author: Earl, Ch. J.

text:
    Jabez Furner, Resp’t, v. Otis Seaburt, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Basement—Bight to take water erom a spring.
    Defendant by a written agreement, in consideration of the plaintiff’s, grantor conveying water from a spring on defendants’ land to his meadow by a three-fourths inch pipe, to be laid under ground of sufficient depth to preserve it from injury by frost, etc., conveyed to plaintiff’s grantor all the water that could be conducted through a half inch pipe to be inserted at the termination of the three-fourths inch pipe, and the right to ail the water that, can run through a half inch pipe, to be kept in repair at the-, cost of plaintiff’s grantor. The water at the spring flowed laterally out of a crevice in a rock which was on the westerly side of the place dug ot.t for the spring, and the water being insufficient at times for both parties defendant attempted to procure water from another spring about thirteen feet from the one mentioned in the agreement. Plaintiff subsequently dug down the spring described in the agreement so that there was' an entire failure of supply of water from defendant’s springs, and defendant filled it in to the old level. Meld, that while defendant had no right to interfere with plaintiff’s spring to his detriment or deprive him of the water granted in the agreement, plaintiff had no right to dig doym into the earth and draw the water from defendant’s spring, or to dig lower than was necessary to conveniently take the water flowing from the crevice in the rock, and when he dug lower he Became 3 trespasser and defendant had a right to fill in the excavation made.
    Appeal from judgment of the supreme court, general term, fourth department, reversing judgment entered upon decision made at special term dismissing complaint and dissolving injunction.
    In August, 1852, the defendant and William Colson owned adjoining farms in Madison county. Upon the defendant’s farm there was a spring of water in which Colson for the benefit of his farm desired to acquire an interest, and then they entered into a written agreement, which, after reciting the existence of the spring upon the defendant’s farm, and its location, provided as follows : " That the party of the second part, for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three-fourths inch lead pipe, which is to be laid under ground, of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water as above described into the meadow of the party of the first part in consideration of the foregoing agreement on the part of the party of the second part; the party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe ; the party of the second part has the right to all the water which can run through said one-half inch pipe, said half-inch pipe to be inserted at the termination of the three-fourths inch pipe as before described, to be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever as appurtenances belonging to his and their lands as aforesaid.”
    Colson’s farm and his rights in the spring under the agreement came by successive conveyances to the plaintiff in 1867, and he has since owned the same. The lead pipes mentioned in the agreement were placed in the ground and connected with the spring, and the water of the spring was thus, used by the plaintiff and his predecessors and by the defendant harmoniously as provided in the agreement until a few years ago, when the water of the spring being insufficient at times for both parties defendant attempted to procure water from another spring about thirteen feet from the spring mentioned in the agreement, and the plaintiff claiming that the defendant thus interfered with the water of the latter spring, the parties got into a controversy over that spring, and finally the plaintiff commenced this action to recover damages and to restrain the defendant from diverting or interfering with the water of the spring. The action was put at.issue and brought to trial at a special term, and the facts found by the trial judge, so far as they are material for the present purpose, are as follows r “ That in the month of September, 1852, or thereabouts, the said Colson cleaned out the said spring and inserted in it a box sixteen inches deep upon the west side and eighteen inches deep upon the other three sides; two feet three and a half inches long and twenty-three inches wide inside, thereby inclosing in said box water from said spring; and attached and inserted through said box into said spring a three-fourth inch lead pipe, and continued said pipe under ground from said spring through the defendant’s-land to the meadow of the defendant, as provided in said instrument ; and at the termination of such three-fourth inch pipe attached to said pipe a half inch pipe and continued the same through the land of the defendant to and through the land of Colson to the house of said Colson.
    “ That in the fall of 1854 the defendant, with the permission and acquiescence of said Colson, attached a one-half inch lead pipe to-the three-fourths inch pipe of said Colson about twenty rods from said spring, and upon the land of the defendant, and continued said pipe from where it was thus attached through his land to the house of the said defendant, for the purpose of obtaining water from said spring for use at his house ;* and that said pipe remained thus attached to said three-fourths inch pipe until the same was detached therefrom by the defendant in the fall of 1886.

      “ That for the period-of twenty years prior to the defendant detaching his one-half inch pipe from the three-fourths inch pipe of the plaintiff in the fall of 1886, as hereinbefore found, there had been a failure of water through the defendant’s pipe, cran insufficient supply thereof to the defendant’s house, so that the defendant at many times during said years was obliged to obtain water through said defendant’s pipe to his house, sometimes for a period of two weeks, sometimes four weeks and sometimes six weeks, according to the dryness of the season; that from 1876 until the defendant detached his pipe from the pipe of-the plaintiff in 1886r when it was dry there was a failure of water through the defendant’s said" pipe; that in 1876, in 1879 and in 1882 the water entirely failed to run through the defendant’s said pipe for a», period of six weeks, or thereabouts, to the defendant’s house, and the defendant by reason thereof was obliged to obtain water from: his well.
    “ That at the time the defendant executed said instrument, dated August 20, 1852, granting to said Colson the privilege therein-mentioned to water from the spring therein described, he, the defendant, was the owner of another spring, located about thirteen feet southeast from the spring in question ; that such spring has-ever since existed there; that the water came up out of the ground at said spring, and flowed off from the spring down the-bill into the ravine below, uniting in the ravine with the water from the spring in question. That said spring is designated in the testimony as spring ‘ C.’ • That since the execution of said instrument by the defendant to said Colson, there has been, and
      at the time of the execution thereof there was another spring owned by the defendant located on his land about thirty-three feet southwest from the spring in question and designated in the testimony as spring B.’ That in the fall of 1886, by reason of the repeated either entire failure of water through the defendant’s pipe, or an insufficient supply thereof through said pipe thus attached to the plaintiff’s said pipe, the defendant for the purpose of obtaining a sufficient supply of water to his house for household purposes and for the use of his stock, dug out his springs designated as springs ‘ C ’ and ‘ B ’; sank a barrel into spring ‘ C ’ and a hollow log into spring B ’, detached his one-half inch pipe from the said pipe of the plaintiff and connected a pipe with the pipe thus detached, continuing the same from the pipe thus detached to spring  C ’, and inserted such pipe into that spring.
    “ That he inserted a pipe at the same time into his spring “ B ” and connected that spring by an underground pipe with spring <C.’

      “ That the said defendant at once after thus utilizing his said springs  0 ’ and ‘ B ’ as hereinbefore found, obtained an abundant supply of water from these two springs through his pipe to his house; and which abundant supply continued until the plaintiff, in August, 1888, dug down the spring described in the instrument to Colson, when there was an entire failure- of supply of water from the defendant’s said springs to his house for several days; and that the supply of water therefrom continued to fail until late in the fall of said year, 1888; and that the failure of water from defendant’s said springs through his pipe to his house was caused by the plaintiff digging down the spring described in the instrument to Colson, as hereinafter found.
    “ That upon the west side of the spring mentioned in defendant’s said instrument to Colson there was at the time the same was executed, and still is, a solid rock which comes up to the surface of the ground; that fifteen inches below the top of that rock, there was and still is an opening in the rock about the width of the box which has been inserted in the spring by Colson; that through this opening the water flowed, and that this aperture in the rock was the inlet to said spring, and that the source of said spring then was and still is the water which came out from under this rook fifteen inches below its top. That the box which was placed in said spring by Colson in 1852, and which box, or a similar one, remained there until taken out by the defendant in 1884, as hereinafter found, was two inches less in depth upon the west side against the. rock than upon the other three sides; that the two inches upon the west side, or against the rook, was left off at the bottom of the rock in order to let the water come in from the. inlet into the box, and that the box on this side came down just to the top of the opening in the rock and to said inlet to the spring; that said box was of sufficient size and depth, and answered the purpose of securing and inclosing the water which flowed from said spring through said aperture in the rock.
    That the said spring is composed of the water which flowed out from the hillside from the said aperture in said rock ; and that the water thus flowing from said opening in the rock constituted said spring.
    “ That in 1884 the said plaintiff unlawfully took out the box then in said spring, and without the consent of the defendant, dug* down eight inches below the bottom of the box thus taken out by him ; digging a space of sufficient dimensions to insert a box two feet four and a half inches deep, two feet and ten inches long and two feet ten inches wide; and then and there unlawfully, and without the consent of the plaintiff, inserted a box of those dimensions in the place of the box thus taken out by him.
    “ That in August,1888, the said plaintiff unlawfully and without-the consent of the defendant, dug down at said spring fifteen inches below where he had dug in 1884, and until he struck a. solid rock ; that he inserted at the bottom of this excavation the box that he had inserted in the excavation of 1884, and on the top of it put another box; that he then dug the ditch from the spring for several rods below it about one foot deeper than it had heretofore been, and attached his pipe into the box about a foot-lower than it theretofore had been, and below the said spring; that the defendant, at the time the plaintiff was doing said acts, forbade the plaintiff doing the same; that the plaintiff while doing said acts 'asserted that he had the right to dig down fifty feet if he chose' so to do. That all of said acts of the said plaintiff, hereinbefore stated in this finding, were unlawful acts on his part. That on the 15th day of January, 1889, the said defendant lawfully filled up the excavations made by the plaintiff at the said spring and below it in 1884 and 1888, restored the condition of said spring to the condition it was in at the time the plaintiff interfered with it in 1884, placed in said spring a box of" the same dimensions and in the same manner that the box was in which was taken out by the plaintiff in 1884, and on the 18th..day of January thereafter, made to the plaintiff the following statement:
    ‘ Mr. Furner: I have filled up and restored the spring to the condition it was in when I conveyed to Mr. Colson the right to attach a pipe to the spring, and take the water from it through such pipe,, and to the same condition the spring was in when you purchased, the right of Colson. I deny your right to dig down this spring as you did, and attach your pipe to it where you did after you. had thus dug it down ; that act of yours interfered with and cutoff the water from another spring of' mine near this one. I have made a hole in the box which I have put into the spring as I have restored it; so that all you have to do is to attach your pipe to the spring as it now is, to obtain the water you are entitled to from this spring, and I admit your right to the water from this-spring to the extent that such right was granted by my conveyance to Colson ; and I claim I am in no manner interfering in< what I have done in restoring this spring with any right which, you have as purchaser to attach a pipe to the spring and use the water therefrom which you are entitled to. Dated January 17,, 1889.’
    “ That on the 19th day of January, 1889, the plaintiff unlawfully dug down at this spring and below the same to the same depth that he had dug in August, 1888, and replaced in the excavation thus made by him the boxes that he had placed in the excavation made in August, 1888, and replaced the pipe as he had then placed it.
    “ That on the 8th day of April, 1889, the defendant lawfully-filled up the excavation thus made by the plaintiff, precisely as-he had done on the 15th day of January, 1889, and placed therein the same box that he had placed therein at that time and in the same manner; and again, on or about the 18th day of April, 1889, made the same statement to the plaintiff that he had made to him-on the 18th day of January, 1889, informing him that he had again filled up and restored said spring as he had done the preceding January.
    “That in the night time, April 17, 1889, the said plaintiff again unlawfully dug down at the spring and below the same to the same depth that he had theretofore dug, as hereinbefore found, and replaced in the excavation thus made by him the boxes that • he had placed in the excavations made by him as hereinbefore found, and replaced the pipe as he had theretofore replaced it apabove found; that after thus doing, and early in the morning of the same day, the plaintiff commenced this action against the defendant by the service of a summons and complaint therein and an injunction order restraining the defendant, as set forth in said order, from interfering, as alleged by the plaintiff, with said spring; having obtained said injunction orcler the day preceding.
    “ That the acts of the plaintiff in digging down below the spring in question in August, 1888, January, 1889, and April, 1889, had the effect of cutting off to an extent the supply of water from the defendant’s spring C,’ which he was then using, and to the extent of causing an injury to the defendant by depriving him of the supply of water from his spring 0 ’ which he would otherwise have had from said spring; and that the effect thereof was to such an extent that after the plaintiff had made the excavation hereinbefore found in August, 1888, and on the same day he made the same, the water from defendant’s spring 0 ' entirely failed to run through his pipe for several days, and thereafter continued to thus fail until quite late in the fall of that year, to the extent that the defendant did not have a sufficient supply of water through said pipe; that until the plaintiff had made said excavation the defendant had invariably had a sufficient supply of water to his house through his pipe from said spring  0.’ That none of the acts of the defendant hereinbefore found to have been done by him were malicious acts, but were acts done by him in good faith and for the sole purpose of enabling him to obtain a needful supply of water from his two springs wherefrom he was obtaining the same as hereinbefore found” And the trial judge refused upon the plaintiff’s request to find the following facts : “ That the digging out of spring * 0 ’ by the defendant directly diverted the water from the plaintiff’s spring and that the plaintiff was thereby deprived of water from his spring for considerable periods of time, and that the direct result of the defendant’s act in digging out spring ‘ C ’ and connecting his pipe y?ith the barrel placed therein and drawing water therefrom was to drain the plaintiff’s spring and deprive him of the water thereof and he found the following conclusions of law: “ That all of the acts of the defendant found to have been done by him respecting his two springs in 1886 were lawful acts, and that he had the legal right to avail himself of the water from those two springs in the manner he ■did, and that in thus doing, he did not unlawfully interfere with .any rights owned or acquired by the plaintiff by virtue of the instrument executed by the defendant to William Colson, August 20, 1852.
    “ That the acts of the plaintiff in digging down at this spring in 1884, in August, 1888, on the 19th day of January, 1889, and on the 17th day of April, 1889, as found in the eleventh, thirteenth •and fifteenth findings of fact, were all of them unlawful acts.
    “ That the acts of the defendant in filling up the excavations made by said plaintiff at said spring and below it in 1884, 1888 and January 19, 1889, and placing in said spring on the 15th of January, 1889, and on the 8th day of April, 1889, a box of the same dimensions, and in the same manner that the box was in which was taken out by the plaintiff in 1884 ; and being the acts •of the defendant stated in the twelfth and fourteenth proposed findings of facts, Were all of them lawful acts.
    “ That the defendant is entitled to a judgment in this action dismissing the complaint therein, and dissolving the injunction therein, and, that the plaintiff be adjudged to fill up the excavations made by him at said sping on the 17th day of April, 1889, and to replace in said spring a box similar to the one taken therefrom by him at the time he made said excavation and to restore said spring to the same condition that it was in at the time he ■commenced making the said excavation on the 17th day of April, 1889.”
    Upon these findings the defendant entered judgment against the plaintiff. Upon appeal to the general term by the plaintiff the judgment was reversed and a new trial was granted, the order of reversal not specifying that the judgment was reversed upon the facts. The defendant then appealed to this court.

      D. W. Cameron, for app’lt; John E. Smith, for resp’t.

       Reversing 36 St. Rep., 907.

   Earl, Ch. J.

As the order of reversal in this case does not appear to have been based upon any question of fact, we must assume that the judgment was reversed for some supposed error of law. Code, § 1338. No complaint is made of the rulings of the trial judge upon the trial, and therefore if the findings of facts justify the conclusions of law the judgment of the special term •should stand unless some material finding of fact is without any evidence to sustain it, or unless the trial judge refused upon request of the plaintiff to find some material fact sustained by uncontradicted evidence.

It is clear that the parties to the original agreement about the spring were dealing with some particular spring, and that the defendant did not intend absolutely to grant water which would fill a flow through a one-half inch pipe, and thus make his whole-farm servient for that quantity of water. The language of the; agreement clearly shows this. The particular spring is referred to and located. The evidence shows very clearly where the spring-is, and what its water was and where it came from. The water did not bubble up out of the ground, but flowed laterally out o£ a crevice in a rock, which was on the westerly side of the place-dug out for the spring, about fifteen inches below the surface of the ground. There was solid rock at the bottom of the spring, and water could not come up through that, and could come into the excavation made by the plaintiff only laterally. The finding of the trial judge, supported at least by some evidence, is- “ that the said spring is composed of the water which flowed out. from the hill sides from the said aperture in said rock, and that, the water thus flowing from the opening in the rock constituted said spring; ” and there is no evidence that at the date of the-, agreement the spring was composed of any water but that coming-from the crevice in the rock. What is a spring ? Properly it is the water issuing by natural forces out of the earth at a particular place. It is not a mere place or hole in the ground, nor is it all the water that can be gathered or caused to flow at a particular place. A well is not necessarily a spring, nor is water which by the expenditure of labor can be gathered into a reservoir. The plaintiff had no right to dig into the earth, and thus get water, from other springs in which he had no right, although he took such water to the place where he had the right to get his water His water came from the crevice in the rock, where it had flowed for ages, and where it would continue to flow but for some change in the surrounding circumstances ; change incident to some disturbance of the earth’s surface, or the demolition of forest.

At the time of the agreement about the spring in 1852 there was another spring called spring “0,” upon defendant’s farm about thirteen feet distant from the former spring. That sprint, owned by the defendant, he had the right to utilize, and the plaintiff had no right to take or draw the water therefrom. The evidence shows, and the finding is, that in 1852 and ever afterward the water issued out of the earth at that place and flowed away upon the surface of the ground. There is no conclusive or uncontradicted evidence that in digging out the earth for that spring the defendant diverted or interfered with what, for brevity, we may call plaintiff’s spring. On the contrary, the defendant testified: “ The putting a barrel into that spring ( “ 0 ” ) did not have anything to do with the Furner spring. It did not lessen the water in the pipe at that spring. * * * The effect of Mr. Furner’s lowering his spring was to cut off the water from my spring. The_ effect of digging my spring was not to draw the water from his spring into it. The water that comes into his spring-is right out from under a rock. It is a kind of surface spring in his spring, and the vein of water that feeds my spring runs lower in the ground, boils right up from the bottom of the spring, and where he dug down he struck that vein and cut it off and then put in his box and packed clay around it and held it there.”' There were some circumstances which confirmed this evidence, and the trial judge had the right to believe it.

There is a reasonable and probable explanation for the diminished quantity of water in plaintiff’s spring in the gradual •denudation of the forests surrounding the spring, and thus let-ding in the rays of the sun to dissipate the sources of the supply.

The principles of law applicable to this case are not obscure ■or difficult. The defendant had no right to interfere with the plaintiff’s spring to his detriment, no right to deprive him of the water granted in the agreement of 1852, and this upon the facts found and the evidence appearing in the case he did not do. The plaintiff had no right to dig down into the earth and -drain the water from spring “0.” He had no right to dig lower than was necessary to conveniently take the water from his ■spring, to wit: the water flowing from the crevice in the rock. In digging lower in the defendant’s soil he became a trespasser, -and the defendant had the. right to fill in the excavation thus made.

The facts not only are against the plaintiff, but the authorities cited by his learned counsel do not aid him. He seems to place much reliance on these. The Johnstown Cheese Manufacturing Co. v. Veghte, 69 N. Y., 16, and Huntington v. Asher, 96 id., 604. Jn the former case the defendant conveyed by warranty deed to plaintiff .certain premises upon which was situated a cheese factory, “ during the time it shall be used * * * for manufacturing cheese therein.” Also, the use of the water for the purpose of such manufacture, as then conducted from springs on ■other lands of defendant not conveyed, with the right to enter thereon to construct and repair 'the pipes for conducting the water, -and the right in case the water from the springs should prove insufficient for the business at the factory to go upon such lands to dig other springs and conduct other water courses to the factory. ¡Defendant reserved the right to use water in a specified way and ior a specified purpose, but it was provided that he should not rise it so as to unnecessarily interfere with the use of the water at the factory. After the conveyance, defendant unnecessarily made •excavations and constructions upon his lands, which had the •effect to materially diminish the supply of water from the spring and to interrupt the business of the factory, which acts were persisted in after their effect had become apparent. The action was to recover damages and to restrain defendant from diverting the water, and it was held that defendant’s acts were in derogation of ¡his grant; that lie was precluded thereby from doing any act on his own land which should divert or diminish the supply of water flowing at the time of the grant from the spring to the factory, and that it was immaterial whether the supply was diminished by interference with known water courses or by excavations which withdrew water from the spring by percolation or prevented its reaching them. There the whole ' of the land retained by the grantor was made servient to the grantee’s water supply. Here a right in a particular spring only was granted. There the acts of the grantor were in derogation of the grant, interfered with the very right granted. Here, the grantor disclaims any right or intent to interfere with the right granted, and the findings and the evidence show that he did not interfere with it, and that his acts were not in derogation of his grant. The two cases are radically different.

In the case of Huntington v. Asher, the familiar principle of law that the grant of an easement carries with it whatever is essential to its enjoyment was applied to the facts of that case. Here the plaintiff had the right to enter upon the defendant’s land and repair his pipe, and to dig out and keep in repair his spring so that lie could conveniently and usefully take the water therefrom. But he had no right to dig more than was necessary for that purpose, and certainly not for the purpose of taking water not belonging to the spring granted.

An authority more nearly touching this case is Bliss v. Greeley, 45 N. Y., 671, where it was held that a limited and specific grant of the right to dig and stone up a certain spring and conduct the water therefrom through the grantor’s land by a specified pipe to the grantee’s house, with covenants of warranty, did not render the entire premises servient to the easement; and that the grantor might in such a case lawfully sink another spring but twenty-seven feet distant, although the effect was to render the first one useless.

Further discussion is not necessary. The facts, as we are bound to take them, are adverse to the plaintiff, and the law applied to those facts justified the judgment rendered at the special term.

The order of the general term should, therefore, be reversed and the judgment of the special term affirmed, with costs.

All concur, except Maynard, J., not voting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Jerome B. Parmenter, Resp’t, v. The State, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Contract—Bab.
    Plaintiff contracted with the secretary of state and comptroller to do certain printing for §47,500 for each of two legislative sessions. During the first session he did extra printing which he claimed was to be paid for at special rates bj? a provision of the contract, and the comptroller refusing to pay, plaintiff, in proceedings by mandamus, obtained judgment directing that officer to draw his warrant for the payment of the work claimed, and the judgment was paid and satisfied. Meld. that the collection of the money by legal proceedings for the first session’s work did not constitute a bar to the collection of the money in payment for that which was done at and for the second session.

      Z. Same—State printing—Extra session of the legislature.
    The contract for state pointing after an agreement to do the printing of each legislative session for a sum in gross, contained a proviso that in the event of an extra session of the legislature the said work shall be done and materials furnished for the prices stated in detail in the alternative bid annexed; and the same prices shall also be paid for any work and materials

      ordered not for the use of the legislature. Held, that the gross sum applied to printing for the use of the legislature, and that prices mentioned in the alternative apply to all work ordered at regular or extra sessions which, was not for the use of the legislature.
    8. Same—Limitation.
    The claimant from the time of the accruing of his cause of action in> November, 1879, to May, 1883, could have filed his claim with the state-board of audit. The board of claims in 1883 was given jurisdiction to-hear all claims which should accrue within two years prior to the time when such claim was filed, and the effect of the change was to leave claimant a period of but seven weeks and five days in which to file his claim. Held, that a statute which cuts down the right to commence an action from, a period without limitation to a period of seven weeks and five days from the passage of the act does not give a reasonable time to a plaintiff to commenee his action after the enactment of the statute, and the board of claims was authorized to hear and decide upon the claim of the respondent.
    4. Same—Interest.
    Plaintiff’s claim was one which in its nature would bear interest from the time when it accrued, and it was proper for the board to award it.
    Appeal from award of board of claims.

      Chas. F. Tahor, for app’lt; R. A. Parmenter, for resp’t.
   Peckham, J.

The respondent entered into a contract with the secretary of state and comptroller to do certain printing of a public nature for the sum of $47,500 for each of two legislative sessions. During the first session he did certain printing which he claimed did not come within the description of that for which he was to receive an annual compensation in gross, but that it was provided to be paid for at special rates by another provision of the contract. The claim he made for payment upon such a basis was disputed by the officers of the state. For the purpose of compelling payment of his claim the respondent commenced proceedings by mandamus against the late Comptroller Olcott, and the result thereof was the procurement and entry of a judgment against the comptroller, directing him to draw his warrant for the payment of the work as claimed by the respondent. The judgment was subsequently paid and satisfied of record.

The work for which the respondent claims compensation herein-is of the same nature as that for which he was awarded the mandamus and was performed subsequent to the time when the proceeding to procure the writ was inaugurated. It was necessary in the mandamus proceeding, before the writ could be awarded,, to give such a construction to the contract in question as would exclude the claim of the respondent from that class of work which he was bound to perform for the gross sum mentioned. That construction was given the contract in the mandamus proceeding and a judgment in favor of the respondent followed thereon. He now claims that this judgment is res adjudícala and* estops the state from contending for any other construction of the contract than the one already given in the mandamus proceeding. The comptroller was proceeded against in that matter as an officer who was neglecting to perform an official duty, and if it. were* true that he was guilty of that neglect, he was not in any sense representing the state therein. The proceeding was in the name of the People upon the relation of the respondent against a public officer, while this proceeding is permitted by legislative authority and is one by the respondent as an individual and against the state; in its corporate capacity.

To hold the state estopped by the conclusive character of a judgment against one of its officers in a case like this would be to create an estoppel against the state by a suit or proceeding to which it-was not a party and where it had not granted leave to any one- to-sue or implead it except by a procedure not taken in the mandamus matter. We are not impressed with the validity of the claim of the respondent upon this question, but in the view we take of. the contract that question becomes unimportant and we do not,, therefore, decide it.

We are of the opinion that the contract has been properly con.strued by the board of claims in this proceeding. It may be that, the language used in the first part of the contract is of such, wide scope as to include all kinds of printing for which the state has ever been in the habit of paying. This language is capable of such a-, construction as to place it in the power of the legislature to bankrupt the person who had made the contract, if all the printing which might be called for under it were to be included in the sum mentioned.

After the agreement to do the printing of each legislative session, for a sum in gross, and after the details regarding it were provided for generally in the contract, this further proviso was added: “ It is further understood'and agreed that in the event of an extra session of the legislature the said work shall be done and materials furnished for the prices stated in detail in the alternative bid annexed and the same prices shall also he paid for any work and materials ordered, not for the use of the legislatureIt is claimed on the part of the respondent that the words above italicised apply, as is plainly stated, to “ any work and materials ordered, not for the use of the-legislature,” while the counsel for the state contends that those words are to be limited as applying to work and materials ordered at the extra session, and not for the use of the legislature.

Extra sessions of the legislature are comparatively of rare occurence, still, when they are convened, it is of course necessary that", printing should be done for them. The parties evidently did not. contemplate that the printing at an extra session should be included in the gross sum of $47,500, and hence it was provided’ that such printing should be done for the prices stated in detail in the alternative bid annexed to the contract. Then follows the-provision by which any work and materials ordered, not for {house of the legislature, are to be paid for at the prices stated in the-alternative bid. The words actually used are broad enough to-cover printing ordered, not for the use of the legislature, at a regular as well as at an extra session. It seems to us that the hroader. construction is not only called for by the language actually employed, but that the circumstances themselves point, to such construction as the natural and proper one.

By the use of this language some limitation is put upon the power of the legislature to order printing under the contract and to be paid for by payment of the gross sum mentioned. To restrict the language to printing at an extra session is to do away with almost all its usefulness, because, as has been stated, and as is well known to all, extra sessions are of quite rare occurrence, and the power to order printing not for the use of the legislature could be exercised at each regular session, to the possible financial destruction of the public printer, unless there were some such safeguard interposed as is to be found in this limitation if it apply to regular as well as extra sessions. It is said that in the original contract there is a comma instead of a semicolon after the word annexed ” in the above quotation from the contract relating to the extra session and the prices to be paid for printing, so that the language and punctuation would be that the “ work shall be done and materials furnished for the prices stated in detail in the •alternative bid annexed, and the same prices shall also be paid for •any work and materials ordered not for the use of the legislature.” We think the presence or absence of the semicolon or the comma is not of the slightest consequence upon this question of construction. The language used and. the surrounding circumstances, both, as we have said, concur in making it entirely plain that the ■gross sum applies to printing for the use of the legislature, and .that prices mentioned in the alternative bid apply to all work ordered at regular or extra sessions which was not for the use of the legislature.

It is true that under the terms- of the contract as it stands the contractor would be bound to do “ extra printing” which might be ordered for the use of the legislature by an act, joint rule or concurrent resolution, which extra printing would be included in the gross sum provided to be paid the contractor. This power might be so used as to perhaps financially ruin the contractor.

The fact that such power existed in regard to one class of printing where it was difficult to limit the amount, might and naturally would induce caution in placing still more power in the hands of a reckless or thoughtless majority. What was generally required for the use of the legislature in the way of printing was also well known, and the contractor might reasonably rely on the honor and the sense of fairness of the legislature not to order extra printing to a greater amount than customary or usual. But for printing not for the use of the legislature there naturally might not be such a regular and well established custom, because the things to be printed might vary so in each year that no past year ■could furnish any reliable guide to the requirements of any future year. Hence the importance of providing for a separate compensation and upon a different plan for printing not for the use of the legislature, from that which was provided for under the gross sum. These considerations strengthen the view we take as to the construction of the contract under discussion.

It is, however, urged upon the part of the state that if the construction of the contract as contended for by the respondent be -correct, yet the claim if between citizens would be barred by the statute of limitations, and hence the board of claims had no legal power to make the award it did.

In 1874 an amendment to the seventh article of the constitution was adopted by the people. It is § 14 of that article. The material portion of the amendment reads as follows: “ Neither the legislature, canal board, canal appraisers, nor any person or persons acting in behalf of the state, shall audit, allow or pay any claim which, as between citizens of the state, would be barred by lapse of time.”

It -is not entirely clear what is the meaning of this phrase, “ which, as between citizens of the state, would be barred by lapse of time.” As was said by Ruger, Ch. J., in O’Hara v. The State, 112 N. Y., 146; 20 St. Rep., 647, there is little analogy between the position of citizens with regard to the enforcement of their legal rights among themselves, and the position of a citizen with regard to the enforcement of his claim against the state. Between citizens the courts are at all times open and each can at any time resort to some legal forum for the enforcement or protection of his claim or right as against any other citizen.

It is different-in regard to the state, unless with its consent it cannot be sued, and in giving consent it may attach such conditions to the right to sue as may to it seem proper. The counsel for the state concedes what would also seem quite plain, that if there never had been any tribunal created by the state before which the claimant could have pressed his claim, the statute of limitations would not have commenced to run, because it would have been absurd to hold there was a statute of limitations within which a claim must be sued when there had been neither a person to "be sued nor any court or tribunal before which the state could be summoned to answer the suit. Sanford v. Sanford, 62 N. Y., 553. It has been urged that under this amendment the court should look at the claim in the same light as if it were one in favor of one citizen against another, and if in the light of all the legislation regarding it the claim would, as between such citizens, be outlawed, then it must be so regarded when presented against the state, and the constitutional provision preventing its audit or allowance must have full force and effect.

It has also been urged that the correct view is to regard the general statutes of limitation which actually existed as between citizens during the running of the time since the cause of action accrued, and if by those statutes the claim would not be outlawed must be regarded as valid so far as that question is concerned irrespective of any special legislation which might affect the particular claim: A proper presentation of thqsubject requires an examination of the statutes which have been passed as to the enforcement of claims against the state. By chapter 444 of the Laws-of 1876, the state board of audit was created, whose duty it was to hear, without any limitation whatever as to the time when they accrued, all private claims and accounts against the state, with certain exceptions not here material.

The claimant from the time of the accruing of his cause of action in November, 1879, to May 30, 1883, a period of three years .•and six months, could have filed his claim with that board. This right to file his claim with the board of audit remained until the .board went out of existence on the last above named day by virtue of the passage of the act which created in its place the board •of claims. This latter board was created by chap. 205 of the' Laws of 1888, and among other things jurisdiction was given the board to hear all claims against the state which should accrue within two years prior to the time when such claim was filed. As the claim of the respondent accrued in 1879, more than two years prior to any possible filing with the board of claims, this act gave no power to file the claim with that board and only left to the claimant the time which elapsed between the passage of the act, April 7, 1883, and the 31st of May, 1883, in which to file it with the state board of audit and to thus obtain the advantage of -the transfer to the board of claims of all claims pending before -the board of audit on the 3'lst of May, 1883, which the act provided for.

After the passage of this act of 1883, -the only opportunity left to the claimant by which he could obtain any hearing from any ■tribunal was to file his claim with the state board of audit before it wás abolished, and thus either obtain a hearing by that board •or a transfer of the claim to the board of claims. This right to file his claim before the board of audit was thus cut down to a period of seven weeks and five days from the passage of the act ■of 1883, although before its passage the right was not limited by .any period of time. If the claim were not filed with the state board of audit before it was abolished, then from- that period up to March 25, 1884 (the time when the statute amending the act ■of. 1883 was passed), there was no forum to which the claimant ■could resort for the purpose of impleáding the state and obtain■ing a hearing upon his claim. And only three years and five months had elapsed from the time the cause of action accrued up to the time when by statute the right to file his claim before any tribunal whatever was at once limited to a period of less than «eight weeks from the passage of such statute. The act passed March 25, 1884 (chap.. 60), amended the prior act ol 1883 (chap. 205), and provided that the board of claims might have jurisdictian of such claims as were formerly cognizable by the state board •of audit, provided such claims should be filed on or before July 1, 1884. This act limited the time in which the respondent could file his claim to a few days over three months, and if not filed within that time the effect of a failure was of course the denial of any relief thereafter. From the time when the claim of the re■spondent accrued in.".November, 1879, up to July 1,"1884, a iod of but four years-and eight months had elapsed, and by the general laws of the state as between citizens no statute of limitation then barred the prosecution of such claim.

The claimant in fact did not file his claim either with the state "board of audit, nor did he avail himself of the privilege granted by the act of 1884, by filing his claim with the board of claims prior to July 1, or at all. The reason is given, but it is immaterial upon this question. From July 1, 1884, to June 9, 1888,. there was no tribunal to which the claimant could present his claim against the state, and demand or receive a hearing thereon. In June of the last named year the legislature passed the act which reads as follows:

“ Sec. 1. The board of claims is hereby authorized to hear, audit and determine the claim or claims of Jerome B. Parmenter against the state for extra work, -materials and printing done, furnished and performed by him as the legislative printer, under his contract for legislative printing, made, executed and entered into by the then secretary of state and the comptroller, on behalf of the state, and by the said Jerome B. Parmenter on his own behalf, bearing date the 8th day of February, 1876, and running for the term of two years from and after the date of said contract, and to make an award therein.

Sec. 2. This act shall take effect immediately.”

If this enactment were a valid exercise of legislative power, then the board had jurisdiction to determine the question as to the validity of the respondent’s claim.

The counsel for the state, however, assails it upon the ground that it in effect permits the board of claims to revive and audit a claim which, as between citizens of the state, would be barred by lapse of time, and hence it is urged that the act is in violation of the provision of the constitution already cited. Although six years had not elapsed from the time when claimant’s cause of action accrued up to July 1, 1884, when the right to file his claim under the general law was summarily and finally taken from him, yet it is now urged that the limitation of the right to file his claim is in effect a statute of limitation, and that if it had been enacted relative to the claims of citizens between each other, the legislation would have been valid, although seriously curtailing the period in which actions might otherwise have been commenced. It is further urged that as the legislation would be valid between citizens, the claim against the state became outlawed July 1, 1884, and the legislature had no right in 1888 to directly or indirectly revive, or audit, or allow it

The question which first arises is as to the force of the argument of counsel for the state when he urges that this legislation if enacted regarding claims between citizens, would be a valid exercise of legislative power. He urges that the construction of the language of the constitutional amendment first above stated is the true one, and that the special legislation applicable to a claim against the state must be regarded as having been enacted relative to the general statutes of limitation as between citizens. Statutes which bear only upon the time in which to bring actions have been held to affect only the remedy upon a contract as distinguished from its obligation, provided a reasonable time were left in which a party might commence bis action after the passage of the statute. Reid v. Supervisors of Albany, 128 N. Y., 364, 373 ; 40 St. Rep., 90; People v. Turner, 117 N. Y., 240; 27 St. Rep., 158; Terry v. Anderson, 95 U. S., 628, at 632, and cases cited.

Viewing the act of 1883 at first separately from that < 1884, .and we see the effect is to leave claimant a period of but seven weeks and five days in which to file his claim, or in other words, to commence his action against the state, although before its passage there was no limitation whatever in point of time within which this act could be performed. The act in this view, it is claimed, should be regarded as affecting the legal rights of citizens as between themselves. Would a statute which cut down the right to commence an action from a period without limitation to R period of seven weeks and five days from the passage of th& act give a reasonable timé to a plaintiff in which to commence his action after the enactment of the statute ?

The question of what is a reasonable time must be answered in view of all the facts surrounding the passage of the act and of which a court would take judicial notice. The reasonable time is not to be decided with reference to the bare fact as to whether sufficient time were allowed for a swift individual to make out the legal papers and, setting out at once, find and serve upon the defendant the process necessary to commence the action.

It is to be noted that in the case of the alteration of a statute as to limitations a claimant must be held to have known not only the law existing at the time of the creation of the liability, but he must be held to have become acquainted with the fact of the passage of a statute which alters that law to his cost. Within what time shall such knowledge be imputed to him and how long a time thereafter would constitute a reasonable time for him to act in ? Immediate knowledge perhaps ought not to be imputed to him upon such a question. Although knowledge of the law is frequently and for the purposes of justice to be imputed to an individual, yet where the case is one in which to decide what is a reasonable time to leave for the commencement of an action upon a cause thereof already accrued, but under the law as altered, the question as to when knowledge of the passage of the act effecting the alteration should be imputed to the citizen is one rf the factors in deciding the general question. This question of reasonable time cannot of course form the subject of an inquiry in the case of each individual to be affected by the alteration of the law. It must be decided by the court, as a question of law and upon a general consideration of all facts in regard to which courts will take judicial notice. Before answering the question in this case it will be well to examine what has been said by other courts upon the matter, even though the express point has not been actually decided in all cases. It will give some idea of the views other judgep have taken of the subject. In Hawkins v. Barney's Lessee, 5 Peters, 457, the act reduced the limitation period from twenty years under the original Virginia statute, to seven years under the statute of Kentucky, and it was held a valid act. The contention in this case was that Kentucky was bound to continue the same law of limitations so far as regarded the lands which were once under the jurisdiction of Virginia as obtained in the latter state at the time of the compact between her and Kentucky. This contention was not upheld. The case, although it has been heretofore cited as authority on this point, has, as it seems to me, very little application.

In Jackson v. Lamphire, 3 Pet., 280, the act of the legislature of New York, chap. 51 of the Laws of 1797, passed March 24 of that year, was claimed to be void as impairing the obligation of contracts. It rendered a certain award made by commissioners-to quiet the titles to land in Onondaga county a bar to any action not commenced within three years after the award. The act was held valid in any view, considered as an act of limitation as to-existing rights or as a recording act.

In Sohn v. Waterson, 17 Wall., 596, the statute gave, as construed by the court, two years from its date in which to commence action upon existing causes of action at the time of its passage,, and it was held sufficient.

In Call v. Hagger, 8 Mass., 423, an act limiting the commencement of suit to a period of one year subsequent to the passage thereof in cases'where a cause of action had already accrued, was-thought not to be unreasonable by the court, but the statute was nevertheless construed as inapplicable to a cause of action which had accrued before its passage.

In Krone v. Krone, 37 Mich., 308, the statute limited the time as to existing causes to one year from its passage, and it was held reasonable.

In Berry v. Ransdall, 4 Met. (Ky.), 292, it was held that a statute limiting the time to commence action on existing causes of action to thirty days was unreasonable and invalid.

In Lewis v. Harbin, 5 B. Mon. (Ky.), 564, 571, the court, per Ewing, Oh. J., said that if a statute should limit the right to commence an action upon a cause thereof existing at the time of its-passage to five months thereafter, “ a time scarcely sufficient to enable even lawyers of the community to learn that such a law had passed, such an enactment would have shocked the moral sense of mankind as unjust and iniquitous.”

. Again, in Pearce's Heirs v. Patton, 7 B. Monroe (Ky.), 162,168, the same court said that “ six months is not the time prescribed for the suit, but seven years, and if it was, we should hardly regard it as a reasonable time to be constitutionally available to bar the remedy as a mere act of limitation.”

In Pereles v. City of Watertown, 6 Biss., 79, Hopkins, J., who was a United States judge for the western district of Wisconsin, held that a limitation of one year from the passage of the act as applied to existing municipal bonds issued for negotiation in a for- , eign market, was clearly unreasonable and unconstitutional. The learned judge conceded that so far as the statute might be applicable to causes of action accruing after the passage of the statute, the legislature had absolute power to fix the time within which an action might be brought, as in such a case, he said, the parties may be supposed to have contracted with reference to it, but a very different rule was held to apply in regard to statutes of limitation intended to affect existing causes of action, and the learned author, Cooley on Constitutional Lim., 5th ed., 451, says statutes of this kind must allow a reasonable time, and if the period is manifestly too short, the courts will hold the statute invalid, as in such case constituting a denial of justice.

In our own court, the case of Rexford v. Knight was decided in 1854 and reported in 11 N. Y., 308. The limitation of one year, in the case of a claimant whose land had already been appropriated by the state, in which to exhibit his claim to the canal, appraisers for damages was held sufficient. Judge •Johnson, in the course of his opinion, said the court, in order to pronounce the law unconstitutional, must see that the limitation is so short that the unmistakable purpose and effect of the law is to cut off the right of the party and not merely to limit the time in which he may begin to enforce it.

This language, it must be remembered, is used with relation to a. statute which in fact gave a full year from the time of its passage in which to exhibit the claim.

A far different case from the statute under consideration here. The court will take judicial notice of the fact that there was in regard to .the statutes under consideration in this case no grave or public exigency in existence which appealed to the legislature in behalf of the whole people and for the public interests for the •enactment of a statute curtailing to the shortest possible legal time the right to commence actions which up to the passage of the act •of 1883 was unlimited.

The case of Terry v. Anderson, 95 U. S., supra, involved such a public exigency, and the time allowed in that case was from March 16, 1869, to January 1, 1870, almost ten months. In that ease Wait, Ch. J., in his opinion, admitted that the time was short, but he said the business interests of the active people of the state had been overwhelmed by a calamity common to all, and society demanded that extraordinary efforts should be' made to get rid of old embarrassments and to permit a reorganization upon the basis of the new order of things. Hence it was held in that •case there had not been such an abuse of legislative power as to justify judicial interference. It was the case of legislation in one •of the southern states after the war, and it was enacted for the purposes above mentioned. Nothing of the kind exists here.

The cases cited are, I think, sufficient to enable us to come to .an intelligent opinion regarding legislation of this character as between citizens.

If the curtailment of the right to -file a claim is to be regarded as the same in effect as the shortening of a statute of limitation, I think there can be no doubt that in such a case as this .an act which leaves a period of less than eight weeks after its passage in which to commence an action, which before was unlimited as to •time, would not leave a reasonable time in which to learn of the passage of the statute, elect what course to pursue, and having made the election, to carry out the same.

The subsequent passage of the act of 1884, by which a few days over three months after its passage was permitted to a claimant in which to file his claim, would not of itself in the case between citizens provide a reasonable time, and it ought not to be so regarded when viewed in connection with the act of 1883. The latter act would not, as I have said, leave a reasonable time as between citizens, and hence one who had not availed himself of its provisions could not be cut off from his rights under the general statute by an act which gave him but three months thereafter in which to file a claim which when it accrued was a right unlimited in time by any statute whatever.

I will assume here that there is no such absolute right to sue the state or to file a claim under any law passed by the legislature that such right may not be cut off by a statute at any time and upon a moment’s notice, and hence when I speak of the time left in which to file a claim and of the rights of the claimant, I do so only upon the assumption that this legislation is to be regarded in the same light for this purpose as if it were the curtailment of the right of a citizen to commence his action against a citizen, and in that case the question would be whether the act left a reasonable time in which to make his election and commence his action. I think these acts do not leave it and hence would be invalid.

If upon the other hand we regard the language of the constitutional provision as meaning that the - general laws limiting the rights of citizens to commence and maintain similar kinds of actions as between themselves are to be referred to for the purpose of determining the question of limitation irrespective of the particular legislation affecting the right to file the particular claim as against the state, the same result is arrived at During the time between the accruing of respondent’s cause of action in November, 1879, and the first day of July, 1884, the law as between citizens gave six years in which to commence an action upon a claim of this kind after the cause thereof had accrued. At the time when the claimant’s right to file his claim was by the existing law finally barred, viz.: July 1, 1884, but four years and eight months had elapsed and hence at that time the bar of the statute in regard to citizens as between each other would not attach for one year and four months. After July 1, 1884, there was no tribunal before which the claimant could be heard, and the statute thus deprived him of a year and four months during which he would as between citizens have had the right to commence and maintain his action.

By the general law applicable to citizens between themselves the cause of action of one who has not had six years in which to commence its prosecution is not outlawed, and hence this claim as between such citizens would not be outlawed.

The time within which by the act of 1884 claims might be filed in the board of claims is merely of statutory authority and could be lengthened by subsequent authority of the same nature. The only constitutional provision is that which forbids the auditing or allowance of any claim which, as between citizens of the state, would be barred by lapse of time. The legislature, therefore, had the right to enlarge the time within which the claim might be filed in any particular case, provided it did not itself audit, or permit any other body to audit, or allow a claim which, as between citizens was already outlawed. Cole v. The State, 102 N. Y., 48, 53 ; 1 St Rep., 354.

The claim of the respondent was not outlawed at the time of the passage of the act of 1888, but from July 1, 1884, up tb the passage of that act there was no tribunal to hear the claim, because the legislature had so enacted. By the passage of the act of 1888 the prohibition as to the filing of the claim with the board of claims was withdrawn, and leave to file it was given. This, as we have seen, the legislature had the power to do, and it exercised it in this case. Cole v. The State, supra.

Our conclusion is that by either construction of the language-of the constitution the act of 1888 was a valid act, and authorized the board of claims to hear and decide upon the claim of the respondent It is unnecessary to here decide which is the true construction.

The right to award interest upon this claim is also attacked by counsel for the state.

We think the board did not overstep its jurisdiction or commit any error in awarding it. The claim was one which in its; nature would bear interest from the time when it accrued, and it was proper for the board to award it

It is also objected that the claim is part of a whole one which could not be split up, and that the first proceedings by mandamus for the payment of the printing done at the first session of the legislature is a bar to the presentation of this claim. The mandamus proceedings were taken before the work under this claim was commenced. They related to the printing clone at the first legislative session under the contract, while this claim relates to that which was done at the second session under the same contract They were so far separate that payment for the work done in the first session could properly be collected before the commencement of the work in the second session, and I do not think that, the collection of the money by legal proceedings for the first session’s work constituted a bar to the collection of the money in payment for that which was done at and for the second session. While this claim is spoken of as a stale one, we think the record shows that it is not of that character. Although no steps were taken towards filing and presenting it to the state board of audit-while that board was in existence, or to the board of claims which succeeded it, until a time subsequent to the passage of the act of 1888, yet it appears the claimant was not in any respects sleeping upon his rights during that time. For most of that period he was-engaged in trying to collect -it by proceedings by mandamus-against the comptroller, and much of the delay in its prosecution was caused by -the non-action of the courts under circumstances which the claimant was powerless to prevent or control.

There is substantially no defense upon the merits under our construction of the meaning of the contract. The work was done as alleged and at prices mentioned and provided for in the contract and the state has had the benefit of'it but has never paid for it.

We have looked at all the other questions raised by the learned counsel for the state, but we think that no error prejudicial to the state has occurred in their decision.

We are therefere of the opinion that the award of the board of ■claims should be affirmed, with costs.

All concur, except .O’Brien and Maynard, JJ., not sitting.


author: Macomber, J.

text:
    In the Matter of the Final Judicial Settlement of Bernard McGorray, Ex’r, App’lt, Guerdon McGorray and Grey W. McGorray, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Executors and administrators—Accounting—Opening decree.
    After the filing of the executor’s accounts, -but before the entry of the decree settling them and directing payment of the balance on hand into the county treasury, certain parties presented a claim to all the personal estate under a bill of sale made by the testator, and thereafter said parties recovered judgment on said claim against the executor. Reid, that the surrogate had power, under § 3481 of the Code, under these circumstances, to open the decree.
    Appeal by Bernard McGorray, the executor of the last will and testament of John A. McGorray, deceased, from an order of the surrogate’s court, Monroe county, made February 17, 1892, denying his motion to open the final decree made by that court in these proceedings.

      James S. Garlock, for app’lt; W. A. Sutherland, for resp’ts, who are the minor children of the deceased.
   Macomber, J.

The appellant, the executor of the last will of John A. McGorray, had, sometime prior to presenting this petition, rendered his account to the surrogate of Monroe county, showing that he had received the sum of $4,947.41, and after deducting expenses, payments, etc., there remained in his hands the sum for distribution, $3,251.92. The surrogate, upon settling the accounts in accordance with the statement made by the executor, directed that the sum in the executor’s hands, less his fees, should be turned into the county treasury for the benefit of the respondents, the minor children of the deceased.

. This payment into- the county treasury was not made by the executor, But shortly after the filing of the accounts, and before the entry of the decree thereon, he was apprised of an outstanding claim by the presentation to him of a bill of sale of all the personal property of the deceased with which he had charged himself in his accounts, and which it was claimed was executed in his lifetime by the deceased to the claimants, Catharine and Mary J. McGorray. An action was in fact begun by Catherine and Mary J. McGorray in the supreme court against this executor for such property before the final accounting was completed. That action resulted, in January, 1892, in a judgment in favor of Catherine and Mary J. McGorray against the executor. Thereupon this petition was filed for a rehearing of the case before the surrogate, and for relief from the decree heretofore entered in this matter.

The learned surrogate, while denying the motion, permitted it to be renewed. Upon what ground this part of the order was made we are unable to say, for there does not seem to have been any defect in the moving-papers or any omissions which might be supplied by additional papers. But this part of the order. shows quite clearly that the surrogate had not, as a matter of discretion, refused to open the decree. The power of the surrogate in the premises, under subd. 6 of § 2481 of the Code of Civ. Pro., is undoubted. By this statute he is empowered to open, vacate or modify a decree of his court, to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical errors, or other sufficient cause. There is an intimation in the brief of the learned counsel for the respondents that' the action in the supreme court was a, collusive one, and that for such reason the motion should have been denied. Such inquiry would, indeed, be proper upon the hearing before the surrogate upon the merits "r and if it is shown that such suit were collusive and fraudulent, it would naturally follow that the application to open the former decree would be denied. But this matter must be determined as-a question of fact from the evidence adduced upon the re-hearing, and not as a mere matter of inference to be drawn by the course of the proceedings animadverted upon by counsel.

On the whole it appears to us that the re-hearing sought for ought to be had and, consequently, that the decree appealed front should be reversed.

Decree appealed from reversed, with costs of this appeal to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    The City of Rochester, Pl’ff, v. William J. Quintard, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Constitutional law—Laws 1893, chap. 358.
    Chapter 358, Laws 1893, authorizing the city of Rochester to issue-, bonds to pay for an additional supply of water, to run not more than fifty years, is not violative of § 11 of art. 8 of the constitution, but is valid.
    Submission of a controversy without action, under § 1279 of the Code of Civil Procedure.

      C. D. Kiehel, for pl’ff; Clark & Sedgwick, for def’t.
   Dwight, P. J.

The only question involved in the controversy is that of the constitutionality of an act of the legislature of this-state, passed April 20,1892, which purports to authorize the city of Rochester to issue bonds to pay for an additional supply of water. Laws of 1892, chap. 358. The maximum amount of the bonds to be issued was fixed by the act at $1,750,000 and the-maximum period for which they should run at fifty years.

Pursuant to the provisions of this act bonds were issued to the-amount of $1,000,000, par value, which, by their terms, were to-become due in fifty years, and were redeemable at any time after* twenty years from their date.

At a sale, under the provisions of the act, of the bonds so issued, the defendant became the purchaser of bonds of the par value of $300,000, at the price of $305,250. Subsequently he declined. to receive and pay for the bonds so purchased by him, on the ground, alleged, that the act of the legislature under which they were "issued was unconstitutional and void; and this submission was entered into to determine the question of his liability to complete his purchase by receiving such bonds and paying the price, bid by him therefor.

The objection specified by the defendant relates solely to the period which, by the act in question, was fixed for the running, of the bonds; and in that respect it is contended in his behalf." that the act is in violation of § 11 of article 8 of the constitution. The section is, in full, as follows :

“ § 11. No county, city, town or village shall hereafter give-any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in or bonds of any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted, for any purpose or in any manner, to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment-rolls of said county or city on the-last assessment for state or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No such county or such city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained, in the taxes for the year when such certificates or revenue bonds are issued and payable out óf such taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said, bonds at their maturity.

“ The amount hereafter to be raised by tax for county or city purposes, in any county containing a city of over one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debt, shall not, in the aggregate, exceed in any one year two per centum of" the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt’’

It will be seen that, by the terms of this section, no restriction whatever is laid upon any city in respect to the amount of indebtedness to be incurred by it, for city purposes, except upon cities having, each, a population in excess of one hundred thousand inhabitants, and that even this restriction is subject to an ■exception in favor of the issue of bonds to provide for a supply of wáter. The restriction is that no city of more than one hundred thousand inhabitants shall incur an indebtedness to an .amount exceeding ten per centum of the assessed valuation of its real estate,and that all indebtedness in excess of such limitation shall be void, “ except as herein otherwise provided." An exception is, thereafter, provided, to the restriction thus imposed, in favor of the issue of bonds for the expense of procuring a water supply for such city and its inhabitants, and to this exception is attached the proviso that the term of the bonds, so issued, shall not exceed twenty years. It is plain that the exception cannot be wider in its application than the restriction itself, nor the proviso wider than the exception to which it is attached.

It was unnecessary to provide an exception in favor of a water supply for cities of less than one hundred thousand inhabitants, because no restriction was laid upon them in respect to any indebtedness for municipal purposes; and equally unnecessary to provide an exception in behalf of cities of more than one hundred thousand inhabitants except in case where the total indebtedness of such city, including that to be incurred for the purpose mentioned, would exceed the limit prescribed.

This construction of the constitutional provision in question, taken as a whole, gains support from a consideration of the history of the successive enactment of its several parts. By the constitution of 1846 (art. 8, § 9), it was made the duty of the legislature to restrict the power of cities in respect to borrowing money, contracting debts and loaning their credit, but no limit was set to such power by the constitution itself. A brief section numbered 11 was added to article 8 by the amendment of 1874. It consisted of the first two sentences of the present § 11, and forbade any city to loan its money or credit to any individual association -or corporation, or to incur any indebtedness except for city purposes. All the remainder of § 11 was added by the amendment ■of 1884, and it contains the only provisions of our present constitution in respect to the amount of debt to be incurred by any of the cities of the state Its restrictions, as we have seen, apply to cities of more than a specified population; it provides an exception to those restrictions in the case of a debt to be incurred for a specified purpose, and it prescribes the term of the bonds which may be issued in the exceptional case provided for.

íf these views embody the correct construction of the. constitutional provisions which we have been considering, then the city of Eochester, although (by reason of its population) subject to the restriction imposed by the amendment of 1884, is not required to avail itself of the exception thereto for the reason that its total indebtedness, with the addition of the bonds in question, -does not reach the limit of the restriction, and therefore the proviso in respect to the term of the bonds to be issued has no application to this ca^p.

We thus reach the conclusion that the act of the legislature under which the bonds in question were issued is not violative of any provision of the constitution, but is valid; and that the contract of the defendant to purchase bonds issued under its provision is binding upon him.

Judgment should be directed for the plaintiff on the submission, with costs.

Macomber and Lewis, JJ., concur.


text:
    Calvin Haines, Pl’ff, v. Robert K. Smither, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Statute of frauds—Promise to pat debt of .another.
    Plaintiff having a claim against defendant’s father and threatening to arrest him, defendant wrote to plaintiff’s attorney that he had proposed to his sister that they two pay the claim by paying half in cash and endorsing the father’s note for the balance. He afterward paid the half and said he would settle the claim, but subsequently refused to endorse the note. Held, that the writing did not constitute a promise to pay, nor did the subsequent oral agreement and payment help out the writing; that such a promise is not one of those which is taken out of the statute by part performance.
    Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after verdict for defendant, by direction of the court, at the Erie circuit.

      W. H. Clark, for the motion; B. Frank Dake, opposed.
   Dwight, P. J.

The action was to recover a balance, unpaid, on an alleged promise in writing of the defendant to pay the debt of another.

The alleged promise in this case was, first, not a promise at all, and, second, it expressed no consideration. It seems that the plaintiff had a claim of $100 against the defendant’s father, for which he threatens his arrest, and that he called upon the defendant to pay or secure the debt in order to save his father from that proceeding. The paper relied upon as a promise in writing was a letter addressed by the defendant to the attorney for the plaintiff, in which he states that he has proposed to his sister that they two pay the claim by paying fifty dollars in cash and endorsing the note of the father and his wife for the balance, and that he is •awaiting her answer to the proposition. Two or three days after the defendant called on the attorney, informed him that he had •concluded to settle the matter, and gave him his check for fifty dollars, payable to the order of the plaintiff. The next day after that he wrote the attorney again, in effect, that he had obtained further information in respect to the claim against his father, and would decline to endorse the proposed note for the balance of the claim.

This is all the "foundation for the plaintiff’s' allegation of a promise in writing. It is apparent that the writing contains no-promise. It only informs the plaintiff, through bis attorney, that he has proposed to his sister an arrangement J>y which, if she consents, the claim will be paid or settled, and no-consideration whatever is mentioned in the letter. The writing cannot be-helped out either as to the promise or as to the consideration by any paroi negotiations or promises preceding or following it. It is now well settled that the writing required by the statute of frauds to support a contract to pay the debt of another must be complete in itself; must contain all the elements of a valid contract, and must show on its face, either expréssly or by necessary implication, that it rests upon a valid consideration. Castle v. Beardsley, 10 Hun, 343; Drake v. Seaman, 97 N. Y., 230; Barney v. Forbes, 118 id., 580, 585; 29 St. Rep., 980. The evidence of the subsequent oral statement of the defendant that he had decided to settle the claim did not help out the writing, and the payment of the fifty dollars was purely voluntary and gave no aid to the oral promise to answer for the remainder of the-debt. Such a promise is not one of those which is taken out of the statute by part performance.

The motion for a new trial must be denied and judgment-directed for the defendant on the verdict Macomber and Lewis, JJ., concur.


author: Per Curiam.

text:
    Max. Miller, Resp’t, v. Harry S. Brooks et al., App’lts. (2 cases.)

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Depositions—Examination before trial—Libel.
    An order for the examination of the plaintiff in an action of libel should not be granted for the purpose of enabling the defendant to prepare his answer, to consist of a justification of the charges and mitigation of-damages.
    Appeal by the defendants, Harry S. Brooks and others, from-an order of the special term of Monroe county, bearing date the-29th day of June, 1891, vacating an order made at chambers April 13, 1891, directing the plaintiff,.Max. Miller, to be examined and his deposition taken before trial, pursuant to § 873 of the Code of Civil Procedure.

      Frederick Collin, for app’lts; Ivan Powers, for resp’t.
   Per Curiam.

The action is libel. The defense as foreshadowed in the affidavits will probably consist of a justification of the charges and mitigation of damages. As was stated by the learned judge at special term: “It can rarely happen-that a necessity can arise for the defendant to examine the plaintiff to enable him to ascertain whether he has a good defense to an action. This is especially so in an action for libel, because a libelous article should be published, if at all, only-after careful inquiry has shown it to be true.’’

The moving affidavit shows that the primary" object of the--order is to enable the defendants to prepare their pleadings, and that the evidence so obtained may be of benefit and assistance to them in preparing for the trial of the action. The accusation made against the plaintiff in the libelous article complained of is that the plaintiff, with the other parties referred to, had committed a crime, namely, the crime of grand larceny, and if the article as set forth in the complaint is the one actually published, the fact that such a crime was unequivocally charged admits of no doubt.

We think that this case is. governed by the decision of this court in Strakosch v. Press Pub. Co., 6 N. Y. Sup., 246; 25 St. Rep., 189; and Kinney v. Roberts, 26 Hun, 169.

Order appealed from affirmed, with ten dollars costs, and disbursements of one action.

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


text:
    Matilda Wienke, Resp’t, v. The Village of North Tonawanda, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Villages—Negligence—Unprotected sidewalks.
    Plaintiff, while walking in a portion of one of defendant’s streets which was not well lighted, was obliged to turn out for some men, and fell from the inside edge of the sidewalk a distance of over five feet, and was injured. There was no railing or fence to protect the inner edge of the walk. Plaintiff was a stranger in the locality and had not noticed the elevation of the walk above the adjoining lot. Held, that the questions of defendant’s negligence in leaving the walk unprotected and of the absence of negligence on plaintiff's part were properly submitted to the jury.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury at the Niagara circuit and from an order denying defendant’s motion for a new trial on the minutes of the court.

      E. M. Ashley, for app’lt; W. B. Simpson, for resp’t.
   Dwight, P. J.

The action was for a bodily injury sustained by the plaintiff by reason of a fall from a sidewalk on one of the streets of the defendant. The defect complained of was the absence of a railing on the inside of the walk where the foot way was elevated five feet and an inch above the surface of the ground.

The plaintiff, a German woman of thirty years of age, was passing along the walk in the evening ; the nearest street lamp was more than ninety feet distant, and there was no light from any building which illuminated the inner edge of the walk; she met at that point several men walking abreast or in a bunch, and she turned toward the inside of the walk to avoid them, when she fell off the unprotected edge, down a distance of five feet and upwards, and sustained the injury complained of.

The question of the negligence of the village authorities in leaving this elevated walk unprotected by a railing was properly submitted to the jury. Ivory v. Town of Deerpark, 116 N. Y., 476 ; 27 St. Rep., 643; Maxim, v. Town of Champion, 23 id., 949; Reid v. Town of Ripley, 37 id., 590.

' These cases, and many more of like effect, affirm the duty of highway commissioners to exercise due care to guard exposed and dangerous points at the boundary of the highway by railings- or other structures. Of course the same principle applies to the-trustees of villages, though it is comparatively seldom that a situation occurs on the streets of a populous village which requires, this kind of protection for the safety of foot passengers. The situation in this case seems to have been very suggestive of such, precaution. Just on the'line of the fronts of stores and shops, on. a much frequented street, the inner edge of the sidewalk was more' than five feet above the surface of the vacant lot in front of which it was constructed, and there was no indication, whatever, to pass'ers in the night, of this dangerous condition. It is true the sidewalk was of the unusual width of seventeen or eighteen feet; but this gave no protection to persons walking,' as all had a right to» do, and as some at times must do, on the inside of the walk. The;plaintiff had only just before come out of one of the shops in the-immediate vicinity, and it was natural that she should proceed on a line near the fronts of the buildings. She was comparatively a stranger to the locality, had never noticed the elevation of the-walk above the adjoining lot at this point; she turned still more-towards the inside to avoid a row or knot of men coming from the opposite direction, and the accident was the result. It does-not seem to us a matter of surprise that it should have happened, but rather that similar accidents had not previously occurred at the same point under similar circumstances. Plainly it was for' the jury to pass upon both the main questions in this case, viz.: of ■ negligence on the part of the village authorities, and of the absence"of negligence on the part of the plaintiff. Those questions were submitted to the jury in a charge of eminent fairness to the defendant, and the verdict cannot be disturbed.

We find no exception taken on the trial which requires discussion.

The judgment and order denying the motion for a new trial must be affirmed.

Judgment and order appealed from affirmed.

Macomber, J., concurs; Lewis, J., not sitting.


text:
    Emmons M. Parkhurst, Resp’t, v. The Rochester Lasting Machine Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Jurisdiction—County court—Foreign corporation.
    A county court cannot acquire jurisdiction of an action against a foreign corporation by the appearance and consent of such corporation. Consent, may give jurisdiction of the person, but not of the subject matter nor of the action, and the county court is denied jurisdiction of any action against a foreign corporation.
    Appeal by defendant from a judgment of the county court off Monroe county, entered on the report of a referee.

      E. Van Voorhis, for app’lt; Irving Paine, for resp’t.
   Dwight, P. J.

The objection to the jurisdiction of the court in an action against a foreign corporation, though taken for the first time on this appeal, must be fatal to the judgment

That the county court has by the statutes which define its powers no jurisdiction of such actions is conceded; it is contended that in this case it obtained jurisdiction by the consent of the defendant, which appeared generally and answered to the merits.. The position is untenable. Consent may give jurisdiction of the? person, but not of the subject matter nor of the action. The question in this .case was not of jurisdiction of the person, but of the? limitation of. the power of the court The court had no jurisdiction of the action because it is denied jurisdiction "of any action! against a foreign corporation.

In Burckle v. Eckhart, 3 N. Y., 133, Gardiner, J., says at page 137: “ The jurisdiction of courts is conferred by law, and in no> case by consent of parties. When jurisdiction of the subject andi of the person is regarded as a pre-requisite of judicial action a defendant may waive any irregularities in the mode by which his person is sought tobe subjected to the jurisdiction of the court, by a voluntary appearance. He may dispense with the service of' process as he may waive any other personal privilege; but when the defendant is in court as a party the law gives jurisdiction ©£ the person without regard to the question whether his appearance-was voluntary or compulsory. This is all that is meant by consent giving jurisdiction of the person. * * * The residence-of the defendant within the limits of the circuit * * * is at jurisdictional fact which must exist before the court can act at all either by issuing process or accepting the appearance of the defendant. It is necessary to give jurisdiction of the cause, not the person. In such cases there can be no waiver.” See also Heenan v. N. Y., W. S. & B. R. R. Co., 34 Hun, 602; Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y., 526. In the latter case, Danforth, J., says: “ There are, no doubt, many cases where the court having jurisdiction over the subject matter may proceed against a defendant who voluntarily submits to its decision; but where the-state prescribes conditions under which a court may act, those-conditions cannot be dispensed with by litigants.”

Still more must it be impossible for litigants to dispense with the rule which prohibits the court to act at all in a given case. The cases cited by counsel for the plaintiff were actions in the supreme court, whose jurisdiction of the action was unquestioned^, and consent gave jurisdiction of the particular defendant.

The county court has no jurisdiction of the cause of action im this case, -because it has no jurisdiction of any cause of action, in. any case, against a foreign corporation.

The objection, which in this case appears on the face of the* complaint, is fatal, not only to the judgment appealed from, bufe to the action.

The judgment must be reversed and the complaint dismissed.

Judgment appealed from reversed and complaint dismissed, with, costs.

Macomber and Lewis, JJ., concur.


text:
    Sophia Foels, Adm’rx, Resp’t, v. The Town of Tonawanda, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Abatement and bevivob—Negligence.
    An action brought by a husband for loss of his wife’s society and services and for the expenses of medical attendance and treatment, resulting from bodily' injuries sustained by said wife through the negligence of defendant, survives the death of the plaintiff and may be revived in the name of his personal representative.
    Appeal by the defendant from an order of the Erie special term, continuing the action in the name of the personal representative of the original plaintiff, who died after issue joined and before trial.

      C. W. Sickmon, for app’lt; W. B. Simpson, for respt.
   Dwight, P. J.

The sole question in the case was whether the cause of action survived. It was for loss of the services and society of the wife of the original plaintiff, and for the expenses of medical attendance and treatment, paid by him; the allegation being that such loss and expense resulted from a bodily injury sustained by the wife through the negligence of the defendant.

The case is in all its material features the same as that of Cregin v. The Brooklyn Crosstown R. R. Co., 75 N. Y., 192, and the law of that case is the law of this. Its authority has never been questioned and its doctrine, to the extent necessary to uphold the order here appealed from, was reaffirmed on a subsequent appeal in the same case. Oregin v. Brooklyn, etc., R. R. Co., 83 N. Y., 595.

■ The first appeal in the case cited was from an order to the same effect as the order here, and it was affirmed. The court held, Rapallo, J., writing the opinion, that while the action was one grounded in tort, it was, nevertheless, within the provision of the Revised Statutes, 2 R. S., 447, § 1, being an action “ for wrongs done to the property, rights and interests ” of the plaintiff; and that it was not within the exception of the same statute (Id., § 2), it not being “ for injuries to- the person of the plaintiffand therefore the cause of action survived and was assignable.

The damages claimed in that case, as in this, were two-fold, -viz : (1) for loss of the services and society of the wife, and (2) for the expenses of her medical attendance and treatment, paid by the plaintiff. On the first appeal, the only question being whether a cause of action survived to the personal representative, the orcler- was- affirmed without discriminating between the two branches of the claim for damages. On the trial the case was submitted to the jury and a recovery was had on both branches of the claim. On the second appeal, which was from the judgment entered on the verdict, the court held that the cause of action of the husband for the loss of the services and society of his wife was purely personal and did not survive his death; but the doctrine of the survival of the cause of action for money paid out by him, for the medical care and treatment of his wife, was reaffirmed. The case as made and determined on both appeals is therefore complete authority for the order here appealed from.

The definition of the term “ personal injury,” by the Code of Civil Procedure, § 3343, subd. 9, has no application to this case. The definitions of that section affect only terms employed in the statute of which it is a part, viz., in the Code of Civil Procedure, see the introductory clause of the section; they do not affect the-terms employed in the provision of the Revised Statutes, supra7i upon which the decision of this case depends.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and- disbursements.

Macomber and Lewis, JJ., concur.