author: Finch, J. Bartlett, J.

text:
    James F. Malcolm, Resp’t, v. The New York Elevated Railroad Company et al., App’lts.

      (Court of Appeals,

      Filed October 29, 1895.)

    Damages—Elevated railway.
    Where, in an action against an elevated railway for" damages, the proof shows that the railroad comes into an area substantially vacant and unimproved, finds values and rents at the lowest ebb following a panic, brings in population, stimulates improvement and causes values to rise until they exceed the highest limit of the speculative period which preceded the panic, and the side streets grow, their values increase largely from the same cause, and comparison with them only indicates a more or less unequal increment of benefit flowing from the same operative cause, there is no proof of damage
    Appeal from, judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at special term.
    This action was brought to restrain the operation and maintenance of defendants’ elevated railroad in front of plaintiff’s premises and to recover the damages caused thereby.
    The defendants’ elevated railroad was constructed on Third avenue, on which the premises in suit abut, during the years 1877 and 1878, and trains began running in the latter year. Among the defendants’ requests to find, which were refused by the trial judge, was one to the effect that the fee value of the premises in suit was, at the time of the trial, greater than at any time prior to the construction of the defendants’ road.

      Brainard Tolies, for app’lts; B. W. Tyler, for resp’t.

       Reversing 59 St. Rep. 882.

   Finch, J.

The premises claimed to have been damaged by the defendants’ road were numbers 1213, 1215 and 1217 on Third avenue. They stood in an area, substantially vacant and mainly unimproved, for while there was some improvement on the west' toward Fourth avenue, and possibly some further north, there was none or very little to the east and south. The first witness on the subject called for the plaintiff was Burchell, who bought the land in 1866, and put up the buildings in 1869. He remained owner until 1887. When he bought and when he improved he describes the locality as substantially vacant. He tells us that the side streets east of Third avenue have been almost wholly ■ constructed since the coming of the elevated road; that he is positive that none of the four or five blocks up and down 70th street were paved before 1878, and that there were no buildings on any of those streets. In answer to quite a leading question by plaintiff’s counsel, which almost begs for an affirmative answer and reads in the record thus: “Take the period from 1873 to 1878, isn’t it a fact that the city was greatly built up on the side streets there, lower down, up toward this region 59th to 70th streets,” he said quite decidedly: “Not where my houses were.” Freund, a real estate expert, called for the plaintiff, said; “ In that immediate vicinity Third avenue was not very much improved; less from 70th street down to 66th street. On the east side property was entirely vacant, and on the west side. The northwest corner of 70th street was improved and 71st street. Some frame buildings on the block between 71st and 72d streets; 73d' street was just about cut through at that time.” On cross-examination, with his attention drawn to 1878, he said: “In fact almost all improvement has been made in that, time in this immediate vicinity.” So far there is no doubt about the facts.

But it is claimed that they are contradicted by Ourtiss, another real estate expert called for the plaintiff, whose testimony the trial court was at liberty to believe. Where the experts on the same side neutralize each, other the prudent course may be to disregard both. The witness did make some very broad assertions which he afterwards corrected, but in the main I think he did not change the situation, or raise a contradiction. Beginning with 1873 he said that the streets on the east side were vacant from 65th to 70th streets. In 1878 he declares that even on the west the streets were broken; that 72d street, east of the avenue, was only partially built upon, and the same was true of 71st street. He added: “If I said on my direct examination that there has been more development east of Third avenue before the elevated road, that is not true. It was west of Third avenue where the largest amount of building was. Most of the building that had taken place on Third avenue and in the side streets prior to 1877 was south of 60th street.” He was asked to specify the building prior to 1878, and we find this answer in the record: “ Towards building up Third"avenue between 1873 and 1878 the beginning of 72d street, four houses on the southwest corner of, 72d street and on Third avenue, one on the northwest corner of 72d street and Third avenue, two flats on the west side of Third avenue, between 76th and 78th streets, on the west side, and a flat and a half front from 70th to 78th street on the east side, that is a 100 foot flat; that is about all the new buildings I recollect in that section.” If lie gave some loose and vague answers, his statements of detailed facts leave it clear that from 70th street south to 60th street Third avenue was substantially unimproved; that on the west, toward Fourth avenue, there was some building, and a little to the north, but the east was almost utterly vacant.

On this state of the proof the learned trial judge was asked to-find as a fact that prior to 1877 the land in the vicinity of the premises in suit was largely unimproved and unutilized. There was a refusal and exception. That the request was material is settled by the doctrine of the Bohm case, 129 N. Y. 567, which we have just followed in the case of Bookman, ante, p. 298. The request should have been granted since the uncontradicted evidence clearly proved the fact.

The trial court also found that the fee value of the premises had increased since the building of the road, but refused to find to the extent of increase requested, and also refused to find that the rental value had increased since the same date. The proof shows a rental of almost $7,000 in 1873, which was a speculative point of inflated values, and then a descent in consequence of the panic which followed to about $3,600 in the years 1878 and 1879, but promptly thereafter, and coincident with the construction and operation of the road, a steady and persistent rise up to $6,500 in 1886. Mr. Kyle, who collected the rents during the year of the trial, stated that the rent per month, not including the janitor’s-apartments, was $601.50, which gives for the year $7,217, an amount larger than in any year preceding the building of the road. That fact also the trial judge refused to find as requested.

The plaintiff’s expert, Freund, put the fee value in 1873, the period of inflation, at $70,000, and the present value at $90,000. He stated the fee value in 1877 at $60,000, showing an appreciation since the construction of the road of about one-third. Curtiss agrees as to the last two values, and yet, with no evidence to the contrary, the trial judge refused to find the facts as requested. He does find, however, the obvious truths that the station at 67th street is used by a great number of people, and makes the premises more accessible and more desirable for many business purposes.

If, therefore, the trial judge had found the facts as requested, ás he should have done, the legal conclusion that no damages had been proved would have followed inevitably under the doctrine of the Bohm, Case. The railroad comes into an area substantially vacant and unimproved. It finds values and rents at the lowest •ebb following the panic. It brings in population, stipulates improvement, and causes values to rise until they exceed the highest limit of the speculative period which preceded the panic. The side streets grew, and their values increased largely from the same cause, and comparison with them only indicates a more or less unequal increment of benefit flowing from the same operative cause. The authority of the Bohm and Bookman cases, requires us to hold that there was no proof of damage.

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

Bartlett, J.

(dissenting). This action is brought to recover the amount of injury to the fee and rental value of property by reason of the construction of the elevated railroad. The premises involved are Hos. 1213, 1215 and 1217 Third avenue, on the northeast corner of Seventieth street, in the city of Hew York, with a frontage of seventy-five feet on Third avenue by a depth ■of eighty feet, and upon the lot are erected three four-story buildings, each containing two stores and three upper floors used for ■dwelling purposes.

The judgment decreed the usual injunction against operating the railroad of defendants in front of the premises in question and as incidental relief awarded $2,400 rental injury from the 31st of May, 1887, when the plaintiff acquired title to the premises, to the 14th of June, 1893, the date of the trial. The judgment further provided for the avoidance of the injunction on payment of $6,000, found to be the injury done to the fee value, over and above the benefit, by reason of the construction of the railroad.

The defendants insist that the judgment is wholly unsupported by evidence and that this appeal presents only questions of legal error.

This case was tried for the second time by learned counsel of experience in this class of litigations, having before them the re■cent decisions of this court laying down the rules"of evidence that ■should govern.

It is now confidently urged by the appellants that the uncontradicted facts, taken in connection with the settled law of this court, must lead to reversal.

It is desirable to apprehend clearly, at the outset, the points raised by this appeal.

As to fee value it will be observed that the trial court found, at the request of both plaintiff and defendants, that it had not decreased since 1878, but had increased since the year preceding the construction of the defendants’ road; there was a conflict of evidence only as to the amount of the increase in value.

As to rental value the trial court found that the injury was $400 a year for six years, the period of plaintiff’s ownership from May SR 1887.

In regard to fee value we have presented the question, whether, under the evidence, a finding of consequential damages, over and above all benefits resulting from the maintenance and operation of defendants’ road, can be sustained in view of the fact that the fee value has increased since defendants built their- road ?

As to rental value the question arises, whether, under the proofs, the finding as to its injury can be sustained when the fee value has increased as already stated ?

I will consider the question of rental value first. The appellants contend that the uncontradicted evidence shows that the rental value of the premises has increased, and that plaintiff has failed to prove any injury.

A careful reading of the record satisfies me that this contention is erroneous, and that there is evidence to sustain the finding of rental injury to the extent of $400 a year. This court is not concerned with the weight of evidence, but has reached the limit of its jurisdiction when it finds sufficient evidence to warrant the action of the court below. As to whether the finding of injury to rental value can be sustained, notwithstanding the fee value has increased since the construction of the road, there is no rule of law prohibiting a recovery under such circumstances where the finding is supported by competent evidence. It is by no means improbable that the fee value of premises in certain localities may appreciate while the rental value of existing buildings devoted to residental and business purposes may decrease.

Whether rentals are to keep pace with fee values in a certain locality depends entirely upon the character of the buildings erected and the purposes for which-they are used.

A manufacturing establishment may thrive where an apartment house would prove a ruinous investment.

I will now consider the finding of injury to fee value, and in so doing will put aside for the moment the fact that the market value of the fee has increased since the construction of the elevated road.

What evidence is there in this case on which to rest the finding that by reason of defendants’ interference with the easements of light, air and access consequential damages resulted to the fee over and above all benefits ?

In the first place it appears that the central portion of the street is covered by the track structure, which is thirty-seven feet six inches wide; the tracks come about half way up to the second story, that is, above the stores; there are three tracks and two outside track walks; the structure is supported by iron pillars, which are placed .in the bed of the street; there is one iron pillar in front of No. 1213, the corner house, and one in front of No. 1217, two houses north.

A watchmaker and jeweler, occupying one of the stores, testified he had noticed that whenever his door was open his show cases would be covered with dust very quickly, and that he had continually to wipe off the deposit; when, at his bench as a watch repairer, and there vras a train passing, he would have to stop his work ; that the work on watches required a pretty good light, a steady light.

Another witness from the residental part of the house swore that when sitting in the parlor or front rooms and a train passed there was a shallow or cloud created while it was passing; a witness also testified to cinders and dust.

This is sufficient to show the character of evidence introduced on this point. The plaintiff supplemented this class of proof by evidence as to values on Third, Lexington and Fifth avenues and a number of cross streets in the vicinity. There was a sharp conflict of evidence as to these values, but the question to be answered now is, what did plaintiff prove by his witnesses?

It was shown that values on Third avenue had advanced since 1873 from twenty to twenty-two and a half per cent; on the side streets in the vicinity and on Lexington avenue about 100 per cent., and on Fifth avenue very much more.

It is unnecessary to go further into the details of the evidence, as plaintiff’s proof showed that Third avenue property had not experienced the same advance as other property in the neighborhood by a very large percentage, and it also established that the pkiintiff’s premises, involved in this controversy, were worth about $80,000 in 1873, and $90,000 at the time of the trial, which advance was less even than the average on Third avenue.

6 I think the evidence of interference with the easements necessarily tends to show a damage to the fee value when taken in connection with these proofs as to neighborhood values.'

In the Bohm Case, 129 N. Y. at page 588 ; 42 St. Rep. 247, Judge Pegicham said: “It .seems to me plain, from this review of the law, that the real injury (if any) suffered by the landowner in any particular case, lies in the effect produced upon his abutting land by the wrongful interference of defendants with these easements of light, air and access to such land. And when they are interfered with, and in legal effect taken to any extent, it is not possible to think of them as of any value in and of themselves separated from the adjoining land, but their value is to be measured by the injury which such taking inflicts upon the land which is left, and to which they were appurtenant.’’

Can it reasonably be said that it was not proper for the learned ■ trial judge to consider all the evidence in this case as to interference with easements and as to the failure of Third avenue property to keep pace with the general advance of real estate values in the neighborhood and decide that the fee value of this property had been damaged to the extent of $6,000? I think this question was properly considered at the trial and at the general term, and as the case stands it is a finding upon conflicting evidence with which we cannot interfere.

In the Bohm case, 129 N. Y. at page 592; 42 St. Rep. 247, Judge Peckham further said: “That question is, what, in fact, has been the actual result upon the land remaining ? Has its actual market value been decreased by the taking, or has the taking prevented an enhancement in value greater than has actually occurred, and if so, to what extent? ” * * * (P. 593.) “ Where it appears that the property left has actually advanced in value, unless it can be shown that but for the act of the defendant in taking these easements it would have grown still more in value, the fact is plain that it has not been damaged.”

I come then to the effect on this case of the increase in fee value of the property since the elevated road was built.

The Bohm case distinctly recognizes that even though such an increase in value has taken place, yet if it can be made to appear that the premises would have grown still more in value had the railroad not been built, then damage has been proved.

In the Bohm case it was said to be abundantly clear on the evidence that plaintiff’s property had not suffered injury, and the question of neighborhood values was of no importance.

It has, however, been repeatedly held that the fee and rental values of neighboring property are competent evidence in this class of cases.

If competent evidence, it is for the reason it is material and likely to be of assistance to the court in reaching a just conclusion.

The practical question is, how was the plaintiff to prove his case ?

Had there been marked depreciation in the fee and rental values since the completion of the railroad there would be little difficulty in making out a cause o£ action, but there is the other class of cases, referred to in the Bohm case, where there has been an advance in fee value and the owner desires to show that it would have increased even more if the easements had not been interfered with by the defendants and the road operated in front of his property.

I think a plaintiff in such a position may prove the effect of the road upon the fee and rental value of other property situated on the same avenue upon which the railroad is operated ; also as to property situated on adjacent avenues and side streets ; he may show the condition and growth of the neighborhood before and after the road was constructed; he may prove the direct effects upon the property of interference with the easements of light, air and access.

What more could he do ? This court has said that in such a case the opinion of an expert as to what would have been the value of plaintiff’s property had defendants’ road not been built and operated is incompetent evidence. Roberts case, 128 N. Y. 455; 40 St. Rep. 454.

The question of damage is one of legal deduction by the trial judge or jury when the facts referred to are duly proved.

The decision in the Roberts case was placed upon the precise ground that the expert was asked to determine the very question that ought to be answered by the court or jury.

It cannot be expected that a plaintiff would be able to show to-a dollar the amount of damage his property has suffered by reason of the construction of the elevated road; nor can it be said because accurate proof in this class of cases is difficult that damages cannot be proved by showing all the surrounding facts and allowing the trial judge or jury, in the exercise of a sound, honest judgment, to fix the amount.

Such a result is not guessing or speculation, but is a judicial estimate based upon all the known facts involved in the problem submitted for solution.

It would be a new doctrine to hold that the recovery of damages is limited to those cases where absolute proof of a sum certain can be made; if such were the case a large number of plaintiffs would be remediless in courts of justice.

There would seem to be nothing unreasonable in the proposition that residential property along the line of the elevated railroad may experience only a slight advance in fee value after the construction of the road, while property off the. line, but in the immediate vicinity, may appreciate in value very largely for the reason that it has enjoyed all the benefits conferred by the presence of the road- in the locality, and the natural growth of the city due to increase of population and business, without suffering from those injuries necessarily inflicted on property in immediate contact with the road.

The elevated railway companies are entitled to receive from the courts ample protection in view of the numerous actions they are called upon to defend and the vast amounts .involved in their determination, and judgments against them ought not to be upheld resting upon mere speculation unsupported by evidence, but, on the other hand, plaintiffs whose property may have experienced a small advance in fee and rental values since the completion of the elevated railroad ought not be remediless when all the facts render it clear that property along the line of the road has been damaged by the interference with the easements of light, air and access, arid has, for that reason, failed to share the advance in values of adjacent property, manifestly due not only to the construction of the elevated system, but to that natural growth which the neighborhood would have experienced by reason of increase of population and business in a great city even if the railroad had never been constructed.

I am thus brought to the vital question in this case, whether plaintiff was entitled to introduce evidence tending to show that the increase of his property in fee value was not as great as it would have been from natural causes if the elevated road had not been built, and was the court authorized to consider that evidence in determining whether there had been an injury to fee value overall benefits ?

The court has held that, in estimating damages to property, all benefits to the rental or fee value resulting from the existence of the railway are to be considered, and that only damages over and above benefits ate recoverable. Sutro case, 187 N. Y. 592; 50 St. Rep. 701: Bischoff case, 138 N. Y. 262; 52 St. Rep. 874. If the value of the benefits that the elevated railroad has conferred upon the property, over and above all other benefits arising from tire natural growth of the locality, without regard to the existence of the railroad, is fairly deducible by the court from surrounding circumstances, in the exercise' of a sound judicial judgment, it is difficult to understand why it is not equally competent for the court to determine the amount of those other benefits which might have accrued to the property had the road never been built. In fact, it is necessary to separate these two classes of benefits which go to make up the total value of the property before the value of either can be ascertained.

The appellants cannot successfully contend that the growth of the locality where this property is situated is wholly due to the elevated railroad; so in finding .the value of one class of benefits, you necessarily find the other.

The rule for proving damages, as laid down in the majority opinion in this case, and more particularly in the Bookman case {ante, p. 298), is plausible and reasonable as an abstract proposition, and is an easy way of escape out of a wilderness of difficulties which beset the path of court and counsel in elevated railway litigations; but the ordinary facts presented in these cases are not such, in my judgment, as to justify its application.

I am not aware of any locality from the Battery to the north-most limits of the city of New York which fully answers the requirements of this new rule—11 a vacant and uninhabited locality, which normal growth has not effectively reached, which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation.” While this entire territory is not fully built up and improved its future is assured.

While I am willing to admit that the elevated railway system has been of great and lasting benefit to the city of New York, I cannot concede that we are to ascribe to it alone the marvelous growth of that city since the year 1878. We have presented in this connection a complex and difficult question, but to my mind it is absolutely clear that one of the principal factors in this matter of municipal development is the natural and irresistible incréase of population and business in a commercial city like New York, whose swarming population is constantly augmented from sources foreign and domestic.

It is not the elevated railways which have created the city, but it is the city which has made these corporations possible.

Every square foot of the territory within the city of New York feels the impulse or this normal growth of population and business; and I can but think it a just rule which holds that where the elevated railway is extended into a new locality, the property owner, whose easements of light, air and access are interfered with, should be allowed to prove, if possible, that his property would have been of greater value if it had been left to enjoy the natural grovrth of the city in population and business without the aid of the elevated road.

In many cases it will, doubtless, be difficult, if not impossible, to make such proof, but it is better to let each case stand on its own peculiar facts rather than lay down a general rule that may deprive many persons of the right to invoke the aid of the courts in a proper claim for damages.

The judgment appealed from should be affirmed, with costs.

Andrews, Oh. J., Peckham and Haight, JJ., concur with Finch, J., for reversal; O’Brien, J., concurs with Bartlett, J., for affirmance, and Gray, J'., concurs in that result.

Judgment reversed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Ella G. Jamieson et al., Resp’ts, v. The Kings County Elevated Railway Company, App’lt.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Injunction—Elevated bailway.
    An injunction will, it seems, lie to restrain the operation of an. elevated railway in front of abutting premises, where it is found that the rental value substantially depreciated in consequence thereof, though the injury to the fee value is merely nominal.
    51. Evidence—Elevated bailway.
    The evil effect of an elevated road in diminishing values cannot be proved by calling the owners of property in the vicinity and showing, in each case, what the particular premises owned by the witness rented for, before and what after, the road was built.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought to restrain the operation and maintenance by defendant of its elevated railroad in front of plaintiffs’ premises, No. 799 Fulton street, in the city of Brooklyn* and for the recovery of damages caused thereby.
    The judgment decreed the usual injunction against the operation of the defendant’s railroad in front of the plaintiffs’ premises, and as incidental relief awarded $645 for past or rental damages, and provided for the avoidance of the injunction on payment of one dollar, found to be the amount of injury done to the fee value.

      W. A. Poste, for app’lt; J. Newton Fiero, for resp’t.

       Reversing 56 St. Rep. 187.

   Finch, J.

I do not think the fact which is explicitly found, that the construction and operation of the defendant’s elevated road has injured the fee value of plaintiff’s property only to the extent of one dollar, necessarily defeats the equitable right to an injunction, and so defeats the action. It is further found that the . rental value has depreciated to a substantial extent, and for which damages were awarded. While it is true that usually the fee value rises or falls in proportion to the changes of rental value, that is not always or necessarily true, and cases are possible in which one remains stationary while the other changes. That is found to be the fact in the present case, and I think that proof of a substantial and continuing injury to the rental value will sustain the equitable action. The wrong done is in the nature of a •continuing trespass, involving a multiplicity of actions. The appellant’s suggestion is that the finding of an unchanged fee value raises a presumption that there will be no loss of rental value in the future, and so no occasion for further suits. To indulge in such a presumption would require us to shut our eyes to the lesson of the past taught by the proofs in respect to this property. I think the action was maintainable and-the remedy by injunction n, proper one.

But I think, also, that there was error in the admission of evidence which we cannot disregard. The plaintiff sought to prove the evil effect of the road in diminishing values by the process of •calling the owners of property in the vicinity and proving, in each case, what the particular premises owned by the witness rented for before the road was built and what thereafter. There were objections and exceptions. Such a process is not permissible. Each piece of evidence raised a collateral issue; Gouge v. Roberts, 58 N. Y. 619, and left the court to try a dozen issues over as many separate parcels of property. We have held such a mode of proof to be inadmissible. Huntington v. Attrill, 118 N. Y. 365; 29 St Rep. 50. In re Thompson, 127 N. Y. 463; 40 St. Rep. 200. The elevated railroad cases in this court, to which the plaintiff refers us, give no warrant for such a mode of proof, but indicate that the general course and current of values must be shown by persons competent to speak, leaving to a cross-examination any inquiry into specific instances if such be deemed essential. Almost all the -evidence of depreciation was of the erroneous character, and we cannot say that it may not have worked harm to the defendant.

The judgment should be reversed and anew trial granted, costs to abide the event. All concur. Judgment reversed.


author: Gray, J.

text:
    Adele N. Sanford, Resp’t, v. The Commercial Travelers Mutual Accident Association of America, App’lt.

      (Court of Appeals,

      Filed October 29, 1895.)

    -Contract—Insurance—Agreement to refer.
    A stipulation in a certificate of insurance that any action against the company on the certificate shall, on the demand of the company or its attorney, be referred for trial to a referee to be appointed by the court, is void as against public policy.
    Appeal from order of the general term of the supreme court in the fourth judicial department, which reversed an order of the special term directing a reference to hear and determine, and denied a motion for such reference.

      The action was brought upon a certificate of membership issued by the defendant, a mutual accident association, to recover the amount made payable, by the terms thereof, to the plaintiff, as beneficiary, upon the death of the member by accident.

      M. W. Van Auhen, for app’lt; F. Id. Kellogg, for resp’t.

       Affirming 67 St. Rep. 225.

   Gray, J.

The certificate of insurance, to recover upon which this action was brought, contained this clause: “It is hereby stipulated and agreed, by and between this association and the member named herein and his beneficiary, that the issues in any action brought against it under this certificate shall, on the demand of this association or its attorney, be referred for trial to a referee to be appointed by the court in which such action is brought.” An order of reference of the issues in the action has been reversed at the general term below and the motion for a reference denied; and the question is whether such an agreement is valid and binding upon the parties.

Little, if anything, can be added to the opinion of the general term. Such a provision, if beneficial at all to the company, can only be so through superseding the law established for the trial of actions and compelling the beneficiary practically to submit an issue. That is vicious for tending to limit the court, having cognizance of the action, in its jurisdiction and for militating against the constitutional provision which secures to a party the right of trial* by jury. The cases, cited in the opinion below, abundantly show that a general covenant to submit any differences that may arise in the performance of a contract, or under an executory agreement, is a nullity. In the case of The President, etc., D. & H. Canal Co v. Pennsylvania Coal Co., 50 N. Y. 250, where that proposition was so stated, Judge Allen, in his opinion, was inclined to question the rule if res nova ; but he regarded it as too well established to be now questioned. The rule, in its application to such a case as this, seems to me, however, to be well supported by reason. The defendant is a corporation which owes its existence to the laws of this state and to which has been granted the right to do the business of insuring the lives of individuals. The dictates of a sound public policy would seem to require that its contracts of insurance, while providing every wise and reasonable restriction, should not compel the individual who. seeks to insure his life, to submit, as a condition of obtaining that insurance, to conditions which are in violation of constitutional rights. Such a provision in the policy has no reasonable relation to the contract of insurance. Its insertion is unnecessary to the protection of the insurance company and may be regarded, therefore, as an unimportant provision. Í think we may safely base the reason for the application of this rule upon the proposition that public policy is opposed to the enforcement of an agreement, which supersedes the law and deprives the individual of the protection which it was designed and framed to afford.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Per Curiam.

text:
    Maria Isola et al., as Administrators, etc., Resp’ts, v. John Weber et al., App’lts.

      (Court of Appeals,

      Filed October 29, 1895.)

    Constitution—Injuries resulting in death.
    The provision of section 18, article 1 of the State Constitution of 1894, does not affect causes of action which had accrued before it went into effect.
    Appeal from an order of the general term of the court of common pleas for the city and county of New York, which reversed an order of special term denying plaintiffs’ motion for leave to amend their complaint by increasing the amount of damages prayed for, in an action brought to recover damages for the death of plaintiffs’ intestate, alleged to have been caused by the negligence of defendants.

      John J. Fitzgerald, for app’lts; George H. Hart, for resp’ts.

       Reversing, 68 St. Rep. 32.

   Per Curiam.

The motion to amend the complaint by changing the claim for damages, occasioned by the negligence of the defendants, and resulting in the death of plaintiffs’ intestate, from five thousand dollars to twenty-five thousand dollars, involves the question whether section 18 of article 1 of the new Constitution operates restrospectively, and affects causes of action accrued before it went into effect. The language of that provision is: “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.” At special term Judge Pryor denied the motion to amend, upon the ground that the constitutional provision was prospective only and did not operate upon causes of action antedating its own existence. The general term reversed and granted the amendment, and the defendants appeal from that order.

The same question at nearly the same time came before the general term of the first department, which held that the provision did not operate restrospectively. We think that conclusion was correct, O'Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406; 68 St. Rep. 432, and adopt the reasoning of the opinion by Follett, J., in that case as a sufficient expression of our own views.

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

All concur.

Ordered accordingly.


author: Haight, J.

text:
    In the Matter of the Application of Ashbel P. Fitch, as Comptroller of the City of New York, for a Writ of Certiorari to be Directed to Daniel Lord et al., as Commissioners, etc., and Rachel Purdy, Claimant.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Cebtiobabi—Whbm lies.
    The determination of commissioners, under the provisions of chapter 537 of 1893, as amended by chapter 567 of 1894, is subject to review as to whether they made their estimate upon legal and authorized evidence, included only authorized elements of damage and adopted a proper rule or basis in estimating the damage.
    2. Same.
    A writ of eertiora/ri to review the award of such commissioners issues properly under subdivision 2, section 2120 of the Code.
    Appeal by Eachel Purdy, claimant, from order of the general term of the supreme court in the first judicial department, which affirmed an order of the special term denying a motion to quash a writ of certiorari issued upon the application of the comptroller of the city of New York to review an award made to Eachel Purdy by commissioners of appraisal, appointed under Laws of 1893, chapter 537, as amended by Laws of 1894, chapter 567.

      Ernest Sail and Thomas S. JBassforcl, for app’lt; D. J. Dean, for resp’t.

       Affirming, 65 St. Rep. 874.

   Haight, J.

Under chapter 721 of the Laws of 1887 the department of public works in the city of New York was authorized to enter into an agreement with the New York and Harlem Eailroad Company for the depression of the tracks and for the changing of the grades of the railroad in the 23d and 24th wards of the city, and for the carrying of the streets crossing such railroad over and under the same, etc. Pursuant to the provisions of this act an agreement was entered into and the tracks of the company were depressed and the grades changed in accordance therewith. Under chapter 537 of the Laws of 1893, as amended by chapter 567 of Laws of 1894, the mayor of the city of New York was authorized and directed to appoint three discreet, disinterested persons as commissioners, who “shall have exclusive jurisdiction to estimate the loss and damage which each owner of land or land and building fronting on any such street or avenue has sustained or will sustain by reason of such change,” etc., which damage the city was directed to pay to such owner. Pursuant to this provision the appellant presented a claim, upon which the commissioners appointed by the mayor have made an award in her favor, for the sum of $2,575. It was to review the proceedings of the commissioners upon which this award was made that the writ in question was issued. The motion to quash was made upon the ground that the court had no power to review such award, for the reason that by the terms of the act the commissioners were given .“exclusive jurisdiction to estimate the loss and damaga”

The question presented must be determined from the provisions of the act. What is the fair and reasonable construction that should be given to them ?■ Undoubtedly the commissioners are given exclusive jurisdiction to estimate the loss, but they are required to make their estimates upon legal and authorized evidence, to include only such element of damage as is authorized, and to adopt a proper rule or basis in estimating the damage. Their determination is not, by the language of the act, made final and conclusive. They are only given the exclusive power to estimate. It appears to us, therefore, that their proceedings are subject to review in the particulars indicated.

The case of The People ex rel. The Schuylerville & Upper Hudson R. R. Co. v. Betts, 55 N. Y. 600, we do not regard as in conflict with the views above expressed. That case was a proceeding to assess the damages of the owner for lands taken for railroad purposes under the right of eminent domain. The statute in that case authorized one review of the determination of the commissioners, and then provided that “The second report shall be final and conclusive on all the parties interested.” In that case it was held that the writ of certiorari would not lie to review the second appraisal. B ut it will be observed that the language of that statute is very different from that which we now have under consideration. Exclusive jurisdiction to estimate does not necessarily mean sole power to determine the rule or elements of damage or the competency of evidence by which. such damage shall be ascertained. Ueither do those words necessarily mean that the estimate shall be final and conclusive upon the parties without an opportunity to review ; and in the absence of any provision indicating an intent that they were intended to be so understood, we think they ought not to be construed as shutting off forever any right of review.

Section 2120 of the Code of Civil Procedure provides that “The writ of certiorari regulated in this article, except the writ specified in section 2124 of this act, is issued to review the determination of a body or officer. It can be issued in one of the following cases only : 1. Where the right to the writ is expressly conferred, or the issue thereof is expressly authorized by a statute. 2. Where the writ may be issued at common law, by á court of general jurisdiction, and the right to the writ, or the power of the court to issue it, is not expressly taken away by statute.” The commissioners appointed by the mayor are officers and they act as a body. At common law the writ would issue to review their action. There is nothing in the statute under consideration expressly taking away the writ. It was, therefore, properly issued under the second subdivision of this section of the Code.

It is urged on behalf of the appellant that the clause of the statute referred to, giving the commissioners exclusive jurisdiction to estimate, is an expression of the statute taking away the writ; but for the reason stated we do not so construe it.

The order appealed from should be affirmed, without costs, and the proceedings remitted to the special term to proceed thereon. Ail concur. Ordered accordingly.


author: O’Brien, J.

text:
    In the Matter of the Application of Morris B. Baer, App’lt, to be Relieved from his Purchase in the Partition Action of Francis Nathan et al., Resp’ts, v. Edmund Hendricks et al., Def’ts.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Will—Cohstbuctioh.
    Where final division and distribution are to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.
    2. Same.
    In such cases, the gift is contingent upon survivorship, and, if it vests at all before the date of distribution, it is subject to be divested by the death, before that time, of a person presumptively entitled to share in the distribution.
    S. Same.
    Where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift.
    4. Same.
    The rule that, in case of a devise to one person in fee, but in case of his death to another, the death referred to will be construed to be a death in the testator’s lifetime, has no application to a case where a point of time for distribution other than the death of the testator is mentioned, or where a life estate intervenes, or where the context of the will contains language indicating a contrary intent.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the special term denying a motion by the purchaser of premises sold under an intelocutory judgment in an action of partition, to be relieved from his purchase, and ordering him to complete such purchase.

      Thomas W. Butts, for app’lt; Benjamin N. Gardozo, for resp’ts.

       Affirming 69 St. Rep. 76.

   O’Brien, J.

On the 6th of March, 1895, pursuant to the judgment in an action of partition, the referee offered for sale the premises in question, No. 27 Mercer street, in the city of New York, and the appellant in this proceeding, as the highest bidder, became the purchaser. Subsequently he petitioned the court to relieve him from his bid upon the sole ground that the title under the judgment resulting in the sale was not a marketable one. The courts below have denied his application, thus holding that the title offered is good, and that is the only question presented by this appeal.

It is admitted that Charlotte Gomez, who died December 1, 1849, leaving a will which was admitted to probate in that year, was, at the time of her death, seized and possessed of this property in fee. The defect which the purchaser claims to exist in the title under the referee’s sale arises under this will and the judgment in partition.

The property in question was disposed of by the residuary clause of the will, wherein the testatrix devised and bequeathed the same to her executors, as trustees, in trust for the use of her daughter Bmeline, with directions to pay over to her the rents, income or profits thereof, and in case of her death, leaving issue, to convey the remainder to such child or children or his or her heirs.

This provision of the will was modified by a subsequent clause, in which it was directed that in case of the death of Bmeline without children or their issue, her descendants, but leaving her sister Matilda surviving, then and in that case, the trustees were to apply the rents, income and profits of the property in question so held by them in trust to the use, benefit and support of Matilda during her natural life, and upon her death to convey the remainder “ to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike per stripes.”

The daughter Bmeline died intestate and without issue March 20, 1885. The daughter Matilda survived her sister for several years, and died December 6, 1893, and so the trust then expired and the estate in remainder passed to such descendants of Harmon Hendricks as were contemplated by the will. Harmon was the brother of the testatrix, but died some time before the will was made, leaving ten children surviving, and who were alive at the death of her aunt, the testatrix, but all of them died before Bmeline, to whom the first life estate was devised. These children, or some of them, left wills under which any interest in the real estate in question which vested in them upon the death of the testatrix would pass. In the partition action none of the devisees of these children were made parties, but all persons who answered to the description of the living heirs of Harmon Hendricks at the date of the death of Matilda, on December 6, 1893, were brought in and are bound by the judgment.

The question, therefore, is, whether the remainder vested upon the death of Charlotte Gromez, the testatrix, in such of the children or descendants of her brother, Harmon Hendricks, as were then living, or only in such descendants living at the termination of the life estates to the two daughters of the deceased. If the remainder vested upon the death of the testatrix, then the contention of the petitioner as to defects in the title can be sustained, but not if it was contingent and to vest only in the future in the surviving children or heirs of the brother, since all such persons were made parties to the partition suit. The trust created by the provisions of the will referred to embraced personal as well as real property, and the contention of the purchaser is that the testatrix contemplated a division and distribution of the remainder at some renote period in the future, not only among the desceudof her brother then living, but also among the devisees and legatees of such as had died in the meantime, or their heirs or representatives, thus bringing into the class persons who are not of her blood and who were wholly unknown to her in her lifetime. The duty which she imposed upon her trustees was clear and simple, and that was to distribute the remainder, when the trust terminated by the death of the life tenants, among the children and lawful heirs of her deceased brother.

The language of the will, read in the light of settled rules of construction, indicates quite clearly that she did not intend that the remainder should vest upon her death in the then living children and heirs of her brother, but should be postponed until the time for division and distribution arrived, and then to vest in such persons as answered to the description who survived. The children of her brother were to take no interest whatever, except upon the contingency of her daughter’s death without issue. In case of her death leaving issue such issue would take the remainder absolutely.

Where final division and distribution is to be made among a class the benefits of the will must be confined to those who come' within the appropriate category at the date when the distribution or division is directed to be made. Bisson v. W. S. R. R. Co., 143 N. Y. 125; 62 St. Rep. 133; Goebel v. Wolf, 113 N. Y. 405-411; 23 St. Rep. 176; Teed v. Morton, 60 N. Y. 506; In re Smith, 131 N. Y. 239, 247; 43 St. Rep. 271. In such cases the gift is contingent upon survivorship, and if it vests at all before the date of distribution it-is subject to be divested by the death before that time of a person presumptively entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet it may be said to be a general rule and there is nothing to be found in the will in question to prevent its full application.

Moreover, there is not in this devise any words of direct and immediate gift to the children or heirs of the brother, but a direction that the trustees should convey to them at a future time on a certain contingency. They were to take through the medium of a power in trust, and the time of the vesting of the interest was thus deferred in form, at least until the time of distribution. It is a case then where, as the cases express it, “futuriry is annexed to the. substance of the gift,” and warrants the application of the principle that where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, tfye devise is designed to be contingent; and snrvivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. This rule lias been applied in numerous cases that do not differ essentially in the material facts from the one at bar. Smith v. Edwards, 88 N. Y. 92; Delaney v. McCormick, id 174; Warren v. Durant, 76 id. 136; Vincent v. Newhouse; 83 id. 511; Delafield v. Shipman, 103 id. 463; 4 St. Rep. 247; Hobson v. Hale, 95 id. 588.

The rule that in case of a devise to one person in fee, but.in case of his death to another, the death referred to will be construed to be a death in the testator’s lifetime, has no application to this case. The rule is never permitted to operate in a case where, as here, a point of time for distribution is menlioned other than the death of the testator, or where a life estate intervenes, or where the context of the will contains language indicating a contrary intent. In re Denton, 137 N. Y. 428; 51 St. Rep. 60; Washbon v. Cope, 144 N. Y. 297; 63 St. Rep. 716; Benson v. Corbin, 145 N. Y. 351; 64 St. Rep. 815; Stokes v. Weston, 142 N. Y. 433; 59 St. Rep. 811; Vanderzee v. Slingerland, 103 N. Y. 47; Mullarkey v. Sullivan, 136 N. Y. 227; 49 St. Rep. 333; Fowler v. Ingersoll, 127 N. Y. 472; 40 St. Rep. 206.

The intention of the testatrix was that upon the death of the daughters, for whose benefit the trust was created, without issue, the remainder should be distributed among such of the children of her brother as might then be living, and the lawful heirs of such as might be dead, and all the persons who answered to that description at the time of distribution having been made parties to the action of partition and become bound by the judgment, the title tendered was good and marketable.

Nor do we think that the title was involved in so much doubt, within the meaning of the rule, as to justify the purchaser in refusing to perform; and moreover, the courts below exercised their discretion in that respect, with which we ought not to interfere. Kelso v. Lorillard, 85 N. Y. 177; Fry on Specific Performance, §§ 865, 871; Radford v. Willis, L. R., 7 Ch. App. 7.

■ For these reasons we think the order appealed from should be affirmed with costs.

All concur. Order affirmed.


author: Peckham, J.

text:
    In the Matter of the Application of the Board of Rapid Transit Railroad Commissioners for the City of New York, App’lt, for the Appointment of Commissioners, etc.

      (Court of Appeals,

      Filed October 22, 1895.)

    Street railroads—Commissioners—General term.
    * The provision of section 18, art. 3, of the state Constitution of 1894, is intended to take effect on January 1, 1896, and until such date, the general terms of the supreme court .continue to have the jurisdiction heretofore possessed by them to entertain an application for the appointment of commissioners to report whether a railroad ought to be constructed, etc.
    Appeal from order of ihe general term of the supreme court in the first judicial department.

      Edward M. Shepard, for Board of Rapid Railroad Commissioners, app’lt.
   Peckham, J.

This is an appeal from an order of the general term of the supreme cohrt of the first department, refusing to entertain the application of the rapid transit commissioners for the designation of newspapers in which to publish notices of their intention to apply to the court for the appointment of commissioners to report after due hearing whether-a railroad ought to be constructed, etc. The appeal is somewhat anomalous, as there is no adverse interest and no respondent before us. The rapid transit commissioners are desirous of proceeding with the discharge of their duties under chapter 4 of the Laws of 1891, as amended by chapter 519 of the Laws of 1895. They state in their application that they have adopted routes for the proposed road in the city of New York, and they claim to have complied with all the provisions of the act above mentioned, but they allege they cannot obtain the requisite consents of the property owners along the line, and hence the necessity for an application to the court.

We arc without the benefit which we always derive from an opinion of the learned court making this order, giving the reasons for its action, but, as we understand it, the court refused to entertain the application, because of-its doubt whether it had jurisdiction to act upon it, such doubt being founded upon the adoption of and the provisions in the new Constitution. The argument is, that article 3 of the Constitution took effect by the express terms of that instrument on the first day of January, 1895 (art. 15, § 1), and as section 18 of article 3 provides that an application of this nature shall be made to the appellate division of the supreme court, the general term had no jurisdiction to entertain it. Referring to section 3 of article 6 of the Constitution, it is there seen that the appellate division does not come into existence, so as to exercise judicial functions, until January 1, 1896, and the consequence is stated that there is no court now in existence to which this application can be made, and the commissioners must wait until January 1, 1896, before attempting to proceed further. The wording of the instrument in regard to the subject under discussion is such as to render a doubt as to its proper construction at least plausible, and we think the learned court was, therefore, as matter of sound policy, amply justified in refusing to entertain the application until the question should be laid at rest, because, if the court had acted and proceedings were taken which might subsequently be reviewed and reversed as unwarranted by reason of the lack of jurisdiction in the general term, a most unfortunate state of affairs would have been created. The legal question being now presented by this appeal, whether the general term has jurisdiction to entertain such an application during the year 1895, we have come to the conclusion that it has.

In stating our reasons for this determination, it is somewhat material to note the history of the constitutional provision directing application to be made, under certain circumstances, to the appellate division of the supreme court. It is quite brief. Prior to 1874 no provision for an application to any court existed. One of the amendments to the Constitution of 1846, adopted by the people in 1874 and taking effect on the first day of January, 1875, added several sections to article 3, and the following is a copy of the last portion of section 18, which was among the sections so added:

“ The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction and operation of a street railroad except upon the condition that the consent of the owners of one-half in value the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be .obtained, the general term of the supreme court, in the district in which it is proposed to be constructed, m av, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.”

The provision regarding the building of street railroads had continued as part of the Constitution ever since its incorporation into that instrument in 1875, and of course was in full force in 1891 when the Rapid Transit act, chapter 4 of the Laws of that year, was passed. It was in force at the time when the new Constitution of 1894 was in process of formation by the constitutional convention of that year. Section 18 of article 3 of the new Constitution is almost word for word identical with the same section in the third article of the former Constitution, excepting that in the portion relating to railroads it substitutes the phrase “ the appellate division of the supreme court in the department,” for that of “thegeneral term of the supreme court in the district,” so that the application is by this provision to be made to the appellate division for the appointment of commissioners. The reason for this change in the phraseology is plain. It was simply to conform to the provisions of another article in the new Constitution providing for an appellate division of the supreme court to go into operation Jan. 1, 1896. Upon a reference to article 6 it will be seen that while the supreme court is continued with general jurisdiction in law and equity, the second section of that article provides for the creation of what is therein termed an appellate division of the supreme court, and the section provides that “ from and after the last day of December, 1895, the appellate division shall have the jurisdiction now exercised by the supreme court at its general terms. * * * and such additional jurisdiction as may be conferred by the legislature.” The effect of this provision is to abolish the general terms of the supreme court after the last day of December, 1895, and to substitute in their place what is termed an appellate division of the same court with precisely the same jurisdiction, and such additional as might be granted by the legislature.

In the meantime, however, the general terms exists with all their jurisdiction unimpaired, unless, by the wording of that portion of the 18th section of article 3, already alluded to, it is taken away solely as to matters of this nature, and no tribunal substituted until January 1, 1896, leaving a period of one year from January, 1895, until January, 1896, during which there would be no court in existence to which applications of this nature could be made.

It is safe to say that no such conclusion was intended by those who framed this change of phraseology, or by the people when, by their votes, they adopted the instrument in which such change occurred; it cannot be thought that while insisting upon the necessity of an application to the court under certain contingencies, there could be an intentional omission to provide for the existence of the court itself to which the application should be made. That such a condition would exist for only one year somewhat detracts from the force of this argument, yet we are unable to imagine any reason for the intentional abrogation of this jurisdiction of the general terms during such year. For all other purposes of their creation they exist in full force up to January. 1896, yet, by this construction, the general terms are, for the last year of their existence, shorn of their powers in this particular only, while their successor does not come into practical existence during that time.

By section 1 of article 6 the existing supreme court is continued with general jurisdiction in law and equity. The general terms are but branches of that court, and the same may be said of the appellant division when it shall come into operation. Indeed, in substance, the appellate division will be nothing more than a continuation of the old general terms under a new name and with more judges. Those judges will be selected in the same manner as were the general term judges, from among the justices of he supreme court of which the appellate division forms a branch. The state continues to be divided into departments as it was for the general terms, and the jurisdiction of the appellate division will be the same as was that of the general terms but liable to be added to by .the legislature. Absolutely no reason has suggested itself to our minds which would afford a plausible foundation for the belief that here-there has been an intentional withholding of jurisdiction from the general terms during this last year of their existence as to this one subject only.

Being convinced that there was no intention to take away this particular jurisdiction from the general terms during the last year of their existence, the further question is whether the language of the Constitution is such as necessarily to accomplish that result.

Article 15 provides that “This Constitution shall be in force from and including the first day of January, 1895, except as herein otherwise provided.”

There is no language in the 3d article which provides in express terms when such article or any particular section thereof shall take effect. By section 2 of that article it is provided that the senate shall consist of fifty members, and yet the senate sitting after January 1, 1895, consisted of but thirty-two members.. Although the article took effect in one sense so far as to provide that the senate thereafter sitting should consist of fifty members, yet I think it entirely clear that it did not take effect so as to blot out the then existing senate and leave the state without a legislature until one should be elected pursuant to the provisions of the Constitution in the fall of 1895.

, If the effect of article 15 upon section 18 of article 3, standing alone, were to be considered, it might perhaps be decided that the whole section took effect January 1, 1895, but when we come to examine in connection with it other provisions of the new Constitution, together with the instrument to be superseded, we must, as it appears to us, come to a different conclusion.

The canons of construction applicable to written constitutions, as well as to statutes, are quite familiar to us all. They are well 'stated in People ex rel. Jackson v. Potter, 47 N. Y. 375, in an able opinion by the late Chief Judge Folger. The intent is to be sought for, and, when discovered, must prevail over the liberal meaning of the words of any particular portion of the law; the general purpose is to be ascertained, aud a Constitution must be also supposed to have been prepared and adopted with reference not only to existing statutory provisions but also to the existing Constitution, which is to be amended or superseded.

. Looking at section 18 of the Constitution of 1846, as in force in January, 1875, and therafter, we find in the last part of such section the provision above quoted as to street railroads. Comparing it with the same section in the new Constitution, we find the ■only difference to be a provision for the application to the appellate division instead of the general term of the supreme court. Then turning to article 6, we find that the appellate division does not come into existence until January 1, 1896, and the Constitution, as to that division at least, does not practically take effect until the last-named time, so far at least as jurisdiction to exercise the judicial functions conferred upon it is concerned. All these provisions should be considered. We have the policy of the .state, us evidenced by the constitutional amendment of 1875, insisting upon an application under the facts stated in the amendment, to the general term of the supreme court. We have the Rapid Transit Act of 1891, providing in detail for the proceedings in accordance with such existing provision. We have the provision in the new Constitution exactly the same as in the old, excepting the designation of the court as the appellate division, and we have the creation of such division to go into effect January 1, 1896. Taking all these into consideration, it seems plain to us that the general terms of the supreme court continue to have the same jurisdiction they have had ever since 1875, to entertain such an application as this, and that such jurisdiction continues until the appellate division comes into existence on the first of January, 1896.

For the purpose of, such application the provision of the latter clause of section 18 of the new Constitution does not take effect until there is an appellate division capable of hearing the same, and the provision in the section of the old Constitution already referred to, and also those provisions in the Rapid Transit Statute of 1891, all providing for an application to the general term, remain in the meantime in force. When the appellate division comes into being and a commission previously appointed by the general term is ready thereafter to report, it is clear to our view that the report is to be made to the appellate division the same as if it had itself appointed such commission subsequent to January 1, 1896. Reading the section which provides for an application to be made to the appellate division in connection with the article creating that division and giving it judicial functions only from January 1, 1896, we think the time for the taking effect of such first provision is not Jan-nary 1, 1895, but that such time is within the 15th article “otherwise provided,” and that it is January 1, 1896. It cannot be pretended that the phrase “otherwise provided” means." otherwise provided in express terms. Any language used in or any proper and necessary construction of the instrument which shows an intention that the particular provision shall take effect at some time other than January 1, 1895, would be sufficient. We think this intention is shown and becomes quite apparent in those portions of the instrument already alluded to, especially when taken in connection with the provision on the same subject in section 18 of article 3 of the old Constitution. For the purpose of conforming that provision to the Constitution as it would exist on and subsequent to January 1, 1896, the designation of the name of the court was changed and that change was obviously intended to come into effect simultaneously with the division which was created, while the old provision would remain until that event took place. This is the result of reading all the provisions of the Constitution together. Any other construction would be as it seems to us exceedingly technical, plainly contrary to the spirit and intent of the instrument itself and quite too narrow to be applied in such a case as this.

The provisions should receive a reasonable construction and one that may not work a public mischief. A construction which shuts the door of a court to all applications of this nature for one year and closes all operations of street railroad building in the state for that time (where an application to the court is necessary), ought not to be adopted without a plain mandate to that effect from the Constitution itself. We think no such mandate can be found.

These views lead to a reversal of the order of the general term. The proceedings should be remitted to that court in order that the application may be there acted upon on its merits.

All concur. Ordered accordingly.


text:
    Homedas Riendeau, App’lt, v. Roselle Bullock et al., Resp’ts.

      (Court of Appeals,

      Filed October 22, 1895.)

    1. Appeal—Court op Appeals—Question óp labor.
    Where the order of the general term, reversing a judgment entered upon the report of a referee, does not state the grounds upon which its decision was made, the court of appeals will assume that such reversal was upon the law and not the facts, and is limited to a review of the exceptions taken to the admission of evidence and to the conclusions of law.
    2. Same.
    In such case, an exception taken to a conclusion of law as found by the referee, is of no avail, where such conclusion is in accordunce with the finding of fact upon the subject.
    3. Sale—Demurrage. °
    Where the contract for- the sale and delivery of ice requires the vendor to load each boat within twenty-four hours after arrival, or pay ten dollars per day on each boat after the expiration of such twenty-four hours, and the vendee, understanding that but one boat could be loaded at a time, hires and sends the boats to get the ice and the masters do not demand any demurrage, the vendee is not entitled to demurrage for boats not loadad within twenty-four hours after arrival.
    4. Same—Waives..
    The vendor’s offer to renew the contract or to continue the delivery of the ice after the vendee’s default, was held, under the circumstances of this case, to be but an attempt to adjust the matter, and not a waiver of any of his rights which had then accrued under the contract.
    Appeal from an order of the general term of the supreme court in the the third judicial department, which reversed a judgment in favor of plaintiff entered upon the report of a referee and directed a new trial.

      G. H. Beckwith, for app’lt; B. Corbin and W. H. Dunn, for resp’t.

       Reversing, 48 St. Rep. 876.

   Haight, J.

This action was brought to recover damages for the breach of a contract for the sale and delivery of a quantity of ice.

On the 31st of May, 1890, the plaintiff entered into a contract in writing with the defendants in and by which he agreed to sell, and they agreed to take, all the ice in his storehouse on Chambly canal, to be delivered F. O. B. on canal boats at such storehouses, at $2.75 per ton for all delivered during the month of J une, 1890, and $3 per ton for all delivered during the month of July, 1890, the weight to be determined by the weighlock at Waterford. It was also agreed that plaintiff would load all the boats within twenty-four hours after their arrival at the storehouses, and in case of failure would pay ten dollars per day on each boat after the expiration of twenty-four hours. The ice was to be good, sound, clear and merchantable. On the 21st day of July, 1890, the above-mentioned agreement was modified by the parties so as to extend the time during which the defendants were to take the ice, through the month of August, they agreeing to pay twenty-five cents per ton in addition to the July price for all of the ice taken during the month of August.

The first boat that the defendants sent for the ice arrived at the plaintiff’s storehouses on the evening of the 27th day of August, and during the remaining days of August five other boats arrived, making six in all which were loaded by the plaintiff with ice during the remaining days of August and the early part of September. Ho other boats were sent by the defendants, for the remaining ice, they refusing to take more. It was for this breach of the contract that this action was brought. The referee has found that there remained in the ice houses 805 2-3 tons of good, sound, clear and merchantable ice which became a total loss to the plaintiff, and that he was entitled to recover the contract price for August therefor, together with the amount due and unpaid upon the ice taken by the defendants, and ordered judgment for the amount thereof.

The order of the general term reversing the judgment does not state the grounds upon which its decision was made. We must assume, therefore, that the reversal was upon the law and not the facts, (lode of Civil Procedure, § 1338. We are thus limited to a review of the exceptions taken to the admission of the evidence and to the conclusions of law.

Upon the trial evidence was given on behalf of the plaintiff tending to show the location of his ice houses upon the canal, the depth of the water, the place where the ice was to be taken; that but one boat could be loaded at a time; that this was talked over and understood by the defendants, and that the ice became valueless after defendants refused to take it Exceptions were taken to the admission of this evidence, but it was so clearly competent that further discussion is unnecessary. The evidence as to the expenses of the plaintiff in caring for the ice after the defendants refused to take it, and the expenses incurred by him in a fruitless effort to sell and dispose of that which remained, becomes unimportant, for the reason that the referee did not allow any such expenses in the judgment awarded by him. But one exception was taken to the conclusions of law as found, and that was as to the amount the plaintiff was entitled to recover. Inasmuch as this conclusion follows and is in accordance with the finding of fact upon the subject, the exception is of no avail.

We are thus brought to the consideration of the real question in the case, and that is, was there a waiver by the plaintiff of the conditions of the contract ? Requests to so find were made by the defendants and refused by the referee. The facts bearing upon this question are undisputed and they are. in substance as follows: On the 27th of August the plaintiff wrote to the defendants that “the ice was to be all taken before 1 Sept. I have had a great loss in keeping it over to try and meet you, so my intendance is if you take it all by the beginning of'Sept., say in the first ten days, to make only twenty-five cents extra on whatever be taken after this month and up to 10th Sept. Please let me know if you accept this offer.” On the 29th of August the defendants replied, saying: “The market will not stand it, we cannot get our money back as it is, and rather than pay an advance would prefer after you load the boats we put in this month that you sell it elsewhere.” On September 4th they wired the plaintiff asking the number of tons he still had and whether he intended to load any more boats at the August prices. To which the plaintiff answered, that he expected to have in all about sixteen boat loads. On September the 6th plaintiff was asked to answer that part of the defendants’ telegram relating to price, and on the 7th he answered that he would call the four boats loaded at August figures and the balance at twenty-five cents extra provided the defendants would keep sending on the boats. On the 8th they replied: “All right, you need not load any more boats for us as we canno.t pay the advance.” To this the plaintiff on the same day replied : “ To meet you friendly will load balance of ice at August price provided you take it by the 20th inst.” To which they replied: “ Telegram received, but too late.”

In considering these facts we must not overlook the situation of the parties or the events that had already transpired. For the purposes of the case we will assume, as the respondents contend, that the contract was executory. It pertained to the sale of ice by the ton which it appears would melt and diminish during the summer months. The fact is recognized by-the parties in the contract by providing a higher rate for each month as the season progresses. It is quite evident, therefore, that it was the intention of the parties that time should be of the essence of the contract.Once the contract had been changed by extending the time upon the consideration of twenty-five cents advance. June, July and a part of August had passed and the defendants had not taken a pound of ice. The plaintiff was still holding the ice under the contract, waiting for the defendants to take it, although it was daily shrinking away. He finally became uneasy. This is apparent from his letter of the 18th of August, in which he asks the defendants to see about sending boats at once to load their ice, for the time was getting short.” Again he wires them, asking if boats were coming, and thus the time passes until 27th of August, and not a boat arrives to be loaded. It was under these circumstances that the letter of that date was written. Three days then remained in which the defendants were to take the ice. He knew that it was not possible to load all of the ice within that time. The defendants had received one extension of time and he offered them another. The letter contained no refusal to perform on his part, and related only to the ice that was not taken during the month of August. As to that which was left he proposed a chai’ge of twenty-five cents extra. It was but an offer, a proposal, as we understand it, to continue and amend the existing contract, and nothing more. It was evidently so understood by the defendants, as is apparent from their reply. The same is equally true with reference to plaintiff’s dispatch of September 7th. It was a mere offer or proposal in reference to renewing the contract. He ■refused nothing, he waived nothing. The defendants were then in default. The time within which they had agreed to take the ice had expired. They were then liable for the damage which the plaintiff had sustained. His offer to renew the contract, or to continue the delivery of the ice, was but a friendly attempt on his part to adjust the matter between them, and in no sense was intended as a wavier of any of his rights which had then accrued to him under the contract.

As we have seen, the defendants refuse to take the ice on the 8th of September. On the same day the plaintiff wired them that he would continue to load the ice at August prices, providing they would take it all before September 20th. Here was an immediate tendering of performance on his part. He could do no more. The defendants were to furnish the boats at his storehouses to be loaded. This was to be done on or before the first of September. They had not performed the conditions of the contract in this regard. Negotations had taken place for a renewal of the contract, which had been unsuccessful. The plaintiff made his offer of September 8fcb, and that was rejected. It appears to us that he did all that he was required to do, and that the defendants cannot escape liabilty for the damages which he sustained.

Treating the contract as executory, it became the duty of the-plaintiff upon the refusal of the defendants to take the ice, to dispose of it to the best advantage possible. Gray v. Central R. R. Co. of New Jersey, 82 Hun, 523. This he attempted to do. He not only wrote dealers, but he sent a person to Hew York city to offer it to any ice dealer that could be found. But, owing to the advance of t-be season and the distance the ice was from the market no sale could be effected, and the ice became a total loss.

It is contended that the referee erred in not allowing the defendants demurrage upon the boats that were loaded by the plaintiff. It is not clear that this question is raised by any exception that can be now reviewed. The referee was requested to find certain facts upon this subject, which was refused. The general term'have reviewed the facts bearing upon this subject, but, as we have seen, it has not done so; at least, we are obliged to so assume under the provisions of the Code heretofore referred to. Ho conclusion of law appears to have been found or demanded upon the subject. But, assuming the question was raised and is properly here for consideration, we think that it should not beheld that an error was committed by the referee in not allowing the defendants’ claim for demurrage. They understood the situation of the premises and that but one boat could be loaded at a time. The plaintiff had stated that he could load the boats if they were not sent in a nest. It was evidently contemplated that the boats would be set along from time to time so that but one boat would be required to be loaded at a time, at least, the referee was justified in so finding. Boats were hired to go and get the ice; they were loaded, and it appears that no demurrage was demanded or claimed on the part of the captains.

The judgment of the general term should be reversed, and that entered upon the report of the referee affirmed, with costs to the-plaintiff in all the courts.

All concur, except Andrews, Oh. J., not voting.

Judgment accordingly.


text:
    The People ex rel. Rachel Purdy, App’lt, v. Ashbel P. Fitch, as Comptroller of the City of New York, Resp’t.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Constitutional law—Local bill.
    Chap. 537 of 1893, which provides for damages to property caused by changes of grade of streets or avenues, made pursuant to chap. 721 of 1887, is not in contravention of the provisions of article 3, section 16 of the Constitution in force at time of its passage, that no local bill shall embrace more than one subject and that shall be expressed in the title.
    2. Municipal corporation—Change op grade—Appointment op commis-
    sioners.
    Where an act, which authorizes the appointment of commissioners for awarding damages for changes of grade of street, is amended by a subsequent act, which merely increased the damages to be allowed, commis- < sioners, duly appointed under the former, need not be re-appointed under the latter act.

      3. Mandamus—What considered.
    Objections that the commissioners have included improper items in making their award, cannot be considered upon a proceeding for a mandamus to compel the city comptroller to pay an award made by such commissioners for changes in grade.
    4. Same—Stay.
    A mandamus, issued for such purpose, pending certiorari to review the proceedings of such commissioners, should be stayed until a final determination under the writ.
    Appeal from an order of the general term of the supreme court in the first judicial department, which reversed an order of the special term, granting a peremptory writ of mandamus.

      Ernest Hall and Ihomas & Bassford, for app’lt: D. J. Dean, for resp’t.

       Reversing 68 St. Rep. 320.

   Haight, J.

On the 14¡th day of November, 1894, the commissioners appointed under chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, made an award to the relator, under and pursuant to the provisions of those acts, for damages sustained by her in consequence of a change of the grade of streets in front of premises owned by her.

The comptroller having refused to pay the award, a peremptory wit of mandamus directing him to pay the same was, on the motion of the relator, issued by the special term. On appeal, however, the general term reversed the order and directed that the motion of the relator be denied.

It is now contended that chapter 537 of the Laws of 1893 is in contravention of article 3, section 16 of the Constitution, then in force, which provides that “ no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” The title of the act is: “ An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of changes of grade of streets or avenues, made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the 23d and 24th wards in the city of New York or otherwise.”

The act in question is, undoubtedly, local, and if it contains more than one subject it is within the condemnation of the Constitution. Its character is remedial and should be liberally construed. People ex rel. Brisbane v. Zoll, 97 N. Y. 203. The whole question necessarily depends upon the meaning that is to be given to the words “ or otherwise." If .they relate to the depression of the railroad tracks authorized by chapter 721 of the Laws of 1887, and the depression of such tracks is the subject expressed in the title under consideration, then there is a reference to something not fully expressed-in the title, and consequently there is a failure to comply with the provision of the Constitution referred to. But such is not our understanding of the language used. Changes of the grades of streets and avenues had been authorized and made in the twenty-third and twenty-fourth wards of the city, tinder the provisions of the Laws of 1887 and other acts, but no provision had been made for compensating the owners of lands abutting upon such streets for the damages they had sustained under any of such acts. It was to afford relief in this regard that the act in question was passed, and the subject expressed is unquestionably the payment of the damages sustained- There is a limitation to the territory to which the act applies to the twenty-third and twenty-fourth wards of the city. It also limits the damages to those sustained by reason of the changes of grades of streets and avenues. It particularly specifies the changes of grades authorized by the law of 1887, but does not limit the awarding of damages to the changes authorized by that act, but includes changes 41 otherwise ” made pursuant to authority. This, it appears to us, is the fair reading and the reasonable interpretation of the language used; and if we are correct in this view, it follows that but one subject is mentioned, and that is expressed in the title.

The general term appears to have reached the conclusion that there was an irregularity in the appointment of the commissioners which affected the award made by them, and the reversal of the order of the special term appears to have been made for this reason. ’ No criticism is made as to the appointment of the commissioners, made pursuant to the act of 1893. After the passage of the amendatory act of 1894, the mayor re-appointed the same commissioners. The amendatory act enumerated a number of other acts, together with that of 1887, under which changes of grades of streets had been and were to be made, all of which were to be considered by the commissioners in estimating the damages that should be awarded to claimants. The appointment of commissioners made in 1893 was made pursuant to chapter 537 of the Laws of that year, and required them to ascertain the damages that had been sustained by reason of the changes of grades of streets, made pursuant to the act of 1887, “ or otherwise 'as provided by said act,” meaning the act of 1893. It will thus be seen that the damages that were to be awarded were not limited to the changes of grades made pursuant to the law of 1887 alone, but they were also authorized to award damages for the changes of grades that had been “ otherwise ” authorized. In re-appointing the commissioners under the amendatory act of 1894, the concluding phrase is omitted. The certificate is as follows : “ City of New York—Office of the Mayor. Know all men by these presents, that, under the provisions of chapter 567 of the Laws of 1894, amending chapter 537 of the Laws of 1893, I do hereby appoint Daniel Lord, James M. Yarnum and Daniel P. Hays, as commissioners, to ascertain and pay the amount of damages to lands and buildings suffered by recent changes of grade of streets and avenues, made pursuant to chapter 721 of the Laws of 1887.” The defect referred to by the general term is in referring to the Laws of 1887 alone, and not including other acts under which changes of the grades of streets had been made. But these acts are enumerated in the act of 1894, and the commissioners by that act were authorized to award the damages by reason of the changes made under the acts so enumerated. They were appointed pursuant to the provisions of the latter act. They qualified under that act, and it appears to us that the certificate is broad enough to empower them to make the awards contemplated by its provisions.

But the re-appointment of the commissioners was unnecessary. Their appointment in 1893 was regular and valid. The certificate of appointment gave them full power to award the damages sustained. "The appointment was made pursuant to the second section of the act. That section was amended by the act of 1894 by the addition of but three words, and those words have reference only to the awarding of damages to be sustained in the future. The provisions authorizing the appointment of commismissioners, their qualifications, etc., remained unchanged. Their duties were enlarged, and this was all that was contemplated.

It is contended that the commissioners have improperly included in their awards items of damage which were unauthorized; that they have included prospective damages under chapter 339 of the Laws of 1892, and that such was unauthorized. But we do not feel called upon to consider these questions upon proceedings for a mandamus. If the commissioners have included improper items, or have adopted a wrong basis in estimating damages, they may be corrected upon review in proceedings for that purpose.

A writ of certiorari was issued to review the proceedings had before the commissioner. The order issuing such writ has been affirmed in this court. The order of the general term should, therefore, be reversed and that of the special term awarding a mandamus affirmed, with costs; but the issuance of the mandamus should be stayed until the final determination of the proceedings under the writ of certiorari.

All concur.

Ordered accordingly.


author: Bartlett, J.

text:
    Benjamin Wright, App’lt, v. David Miller et al., Resp’ts.

      (Court of Appeals,

      Filed October 29, 1895.)

    Former adjudication—Counterclaim.
    A judgment roll in a former action between the same parties, which does not show that a counterclaim was not litigated therein, but, on the contrary, does show that a proposed finding, covering such counter claim, was submitted, which the referee refused to find, is a bar to a subsequent action on said claim, in the absence of proof de hors the record that the claim was not disposed of on the merits, though a witness in the latter action testifies that he understood that the referee did not act upon it because he did not consider it within his jurisdiction.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of defendants dismissing the complaint upon the merits entered upon a decision of the court on trial at special term.

      Isaac II. Maynard, for app’lt; F. P. Bellamy, for resp’t, David Miller ; Samuel Keeler, for other resp’ts.

       Affirming 51 St. Rep. 373.

   Bartlett, J.

This is a suit- in equity to recover moneys alleged to have been loaned and advanced by plaintiff to one Charles E. Miller, since deceased, also moneys advanced for his funeral expenses, and to have certain instruments referred to in the complaint adjudged to be assignments by the heirs and next of kin of Miller to plaintiff of all their several rights and interests in the proceeds of sale in a certain partition suit to the extent of plaintiff’s claim.

Hannah E. Miller, the grandmother of the plaintiff, Benjamin Wright, was the beneficiary under a trust created in her favor in 1806; in 1861 the plaintiff became trustee thereunder, and so continued until the death of his grandmother in 1871.

The persons entitled to the trust property after the death of Hannah E. Miller were her three children, viz. : Elizabeth Ann Wright, the mother of the plaintiff, Ezra Miller and Charles E. Miller.

The plaintiff claims that he loaned and advanced to Charles E. Miller, between October 17th, 1872, and September 9th, 1884, the date of Charles E- Miller’s death, the sum of fourteen hundred and five dollars in small amounts of from twenty to thirty dollars, and took his notes therefor. He also alleges that he advanced to one David Miller, after the death of Charles, fifty dollars to pay funeral and other post mortem expenses of the latter.

In 1876 Charles conveyed his interest in the trust property to David Miller, his son, in trust, and the latter began an action for the partition of the property and for an accounting by the plaintiff in this aótion as trustee of the estate of Hannah E. Miller. This action was pending at the time of Charles E. Miller’s death in 1884.

The partition suit was revived and continued against the heirs of Charles, and against the plaintiff in this action as trustee of the estate of Hannah. E. Miller and individually, and resulted in judgment and sale of the property, and the proceeds have been brought into court, and one-third thereof belongs to the defendants in this action as the heirs at law of Charles E. Miller, deceased.

The defendants in this action deny most of the allegations of the complaint and aver that the amounts so paid to Charles by plaintiff are in no way secured as an express charge upon the real estate of Charles, or the proceeds of sale, and ask to have the moneys distributed.

They also plead, among other things, that in the partition action of Miller v. Wright, the plaintiff as defendant therein, and as trustee of Hannah E. Miller’s estate, set up the claim now sued upon by way of counterclaim in his answer and sought to charge the alleged advances on the share of Charles E. Miller, and that the counterclaim was disallowed on trial before a referee.

On the trial of this case the judgment roll in Miller v. Wright was read in evidence, and the plaintiff endeavored to show by the testimony of one of the attorneys in the action that there was no adjudication upon the merits against him on his counterclaim, but that the referee held he had no jurisdiction. This evidence was introduced for the very obvious reason that the judgment roll upon its face contains nothing to indicate that'the claim of Benjamin Wright was not disposed of on the merits.

On the contrary, it appears that Benjamin Wright submitted to the court a proposed finding of fact and conclusion of law covering his claim, and the referee refused to find as requested.

On its face the judgment roll is clearly a bar to this action, and we must so hold unless the evidence of the attorney overcomes the force of this documentary proof.

This witness, on his direct examination, merely stated as to the ground the referee took in reference to Benjamin Wright’s claim, that he-understood it to be that the referee did not consider it within his jurisdiction to pass upon it, but added, “I am not stating what the referee said, but only my inference from it.”

On his cross-examination the witness was. asked this question : “Q. Mr. Taylor, before, the referee, proof of Benjamin Wright’s claim was presented? A. Yes, sir; and I understood the referee to hold that it could not be made a lien against the estate."

This last answer might very well be claimed as tending to show •an adjudication on the merits, but without so treating it we are of opinion that there is nothing in this evidende that would justify a finding that the referee held he had no jurisdiction to try and determine the issues raised by the counterclaim.

The plaintiff was sworn as a witness in his own behalf, and, with full knowledge that the judgment in Miller v. Wright, was pleaded as a bar to his claim, made no explanation as to the manner in which his counterclaim was disposed of in. that case.

If the plaintiff suffers injustice by the disposition we are compelled to make of this case, it is due to the fact that on the trial of this action there was an utter failure to establish the contention now made in his behalf that he has never had his day in court.

While it is true that the counterclaim set up in Miller v. Wright was for advances made by Benjamin Wiight as trustee, and the claim now sought to be established is that of Benjamin Wright individually, yet it is undisputed that both of these causes of action embrace the same transaction, to wit, the alleged advance of a certain sum of money.

We do not pass upon the legal status of Benjamin Wright as an individual defendant in the suit of Miller v. Wright, but rest our decision solely upon the ground that the proceedings and judgment therein are a bar to this action.

In Miller v. Wright the plaintiff herein elected to assume the position that the advances in question were made by him as trustee, and, as this record is made up, it appears he was defeated on the merits.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.