author: Maynard, J.

text:
    Charles S. Weston, Resp’t, v. Mary R. Stoddard et al., Impl’d, App’lts.

      (Court of Appeals,

      Filed January 31, 1893.)

    Partition—Adverse possession.
    Section 1543 was intended to confer upon the court in which an action for partition may be brought authority to try and determine all disputes which may arise between the plaintiff and his co-tenants, involving their respective rights of possession to the property, and an adverse possession of a co-tenant of the title for a period less than the time prescribed by law to bar a possessory action is not now a good defense to an action of partition, and plaintiff’s complaint will not be dismissed or his proceedings stayed on proof of such possession, nor will he be required to recover possession of his undivided share in an action of ejectment before he can have any relief in the partition suit.
    Appeal from judgment of the supreme court, general term, third department, affirming interlocutory judgment in partition.

      Charles 8. Lester, for app’lts;

      Winsor B. French and Richard L. Hand, for resp’t

       Affirming 38 St. Rep., 46.

   Maynard, J.

The important question presented by this op-, peal relates to the defense of adverse possession. The appellants! have title to an undivided three fourths, and they allege in their answer that they have been in the actual and exclusive possession of the premises sought to be partitioned, and of every part thereof, claiming to own the same, and holding the same in hostility to the plaintiff and all other persons for more than twenty years before the commencement of this action, and that the plaintiff had actual notice of their exclusive and hostile possession; and that they were, when this suit was brought, the absolute owners of the premises and of every part thereof. Proof was given tending to support this plea. The trial court found that the appellants were in possession at the time the action was begun, holding adversely to the plaintiff, but that such adverse possession did not commence until after 1880. The appellants thus failed to establish title to the undivided one-fourth of the premises claimed by the plaintiff and their co-defendants; but they insist, nevertheless, that the fact of adverse possession found was sufficient to defeat this action, although it had not continued for such a length of time as to afford the presumption of a grant of the title to the entire property.

There is some question made as to the sufficiency of the finding of adverse possession, and it must be admitted that there is some confusion in the record upon this point. There is the usual formal finding that the premises described in the complaint are owned by, and in the possession of, the plaintiff and tne defendants as tenants in common, as alleged, and there is the corresponding conclusion of law. At the appellants’ request, the trial court also found that their possession was adverse, but qualified it with a statement that such adverse possession did not begin until after the year 1880, or less than nine years before the commencement of the action.

The record also states that the defendants moved for a nonsuit and a dismissal of the complaint upon this ground, and that thereupon the court held that the fact that the defendants are in possession of the premises, claiming to hold the same adversely, is no bar to the maintenance of an action for partition, unless the adverse possession is continued for a length of time sufficient to ripen into a title, or over twenty years, and that plaintiff was entitled to judgment, and denied the motion. The trial judge filed a memorandum which was exclusively devoted to the support of the proposition that, under the Code of Civil Procedure, continuous adverse possession for less than twenty years did not bar the action; and a more elaborate opinion was subsequently filed, in which the question was considered in the light of the authorities and the same conclusion reached. The general term regarded the question as involved in the case, and held that, under § 1543 of the Code, an adverse holding, which was not of sufficient duration to afford the presumption of a grant, could not defeat the action, saying, “ under the present Code, it is what a party to the action rightfully holds, and not what he may wrongfully claim, that determines the nature of the relief to be awarded respecting him.” Under these circumstances, we think it would be a technical and unjust interpretation of this record to hold that the question was not fairly presented, whether an adverse possession of a co-tenant of the title for a period less than the time prescribed by law to bar a possessory action, is now a good defense to an action of partition; and whether upon proof of such possession the plaintiff’s complaint should be dismissed or his proceedings stayed, and he be required to recover possession of his undivided share in an action of ejectment before he can have any relief in the partition suit.

Full effect can be given to the finding that the plaintiff was the owner and in possession with the appellants as tenants in common by limiting it to the constructive possession which is deemed to follow the legal title, and which, if not rebutted, was always regarded as sufficient to support the action. Wainman v. Hampton, 110 N. Y., 429; 18 St. Rep., 320. A conflict in the findings is in this way avoided, but if the two are irreconcilable, the special finding made at the request of the appellants must prevail. Both at common law and under the Revised Statutes it was the well settled rule of practice in actions for partition to withhold relief, if it appeared that the title or the right of possession of the plaintiff was disputed, or that he had been actually ousted by his co-tenants. It was not always clear what conduct would be considered in law sufficient to effect an ouster, but the current of authority in this state was uniform and unbroken that when a disseisin had been established, although for a period less than that required to extinguish his title, a tenant in common of real property must wait until he had regained possession in an action or proceeding at law before he could insist upon a division of the property between himself and his co-tenants. The two remedies could not be enforced in the same action. There was but one exception to the rule, and that was that where the original jurisdiction of the action was purely equitable, and it had once rightfully attached, it should be made effectual for complete relief, even if it did require the determination of questions of title to real property and of conflicting claims to its possession. Hosford v. Merwin, 5 Barb., 62; Scott v. Guernsey, 60 id., 178. The existence of this rule was not due to the indisposition of courts of equity to determine issues which were peculiarly within the province of courts of law. It was rather the result of the exceptional character of the method of procedure in partition cases, ana had its origin in the practice of the common law tribunals, which for a long time had exclusive jurisdiction in this class of actions. The writ of partition was a common law process, and was an available remedy, at least, between co-parceners for over three hundred years before courts of chancery assumed jurisdiction of the subject-matter. It was returnable beforejudges or commissioners specially appointed to hear the cause, and if, upon the return of the writ, it was shown that the plaintiff’s title was contested, or that the lands were held adversely, the proceedings were dismissed, or suspended, until the question of title had been otherwise determined. This course was rendered necessary because a trial by jury of an issue involving the title to real property was a matter of common right, of which the citizen could not be deprived by the institution of a proceeding in which that form of trial was not permissible.

The same want of power to try such issues inhered in the procedure of the court of chancery, and when it extended its judicial authority so as to include the hearing of suits in partition it followed the established rules of practice in courts of law in this respect, and required the suitor to show an actual holding and possession in common with his contenants before it would accord to him the nhelter of its jurisdiction.

When, by a change of the fundamental law of the state, the supreme court was empowered to administer both legal and equitable remedies, the necessity for the existence of this rule was but partially obviated. The essential nature of actions was unchanged. Partition suits were still regarded as cases of purely equitable cognizance, upon the trial of which a jury could not be demanded as a right, and, if permitted to be present, their verdict did not conclude the judgment of the court upon the issues submitted to them. As the constitution secured inviolate the right of trial by jury in all cases where it had theretofore been enjoyed, it was apparent that questions of title could not be tried in these cases without some enabling legislation. The Code of 1848 § 448, provided that actions in partition brought under the Revised Statutes should be regulated by the provisions of that Code, and it was held by this court in Hewlett v. Wood, 62 N. Y., 75, that by virtue of this change in the practice a trial by jury could be insisted upon as a right in a partition suit, and was no longer discretionary with the court. But the rule which debarred the court from a trial of issues of title in these actions was too firmly entrenched to yield to any effort to change it short of an express statutory enactment. The drift of judicial authority in other states had meanwhile been strongly in the direction of a relaxation or abrogation of the rule. The supreme court of the United States, in Parker v. Kane, 22 How., 17, a partition suit arising in Wisconsin, where disputed questions of title had been adjudicated, say: “ In Great Britain a chancellor might have considered this as a case in which to take the opinion of a court of law, or to stay proceedings in the partition and cross suits until an action at law had been tried to determine the legal title. But such a proceeding could not be expected in a state where the powers of the courts of law and equity are exercised by the same' person.”

In many of the states it has always been held that a disseized co-tenant may maintain compulsory partition. Call v. Barker, 12 Me., 325; Marshall v. Crehore, 13 Met., 464; Miller v. Denell, 6 N. H., 109; Tabler v. Wiseman, 2 Ohio St., 207; Godfrey v. Godfrey, 17 Ind., 9; Cook v. Webb, 19 Minn., 170; Howey v. Goings, 13 Ill., 108; Scarborough v. Smith, 18 Kan., 399; Martin v. Walker, 58 Cal., 590; Cuyler v. Ferrill, 1 Abb. C. C., 182.

The learned author of a work on partition, Freeman, § 450, in commenting upon this condition of the authorities, says, “In truth, 'the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible. Wherever the question has recently arisen as a new question, the answer to which the courts were free to give without consulting decisions made at an early day when the common law rules were more potent than at present, it has been resolved in favor of taking jurisdiction whenever the complainant shows himself seized of the requisite title, whether the lands sought to be partitioned are held adversely to him or not” The legislature, we think, recognized the force of this tendency in the adoption of article 2, of title 1, of chapter 14 of the Code of Civil Procedure; the provisions of which, when construed according to their evident intent, expressly authorize the litigation in an action of partition of all questions of title which arise upon the pleadings between the co-tenants and their privies, who may be parties to the action. Section 1543 expressly provides that the title or interest of the plaintiff as stated in the complaint may be controverted by the answer; and the title or interest of any defendant as so stated may be controverted by his answer, or the answer of any other defendant, and the title or interest of any defendant as stated in his answer may be controverted by the answer of any other defendant; and it is declared that the issues thus joined must be tried and determined in the action. Sections 1557 and 1577 provide that the judgment shall be binding and conclusive upon all the parties to the action who have been duly served, and in case of a sale effectually bars each of them from all right, title and interest in the property sold.

We think that § 1543 was intended to confer upon the court in which an action for partition may be brought authority to try and determine all disputes which may arise between the plaintiff and his co-tenants involving their respective titles and lights of possession to the property. Theretofore nothing could be tried, if the bare fact of the common holding or tenancy 'was disputed. The commissioners, who framed this part of the Code, state in a preliminary note to the article that such was the radical change which they designed to effect in the existing law, and after its adoption the same purpose was asserted by one of the commissioners in a foot note to the section. The appellants contend that because § 1537 specifically provides that a party out of possession may maintain the action where he claims by reason of heirship and the lands are in possession of a devisee under a devise alleged to be void, it is equivalent to a legislative declaration that in no other case can a plaintiff, who is out of possession, bring, the action. But the commissioners say that they intended to extend the principle embodied in § 1537 to all cases by the provisions of § 1543. We apprehend that the reason for the enactment of § 1537 was quite different from that suggested by counsel. Where a devisee is in possession under a devise in a probated will, he has an exclusive title to the property, which is presumptively valid against the heir and all persons claiming through the testator, and without an enabling statute the heir could not maintain partition, because, upon the face of the record, he is not a co-tenant of the title at all. Before he can bring himself into such a relation with the occupant, he must procure the judgment of the court declaring the devise void for some sufficient cause, after which he may insist upon partition between himself and the other heirs, and the purpose of the statute was to enable him to secure this two-fold relief in one action, and it had no special reference to the removal of any common-law disability of a tenant out of possession.

We cannot find that the question has arisen in this court since the second part of the Code went into effect. In Wainman v. Hampton, supra, the action was begun under the Revised Statutes, and Judge Earl calls attention specially to that fact, and states that it is to be governed by the statute, and not by the Code, and thus impliedly recognizes that substantial changes in the practice may have been introduced by the latter. The decisions in the supreme court have been conflicting. Shannon v Pickell, 2 St. Rep., 160; Hulse v. Hulse, 23 id., 123; Jones v. Jones, 6 id. 736; Greene v. Greene, 23 id., 869; Gedney v. Prall, 25 id., 343; Knapp v. Burton, 7 Civ. Pro., 448. In recent works on practice of high authority, § 1543 has been construed as abrogating the rule which prevented a recovery by a disseized co-tenant, and providing for the trial .and determination in the partition action of all issues involving the title and right of possession of any of the parties. Rumsey’s Pr., 3d vol. pp. 31, 41; Fiero on Special Actions, 91, 92. We perceive no good reason for questioning the soundness of this construction. Circuity of procedure and a multiplicity of suits are thereby avoided, and these were the primary objects which the Code system of practice had in view. This scheme of the law is rendered complete by § 1544, which is entirely new, and which provides that an issue of fact joined in an action of partition is triable by a jury, and such a mode of trial thus becomes demandable as a right and preserves unbroken the constitutional guaranty.

We have not overlooked § 1532, which provides that the action may be brought where two or more persons hold, and are in possession of real property, as tenants in common. What is here meant is not a strict pedis possessio, but a present right to the possession, as distinguished from the cases in the next section, where, under certain circumstances, the remainderman may bring the action. The section must be read as a part of the article to which it pertains, and cannot be construed so literally as to render nugatory the plain purpose of the provisions with which it is associated.

The other exceptions argued were, we think, correctly disposed of in the court below, They relate to matters which, in the form in which they were presented, rested largely in the discretion of the trial court. There was no determination of them adverse to the appellant which will, in any way, conclude her in any action she may bring for the foreclosure of her mortgage. All her substantial rights as mortgagee have been preserved and securely guarded, and the opinion of the general term, upon this branch of the case, is so exhaustive and satisfactory that further consideration of these exceptions would not be profitable.

The judgment and order must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Joseph William Bradshaw et al., Resp'ts, v. The Agricultural Ins. Co., of Watertown, N. Y., App’lt.

      (Court of Appeals,

      Filed January 31, 1893.)

    Insurance (Fire)—Appraisal—Fraud.
    When a false statement is made in regard to the attitude of a proposed appraiser for the. purpose of inducing consent to his appointment, which is in that way obtained, and where concealment is practiced in. regard to his real attitude to the company nominating him, and when, in fact, he is not disinterested, good ground is shown for setting aside an appraisal which is grossly below the actual loss sustained, although it has been concurred in and agreed to by the appraiser nominated by the assured.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of the plaintiffs, entered upon verdict and decision of the court thereon.

      A. H. Sawyer, for app’lt;

      S W. Jackson, for resp’ts.

       Affirming 42 St. Rep., 79.

   Peckham, J.

In October, 1887, the defendant issued a fire in- : surance policy for $3,000 'and for three years to the plaintiffs’ devisor upon a dwelling house owned and occupied by him in Schenectady, in this state. In March, 1890, the building took fire and was nearly destroyed, and the devisor of the plaintiff was, at the same time, suffocated in the flames. The will of the deceased was duly proved, and about the 24th of March, 1890,' an agreement for the appointment of appraisers was entered into, pursuant to the provisions of the policy, for the purpose of determining the loss. The appraisers immediately proceeded to a discharge of their duties, and, in due time, agreed upon and signed an award, dated the 25th of March, 1890, for the amount of the loss as appraised by them, viz.. $1,760.31. The plaintiffs refused to accept the sum thus awarded, and commenced this action to set the award aside, on the ground that the defendant, as they alleged, had induced them to consent to the appointment of the appraiser-nominated by defendant by falsely representing that he was entirely disinterested and indifferent in the amount of the loss and damage and the appraisal thereof, and that he was designated by the defendant as appraiser for the reason that he was a neighbor of the agent of defendant and an extensive builder, and was known by the agent to be competent and indifferent between the parties. The plaintiffs, also, sought to recover in the action the amount of the loss actually sustained from the fire up to the sum specified in the policy. Issue was joined, and the case came on for trial before the trial judge and a jury.

Two questions of fact were submitted to the jury, one as to the actual amount of the loss caused by the fire, and the other as to whether the appraiser selected by the defendant was at the time of his appointment disinterested. The jury found the actual loss amounted to the sum of $2,750, and that the appraiser' was not disinterested.

In addition to these findings the trial court found the representations were made as above alleged and that they were false to the knowledge of the agent of the defendant who made them, and that the appraiser was not impartial and indifferent between the-parties, but was biased in favor of the defendant and determined to procure the best attainable award m its favor, and that he was-skillful in doing so: that the plaintiffs did not know him and that, they relied upon the false representations of the defendant’s agent, and were thereby induced to enter into the agreement of appraisal which they would not have done but for such representations. The court also found that the award made by the appraisers', was unjust to the plaintiffs m that it was $989 69 less than the: true amount of damage. The court thereupon set aside the award and gave judgment for the full amount oi the loss sustained, and from an affirmance of this judgment by the general term the defendant appeals to this court.

The policy in question contained the iollowing provisions: " In the event of a disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and tlie two so chosen shall first select a competent and disinterested umpire.” The defendant questions the finding of the court below as to the fact of indifference, and claims there was no evidence to support it, and, therefore, its exception to that finding raises a question of law which we must review.

The counsel for the defendant is bound to maintain the proposition that a court or jury would have no right to find from the evidence that the appraiser was in fact biased and not disinterested.

It has not been decided that the evidence in the case showed that the appraiser was, as matter of law, biased. The question was submitted to the jury as one of fact for ¿them to find, whether, upon the evidence in the case, the appraiser was disinterested, and they found as a fact that he was not disinterested. This finding of fact has been approved and reiterated by the trial judge, to whom the verdict of the jury was advisory only. In order to reverse the judgment we must be able to say, as matter of law, that there was no evidence upon which the jury or the judge had a right to base a finding of bias as a matter of fact.

Upon a perusal of the evidence we are of the opinion that the finding of fact has adequate support therein, and consequently the exception of the defendant is without merit.

There was testimony in this case tending to establish the following state of facts: The fire occurred on the 1st of March, 1890, and on the 5th of that month the general agent of the defendant met Mr. Jackson, who had acted as counsel for the deceased owner in other matters, and Mr. Jackson told the agent that nothing could be done until the will was proved, which would be about March 17th. No allusion was made to the amount of the loss, whether total or partial, and Mr. Jackson was then unaware of the facts. After the probate of the will, and before Mr. Jackson had ■ informed the agent as to the amount of the claim, a meeting was had on the 24th of March, 1890, at the office of Mr. Jackson, in Schenectady, at which some of the plaintiffs were present, and also the defendant’s agent, who had the question in hand for the defendant. At that meeting the agent demanded the appointment of appraisers, under the clause of the policy above mentioned, and upon the expression of some surprise on the part of Mr. Jackson at the demand before the amount of the loss had been named or any attempt made at an agreement, the agent insisted upon it, so as to take the responsibility off his shoulders, as he said. When asked whom he would select as appraiser the agent named his man and made the representations regarding him already referred to. And so an agreement as to appraisers was at once entered into, and it then appeared that the appraiser for the defendant was in Schenectady, having been brought there by the agent of the defendant before he made the demand for appraisers, and also before he had made the least effort to agree upon the amount of the loss. In other words, the first step taken on the part of defendant’s agent towards an attempt to adjust the loss was to select this appraiser and bring him from Binghamton and have him on the ground prepared for business as soon as an agreement for his appointment could be arrived at. It also appeared and was found by the court that the defendant’s appraiser had been employed by it within the two preceding years about ten times, and the evidence showed that within three years he could not be certain that he had not been employed by defendant and other companies to appraise property as many .as fifteen times. The defendant criticises the finding as to the number of times the appraiser had been appointed by the defendant within two years, and claims that it was not more than half a dozen. It is not probably very material, but the finding is not without evidence. The appraiser said he could not tell the number of times he had been so employed, that it might have been as many as fifteen times by defendant and other companies, and possibly half a dozen times, but not as many as ten by defendant It is obviously a mere guess as to the division between the defendant and other companies, but the difference between half a dozen and ten is wholly immaterial. It appeared that when appointed he regarded himself as the special representative of the company and placed there specially to protect its rights, and he said he proposed to stand by whatever rights “ we ” had. As soon as he came upon the scene and after the agreement appointing him and his associate had been made, he seems to have taken the leading part.

The evidence returned in this record is such that a jury might say that he abandoned his duties as a disinterested appraiser. Instead of being disinterested, the inference might be drawn, that he acted as a sort of counsel for the defendant and bound as such to obtain the best possible award for it that he could; that he did not act on the theory that, although nominated by the defendant, it was, nevertheless, his duty as a disinterested appraiser to make an award that should, so far as he.knew, represent the honest and actual loss sustained by the insured by reason of the fire. And this state of mind may very naturally have been the result of his frequent employment in this capacity by the defendant. At any rate, it cannot be said, as a matter of law, that no such result could follow from such employment. The evidence tends to show quite clearly that the award was chiefly the work of this appraiser, in whose hands the other seems to have been of very little importance. He was overshadowed, if not controlled by the stronger and more experienced man nominated by the defendant.

The defendant’s nominee suggested to the other appraiser the duty of agreeing upon an umpire, and received with some dissatisfaction the suggestion of a name by the attorney for the insured, and called his associate to go with him to the place where the fire had occurred, and said they might, perhaps, there agree upon an umpire. On their way the defendant’s appraiser said to his associate, he thought it would be better for both parties to go outside of Schenectady for an umpire, and before they arrived at the burned building he suggested as a proper umpire a man living in Oneida, and who was unknown to his associate, but, nevertheless, he was at once agreed upon, and his name was, thereupon, and before they went in the yard of the house, inserted in the agreement. This umpire, the defendant’s appraiser said, he had met on one occasion where the umpire had appeared as an appraiser “ against ” him. The defendant’s appraiser was also insured in the defendant’s company. The result of the appraisement was an award of $1,760, or about $1,000 less than the real loss. Certainly a very large difference in such a total.

Upon all this evidence, I think it plain a question of fact was presented as to the disinterested character of the defendant’s appraiser. I do not mean to say that had the facts which existed at the time of the appointment been known to plaintiffs, and the appointment had been then agreed to, there would have ' been any ground of complaint. Nor is there occasion to say that if the same facts existed, and no representations had been made in regard to the proposed appraiser, and he had been nominated by defendant, and consented to by plaintiffs, that then there would have been ground of complaint. The question does not here arise whether under such a state of facts the plaintiffs could find fault with the award, and claim to set it aside.

In this case we have further facts.

It is the positive statement made by defendant and believed by 'plaintiffs that the proposed appraiser was entirely disinterested and indifferent as to the amount of the loss and the appraisal thereof, and the concealment of the fact as to his relationship to the company, that forms the cause of action when taken in connection with the facts as found, that the appraiser was not disinterested. One of the -questions to be considered was whether the fact of this frequent prior employment by the defendant, and also by other insurance companies, did so affect the individual that he was not a disinterested person. And for the purpose of seeing exactly what .his condition of mind was towards the defendant, it was-proper for the trial court to take into consideration his whole evidence and his manner of testifying, and thus some light might be thrown upon the question at issue. It cannot be that the word “ disinterested,” as used in the policy, is confined to a lack of pecuniary interest in the question of loss. The policy says the appraiser must be “ competent and disinterested,” and this means some one who is not biased or prejudiced. If a company were to propose one of its own clerks as appraiser, would not the insured be justified in refusing to agree upon him or to consent to an appraisement where he was one of the appraisers ? If the insured should then sue on the policy and the defense should be set up that he had refused to consent to the appointment of appraisers as called for by the policy, would it not be an answer that the company had itself refused to appoint a disinterested appraiser? Assuming that it was a question of fact, would not the fact that the person proposed was a clerk of the company be sufficient upon which to support a finding that he was not “ disinterested ” within the meaning of the policy ?

I think the evidence in this case is ample to justify the finding of the court that the representations were made, that they were false, that they induced the consent to the appointment of the appraiser, and that he was not disinterested. While it may be true that in the appointment of these appraisers each party nominates some one who may be supposed friendly to the side nominating him, yet he should, at the same time, be disinterested, or, in other words, fair and unprejudiced. The duties of these appraisers are to give a just and fair award, one which shall honestly and fairly represent the real loss actually sustained by reason of the fire; and it is not the duty of either appraiser to see how far he can depart from that purpose and still obtain the consent or agreement of his associate, or, in case of his refusal, then of the umpire. It is proper and to be expected that all the facts which may be favorable to the party nominating him shall be brought out by the appraiser, so that due weight may be given to them, but the appraiser is in no sense, for the purpose of an appraisal, the agent of the party appointing or nominating him, and he remains at all times under the duty to be fair and unprejudiced, or, in the language of the policy, disinterested.

When a false statement is made in regard to the attitude of a proposed appraiser for the purpose of inducing consent to his appointment, which is in that way obtained, and where concealment is practiced in regard to his real attitude to the company nominating him, and when, in fact, he is not disinterested, good ground is shown for setting aside an appraisal which is grossly below the actual loss sustained, although it has been concurred in and agreed to by the appraiser nominated by the insured.

The case of Bishop against this same defendant, 130 N. Y., 488; 42 St. Rep., 369, does not show that the appraiser nominated by a party is his agent in any proper sense of the word. In that case the charge was made by the defendant that the plaintiff had improperly refused to agree upon an umpire. The plaintiff, in his turn, charged defendant with such refusal. The court held that it was the duty of the appraisers to select a disinterested umpire, and if defendant’s appraiser improperly neglected to join in or make any selection, his neglect of a duty which he owed could not be charged against the plaintiff.

The defendant’s counsel had requested the court to charge the jury that the defendant was not bound by whatever the appraiser nominated by it did or failed to do in respect to the selection of an umpire. This was refused, as the court said, rightfully, because the two appraisers were to make the selection, and the failure of the defendant’s appraiser to do his duty was not tobe taken advantage of by defendant. The court expressly refused to say that as to the appraisal such appraiser represented the defendant, in any sense, as an agent.

Whether this agreement for appraisers be determined to be an arbitration or not is immaterial. The parties in the policy had stated what kind of appraisers were to be appointed, and each party had the right to believe that any specific representations of the_ other,_ as to any material fact, in regard to a proposed appraiser being disinterested, were true and might be relied on, and if they turned out false under the circumstances herein alleged and found, a good cause of action was proved.

The cases cited by the counsel for the defendant from the Massachusetts court are not in point. There was no finding of any false representations or concealment, and the facts stated were declared not enough as matter of law to set aside the award. In Fox v. Hazelton, 10 Pick., 275, the court said the party proceeded with knowledge of the facts which he subsequently complained' of, or at least with sufficient to put him on inquiry, and if the objection had been taken early enough and overruled, it would ¡have been strong ground to set aside the award. See, also, Goodrich v. Hulbert, 123 Mass., 190, and Cheney v. Martin, 127 id., 304.

We see no error in the record, and the judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    George T. Crombie et al., Resp’ts, v. Gertrude R. Waldo, App’lt.

      (Court of Appeals,

      Filed January 31, 1893.)

    Brokers—Commissions.
    Plaintiffs undertook to procure for defendant a. lease of her real estate by certain school trustees. They did procure the execution of an agreement by said trustees, dated December 10, binding defendant to complete a school building by the next May, and the trustees agreed to take a lease if the building was erected in accordance with the suggestions of the superintendent, according to plans thereafter to be prepared by the architect named and approved by the superintendent, provided the latter approved the building after its completion. Held, that by merely procuring the execution of such a paper, the plaintiffs had neither procured a lease for the defendant, nor a valid agreement for a lease, and had, in no way, earned their commissions.
    Appeal from judgment of the ¡New York superior court, general term, affirming judgment entered in favor of plaintiffs upon the verdict of a jury, and order denying defendant’s motion for a new trial.
    The plaintiffs were real estate brokers in the city of ¡New York, and the defendant .owned certain real estate in that city. In June, 1889, the plaintiffs undertook to procure for her a lease of the real estate by the school trustees of the twelfth ward of the city of ¡New York, and they procured the execution of the following agreement by her and the school trustees:
    “Agreement made this tenth day of December, in the year one thousand eight hundred and eighty-nine, between Gertrude B. Waldo, of the city of ¡New York, party of the first part, and the trustees of common schools for the twelfth ward of the city of ¡New York, parties of the second part, as follows:
    “ The said party of the first part, for and in consideration of the agreement of the said parties of the second part hereinafter mentioned, hereby agrees to erect, in accordance wifh the suggestions of the superintendent of school buildings appointed by the board of education of the city of New York, and as per plans to be made by John P. Leo, architect, and approved by the said superintendent of school buildings, a four-story brick building upon the four lots of land owned by the said party of the first part, situate on the northerly side of Eighty-ninth street, between First and Second avenues, in the city of ¡New York, described together as follows: Beginning at a point on the northerly side of Eighty-ninth street, distant one hundred feet easterly from the' corner formed by the intersection of the easterly side of Second avenue with the northerly side of Eighty-ninth street, and running thence easterly along the northerly side of Eighty-ninth street, at least one hundred feet; thence northerly parallel, with Second avenue, at least one hundred feet; thence westerly, parallel with Eighty-ninth street, at least one hundred feet, and thence southerly, parallel with Second avenue, at least one hundred feet, to the point or place of beginning. Said building to be so erected by the said party of the first part at her expense, and to be completed on or before the first day of May, 1890, and approved by the said superintendent of school buildings.
    “And the said party of the first part, for the consideration aforesaid, hereby further agrees that when the said building shall be so completed and approved of by the said superintendent of school buildings, she will then make and execute a lease to the said parties of the second part, of the said building and lots of land, for the term of ten years from the time of such completion and approval, at an annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause.
    “ And the said parties of the second part, for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said building is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease.
    “In witness whereof, the said parties hereto have hereunto set their hands and seals the day and year first above written.
    “ Gertrude R. Waldo, [seal.]
    “John Whalen, [seal.]
    “Wm. E. Stilling, [seal.]
    “Leopold Wormser, [seal.]
    “ Antonio Rashis, [seal.]
    “Robt. E. Steil, [seal.]

      “ Trustees of Common Schools for the Twelfth Ward of the City of New York.”

    The plaintiffs claimed that they were entitled to commissions as brokers for procuring the execution of that agreement. The defendant refused to pay them, and then they brought this action to recover the commissions. The case was brought to trial before a jury; the plaintiffs recovered a verdict, and the defendant appealed from the judgment entered thereon to the general term and from affirmance there to this court.

      Charles J. Buchanan, for app’lt;

      J. C. Julius Langbein, for resp’ts.

       Reversing 42 St. Rep., 225.

   Per Curiam.

The plaintiffs entered upon their employment to procure the school trustees to take a lease of the defendant’s premises and they cannot recover until they establish that they have earned their commissions either by negotiating a lease or procuring the execution of a valid and binding agreement for a lease. It is not sufficient that the trustees and the defendant were brought together in a negotiation unless that negotiation ended in a lease or a valid agreement for one. It is not claimed by the plaintiffs that a lease of the premises by the trustees was effected. But the claim is that they were entitled to their commissions because they procured the execution of the agreement above set out. That agreement was drawn by them without any direction or suggestion from the defendant. It appears to have been wholly their work and to have been the best agreement they could procure the school trustees to execute; and they procured the defendant to execute it upon their assurance that it would be effectual. It is very clear that it was of no value to the defendant, that it was practically ineffectual for any purpose, that it did not bind the school trustees; that it could not be enforced against them; that it could not be performed by her and that it was a practical nullity. It was dated on the 10th day of December. The building was to be completed on or before the 1st day of May following, and the proof is clear and undisputed that it could not have been completed within that time. No plans were drawn for the building and it was not then known what kind of a building would be required to be erected. It was to be erected in accordance with the suggestions of the superintendent of school buildings, and what they would be was not known. The building when completed was tobe approved by the superintendent of school buildings, and the school trustees were not bound to take a lease until the building was completed and such approval had been given. The cost of the building could not then be known. The school trustees agreed only to take a lease of the building in case it was erected in accordance with the suggestions of the superintendent, and according to the plans thereafter to be prepared by the architect named and approved by the superintendent,- and in case the building was approved by the superintendent after its completion. The contract was one which the defendant could not perform, and which she could not enforce. Neither of the parties stood in any better position than they did before it was executed. For merely procuring the execution of such a paper it cannot be said, either that the plaintiffs had procured a lease for the defendant or a valid agreement for a lease or that they had, in any way, earned their commissions.

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

All concur.


author: Earl, J.

text:
    In the Matter of the Petition of The Trustees of The New York & Brooklyn Bridge, App’lts, v. William Irving Clark et al., Resp’ts.

      (Court of Appeals,

      Filed January 31, 1893.)

    Condemnation proceedings—Award—Interest.
    Certain landowners moved at special term for confirmation of an award of damages for land taken. The court refused to confirm the award, vacated it and ordered a re-appraisal by new appraisers. On appeal by the land owners the general term reversed the order of the special term, and gave judgment, with interest, from the date of the special term order. Held, error; as there was no contract obligation to pay interest on the award, no statutes imposing or requiring its payment, and the owners were in possession until the final order was entered.
    Appeal from judgment of the supreme court, general term, second department, reversing order refusing to confirm report of commissioners of appraisal.

      James G. Bergen, for app’Its;

      George W. Wingate, for resp’ts.

       Modifying 47 St. Rep., 932.

   Earl, J.

This is a condemnation proceeding to acquire lands for the New York & Brooklyn Bridge Company. Commissioners of appraisal were appointed, and the land being in the possession of tenants, it became necessary to appraise the value of the interest of the tenants as well as the interest of the fee owners. They awarded to the owners, “ for the fee of said premises,” the sum of $104,625, and a separate sum to each of the tenants. The award to the owners “ for the fee ” must be understood to be for the fee subject to the leases. The appraisers in such a case may pursue either one of two methods. They may appraise the entire value of the premises and then apportion such value among the fee owners and tenants, or they may in the first instance appraise the value of each separate interest and thus ascertain the entire value. The process in each case must obviously be substantially the same. They must in in any event appraise the value of each interest separately. We cannot say which method was pursued in this case, and it does not matter. The award of the appraisers having been confirmed by the general term is not reviewable here.

Such has always been the law in this state in this class of cases, and there is nothing in the recent revision, Code of Civil Procedure, chap. 23, of the condemnation law changing it Railroad Co. v. Marvin, 11 N. Y., 276; Matter of N. Y. C. & Hud. River R. R. Co., 64 id., 60; Matter of D. & H. Canal Co., 69 id., 209; Matter of Kings Co. El. R. R. Co., 82 id., 95; Matter of Prospect Park & Coney Island R. R. Co., 85 id., 489; Matter of Board of Street Opening, 111 id., 581; 20 St. Rep., 133; Matter of N. Y. & Brooklyn Bridge, 115 N. Y., 652; 23 St. Rep., 998; Matter of Metropolitan Elevated R. Co., 128 N. Y., 600; 38 St. Rep., 881; Matter of Board of Street Opening, 133 N. Y., 434; 45 St. Rep., 658.

It is the award of the appraisers which, having been confirmed, is not reviewable here. The action of the general term may be such as to be the subject of review. If it should undertake to modify an award by increasing or diminishing it, or to exercise any other jurisdiction in reference thereto not conferred upon it, its action would be reviewable here. In this case the landowners moved at special term for confirmation of the award. The motion was opposed by the bridge trustees, and the court refused to confirm the award, vacated it, and ordered a reappraisal by new appraisers. From the order of the special term the landowners appealed to the general term, and there the order of the special term was reversed and judgment was rendered September 16, 1892, confirming the award as to each defendant, with interest from April 30, 1892, the date of the special term order. The appellants claim that this provision in the judgment as to interest was unauthorized and erroneous, and we are of that opinion.

Before interest can be allowed in any case it must be by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default. Here there was no contract obligation to pay interest upon the award, and there was no statute imposing or requiring its payment, and it only remains for inquiry whether the bridge trustees were in default in not paying the award on the 30th day of April. The court, at special or general term, cannot alter the award "or increase its burden, except by the imposition of costs in the cases specified in the law. It may refuse to confirm the report of the appraisers, and, in that event, all it can do is to set aside the report and order a new appraisal before the same or other appraisers; and the Code, § 3371, provides that “ if the report is confirmed, the court shall enter a final order in the proceeding directing that compensation shall he made to the owners of the property pursuant to the determination of the commissioners, and that upon payment of such compensation the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment”

Until the final order of confirmation is made, the plaintiff cannot pay the award, and cannot take possession of the land. Until that time the landowner retains possession of his land and takes the fruits thereof. Until that time there can be no default on the part of the plaintiff, and he cannot be subjected to damages for not paying the award. The landowner should not have the possession of his land, and, at the same, time, receive the interest on the value. In this case the fee owners received, or were entitled to receive, rents from their tenants, and they should not, during the same time, have interest upon the value of their property. It is doubtless an inconvenience to the landowner, sometimes causing him damage, that the condemnation proceeding may hang over his property until the final order has been entered. But that is an inconvenience like that resulting from any litigation for which the law affords no remedy or compensation. If he gets the value of his property at the time his title and possession are taken from him, he obtains all the compensation the constitution guarantees to him. United States v. Engeman, 27 Abb. N. C., 141; In re Pigott, L. R., 18 Ch. Div., 146; Edmands v. Boston, 108 Mass., 535. Interest on the award from a prior date would frequently give him more than a compensation. The only way a land owner can get interest upon the amount of the award is to enter and docket a judgment as provided in the condemnation law and then he can collect interest upon his judgment as he could upon any other judgment. The condemnation law makes provision for interest upon the award in but one case, and that is where the plaintiff abandons the condemnation proceeding after an award and afterward renews it. In that case he must tender or deposit the amount of the award with interest. The powers of the supreme court in a condemnation proceeding are statutory, and it cannot arbitrarily order the plaintiff in such a proceeding to pay interest as damages for which by no default he has become liable. It is said that the general term may do what the special term ought to have done. That is quite true. It may make the final order which the special term should have made. But it cannot create a default which did not exist. It cannot impose damages upon the plaintiff for which it is not legally liable. If the award had been in a condition to demand interest on the 30th day of April, then by restoration of the award by the action of the general term the land owners would have been entitled to interest as if the award had been confirmed at the special term. Then it would have been like a verdict set aside at the special term and subsequently reinstated at the general term. But the award could not draw interest until after its confirmation, and that was for the first time effected by the order of the general term.

The order of the general term should, therefore, be modified by striking therefrom the allowance of interest and, as thus modified, affirmed, without costs to either party in this court.

All concur. ■


author: Andrews, Ch. J.

text:
    The People ex rel. James Eckerson et al., App’lts, v. The Board of Trustees of the Village of Haverstraw, Resp’t.

      (Court of Appeals,

      Filed January 31, 1893.)

    Highways—Laying out boad—Laws 1870, chap. 291.
    Where proceedings are taken for laying out a street in a village under chap. 291, Laws of 1870, it is for the trustees to determine in the first instance the boundaries and extent of the road to be opened and the extent of the land to be taken. The jury has but one function, viz., to determine the damages to the land owners whose lands shall be taken. They cannot determine what land shall be taken or when and for what distance a street shall extend.
    Appeal from judgment of the supreme court, general term, second department, affirming order laying out a highway.

      Calvin Frost, for app’lts ;

      F. A. Brewster, for resp’t.

       Reversing 47 St. Rep., 891.

   Andrews, Ch. J.

It is conceded that the proceedings for laying out streets in the village of Haverstraw are governed by the provisions of the general act, chap. 291 of the Laws of 1870, “ for the incorporation of villages.” The provisions on this subject are contained in title seven. Villages incorporated under that act are constituted separate highway districts, and the board of trustees of any village are made commissioners of highways in and for the village and are authorized to lay out and open streets therein under the conditions and circumstances specified. Tit. 7, § 1. The proceeding, when taken adversely to the property owners, to be instituted by petition of at least ten freeholders of the village, “ which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and be filed in the office of the clerk of the village.” The trustees, on the presentation of the petition, are required to meet and examine the same, “ and if they decide the improvement shall be made, they shall so decide by resolution, to be entered in the minutes of the board.” It is made their duty, on deciding in favor of the improvement, thereupon to post in five public places in the village “ a correct description of the lands to be taken for such improvement,” together with a notice for the hearing of objections “ that may be made to the taking of such lands or making such improvement,” which notice is also to be served on the owners of the lands proposed to be taken.

The trustees may, after such hearing, deny the petition, “ or declare by resolution, to be entered in their minutes, their intention to make the said improvement, and proceed to obtain possession of the lands described in the manner provided by the act.” Tit. 7, §1.

The second section of the act authorizes the board, in case the damages are not agreed upon, “to cause a jury of six freeholders tobe summoned to determine and award said damages."

In May, 1891, a petition of the requisite number of freeholders of the village of Haverstraw was presented to the board of trustees of the village for the laying out of a street or public highway in the village “■mpon the lands of James Eckerson, J. Esler Eckerson, Maria E. Eckerson, Harriet A. Eckerson, Sarah L. Eckerson and M. Bogert Eckerson, and upon lands now included in and forming part of Bockland street, or so much thereof as may be necessary to form a proper connection between the street and highway recently dedicated by Brewster J. Allison, Esq., to said village, which terminates in the center of Warren avenue and the north end of Bockland street, as it now exists, and which are more particularly described as follows, viz.: Beginning at a point in the center of Bockland street, two hundred and ten feet southerly from the center of Warren avenue, as it is laid out on what is known as the map of the Allison farm, and as it was also laid out by the order of the commissioners of highways in the year 1868, and was formerly traveled and used, and running thence north tine-fourth of a degree west two hundred and ten feet to the center of Warren avenue; the said line above described to be the center of the proposed street, and said street to be of the width of fifty feet, that is to say, twenty-five feet on either side of said center line.”

It is the obvious construction of this petition that it asked for the taking of such part only of the strip of land described in the petition, for the proposed street, as should be necessary to connect Warren avenue and the north end of Bockland street. If a strip two hundred and ten feet in length was required for that purpose, then the petitioners prayed that land to that extent should be taken; if not so inquired, then that only such part of said strip “as maybe necessary” should be taken and appropriated for the proposed street.

The petitioners left it to the trustees to determine how far the north end of Rockland street was from the center of Warren avenue, and whether the strip of land to be taken should be 210 feet in length, or less, was to depend upon the ascertainment of that fact.

The situation will be more clearly understood by a short explanation. The street petitioned for, was to run northerly and southerly, parallel with the Hudson river. Warren avenue ran from the river, at right angles to the proposed street. North of Warren avenue one Allison had dedicated a north and south street, terminating on the south at Warren avenue. The proposed street would form an extension southerly of the street dedicated by Allison, and was to extend so far southerly from Warren avenue as would be required to make a connection with the north end of Rockland street, a highway already existing. The plan, if carried out, would make a continuous street all along the river front. How far north Rockland street extended was, it seems, in doubt. It depended upon questions of dedication and user. The board of trustees, after receiving the petition and after having taken the preliminary proceedings prescribed in the statute of 1870, passed a resolution laying out the proposed street, describing the street and the lands to be taken in the precise language used in the petition. The board thereby necessarily left the length of the proposed street uncertain, and consequently the extent of the lands to be taken. They then by resolution, reciting the previous proceedings, directed the summoning of a jury to ascertain the damages of the owners of the lands, and the jury after a protracted hearing awarded the relators the sum of ninety-two dollars “ for ninety feet of land taken to connect the northerly end of Rock-land street with a public highway, dedicated to said village by Brewster J. Allison, at the center of Warren avenue.”

The substance of the proceeding was that the board of trustees remitted to the jury the determination of the question, how far north Rockland street extended, and the jury having decided that it extended to within ninety feet of Warren avenue, the jury awarded compensation for land for that distance only.

We are of opinion that it was for the trustees to determine in the first instance the boundaries and extent of the road to be opened and the extent o£ the land to be taken; in other words, to make a survey and definite description of the proposed street. The statute requires that the trustees in the preliminary notice shall give “a correct description of the lands to be taken.” The statute can only be satisfied by a reasonably accurate description by boundaries and fixed monuments. How far the road was required to be laid to accomplish the purpose desired, it was for the board to determine. If this was uncertain because of the uncertainty of the extent of the dedication or user of Rockland street, the board could not escape the responsibility of accurately defining the extent of the proposed street and place it upon the jury. The jury had but one function, viz., to determine the damages to the land owners whose lands should be taken. They had no power to determine how long the street should be, depending upon their judgment on the questions of user or dedication of the ■existing street, or its extent as a public highway.

It may be that where, by the order laying out, the termini of the proposed street are accurately defined, the jury may, for the purpose of ascertaining the damages, inquire whether any public easement already exists over the land or any part thereof. See Baldwin v. City of Buffalo, 35 N. Y., 375. But the function of determining what land shall be taken, and where, and for what distance a street shall extend, is separate and distinct from that which alone belongs to the jury, viz.: the ascertaining of damages for lands described and defined in the order laying out the street or highway.

The act authorizes an appeal from the award only, and the . amount is the only question which can be reviewed thereon.

We are of opinion that the order laying out the street was invalid and conferred no jurisdiction to take the further proceedings, and that the difficulty was not cured because the counsel for the trustees, in the course of the hearing before the jury, limited the claim of the village to a strip of land ninety feet in length.

The relators objected to the successive proceedings as they took place and have in no way waived their rights.

It is unnecessary to consider the other objections relied upon.

The result is that the order of the general term should be reversed and the proceedings of the board of trustees set aside, with costs in all courts.

All concur.


text:
    Daniel Engel, Adm’r, Resp’t, v. The Eureka Club, App’lt.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Negligence—Liability of contractor.
    Where the act to be done by a contractor may be safely done in the exercise of due care, although in the absence of such care injurious consequences to third persons would be likely to result, the contractor alone is liable, provided it was his duty under the contract to exercise such care.
    2. Same.
    Defendant contracted with a builder to convert an old building into a - club house. The outer wall of a driveway was so worn by years of contact with wagons, that when the contractor removed the roof connecting the wall with the house, without shoring up as is the custom under such circumstances, it fell, killing plaintiff’s wife and child. Held, that the contractor and not defendant was liable.
    Appeal from judgment of the supreme court, general term, fifth department, granting plaintiff’s motion for a new trial.

      Martin W. Cooke, for resp’t;

      Thomas Baines, for app’lt.

       Reversing 45 St. Rep., 940.

   Andrews, Ch. J.

We are of opinion that the motion for a new trial should have been denied.

The defendant had purchased the premises in March, 1892, for its uses as a social club. It made a contract with a competent builder to alter the building thereon in accordance with a plan adopted. The builder was to furnish the new materials necessary and do the work for a fixed price. The improvement contemplated. the taking down of a brick wall, sixteen feet high, on the north line of the premises adjoining premises owned by one Ihrig, occupied in part by plaintiff as a tenant. The wall formed one side of a driveway on defendant’s premises and was roofed over. The roof was formed by rafters extending from the main building to the brick wall and fastened to and resting upon a plate on the top of the wall, secured by bolts, and was covered with boards and shingled. The wall had been erected 30 or 40 years, and was 8 inches thick, and rested on a stone foundation. It had been worn away next to the driveway by contact with wagons, and the bricks had been broken along the line of contact to the depth of three or four inches. The wall on the Ihrig side was also in places decayed, and the mortar had fallen out

The defendant had never occupied the premises, and when the contract for repairs was made, the keys of the house were given to the contractor. The contractor commenced the work of taking down the wall by removing the roof which covered it, and taking down the rafters, which left the wall wholly unsupported, and the day after the roof was removed the wall fell over towards the Ihrig lot, and the wife of the plaintiff, with her child, who were in the yard near the wall, were killed.

The evidence tends to show culpable negligence in the manner of taking down the wall. It was shown that, in .consequence of its weakened condition, by reason of age and the decay spoken of, common prudence required that precautions should have been taken to prevent its falling, either by shoring it up, or by removing the roof and the wall in sections. The evidence is undisputed that this was the common and usual proceeding under similar circumstances.

The officers of the defendant had no actual knowledge of the condition of the wall either before or during its removal, or how the work was being done, and they did not in any way interfere or direct in respect to the manner of doing the work.

It is the general rule that a party injured by the negligence of another must seek his remedy against the person whose actual negligence it was which caused the injury, and that such person alone is liable. King v. N. Y. C., etc., R. R., 66 N. Y., 182.

The case of master and servant is an exception, and the negligence of the latter is imputable to the master where the servant, in doing the act which occasions the injury, is acting within the scope of his employment This exception rests upon most satisfactory reason, because the servant, in the case supposed, is acting in place of the master and by his appointment, and the master, who selects and controls the servant, makes the servant his representative in his business.

But the exigencies of affairs frequently require that persons exercising independent employments should be entrusted by owners of property with its improvement, and in various relations and under varying conditions they are employed, not as servants, but as independent contractors to execute contracts which the person who secures their services is unable to execute himself, or the execution of which he prefers to commit to another. The duty which the contractor owes is defined by the contract or implied therefrom. In such cases the maxim qui facit per alium, facitper se, has no appropriate application, and there is no reason founded upon public policy, or the relations between the parties to the contract, which should subject one party to the contract to liability to third persons for the negligence of the other.

The principle that no liability on the part of the innocent party in such cases exists has become the settled doctrine of our law. It leaves an adequate remedy to the party injured against the real author of the wrong.

There are well understood exceptions to this rule of exemption. Cases of statutory duty imposed upon individuals or corporations ; of contracts which are unlawful, or which provide for the doing of acts which when performed will create a nuisance, are exceptions. In cases of the first mentioned class the power and duty imposed cannot be delegated so as to exempt the person who accepts the duty imposed from responsibility, and in those of the second class exemption from liability would be manifestly contrary to public policy, since it would shield the one who directed the commission of the wrong. Storrs v. City of Utica, 17 N. Y., 104; Lowell v. B. & L. R. R. Co., 23 Pick., 24; Hole v. S. & S. R. Co., 6 H. & N., 488; Butler v. Hunter, 7 id., 826.

There are cases of still another class, where the thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or, in the language of Judge Dillon, is “ intrinsically dangerous,” in which case it is held that the party who lets the contract to do the act cannot thereby escape from responsibility for any injury resulting from its execution, although the act to be performed may be lawful. 2 Dillon on Mun. Corp., § 1029, and cases cited.

But if the act to be done may be safely done in the exercise of due care, although in the absence of such care injurious consequences to third persons would be likely to result, then the contractor alone is liable, provided it was his duty under the contract to exercise such care. McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y., 178; Conners v. Hennessey, 112 Mass., 96; Butler v. Hunter, supra.

The application of these principles to this case exonerates the defendant from liability. The taking down of the wall was not intrinsically dangerous. The only danger to be apprehended was in doing it carelessly or unskillfully. It was in the manner of doing it and not in the thing itself. The danger of leaving the wall without support was obvious, and could have been easily avoided, and the usual method required that precautions should be taken. It was the duty of the contractor to take such precautions, because it was implied in his contract that he should take down the wall in a careful and proper manner. Pollock, C. B., Butler v. Hunter, supra.

It does not change the situation of the defendant that the wall had become weakened by age and decay.

It is the general duty of the owner of premises to keep the walls of his building in a safe condition, so that they will not endanger his neighbor by falling, and if he negligently omits its performance and his neighbor is injured, the injury is actionable. Mullen v. St. John, 57 N. Y., 567.

But the evidence is undisputed that the wall was safe and would not have fallen if it had been left as it was when the contract was made, supported by the roof. It was not a menace in its existing condition. It became dangerous only in consequence of the manner in which the contractor proceeded to take it down. It would probably have been less liable to fall, although deprived of the support of the roof, if the wall had been in perfect repair when the contractor entered upon the work. But we perceive no causal connection between the neglect to repair and the injury to the plaintiff’s intestate. The sole cause, in a legal sense, was the negligence of the contractor in omitting to do what he was bound to do. The performance of his duty would have prevented the injury.

The exceptions to the admission or rejection of evidence present no material error.

The order of the general term should be reversed and judgment of nonsuit should be entered, with costs to defendant.

All concur.


author: Gray, J.

text:
    James N. Platt, Trustee, Resp’t, v. Andrew H. Mickle et al., Resp’ts, and Lizzie Mickle, Individually, and as Ex’rx, App’lt.

      (Court of Appeals,

      Filed January 31, 1893.)

    Will—“Next of kin.”
    To extend the meaning of the word’s "next of kin,” so as to include a husband or wife, such an intention must definitely appear from the context, or other portions of the will.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of judge at special term construing will.

      II. 0. Harris, for app’lt;

      John W. Weed, for resp’ts.

       Affirming 45 St. Rep., 750.

   Gray, J.

In the distribution of this trust fund, held by plaintiff as trustee under the provisions of the will of Rachel Miller, deceased, Andrew and George Mickle, sons of her deceased grandson, George Benjamin Mickle, claim to be entitled to share, to the exclusion of Lizzie Mickle, the widow of their father. She insists upon her right to share in it, upon the ground that she should be regarded as one of her husband’s next of kin, to whom Rachel Miller by her will had given her grandson’s share upon his decease. Turning to the will in question, which was made in 1847, we find that she had created a trust in one-fourth of her residuary estate for the benefit of her grandson, during his life, and directed that such trust estate should determine upon his decease. I will quote her further language: “And I thereupon after his decease give, devise and bequeath all his said one-fourth part of the said rest and residue of the said trust estate then being in the hands of my said executors and trustees, the survivor or survivors of them, their heirs, legal representatives or successors, to such person or persons as shall then be the heirs at law and next of kin of nay-said grandson,George Benjamin, respectively, in such parts, shares and proportions as, having regard to the form in which the said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seized thereof in fee simple as an inheritance on the part of his mother, or possessed of the same, and he had died intestate and they had inherited or become entitled thereto from my said grandson, George Benjamin Mickle.”

The appellant wants us to hold that the words “next of kin ” were not used in their strict technical sense, and that they should be so liberally construed as to include her, and she thinks there would be justification for our so doing in view of the scheme of the will and of the circumstances of her marital relation. But there is nothing in this, or in any other part of the will, or in the fact of her marriage, which, in any view, could lead us to suppose that the testatrix had in her mind persons who would not answer strictly to the designation of next of kin of her grandson. It is conceded, and it, perforce, must be conceded, that, in construing this testamentary provision, we must be guided by what appears to have been the intention of the testratrix. So far as its language goes, it is most explicit. Husband and wife are not, and never were regarded as next of kin to each other. By the primary meaning of these words only relatives in blood are understood. To extend their meaning, só as to include a husband or a wife, such an intention must definitely appear from the context, or other portions of the will. In this case, in the utter absence of anything from which it might be possible to deduce such an intention, to give them the interpretation contended for would be to disregard a fundamental rule in such cases. The case is governed by Murdock v. Ward, 67 N. Y., 387, and the other authorities cited below by Judge Lawrence in his careful opinion. I find no authority for giving to these words an enlarged sense, in the absence of something in the context, or of some requirement of a statute, which would furnish the court with a reason for doing so. Here, as I have said, there is nothing which, being rationally considered, would justify us in reading these words in any other than their strict legal sense, and, therefore, the judgment should be affirmed, with costs to the respondent, to be paid by the appellant.

All concur.


text:
    John Foshay et al., Pl’ffs, v. Frederick Robinson, Def't.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Mechanics’ lien—Abandonment by contractor.
    A contractor abandoned work on a building and the owner completed it in pursuance of a clause in the contract at a sum exceeding the amount remaining unpaid of the contract price. At the time of the abandonment the contractor had been paid the first two instalments and the work required to entitle him to the third was very nearly completed. Defendants Young and others had filed a lien for material exceeding the amount of work done on the third instalment. Held, that inasmuch as when the lien of the materialmen was filed there was, in fact, due by the terms of the contract from the owner a certain sum of money, the obligation of the owner inured to the benefit of the materialmen, subject only to such deductions as should be allowed for the expense of completing the work entitling the contractor to the third payment and for remedying defects in work.
    2. Same.
    The fact that eventually the owner expended, in entirely finishing his house,. more than remained due under the contract, cannot affect the owner’s obligation as it existed at the time when the lien of the material-men was filed.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered on the report of a referee in an action to foreclose a mechanics’ lien.

      Wm. A. Boyd, app’lt in person;

      M. Banta, for resp’ts
    Young et al; Jas. G. Be La Mare, for def’t
    Eobinson; Arthur T. Hoffman, for resp’ts.

       Affirming 43 St. Rep., 20.

   Per Curiam.

The plaintiff, as a subcontractor, brought this action to foreclose a mechanics’ lien, filed for the value of materials, etc., furnished to the defendant Eobinson, who had contracted with defendant Boyd to build for him a house. By their contract the owner was to pay the contractor in instalments, fixed by different and designated stages of the work of building, with the proviso that the work should progress in a satisfactory manner, and that a certificate of the architects should be obtained as each of the stages was reached and a payment required. It was also provided that the architects’ certificate should not exempt the contractor from the obligation to correct previous defects in workmanship, etc. A further agreement provided for the finishing of the work by the owner in the case of the contractor’s neglect to supply a sufficiency of materials or workmen. The contractor not proceeding satisfactorily, the owner notified him that if, within a certain specified time, he did not supply a sufficient number of workmen, he, the owner, would finish the work, and, because of a failure to comply with the notice, he eventually did so. At that time the contractor had nearly completed the plastering on the budding, which, according to the contract, would have entitled him to the payment of the third instalment of $1,800. The referee before whom the case was tried found, with evidence in the case to support such a finding, that the plastering was substan-' tially completed, and that the sum of $284 would represent the value of the work to complete it. He also found, upon sufficient evidence, that there were expended by the owner, to remedy various defects in the previous building work dene, sums of money aggregating $485. These two sums he deducted from the amount fixed as the third instalment to be paid, and the balance remaining, of $1,031, he used in liquidating pro tanto the first lien filed, viz., of defendants Young and Tripp.

The principal question raised by the record relates to the referee’s decision in these respects. He decided that inasmuch as from the evidence it was clear that the owner had fairly expended in completing the building a sum in excess of what would be due the contractor if he had completed his contract, the contractor himself was not entitled to any lien ; but that, inasmuch as when the lien of the materialmen was filed there was, in fact, due by the, terms of the contract from the owner a certain sum of money, such an obligation of the owner inured to the benefit of the material-men, subject only to such deductions as should be allowed for the ■expense of completing the plastering and for remedying defects in the past work. With the referee’s reasoning and conclusion in that respect we are satisfied. The fact that eventually the owner ■expended, in entirely finishing his house, more than remained due under the contract, cannot affect the question of the owner’s obligation as it existed at the time when the lien of these materialmen was filed. Had the contractor wholly completed the building at the plastering stage, he would certainly have been entitled to the instalment, and its completion by the owner was in place of the contractor as to the materialmen, and as to them created the liability over, lessened only by what he was obliged to expend to bring the building up to the stage mentioned in the contract as the time for the third payment. The moneys were earned at that time and the liens of these materialmen at once attached.

The owner, who is appellant, insists upon the commission of errors by the referee in his findings, but a careful perusal of the record does not bear him out in that respect, nor in respect to the soundness of any exceptions.

The judgment should be affirmed, with costs to the respondents Young and Tripp, as against the appellant Boyd.

All concur.


author: O’Brien, J.

text:
    The First National Bank of Chicago, Resp’t, v. Robert J. Dean et al., App’lts.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Warehousemen—Estoppel.
    A negotiable receipt of a warehouseman which states that the warehouse is a “free” one, when, in fact, it is a bonded warehouse, estops such warehouseman from demanding, from a bona fide transferee of such receipts, payment of the government tax.
    3. Same.
    The fact that the original owners knew that the goods were still bound for the internal revenue tax is not available to defendants, providing plaintiff had no knowledge of the facts and parted with value upon the faith of the paper and the goods represented thereby.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiffs.

      L. K Warren, for app’lts ;

      Charles A. B. Pratt, for resp’t.

       Affirming 44 St. Rep., 208.

   O’Brien, J.

The plaintiff recovered a judgment against the defendants for the value of twenty barrels of brandy which the plaintiff claimed to own, and the defendants refused to deliver ■except upon payment of the United States internal revenue tax. The brandy had been purchased in California and consigned to Marschall, Spellman & Co., of blew York, where it arrived and was stored by the owners in defendants’ warehouse about July 9, 1889. The defendants delivered to the owners two negotiable warehouse receipts for the same, one for eleven barrels and the other for nine.barrels. Both were in precisely the same form, differing only in the quantity of brandy represented thereby. The following is the material part of the instrument, omitting parts of defendants’ business advertisement which have no relation to the questions in the case, except as hereafter mentioned:

“ No. 6955. ISTew York, July 9, 1889.
“ Received on storage 492-4 Greenwich street stores for account and risk of Messrs. Marschall, Spellman & Co., and deliverable only upon the indorsement and return of this receipt, and the payment of all charges, eleven (11) bbls. said to contain brandy.
“R. J. Dean & Co.”

Across the face of the receipt was printed in large type and with red ink the word “ negotiable,”' and on the margin was. printed the following: “ This receipt is negotiable and may be transferred by indorsement thereof; and any person to whom the same may be so transferred shall be deemed and taken to be the owner of the property therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or persons; but no property shall be delivered except on surrender and cancellation of such original receipt, or the indorsement of such delivery thereon in case of partial delivery.’’ Above this receipt, on the same paper, was printed the location of the defendants' several warehouses, in the city of New York, classified as bonded and free- warehouses and these specified in the receipt at 492 and 494 Greenwich street were there designated as “ free warehouses,” which, it appears, means, in commercial parlance, that the revenue tax or the import duties on goods stored in such warehouses have been paid. When the plaintiff sought to obtain the goods described in the receipt, it was ascertained that the Greenwich street stores, described in the receipt as free, were, in fact, bonded warehouses, and that the property was subject to the internal revenue tax, and the question is whether the defendants, under the circumstances, are responsible to the plaintiff for the goods as free brandy. Soon after the delivery of these receipts, the owners of the goods mentioned therein indorsed and transferred them to certain commission merchants in Chicago, doing business under a corporate name, and in the indorsement the goods were directed to be delivered to their order. The latter were customers of the plaintiff, a national bank, engaged in business at Chicago, and they indorsed and delivered the receipt to it as collateral security for indebtedness and loans. They subsequently failed, owing the plaintiff a very large sum of money, and, after exhausting all other security and applying it upon the debt, there still remained due to the plaintiff about $80,000. The plaintiff made a demand upon the defendants of the brandy described in the receipt, tendering all the charges of a free warehouse, and there was a refusal by defendants to deliver. At the close of the evidence the learned judge, without objection from either side, submitted four specific issues or questions of fact to the jury, and upon which the jury found as follows:

1. That the plaintiff did, on the faith of the warehouse receipts, issued by the defendants, make additional advances to Meade, Yan Bokkelen Co., so that its position would be changed for the worse if not allowed to enforce the receipts according to their legal effect.

2. That the injury aforesaid would amount to as much as the value of the goods.

8. That the plaintiff did believe that the goods were free goods, that is, goods on which the government tax had been paid, and did act upon that belief in its dealings with Meade, Yan Bokkelen Co.

4. That the value of the goods, at the time of the demand, was $1,842.60.

Both sides, as appears from the record,' moved for judgment on the special findings of the jury, and neither party attempted to review the action of the jury by a motion for a new trial, and subsequently the trial was completed before the court alone, who adopted the findings of the jury as his own, and made additional findings of fact and conclusions of law, in which judgment was directed for the plaintiff, and the defendant filed exceptions to the findings and conclusions. The court found, among other facts, that upon, and after receiving the two negotiable warehouse receipts, and upon the faith of the security offered thereby, the plaintiff made new loans, and advanced new money to Meade, Yan Bokkelen Co., amounting in the aggregate to more than the value of the goods represented by the receipts, and that upon the faith of the security the plaintiff surrendered the past due notes of said company, and extended the time of payment of the indebtedness represented thereby, by substituting the new notes of the company, payable on time, in place of the notes so due and surrendered. That the plaintiff took the receipts and made the advances, and extended the time of payment on the notes past due, believing that the goods described in the receipt were not subject to the internal revenue tax, and that the company in whose possession they were, and who procured the loans and extensions from the plaintiff, were the legal holders and owners of the receipts, and entitled to the possession of the property described therein. It is not clear that the defendants are in a position to review the findings of the jury. The action was one at law, in which either party could demand a jury trial as matter of right, and the evidence was all taken and the rulings made while the trial was proceeding before a jury. Then, by consent, a special verdict was taken upon certain questions of fact, with an understanding that the court alone should dispose of the remaining issues and render final judgment in the case. On the rendition of the verdict both parties moved for judgment, whereupon, by consent, the court took the case and heard argument thereon, adopted the findings of the jury and made other findings. Bequests to find were presented and exceptions filed in the same manner as if the trial was by the court. The motion of the defendants’ counsel for judgment in his favor on the verdict indicates that he was satisfied with the findings of fact. If he was not, he should have moved for a new trial and proceeded to review the action of the jury under § 1003 of the Code, which he failed,to do. Jackson v. Andrews, 59 N. Y., 244; Chapin v. Thompson, 80 id., 275; S. C., 23 Hun, 12; Bowen v. Becht, 35 id., 434.

The argument for defendants does not make it clear whether it is sought to review a judgment upon a verdict or upon a decision of the court. It is certain that after the verdict was rendered the court, by consent, took possession of the whole case, and all the .subsequent proceedings were precisely the same as upon a trial of xhe whole issue by the court. The findings of fact in the case are now those of the court and not of the jury, and the verdict has disappeared, except, perhaps, as an aid to the court in determining the facts. In this condition of the record it will be favorable enough to the defendants to treat the trial as one by the court, and that, we think, is the view in which their counsel has presented it here.

In this aspect of the case the rulings made upon that part of the trial had before the jury become of little consequence, and if the facts found support the legal conclusion the judgment must ■stand unless some of them, that are material, are without evidence to support them or the exceptions to the decision and findings of the court present some question of law.

The facts found are sufficient to uphold the judgment. There can be no doubt that the receipts are negotiable instruments. All the parties intended that they should be and made them so. Both parties requested the court to so hold, and after the decision neither should be allowed to change positions. Moreover no other legal result could have been sustained, as the defendants by the very terms of the contract made the instruments negotiable by ■stamping the word across the face of the paper and inserting in the margin an explicit statement to that effect. The quality of negotiability inheres in the obligation and imparts to it all the attributes; common to such instruments by law or commercial usage. It is not denied by the defendants that the lawful holder •of such receipts becomes vested with the title to the property represented thereby, nor that an innocent purchaser may obtain even ■a better title to such property than the original owner. The real contention of the defendants is that the plaintiff is not in a position to ignore the equities that existed between the original parties. So far as these equities are disclosed by the record they consist of knowledge on the part of the original owners, who took the receipts from the defendants, that the goods were still bound for the internal revenue tax, and also in the claim that the commission merchants in Chicago negotiated the paper to the plaintiff in fraud of the rights of the first holders. But this defense is :not available to the defendants, providing the plaintiff had no knowledge of the facts and parted, with value upon the faith of the paper and the goods represented thereby. That the plaintiff had any actual knowledge of any equities existing between antecedent parties is not claimed, and certainly there was nothing upon the face of the paper to charge it with such notice. There was upon the face of each instrument what was equivalent to a statement that the goods were in a free warehouse, and, therefore, according to the meaning of that term in commercial transactions, free from the tax.

These facts are all found, and there is no conflict in the testimony in that regard. The controversy is thus reduced to the single inquiry whether the plaintiff is a bona fide holder. Upon the facts found by the trial court there can be no doubt that it is, as they show that the plaintiff took the receipts for value and without knowledge of any equity existing between the original or any parties from whom the title came. The learned counsel for the defendants contends that these findings are not sustained by any evidence. No evidence was given at the trial on behalf of the defendants, and the case rests entirely upon the testimony offered by the plaintiff. We have carefully examined the testimony with reference to the findings which are attacked. It is clear that the plaintiff took the receipts as collateral security for a large debt which Meade, Yan Bokkelen Co. owed it at the time, and for which it held other collateral, and for any debt which they should thereafter contract. The trial court has found that upon the faith of these receipts the plaintiff subsequently made new advances of money, a portion of which is still due, amounting to more than the value of the goods in question, as found by the jury. It is also found that the plaintiff, after the receipts were pledged to it, and upon the faith of the security, extended the time of payment of some of the notes of the company then due, by taking new notes and surrendering the ■ old ones, which latter were never paid, as a very large sum is still due the plaintiff upon the account. There is some testimony in the record to support these findings, and, being sustained, they give to the plaintiff the character and all the rights of a bona fide holder. Coddington v. Bay, 20 Johns., 637; Phœnix Ins. Co. v. Church, 81 N. Y., 218; Paddon v. Taylor, 44 id., 371; Brown v. Leavitt, 31 id., 113; Day v. Saunders, 1 Abb. Ct. App. Dec., 495; Pratt v. Coman, 37 N. Y., 440; Clothier v. Adriance, 51 id., 322; Youngs v. Lee, 12 id., 551; Mech. & Traders’ Bank v. Crow, 5 Daly, 191; affd. 60 N. Y., 85; Mayer v. Heidelbach, 123 id., 332; 33 St. Rep., 610.

The plaintiff’s title was, therefore, unaffected by any equities that may have existed between prior parties. Daniel on Neg. Inst., § 769a.

There are no other questions in the case, and none of the rulings to which exceptions were taken were prejudicial to the defendants.

A suggestion is made that the damages recovered were excessive, inasmuch as the regular warehouse charges were not de-1 ducted from the value found. It is sufficient to say in answer to this point that, even if it could be inferred from the testimony, no such question was raised at the trial, or appears to have been urged at the general term, nor is there any finding or request to find on the subject.

The judgment should be affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Louise Volker, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 3, 1893.)

    Insurance (Life)—Conditions of policy.
    The policy provided that “no obligation is assumed by the company prior to the date hereof, nor unless upon said date the assured is alive and m sound health ” It appeared that for three years before the policy issued the insured was afflicted with chronic asthma so as to be unable to pursue his usual calling, and that such ailment with resultant complications led to his death. Meld, that defendant’s liability under the policy never attached.
    Appeal by defendant from a judgment of the district court, in the city of blew York, for the ninth judicial district, in favor of the plaintiff.
    Action by the beneficiary to recover upon two policies of insurance on the life of her husband.

      R. Van Damm, for resp’t;

      Wm. H. Arnoux, for app’lt.
   Bischoff, J.

The judgment appealed from is plainly unauthorized by the evidence, and should be reversed.

Plain tiff's recovery was upon one of the policies only, and this provided as follows: 11 No obligation is assumed by the company prior to the date hereof, nor unless upon said date the assured is alive and in sound health.”

On the trial it appeared conclusively that for upwards of three years before the date of the policy the assured was afflicted with chronic asthma to such an extent that he was unable to pursue his usual calling, and that this ailment, accompanied by subsequent and resultant complications, led to his death.

_ bfo argument is required to demonstrate that it was the intention of the parties to the contract of insurance that the inception of defendant’s risk should be dependent upon the existence of certain conditions, to wit: that at the date of the policy the assured be alive and in sound health; and, these failing, defendant’s liability under the policy never attached.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event

Pryor, J., concurs.