed by appeal, without waiting'for the return of the deposition and then moving to suppress it.
    Appeal by the def endandant from a Special Term order appointing a commissioner to take testimony in Nicaragua.

      Joseph A. Shoudy, for the appellant.

      J. Hampden Dougherty, for the respondent.
   Bartlett, J.:

This is an appeal from so much of an order of the Special Term as names S. A. Coclcburn as commissioner to take testimony in the cause, at Cape Gracias a Dios, in the Republic of Nicaragua. The defendant objects, not to the commission, but to the commissioner. The papers show that Mr., Cockburn is a correspondent of the firm of Do Long, Meyer & Co., successors to William Jex & Co., who are described as the agents of the plaintiff in New York and competitors m business at Cape Gracias a Dios, with Leaycraft & Co., the defendant’s New York agents. The precise relation which Mr. Cockburn bears to the plaintiff’s agents by reason of being their u correspondent ” is not disclosed, but there can be no doubt it is a friendly one. There is also some evidence of unfriendly feeling-on his part toward the defendant. He made an affidavit in behalf of the plaintiffs, which was used on this very motion, in which he says: I have understood that the defendant had trouble with the prior Comandante (at Cape Gracias a Dios), Brioso, arising out of some charges that the defendant had smuggled goods into Cape Gracias.” A person who stood perfectly indifferent between the parties would hardly have made this affidavit voluntarily.

A commissioner to take testimony should be a person who has no bias or prejudice in reference to the litigants or the cause. While the functions of such an officer are regulated and strictly limited by statute, his ¡rowers ai-e, nevertheless, readily capable of abuse to the serious detriment of one party or the other, and where such abuse occurs it may often escape discovery when the commission is executed in a distant land. The best safeguard against the occurrence of any wrong of this kind is the selection of a commissioner to whom no suspicion of partiality can attach. It cannot reasonably be said that Mr. Cockburn is such a person. The learned counsel for the plaintiff concedes in his brief that “ if Cape Gracias furnished a large choice, it would be better to appoint a commissioner having no business correspondence with any of the parties or their their agents.” With reference to this observation it may be remarked that although the papers show that the number of persons at Cape Gracias a Dios capable of acting as commissioners is not large, there is no satisfactory proof that some one cannot be found there who is both competent and impartial.

The objection that no appeal lies from the order under consideration is not well taken. A party is entitled, as a matter of right, to the appointment of a fair and unbiased commissioner and if he thinks that right has been denied him he may precure the order to be reviewed by appeal without waiting for the return of the deposition and then moving to suppress it. The order so far as appealed from, should' be reversed with costs and disbursements, and the case remitted to the Special Term for the appointment of a new commissioner.

Van Brunt, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars' costs and disbursements. Case remitted to Special Term.


author: Bartlett, J.

text:
    AUGUSTUS C. BECHSTEIN, Plaintiff, v. ROBERT D. SCHULTZ and JOHN HOGE, Defendants.

      Foreclosure sale — when the title of the purchaser is not vitiated by a failure to publish notice of an adjournment of the sale.

    In an action to compel the specific performance of a contract for the sale of real estate, the defendant objected to the plaintiff’s title, which was derived through a judgment in a foreclosure suit, upon the ground that there was an omission to publish a notice of an adjournment of the foreclosure sale from August 19,1884, to September 2, 1881, until September 4, 1884, the day on which the sale actually took place, on which day notice of the adjournment in question was published in the same papers as the original notice of sale.
    Held, that as more than two years had elapsed from the time of the entry of an order confirming the sale, without objection being made by any of the parties, the defendant should he compelled to complete the purchase.

      Woodhull v. Little (102 N. Y.,,165); Abbott v. Curran (98 id., 665) followed.
    ContboveRsy submitted under section 1279 of tlie Code of Civil Procedure.

      Linnus A. Gould, for the plaintiff.

      William L. Snyder, for the defendants.
   Bartlett, J.

Tbe purpose of tbe plaintiff in this litigation is to enforce tbe specific performance of a contract for tbe purchase of real property. The plaintiff’s title to the premises is derived through a judgment in a foreclosure suit, and the sole objection which the defendants make to -the title is that there was an omission to publish notice of an adjournment of the foreclosure sale from August 19, 1884, to September 2, 1884, until September 4, 1884, the day when the sale actually took place, on which day notice of the adjournment in question was published in the same papers as the original notice of sale.

Section 1678 of the Code of Civil Procedure provides that notice of the postponement of the sale of real property must be published in the paper or papers wherein the notice of sale was published. No doubt a failure to comply with this provision is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit, but I do not think it constitutes a jurisdictional defect in the proceedings, 'available to a purchaser more than two years after the confirmation of the sale, without objection by any of the parties.

In Woodhull v. Little (102 N. Y., 165) it was held that the omission of a referee in partition to give any notice whatever of the sale of one of the parcels of property sold was an irregularity which did not vitiate the sale of that parcel. It is true that this decision turned largely upon the express provisions of statute as to the effects which follow the confirmation of a sale in partition. The case is in point, however, as showing that a much more serious omission than that which is under consideration here was deemed to be only an irregularity, and is expressly spoken of as such. The language used by the Court of Appeals, also, in the case of Abbott v. Curran (98 N. Y., 665) tends strongly to sustain the conclusion that the sale in question in this controversy was not invalidated by the failure of the referee to advertise -the adjournment. A local statute required foreclosure sales in Kings county to be made by the sheriff, unless all the parties to the action consented that a referee should sell. All the parties in the suit appeared and consented to a sale by a referee, except one, who was an absentee. The General Term seems to have held that the consent of all the parties who appeared was a sufficient compliance with the statute. But, says the Court of Appeals, if the court erred in this, the error did not render the appointment of the referee illegal, or the sale Dy him void. It was at most an error which could be corrected by any party to the record by application to the court or by appeal from the judgment, but a sale made under such circumstances is not invalid because made by a referee instead of the sheriff.” The order under review was one which required the purchaser at the foreclosure sale thus conducted by the referee to complete his purchase, and the Court of Appeals held that there was no substantial defect in the title, and that the buyer must take it. If such a departure from a statutory requirement as the substitution of one officer to sell in place of another, by whom the sale ought to have been made, does not affect the title of a purchaser, still less can it be held that his title is bad by reason merely of an omission to advertise an adjournment, by which neglect nobody appears to have been injured or misled, and of which there is no complaint whatever by any of the parties to the action.

Upon the agreed case I think judgment should be rendered in favor of the plaintiff, without costs'!

Van Brunt, P. J., and Daniels, J., concurred.

Judgment ordered for plaintiff, without costs.


author: Lawrence, J.:

text:
    MARY A. P. TUCKER, Respondent, v. CORNELIA GILMAN, Appellant.

      Liability of a stockholder of a corporation for the amount unpaid, on slock owned by him can only be enforced by a creditor — it cannot be enforced by a receiver.

    Upon tlie trial of this action brought to compel the defendant, who was alleged to be a stockholder in a manufacturing company, to pay the amount remaining unpaid -upon the shares of stock owned by her, it appeared that the plaintiff had purchased the claim at a sale of the uncollected assets of the company made by a receiver of the company pursuant to an order of the court.

      Held, that as the plaintiff, as the assignee of the receiver, could obtain by her purchase from him no other or greater rights against the defendant, as a purchaser or subscriber to the shares of stock, than the receiver himself possessed, and as the receiver himself could not enforce the liability imposed upon the stockholders by section 10 of the general manufacturing act, or section 5 of title 3 of chapter 18 of part 1 of the Revised Statutes, this action could not be maintained.

      Varnsworlh v. Wood (91 N. Y., 308); Mann v. Pentz (3 id., 415) followed.

      Appeal from a judgment in favor of tbe plaintiff, entered upon ,a verdict directed by the court, and from an order denying a motion for a new triai made upon the minutes of the justice before whom the action was tried.
    This action was brought to compel the defendant who, it is alleged, was one of the stockholders of the Kings County Manufacturing Company, to pay on each share held by her a sum necessary to complete the amount of such share as fixed by the charter of the company. It is alleged that the whole capital of the company was not paid in; and that the capital paid in proved insufficient to satisfy the claims •of its creditors. The Kings County Manufacturing Company was .organized under the general manufacturing act of 1848, with a nominal capital of $250,000. On June 21, 1815, Edgar Tuckei ¡recovered a judgment against it upon an account stated, for money 'laid out and expended for the company and loaned and advanced to it by him amounting to over $200,000, upon which after crediting nertain payments, Tucker had judgment for $186,306.31. Execution was issued upon this judgment and it was returned wholly unsatisfied. Tucker went into bankruptcy, and his assignees petitioned the ¡Supreme Court for the appointment of a receiver of the company. On the 19th of July, 1877, Francis E. Mirriek was appointed receiver ■of the company, and subsequently he advertised for claims and pro-needed to collect such assets of the company as could be found. Having collected a certain amount of money, he was directed to distribute it among the creditors who have proved their claims, and ■to sell the remaining uncollected assets by an order dated January •9, 1883. The sixth clause of that order reads as follows:/‘That .said receiver proceed to sell at public auction at the Exchange sales room in the city of New York the remaining uncollected assets of .said Kings County Manufacturing Company mentioned in said petition; and that he give one week’s previous notice of such sale, by advertising notice thereof in two daily newspapers published in the city of New York.” Pursuant to this order the receiver sold •the alleged claim to the plaintiff in this action and assigned the same to her June 8, 1-883. This sale was approved by the court by an order dated July 18,1883 ; and the plaintiff, as such assignee, subsequently commenced this action against the defendant claiming that there was a balance .of sixty per cent due upon the alleged subscription of the defendant for the stock of the said Kings County Manufacturing Company.
    The defendant after making denials in her answer which substantially amount to a general denial of the material allegations in the complaint, alleges that she purchased the shares of stock in regard to which she is sought to be held liable for the sum of $6,000 relying upon the representation of the company that said stock was full paid stock, and that at no time did she subscribe to or for any of the capital stock of said company. She also alleges that prior to the commencement of this action and on or about the 13th of February, 1872, she transferred the shares of stock mentioned in the complaint to one Henrietta Bramhall in good faith and without any knowledge of the financial condition of the said King's County Manufacturing Company, She also alleges that this action was not commenced within six years after the alleged cause of action set forth in the complaint accrued.

      C. P. Crosby and Henry E. Knox, for the appellant.

      Wheeler & Cortis and Everett P. Wheeler, for the respondent.
   Lawrence, J.:

Many questions of evidence are discussed in the brief presented by counsel upon the argument of this appeal, some of winch probably are fatal to the judgment in this case; but in the view which we take of this case, it is not necessary to consider them. It is quite apparent that the plaintiff, as the assignee of Mirrick, obtained no other or greater right than Mirrick possessed against the defendant as the purchaser of or subscriber to the shares of stock mentioned in the complaint. Upon looking into the order of July 19, 1877, appointing Mirrick receiver, it will be found that he was appointed receiver of the property, estate, effects, choses in action, books of account and legal and equitable interests of the said Kings County Manufacturing Company, etc. If the claim in question does not come under one or the other of the claims or interests specified in that order it is quite clear that the plaintiff has no cause of action.

In Farnsworth v. Wood (91 N. Y., 308), which was an action brought by the plaintiff as receiver of the Eagle Mowing and Reaping Machine Company, a manufacturing corporation organized under tlie general manufacturing act, to enforce tbe liabilities imposed by section 10 of that act upon stockholders in favor of creditors, it was held that the liability of the stockholder does not exist in favor of the corporation itself, or for the benefit of all its creditors, but only in favor of such creditors as are within the prescribed conditions, and is to be enforced by them in their awn right a/nd for their own especial l/enefit.

Rappalo, J., in delivering the opinion of the court, says, at page 313: “ The receiver in this case is not vested with the rights of action of these creditors but only with the property which was sequestrated under the provisions of section 36, chapter 8, title 4, article 2 of the Revised Statutes, viz.: The stock, property, things in action and effects of the corporation; the.rights of certain creditors to prosecute their claims against certain of the stockholders never were the property of the corporation, nor rights of action vested in it; nor is there any provision of the statute which transfers these rights of action from the creditors to the receiver.”

If it is sought to maintain this action because of the provisions of section 10 of the general manufacturing act, the case cited seems to us to be precisely in point, and it, therefore, follows that the ''earned justice erred in dircting a verdict in favor of the plaintiff.

If, however, it is claimed that the liability sought to be enforced arises because of the provisions of section 5, title 3, chapter 18, part 1 of the Revised Statutes (1 R. S., p. 600), which section is applicable by reason of section 26 of the manufacturing act of 1848, which provided that all corporations formed under this act should be subject to the provisions of title 3, chapter 18 of the Revised Statutes, which section reads as follows:

“ Where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him, the sum necessary to complete the amount of such share, as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company,” the reasoning of the case cited would be equally applicable.

But we are not left without an equally authoritive decision upon this very section. In the case of Mann v. Pentz (3 N. Y., 415), the right of a receiver to enforce liabilities arising under section 5, above referred to, was the question involved, and it was distinctly held that a receiver could not maintain such an action. The court says, after quoting the language of the section : “ The liability is, therefore. clear, but how is it to be enforced ? The statute itself does not define the method to be pursued, but leaves the remedy to be-enforced by such practice and in such form as the nature of the right to be asserted, and the relief sought may require. It being a statute liability, if the receiver can select one stockholder and collect the whole amount unpaid upon his shares of the stock, there is no reason why his remedy is not as perfect at law as in equity. JBut the nature of the right to be enforced and the circumstances under wnieli it is to be enforced render the proceedings under this statute eminently proper for a court of equity and the practice should be such as to effect the equitable designs of the statute and not be unnecessarily oppressive upon those against whom the proceedings are directed. This liability is only incurred when the capital paid m is not sufficient to' satisfy the debts against the corporation, and then only to an amount sufficient to satisfy such debts. It is, therefore, necessary that an account of the assets and of the debts should be taken of the amount of the capital remaining unpaid upon the shares, and the amount unpaid by each stockholder, in order that they may be made equally liable. I can see no way in which this could be effected under the practice before the Code, except by a bill filed in behalf of all the creditors against the corporation, making the delinquent stockholders also defendants. The court would then have the power to do complete justice and make each delinquent stockholder pay his due proportion and no more. This is the practice established by the Revised Statutes to enforce a liability somewhat analogous against directors and stockholders of moneyed corporations (2 R. S., 464), and the same practice is suggested by Judge Jackson in Vose v. Grant (15 Mass., 505), and by Judge Story in Wood v. Dummer (3 Mason, 308). The creditor, therefore, who filed the original bill against the railroad corporation, when he found that the property of the company was not sufficient to pay all the debts, should have amended his bill and made the delinquent shareholders parties to the original bill. The receiver had no power as such to file this bill. There is nothing in the original bill nor in the order appointing the receiver, which indicates that it was the object of that suit that the receiver should have any other or greater powers than receivers in ordinary creditor’s suits.”

It is, therefore, distinctly held that a receiver appointed in a creditor’s suit as the receiver in this case was, cannot enforce liabilities Under this section which requires the marshaling of obligations and claims in order that one stockholder may not be called upon to bear a greater burden than by the statute has been imposed upon him. The fact that the case cited relates to procedure before the Code in no way militates against or weakens the reasoning employed. The principle upon which the case rests is, that a receiver in an ordinary creditor’s suit, has no power to enforce a liability under this’section.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Bartlett, J., concurred.

Judgment reversed, new trial ordered, costs to appellant, to abide event.


author: Daniels, J :

text:
    WILLIAM M. KINGSLAND, Survivor, etc., Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Composing the Dock Department of the City, Appellants.

      Defective descriptions in convey anees — the actual occupation hy the parties is to he considered in construing them —liability of the Oily of New York for discontinuing a bulk-head hy the establishment of a new one —it is not liable in damages for an injury to one holding undt&r a license granted by it, terminable at its pleasure.

    In attempting to ascertain the "boundaries of property, the description of which is defective, the acts of the parties in the practical construction given to such description by occupancy on the one part, and consent or acquiescence on the other, are legal evidence of their intention and have weight and effect upon the construction to be given to the conveyances executed on the one part and received on the other.
    Upon the trial of this action, brought by the plaintiff to recover damages occasioned by the discontinuance of a bulk-head owned by his testator which extended along the westerly line of West street, which was formerly the westerly waler line of the city of New York, evidence was given showing that the plaintiff’s testator owned the bulk-head, and that the defendant, in 1880, entered upon the property westerly of West street, and filled In from the west line of West street with solid filling for a distance of about 180 feet farther into the river, placing the hulk-head line at the extremity of this distance instead of on the west lino of West street, thereby destroying the plaintiff’s bulk-head for use as a wharf, for which purpose it had been erected.

      Held, that the city was liable in damages, for the discontinuance of the bulk-head, to the person entitled to its emoluments in the way of wharfage.

      Langdon v. Mayor (28 Ilun, 158; affirmed, 93 N. Y., 129) followed.
    That, as the intention as well as the result of what was done was the complete and permanent extinguishment of the use of the westerly side' of West street as a wharf, the damages to be recovered should be the same' in amount as the compensation which would have been made in proceedings to' acquire the rights of the testator thereto, had they been instituted, which proceedings were provided for in the act which authorized the city to do the work.
    That, in determining the amount of such compensation,, ho' allowance should be made for the injury occasioned by the loss of the privilege of erecting platforms or sheds beyond the westerly line' of West street, which privilege had been granted to the testator or his lessees by the defendant through its boards and officers, nor for the destruction of the platforms and sheds so erected, as it appeared that the said privileges and licenses were, when granted made terminable in the discretion of the board or body so granting them.
    Appeal by tbe defendants from a judgment entered upon the report of a referee.

      F. A. Irish, for the appellants,

      Stewart & Boardman, for the respondent,
   Daniels, J :

The object of the action is the recovery of damages for discontinuing a bulk-head on the preceding' Westerly water line of the city of New York. It has been brought by the plaintiff as- the surviving executor and trustee under the' Will of Daniel C, Kingsland, deceased, and the bulk-head in controversy adjoined Charlton street on the north and extended southerly 101 feet or thereabouts, on the westerly line of West street. The rights of the plaintiff as they have been presented in the action have' been derived under two deeds, one of which was made by the mayor, etc., of the city of New York to John R. Ritter, on the 21st of November, 1804, and the other by the same grantors to Cornelius Harsen on the 31st of July in the year 1815. The objection has been made at the outset of the case, that as these deeds are declared to convey no more than “ to pass the estate, right, title or interest which they (the mayor, etc.), have or may lawfully claim by virtue of their several charters, the grantees respectively in them do not appear to have acquired any title or right to use or enjoy the bulk-heads erected on the westerly bounds of West street.” But this objection is conclusively answered by the facts, that in the year 1GSG, by the Dongan charter from the crown of Great Britain to the mayor, etc., all the waste, vacant and unoccupied land between high and low-water mark around the Island of Manhattan was conveyed to and vested in the city. This was followed by the Montgomerie charter in 1730, through which in like manner there was vested in the mayor, etc., “ land under water for 400 feet beyond low-water mark, and extending on the west side of the city from near the Battery to Bestavers Billete ” a rivulet or small creek which entered the Hudson above Charlton street. What the distance was at the point in controversy between high and low-water mark has not been made to appear definitely in the case, but it is evident from the facts that it included a substantial space of ground. And in the deed executed and delivered by the mayor, etc., to Ritter, the easterly boundary of the land conveyed was declared to be the west side of Greenwich street between high-water mark and a certain new street of seventy feet in breadth, etc. How far the westerly side of Greenwich street extended beyond the high-water mark has not been very clearly made to appear in the case, but it may be assumed to have been in some substantial degree beyond the high water line of the Hudson river. And that would bring the westerly line of West street within the westerly boundary of the 400 feet of land conveyed to the city through the Montgomerie charter. For by the deed the low-water mark appears to have been at a point between Greenwich and Washington streets, and the land conveyed by the deed extended westerly from that point eighty feet to Washington street. That street was intended to be, as it was afterwards made, of the width of sixty feet; the block between that and the easterly side of West street was made 190 feet, and West street of the width of seventy feet, -which together would aggregate no more than 400 feet of ground. And if the block between Greenwich and Washington streets was designed to be of the same width as the block between Washington and West streets, then the low-water mark would be from the westerly bounds of Greenwich street the distance of 110 feet into the river. It probably from the map was not designed to be one of the same width as the westerly block, but even if they were in this respect precisely alike, it would appear that the city was the owner of the land described in the deed at the time when it was made and executed. And beyond that is the presumption, in the absence of any proof inconsistent with it, that the city owned all the property and rights professed to be conveyed by the deed.

The title of the city to the property conveyed to Ilarsen is equally as evident, for its easterly boundary was made the center of a certain new street hereinafter mentioned, to be made there, called Washington street,” and from that line of land extended westerly to the west line of the street Co be called West street. That the city was at the time when these deeds were made the owner of land under water beyond the westerly line of West street is also clearly evident from the fact that easterly of the 400 feet conveyed to Ritter, it was the owner of the land from the east side of Greenwich street to the high-water mark of the river, and it accordingly conveyed no more by either of these deeds than it was at the time entitled to convey to the grantees therein.

These deeds together conveyed 104 feet on the river front, and by a partition deed made between John P. Ritter, the son of .the grantee in the first of these deeds, and Joanna II. Ilarsen, his daughter, and Cornelius Ilarsen, the grantee in the second deed, the rights and interests acquired in the bulk-head by Ilarsen, and a portion of those acquired by Ritter, appear to have been set off to Joanna Ilarsen. It has been objected by the defendants that the partition should not be accorded that effect over the property in controversy, for the reason that the land partitioned was described in it as bounded on the west by West street. It is, however, to be gleaned from so mnch of the deed as the case contains, that the parties intended, in making this partition, to include the rights and interests which had been acquired to the use and enjoyment of the westerly side of West street. For, in addition to the property partitioned and mentioned in the deed and exhibited upon the map, the deed conveyed “all and singular the rights, privileges and advantages thereunto belonging or in anywise appertaining,” and the right to erect a bulk-head on the westerly side of 'W est street and enjoy its emoluments and advantages, was one of the rights and privileges appertaining to the property partitioned. This partition was followed by a conveyance executed by Cornelius Iiarsen and Joanna Ii. iiarsen, his wife, to Jonas Mapes, conveying the same and other property to the grantee. And he and his wife after-wards, in like manner, conveyed to Cornelius Iiarsen, who seems to have succeeded in this way to the rights of the grantees in all or most of the property in controversy, and they claimed and controlled it to the period of his decease. By his will he devised ins real estate to his executors empowering them to make a sale of it, and his two surviving executors conveyed the property to the testator and Cornelius K. Sutton. It has been objected on behalf of the defendants that this effect cannot be given to that conveyance for the reason that the northerly and southerly lines of the land described in it are projected westward from the westerly line of West street and include no land either above or below the water. But while that is the direction given to these lines there is still enough remaining in the deed to include the conveyance or transfer of the rights and privileges now in controversy. For the deed not only by express words conveys the westerly or bulk-head front of West street, but in addition to that, it mentions the property as having belonged to the estate of Cornelius Harsen, deceased, which was not the fact as to any property west of West street. The further statement is also contained in the deed that the land under water intended to be conveyed extended of the width described into the Hudson or North river as far as the said Cornelius Harsen at the time of his death had or could have any right, title or interest, and as far as the parties of the first part have or can have any power or rights to grant and convey the same. And also all and all manner of cranage, wharfage, profits, benefits, and advantages and emoluments growing, arising, or accruing by or from the wharf or wharfs now, or hereafter to be made on said premises as conveyed by the mayor, aldermen and commonalty of the city of New York and the original grantors thereof.” These clauses, considered with the additional assistance of the attendant facts, justify the construction that the lines were inadvertentlv stated to extend westerly, when, as a matter of fact thay were intended to proceed easterly and to include, not only tbe bulk-liead line as the deed clearly did, but the residue of the testator’s property eastwardly therefrom; and these grantees, on the 10th of January, 1872, joined in a lease of it to the Liverpool, New York and Philadelphia Steamship Company, acting by John G. Dale as its agent. This lease was made for the term of ten yeai’S, and provided for its renewal at the option of the lessee for a still additional period of ten years. Sutton, who owned one-third of the property, sold and conveyed it to the testator, entitling the plaintiff as his surviving trustee to maintain this action for the recovery of the damages accruing from the discontinuance of the bulk-head on the westerly line of West street, by the act of the defendants. This title has been acquiesced in by the city during the entire period through which it lias passed, and in 1818 it directed the proprietors of the ground to proceed with the construction of the street and bulk-liead upon it, and have that completed by the 1st of J uly, 1819, which was afterwards extended to the first of December of the same year; and in 1851 the common council, by resolution, gave permission to Kingsland & Sutton to pile and bridge out for a distance of thirty feet beyond the bulkhead in front of their property in West street, near Charlton street. This resolution contained an express admission of the fact of their title; and their own possession and use of the property is further evidence of their rights, for the acts of the parties under defective conveyances in the practical construction given them by occupancy on the one part and consent or acquiescence on the other, are legal evidence of their intention, having weight and effect upon the con-stiuction to be given to the conveyances executed on the one part and received on the other. (Reed v. Proprietors, etc., 8 How. [U. S.] 274, 290, 291.) The objections taken to the title of the plaintiff to this controverted bulk-head are not well founded, and were correctly overruled, so far as they appeared in the case, iii the decision made by the referee.

In 1880, and while the lease already mentioned was in force, the dock department of the city entered upon this property westerly of West street, and filled in from the line of West street with solid filling for a distance of about 180 feet farther into the river, placing the bulk-head line at the extremity of this distance instead of on the west line of West street. That destroyed the bulk-head on the line of the street for all the purposes for which it was designed, under the original conveyances, to be created. The object of its erection on the west line of West street was the creation of a wharf to be used in the commercial business of the city, and, so far at least, for the benefit and advantage of the persons creating it, under these conveyances, as to entitle them “ at all times forever thereafter to fully have, use, enjoy, take and hold to his or their own proper use, all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from the said wharf or street,” etc. These rights and privileges were completely extinguished on the line of West street by this extension of the water front. It was made under the authority of chapter 383 of the Laws of 1870, as that was amended by chapter 574 of the Laws of 1871, so much of which has since been continued in force by section 119 of chapter 335 of the Laws of 1873, and section 712 of chapter 410 of the Laws of 18S2, as related to the improvement of the water front of the city of New York. It was supposed by the department that it had been authorized in this manner, subject to the approval of the commissioners of the sinking fund, to locate the line of and improve the wharves, piers and bulk-heads of the city of New York, without providing compensation to the persons who had acquired these rights under the city. The construction acted upon was, that the deeds proceeding from the city were subject to its future authority in locating, regulating and extending the water line of the city; but as they contained no qualification whatever entitled to that effect, it has been held that the city became liable for the discontinuance of the bulk-head in damages to the persons entitled to its emoluments in the way of wharfage. (Langdon v. Mayor, etc., 28 Hun, 158; affirmed, 93 N. Y., 129.)

These decisions completely settle the title of the plaintiff to recover such damages in this action as were sustained by'the extin-guishment of these rights and privileges. And the important point still to be considered in the case is the extent to which such damages may be legally allowed. The intention, as well as the result of what was done, was the complete extinguishment of the use of the westerly side of West street as a wharf. It was permanently and finally terminated by the act of the defendants, and what they have become liable to pay is the value of the rights and privileges which were in this manner divested. The acts of 1870 and 1871 contemplated the performance of all that has taken place. And to facilitate and cany it into effect it was provided by subdivision ten of section six of the act of 1871 that the commissioners of the land office should be authorized to convey all the property, right, title and interest of the State to the land under water, requisite for the making of the improvement. And such a conveyance was, in fact, made on the application of the city authorities. It was also assumed in the act that it might become necessary to acquire private rights of a proprietary character in the course of the improvement. And provision was made by subdivision four of the same section for their acquisition through the proceedings authorized for taking private property for public streets or places in the city of New York. These were not resorted to for the discontinuance of this bulk-head as a wharf, for the reason already mentioned that it was supposed that they were subordinate to the rights of the city to project and make these improvements. But what the city failed to do under this authority of the law was designed to be substantially accomplished through the intervention and result of this action. And for that reason the compensation to be made in the suit should be the same as would have been made in such proceedings if they had been instituted under the authority of the law. (Taylor v. Metropolitan, etc., R. R. Co., 50 N. Y. Supr. Ct., 311; Ireland v. Same, 52 id., 450; Story v. N. Y. Elevated R. R. Co., 90 N. Y., 122.) And that compensation is the value of the rights and interests in this manner appropriated and affected injuriously by the authorities of the city together with interest upon the amount from the time of such appropriation. This subject was considered very fully in Matter of New York, Lackawana and Western Railroad Company (33 Hun, 639), where the rule as it has been acted upon was repeated and' many of the authorities illustrating it were cited and approved. And it was sanctioned in Henderson v. N. Y. Central, etc., R. R. Co. (78 N. Y., 423). Under that rule the practice has been followed of giving to the owner the full value of the property intended to be taken, and a fair equivalent for the diminution of the residue left to the owner, as that may be caused by taking a portion of the property owned by Mm. As, however, this bulk-head was entirely disconnected from the other real estate of the plaintiff in the vicinity and wholly separated from it by the width of "West street, it may well be that no more can be allowed in the way of compensation than the value of the bullc-liead itself and the rights and privileges connected with its use and enjoyment as a wharf. (Matter of N. Y., L & W. R. R. Co. v. Arnot, 27 Hun, 151.)

A further and important element, however, entered into' the allowance of compensation made by the referee in this action. That was placed upon the fact that permission was obtained by John G-. Dale as the agent of the lessee, to extend the structure westerly of the platform made under the resolution of the common council of 1851, a further distance of about sixty or sixty-five feet into the Hudson River, beyond the westerly line of the preceding platform, and to erect a shed over it for the convenience of the business of the lessee. This privilege was expected to be secured before the lease of the bulk-head was taken, and the amount of the rent reserved by the lease was greatly increased by that circumstance. The privilege of extending the bulk-head in this manner and placing a shed over a large portion of it, capable of being thoroughly inclosed, adds very greatly to the value and emoluments of the property. And this valuation, as the platforms and shed were discontinued by the extension of the improvement into the river, was necessarily terminated and ended. But it by no means follows from these facts that the referee was warranted in making any allowances whatever for so much of the value, profit or emoluments, as might arise out of these extensions beyond the bulk-head line of West street. As to the first, which was provided for by the resolution of 1851, it was mérely permitted by the common council. No fixed period of time during which the platform might be maintained in this manner was declared in or by the resolution, but it was in its nature wholly permissive, and as a matter of law it was made without right. (People v. Mallory, 46 How, 281; Commissioners of Pilots v. Clark, 33 N. Y., 251.) By neither chapter 222 of the Laws of 1830, nor by section 1, chapter 261 of the Laws of 1858, was any authority created for permitting structures of this description to be placed beyond the bulk-head line. The first of these acts provided only for the designation or appropriation of public wharfs for the exclusive use of steamboats, or other classes or description of vessels, while the latter act created the same authority for the designation of wharfs for the exclusive use and occupancy of the steamboats of the lessees thereof, so far as that might be necessary for the conducting and managing of their business. They, in no manner, provided for placing structures in the water of the river beyond the bulk-head line. And such structures were forbidden by section 10, chapter 129 of the Laws of 1801, the object of which, in part, was to provide for the construction, regulation and use of wharfs on the water-line of the city.

At the time when permission was given to extend this structure farther into the river, no more authority than this was vested over this subject eithpr in the common council or the commissioners of the dock department. And by their action they did not attempt to vest any fixed or permanent rights in the tenants to whom permission was given to extend the platform sixty feet farther into the river and to erect a shed upon it. What was done and all that was done by the resolution adopted for this purpose, which was in these words:

“ Resolved, That permission be granted to Mr. John G. Dale, agent of the Liverpool, New York and Philadelphia Steamship Company to build a platform on piles in front of the bulk-head between piers 44 and 45, North river, leased by said company from private parties, extending outward from the present line of bulkhead a distance of about sixty-five feet. Also to erect over said platform a shed one story high for the protection of freight, the eastern extremity of said shed not to extend beyond the line of the shed erected by the New York and Troy Steamboat Company on pier 44 adjoining, and in conformity with the plans to be submitted to and approved by this board, and provided that in the erection of said shed, all requirements of the fire laws of the city are complied with, and provided also that the consent in writing of the owners of said bulk-head and of the owners and lessees of the north side of pier 44, North river, to such extension be first obtained and filed in this department. The work to be done under the supervision of Superintendent Westervelt, and to remain during the pleasure of the board.
“ Respectfully yours,
(Signed) “J. GRENYILLE KANE,
“ Commissioner and Secretary pro tern.”

was to permit the extension to be made and to be maintained only “ during the pleasure of the board.” And that this was not intended to be by any means durable seems to follow from the fact that the board had previously been vested with the authority to extend the bulk-head line into the river by making the improvements provided for by the act of 1870, as that was amended by the act of 1871. The permission contained in the resolution was given after the completion of this legislative authority, and must necessarily, aside from its language, have been intended to be subordinate to such authority, and to have entitled the department to terminate it whenever that should become necessary for the purpose of going on with the improvement. Even this authority, or license, the department seems to have had no power to give prior to the enactment of chapter 249 of the Laws of 1875. And as that provided for no more than the privilege of erecting and maintaining sheds upon the pier or bulk-head, it is difficult to derive from it the power to concede the privilege of putting such structure beyond the bulk-head, or outside the piers, in the water, inasmuch as that would not be placing them upon the pier or bulk-head within the language employed in the statute, but adding them as outside structures to the pier or bulk-head. But even if this statute should be otherwise construed, it provided for nothing beyond a license, or authority, to erect or maintain the sheds. It did not provide for vesting in the person to whom the privilege should be given, any right to maintain the platform or shed for any particular period of time. But what was provided for was a license, or authority, which it was declared should be “ subject to the conditions and restrictions contained in such license or authority.” And it was farther added by section 4 of the same act, that nothing contained in it should impair any powers conferred upon the department of docks in the city of New York by existing laws, except as provided in section third of the act and that section has no relation to this controversy. It is manifest, therefore, that no property right was designed to be, or was in fact, conferred or created by this resolution. It was a privilege granted subject to the existing laws ju'oviding-for this improvement of the water front of the city, and made dependent by the resolution itself upon the pleasure of the board adopting it. And the right so to terminate it was exercised when this improvement was made in the year 1880. And in ending it in that manner no more was done than had the sanction oí the law as well as the condition on which the resolution was dependent. (Babcock v Utter, 1 Keyes, 397; Wood v. Leadbitter, 13 Mees. & Wels., 838.)

That the privilege of using corporate property granted in this manner may be terminated without making compensation for it by the party creating the privilege and reserving the right to terminate it, clearly follows from its dependence upon this mere volition, and in other cases of similar concessions and like reservations in favor of the public this principle has been held and adhered to by the courts. (Hatch v. Cincinnati, etc., R. R. Co., 18 Ohio, 92; Hubbard v. Toledo, 21 id., 379, 398; Fishbach v. Woodruff, 51 Ind., 102; Little Miami Elevator Co. v Cincinnati, 30 Ohio, 629; Commonwealth v. Penn. R. R. Co., 51 Penn., 351, 354; Fox v. Cincinnati, 104 U. S., 783; Patten v. N. Y. Elevated R. R. Co., 3 Abb. N. C., 306; Matter of Com'rs State Reservation at Niagara, etc , 37 Hun, 537; Ex Parte Miller, 2 Hill, 418; Mattoon v Monroe, 21 Hun, 74 Burbank v. Fay, 5 Lans., 397; Dermott v. State, 99 N. Y., 101)

The case of Smith v. City of Rochester (92 N Y., 463) is in no manner inconsistent with the principle which has been mentioned, for there the plaintiffs were held to have had a right to the water of which they were deprived by the act of the city, as distinguished from a mere conditional privilege of the nature of that upon which these structures were entitled to be placed. The tenure provided for them was -not property held against the authority of the city. It was no more than a concession or privilege wliich it had reserved to Itself -the right to withdraw at its own pleasure. When it was withdrawn it was not done wantonly or capricious^, but because it had become a necessity for the making of the improvement authorized by law, and provided for by the action of the board of dock commissioners. This license or privilege, although similar licenses were from time to time granted to others and increased the value and enjoyment of the property to which they were incidental, should not have been included as an element for which compensation should be made by the defendant in this action. It did form a very material if not the greater part of the support for the amount which the referee found the plaintiff to be entitled to recover.

And to correct this error the judgment in the case should be reversed and a new trial ordered, with costs to abide the event.

Brady and Bartlett, JJ., concurred.

¡Judgment reversed, new trial ordered, costs to abide event.