text:
    Charles F. Mattlage, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Bailiioad—Elevated—Damages—Injunction.
    In an action against an elevated railroad for an injunction and damages, where the court finds as facts that the fee and rental values o'' plaintiff’s premises are greater now than at any time prior to the building of the road, but does not :nd that this increase was due to other causes than the road, or that it would have been greater but for the presence of the road, the plaintiff is not entitled to an allowance of damages nor to an injunction.
    Appeal from judgment in equity allowing an injunction against the maintenance and operation of defendants’ railroad upon and in front of plaintiff’s premises on Greenwich street, and awarding damages for past injury. The plaintiff is owner of the soil of the street as well as the easements therein.
    The permanent damage to plaintiff’s' property is assessed at $10,250, and the rental damage at $7,997.07.

      Charles D. Ridgway, for resp’t; Herbert Barry, for app’lts.
   Pryor, J.

By appropriate exceptions appellants challenge the validity of the judgment in respect both of fee and rental damage; and we are constrained to the conclusion that in each particular the learned trial court committed error.

At last the measure of compensation for the wrongful invasion and appropriation of private property in'the streets by elevated railroad companies has been definitely determined by the court of appeals, and it is this: For property actually taken by the companies, they must pay the full market value without allowance or deduction on account of benefits; and as to property not taken but injuriously affected, they must make good the depreciation caused by such wrongful invasion and appropriation. Bohm v. The Metropolitan El. R. Co., 129 N. Y., 576 ; 42 St. Rep., 247. As to the latter element of compensation, namely, damage to property not taken, the case cited conclusively establishes the proposition that if the value of such property be not diminished by the presence and operation of the railroad, then no injury has been sustained and no indemnity is due.

For the mere taking of plaintiff’s easements in the street, he is entitled only to nominal damages. Bohm v. Metropolitan R. Co., supra; Newman v. Metropolitan El. R. Co., 118 N. Y., 623; 30 St. Rep., 36.

And, as to the injury inflicted upon him by the wrongful appropriation of his property in the soil of the street, we are not authorized to infer that it was substantial, since no evidence was adduced or finding made as to the value of that property.

It results, therefore, that the sum to which plaintiff is entitled on account of permanent injury to his premises depends upon and is proportioned to the amount of depreciation in their value.

This amount the learned trial judge ascertained to be $10,250.

But the learned trial judge finds as a fact, that “ the fee value of said premises is greater to-day than at any time before the erection of said railway structure.” He does not find, nor did the evidence authorize him to find, that this increase in the value of plaintiff’s premises was due to any other cause than the agency of defendants’ railroad ; neither does he find, nor did the evidence authorize him to find, that but for the presence of the railroad the increase of value would have been still greater. “There is not a shadow of evidence that if the defendants had not taken this property and built their railroad, the property of the plaintiff would have been as valuable or anything like as valuable as it is.” 129 N. Y., 594; 42 St. Rep., 247.

It is apparent, therefore, that the plaintiff “has not been injured to the extent of a farthing. Where it appears that the property left has actually advanced in value, unless it can be shown that but for the act of defendants it would have grown still more in value, the fact is plain that it has not been damaged.” Bohm's case, 129 N. Y., 593. The fact that the increase in the value of other property is at a greater rate than in that of the plaintiff, “ is nor of the slightest importance upon the question whether the plaintiffs have been injured by defendant’s conduct. * * * The plaintiffs are not damaged because their neighbors are benefited to even a greater extent than they are by the defendant’s road.” 129 N. Y., 594-5; 42 St. Rep., 247.

As to past damages, the learned trial judge finds that they amount to the sum of $7,997.07. But he finds also that the present rental value of the premises “ is in excess of the rental value thereof during any period since the year 1869,” and “ largely in excess of the rental value thereof during the period immediately preceding the construction of said railway ” (1878).

Upon the argument above presented, we conclude that the judgment is vitiated by error as well in the allowance of past as of permanent damages.

Without reference to other formidable objections urged against the judgment, it must be reversed for the errors indicated, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Giegerich, J., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    J. Romaine Brown, App’lt, v. John Sullivan, Respt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Summary proceedings—Proof of relation of landlord and tenant.
    In summary proceedings to remove a tenant, plaintiff, after proof that the president of his grantor, who signed, and the witness to an alleged lease had died, and of the genuineness of their signatures, introduced in evidence the lease of the premises in question, which apparently had been signed by defendant by lus mark. Defendant admitted that he had been and was in possession, but did not know who the owner was, denied that he had signed the lease, or authorized any one to sign for him, and disclaimed all knowledge of the same. Reid, that in view of all the circumstances, the weight of evidence was in favor of the genuineness of the lease, and of the existence of the relation of landlord and tenant between the parties.
    Appeal from an order of the district court in the city of ¡New York, for the tenth judicial district, dismissing the alleged landlord’s petition in summary proceedings to recover possession of lands after the expiration of the term for which they were claimed to have been demised, instituted pursuant to the provisions of §§ 2231, etc., of the Code of Civil Procedure.

      Edwin B. Smith, for app’lt; Breen & Cohalan, for resp’t.
   Bischoff, J.

To sustain the jurisdiction of the court below, as well as his right to recover, it was incumbent upon appellant to prove the relation by agreement of landlord and tenant between respondent and himself, or his predecessors in title or possession, Benjamin v. Benjamin, 5 N. Y., 386; People ex rel. Mitchell v. Simpson, 28 id., 55, and in this behalf, after having first established the fact of the death of Ford, the subscribing witness, and of Graham, whilom president of the Metropolitan Insurance Company, one of the parties thereto, some years before the commencement of these proceedings, together with the genuineness of their several signatures, appellant was permitted to introduce in evidence the following instrument:

“ The Metropolitan Ins. Co. lets, and John Sullivan hires and takes, the cottage and eleven lots, more or less, in the village of Mount Hope, Westchester county, now in his occupation, at the rent of five dollars per month, tenancy to be from month to month, with right, to the Metropolitan Ins. Co. to terminate the tenancy at any time on one month’s notice to the occupant in writing.

“Mount Hope, March 15,1873.
“(Signed) John X Sullivan, Metropolitan Ins. Co.
“ R M. C. Graham, Prest.,
108 Broadway, New York.
“ In presence of
“Henry B. Ford, Deputy Sheriff.”

No question can arise as to the sufficiency of the proof of its due execution. Borst v. Empie, 5 N. Y., 36 ; Jackson v. Burton, 11 Johns., 64. The instrument thereupon became evidence of the facts therein recited, Greenleaf on Evidence, vol. 1, § 572 ; Allaire v. Allaire, 37 N. J. L., 325, and, the names being idem sonans, that respondent, who was at the time in possession of the lands therein mentioned, executed it. Hatcher v. Rochelean, 18 N. Y., 86; People v. Smith; 45 id., 773; Daby v. Ericsson, id., 786 ; Agate v. Richards, 5 Bosw., 456; Jackson v. Orser, 2 Hilt., 99 ; Lyon v. Brown, 6 Alb. Law J., 161. The relation of landlord and tenant by agreement between the Metropolitan Insurance Company, appellant’s grantor,' and respondent, was thus, at least prima facie, established, and from thenceforth it rested with respondent to disprove it.

Respondent admitted that at the time the instrument purports to be dated he was, and has since continued in possession ; that he is illiterate and unable to read or write ; that he is not now, and never was the owner of the lands in the instrument described, and does not know to whom they belong, and that he has never paid any person for their use and occupation by him ; but he denied that he, or any one with his knowledge or authority, affixed his mark to the instrument, and upon the latter being exhibited to him, disclaimed all previous knowledge of it. Here then ensued a conflict of evidence which was determinable only by the test of preponderance in favor of one or the other of the contending parties. The trial justice appears to have found the fact of preponderance in favor of respondent and dismissed the proceedings ; and our inquiry on this appeal is concerning the validity of that conclusion.

That it is our province to review the evidence on appeals from district courts, and to reverse if the judgment rendered is against the weight of the evidence adduced on the trial, admits of no dispute, Schnitzer v. Adelson, 8 Daly, 269 ; Curley v. Tomlinson, 5 id., 283 ; Phillips v. Munsey, 22 St. Rep., 226 ; Stone v. Thaden, 32 id., 296, and in the consideration of the weight of evidence due regard must be had for its kind and quality, the degree of credibility to which the testimony of witnesses is entitled, and the apparent probability or improbability of its truthfulness.

The conceded fact that respondent was in possession of the lands at the time of the date of the instrument in evidence, and Las so continued, dispels any doubt concerning his identity with the person of the same name by whom the instrument purports to have been executed; no one can remember that which has never taken place, but may forget an occurrence, and the positive character of the evidence adduced in support of the existence of the relation of landlord and tenant between the parties to the instrument, therefore," entitles it to greater weight than should be attributed to respondent’s denial of its due execution by him, the latter being evidence of purely negative character, depending upon the accuracy of his memory, its common degree of frailty being intensified by his illiteracy, and the fact that his alleged signature consists only of a cross or mark, which does not possess the distinguishing characteristics accompanying ordinary signatures, and is, therefore, incapable of identification and aid to recollection. Rice on Evidence, vol. 2, p. 797; Stitt v. Huidekoper et al., 17 Wall, 385 ; 84 U. S., 645; Bradley v. Mutual Ben. L. Ins. Co., 45 N. Y., 422. Further, respondent’s denial was fraught with motives of self interest, and subject to discredit on that account, though, not otherwise impeached, Elwood v. Western Union Tel. Co., 45 N. Y., 549; McNulty v. Hurd, 86 id., 547; Canajoharie Nat. Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389, while the genuineness of his signature is supported by the presumption of innocence of the perpetration of a criminal act by Ford, the subscribing witness, and Graham, whilom president of the Metropolitan Insurance Company, and the utter absence of any apparent motive for 'them, or either of them, to resort to a forgery of respondent’s name from which neither could have expected to derive any advantage.

Testing the evidence, observing the foregoing considerations, the conclusion is irresistible that respondent, when he denied his execution of the instrument in evidence, either had forgotten the fact, or, recollecting it, that he resorted to falsehood to avoid its effect.

The order appealed from should be reversed, and a new trial ordered, with costs to abide the event

Giegerich, J., concurs.


text:
    Adolph Simis, Jr., Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Evidence—Parol to vary written contract—Loss of railroad ticket.
    In an action to recover the amount paid for a commutation railroad ticket on the ground of a refusal to furnish a duplicate on the loss of the original, plaintiff was permitted to give evidence of a, contemporaneous agreement of the ticket agent to issue a duplicate in case of loss and of a custom of defendant of so doing. Held, that the fact that the conditions on which the ticket was issued were printed made the contract none the le s one in writing, and that the admission of such evidence violated the rule prohibiting the introduction of paroi evidence to add to a written, contract.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the first judicial district. Action to recover the amount paid for a railroad ticket, by the terms of which plaintiff and the members of his family were entitled to twenty-five trips upon defendant’s railroad within one year from its date, upon presentation of the ticket to the conductor and ferrymaster on the occasion of each trip, the ticket having been issued in consideration of the payment of a reduced rate of fare, and defendant having refused to issue a duplicate in lieu of the original, which was lost before its use was attempted.

      Adolph Simis, Jr., for resp’t; Charles Steele, for app’lt.
   Bischoff, J.

The main questions sought to be presented on this appeal are whether, without any stipulation to that effect, defendant was bound to issue another ticket in lieu of the one lost to enable plaintiff to secure the trips which he had paid for; whether for a refusal so to do it is answerable in damages, and whether the mutual rescission of the contract, of which the ticket was only the evidence, did not require defendant to restore the sum paid in consideration of its promise to accord the trips. It is to be regretted that the admission on the trial of incompetent evidence, under objection and exception by defendant’s counsel, for which a reversal of the judgment is imperative, renders their discussion futile.

That the conditions upon which the ticket was issued were printed made the contract entered into none the less one in writing, Benson v. McMahon, 127 U. S., 467; Lawyer’s co-op. ed. book 32, p. 234, and the admission of evidence offered for plaintiff, to the effect that at the. time of the purchase of the ticket defendant’s agent orally agreed to issue a duplicate in case of its loss, violated the familiar rule that an instrument in writing may not be added to by proof of a contemporaneous oral understanding, and that the writing if not ambiguous, except in cases of fraud, accident, surprise or mistake, is conclusive of what the parties have agreed. Greenleaf on Evidence, vol. 1, § 275.

To establish a custom by defendant of issuing duplicate tickets in-lieu of those lost, plaintiff was permitted to introduce evidence to the effect that defendant had frequently issued them. Evidence of a custom, however, assuming the acts of issuing duplicates on other occasions to be such, is admissible only -when its office is to remove an ambiguity, or to clear up some obscurity, Silberman v. Clark, 96 N. Y., 522; Barnum v. Merchant's Fire Ins. Co., 97 id., 188, 193; Hopper v. Sage, 112 id., 530, 534; 21 St. Rep., 491; Newhall v. Appleton, 114 N. Y., 140, 143; 22 St. Rep., 620, and it is incompetent when offered to show that one of the contracting parties agreed to do more than the language of the contract expressly or by implication requires. Baker v. Drake, 66 N. Y., 518 ; Oelricks v. Ford, 64 U. S., 65; Lawyer’s co-op. ed., book 15, p. 534; Dewitt v. Berry, 134 U. S., 306; Lawyer’s co-op., book 33, p. 896. For the errors above mentioned the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to abide the event.

Giegerich, J., concurs.


text:
    John B. Martin, Resp’t, v. Mary J. Martin, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Evidence—Duplicate copies of agreement competent as original EVIDENCE.
    Where a lease was executed in duplicate, both copies are admissible as original evidence in an action upon the lease.
    2. Lease—Presumption of knowledge of signer—Extent.
    The presumption of knowledge of the contents of a written instrument on the part of the parties executing it does not extend to stipulations inserted or omitted through mutual inadvertence or mistake, and as to these the instrument may be reformed in equity, unless the party seeking reform ition has, by some conduct which makes it inequitable toward the. other to grant it, precluded himself from such relief.
    Appeal from district court.
    Action by tenant against landlord to recover upon the latter s-alleged covenant to reimburse the tenant for one-half of the annual charges for water rates imposed upon the demised premises and paid by the tenant, the defendant contending that her liability did not extend to “ extra ” rates.

      Moses Esberg, for resp’t; Charles C. Protheroe, for app’lt.
   Bischoff, J.

On October 1, 1886, the defendant, Mary J. Martin, entered into a written lease with one Augustus F. Stein, whereby she demised the premises, 15 University Place, in the city of "New York, to Stein for the term of five years, commencing May 1, 1887. Pursuant to the terms of the lease the tenant was to pay the annual charges for water rates to be imposed upon the premises, and was not to assign the lease without the written consent of the landlord.

The lease was executed in duplicate, one copy being retained by the landlord, the other being delivered to the tenant. The copy retained by the landlord contained a covenant on her part as follows, viz.: “ Half the water rate, less any extra rates imposed on tenant and any penalties paid by reason of delay, is to be repaid by landlord to tenant on presentation of receipted bills therefor; the words “any extra water rates imposed on tenant'and” being interlined. The copy delivered to the tenant was in all respects, the same, except that the words “ any extra water rates imposed on tenant and ” had been omitted therefrom. This discrepancy was first discovered on the trial of this action. On May 19, 1887, Stein assigned the lease to one Frank Sackse, who, on June 18, 1889, assigned it to plaintiff, and on June 19, 1889, defendant, by her attorney in fact, consented in writing to the transfer and to-her acceptance of plaintiff as tenant in lieu of Stein, without prejudice, however, to her right to hold Stein answerable for any rent which should at any time remain unpaid. This consent was endorsed on both copies of the lease, and prior to its execution and his acceptance of the assignment, plaintiff, on application to defendant’s attorney in fact, had ascertained that such consent would be forthcoming. On June 1,1890, plaintiff and defendant entered into an agreement to extend the lease for seven further years, a duplicate of such agreement being annexed, before its execution, to each copy of the lease, and reference to the latter being therein made as the “ foregoing lease.” On October 1, 1891, plaintiff paid to the proper authority $164.40 for the water rates which were imposed upon the premises for the last preceding year, of which amount only twenty-three dollars were for the regular annual charges and the remainder for water used in the laundry conducted by plaintiff on the premises. On defendant’s refusal to reimburse plaintiff for one-half of the sum so paid, the latter brought this action for its recovery, and the court below ■awarded judgment for the plaintiff for the sum demanded, with interest.

On the trial defendant contended that in thé absence of evidence of payment of the water rates by Stein, the original tenant, and an assignment of his right to recover one-half of the sum' paid to plaintiff, this action was not maintainable, as the landlord’s covenant did not run with the land and the right to enforce it did not pass by the mere transfer of the leasehold estate. Whatever merit there might have been in this contention was, however, effectually removed by defendant’s explicit written consent to plaintiff’s substitution as tenant in the place and stead of Stein, and from that time forth a privity of contract existed between the parties to this action with regard to the lease, of like effect as though the lease in terms named plaintiff as tenant instead of Stein. Every covenant, therefore, which Stein could have enforced before the substitution was, thereafter, equally enforceable by plaintiff.

It is apparent, however, from the amount of plaintiff’s recovery that the trial j ustice coincided with the claim made for plaintiff to the effect that defendant was estopped from asserting that, pursuant to the terms of the covenant respecting the repayment of one-half of the water rates paid by plaintiff, as it appeared in the copy .of the lease retained by defendant, the extra rates incurred for the purposes of plaintiff’s laundry should be excluded, and as the claim is untenable the judgment is excessive and therefore erroneous.

Being duplicates of the same agreement each copy of the lease was properly admitted, as original evidence. Lewis v. Payn, 8 Cowen, 71; 1 Greenleaf on Evidence, § 558 ; 1 Wharton on Evidence, § 74 ; Taylor on Evidence, § 426. Together they constituted but one and the same agreement, and so construed it appeared on the trial without contradiction that defendant’s liability for one-half of the water rates paid did not extend to the extra rates imposed. The presumption of knowledge of the contents of -a written instrument on the part of the parties executing it does not extend to stipulations inserted or omitted through mutual inadvertence. or mistake, and as to these the instrument may be reformed in equity unless the party seeking reformation has, by some conduct which makes it inequitable toward thé other to grant it, precluded himself from such relief.

It was not claimed, on the trial, that at the time of plaintiff’s purchase of the lease, defendant, or her authorized representatives, had by any affirmative representations induced him to believe that the alleged duplicate in Stein’s possession correctly expressed the terms of the lease, and the claim of estoppel is predicated only upon defendant’s representative’s failure to disclose the discrepancy at the time of plaintiff’s application for the landlord’s consent to the transfer of the lease to him, of which discrepancy, it is conceded, neither the landlord nor her representative was then aware. Estoppel by silence can only arise when there is both opportunity and duty to speak, Viele v. Judson, 82 N. Y., 32; N. Y. Rubber Co. v. Rothery et al., 107 id., 310; 12 St. Rep., 53; and we can conceive of no principle of law or equity which requires the landlord to search the lease for possible errors and to call the attention of an intending purchaser thereto, in the absence of all evidence tending to show that the landlord at the time of the transfer knew that the purchaser was under some misapprehension respecting the terms of the lease. If the landlord was chargeable with knowledge of the contents of the copy in Stein’s possession, so was the latter chargeable with knowledge of the contents of the copy retained by the landlord, and the landlord, and her representative, were justified in assuming that Stein had correctly represented the terms of his lease.

But it is self-evident, from plaintiff’s acts in respect to his purchase of the lease, that he did not rely upon defendant’s or her representative’s silence regarding the terms of the lease as an inducement to purchase it. The fact that Stein was in possession of an alleged duplicate did not preclude subsequent modifications and additions, or breaches on the tenant’s part No inquiries concerning these matters were made of the landlord, and the only inquiry made of her was to ascertain whether she would consent to the transfer. Plaintiff’s determination to purchase the lease if the landlord’s consent to the transfer could be secured necessarily preceded her consent, and this fact refutes any claim that he was induced to purchase by the landlord’s omission to inform him of the discrepancy. Had plaintiff, prior to completing his purchase, applied to the landlord, or her represetative, for information concerning the lease, or the condition of the estate thereby demised, and she had undertaken to give it, and he, in reliance thereon, had consummated the purchase, the truth of the information given could not be disputed as to him and his assigns. Such, however, are not the facts as they appear on the trial of this, action.

Again, no estoppel can arise from the subsequent agreement, between the parties to this action which provided for an extension of the lease. This agreement was also in duplicate, a copy being attached to each copy of the lease, and so executed, and reference in the agreement was made to the lease annexed as the one which was intended to be extended. Thus the lease was extended precisely in. the same condition in which it was originally executed, the copy retained by the landlord containing the words omitted from the copy retained by plaintiff. If the landlord was chargeable with knowledge of the omission in plaintiff’s copy, so was plaintiff chargeable with knowledge of the additional provision in the landlord’s copy, and the duplicate leases with the duplicate agreements for extension together constituted, in legal intendment, but the evidence of one and the same agreement. If plaintiff executed the landlord’s copy in ignorance of the presence of the provision which exempted the latter from payment of any part of the extra water rates, and it was not his intention to accede to the provision, that may afford him relief by rescission, but he should not be permitted to urge his own neglect to examine the instrument executed by him as ground for es-topping the landlord from claiming the advantage accruing from the presence of the provision, while he seeks to avail himself of the extended term.

The judgment appealed from is reversed, with costs to appellant, and a new trial ordered, unless plaintiff within five days files his consent in writing, and duly acknowledged, to the effect that his recovery be reduced to eleven dollars and fifty cents, one-half ■of the amount of the regular annual charge for water rates imposed upon the demised premises, with interest, in which event the j udgment so reduced is affirmed, without costs.

Bookstaver, J., concurs.


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    James McGovern, Resp’t, v. Jean M. Eldredge, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Distbict coubts—Omission of evidence in return.
    A judgment of a district court of New York cannot be reversed on appeal, on the alleged ground that it is without evidence to support it, or that it is against the evidence, or the weight of evidence, if it affirmatively appears from the justice’s return that material evidence adduced on the trial is omitted, and that the respondent could not have caused the omission to be supplied by means of an amended return.

      H. Same.
    In such case, appellant should make application on the argument of the appeal, under §§ 3056 and 3213 of the Code, to be allowed to establish the lost evidence by affidavits or the examination of witnesses.
    Appeal from a judgment for plaintiff recovered in the district ■court in the city of New York for the ninth judicial district Action by sub-contractor against owner and contractor for the foreclosure" of a mechanic’s lien claimed under the provisions of chapter 342, Laws 1885, the defense of the owner being payment to the contractor in full before notice of plaintiff’s lien was filed, •and that the defendant contractor had not fully and substantially performed the agreement with the owner.

      Sweeney & Cromwell, for respt’s; M. Cleiland Minor, for app’lt.
   Bischoff, J.

We cannot reverse a. judgment of a district court on the alleged ground that it is without evidence to support it, or that it is against the evidence, or the weight of the evidence, if it affirmatively appears from the justice’s return that material evidence adduced on the trial is omitted, and that respondent could not have caused the omission to be supplied by means of an amended return.

Ou the trial plaintiff’s notice of lien, the agreement entered into Between defendant Eldredge as owner, and defendant Lum as contractor, for alterations to the farmer’s premises, and the specifications referred to in and made a part of the agreement, were received in evidence, and their relevancy, materiality and competency thereby conceded. The trial justice’s return, however, .states that these exhibits are not therein included, because they have been lost. We have no means therefore of knowing their •contents. The evidence omitted may be conclusive of plaintiff’s right to recover; the judgment is presumptively valid until the contrary is shown, and the burden of doing so rests upon the party claiming to be aggrieved by the judgment. In urging the evidence presented by the return as proof of its insufficiency, appellant is at the same time compelled to concede that other material evidence is withheld. The judgment is therefore still supported by the presumption that the evidence withheld was sufficient, and this presumption must be overcome by the apparent insufficiency of the evidence when it is produced.

Section 3056 of the Code of Civil Procedure, referring to appeals from judgments of the justices’ courts, provides that if for any reason the justice is unable to make a return, “ the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered before the justice; and may determine the appeal as if a return had been duly made by the justice ; ” and by § 3213 the foregoing provis-ons are made equally applicable to appeals from the district courts in the city of New York. Clark v. Carroll, 61 How. Pr, 47. Had appellant on the argument of this appeal made application to that effect, it is probable that permission would have been given to the parties to establish the contents of the lost exhibits by secondary evidence, and by means of it we would have been enabled to dispose of the questions urged on behalf of the appellant for reversal. As it is the judgment must be affirmed.

Judgment affirmed, with costs.

Pryor, J., concurs.'


author: Pryor, J.

text:
    Charles Moritz, Resp’t, v. John H. Koenig, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Landlord and tenant—Modification of lease under seal by paroi EXECUTORY CONTRACT.
    A lease under seal cannot be modified before breach by a paroi executory contract.
    Appeal from order of a district court.
    Proceeding for the summary removal of a tenant for non-payment of rent. The question in controversy was, whether a tender by the tenant was of all the rent due.

      Langbein Bros. & Langbein, for app’lt; F. W. Fuhrman, for resp’t.
   Pryor, J.

We have accorded to the brief of the learned counsel for the appellant the consideration due to so elaborate an effort, and yet we are unable to perceive any error in the disposition of the case by the court below.

The only plausible proposition advanced by appellant is, that by compromise between the parties the rent was reduced to the sum of which he made tender. But, even assuming that a ten years lease under seal may be modified bv an executory contract resting in paroi, still we fail to find in the evidence sufficient proof of any such agreement. Undoubtedly there was a parley between the parties about a settlement of the complicated difficulties in which they were involved; but for aught that appears in the record, the negotiation never issued in a definite and consummate agreement. Were there such an agreement, however, it would be of no effect. Coe v. Hobby, 72 N. Y., 141.

Counsel for the appellant indulges in a strain of reflection upon .the conduct of the trial justice, for which, on examination of the return, we observe no justification.

His rulings were generally in favor of the appellant; and he appears throughout the trial to have borne himself with dignity and with absolute impartiality between the litigants. But were his conduct open to animadversion, the’ criticism of counsel should have been couched in terms less replete with insinuation of culpable misbehavior.'

Error, of course, may be imputed to a judge, but not an intentional perversion of justice, except in a proceeding to punish him for official misconduct.'

We are of opinion that the justice rightly determined the case, and'that the reasons upon which he bases his decision satisfactorily sustain it.

Order affirmed on the opinion below, with costs.

Bischoff, J., concurs.


text:
    Edward Sutorius, Resp’t, v. Isaac F. North, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Undertaking—Arrest—Liability of surety as to costs.
    Under § 559 of the Code, regulating the terms of the undertaking required as a condition precedent to the granting of an order of arrest, the costs intended to be secured by the undertaking are hot the costs of the action, for which the defendant in the event of his success may recover judgment, but only such costs awarded to the defendant as accrue directly from the arrest, or in proceedings necessitated by the arrest, and in an action on such an undertaking an answer which sets up as a defense that “ defendant had paid all judgments for the costs of the action which were awarded to the plaintiff herein ” as defendant in the' action wherein the order for his arrest was issued, is frivolous, such judgment being no de- ■ fense.
    Appeal from an order adjudging the answer frivolous, and from an interlocutory judgment directing a reference to assess plaintiff’s damages.
    Action to recover upon an undertaking conditioned for the payment of costs awarded and damages sustained by reason of plaintiff’s arrest in a civil action in conformity with the requirements of § 559 of the Code of Civil Procedure.

      Davison & Chapman, for resp’t; Daniel D. Sherman, for app’lt.
   Bischoff, J.

On a former appeal in this action the general term of this court pronounced the allegations of the answer respecting the payment of plaintiff’s alleged damages sham, and directed that they be struck out, and for the facts appearing on the present appeal reference may be had to the report of the former. Sutorius v. North, 13 N. Y. Supp., 557; 36 St. Rep., 873.

Subsequently, plaintiff applied at special term for j udgment on the ground that the remaining allegations of the answer were frivolous and constituted no defense. This motion was granted and upon the order made interlocutory judgment was entered -directing the assessment of plaintiff’s damages by a reference for that purpose. From such order and judgment defendant has appealed.

Appellant’s counsel contends that on the hearing of the motion the court erroneously considered the facts set forth in an affidavit made by the plaintiff, which appears in the record. That this contention is erroneous is apparent from the notice of motion and the order made and appealed from, neither of which alludes to any papers other than the summons, pleadings and the order striking out the allegations of the answer held to be sham.

Eliminating from the answer all such last mentioned allegations, there remains as. matter of attempted defense only the allegation of the fact that defendant had paid the several judgments for the costs of the action which were awarded to the plaintiff herein, as defendant in the action wherein the order for his arrest was issued. That the costs of the action was not the costs which the undertak'ing on arrest, required by § 559 of the Code of Civil Procedure, is intended to secure, was decided by this court on the former appeal hereinbefore referred to, and again in Sperry v. Hellman, 13 N. Y. Supp., 899; 37 St. Rep., 258. Hence, their payment could, not constitute a defense to an action on the undertaking, and the answer was plainly frivolous. Strong v. Sproul et al., 53 N. Y., 497, 499.

The order and judgment appealed from should be affirmed, with costs.

Daly, Ch. J., concurs.


text:
    David Roche, Resp’t, v. James McCaldin, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. District courts—Jurisdiction—Services on vessel.
    By express prohibition of statute a district court of the city of New York cannot take cognizance of an action “ brought by any seaman or marine, or other person belonging to any ship or vessel, against the owner * * * of such ship or vessel, for or by reason of the non-performance or breach of any agreement or contract for services, or compensation for services on board any ship or vessel, during any voyage performed, or in par: performed, by such ship or vessel.” Held, that an action for services rendered on a tug while going to tow a ship to sea from the port of New York comes within the prohibition of the statute.

      2. Same.
    The fact that no instance is adduced of the exercise of disputed jurisdiction affords a strong argument against the existence of the jurisdiction.

      Appeal from judgment of a district court.
    Lamb, Osborne & Petty, for resp’t; Hyland & Zabriskie, for app’lt.
   Pryor, J.

The plaintiff, as master of the steam tug W. J. McCaldin, sues the defendant, as owner, for a balance of wages claimed to be due by virtue of a special agreement

By motion to dismiss, the appellant presented the point on the trial, that the action was not within the jurisdiction of a district court

By express prohibition of statute, such a court cannot take cognizance of an action “ brought by any seaman or mariner, or other person belonging to any ship or vessel, against the owner, master or commander of such ship or vessel, for or by reason of the non-performance or breach of anyyagreement or contract * * * for services, or compensation for services, on board of any ship or vessel, during any voyage performed, or in part performed, by such ship or vessel.’’ This provision is still in force. • Collins v. Underwood, 1 E. D. Smith, 318.

That the steam tug was a vessel; that the plaintiff, as master, belonged to it; that the money in litigation is claimed as compensation for service, are self-evident propositions; and the only question, therefore, upon the construction of the statute, is whether that compensation was for service “ during any voyage performed, or in part performed,” by such vessel. The evidence discloses that the service sued for was rendered while the tug was going to tow a ship to sea from the port of New York. But respondent contends that “the term voyage imports navigation from one port to-another, is applied only to foreign and inter-state commerce, and is not used of a tug making short trips from "one body of water to another.”

This may be the technical sense of the word in maritime law ; but in the construction of the statute in question it admits of no such restricted signification. Obviously the intent and policy of the provision is to withhold from the cognizance of courts not supposed to be of very enlarged erudition, cases within the jurisdiction of the admiralty and involving the difficult problems peculiar to maritime causes. But, precisely such questions arise in suits for seaman’s wages, whether the vessel be a tug plying about the port or a ship destined for the antipodes. In reason, therefore, the case is within the purview of the statute; and so was beyond the jurisdiction of the court below.

The fact that no instance is adduced of the exercise of the disputed jurisdiction affords a strong argument against the existence of the jurisdiction.

Without reference to the controversy whether the contract between the parties embraced a commission upon salvage earnings, it results that the judgment must be reversed.

Judgment reversed; judgment for defendant dismissing the complaint, with costs in this court and in the court below.

Bischoff, J., concurs.


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    Peter Ciancimino et al., App’lts, v. Aleick H. Man et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Corporations—Officers—Title to office.
    A court of equity has no inherent power to try a disputed title to corporate office, and to enjoin one in possession from the exercise of its functions at the suit of a rival claimant; but, where the particular case presents other features calling for relief which are of equitable cognizance, and the trial of a disputed title to corporate office is only incidental thereto, the court may inquire into the legality thereof and grant relief, but its judgment cannot go to the extent of ousting a de facto officer, nor wilt it he permitted to have that effect.
    Appeal from an order refusing to continue, and dissolving an injunction restraining defendants from acting as trustees of the Ciancimino’s Towing & Transportation Co., a domestic corporation, which was granted ex parte upon misrepresentations to the effect that plaintiffs were de facto, as well as de jure trustees of the corporation, as such in actual possession of its property, and the management of its business, and that defendants were about to invade plaintiff’s possession, and to assume management of the business by force and violence. Action to have defendants’ election as trustees judicially declared illegal and void, and for injunctive relief.

      John J. McKelvey, for app’lts; Henry H. Man, for resp’ts.
   Bischoff, J.

A court of equity has no inherent power to try the disputed title to corporate office, and to enjoin one in possession from the exercise of its functions at the suit of a rival claimant. 1 Pomeroy’s Eq. Jur., § 171; 3 id., § 1345 ; Mickles v. Rochester City Bank, 11 Paige, 118; Lewis v. Oliver, 4 Abb. Pr., 121; Mayor v. Conover, 5 id., 171; New England Mut. L. Ins. Co. v. Phillips, 13 Am. & Eng. Corpn. Cases, 104; Nathan v. Tompkins, 19 id., 336; Owen v. Whitaker, 20 N. J. Eq., 122. Such may be done, and judgment of ouster rendered, only in an action in the nature of a quo warranta, instituted by the attorney general on behalf of, and in the name of the People. Code Civil Pro., §§ 1948, 1984; Morris v. Whelan, 64 How. Pr., 109; Palmer v. Foley, 45 id., 110; Hudson River W. S. R. R. Co., v. Hay, 14 Abb., N. S., 191. Where, however, the particular case presents other features, calling for relief which are of equitable cognizance, and the trial of a disputed title to corporate office is only incidental thereto, the court may inquire into the legality of the election, and grant such relief as the special exigencies require, Reis v. Rohde, 34 Hun, 161; Palmer v. Foley, 36 N. Y. Superior Court, 14; Mechanics' Natl. Bank, etc., v Burnet Manfg. Co., 32 N. J. Eq., 236. Nathan v. Tompkins, 19 Am. & Eng. Corpn. Cases, 336; Perry v. Tuscaloosa C. S. O. M. Co. et al., 33 id., 346 ; but its judgment cannot go to the extent of ousting a de facto officer, nor will it be permitted to have that effect. Johnston v. Jones, 23 N. J. Eq., 216; Fadness v. Braunborg, 41 N. W. Pep., 84; Wandsworth, etc., Gas Light & Coke Co., v. Wright, 18 W. R., 728.

The verified complaint, and the affidavit of Peter Ciancimino, one of the plaintiffs, alleged that plaintiffs were the trustees de jure and de facto, in quiet and peaceable possession of the property of the corporation, and the management of its business, and that defendants were about to invade their possession and to wrest the property and business from them by force and violence, on the pretense that they (defendants) were trustees de jure. These facts presented a proper case for injunctive relief, Reis v. Rohde, Palmer v. Foley, supra, and upon the truth of their allegation the maintenance of the action, and the power to continue the injunction, were dependent

On the hearing of the order to show cause why the injunction should not be continued pendente lite, it sufficiently appeared from the affidavits submitted lor defendants, that for upwards of a year immediately preceding the application for the injunction, Peter Ciancimino, upon whose affidavit it was granted, and by whom also the complaint was verified, had been enjoined, by another injunction order issued against him in an action pending in the supreme court, from taking possession of, or in anywise interfering with the property or business of the corporation; that until the close of business hours on the previous day defendants had been in quiet, peaceable and uninterrupted possession of the corporate property and business, and that before the beginning of the business hours in the morning of the day on which they applied for and served the injunction granted herein, plaintiffs, during the absence of the defendants, forcibly and violently broke into the company’s office in anticipation of the injunction, and that defendants would be thereby rendered powerless to resist and retake possession, and assumed custody and control of the company’s books, papers and property. These facts conclusively refuted plaintiffs’ allegation that they were de facto trustees, in actual, peaceable and undisturbed possession of the management and control of the corporate business and property.

The jurisdictional facts were thus disproved, and the power of the court to determine the action, or to award injunctive relief therein, arrested; and the motion to continue the injunction was thus properly denied, and its dissolution properly directed.

From the foregoing facts it also appeared that defendants were de facto trustees, and last in the actual and peaceable possession of the company’s office, and the management of its business, and the injunction thereupon was void under the provisions of the Code of Civ. Pro., § 1809, that such an order shall not be granted-to restrain a trustee, director or other officer of a corporation from the performance of his duties except upon notice.

But independent of the grounds above mentioned, and assum. ing that the court had jurisdiction, the order appealed from wan properly made. Until the final adjudication in favor of plaintiffs of the facts entitling them to injunctive relief, the granting of the provisional remedy by injunction authorized by the Code of Civ. Pro., § 602-610, rested in judicial discretion, H. R. T. Co. v. W. T. & R. R. Co., 121 N. Y., 397; 31 St. Rep., 524; Mac Laury v. Hart, 121 N.Y., 636; 31 St. Rep., 939, and the facts that he had wilfully concealed the injunction of the supreme court, the knowledge of which would unquestionably have materially influenced the judge who granted the injunction herein in disposing of plaintiff’s application, that his allegations of plaintiff’s quiet and peaceable possession of the corporate business and property were shown to be untrue, and that its order was prostituted and abused, justified the court in discrediting the statements of any of the plaintiffs as those of parties in interest, Dietlin v. Egan, 46 St. Rep., 762, though not specifically denied. For the deception and misrepresentation practiced upon the court on the application for the injunction, it was also within the province of the judge to vacate it, High on Injunctions, § 1469, and a fortiori to do so for its abuse. De Peyster v. Graves, 2 Johns. Ch., 148; Higgins v. Dewey, 39 St. Rep., 94.

We entertain no doubt as to the propriety of the order made by the judge who granted the injunction, appointing an officer of this court custodian of the company’s office and property, and directing delivery thereof to him, when informed of the uses to which the injunction was perverted; ñoras to the directions in the order appealed from that the custodian deliver the property of which he had secured possession to the defendants.

Deposit of the property affected into court, or where that was impracticable delivery to its custodian for such purpose appointed, has been frequently required pending an application for relief and when such was deemed necessary for the protection of the contending parties. The authority to do so is but a necessary adjunct to the greater authority of awarding the relief, and farcical, indeed, would be the dignity of our courts if they could not by drastic measures insure the return of property, the possession of which was obtained by means of an abuse of their mandates and orders surreptitiously procured. We are not required, except when the order appealed from is reversed or modified, to direct restitution of moneys or property secured by means of it, Code Civ. Pro., § 1323; and as it nowhere appears that the custodian obtained possession of property, other than such as plaintiffs had secured by an abuse of the injunction, there is no occasion for any modification of the order appealed from, in so far as it directed the custodian to deliver the property in his possession to defendants. If notwithstanding, however, defendants have inadvertently obtained possession of other property, the direction for restitution would be ex gratia, and from this plaintiffs are precluded because of their own conduct; and they should, therefore, be left to their remedy by action.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


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    Michael Fay, App’lt, v. Henry Muhlker, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Mechanic’s men—Laws 1882, chap. 410—Oonsteuction.
    In an action to foreclose a mechanic’s lien upon property in Hew York city, a notice thereof having been filed under chap. 410, Laws of 1882, which required that the notice by the original contractor be filed within sixty days after the completion of his contract, it appeared that plaintiff's original contract was completed more than sixty days prior to his filing a notice of lien, although the architect's certificate of the completion of the work was never given. Held, that by the words “his contract” the legislature meant so much of the contract as the party claiming the lien undertook to perform, and that plaintiff’s lien was invalid, having been filed more than sixty days thereafter.

      2. Same.
    In such case, after the completion by plaintiff of the work required by the original contract, an oral agreement was entered into whereby he was to tear down and reconstruct a portion cf the original work, rendered useless by the owner’s negligence, and this work was completed within sixty days prior to the filing of his lien. Held, that this was a separate contract, and the lien was valid as to it.
    Appeal from a judgment for defendant, entered upon the report of a referee for the amount of defendant’s counterclaims in excess of the amount adjudged to be due the plaintiff.
    Action to foreclose a mechanic’s lien claimed under the provisions of §§ 1807-1823, chap. 410, Laws 1882, Consolidation Act; chap. 379, Laws 1875, relating to mechanics’ liens in the city of New York.

      Earley & Prendergast, for app’lt; John Theall (Austen G. Fox, of counsel), for resp’t.
   Bischoff, J.

This action was to foreclose a mechanic’s lien claimed under a notice filed June 7, 1884. At that time the law in force, relative to such liens in the city of New York, was chapter 410, Laws of 1882, Consolidation Act, §§ 1807-1823 (chap. 379, Laws 1875), which provided that as a requisite to the acquisition of a valid lien, “every original contractor” must file with the county clerk of the county, “ within sixty days after the completion of his contract,” a claim setting forth certain particulars-which, in so far as concerns this appeal, need not be here enumerated. The law did not in express terms, as by § 15, chap. 342, Laws of 1885, provide that, in an action brought to foreclose a lien, if the plaintiff should for any cause fail to establish its validity on the trial, he might notwithstanding that fact be permitted to recover a personal judgment against the party at whose instance the work was done, or the materials were supplied, as the case might be; and in the absence of such a provision this court has held in Hubbell v. Schreyer, 14 Abb., N. S., 284, reversed upon other grounds, 56 N. Y., 604, opinion in full, 15 Abb., N. S., 300, that a personal judgment could be rendered for the indebtedness-only which has accrued under a contract and respecting which the lien is at least partly valid. See, also, McGraw v. Godfrey, 14: Abb., N. S., 397; Spencer v. Barnett, 35 N. Y., 94.

The claim filed was for $1,105, of which $500 was alleged tobe due for the balance of the last payment specifically agreed to be made by defendant, pursuant to a written agreement entered into-by the parties, upon the architect’s certificate that the buildings-which plaintiff was to erect had been completed, and $605 for various items of extra work. It was not disputed on the hearing before the referee that the $500 item was unpaid, but as to this the defense was interposed that the architect’s certificate had not been procured. Plaintiff conceded that no certificate in writing, had been had from the architect, and claimed that it was waived. Evidence to establish the fact of the waiver was introduced on plaintiff’s behalf and its finding requested of the referee, but refused.

The referee found, from abundant evidence, that all the work under the written agreement was fully performed by plaintiff; that plaintiff had performed extra work of the value of $280; that all the work, that done under the written agreement and the extra work, except an item of fifty-five dollars of the latter which was for taking down and rebuilding the area walls, was completed before April 4, 1884; that the work of taking down and rebuilding the area walls was not completed until after April 7, 1884, and was done under an oral contract separate and distinct from the written agreement; that plaintiff’s claim of a lien was filed more than sixty days after all the work except that of taking down and rebuilding the area walls had been completed; that as to the work last excepted the claim of a lien was filed within sixty days after its completion; that there was due defendant upon his counterclaims $209 ; and from these facts the referee concluded that plaintiff’s lien extended only to the item of fifty-five dollars for taking down and rebuilding the area walls; that the lien was extinguished by the counterclaims, and directed judgment for the defendant for the amount of his counterclaims in excess of the amount for which plaintiff’s lien was adjudged valid.

By express stipulation of the parties, which may be found at. the end of the case, all questions which might otherwise arise concerning the allowance of defendant’s counterclaims are eliminated from our consideration on this appeal.

Though the written agreement did not expressly require the-architect’s certificate to be in writing, such is implied by the word “ certificate.” Anderson’s Dictionary of Law, p. 160; Am. & Eng. Ency. of Law, vol. 3, p. 59. Its procurement by plaintiff constituted a condition precedent upon the performance of which his right to payment was dependent, St. John v. Potter, 46 St. Rep., 883 ; Thomas v. Fleury, 26 N. Y., 26; Wyckoff v. Meyers, 44 id., 143 ; Glacius v. Black, 50 id., 145; Martin v. Leggett, 4 E. D. Smith, 255 ; Grube v. Schultheiss, 4 Daly, 207 ; aff’d 57 N. Y., 669, and to maintain his right to recover the five hundred dollar item in this action he was necessarily compelled to show either that the certificate was wrongfully withheld, or that it was waived. He undertook the latter on the hearing' before the referee, and cannot on this appeal be permitted to assume an attitude inconsistent with that taken on the trial. Home Ins. Co. v. Western Trans. Co., 51 N. Y., 93, 96; Stapenhorst v. Wolff, 65 id., 596 ; Lockwood v. Quackenbush, 83 id., 607 ; Wangler v. Swift, 90 id., 38, 44; Wines v. Mayor, etc., 70 id., 613 ; Codd v. Rathbone, 19 id., 37, 39. If we assume that the architect’s certificate was not waived, as found by the referee, and to the contrary of which he refused to find at plaintiff’s request, then plaintiff had not entitled himself by performance of the condition precedent to payment of the five hundred dollar item. If, on the other hand, we assume that the certificate was waived and that the referee erred in finding that it was not, and in refusing to find that it was, then the fact remains that the work was performed before April 4, 1884, more than sixty days before the notice of lien was filed, and the errors referred to are immaterial, since the conclusion that the lien did not extend to this five hundred dollars would be inevitable; and errors which are immaterial and harmless afford no ground for reversal. Tenney v. Berger, 93 N. Y., 524; Thorne v. Turck, 94 id., 90; Story v. Williamsburgh M. B. Ass’n, 95 id., 474; Ellwanger v. Fish, 60 id., 651; Flannagan v. Maddin, 81 id., 623; Downs v. N. Y. Cent R. R. R. Co., 56 id., 664; and as to equity cases, Matter of Application of N. Y. Cent. & H. R. R. R. Co., 90 N.Y., 343. In either case, therefore, the judgment appealed from would have been proper.

In what has been said above we assume that the referee correctly found that the work of taking down and re-building the area walls was rendered upon an independent employment, and that it was not a part of the work required of plaintiff under the written agreement, and we now proceed to demonstrate that this assumption is proper.

The original written agreement entered into by the parties to this action required plaintiff to construct defendant’s buildings and included the erection of the area walls. All this was done and completed before April 4, 1884. So plaintiff contended and testified, and so the referee found. Having done all he undertook to do, plaintiff was not required to do the work over again in the absence of a provision to that effect in the agreement. After the area walls had been erected and completed by plaintiff, they were suffered to become defective through no fault of his. So plaintiff further contended, so the referee further found, and upon this theory plaintiff claimed to be entitled to, and was allowed to recover fifty-five dollars for doing the work of taking down and rebuilding the walls. The only other work which the written agreement required of plaintiff was such as should become necessary from “ alterations in the plan of construction ; ” but plaintiff again contended and testified, and the referee again found, that the taking down and rebuilding of the area walls was rendered necessary by the facts that through the carelessness, or negligence of others than plaintiff or his servants, an excavation near the area was left exposed to the elements during the preceding winter, and that the excavation became filled with water, which overflowed the area walls and entered them, where it froze, and caused the walls to crack and split and become defective. These facts preclude a claim that the extra work in taking down and rebuilding the area walls was due to “ alterations in the plan of construction,” and it seems indisputable that it was wholly distinct and apart from the work required of plaintiff under the written agreement, and, therefore, rendered upon a new, distinct and independent contract of employment.

We refrain from particularly discussing the extra work performed, and claimed to have been performed by plaintiff, other than' that required in taking down and rebuilding the area walls, and we assume for the purposes of this appeal consistently with plaintiff’s contention on the trial, and without which he could not have hoped to prevail, that it was all a part of, and connected with, the work required under the written agreement. For if such was not his contention, or if the contrary of such contention was the fact, then the further fact that such extra work also was completed more than sixty days before the claim of a lien was filed justified the referee’s conclusion and judgment.

Counsel for appellant, however, urges that the statute governing plaintiff’s lien does not prescribe as the limit of the time within which the claim must be filed sixty days after performance of the work, but sixty days after the contract is completed; that the contract was not completed until the work performed was accepted by defendant; that as part of the work was done over again, and the architect’s certificate to the completion of the buildings was never given, defendant cannot be said to have accepted the work performed before the area walls were taken down and rebuilt. It does not appear from the referee’s report, nor was the referee requested to find, that any part of the entire work performed was ever formally accepted by defendant, and just here the fatality to the lien of the inconsistent positions taken by counsel, in support of it above the amount awarded, is conclusively apparent, for if the architect’s certificate was requisite to show that the contract was completed by both parties thereto, then it was never completed, for the certificate was never procured; and the claim was prematurely filed. On the other hand, if the certificate was waived by defendant, then he was bound to accept,, and must be presumed to have accepted the work at the very moment when it was completed by plaintiff in the manner required of him under the written agreement, and as that was more than sixty days before the claim of a lien was filed, the referee properly held the lien to be invalid respecting such work; and that neither plaintiff nor the referee were mistaken in their views that the work was completed more than sixty days before the claim was filed is conclusive from the conceded facts that no work whatever excepting that of taking down and rebuilding the area walls was done during and after the month of April, 1884.

But we do not agree to the construction of the statute claimed by counsel for appellant. Becurring to its provisions, § 1810, chap. 410, Laws of 1882; § 5, chap. 379, Laws of 1875, it will be seen that the claim must be filed by the “ original contractor ” within sixty days after the completion, not of the, but of his contract. By the words “ his contract,” the legislature unquestionably referred to so much of the contract as the party claiming the lien undertook to perform, using the words “ his contract ” as an equivalent expression for his promise, his covenant, his agreement, the contract on his part. Were we to adopt a construction that, the contract was required to be performed on the part of all parties thereto, no lien would ever have been obtainable under the provisions of the statute, and thus its benign aim to secure mechanics and material men would be frustrated altogether. If acceptance of the work by the party at whose request it was performed was an act essential to the completion of the contract, payment .of the sum agreed to be paid for the work performed was no less so, and as the element of non-payment must of necessity have been present in every instance, the party from whom the payment is due, by refusing it, could have successfully prevented the arrival of the time within which the claim of a lien had to be filed to render it effective.

The Watts Campbell Co. v. Yuengling, 125 N. Y., 1; 34 St. Rep., 255, cited by appellant’s counsel, has no application to the case before us, nor did the court there hold that the contract was not performed until the purchaser had accepted the machinery which the lienor had agreed to erect. What the court did decide was that the purchaser’s approval was admissible in evidence to show performance of a contract to erect machinery in “ satisfactory working order,” and that under the much more comprehensive provisions of the present mechanic’s lien law (chap. 842, Laws of 1885), the lien is valid if the notice was filed within ninety days after the last item of services or materials, necessary to put the machinery in ” satisfactory working order,” were rendered or supplied, as the case might be.

Assuming, as we should consistently with plaintiff’s contention on the hearing before the referee, and his request to the referee so to find, that the architect’s certificate to the completion of plaintiff’s work was waived; and viewing the taking down and rebuilding of the area walls as work performed under a contract of employment separate and apart from the written agreement for the construction of defendant’s buildings, we must, upon the evidence, and the facts found by the referee in conformity with it, that all the other work for which the lien was claimed was performed under a contract which was completed on plaintiff’s part more than sixty days before his claim of a lien was filed, conclude that the referee did not err in adjudging the claim to be effective only to the extent of fifty-five dollars, and so affirm the judgment appealed from.

Judgment affirmed, with costs.

Bookstaveb, J., concurs

       As amended by ch. 276, Laws 1883.—[Ed.


text:
    Don A. Gaylord et al., Resp’ts, v. Patrick Gallagher, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Nonsuit—Motion for—Failure to renew at close an admission of EVIDENCE SUFFICIENT TO SUBMIT.
    A failure to renew a motion for nonsuit on the ground of alleged insufficiency of the evidence to sustain the cause of action when both sides rested, or to ask the direction of a verdict, is a concession that the evidence was sufficient to warrant its submission to the jury.
    2. Appeal—Case.
    An appellate court is precluded from inquiry whether the verdict appealed from is against the weight of evidence, where the statement is omitted from the case that all the evidence bearing upon the questions in controversy is thereby presented.

      Appeal from a judgment for plaintiffs entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial. Action to recover upon two certain contracts for the sale and delivery of builders’ materials, the answer denying performance by plaintiffs, and the value of the materials admitted to have been delivered, besides interposing four several counterclaims for damages alleged to have been sustained by defendant from nonperformance of the agreements mentioned in the complaint on plaintiffs’ part.

      John E. Eustis, for resp’ts; Henry H. Brann, for app’lt.
   Bischoff, J.

But two exceptions appear in the case, one to the denial of defendant’s motion for a non-suit when plaintiffs rested, the other to the denial of defendant’s motion to set the verdict aside and order a new trial.

Neither of these exceptions, however, proves upon examination to be available to defendant for the purpose of reversing the judgment and order appealed from. The motion for a nonsuit was founded on the alleged insufficiency of the evidence to sustain the cause of action, but any defect in the proof, when plaintiffs rested, was curable by evidence introduced on behalf of either party after denial of defendant’s motion. S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102, 112 ; Tiffany v. St. John, 65 id., 314; Painton v. Northern Cent. Railway Co., 83 id., 7.

When both sides rested, defendant did not renew his motion for a nonsuit, nor ask to have a verdict directed in his favor. The sufficiency of the evidence to warrant its submission to the jury was thus conceded. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632; Rowe v. Stevens, 44 How. Pr., 10; St. John v. Skinner, id., 198; Caspar v. O'Brien, 47 id., 80; Schwinger v. Raymond, 105 N. Y., 648 ; 7 St. Rep., 544.

And appellant has precluded us from inquiry whether the verdict is against the weight of the evidence by omitting from the case the statement that all the evidence bearing upon the questions in controversy is thereby presented. Aldridge v. Aldridge, 120 N. Y., 615; 31 St. Rep., 948; Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297, and cases cited.

The judgment and order appealed from must be affirmed, with costs.

Pryor and Giegerich, JJ., concur.


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    Henry McShane Company, Limited, App’lt, v. William Padian, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Evidence—Parol competent to ascertain the intention of a written instrument.
    When the language of a written instrument is ambiguous, or susceptible of conflicting or varying interpretations, it is proper to ascertain the intention of the parties thereto from the facts and circumstances which induced its execution, and such facts and circumstances may be shown by paroi evidence.

      Appeal from a judgment for defendant entered upon the report of a referee. Action to recover upon an alleged continuing guaranty.

      Thomas C. Ennever, for app’lt; William, J. Fanning, for resp’t.
   Bischoff, J.

This action was brought to recover upon a written guaranty in the following words: “ I, William Padian, hereby guarantee to the Henry McShane Company, Limited, the payment by John P. Wiegers, plumber, to them for any and all materials which they may deliver to John P. Wiegers, I not to be liable for any balance exceeding five hundred dollars which may become due.”

Plaintiff contended that the guaranty was given to secure the payment of a floating balance which might at any time thereafter be due and owing by Wiegers, and accrue from the extension of a general credit to him in the purchase of plum beds materials; while defendant maintained that both parties to the guaranty, at the time it was given, intended to apply it only to the materials required by Wiegers to enable him to execute a contract for the plumbing of certain houses on Eighty-ninth and Ninetieth streets in the city of New York owned by one Schuck.

On the trial, it appeared that these materials were the first purchased by Wiegers of plaintiff; that thereafter he continued to purchase others; that on account of the indebtedness arising from the purchase of all the materials he made general payments from time to time, the aggregate amount of which exceeded his indebtedness for the materials required for the Eighty-ninth and Ninetieth streets houses, and that there was due from Wiegers to plaintiff a general balance exceeding five hundred dollars. The referee, against the objections of plaintiff's counsel, admitted paroi evidence for the defendant tending to show that only the sale of materials required for the Eighty-ninth and Ninetieth streets houses was contemplated by plaintiff and defendant when the guaranty was given, and that the guaranty was intended to secure Wiegers indebtedness for those materials, and no other. The exceptions to these rulings present the alleged error of which appellant complains.

We are of the opinion that the evidence objected to was properly admitted. The rule which precludes paroi evidence to contradict or vary the terms of a written instrument has no application when the sole purport of the evidence is to ascertain the sense in which the words of a written instrument were used by the parties thereto. Greenleaf on Evidence, vol. 1, § 277, etc. Contracts of guaranty are subject to the same rules of construction as other contracts. The Union Bank of Louisiana v. Coster, 3 N. Y., 203; Belloni v. Freeborn, 63 id., 383, 388 ; People v. Lee, 104 id., 441; 5 St. Rep., 777. The words, being those of the guarantor must be construed most favorably to the guarantee, Gates v. McKee, 13 N.Y., 232 ; Rindge v. Judson, 24 id., 64; but when once their meaning has been ascertained the guarantor’s liability is strictissimi juris, and not to be extended beyond its precise import. Evansville Natl. Bank v. Kaufmann et al., 93 N.Y., 273, 281; Schwarz et al. v. Hyman, 107 id., 562; 12 St. Rep., 478; Powers v. Clarke, court of appeals, October 6, 1891, 40 St. Rep., 196.

When the language of a written instrument is ambiguous, equivocal, or susceptible of conflicting or varying interpretations, it is proper to ascertain the intention of the parties thereto from the facts and circumstances which induced its execution, and thereupon to enforce it in accord with such intention, and such facts and circumstances may be shown by paroi evidence. Green-leaf on Evidence, vol. 1, § 277, etc. The office of paroi evidence in such a case is not to alter the language of the instrument, but to ascertain the purposes for which the parties intended to apply it; and the application of this principle of evidence to the case at bar is illustrated by that of Heffield v. Meadows, L. R., 4 C. P., 595, in which the inquiry presented for solution was, whether the guaranty was a'continuing one or limited to a particular transaction. Said Willes, J.: “It is obvious that we cannot decide that question upon the mere construction of the document itself, without looking at the surrounding circumstances to see what was the subject matter which the parties had in their contemplation when the guaranty was given. It is proper to ascertain that for the purpose of seeing what the parties were dealing about, not for the purpose of altering the terms of the guaranty by words of mouth passing at the time, but as a part of the conduct of the parties, in order to determine what was the scope and object of the intended guaranty. Having done that it will be proper to turn to the language of the guaranty to see if that language is capable of being construed so as to carry into effect that which appears to have been really the intention of both parties.” And by Smith, J.:

“ The consideration is defectively stated. It does not show in what the supply is to consist. We may therefore look at the surrounding circumstances in order to see for vjhat it was given and to what transactions or dealings it was intended to apply, not to alter the language, but to All up the instrument where it is silent, and to apply it to the subject matter to which the parties intended it to be applied.” See, also, Springsteen et al. v. Samson et al., 32 N. Y., 703; Strong v. Lyon, 63 id., 172 ; White's Bank v. Myles, 73 id., 335; Merchants' Nat'l Bank of Whitehall v. Hall, 83 N. Y., 338; Birdsall v. Heacock, 30 Am., 572; Morgan v. Boyer, 48 id., 454; Columbus Sewer Pipe Co. v. Ganser, 55 id., 697; Mathews v. Phelps, 1 Am. State, 583.

In the case under immediate consideration, it is impossible, upon a mere inspection of the guaranty, to say that it was, or was not, intended to attach to the purchase money for materials required for a particular purpose, or for materials required indefinitely. The words “ any and all materials " and “ any balance” are equally as comprehensive and significant when applied to materials required for a particular purpose and the indebtedness accruing therefrom, as when applied to materials required generally or for indefinite purposes and the indebtedness remaining after the application of payments made from time to time. It cannot, for that reason, be said that the guaranty is .either unequivocally limited to the materials required by Wiegers for a particular purpose, or that it unequivocally includes materials required by Wiegers for indefinite purposes. Resort to the facts and circumstances which induced the guaranty became, therefore, essential to arrive at the intention of the parties at the time, and under the principle governing such cases, as hereinbefore stated, was properly admitted.

It nowhere appeared that Wiegers, at the time the guaranty was given, bad applied for, or contemplated applying for, the extension of a general credit to him by plaintiff in the purchase and sale of plumber’s supplies, and it affirmatively appeared from the testimony of Wiegers, and is not contradicted, that the only credit for which he had applied, or contemplated applying for, was in the purchase by him of the materials necessary to enable him to carry out a contract for the plumbing work on Schuck’s houses in Eighty-ninth and Ninetieth streets, for which plaintiff had estimated the cost to be $365.

It furthermore appeared from the testimony of the defendant that it was with immediate reference to this estimate that defendant called upon plaintiff and offered himself- as guarantor for the payment of the purchase money to accrue from Wiegers upon the sale and delivery of the materials to him, and that upon the rep- • resentation of plaintiff’s assistant manager that the supply might have to be increased, he consented to become bound for the payment of $500.

Upon this evidence, and from the further fact that it was not at all likely that plaintiff, intended to exact or defendant to give security for a credit which up to that time had not only not been applied for, but, for all that appears, was not even contemplated by either Wiegers, plaintiff or defendant, that the referee concluded that the guaranty was given and accepted at the time exclusively as security for the purchase money to become due from Wiegers for the sale and delivery to him of 'the materials required for the plumbing work in the Eighty-ninth and Ninetieth streets houses; and this conclusion appears to us not only justifiable, but the only one consistent with the facts.

o The conclusion that the guaranty was given and accepted as security only for the materials to be supplied for the Eighty-ninth and Ninetieth streets houses rendered the facts concerning the supply of other materials, the indebtedness arising therefrom, and the payments made on account of that indebtedness, immaterial, and the refusal of the referee to find them was, therefore, not error which requires reversal of the judgment. James v. Cowing, 82 N. Y., 449; Crim v. Starkweather, 36 St. Rep., 314.

One other éxception which appears in the case, though not urged on the brief of the learned counsel for the appellant, remains to be noticed, that taken to the introduction of evidence on the part of the defendant of the payment by Wiegers of the purchase money for the materials for the Eighty-ninth and Ninetieth streets houses. The exception is founded upon an objection that the answer did not interpose the defense of payment, but in an action to enforce a promise to answer for the debt, default or miscarriage of another, the allegation of non-payment by such other pei’son in the complaint, and proof of the fact alleged on the trial, are essential to its maintenance. Knapp v. Roche, 94 N. Y., 329, 333; Lent v. N. Y. & Mass. Railway Co., N. Y. Court of Appeals, Jan’y, 1892, 28 Abb. N. C., 478 ; 42 St. Rep., 592. The complaint in the present case did allege non-payment by Wiegers,. and the answer denied the fact alleged. Whether or not payment was made by Wiegers was, therefore, among the facts in, issue, and evidence to sustáin the fact of payment competent.

The judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


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    Michael Donelly, Appl’t, v. John O’Day, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Landlord and tenant—Attornment.
    In summary proceedings for nonpayment of rent it appeared that defendant, who was in possession under a lease from one M., without the consent of M. attorned to plaintiff, who claimed the premises adversely to M., but who was out of possession. Held, that such attornment was "void and inoperative to constitute the relation of landlord and tenant between the parties. .
    Appeal from order of a district court, dismissing a summary proceeding for the removal of an alleged tenant for nonpayment of rent

      Benjamin N. Cardozo, for resp’t; G. A. C. Barnett, for app’lt.
   Pryor, J.

Upon the return these facts appear,, without contradiction : That respondent went into possession of the premises under a lease from McArdle; that the petitioner, out of possession, claimed the premises adversely to McArdle; that pending the term and while in possession under McArdle, the respondent, without the consent of McArdle, attorned to the petitioner. The question is, whether the conventional relation of landlord and tenant subsisted between the parties to the proceedings?

To establish the relation appellant relies upon the attornment. But, obviously and indisputably, the attornment was merely void,. 1 Rev. Stat., 744, § 3, and as such was inoperative for any and all purposes. O'Donnell v. McIntyre, 37 Hun, 623, 626; Jackson v. Harper, 5 Wend., 246. In the People v. Angel, 61 How., 157, the attornment was valid and effectual, and for that reason the order dismissing the proceeding was reversed.

Our own adjudication in Sperling v. Isaacs, 13 Daly, 275, is explicitly in point, and conclusive of the case adversely to appellant.

Order affirmed, with costs.

Bischoff, J., concurs.


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    John F. Cambeis, Resp’t, v. The Third Avenue Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railroad—Rights in street.
    A railroad company has not an exclusive right to the part of the street used by it, but only a paramount fight.

      2. Negligence—Evidence.
    In an action against a railroad company for injuries caused by alleged negligence, it is not error to receive proof on cross-examination of defendant's servant that he made an offer of money to plaintiff to settle the matter; such evidence being material to show his relation to the controversy.
    3. Justice's coubt—Appeal.
    A judgment of a justice's court, if conformable with law and justice, is not to be invalidated by technical errors of no moment to the substantial merits of the case.
    Appeal from judgment on a verdict in a district court
    Action for injuries to plaintiff’s wagon, caused by defendant’s negligence.
    While plaintiff was driving ahead of the car on defendant’s ■cable track in a public street, and when in the act of turning off, his wagon was upset, and whether by being struck by the car or by too sharp a turn of the wagon was the main question in controversy on the trial.

      Geo. Flint Warren, Jr., for resp’t; Benjamin Tuska, for app'lt.
   Pryor, J.

Appellant challenges the judgment upon . the ground that, in respect both of defendant’s negligence and plaintiff’s non-negligence, the verdict is against the weight- of evidence. But how can we so affirm?

The fundamental question in the case is, was the upset of the wagon caused by a collision with the car, or by a quick and sharp turn off the track. There was positive testimony both for and against the fact of a collision; and the circumstances authorized inferences in favor as well of the affirmative as the negative of the proposition. Here was a problem peculiarly for solution by tne jury; and without observation of the witnesses we cannot say that credence was not accorded to the most trustworthy. Neither can we affirm that the inferences implied in the verdict are repugnant to a sound and impartial understanding.

The appellant insists, however, that in any event the non-negligence of the plaintiff is not sufficiently apparent. Here, again, was a conflict of evidence and a diversity of probable inferences for the jury; and again their decision is not so revolting to sense and conscience as to make the verdict irreconcilable with the interests of justice. Much of the confidence of appellant’s counsel on this point we ascribe to his conception of the' relative rights of the car and the wagon in the highway. He maintains that “ the company had the exclusive right to the part of the street used by it; ” and for support of "the proposition he relies upon casual expressions of judges in cases not call jpg for the remark. But, that such is not the law thé actual adjudications leave no room for doubt “ One traveling upon a city street has a right to drive his wagon upon or across the track of a street railroad * * * and the only limitation of the right is that he must not interfere with the passage of the cars: these have the preference in the use of the track.” Adolph v. R. R. Co., 65 N. Y., 554.

Again: “A street railroad company has not the exclusive right to the use of the tracks, but simply a paramount right; and while a person lawfully driving on the tracks may not recklessly, carelessly or wilfully obstruct the passage of the cars, he is not absolutely bound to keep off the tracks; and if he fairly and in a reasonable manner, respecting the paramount right of the corporation, is, without fault on his part, injured by carelessness or fault-chargeable to it, he may maintain an action for his damages.’3 Fleckenstein v. R. R. Co., 105 N. Y., 655; 8 St. Rep., 32. Still7 again: “ A cable railway company operating dangerous machinery at a rapid speed on and along the public streets of the city is in law bound to know that men, women and children have an equal use of the highway, and will be upon it, and its servants are bound to be on the lookout, and to take all reasonable measures, to avoid injuries to persons who may be upon the street.” Winters v. R. Co., 99 Mo., 509.

On a survey of the evidence, it is obvious to us that the judgment does not exhibit such a miscarriage of justice as requires its reversal.

But, the appellant imputes error to proof of an offer of money to plaintiff by defendant’s servant to settle the matter. No exception presents the competency of the evidence to our consideration ; but were it otherwise, we should sustain the ruling below, upon the ground that the fact was elicited on cross-examination,, and was material to show the relation of the witness to the controversy.

Again, appellant challenges the judgment for error of the court in refusing to charge particular requests, but we are of opinion that the case was well put to the jury, and that their verdict is in conformity with law and justice. The judgment of a justice’s court, if so conformable, is not to be invalidated by technical errors of no moment to the substantial merits of the case.

Judgment affirmed, with costs.

Bischoff, J., concurs.


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    Nicholas Hoffman, Resp’t, v. The Manhattan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railroad—Elevated—Damages—Injunction.
    The simple invasion and appropriation of a property owner’s easements in the street, without depreciation of the property to which they are appurtenant, is a mere technical wrong, entitling only to nominal damages, and is no ground for an injunction.

      2. Same.
    In an action for an injunction and damages, the court found damage to a specified amount, but also found that the selling value of plaintiff’s land was greater at the time of the trial than at any time preceding the construction of the road. Held, that in the absence of a finding, or of evidence to warrant a finding that a greater increase in value was prevented by the railroad, no damage by reason of the railroad was shown.
    Appeal from judgment in equity, awarding an injunction against the maintenance and operation of defendants’ elevated railroad in the avenue fronting plaintiff’s premises, and damages for past injury to said premises.
    The trial court allowed plaintiff $2,000 for fee damages and $1,318.17 for rental damages. Plaintiff’s only property in the street consists in the easements of an abutting owner. Defendants’ road went into operation in March, 1880. Date of trial, February 13th-16th, 1891.

      L. C. Dessar, for resp’t; J. T. Davies and R. L. Maynard, for app’lts.
   Pryor, J.

The solitary ground upon which appellants rely for reversal of the judgment is, that “ the evidence is not sufficient to prove any damage to the plaintiff’s property or to entitle him to an injunction.” If this contention be correct the judgment is untenable.

When a plaintiff establishes a title to equitable relief the court acquires jurisdiction to dispose of the entire controversy and to do complete justice between the parties. Lynch v. M. E. R. R. Co., 129 N. Y., 274; 41 St. Rep., 542. But, when the action proceeds exclusively upon a claim to equitable relief, and on the trial no ground for such relief is shown, judgment for the defendant is the inevitable legal conclusion. McGean v. M. E. R. Co., 133 N. Y., 9,13; 44 St. Rep., 75 ; Arnold v. Angell, 62 N. Y., 508; Brush v. Manhattan R. Co., 13 Supp., 908, affirmed at general term, 44 St. Rep., 111. “ The owner’s land must have received some injury, caused by the taking of the easements and the erection or operation of the road, in order to prevent a judgment in favor of the plaintiff.” Becker v. M. E. R. Co., 131 N. Y., 509, 511; 43 St. Rep., 726.

Here the action is purely in equity for injunctive relief, of which the right to past damage is only an accessory. Shepard v. Manhattan R. Co., 117 N. Y., 441, 448 ; 27 St. Rep., 705; 131 N. Y., 215; 43 St. Rep., 117; Lynch v. M. E. R. R. Co., 129 N. Y., 274 ; 41 St. Rep., 541.

The question then is, whether the plaintiff has vindicated his title to equitable relief by establishing a ground for an injunction against the maintenance and operatipn of the defendants’ railroad.

The simple invasion and appropriation of plaintiff’s easements in the street, without depreciation of the property to which they are appurtenant, is a mere technical wrong, entitling only to nominal damages. Newman v. Metropolitan R. Co., 118 N. Y., 618; 30 St. Rep., 36; Bohm v. Met. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247. But, a mere technical injury, not of substantial detriment to the plaintiff, is no ground for an injunction that would afflict the defendant and the public with irreparable loss and immeasurable inconvenience. Gray v. M. R. Co., 128 N. Y., 499; 40 St. Rep., 478 ; Bohm v. M. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247; Brush v. Manhattan, supra; Purdy v. Manhattan, 36 St. Rep., 43.

Does the record sustain appellants’ position that the evidence fails to show any damage to plaintiff’s property ?

Plaintiff’s easements in the street being in themselves only of nominal value, whether from the appropriation of them by the defendants he has sustained an appreciable injury depends upon the effect of such appropriation on the value of his remaining property. If there be no evidence which will fairly support an inference that the railroad has either depreciated that property, or has prevented or diminished an increase in its value, then it was error in law to find damage to the property. Becker v. M. E. R. Co., 131 N Y., 509, 511; 43 St. Rep., 726; Bohm v. M. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247.

The learned trial judge found “ that the value of plaintiff’s interests and property in the aforesaid premises has been lessened in the sum of $2,000 by the acts of the defendants; ” and that consequently “ the value of the property and easements taken and appropriated by the defendants is $2,000.” But the learned judge also found that “ the selling value of the plaintiff’s land was greater at the time of the trial than at any time preceding the construction of the defendants’ road.” There' being, since the construction of the railroad, no decrease, but instead a positive increase in the 'value of plaintiff’s property, in the absence of a finding, or of evidence to warrant a finding, that a greater increase in the value of the property was prevented by the railroad, it results that the property has sustained no damage by reason of the railroad. Bohm's and Beckers cases, supra; Mattlage v. M. E. R., herewith decided, ante, 683.

Furthermore, since plaintiff gave no evidence of the present or past fee value of his property, no basis was afforded for an interference as to the effect of the railroad upon the value of the property. He did give evidence as to rental values; but without proof, of which there was none, of-a ratio between the fee and rental value, there was still no basis for an estimate of the effect of the railroad on the value of plaintiff’s property. Though unnecessary to exhibit the insufficiency of plaintiff’s case, we may add that defendants’ proof demonstrates a very material advancement in the value of the property since the construction of the railroad, and that upon all the evidence we are absolutely convinced of the fact.

The rule propounded in Starck v. M. E. R. Co., 131 N. Y., 514; 43 St. Rep., 730, is inapplicable to the facts of this case.

The conclusion being that the record exhibits no evidence to authorize injunctive relief against the appellants, it follows that the judgment must be reversed, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.