text:
    Mary Wiley, an Infant, by her Guardian ad litem, etc., App’lt, v. Long Island Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

      1. Negligence—Sui juris.
    A child, non sui juris, is not chargeable with negligence.
    2. Same.
    If sui juris, it is not guilty of negligence, if it uses such discretion as can be expected from one of its years, and acts promptly.
    Appeal from a judgment entered on an order dismissing the complaint at the close of plaintiff’s case.

      M. L. Towns, for app’lt; W. C. Beecher, for resp’t.
   Pratt, J.

As a nonsuit was granted, the appellant has a right to claim, that the testimony be regarded in the light most favorable to the plaintiff. It was shown that defendant’s train was backed towards the public crossing without a bralceman at the rear, and without notice by bell or whistle. The flagman or gate tender was absent from his post, and the position of the gates, if not an invitation to pedestrians to cross, was at least ambiguous. The negligence of defendant was clearly shown.

We do not see that the infant’s mother can be said to be'negligent. She approached the crossing with care, leading the child by the hand. The tracks were numerous. While she was hesitating whether or not to advance, the child broke from her, and hastened to cross the track. That was not a movement the-mother was bound to anticipate. Her attention was necessarily divided betw'een the child and the 11 tracks, upon each of which a train was liable to approach from either direction at any moment: She could not give her whole care to her hold upon the child, and the fact that for an instant her grasp loosened does not prove negligence on her part.

The question remains whether the child was sui juris, and, if she was, did she fail in using such care as the law required from a person of her age? We are not able to say where she was sui juris. Her age is not given, but most of the witnesses speak of her as a little child, and she was of an age to be led by the hand. The inference would be that she was non sui juris. If so, she was not chargeable with negligence, and the nonsuit was wrong. Huerzeler v. Central C. T. Railroad Co., 139 N. Y. 490, 494 ; 54 St. Rep. 836. If she was sui juris, did she'fail in the care required of her by law ? We think the fair presumption from the testimony is that she saw the train before her mother did, and that her attempt to cross the track was an effort, on her part, to escape the threatened peril. That may have been an error of judgment; but she was a child, and even an adult is not required by law to decide wisely when the occasion calls for an instant action. If she used such discretion as could bes expected from one of her years, and acted promptly, we cannot hold her negligent. It has been said that where one is run down by a train in broad daylight, when the view of the track is not obstructed, negligence may be predicted as a matter of law. But in this case it may not have been easy to see that the train was in motion. The revolution of the wheels is not easily seen. To one standing close to the track the position of the train was a fixed one, or nearly so. And a portion of the attention must be given .to each of the 11 tracks, and to both directions upon each track. Giving due weight to the distracting circumstances, we must hold that the question whether the child exercised such care as the law required from her should not have been taken from the jury.

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

Dykman, J., concurs; Cullen, J., dissents.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    William Hoffman, App’lt, v. Lawrence Duncan, as Administrator, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Appeal—Findings.
    Finding of a referee, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on the report of a referee, dismissing the complaint on its merits.

      Daniel Brown, for app’lt; Henry A. Monfort, (David B. Simpson, of counsel,) for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a report of a referee. The case really involves only questions of fact. It is true there are a large number of exceptions to rulings made upon the trial, but I cannot see that any evidence was excluded or omitted, against objection, that could have changed the result. Here was an old lady, who had longlived upon the farm, living with her son, who carried it on, and was engaged in the milk business, and who, so far as appears, did all the business, and received and paid out all the money. He and his mother, the deceased, were joint tenants, and were probably jointly interested in carrying on the farm; but that plaintiff looked to the son, William, for pay for his services, and was paid by him, seems quite clear from all the facts and circumstances of the case. Whenever either the son or mother paid any money it must have been for the accrued wages ; and the fact that the plaintiff declared that William, the son, did not owe him anything, furnishes a high degree of proof that nothing was due him at that time for wages. It is highly unreasonable that the intestate ever made a separate contract with the plaintiff for her private benefit, and all the evidence goes to show that plaintiff was almost altogether employed in active work upon the farm and in the milk business. Nothing would be more natural than for an old lady situated as was the intestate to ask the hired man to do some little chore or errand about the house, but that does not prove an employment by the intestate. The plaintiff was a mere boy when he went to live on this farm, and his board and clothing were almost a fair compensation for his services for some years thereafter. I think it highly probable that he received his pay from William as he continued to work. Indeed, he said William had acted as a father towards him, and had paid him in full. At all events, there is not such a preponderance of evidence in favor of the plaintiff as will warrant us in reversing the j udgment. The referee saw the witnesses, and heard them testify, and was in a situation to judge of their credibility better than an appellate court. Assuming that plaintiff was employed by them jointly, I think the fair inference from the proofs is that he was paid in full for all services rendered by him. After a careful reading of the whole case, we are constrained to believe the decision of the referee was right, and must be affirmed, with costs.

All concur.


author: Pratt, J. Cullen, J.

text:
    The People ex rel. James W. Lamb, Pl'ff, v. Board of Health of Long Island City.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Office and Officer—Removal.
    In the absence of evidence sufficient to sustain a charge that the registrar of vital statistics was guilty of violating any rule, or disobeying any order, of the board of health, no cause for his' removal is established. *
    Certiorari to review the action of the board of health of Long Island City, in removing relator from the office of registrar of vital statistics in said city.

      P. H. Me Garren, for relator; Charles T. Duffy, for resp’t.
   Pratt, J.

This is a certiorari to review the action of the board of health in removing the relator from office as registrar of vital statistics in Long Island city. The relator was duly qualified and duly appointed, and performed the duties thereafter until removed by said respondent. The charge upon which the relator was removed, in substance, was “a violation of the instructions of the health officer, and the rules and regulations of the board of health.” The specification was that he caused the mhil of the health board to be delivered at his residence, instead of allowing the same to be delivered at the office of said board of health, in the city hall. We will assume the board of health had jurisdiction, and that the proceedings were regular in form, and consider only the question whether the evidence ‘shows that the relator violated any rule of the board of health, or disobeyed any proper order of the health officer, which the latter had authority to make. It is to be observed that there is no contradiction that a large proportion of the mail was addressed to the relator in person, which, in any case, would rnatu rally and properly be delivered at his house. Again, there is not a scintilla of proof that the relator ever caused any mail matter to be delivered at his house, or that he ever prevented any such mail from being delivered at the office of the board of health. The evidence also fails to show that any rule was ever adopted about the delivery of the mail, or notice of any such request ever served on the relator. Neither is it shown that any order of the health officer was ever disobeyed. Indeed, the evidence shows that the relator endeavored .faithfully to perform" the duties of his office. In fact, the inference is plain that the public health was conserved by the relator receiving mail after office hours, especially where it was necessary to grant burial certificates, or to attend to existence of contagious diseases. It is perfectly plain that there was not a particle of evidence sufficient to sustain a charge that relator was guilty of violating any rule of the board of health, or disobedience of any order. The finding and determining of the board of health must be reversed, with costs, and relator returned to office.

Dykman, J., concurs.

Cullen, J.

(concurring).—We think the evidence fails to show a reasonable ground for the dismissal of the relator. The charge itself assigned no very substantial fault on his part. It is to the effect that he caused the mail of the health board to be delivered and received at his residence, instead of at the office of the board. The instruction on that subject given to the relator seems to have been not very definite, and there was no refusal by the relator to comply with it, and no contumacy or disrespect on his part. If there was mail delivered at his residence after the conversation with the health officer upon the subject, it seems to have been the act of the mail carrier, who could not find the office of the board open, rather than that of the relator. Proceedings reversed, with ■costs, and relator reinstated.


author: Cullen, J.

text:
    In the Matter of the Brooklyn Elevated Railroad Company, Resp’t, v. John S. Nagel et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

      1. Condemnation proceedings—Several parcels.
    The petitioner, in condemnation proceedings, may include many pieces of land, the property of different owners.
    3. Same—Description.
    In such proceeding, the petition sufficiently describes the easements as those “which now are or may be the subject of injury from a construction of said railroad or incidental to its use.” '
    Appeal from an order condemning an easement appurtenant to the premises of the appellants.

      Mirábeau L. Towns, {Raphael J. Moses, of counsel,) for app’lts; Hoadly, Lauterbaeh & Johnson, (Wm. Nl Cohen, of counsel,) for resp’t.
   Cullen, J.

This is an appeal from an order made at special term condemning the easement appurtenant to defendant's premises, invaded or taken by the construction and operation of petitioner’s elevated railroad. An answer was interposed, testimony taken, and thereafter the application granted. Many objections are made to granting the application, some of which only it is necessary to notice. In re Union El. R. R. Co. of Brooklyn, 112 N. Y. 61; 20 St. Rep. 498, is conclusive as to the validity of the franchise of the lessor of the petitioner" to build and maintain its road. The power of the lessor company to lease its road is settled by authority. Woodruff v. Erie Railroad Co., 93 N. Y. 616; Beveridge v. N. Y. El. Railroad Co., 112 N. Y. 1; 20 St. Rep. 962. As to the practice, it has been the common custom, since the general railroad act of 1850, for the petitioner in condemnation proceedings to include many pieces of land, the properties of different owners. The practice has many advantages,—the presentation of all objections at the same time, the appointment of a single set of commissioners to act in the whole class*of cases. The practice has been so common that it should not be condemned unless there is some substantial objection to it. Any party can file his answer, and, as to such party, it is from that time, in substance a separate action. If it be irregular to join the lands, of different owners in a single petition, it is within the power of the court to sever the cases, and the entry of an order or judgment in a particular case, in fact, a severance. The objection to the description in the petition of the easements sought to be acquired is not well taken. We do not see how they could be well described other than they are described, “ which now are or may be the subject of injury from a construction of said railroad or incidental to its use."

The last objection is as to the structure and the location of the tracks thereon. If there were any dispute of the facts on this question, some of the rulings of the court on the trial would be questionable; but there is no dispute. Plainly the tracks are not as close together, and therefore as far distant from the house lines, as is physically possible. The requirement as to this subject by the commissioners is “ the track or tracks shall be laid as far from the house line as the'method of construction will permit." This left a reasonable discretion in the company as to the location of the tracks. The method adopted doubtless did enable the company to use lighter transverse girders than had the tracks been placed in the center of the street. But this was the method of construction adopted by the company, and we think within its power. Had the commissioners intended -to prescribe the rule that the tracks should be contigous, with space between simply for cars to pass, we think that it would have been so stated. The order appealed from should be affirmed, with costs.

All concur.


text:
    Eugene Sisco, Resp’t, v. Lehigh and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.

    Master and servant—Appliances.

      WIiere no necessity exists for the projecting arm of a mail crane to come within 12 inches of the side of a car along which hrakemen must climb, such nearness of the structure is proof of negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      John J. Beattie, for app’lt; John W. Lyon, for resp’t.
   Pratt, J.

Plaintiff was a brakeman with defendant, and while climbing up the side of a freight car, in discharge of his duty, was hit and injured by the arm of a mail crane which projected within 12 inches of the car. The structure had been erected about four weeks, and plaintiff had passed it three times before the accident. He had received a notice of its erection. The jury were instructed that, in order to find a verdict for plaintiff, they must find that the appliance was unsafe, insecure, or dangerous, and that reasonable care by defendant would have discovered the danger. The court refused to charge that the nearness of the structure to the track was no evidence of negligence. -We aré of opinion that there was nothing in these instructions of which defendant can complain. The case is bare of any evidence that any necessity existed for the projecting arm to come within 12 inches of the side of a car along which brakemen must climb. So far as appears, the arm might have been twice as far from the car, and yet have performed its work equally well. If that were so, the negligence of defendant seems clear. We do not find that plaintiff was negligent. Judgment affirmed, with costs.


author: Per Curiam.

text:
    Bowman, Thompson & Company, Limited, Resp’t, v. Joseph F. Fuerst et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Arrest — Vacation.
    An order denying a motion to vacate an arrest will not be disturbed on appeal, where both the right to maintain the action and the order of arrest depend on a question which can be satisfactorily established only on the trial.
    Appeal from an order denying a motion to vacate an order of arrest.

      I. M. Diitenhoefer, for app’lts ; James Dunne, for resp’t.
   Per Curiam.

As the right to maintain this action and the order of arrest granted herein both depend upon the construction to be given to the agreement entered into between the parties to this action, and as this construction may depend upon the course of business of the parties under it, which course of business can only be satisfactorily established upon the trial, we think that upon this appeal we should not attempt such construction, and therefore affirm the order appealed from, with $10 costs and disbursements.


author: Van Brunt, P. J.

text:
    Charles S. Fairchilds et al., as Executors, etc., Resp’ts., v. Margaret B. Edson, Individually and as Executrix, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April, 1894.)

    1. Winn — Construction — Void bequest.
    A bequest to executors “to be divided by them among such incorporated, religious, benevolent and charitable societies of the city of New York and in such amounts as shall be fixed or appointed by them with the approval of my friend,-, if living,” is void for uncertainty.
    2. Same.
    A bequest to an individual for the benefit of those incapable of taking, cannot bq sustained.
    3. Same —Chap. 319 of 1848.
    Corporations, whose charters have a provision to the effect that the respective corporations shall be subject to all provisions of law in relation to devises by will, come within the prohibition with respect to time contained in chap. 319 of 1848.
    4. Same—Request.
    Where the will contains, not a request even, but only a mere expression of opinion in respect to the disposition that the legatees would make of the money which is bequeathed to them, the legacy is valid.

      Appeal from judgment entere after trial at special term.

      Treadwell Cleveland, forapp’lts; D. B. Odgen, for resp’ts.
   Van Brunt, P. J.

This action was brought by the executors of Maryx A. Edson, deceased, for the purpose of obtaining a judgment construing and determining the validity of certain provisions - of the will of the decedent, as modified by one of the codicils executed by her. The will was dated on the second of May, 1890, and was modified by three codicils, the first dated May 22, 1890, and the second and third on May 27, 1890. The testatrix died on the 29 of May, 1890, and the will and codicils were admitted to probate on the 14th of January, 1891, and the executors, the plaintiffs in this action, qualified as such on the 20th of January, 1891.

By the will in question the testatrix, after having made bequests' to various corporations, provided as follows :

“ If by reason of any error in name or description a question shall arise as to any beneficiary intended by me to be named in. my will1 or in any codicil, I direct such question to be determined, by my executors. “ If by reason of want of incorporation, or for any other cause whatever, any spciety or institution named in my will or in any codicil, shall be unable to take the legacy intended for it, I give and bequeath such legacy absolutely to the person who shall be president of su.ch institution or society, if it .has a president; and if not, to the person who shall J)e its ’’treasurer, if it has-a treasurer ; and if not to the person who shall be its chief executive officer, to be by him applied to the uses and purposes of :such institution or society.”

The rest, residue and remainder of my estate, not disposed of by my will or any codicil, I give and bequeath to my executors, to be divided by them among such incorporated religious bene.volent and charitable societies of the cjty of New York, and in such amounts as shall be fixed or appointed by them with the" approval of my friend the Rev. Dr. William R. Huntington, ilf living.

If, for any reason, any legacies left by my will or by any "codv cil, either pecuniary or residuary, shall lapse or fail, or for any cause not take effect either in whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors. In the usé oí the same I am" satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no condition, leaving the same to them personally and absolutely, and without any limitation or restriction.”

By the second codicil the testatrix made certain bequests to •• corporations and others, and repeated the provisions above quoted. The first and third codicils have no bearing upon the questions involved.

It is now claimed upon this appeal that the residuary clause contained in the will and the second codicil as follows : “ The rest, residue and remainder of my estate, not disposed of by my will or any codicil, I give and bequeath to my executors to be divided by them among such incorporated religious, benevolent and charitable societies of the city of New York, and in such amounts as shall be fixed or appointed by them with the approval of my friend, the Rev. Dr. William R. Huntington, if living,” is void for uncertainty.

The learned court below sustained this provision of the will upon the authority of Powers v. Cassidy, 79 N. Y. 602. In the case cited the testator gave one-third of the rest, residue and remainder of the estate, both real and personal, to his executors to be divided by them among such Roman Catholic charities, institutions, schools and churches of the city of New York, as a majority of them should decide, and in such proportions as they might think proper. This bequest was held to be valid, because the beneficiaries were either named or capable of being ascertained within the rules of law which are applicable to such cases; and that the trusts were of such a nature that a court of equity could direct their execution.

It is to be observed that the bequest in the will cited, was sustained upon the distinct ground that it was evidently intended to apply to incorporated bodies having a distinct denominational character, which was expressed without ambiguity or uncertainty; and it was, as already stated for this reason that the devise was upheld.

In the case of Prichard v. Thompson, 95 N. Y. , 76, a devise to executors iñ and upon trust to distribute to and among such incorporated socities organized under the laws of the state of New York or the state of Maryland, having lawful authority to receive and hold funds upon permanent trusts for charitable and educational uses as the executors should select for that purpose, and in such several sums as they, the said executors, should determine, was held to be void because of indefiniteness; and the case was distinguished from that of Powers v. Cassidy, because in the latter case the class of beneficiaries was specially designated and confined to the limits of a single city, and of a single religious denomination, so that each one could be readily ascertained, and each had an inherent right to apply to the court to sustain and enforce the bequest made. In the case at bar there are no such limitations ; the only restriction being that the society-should be incorporated, and of the city of New York. It might be religious, benevolent or charitable, or all three combined ; but it is not restricted to any denomination, or any form of incorporation. Benevolent societies are exceedingly varied and diverse in their purposes and methods of organization and it is impossible to say in the case at bar whether the various benevolent societies under the head of benevolent orders, which are incorporated in this state are to be included within the provisions of this will or not. It is restricted to no religious denomination, so that a test may be applied based upon religious faith, nor to societies incorporated under any particular or general law. But all religious, benevolent and charitable societies, no matter what their origin or their methods of procedure, so long as they embrace the religious, benevolent or charitable features apparently come within the terms of the clause in question. This, ■undoubtedly is the making of an indefinite bequest, such as was condemned in the case o-f Prichard v. Thompson, and which distinguishes the case at bar very materially from the case of Powers v. Cassidy, in which the power of selection was restricted and confined to the benevolent and educational incorporations of a single denomination. And we do not think, upon an examination of the subsequent adjudications, that there has been any tendency in the courts to extend the extrerhe rule laid down in the case of Powers v. Cassidy.

It seems to us, therefore, that the clause in question is repugnant to the statute in that it has no such well defined and ascertained beneficiaries that it can be enforced by a court of equity.

It is also urged that the clause in the will which provides that “ If by reason of want of incorporation, or for any other cause whatsoever, any society or institution named in my will or in any codicil, shall be unable to take the legacy intended for it I give and bequeath such legacy absolutely to the person who shall be president of such institution or society, if it has a president, and if not, to the person who shall be its treasurer, if it has a treasurer, and if not, to the person who shall be its chief executive officer, to be by him applied to the uses and purposes of such institution or society,” is illegal and Void.

This provision seems to be in contravention of the statute. Although the word “ absolutely ”is used in connection with the bequest, it is evident that the bequest is impressed with a trust, and that it is not restricted by the limitations required by the statute in order that it might be held valid. There was an attempt to bequeath to certain individuals in" trust for the purposes of application to the uses of institutions or societies which could not take under the will. This form of bequest is expressly condemned in the case of O'Hara v. Dudley, 95 N. Y. 403, and also in the case of Cottman v. Grace 112 N. Y. 249 ; 20 St. Rep. 783. In the case of O'Hara v. Dudley, it was expressly held that a bequest to an individual for the benefit of those incapable of taking, is a fraud upon the law and cannot be sustained.

The provision of the.will under consideration was clearly of this character, and therefore comes within the rule above laid down.

The legacies to three corporations, which were upheld, are also attacked upon this appeal upon the ground that they come within the prohibition in respect to time contained in chap. 319 of the Laws of 1848. One of these corporations was organized under such laws ; and in the others their charters had a provision to the effect that the respective corporations should be subject to all provisions of law in relation to devises by will. In the case of Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Short, 92 N. Y. 443, it was held that such general provisions in the charter made the corporation subject to the act of 1848. The legacies to these societies would seem therefore to be void. The remaining provisions of the will and codicil which is objected to is to the following effect:

“ If, for any reason, any legacy or legacies left by my will or nay codicil, either pecuniary or residuary, shall lapse or fail, or for .any cause not take effect either in whole or in part, I give and bequeath the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction.’’

This clause is attacked upon the ground that it creates a trust and comes within the condemnation of the case which is sometimes improperly entitled In the Matter of the Will of O'Hara, but which ought to be entitled O'Hara v. Dudley; because the opinion relates almost entirely to the questions which were presented by the case of O'Hara v. Dudley, and not to those which were presented in the Matter of O'Hara ; the case of O'Hara v. Dudley being an action in equity to set aside and annul the residuary devise and bequest, or to establish a trust, which, failing as to the intended beneficiary, should result to those who would otherwise have taken by descent or distribution—an action of an entirely different character from the one at bar, which is brought for the construction of the will, which construction must be determined by the contents of the will itself, and cannot be affected by extrinsic evidence.

' That such was the character of the discussion in O'Hara v. Dudley is expressly asserted in the Matter of Kelemen, 126 N. Y. 73-79 ; 36 St. Rep. 390, where the court say that in the O’Haraca.se there was never any question of construction at all; that the opinion was based upon a bill filed claiming that the devise and bequest in the hands of the legatees was the product of a fraud upon the executrix and upon the law and seeking relief against that fraud. The case of O'Hara v. Dudley is no authority whatever upon the question as to the construction of the will. This was expressly held in the Matter ofKelemen, supra ; the distinction according to the latter opinion being manifest and requiring no explanation, although it requires a very close examination of the case of O'Hara v. Dudley to perceive the distinction pointed out in re Kelemen.

Upon an examination of the rules laid down in this latter case, we are unable to distinguish that case from the one at bar. In fact, it appeared in that case that the codicil was executed because the testatrix had been advised that there were doubts in regard to the validity of certain bequests for charitable purposes. The language of the codicil was as follows : “ Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will, dated February 18, 1889, by making my friend Townsend Wand ell my residuary legatee and devisee, and hereby request him to carry into effect my wishes with respect thereto ; but this is not to be construed into an absolute direction on my part, but merely my desire.” And it was held that it was very evident that the testatrix did not intend to die intestate as to any part of her estate; and having by her will given legacies to four charitable institutions, and to one of them her residuary estate, the purpose of the codicil was to carry that residue certainly and absolutely to an individual legatee, leaving him in that event to deal with the charities as he pleased. The-court say: “ It is true that the expression of a wish or desire may sometimes serve to found a trust, or effect a charge ; but such expressions are by no means conclusive. We must still examine the will to discover the testamentary intention. In the present case the testatrix expressly guards against a mistaken interpretation. She says that the expression of her wish is not to be construed as an absolute direction, by which she evidently means that while she desires that her residuary legatee shall deal with the charities as she would have been glad to, yet she does not mean to fetter his ownership or qualify his right She leaves him absolute-owner, and free to do as he chooses. She puts him under no obligation, legal or equitable, but contents herself with the bare expression of a wish which she hopes will influence his free agency ; and so the bequest was absolute, and therefore valid on the face of the will.”

Certainly the language of the will in the case cited was as strong as the language in the case at bar, and it is as apparent (if not more so) in the case at bar that it was the intention of the testatrix to give this residuary estate absolutely and without limitation or restriction to her executors to do with as they pleased ; so the bequest was absolute and therefore valid on the face of the will. She puts her executors under no obligation as was said in the Kelemen case, but contents herself with the statement that she is satisfied, or believes that they will follow what they believe to be her wishes. The language does not even contain a request,- such as was embraced within thq Kelemen will, but is a mere expression of opinion in respect to the disposition that her legatees would make of the money which was bequeathed to them. ¡

We think that it is impossible under such circumstances to spell out a trust, and that the provision is in entire harmony with the idea that the testatrix intended to give the residuary estate absolutely to her legatees without restriction or limitation, although she might desire that such residuary legatees should deal with the charities as she would have been glad to do. We are unable to distinguish this case from the case in the Matter of Kelemen above cited, and think that the clause in question is invalid-.

The judgment appealed from should be modified in accordance with the views expressed in this opinion, with costs to all parties appearing to be paid out of the estate. ,

Follet and Parker, JJ., concur.


author: Andrews, C. J.

text:
    Cornelius N. Bliss et al., Resp’ts, v. Daniel E. Sickles et al., App’lts.

      (Court of Appeals,

      Filed April 24, 1894.)

    1. Appeal—Presumption.
    Where the proof is defective on some point which is capable of being, supplied, but no question is raised on the trial, the appellate court will assume that proof of the omitted fact was waived, or that the fact was conceded.
    2. Evidence—Fraud—Rescission.
    In an action to rescind a sale by reason of fraud, evidence of contemporaneous false statements by defendant is competent to show fraudulent intent.
    Appeal from a judgment of the general term affirming a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Alexander Blumenstiel, for app’lts; Frederic R. Kellogg, for resp’

         Affirming 50 St, Rep. 139.

   Andrews, C. J.

The question decided in Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496, was not raised on the trial. The motion for nonsuit, made in behalf of all the defendants, on the ground that no cause of action had been proved against either of the defendants, did not suggest the point now taken. If the attention of the counsel for the plaintiffs had been drawn to the objection now made, we' cannot say that proof might not have been supplied showing that the'contract of sale had been rescinded by the vendors prior to the lewy and seizure by the sheriff. The court had jurisdiction of the controversy, and objections which might have been obviated, if made, cannot be taken for the first time on appeal. Where the proof is defective on some point which is capable of being supplied, but no question is raised on the trial, the court, on appeal, will assume that proof of the omitted fact was waived, or that the fact as to which the proof was defective was conceded. Blair v. Flack, 141 N. Y. 56; 56 St. Rep. 571; Reeder v. Sayre, 70 N. Y. 190.

The other questions in the case were considered by the general term, and none of them require a reversal of the judgment. Ho attempt was made on the trial to justify the statement made by Fechheimer, Rau & Co. to Bliss, Fabyan & Co., in December, 1889. It was grossly untrue. It purported to be a detailed statement of the assets and liabilities of the firm in July, 1889, showing on its face that the firm at that time had a surplus of over $188,000, whereas the undisputed evidence is that the firm was then insolvent. Fechheimer, Rau & Co. furnished a copy of the July statement to Bliss, Fabyan & Co., in response to the request of Mr. Bliss for an account of their affairs, and stated that the firm was as well off in December as in July. There was a controversy on the trial as to whom the representation contained in the statement was made. It was claimed by the defendants that the statement was furnished to Mr. Bliss, as vice president of the Fourth Hational Bank, for-the use of the bank, and was not intended for the use of the firm of which Mr. Bliss was a member, or as an inducement for credit with that firm. On the other hand, it was claimed that it was furnished for the use of Bliss, Fabyan & Co. as a foundation for credit with that firm, and that Mr. Bliss, who aided the firm of Fechheimer, Rau & Co. in procuring discounts at his bank, sent the statement to the bank for its information as to the standing o£ the firm. The issue was submitted to the jury. The court charged, in substance, that if the statement was furnished by Fechheimer, Rau & Co. for the use of the bank, and was not intended as a representation to Bliss, Fabyan & Co., the plaintiffs could not recover.1 The jury found for the plaintiffs on this issue. This finding disposed of the only real controversy in the case, since the untruth of the statement was scarcely controverted, and that the plaintiffs relied upon it in extending the credit Was amply shown.

The question whether the statement made to Dun's agency in December, 1888, reaffirmed by Fechheimer, Rau & Co. in July, 1889, and upon the faith of which the firm of Gel berm an, Domerich & Co., subscribers to the agency, sold goods bn credit to Fechheimer, Rau & Go. early in 1890, and contemporaneously with the sales made by Bliss, Fabyan & Go., was competent evidence upon the question of the fraudulent intent of Fechheimer, Rau & Go. in making the statement of December, 1889, to Bliss, Fabyan & Oo., is of little importance. As the case stood upon the issues actually litigated, the' plaintiffs’ case needed no support upon that question. But we are inclined to agree with the view of the general term that this evidence was competent. The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Gray, J.

text:
    The People, App’lt, v. Caleb W. Mitchell, Resp’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    Appeal—Review—Criminal law.
    Where a conviction is reversed on the facts by the general term, the power to review the facts ends.
    Appeal by the people from a judgment reversing a conviction.

      T. F. Hamilton, for the People; J. S. L’Amoreaux, for resp’t.

       Dismissing 49 St. Rep. 528.

   Gray, J.

The defendant was charged with keeping a gambling house, and was found guilty by the jury, and sentenced to pay a fine of $500. Upon appeal from the judgment of conviction, it was reversed on the facts by the general term, and the discharge of the prisoner ordered. The people then appealed to this court. The appeal, however, should be dismissed. The power to review-the facts ended with the action of the general term, and they have exercised it by ordering a reversal’ of the conviction, placing their order expressly upon the facts, and not upon the law. The appeal presents no exception, and this court, sitting only for the correction of errors of Jaw, is not required further to review the questions of fact. The appeal should be dismissed. ;

All concur.

Appeal dismissed.


author: O’Brien, J.

text:
    In the Matter of the New York Elevated Railway Company. Clarkson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    1. Condemnation proceedings—Appraisement.
    Where the parties stipulate, and an order is entered accordingly, that the commissioners should make their award for the entire structure, an award, which disregards the stipulation, will be reversed.
    8. Same—Deduction of past benefits.
    In such proceedings, the damages are the difference between injury to the property and such benefits as the property enjoys at the time.
    Appeal from an order confirming the report of the commissioners of appraisal.

      Brainurd Tolies, for app’lt petitioner; W. G. Peclcham, for app’lt Buck; Gharles II Strong, for app’lts Romaine et al.

   O’Brien, J.

This proceeding was begun on the 21st day of October, 1889, under the provisions of chapter 140 of the Laws of 1850, to acquire title to the easements in Ninth avenue necessary to be taken for the purposes of petitioner's railroad appurtenant to a certain lot of land on the southeast corner of Ninth avenue and Seventy-Third street, on which is a large apartment house, known as the “ Westport.” Thereafter, and on December 22, 1891, an order was entered appointing commissioners to make the appraisal. At the time the proceedings were instituted, the property was owned by Charles Buck, and there were two tracks in front of the premises. Between that time and the entry of the order appointing the commissioners the property was transferred to the Romaines, and an additional or interior track or siding between the original two tracks was constructed for use of express trains in passing the Seventy-Second street station. By stipulation between the parties, it was agreed that the third track and track walks should be included in the award to be made by the commissioners, which was to be divided between Buck and the Romaines in the proportion of two-thirds to Buck and one-third to the Romaines, in accordance with an arrangement made between them. The stipulation between the parties, among other things, provided as follows:

“(1) That the petition and judgment of condemnation, and the order appointing commissioners, be deemed amended so as to include the additional structures hereinbefore described, and an order to that effect may be entered by any party without further notice. (2) That the commissioners make their award as for the entire structure as it actually exists at the date of this stipulation, including both the structure described in the original petition and the additional structure hereinbefore described.”

The order appointing the commissioners, as amended, followed the terms of this stipulation, and among other things, provided that the commissioners were to appraise so much of the property of the respondents—

“ As has been or will be taken by reason of the construction, maintenance, and operation of the elevated road of the petitioner in Ninth avenue, as the same is now constructed, maintained, and' operated, and as described in the amended petition herein, and by the additional track and structures described in said amended petition.”

The commissioners, overlooking the language of the stipulation, and the terms of the amended order, instead of appraising the damage done by the entire structure, regarded as a whole or unit entered upon an inquiry, first, as to the injury to the property resulting from the construction of two tracks; and then, considering the damage resulting from such a division of the subject, they concluded that the damage resulting to the premises from the taking of the easements by the tracks and structures described in the original petition, which had reference to two tracks, was nominal only, for which they awarded six cents. But they concluded that the pecuniary damage resulting from the taking of the ease-, ments by the third track and track walks was the sum of $2,500. From such conclusion all the parties appeal,—the petitioner or railroad company, upon the ground that, in making a separate award for the interior track, the commissioners acted contrary to the stipulation of the parties, and to the order of the court from which their authority was derived; and the land owners, upon the ground that the commissioners erred in their application of the rule as to the benefits, general and special, that should have been allowed to the railroad in diminution of the damages actually suffered by the property.

We agree with the petitioner that under the stipulation of the parties, which called for an appraisal of the damages done by an entire existing structure, viewed as a unit, and under the order entered in conformity with this stipulation, the commissioners should have made a single appraisement for a single, entire structure, which would be the structure as described in the amended petition, including the three tracks and track walks. We fail to see by what theory or right the commissioners were justified in departing from the requirements of the stipulation or the order; and for the error in this respect the report and award, together with the order confirming the same, must be reversed.

We think, also, that the land owners are right in asserting that the theory upon which the commissioners proceeded was erroneous. They state in their opinion, after quoting from Bohm v. Met. El R. R. Co., 129 N. Y. 576; 42 St. Rep. 247, and Becker v. Met. El. R. R. Co., 131 N. Y. 509; 43. St. Rep. 726,

“ The court [of appeals] has shown a determined purpose to adhere to the rule that, in estimating the value of the easements or property taken, the diminution in value of the abutting property to which such easements attached must be ascertained ; that such diminution is to be measured by the difference between the actual market value of the property as it is, and what that value would have been if the railroad had not taken such easements; that, in the solution of the problem, evidence of benefits. occasioned by the road, in the enhancement of values, is pertinent; and that, if it appears that the value of the abutting property is greater by reason of the road than it would have been if the easement in question had not been taken, no consequential injury has resulted to the dominant estate, and the value of such easements is therefore nominal.”

Though with correct principles to guide them, the commissioners fell into the error of assuming that the value of the easements or property taken was to be determined by considering the injury done as offset by all past benefits. The inquiry in condemnation proceedings is to be directed to an ascertainment of the net result to the property as of the time of the award; and it is the injury which the property then suffers, as offset 'by the benefits which it then enjoys, that is to determine the award, if any to be made. In other words, in condemnation proceedings or in the assessment of fee damage, no past benefit is allowable, except such as is at present operative. And, in considering these questions, it is always important to bear in mind the distinction between the elements necessary where the action is brought to recover past damages, and where, as here, proceedings are brought in condemnation. In the former, any benefits accruing to the property, covering the same period for which damages are sought to be recovered, should be considered. But, where condemnation proceedings are brought, not one day of past damages can be added to the condemnation damages before commissioners, or to the fee damage in a suit. The assessment of fee damage is eo instanti as of the date of the award. In proceedings to condemn the action has reference to the property as it stands, taking the damage of the day, and the benefit of the day, from the railroad as it stands on that day. As said in Pappenheim, v. Met. El. R. R. Co., 128 N. Y. 436; 40 St. Rep. 445:

“In such case the inquiry must be, what would be the fair market value of the whole property at the time of the condemnation, without the railroad? And the difference between that sum and the present market value of the property left with the railroad in existence would constitute the measure of damages to which the owner would be entitled.”

And as said by the presiding justice in Kenkele v. Man. Railway Co., 55 Hun, 400; 29 St. Rep. 95:

“If proceedings under the statute were initiated now, the present value of these easements would necessarily be allowed, not what their value was when the road was constructed. The defendants could have had this latter rule of damages if they had commenced their proceedings to acquire title when they began the construction of their road. They have not done this, but have refused to pay until compelled to do so by the strong arm of the law; and hence, as they only pay now, they must pay what the property taken is worth now.”

The commissioners, therefore, in fixing the present injury to the property, and then deducting therefrom all past benefits, irrespective of whether the property at the present time enjoys such benefits, overlooked the correct theory upon which their determination should have proceeded. Although the real inquiry is as to the net damage, if any, to the property at the date óf the award, considering the present benefits which the property is enjoying,—whether special or general,—we do not desire to be understood as holding that upon such an inquiry' the evidence should necessarily be restricted to the condition of the property as of the time of condemnation. It is true, as we have said, that it is a consideration of the property as of that time by which the question of the value of the easements sought 1o be condemned, must be determined ; and though past benefits, whether special or general, which at that time are not operative, are not to be taken into consideration,—because it is the value of the property as it existed a% the date of condemnation that is to be determined,—it does not necessarily follow therefrom that all inquiry into the history of the property is to be excluded, because, in determining the consequential damages resulting to property from a destruction of the easements taken by the road, it might, in certain cases, be difficult to tell the amount thereof without going into the history of the inquiry. Thus, with respect to the property here involved, the road has been built, and the easements taken; and; in determining the present net injury to it from the taking, against which can be offset the benefits, general ands special, which it now enjoys, the line of inquiry might naturally go back over its history for the purpose of furnishing the necessary evidentiary facts from which the result may be reached as to what the damages are, after giving the benefits, special and general, which the property received,'and is enjoying at the date of condemnation. In other words, a distinction should be carefully observed between the fact to be proved and evidence which may be admissible in proof of such fact. We do not say, therefore, that past benefits may not be considered as matter of evidence, or that the commissioners are prevented from resorting to any other competent evidence which is relevant for the purpose of solving the inquiry presented to them as to the award, if any, which should be made as compensation for the easements taken. To. hold that the history of the property might not be gone into would, in effect, be saying that resort should not be had to evidence which, in a given case, might be the only evidence that could, be furnished.

As our conclusions are equally favorable to the appeal taken by the land owners as to the one taken by the petitioner, which affects the entire report and award, and the order confirming the samé, these should be reversed, and a new appraisal be had, but without costs to either party, as against the other.

All concur.


author: Follett, J.

text:
    Thomas Nolan, Resp’t, v. Rockaway Park Improvement Company, Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Riparian rights — Grant op state.
    The owner of land bounded by tide water, to whom the state has granted the adjoining land below high-water mark, may exclude persons from entering thereon.

      Appeal from, a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      William J. Kelly, for app’lt; Stephen G. Baldwin, for, resp’s.
   Follett, J.

This action was brought to recover damages for an assault and battery committed by two employes of the defendant. The answer is “ molliter manus imposuit—that defendant was the owner of a beach whereon the plaintiff was trespassing, and that its employes used no more force than was necessary to prevent him from continuing his trespass. Since August 5, 1889, the defendant has been the owner in fee and in possession of twenty-one acres of upland at Rockaway Beach, in the town of Hempstead, which is 4,331 feet wide east and west, and is bounded on the south by the Atlantic ocean. April 26, 1890, the state of New York, by its letters patent, granted to the defendant about 100 acres of land, bounded on the north by the south line of the piece of land first mentioned, and extending south below low-water mark, and into the Atlantic ocean. It appears by undisputed evidence that the defendant used the upland as a place of recreation, and the beach as a bathing place for its guests. On the 25th of July, 1891, the plaintiff entered upon the beach, and was walking between high-water and low-water mark, when he was ordered away by the defendants employes, and, on refusing to go, he was ejected by them. The court, in submitting the question of the plaintiff’s right to enter on the beach, charged that “in his [plaintiff’s] entry upon the beach between high and low water mark [he] was merely enjoying and proposing to pursue, his strict legal right. He had a right of passage along the beach between high and low water mark, and neither this defendant nor the defendant’s servants had any legal right to interrupt, obstruct, or turn him therefrom.” To this instruction the defendant excepted, and asked the court to charge the converse, which request was refused, and an exception taken. In giving this instruction, and in refusing the one asked by the defendant, the court erred. At common law the owner of the land bordering on the ocean has a legal right to possess and occupy the land between high and low water mark, subject, however, to the right of the state and of the United States to take the land for its own use or to authorize it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation. The adjoining owner may occupy to low water mark for the purpose of gathering seaweed or building wharves, or for any private purpose not inconsistent with the rights of the public. People v. Tibbetts, 19 N. Y. 523 ; East Haven v. Hemingway, 7 Conn. 186-203; Blundell v. Catterall, 5 Barn. & Ald. 268. This legal right of the adjoining owner is a sufficient title to enable him to maintain ejectment against an intruder upon lands between high and low water mark, when the lands above and below are embraced in the same action, and are recovered in the same judgment. Nichols v. Lewis, 15 Conn. 137; Jackson v. Buel, 9 Johns. 298 ; Jackson v. May, 16 Johns. 184; People v. Mauran, 5 Denio, 389 ; Brown v. Galley, Lalor Supp. 308. In addition to the common law right of the defendant to this beach, it had an absolute grant from the state of the land below high water mark, and extending some" distance into the ocean, subject only to the following limitation:

“Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises in as ample a manner as they might have done had this ;power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.”

It appears that the defendant had erected a pier and dock on the land granted to it by the state, and used the beach as a bathing place in connection with its upland, thus applying the land granted by the state to the “ beneficial enjoyment of the adjacent owner and the position that grantees who are in possession of and using the subject of the grant have not the right to exclude persons entering thereon for their own pleasure, or to gratify their curiosity, cannot be maintained. Such a rule would be destructive of many valuable rights acquired in the navigable waters adjacent to the maritime cities of this state. It is sought to maintain this judgment on the theory that the plaintiff entered on the beach for the purpose of serving a summons and complaint on one of the defendant’s employes. It is a sufficient answer to this position that the plaintiff’s right to enter on the premises was not placed on that ground by the court; and, besides, the plaintiff, at the time' of entering, did not assert his right to enter for that purpose, but insisted that as one of the public, he had the absolute legal right to enter at his own will and pleasure ; and further, though the plaintiff had abundant opportunity to serve a summons and complaint, he made no attempt to do so. The judgment' and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


text:
    The People, Resp’t, v. Harry Gillette, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Larceny — Conviction unsupported.
    The evidence was held to he insufficient to justify a conviction, and the defendant entitled to be discharged unless further incriminating facts can be proved.
    Appeal from a judgment of conviction of grand larceny in the second degree.

      Alfred Pagelow. for app’lt; John D. Lindsay, for resp’t.
   Follett, J.

The defendant was jointly indicted with, Charles 0. Burt, and charged with having stolen, on the 26th of May, 1898, with force and arms, a bracelet of the value of $300 and a finger ring of the value of $150, the property of the- Charity Organization, a domestic corporation. The defendant demanded and received a separate trial, and was found guilty. On the date mentioned, the Charity Organization occupied rooms on the third floor of No. 105 East Twenty-Second street, in the city of New York. At this time the organization had at its rooms, on exhibition and for sale, a collection of pottery, vases, crockery, antique jewelry, and other articles, called the “ Holly Collection.” On the day in question a lady was in charge of the room and the articles therein from about noon until 4 o’clock in the afternoon, when she went home, and the room and its contents were left in the charge of her sister, who continued in control until about 6 o’clock in the afternoon, the hour for closing, when, as she was placing the jewelry in the safe, she noticed that the bracelet and ring were gone, and she immediately informed the secretary of the society. Shortly after 3 o’clock in the afternoon, the defendant and Burt entered the room together, examined the pottery, and were shown the bracelet and ring. They remained in the room from seven to fifteen minutes, and then left without having purchased anything, and walked rapidly through the hall, as one of the witnesses testified. In June (the date not appearing) Gillette and Burt were arrested and taken to the police headquarters, and then to a photographer, and, while in his rooms, the defendant attempted to escape. The bracelet and ring were never found, nor traced to the possession of Gillette or Burt. The fact of the most probative force which tends to criminate the defendant is his attempt to escape, but this is hardly sufficient to justify the conviction under the circumstances of this case. Between the time when the defendant entered the room and when it was closed two painters were employed therein, and two or three persons entered and left, but the two sisters testified that the jewelry was not again removed from the cases in which it was kept. Without entering into a minute analysis of the testimony, we are of the opinion that it is insufficient to justify a conviction, and that, unless further incriminating facts ■can be proved, the defendant should be discharged. The judgment should be reversed, and a new trial granted.

All concur.


text:
    Jacob Ringle et al., Resp’ts, v. Wallis Iron Works, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Mechanic’s lien — Misstatement.
    A mechanic’s lien, which knowingly and falsely states a material and important fact, is invalid.
    Appeal from a judgment in favor of the plaintiffs.
    In 1891 the Southern Pacific Company was the lessee in possession of- Pier No. 37, North river, upon which there was a shed, and on the 16th of June, 1891, the corporation entered into a written contract with the Wallis Iron Works by which the latter agreed to construct an extension of said shed according to the specifications contained in the contract.. The first specification, of which the following is a copy, is the one over which this litigation arises: “ First. That, in consideration of the payments hereinafter agreed to be made by the steamship company, the iron works hereby covenants and agrees to construct, deliver, and erect all the ironwork, and furnish and put in place all I. C. and I. X. tin roofing, laid on rosin-sized roof paper, and painted one good coat below and two coats on top, and securely fastened, that may he required for the extension of shed on Pier 37, North river, in the city of New York; and to make two (2) new openings in present shed, as shown on blue print hereto annexed, including the frames and doors;"said new openings being two (2) new gangway openings, as shown (one on each side), which are to be cut in present shed.” For the performance of the contract the Wallis Iron Works was to receive $17,500, one-half upon notice that it had shipped the iron required for the pier, and the remainder on the performance of the contract, which was to be completed within eight weeks after the Wallis Iron Works was notified, to begin work. On the 16th of July, 1891, the Wallis Iron Works entered into a written contract with the plaintiffs under their firm name of Jacob Ringle & Son, by which the latter agreed to construct certain ironwork required for the pier according to specifications annexed to and forming a part of the contract. One of the specifications is an exact copy of the first specification contained in the contract between the Southern Pacific Company and the Wallis Iron Works above quoted. For the work to be performed by the plaintiffs they were to be paid $3,259, as follows: “As and when said party of the first part shall receive payments under its said contract for their work, including work done or materials furnished under this contract, it will pay to said parties of the second part the sanie proportion of such payment as" the work of the parties of the second part included in the estimate upon which such payment shall be made bears to the whole amount of such estimate.” The contract contains a provision that in case Jacob Ringle & Son should neglect, refuse, or fail to employ a sufficient number of skilled workmen, or to furnish promptly the required materials, or should neglect, refuse, or fail to complete the work, the Wallis Iron Works might complete it, and charge the expense thereof to the contractors, and deduct it from any unpaid balance due under the contract." The plaintiffs were to complete their work within eight weeks after notification that the pier was ready for them. October 20, 1891, the notice was given, and they immediately commenced work, and finished December 30, 1891, the Wallis Iron Works was paid by the Southern Pacific Company $8,750, and April 30, 1892, $8,750; making the total contract price of $17,500. On February 16, 1892, the plaintiffs filed a mechanic’s lien, and, on the 19th of the same month, served copies thereof on the defendants. In the notice of lien the claimants asserted that they had furnished all of the materials and performed all of the labor required by their contract, and that there' was due them from the Wallis Iron Works $3,259, the full contract price. It was also stated that the last work was performed and, materials furnished on or about January 29, 1892. April 1, 1892, the Wallis Iron Works gave a bond, and procured the lien to be discharged from the pier, pursuant to the sixth subdivision of the twenty-fourth section of the lien law. May 5, 1892, this action was begun.

      W. 0. Wilson, for app’lt; F. L. Collier, for resp’ts.
   Follett, J.

This action was brought for the foreclosure of the mechanic’s lien filed by the plaintiffs on the pier, and the defenses interposed by the appellant are: (1) That the plaintiffs refused to perform their contract according to its terms, and that the Wallis Iron Works was compelled to, and did, complete the contract at its own expense; (2) that the statement in the notice of lien filed that the plaintiffs had performed the work and furnished the materials in accordance with the contract was untrue; (8) that when the lien was filed, and when this action was begun, the Wallis Iron Works had received no payment from the Southern Pacific Company for work done or for materials furnished by the plaintiffs. The court found “that the plaintiffs did not make the two new gangway openings in the old portion of the shed, including frames and doors,” required by the specifications which are a part of the contract. There seems to have been no reasonable excuse for the failure of the plaintiffs to do this work. The requirements of the contract are plain and specific, and one of the plaintiffs testified that they did not perform this work, but why they failed to do it does not appear. One of the plaintiffs testified that the cost of completing the contract would not exceed $83, but the treasurer of the iron works testified that it cost the corporation $121.90 to complete it. The plaintiffs in their notice of claim asserted that they had performed their whole contract, and that there was due them the full contract price ($3,259), while the fact was, as testified to by one of the plaintiffs, and as found by the court, that the contract had not been performed, and that there was not due from the Wallis Iron Works to the plaintiffs the full contract price. A mechanic’s lien in which it is knowingly and falsely stated that all of the work has been performed and materials furnished pursuant to the contract, and that the whole amount of the contract price is due, is invalid, unless the misstatement is an unimportant one. Foster v. Schneider, 50 Hun, 151; 19 St. Rep. 499; Close v. Clark, 30 St. Rep., 671; 9 N. Y. Supp. 538; Brandt v. Verdon, 44 St. Rep., 885; 18 N. Y. Supp. 119. By reason of the misstatement the plaintiffs failed to acquire a valid lien upon the pier, and it was error for the court to hold that a lien was acquired, and that the bond given to discharge it might be enforced. By § 15 of chapter 342 of the Laws of 1885—the mechanic's lien law—it is provided that, in case the plaintiff fails to establish a valid lien under the act, he may nevertheless recover in an action brought to foreclose the lien the amount due him from the defendant, the same as though the action had been brought on the contract for the recovery of the contract price. In the contract between these litigants there is a clause which provides that, in case of the failure of the contractors to perform their contract, the Wallis Iron Works might complete it, and charge the expense thereof to the contractors. There is evidence in this case showing that the Wallis Iron Works, instead of abandoning the contract and declaring it at an end, gave notice to the plaintiffs that they would complete it, and , charge them with the cost, and that, in pursuance of this clause and the notice, the work was so completed. The defendant, having done this, was liable for the contract price, less the sum -expended by it in completing the work, which is shown to have been $121.90, but, by an error in addition, it was found by the ¡court to have been $111.90, an error of $10 against the appellant. The court found that “the Wallis Iron Works did not receive any payments under its contract with the Southern Pacific' Company for work, which included work done or materials furnished under its contract with the plaintiffs, until" April 30, 1892.” Under the terms of the contract between these litigants, the plaintiffs were not entitled to recover any part of the contract price until the Wallis Iron Works had received payment “for work done or materials furnished under this (plaintiffs’) contract but, notwithstanding this, the court awarded interest on the sum which it found due from December 30, 1891, which was error.

The judgment should be modified by striking therefrom the part thereof which declares that the plaintiffs acquired a valid lien by virtue of their notice filed ; (2). $10, the erfior in addition, should be deducted from the plaintiffs’ claim; (3) the interest on $3,137.10 should be allowed from April 30,1892, instead of from December 30, 1891,—and, as modified, the judgment should be affirmed, without costs.


text:
    George M. Robeson, Resp’t, v. The Central Railroad of New Jersey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    1. Corporations—Foreign—Contract.
    Where the contract for services is made, and part of the services rend, ered, in this state, the case is within § 1780 of the Code, though no price t is fixed thereon.
    3. Same—Limitations.
    A foreign corporation cannot avail itself of the statute of limitations of this state.
    8. Pleadings—Answer—Foreign statute.
    In pleading a foreign statute, the answer should set out such statute, or the substance of it, or make a proper reference to it.
    4. Same—Amendment.
    An amendment, which will introduce a new defense, is not allowable.
    Appeal from a judgment in favor of the plaintiff.
    The plaintiff is a resident citizen of New Jersey, and an attorney and counselor of the courts of that state and of the supreme court of the United States. The defendant is a corporation of that state, but for many years has had an office for the transaction of business in the city of New York, which was the office of its president, and the place where all the meetings of its board of directors was held. On the 29th of May, 1883, the defendant leased its railroad and leased lines to the Philadelphia & Reading Railroad Company for 999 years, for a yearly rental, payable quarterly, sufficient to enable the lessor to pay its fixed charges ; the interest on its liabilities, which were upwards of $50,000,000 ; 6 per cent, annually on its capital, amounting to $18,563,200 ; and $18,000 annually to enable it to maintain its organization. In June, 1884, the lessee being insolvent, a receiver of it was appointed by the circuit court of the United States for the eastern district of Pennsylvania, who entered into possession and control of its property. On the 1st of December, 1884, the lessee made default in the payment of the quarter’s rent due on that day, and it became necessary for the lessor to obtain possession of its road and of its income, so as to enable it to discharge its obligations to its creditors, and to pay the taxes levied upon its property. On the 12th of December, 1884, at a meeting of the defendant’s board of directors, and on the 28th of January, 1885, at a like meeting of said board, the defendant’s president was authorized to employ counsel to protect the interests of the corporation arising out of the breach of the lease, and also to contest its liability for taxes under the law of the state of New Jersey passed April 10, 1884. The referee finds that in December, 1884, the plaintiff and defendant, through its president, entered into a contract at the office of the defendant, in the city of New York, by which the plaintiff was retained to render professional services for the defendant in securing the possession of its road, and defeating the taxes under the law mentioned. The referee finds that thereafter, and before June 1,1886, thé plaintiff, at the defendant’s request, rendered professional services for it, at the city of New York and elsewhere, in proceedings to obtain possession of defendant’s property leased to the Philadelphia & Reading Railroad Company, and in certain proceedings before the board of tax assessors, the supreme court of the state of New Jersey, and the court of errors of that state, in opposition to the taxation of the defendant under the act of April 10, 1884. The referee finds that under the retainer the plaintiff rendered professional services of the value of $15,000,—$10,000 being the value of his services rendered in obtaining defendant’s property, and $5,000 the value of his services rendered in resisting the taxes,—and that $4,000 has been paid on account of his services. The referee directed a judgment in favor of the plaintiff for the remaining , $11,000, with interest from April 8,1892, the date when this action was begun.

      Sobert W De Forest, for«app’lt; George H. Adams, for resp’t.
   Follett, J.

The defendant concedes that it employed the plaintiff to conduct legal proceedings to recover possession of the property leased by it to the Philadelphia & Reading Railroad Company, the defaulting lessee. The value of these services the defendant ought to pay. The defendant answers that $4,000, which the plaintiff admits he received, is an adequate compensation for the services rendered in recovering possession of the property. The learned and experienced referee found that these services were worth $10,000, which left, after deducting the payments, $6,000 due and unpaid. The valuation of the plaintiffs services by the referee is certainly not excessive, in view) of the services proved to have been rendered, the value of the subject-matter'óf the litigation (about $70,000,000), and the eminence and experience of the plaintiff". The defense of payment for these services was not sustained by the evidence, as the referee well found.

The defendant also asserts that the courts of this state are without jurisdiction of the subject-matter of the action. The referee found that the contract under which the services were rendered was made in the state Of Mew York, and that part of the services were rendered in this state, which brings the case within § 1780 of the Code of Civil Procedure. There is no merit in the contention that, because the price of the services to be rendered under the contract made in this state was not fixed by it, there was no contract, within the, meaning of the section of the Code last mentioned. The complaint contains but one count or cause of action for the recovery of all the services rendered by the plaintiff. The defendant, without moving to have what it claims to be two separate causes of action separately stated, answered, and, among other defenses, averred “ (6) that the alleged cause of action stated in the complaint herein did not accrue within six years before the commencement of this action.” The defendant, being a foreign corporation, cannot avail itself of the statute of limitations of this state. Olcott v. Tioga Railroad Co., 20 N. Y. 210 ; Rathbun v. Northern Central Railway Co., 50 N. Y. 656; Boardman v. L. S. & M. S. Railway Co., 84 N. Y. 157; Mallory v. Tioga Railroad Co., 3 Keyes, 354. The statute of limitations of the state of Mew Jersey is not referred to, or legally pleaded, in the answer. The statute, or the substance of it, should have been set forth, or it should have been referred to by the date of its enactment, or by some reference to the Public Statutes of that state. In this answer there is no reference to the statute of limitations of the state of Mew Jersey, nor is there any allegation in it that there is a statute on that subject in that state. The answer was insufficient to raise this question. Van Santv. Pl. (Moak’s Ed.) 208 ; Boone, Code Pl. § 29, and cases cited; Bliss, Code Pl. §§ 184-304. The learned counsel for the defendant insists that, if the Mew Jersey statute was not well pleaded, the referee should have allowed the answer to have been amended. This would have introduced^ new defense, which was beyond the power of the referee. Riley v. Corwin, 17 Hun, 597 ; Case v. Phenix Bridge Co., 34 St. Rep. 581; 11 N. Y. Supp. 724; Code Civ. Proc. § 1018, and cases cited. But, assuming that the Mew Jersey statute of limitations is well pleaded, we think the defendant failed to establish this defense. November. 7, 1885, the defendant 'drew its check to the order of the plaintiff for $1,500, which the plaintiff received and receipted for on the 9tli of the same month, and on the 2d of April, 1886 ; the defendant drew to the order of the plaintiff a check for $2,500, which was mailed to the defendant at Washington. The date when this check was mailed by the defendant to the.plaintiff does not appear, nor does it appear when the plaintiff received it, nor when it was paid. Both of these checks were, as is claimed by the defendant, paid on account of the proceedings' taken to recover possession of the defendant’s property. If the last check were received by the plaintiff subsequent to April 8,1886, the action was brought within six years from the date of the last payment, and the statute of limitations had not applied, as a bar. The statute of limitations is an affirmative defense which must be proved by the pleader

The proceedings to recover possession of the leased property from the Philadelphia & Reading Railroad Company were begun March 24,1885, and the final order was entered April 6, 1886, when the defendant claims the plaintiff’s retainer in this matter terminated; but the evidence is that in May and June following the plaintiff had consultations with the directors and officers of the defendant with reference to the matter. The plaintiff appeared before the tax commissioners December 15, 1884, and argued the appeal in May, 1886, before the court of errors. The referee found that the plaintiff rendered services under his general retainer between December 1, 1884, and June 1, 1886, and there is no finding, or any request to find, that services were not rendered within six years prior to the commencement of the action, except the referee was requested to find that the services in the proceedings to recover possession of the property ended April 6, 1886. The statute of limitations did not begin to run on the demands until the plaintiff’s services were terminated. Bathgate v. Haskin, 59 N. Y. 533; Mygatt v. Wilcox, 45 N. Y. 306. As before stated, the defendant made no attempt to separate the claim for the services rendered for recovering possession of the property, and to interpose the plea of any statute of limitations as a bar to plaintiff’s recovery for such services.

The defendant also insists that the plaintiff cannot maintain this action because, under the laws of New Jersey, an action cannot be maintained for the recovery of services rendered by an attorney or counselor at law. The answer to this is, as stated by the learned referee, there was no evidence given on' the trial as to what the law of New Jersey was upon that subject, and that it must be presumed to be the same as the law of the state of New York. There is no claim that any statute of limitations is a bar to the claim for services rendered in the tax proceedings. The defenses interposed to this demand are that the courts of this state are without jurisdiction ; and that, under the laws of New Jersey, counsel cannot recover for professional services, and that the plaintiff was never employed by the defendant to conduct these proceedings. The first two defenses have been sufficiently discussed, and little need be said on the merits. The plaintiff testified that he was so employed, and it was undisputed that he was actively engaged as counsel in those proceedings for more than two years, and it is plain that he earned the sum allowed by the referee. The only question is, which of the several railroad corporations jointly interested in this question employed the plaintiff? The issue was found by the referee in favor of the plaintiff, and upon evidence which, we think, is entirely sufficient to sustain this conclusion.. The judgment should be affirmed, with costs.

All concur.


text:
    Joseph B. Rose, App’lt, v. David Stewart et al., as Trustees of the London and Lancashire Fire Insurance Company, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April, 1894.)

    Evidence—ExpEbt.
    In an action to restrain the obstruction of the easements of light and air, an ordinary witness is competent on the question whether less and inferior light is enjo)red after a certain event.
    Appeal from a judgment dismissing the complaint, with costs, entered on a decision of the special term.
    This action was begun on December 26th, 1890, to recover a judgment perpetually restraining the defendants from erecting and maintaining in a yard structures obstructing light and air from entering plaintiffs building from said yard. On the 13th of No'vember, 1832, Nathaniel (^. Carnes was the owner of Nos. 42 and ■ 44 Cedar street and of Nos. 57 and 59 William street, the rears of, which lots abutted. No. 44 was then wholly covernc! by a brick store, and there was a brick store'at No. 42, about fifty feet deep-north and south, leaving a yard about forty feet long north _,and south and about twenty-five feet wide east and west, which abutted Nos. 57 and 59 William street on the west. At this date. Lynde Catlin owned No. 40 Cedar street, which was abutted on-the south partly by Carnes’ William street property and partly by said yard. November 13th, 1832, Carnes and,Catlin mutually executed a contract (duly recorded November 16th, 1832, in the office of the Eegister of the city and county of New York, in Book 289 of Conveyances, at page 449) which contains among other' recitals and covenants, the following:
    “Whereas the said Lynde Catlin is desirous to have the use of the privy in.the yard of the stores of the said Nathaniel Gr. Carnes, in common with the tenants of the surrounding stores, and also to-use and enjoy the light and air appertaining to said yard for his said store now erecting as aforesaid, as will appear by the map hereto annexed * * *
    “And the said Nathaniel Gr. Carnes does hereby give and grant unto the said Lynde Catlin, his heirs and assigns, the use, benefit and advantage of the privy in the yard of the stores of the said Nathaniel Gr. Carnes on William street aforesaid, in common with the tenants of the surrounding stores, and also the use, benefit and enjoyment of light and air for the said store of the said Lynde Catlin, so far as the same in common belongs and appertains to the yard aforesaid. * * *

      “That in no case or under ang pretense shall the said Lynde Catlin, his heirs or ássigns, he deprived of the use or privilege of access to and use of the privy therein, or the light and air as contemplated to he granted to or enjoyed hy the said Lynde Catlin, his heirs or assigns. * * *
    “And it is further mutually covenanted and agreed by and between the parties to these presents that the triangular piece of ground in the rear of the lots Nos. 40 and 42 Cedar street, as delineated on the plan or map hereunto annexed, shall forever remain open for light and air, excepting that the said party of the second part (Gatlin) reserves to himself, his heirs, administrators and assigns, the right to inclose the ground belonging to him, the said party of the second part (Gatlin), with an iron railing and of putting steps to descend into the yard from the first or principal story of his building on said lot, No. 40 Cedar street.”
    The ground embraced within the yard and owned by Gatlin was a small triangular piece containing less than thirty square feet. The plaintiff has acquired No. 42 Cedar street, except a small triangular piece on the southeast corner of that lot forming part of the yard, through mesne conveyances, subject to the covenants above quoted, and the defendants have acquired Nos. 57 and 59 William street, through mesne conveyances, subject to said covenants. The court found:
    , “ Ninth. That the defendants, prior to the commencement of this action, erected and are now maintaining in said yard, in immediate proximity to the rear wall of the building on the premises Nos. 57 and 59 William street, an iron cylinder or pipe of the diameter of about two feet, which extends from the ground in said yard to a point about two feet above the top of the rear wall of the building on the premises Nos. 57 and 59 William street, a height of about one hundred and fifty feet; and that the defendants, prior to the commencement of this action, also erected and constructed, and are now maintaining in said yard, two sky lights or ventilating shafts, one of which is seven feet eight inches long by six feet five inches wide and four feet six inches in height, and the other of which is three feet seven inches long by four feet wide and four feet five inches in height.
    “ Tenth. There is no evidence that the said iron cylinder or pipe, or said skylights substantially interfere with or obstruct the use, benefit or enjoyment of the light appertaining to the yard in the rear of the premises Nos. 57 and 59 William street for the premises of the plaintiff No. 42 Cedar street.”
    The court found the following conclusions of law, the first and second upon the plaintiff’s request, and the last upon the request of the defendants:
    “ First. -That the plaintiff at the time of the commencement" of this action was, and still is, entitled to the use, benefit and enjoyment of the light and air of the said yard, so far as the same in common belonged and appertained to the said premises, No. 42 Cedar street, in the city of New York.
    “ Second. That the plaintiff is entitled to the use, benefit and enjoyment of the light and air of the said yard, which fell in and upon the said premises, No. 42 Cedar street, as said light and air had existed prior to the erection of said cylinder or pipe and of said skylights.
    “ The defendants are entitled to judgment against the plaintiff dismissing the complaint herein with costs, and I order and direct judgment accordingly.”
    The plaintiff has not excepted to the ninth finding, but has to the tenth, and by six requests asked in various forms the court to find the converse of the tenth finding, which requests were refused and exceptions filed. The plaintiff also excepted to the last conclusions of law- above quoted, and requested the court to decide that the plaintiff was entitled to the judgment prayed for, which was refused and an exception filed.

      J. Tredwell Richards, for app’lt; William Allen Butler, for resp’ts.
   Follett, J.

The questions raised on this appeal arise on the ■ exceptions filed to the findings and refusals to find facts, and the exceptions to the conclusions found and refused, and upon the exceptions taken to the exclusion of testimony offered by the plaintiff. The exceptions to the facts found and refused, and the exceptions to the conclusions of law found and refused, are not argued, but those taken to the exclusion of testimony are argued and relied on as grounds for a reversal of the judgment and for a new trial. The evidence contained in " the record sustains the facts found and the conclusions of law, and fully justify the refusals to find facts and conclusions zequested by the plaintiff. The only questions remaining to be considered are whether the testimony offered by the plaintiff and rejected by the court upon the defendant’s motion was relevant to the issues, and if relevant and believable, would it have justified a judgment for the plaintiff?

Thomas McMullin, a witness called and sworn in behalf of the plaintiff, testified that he was a steel plate photographer and • printer, and occupied the second and fourth floors of 42 Cedar street (plaintiff’s premises), before and since the erection of the structures complained of. He was asked :

“Q. Did you have occasion after that pipe was put'up to notice the relative amount of the light you received after it was put up as compared with what you received in that easternmost window?
“ Mr. Butler—I object to it as calling for a conclusion of the witness.
“ Objection, sustained. Exception.
“ Q. Did you notice at any time after the standing pipe was put up the light which comes in in the easternmost window on your premises ?
“ The witness—Yes. I
' “Q. What, if anything, did you notice?
“ Mr. Butler—That is objected to.
“Sustained. Exception.
“ Q. Had you noticed the quantity of light which came in that Window before the standing pipe, the smokestack in the rear of 57 and 59 William street, was put up ?
“ Mr. Butler—I object to it on the ground that the witness has mo means of determining; he is not an expert.
“Sustained. Exception.
“ Q. State whether after the erection of the standing pipe in the rear of the premises Nos. 57 and 59 William street you observed any diminution of light coming in your easternmost windows; if so, state to the court how much the diminution was as near as you can?
“ Objected to on the same ground.
“ Sustained. Exception.
“ Q. State any facts in regard to the light coming in those windows before and after the erection of this standing pipe and what were the differences?
“Mr. Butler—We object to it on the ground that it calls for certain facts; he may state what the facts were at any time before and after; for him to determine whether there is a difference is objectionable.
“ Sustained. Exception.”

Like facts were offered to be proved by this witness at folios 123, 125 and 135, and by JohnM. Ooonan at folios 99, 100, 101, 106, 107 and 108, and by James B. Bose at folios 112 and 113, which were excluded on the objection of the defendants. The exclusion of this testimony was error. The vital issue of facts by which the rights of the litigants were to be determined was whether the defendant’s structures deprived the plaintiff’s building of “the light and air contemplated to be granted to or enjoyed by the said Lynde Gatlin, his heirs and asstgns.” The witness McMullin occupied part of the plaintiff’s building before and since the erection of the structures complained of and was engaged in an occupation requiring light, and his business quallified him to judge of the quantity and quality of light received from the courtyard before and since the erection of the structures objected to. It is not necessary that a witness should be a scientific expert, capable of accurately measuring the quantity of light and of determining by scientific processes its quality, to qualify him to testify as to whether less light and of a poorer quality was enjoyed after a certain event.

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

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Edward S. Stokes, Resp’t, v. William E. D. Stokes, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    1. Appeal—Order for interlocutory judgment.
    An appeal does not lie from an order directing an interlocutory judgment.
    2. Libel—Actionable per se.
    A publication, -which tends to affect the credit and standing of a person and impute to him not only disreputable conduct, hut moral delinquency, is actionable per se.

    Appeal from an interlocutory judgment overruling a demurrer to part of the complaint, and from an order directing the entry of said judgment.

      A. H. Holmes, for app’lt; M. H. Regenslurger, for resp’t.
   Van Brunt, P. J.

So far as the appellant has appealed from the order or decision of the court directing the entry of an interlocutory judgment, the appeal must be dismissed, with $10 costs. It has been held by the court of appeals that such an order is not appealable, which rule has been followed by this court. It is true that different decisions have been made by the superior court of this city, but it is manifest from the decision of the court of appeals in Cambridge Val. Nat. Bank v. Lynch, 76 N. Y. 514, that the only appeal is from the judgment. Wright v. Chapin, 56 St. Rep. 718; 26 N. Y. Supp. 825.

The appellant claims that no sufficient cause of action is set out in the complaint, upon the ground that the alleged libelous matters must be read without the innuendoes; and that, without resort to such innuendoes, no cause of action is set out. In this we are of opinion that he is clearly mistaken. The rule is well settled that defamatory words, in common parlance, are such as impute some moral delinquency or some disrepntable conduct to the person of whom they are spoken; and that even actions for slander may be founded upon such imputations; and that such action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. It has been said that the first and larger class of actions are those brought for the vindication of reputation in its strict sense, against damaging and calumnious aspersions ; and that the other class for the most part are those brought for the purpose of recovering damages for words which tend to injure one in his trade or occupation. Moore v. Francis, 121 N. Y. 199 ; 30 St. Rep. 467. And it has been further held that whatever words have a tendency to hurt, or are calculated to prejudice, a man who seeks his livelihood by any trade or business, are actionable. And the rule seems to be well stated by the learned judge in the court below that publications which tend to diminish the respectability of the person to whom they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, are libelous, and actionable, although no special damages are alleged or proved. In the case at bar the words of the publication in question clearly tend to affect the credit and standing of the plaintiff, and impute not only disreputable conduct, but moral delinquency, to him. We think, therefore, that a cause of action is set out in the complaint, and that the judgment appealed from should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer over on payment of costs of appeal and of the court below. All concur.


text:
    Joseph Wallach, App’lt, v. Sarah Van Schaick, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Appeal—Case—Glebe’s cebtieicate.
    Where the cnse is not duly settled and the, clerk’s certificate is insufficient, so as not to present the questions sought to be reviewed, the judgment will be affirmed.

      Appeal from a judgment dismissing the complaint.

      Sol Kohn, for app’it; Cantor, Linson & Van Schaick, ior resp’t
   Per Curiam.

This case has not been settled as provided by § 997 of the Code of Civil Procedure, and the certificate of the clerk is insufficient; and as we cannot pass upon the questions sought to be reviewed, upon this record, the judgment must be affirmed, with costs.