text:
    CAROLINE A. HOUNSLEA, Appellant, v. NANCY MARIA HAND and others, Respondents.

      Devise — when the devisee tahes an estate in fee.

    A testator, by his will, which was dated and admitted to probate in 1799, gave ’ and bequeathed certain real estate to his daughter Ahuldah, stating that “the intent and meaning of this my will is that my daughter Ahuldah Tooker, and her heir or heirs born of her body, shall have and enjoy the estate I have heretofore given her freely and clearly forever; but in case she should die without a child, then it shall return to my daughter Nancy or to her heirs.” Ahuldah died in 1865, leaving children and her sister Nancy her surviving.

      Held, that Ahuldah took an estate in fee, and that a deed of the land executed by her in her lifetime passed a good title thereto.
    Appear from an order denying a motion for a new trial and for a resettlement of the findings in this action.
    The action, which was brought for the partition of certain real estate, was tried before the court without a jury.
    Nathaniel Tooker, the common ancestor of all tbe parties to the action, died in 1799, seized and possessed of the lands described in tbe complaint, and leaving a will, dated March 22, 1799, which was duly admitted to probate April 12, 1799, by which he devised to his daughter, Ahuldah, the said lands. The provisions of the will respecting this devise are as follows:
    * * -x- -x- * *

      “Item, I give and bequeath to my eldest daughter Ahuldah. Tooker (certain pieces of real estate), to have them on the condition hereafter named.” * * * *

      “ And further the intent and meaning of this my will is that my daughter Ahuldah Tooker, and her heir or heirs born of her body, shall have and enjoy the estate I have heretofore given her, freely and clearly forever; but in case she should die without a child then it shall return to my daughter Nancy or to her heirs.”
    Ahuldah Tooker intermarried with one Payne and died in 1865, leaving lawful issue her sm-viving, to wit: the plaintiff, the defendant Hand, and a son, Benjamin C. Payne. Benjamin C. Payne died intestate in 1878, leaving the respondents, Agnes 0. Angelí, Charlotte Payne, Anna Nancy Payne, Amelia Payne and Estella Payne, his only children and heirs-at-law him surviving. .Ahuldah Tooker Payne went into possession of the lands described in the complaint after her father’s death, and in 1858 sold and conveyed the same by a sufficient deed to her said son, Benjamin C. Payne, who went into possession and continued in possession till his death in 1878, and his children succeeded him in possession. After his death the appellant, his sister, commenced this action, claiming to be seized of the said premises as a tenant in common with the defendants.

      Joshua M. Vcm Oot% Alden J. Spooner and Scmmel -8. Smith, for the appellant.

      A. A. Spea^, for the respondent.
   Barnard, P. J.:

The testator’s daughter, Ahuldah Tooker, under the Revised Statutes was possessed of an estate in fee simple absolute. The absolute gift of the land is declared subject to the condition that “ she and her heir or heirs born of her body shall have and enjoy the estate I have heretofore given her freely and clearly forever.” In case she should die without a child then the subject of the devise was to return to the testator’s daughter Nancy or her heirs. As the testator’s daughter Ahuldah left children living at her death the children of Nancy have no claim. The devise is to be considered as having-been made to Ahuldah and her heir or heirs born of her body.” She took a fee. (Lott v. Wykoff, 2 N. Y., 355.) The deed under, which the son of the devisee holds the property passed a good title, and the plaintiff has no interest in the same.

Order denying a new trial- and refusing to resettle the findings affirmed, with costs.

Gilbert, J., concurred ; Pratt, J., not sitting.

Order denying a new trial and order refusing to resettle findings affirmed, with costs.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    OLIVER H. BISHOP, Respondent,, v. CHARLES M. ALCOTT, Appellant.

      Guaranty — construction of.

    To induce the plaintiff, a ship-builder, to build a schooner for the defendant and others, and to receive a one-sixteenth interest therein, m payment for his services, the defendant covenanted and agreed with the plaintiff that the said one-sixteenth part of the schooner should pay to him “ a dividend to the amount of not less than twénty-five per cent, per annum, and as much more as said schooner shall pay over twenty-five per cent, on her cost, clear of her bills,” unless some serious accident should occur.

      Mild, that the agreement amounted to a guaranty on the part of the defendant that the earnings of the schooner in each year should amount to twenty-five per cent, of her cost, and that the covenant to pay the same to the plaintiff was subject to the implied warranty that he should continue to own lus share in the .schooner, and .that the defendant’s liability thereunder ceased upon the plaintiff parting therewith.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    On January 24, 1872, at New York city, the julaintiff and defendant entered into an agreement under their hands and seals, of which the following is a copy:
    a Memorandum of agreement made and entered into this 24th day of January, 1872, between C. W. Alcott, of the City, County and State of New York, and O. IL. Bishop, of Greenport, Long Island, and State of New York :
    “.’W’ifeaesseth that said Alcott doth covenant and agree with the said Bishop that the one-sixteenth part of the schooner that he is to build for said Alcott and others shall pay to said Bishop a dividend to the amount of not less than twenty-five per cent, per annum, and as much more as said schooner shall pay over twenty-five per cent, on her cost, clear of her bills, unless some serious accident shall occur, in which case said Bishop shall pay his part of such accident; also the time necessary to repair the same to be deducted from the running time. -
    “ Said agreement, as above specified, to be in force for the space of two years from the time said schooner starts on her first regular voyage.
    “ Said Bishop further agrees, and hereby gives the said Alcott the privilege to purchase from said Bishop the one-sixteenth part above referred to on the completion of above-described schooner, providing said Bishop has not disposed of the one-sixteentli part at that time, for the sum of her contract cost,- and the said Bishop further agrees not to sell the above schooner to no one without giving Alcott the refusal of her for the space of sixty days.
    “In witness whereof we have hereunto set our hands and seals the day and year first above written.
    “ C. W. ALCOTT, [l. s.]
    “O. IT BISHOP, [l. s.]”
    The plaintiff is, and ivas, at the time of the making of the said agreement, a shipwright, doing business at Greenport, in this State, and had agreed to construct the said schooner and receive the said interest therein in payment for his services in so doing, in reliance upon the foregoing agreement, and thereafter ‘did so construct it. The plaintiff alleged “ that said schooner, since she started on her first regular voyage, has paid the plaintiff only $756.64, to wit: $399.15 for the first year and $357.49 for the second year, being about 19K per cent, per annum for the first year and’17M per cent, per annum for the second year, and that there is now due the plaintiff, on and by virtue of said agreement, $260.45j with interest' on the sum of $109.40 from the 6th day of May, 1874,-and with interest on the sum of $151.5 from the 6th day of May, 1875.”
    Upon the trial it appeared that the plaintiff had, before the commencement of the action, parted, by partial sales made at different times, with all his interest in the vessel, and the defendant claimed that he was thereby released from all liability under the contract, or in any event only liable to pay twenty.-five per cent, upon such portion of the said one-sixteenth interest, and for such lengths of time as the plaintiff continued to hold it or any portion thereof.

      Warren G. Brown, for the appellant.

      Ba/yne de Benjamin, for the respondent.
   Gilbert, J.:

The object which is to be arrived at in interpreting a contract, is to discover and give effect to the intention of the parties to it. Taking into consideration the circumstances which surrounded the parties to the contract before us, at the time it was made, little doubt of their intention can arise. The plaintiff jg a ship-builder He undertook to build a schooner for the defendant, and others, and agreed to receive a one-sixteenth share of the schooner, in payment for his services. To induce him to make that agreement, the defendant covenanted that the said one-sixteenth part of the said schooner should pay to the plaintiff a dividend to the amount of not less than twenty-five per cent, per annum, and as much more as said schooner should pay over twenty-five per cent, on her cost, clear of her bills, unless, &c., &c. I am of opinion that this language imports a guaranty that the earnings of the schooner in each year shall amount to twenty-five per cent, of her cost, and that the covenant to pay the same to him is subject to a condition, necessarily implied, of his continued ownership of his share. Earnings of a vessel are an incident of ownership, and the only conceivable purpose of 'the covenant was to guaranty that the share of the plaintiff should produce the amount of earnings stipulated. It is inconceivable that the defendant could have intended to incur, after the plaintiff had ceased to own his share, the double obligation of paying to the plaintiff the stipulated amount of the earnings of the schooner, • and of paying to his transferee the portion thereof which would, belong to the latter by virtue of his ownership of such share. A construction, which would work such an unconscionable result, ought to be rejected.

The judgment and order denying a new trial must be reversed, and a new trial must be granted, with costs to abide the event.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


text:
    B. GEDNEY TOMPKINS, Respondent, v. GEORGE W. GREENE, Appellant.

      Costs in an action in the county court, where the recovery is less than $50 — u>hat the plaintiff must show to entitle himself to them — Code, § 304.
    To entitle a plaintiff, who recovers less than $50, in an action brought in a county court, to costs, on the ground that a justice’s court had no jurisdiction over the action, because it involved accounts exceeding in amount $400, he must prove not only that the sum of the accounts claimed exceeded $400, but that the sum of the accounts actually proved upon the trial was in excess thereof.
    Appeal from an order of the Westchester County Court, denying a motion made by tbe defendant for an order directing that costs be taxed by tbe clerk in bis favor.
    Tbe action was brought in tbe Westchester County Court, tbe plaintiff claiming for goods, wares and merchandise sold and delivered, and for tbe rent, of certain premises occupied by tbe defendant, which claims amounted in all to the sum of $156.08. Tbe defendant answered, alleging payment, and setting up a counterclaim of $271.68. On tbe trial tbe plaintiff proved tbe whole amount of bis claim, and tbe defendant proved $113.20 of tbe counter-claim set up by him.
    A verdict was rendered in favor of tbe plaintiff for $42.88. • Tbe clerk taxed tbe costs in favor of tbe plaintiff. Tbe defendant then made a motion at a Special Term of tbe County Court, asking that an order be made directing that tbe clerk tax tbe costs in bis favor, which motion was denied, and from tbe order denying such motion tbe defendant appealed to this court.

      Francis Lcn-Tcm, for tbe appellant.

      WilUam Gr. Valentine, for tbe respondent.
   Gilbert, J.:

Tbe recovery being of a sum less than $50, tbe plaintiff is not, and tbe defendant is entitled to costs, unless tbe action belongs to a class of which courts of justices of tbe perico have not jurisdiction. (Code, § 304-, subd. 4; § 305, § 304, subd. 3.) They have not jurisdiction of actions involving a matter of account when the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed $400. (Code, § 54, subd. 4.) ■

As this action was brought, not in a court of a. justice of the peace, but in the County Court, the mode provided by the statute of determining whether a justice’s court had jurisdiction or not could not he resorted to. Still, it is incumbent on the plaintiff to show that a justice’s court liad not jurisdiction. That is not done by proof that the sum total of the accounts claimed by both parties exceeded $400 ; for the statute has made the jurisdiction dependent upon the sum total of such accounts' proved, &c. If, therefore, wo take the only proof of the sum total of such accounts which the case affords — namely, the verdict of the jury upon the trial in the County Court — it appears that the sum total of such accounts amounted to only the sum of $269.28. It follows that the action was one of which justices’ courts have jurisdiction. That recourse may he had to the proof of the amount of the accounts given in the County Court to determine tbe question before us, seems to have been decided in several cases. (Glackin v. Zeller, 52 Barb., 146; Lultyor v. Walters, 64 Id., 419; Fuller v. Conde, 47 N. Y., 89.)

The order appealed from must he reversed, with $10 costs and disbursements, and the clerk of Westchester county be directed to tax the defendant’s costs and to enter judgment in his favor therefor.

. Barnard, P. J., and Pratt, J., concurred.

Order of County Court allowing costs to plaintiff reversed, with costs and disbursements, and costs ordered for defendant.


text:
    WILLIAM P. DANE, Respondent, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Appellant.

      Power of the court to order a, compulsory reference — Oode of Givil Procedure, § 1013.
    Section 1013 of the Code of Civil Procedure, — authorizing the court to order a compulsory reference, where the trial will require the examination of along account, and will not require the decision of difficult questions of law, — is applicable ns well to such actions as are of equitable, as to such as are of legal cognizance.
    The only effect of the last clause of the said section is to authorize the court to appoint, a referee to decide some of the issues, less than the whole, or to report findings upon one or more specific questions of fact.
    In no case can the court order the compulsory reference of an action, where the trial will not require the examination of a long account, or will require the decision of difficult questions of law.
    Appeal from an order, made at a Special Term, appointing a referee to hear and determine this action.
    , The action was brought to procure the reformation of three polieies of insurance, issued by the defendant to the plaintiff, upon a stock of paper and other hazardous merchandise, and to recover, upon the policies as so reformed, damages occasioned by a fire, amounting in all to $16,500.

      Butler, Stillma/n, ds Subbard, for the appellant.

      Freling S. Smith, for the respondent.
   Gilbert, J.:

Two facts must be shown to authorize the court to direct a trial of issues of fact by a referee, viz.: 1, that the trial will require the examination of a long account; and, 2, that it will not require the decision of difficult questions of law. (Code of Civ. Pro., § 1013.) NcT distinction appears to have been made between the different kinds of actions, nor between such as are of legal, and such as are of equitable cognizance. The section of the Code of Civil Pro-' cedure cited is the only statutory provision which governs the subject. It is contained in chapter 10, the title of which is Trials including jurors and juries,” and it forms a part of title 2 of that chapter, the title of which is Trials without a jury.” It is, therefore,- applicable to actions of every sort, and cannot be restricted arbitrarily to actions upon contract, nor even to such as were formerly denominated actions at law. On the contrary, actions for equitable relief, which require the examination of a long account, and which do not require the decision of difficult questions of law, may be referred.

The power vested in the court is, however, a permissive one merely,, and it should not be exercised, except in cases where the litigation arises chiefly upon tbe items of an account on one or both sides. Indeed, by the language of section 1013 cited, the court is prohibited from ordering a reference of issues which require the decision of difficult questions of law. The only effect of the last clause of that section, that I can discover, is to authorize a reference to decide some of the issues, less than the whole of them, or the appointment of a referee to report findings upon one or more specific questions of fact. The power to refer the whole issues, in actions whether triable by the court or by a jury, had already been granted by the preceding clause. But neither clause authorizes a reference when the trial will not require the examination of a long account, or when it will require the decision of difficult questions of law. In the case before us the complaint contains no account, nor does it set forth • items from which an account could be made up. Nor has’ it been shown by the plaintiff, in any way, that the trial will require the examination of an account, long or short. But the defendant presented evidence to the contrary. It is quite evident, also, that the trial will require the decision of difficult questions of law.

¥e are of opinion, therefore, that a reference was improperly ordered.

The order must be reversed, with $10 costs and disbursements.

Barnard, P. J., concurred; Pratt, J.} not sitting.

Order reversed, with costs and disbursements.


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    THE NEW YORK CITY AND NORTHERN RAILROAD COMPANY, Appellant, v. THE CENTRAL UNION TELEGRAPH COMPANY, Respondent.

      Telegraph companies cannot erect poles along the line of a railroad, — chapter 471 of 1858, section 2.
    Section 2 of chapter 471 of 1853, — authorizing telegraph companies “to erect and construct, from time to time, the necessary fixtures for such lines of telegraph, upon, over or under any of the public roads, streets and highways, and through, across or under any of the waters within the limits of this State,” — does not authorize them to erect poles or fixtnres upon and along ■ the roadway of a railroad company.
    Appeal from an order denying a motion for the continuance of a preliminary injunction.
    The plaintiff, is a corporation, created under the general law (Laws of 1850, ch. 140) for the formation of railroad companies. Under this law, by purchase and by the proceedings for condemnation authorized therein, it has acquired lands for the purposes of its roadway in the counties of New York, Westchester and Putnam, of which it has taken possession, and upon which it has nearly completed its railway.
    The defendant is a corporation, organized under the general law (Laws of 1848, ch. 265 ; Laws of 1853, ch. 411), for the incorporation of telegraph companies. The second section of the act of 1853 is as follows:
    “ Such association is authorized to erect and construct, from time to time, the necessary fixtures for such lines of telegraph, upon, over or under any of the public roads, streets and highways, and through, aci’oss or under any of the waters within the limits of this State, subject to the restrictions in the said recited act contained; and also to erect and construct such fixtures upon, through or over any other land, subject to the rights of the owner or owners thereof to'full compensation for the same”; and if any such association cannot agree with the owner or owners of airy land taken or used by such association for the compensation to be paid therefor, it shall and may be lawful for such association, or such owner or owners, to apply to the County Court of the comity in which such lands are, by petition, stating the facts in relation thereto; and after the expiration of twenty-one days from the filing of such petition, and notice thereof given to such association, or to the owner- or owners of such land, as the case may be, it shall be the duty of the said court to appoint five disinterested persons to make a just and equitable assessment and appraisal in the manner directed by the said recited act, of the loss or damage, if any, which may have been, or is likely to be, sustained by the owner or owners of such land, taken or used as aforesaid, whilst such land shall have been, or shall continue to be used as aforesaid.”
    Under a claim of authority derived from the foregoing section, the defendant entered upon the plaintiffs roadway, and commenced the construction of its lines, without the consent of the plaintiff, and without any consultation or arrangement as to their location.
    Thereafter the plaintiff obtained an injunction, restraining such intrusion, and, from the order refusing to continue this injunction, the present appeal was taken.

      Grosvenor P Lowrey, for the appellant.
    An injunction is the proper remedy for .the injury complained of, which is an interference with the exercise of the plaintiff’s'franchise. (High on Injunctions, §§ 570, 571; Redfield on Railways, 3 ed., vol. 2, pp. 342, 343.) The attempted occupation of the plaintiff’s roadway is inconsistent with the use for which that roadway was acquired by the plaintiff. (Mills on Eminent Domain, §§ 59, 208-210; Jachson v. Rutlmid R. R., 25 Vt., 150; Burnett v. N. c& Q. R. R., 4 Sneed, 528; Bramwrd v. Glop'p, 10 Cush., 11; 1 Redfield on Railways, 347, 3 ed., § 82, ¶ 17; A. <& P. TelegrwpK Oo. v. Old., R. I. & P. R. R. Go., 6 Biss., 161, 162.) The statutes from which the defendant claims to derive authority do not contemplate or provide for taking lands already appropriated to a public use. (Cooley’s Const. Limitations, 2 ed., p. 530; Mills on Eminent Domain, § 48; W. Y. & H. R. R. Oo. v. Kvp, 46 N. Y., 552.). The authority to take lands already appropriated to a public use must be specific. (Matter of Boston <&

      Albany B. B. Co., 53 N. Y., 577, 578; Matter of City of Buffalo, 68 N. Y., 167; ‘Boston Waterpower Co. v. B. & W. B. B. Co., 23 Pick,, 360; Springfield v. Conn. B. B. Co., 4 Cush., 71.) If the power is to be derived by implication, 'such implication must be unavoidable. (Matter of City of Buffalo, 68 N. Y., 171,172, 175.) The statutes on which the defendant relies do not authorize the taking of any lands without previous compensation. (Constitution, art. 1, § 6; Bloodgood v. Mohawk <& Hudson B. B. Co., 18 Wend., 9; Garrison v. City of New York,' 21 Wall., 204.) Where the property is taken by a private corporation, the uniform and settled construction of .the constitutional prohibition is that payment must precede occupation. (Ga/rd/ner v. Village of Newburgh, 2 Johns. Ch., 162; Avery v. Fox, 1 Abb. .IT. S., 254; Chapman v. Gates, 54 N. Y., 146; Loweree v. City of Newark, 38 N. J. L., 151; Ash v. Cummings, 50 N. H., 591.)

      Charles N. Judson and F. H. Berm, for the respondent.
    It is •not necessary for the defendant, before going on the land and erecting its poles, to assess the damages or take any steps to acquire the right. (Laws of 1853, c. 471, § 2; Smith v. Helmer, 7 Barb., 417; Ha/o&i’hill Bridge Proprietors v. County Commissioners, 103 Mass., 120; Polly v. Saratoga & Washington B. B. Co., 9 Barb., 449 ; Chapman v. Gates, 46 Id., 318, 319; Case v. Thompson, 6 Wend., 634; Bogers v. Bradshaw, 20 Johns., 735 ; Loweree v. City of Newark, 38 N. J. Law, 151.) The taking or appropriating of land for the use of a telegraph company is a taking for a public, use. (Pensacola Telegraph Co. v. Western Union Telegraph Co., 6 Otto, 1; Concord B. B. v. Greeley, 17 N. H., 47; New Orleans Telegraph Co. v. Southern Telegraph Co., 53 Ala., 211; Mills on Eminent Domain, § 21, note 1; The Boston Water Power Co. v. The Boston & Worcester B. B. Go., 23 Pick., 360; Bloomfield Gaslight Compan/y v. Bicha/rdson, 63 Barb., 437; Beekman v. The Saratoga <& Schenectady B. B. Co., 3 Paige, 45; The People ,v. Kerr, 27 N. Y., 188-191; Buffalo c& N. Y. B. B. Co. v. Brainard, 9 N. Y., 100; West Bimer Bridge Co. v. Dix, 6 How., 507; Bumsey v. People, 19 N. Y., 42; Stuart v. Laird, 1 Cranch, 316.) The fact that land has been appropriated for tlie purpose of a railroad does not give the railroad company an exclusive right thereto, or prevent other corporations from acquiring a right to use it for other corporate public purposes, not destructive of the rights "of the first corporation. {Sixth Ave. B. B. Go. v. Gilbert Elevated B. B. Go., 3 Abb. N. 0., 372; S. G., 43 Superior Ct., 292; Ninth Ave. B. B. Go., v. New York Elevated B. B. Go., 3 Abb. N. C., 346, 347, 353, 354; Fort Blain Bridge Go. v. Smith, 30 N. Y., 44; Auburn c& Gato Flank B. B. Go'., v. Douglas, 9 N. Y., 451; Olíanles Bi/oer Bridge Go. v. Wa/rrm Bridge, 11 Pet., 420; West Bi/oer Bridge Go. v. Di/x, 6 How., 507.)
   Gilbert, J.:

The power granted to the defendant is to “ erect and construct from time to time fixtures for lines of telegraph, upon, over or under any of the public roads, streets and highways, and upon, through or over any other land.” (Laws of 1853, ch. 471, § 2.) No doubt the Legislature may supplant one public use by another. Put the delegation of such a power must be made in express terms or arise by necessary implication. It cannot be implied from a general power to appropriate or to use land generally. Statutes which delegate the power of eminent domain, are not to be extended by inference or implication. (Rensselaer & Saratoga R. Co. v. Davis, 43 N. Y., 146 ; In re Boston & Albany R. R. Co., 53 Id., 574; In re Rochester Water Commissioners, 66 Id., 413 ; In re Buffalo, 68 Id., 167; In re New York & Brighton Beach R. Co., decided at the last term of this court, '20 Hun, 201.) We think that the plaintiff has not been vested with the power to interfere with the use by the defendant of its roadway. The phrase “ public roads,” certainly does not embrace railroads outside of streets or highways. Whatever it may signify, it is an inappropriate expression to designate a thing, so long and commonly known by another name, as a railroad. If the Legislature had intended to authorize the use of railroads, they would have said aso in plain language, and they would have prescribed the mode of the joint use, so as not to endanger the safety of the operation of the railroad, as they have been careful to do in analogous cases. (Laws of 1850, ch. 140, § 28, subd. 6.)

An injunction is the proper remedy in a case of this kind.

The order appealed from must be reversed, and the motion to continue the injunction must be granted, with $10 costs and disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order reversed, with costs and disbursements.


text:
    MARY ANN THEALL, Appellant, v. THE CITY OF YONKERS, Respondent.

      Duty of adjoining towns as to repairing a Irridge over a stream dividing them— chapter 225 of 1841, as amended by chapter 383 of 1857 — when the Common Council of Tonlcers act as independent officers ‘and not as agents of the city— dividing line between Tonlcers and the town of Bast Chester.

    For a failure to keep in repair a bridge over a stream dividing adjoining towns as required by chapter 225 of 1841, as amended by chapter 383 of 1857, the Commissioners of Highways of the said towns are jointly and not ' severally liable.
    The Common Council of the city of Yonkers, in acting as Commissioners of Highways, under the said statute, act not as agents of the city, but as independent public officers.
    The dividing line between the city of Yonkers and the town of Fast Chester is the middle lino of the Bronx river.
    Appeal from a judgment dismissing the complaint, entered upon the report of a referee.
    The action was brought to recover the damages sustained by the plaintiff by partially falling through a hole in a bridge.
    The referee found, among other things, “ That the defendant is a municipal corporation duly created under the laws of the State of New York, and that the Common Council thereof possesses all the powers given by law to the Commissioners of Highways of towns, in respect to the bridge hereinafter mentioned.
    “ That in or about the year 1821 a bridge was constructed across the Bronx river (which was then and now is an unnavigable stream), and that in or about the year 1856, the said bridge was rebuilt by the Commissioners of Highways of the town of Yonkers, the abutments of the second bridge occupying the same spaces as the abutments of the first bridge, erected about the year 1821, the Highway Commissioners of the adjoining town of East Chester, at the same time building another span of about the same length over a marshland or swamp, then being in the town of East Chester ; that the said Commissioners of Highways of the respective towns of Yonkers and East Chester, as between themselves, and with reference to 'the expense of constructing both of the said spans considered them both as constituting one bridge, but the said Bronx river has always flowed in its present channel, which is wholly between the abutments of the said westerly span of the said bridge.
    “ That on the thirteenth day of December, 1878, the plaintiff, then being an inhabitant of the village of Mount Vemon (an incorporated village in the said town of East Chester), while crossing the westerly span of the said bridge, which is intersected by the Bronx river, without fault or neglect on her part, partially fell through a hole, about six inches in width by about three feet in length, thereby receiving painful if not permanent injuries.
    “ That the said hole in the bridge through which she partially fell, was outside of the corporation limits of the city of Yonkers, being over the line of the middle of the channel of the Bronx. river at least five and onedialf feet, and was in the town of East Chester; and that the boundary line between the said city of Yonkers and the town of East" Chester is the middle of the channel of the said Bronx river ; and that, for the purpose of connecting the said town of East Chester with the said town or city of Yonkers, the said westerly span was the whole bridge over the said Bronx river.
    “That the said city of Yonkers was, by the charter thereof, declared to be one of the towns of Westchester county except as is otherwise provided in the act of incorporation of the said city; and that the maintaining or keeping of the said bridge in repair is not provided for in the said charter; but that the Common Council of the city of Yonkers, by the said charter, were made Commissioners of Highways within the limits of the said city, and, as such Commissioners of Highways of the said town of Yonkers, it was also their duty, and also the duty of the Commissioners of Highways of the said town of East Chester (under the statutes), to keep and maintain the said westerly span of the said bridge in proper repair at the joint expense of both towns.
    “ That the said defendant, or the said Common Council, or Commissioners of"Highways, had no notice, actual or constructive, of the existence of the said hole in said bridge, but were ignorant of the same without fault on their part.”

      Josiah T. Jovejoy and James Peers Foster, for the appellant.

      Theodore Fiteh, for the respondent.
   Gilbert, J.:

There seem to be two insuperable objections to the plaintiffs claims. 1. -If it was the defendant’s duty to keep the bridge in question in repair, yet the referee has -found that it was not chargeable with notice of the defect in the bridge which caused the accident. The finding is fully sustained by the evidence, and the fact found is a complete defense. (Griffin v. Mayor of N. Y., 9 N. Y., 456; Hume v. The Mayor, 47 Id., 639; Todd v. City of Troy, 61 Id., 506.) But, 2. The bridge on which the accident-happened was under the care of the Commissioners of Highways of the city of Yonkers and town of East Chester (2 R. S., 6 ed., 135.) The charter of the city (tit. 8) vested the powers of such commissioners in the Common Council. If the act of 1841, cited infra, be applicable to this bridge, then the liability to maintain it rested upon the city of Yonkers and the town of East Chester jointly, and such liability could be enforced only by action against the members of the Common Council of Yonkers and the Commissioners of Highways of East Chester jointly. Such is the plain provision of the statute on this.subject. (Laws of 1841, ch. 225, §2, as amended by Laws of 1857, ch. 383; Lapham v. Rice, 55 N. Y. 478.) For one class of cases the'statute cited grants a several as well as a joint liability, but for a neglect of duty only a joint liability is declared. With respect to their duty as Commissioners of Highways under the statute cited, the Common Council do not act as agents of the city, but as independent public officers. (N. Y. & B. Saw Mill Co. v. City of Brooklyn, 8 Hun, 37; S. C., 71 N. Y., 580.) That the case is governed by the act of 1841, and that the duty of maintaining the bridge was a joint one, we think is reasonably clear. The bridge was in existence when the act of 1841 was passed, and was then partly in the old town of Yonkers. The fact that it has been permitted to -remain for so long a period, and that it forms a part of a highway which connects Yonkers with East Chester, is sufficient evidence that the towns of Yonkers and East Chester' assumed the liability of maintaining it. (Jones v. City of Utica, 16 Hun, 441; Beckwith v. Whalen, 65 N. Y., 322.) Since the incorporation of Yonkers as a city the duty resting on the town has been east upon the Common Council as Commissioners.

Furthermore, we are of opinion that the division line between Yonkers and East Chester is the middle of the channel of the river. (1 R. S., 6 ed., 370, § 62.) That being so, the accident hapjiened outside of the limits of the city, and nothing has been shown which imposes the duty of maintaining the bridge beyond the city line, except the statute of 1841, before cited.

It follows that whoever may be liable for the injury complained of, the defendant is not.

The judgment must be affirmed with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed with costs.


author: Pratt, J.:

text:
    JOHN T. HARROLD, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellant.

      Examination of a pa/i'ty before trial — power of the court to refuse, or limit the extent of it— Code of Civil Procedure, §§ 875, 876.
    Under the provisions of the Code of Civil Procedure, relating to the examination of parties before trial, the court cannot refuse to grant an order for the examination of a party to an action, actually pending, nor has it any greater or different power to limit the extent of such examination than it has to limit the examination of any witness upon the trial.
    So far as the questions put to the witnesses are relevant to the issues to be tried, the party-examined must answer them.
    The'right of examination cannot be limited by any rule of the courts.
    Appeal from parts of an order, made at a Special Term, requiring tbe plaintiff to appear and be examined as a witness, before trial.
    Upon tlie application of the defendant, an order was made requiring tbe plaintiff to appear and be examined as a witness before tbe trial of tbe action, at tbe Court House in tbe city of Brooklyn.
    Tbe affidavit upon which tbe application was made stated, among other things, “ That this action is brought to recover tbe sum of fifty thousand dollars, for personal injuries alleged to have been sustained by tbe plaintiff while: a passenger upon tbe railroad of these defendants, by reason of tbe alleged carelessness and negligence of their seiwants and agents.

      “ That tbe answer of tbe defendants is, that they have no knowledge or information sufficient to form a belief whether tbe allegations of tbe complaint are true, except as to the allegation that they are a corporation.

      “ That tbe name of tbe person to be examined is John T. Harrold, tbe plaintiff herein, who resides, as deponent is informed and believes, at No. 456 Munroe street, in tbe city of Brooklyn.
    “ That in order to properly prepare1 for tbe trial of this action, and to conduct tbe defense thereof, it is necessary and material for tbe defendant to have tbe examination of tbe plaintiff, John T. Harrold, because it is impossible to prove, in any other way, what injuries have in fact been sustained by him, or what bis physical condition is at this time, and as this, defendant is informed and believes, the alleged injuries sustained by tbe plaintiff are much less severe than as set forth in the complaint, and that tbe immediate and remote effects thereof are exaggerated therein.”
    Upon the return day, tbe plaintiff’s attorney appeared and presented affidavits tending to show that tbe plaintiff’s physical condition was such as to render bis attendance at court or his examination as a witness impossible; and upon tbe said affidavits and for tbe reason that tbe affidavit of the defendant did not make out a ease for the examination of the-plaintiff, he moved to vacate the order. The court refused to vacate the order, but modified it by providing, viz.:
    “ And it is further ordered that the said plaintiff be examined as a witness, only at his residence at No. 312 Macon street, in the city of Brooklyn, in the county of Kings, on the 31st day of January, 1880, at 11 o’clock in the forenoon, or at such other time or times as the referee hereinafter appointed to conduct and take such examination shall appoint for that purpose. ,
    “ And it is further ordered, that Arthur Dudley "Minton. Esquire, of the said city of Brooklyn, be and is hereby appointed sole referee to take the examination of said John T. Harrold at the time and place aforesaid, and to conduct and finish the same. And he is required to file the deposition of said John T. Harrold, when taken, with the clerk of this court, and for the county of Kings, within ten days after the same shall be so taken.
    “ And it is further ordered, that Jonathan Deyo, the attending physician of said plaintiff, may be present at said examination, and Daniel Ayres, M. D., of the city of Brooklyn, may be also present, with said Deyo, and that such examination by said referee shall not proceed at any one time further than his physical and mental strength shall in their judgment warrant.
    “It is also further ordered, that Jacob S. Freer, M. D., the physician heretofore employed by the defendant, and who has heretofore examined the plaintiff, may also be present at such examination.
    “.It is further ordered, that such examination be confined to the matters stated in the affidavit made on the part of the defendants, on which said order for the plaintiff’s examination was made, as the necessary matters calling for the examination of said plaintiff, and upon which it is necessary for the defendant to examine him.”
    • The defendant appealed from the last three paragraphs of the modified order.

      Dudley Field, for the appellant.

      Ghanmcey Shaffer, for the respondent.
   Pratt, J.:

The practice of examining parties at and before trial, inaugurated by sections 390 and 391 of the Old Code, was a great innovation upon previous methods, and has given rise to much discussion.

Before that change the redress to be obtained by law depended not so much on the real facts of the case as upon the caution with which the party had surrounded himself with witnesses, by whose testimony the facts could be established. However meritorious a cause -of action might be, and how well known the facts might be to the parties interested, the plaintiff would then fail unless-every material fact could be proved by witnesses who were without interest in the cause. Nor were the parties to the cause the only sufferers. The witnesses were compelled to sacrifice their time to prove facts that could not be disputed, and were in no real doubt, and were heavily taxed in matters where they had no concern. The liberty to examine an opposing party subject to the same rules of examination as any other witness (Old Code, § 90) has been a great relief to witnesses, and to the court, and a great benefit to honest litigants. But the relief to counsel preparing a cause for trial would be comparatively slight if they were compelled to rest in ignorance of the testimony of the ojaposing party until the trial. And the experienced authors of the Code, in section 391, provided that this examination of the adverse party might, at the option of the party claiming it, be had at any time before the trial. Since this provision of the law has been in force, prudent counsel have rarely been surprised at the trial, by unexpected evidence, trials have been shortened, the public time has been economized, and the burden upon witnesses has been greatly lessened. Trials have.been determined more than ever before upon the real merits. Parties who might be tempted to testify falsely with the stress of the trial upon them, and when they may hope that time and opportunity will not suffice to expose á false statement, when examined before trial are apt to testify truthfully. If they fail to do so the mischief is not often without remedy.

The right to examine the opposing party before trial, shown by experience to )0 beneficial, is preserved by the New Code, section 873, and the courts would be guilty of a grave error, should they allow it to be frittered away or unduly limited. Under the careful provisions of sections 875 and 876, there is small danger of abuse, and the Code does not give the. court any power to refuse to grant the order for examination where the action is pending, nor does it give the court any greater or different power to limit the examination of a party examined before trial, than to limit the examination of other witnesses upon the trial. So that the questions put to the witness are relevant to the issues to be tried, they must be answered to the extent of the witness’s knowledge. By this rule a searching investigation can be made immediately after issue joined into the merits of the controversy upon both sides. The points really in dispute will be made apparent; whether a defense be meritorious or a sham, will in most cases be made clear.. Counsel can more intelligently advise the parties as to the prospects of the litigation, by which amicable settlements will be encouraged, and the courts can better exercise their discretion in granting or refusing provisional remedies. The production of relevant and proper testimony by compulsion from a party, or any other person;, at any stage of the action, cannot be made a subject of complaint, and the earlier the facts are established the better for the interests of justice. Nor can the right of examination be limited by any rule of courts. (Glenney v. Stedwell, 64 N. Y., 120.)

The right to appoint a referee to take the examination is expressly given by statute, and in that respect the order appealed from is affirmed. The provisions of the order as to the attendance of parties, are reasonable, and are within the power of the court. In that respect the order must be affirmed. The limitation of the subjects to be inquired of, upon the examination, is not within the power of the court, and in that respect the order must be reversed, but without costs.

The examination will' proceed before the referee upon all the issues in the cause.

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Parts of order appealed from modified in accordance with opinion, without costs to either party.


author: Barnard, P. J.;

text:
    THE BROOKLYN AND ROCKAWAY BEACH RAILROAD COMPANY, Respondent, v. PHILIP H. REID, Appellant.

      Action for a b'each of the covenants contained in a lease — when it involves the examination of a long account, so as to authorize a compulsory reference thereof— interposition of a counter-claim in such an action, does not prevent its reference — Code of Civil Procedure, § 974.
    Appeal from an order made at a Circuit, referring this action to a referee to hear and determine.
    The court at General Term said: “ This seems to be a plain case for a reference. The complaint avers facts showing various claims under a lease given by the plaintiff to one William Richardson, and by him assigned to the defendant. The subject of the lease is a railroad and its appurtenances. The claim of the plaintiff includes rent and numerous violations of the covenants of the lease, resulting in damages. It is apparent that such breaches of the covenants thereof will involve many items. There are items of insurance, items of - taxes, items for damages for failure to keep fences along the road, and to keep the road-bed in repair, items of damages for property lost by fire, by reason of a failure to insure, and claims for a failure to expend money received -from buildings burned, and for which the defendant recfeived the insurance money, items, apparently numerous, for articles which, by the lease were delivered to the lessee by the lessor, and which were to be returned at the end of the lease, and which were not returned.

      ££ The defendant claims $5,000 for services and expenses in obtaining a right of way for a branch road for the plaintiff'. The case is evidently one where, with such a large amount of items in dispute, a jury could not justly determine it. The items are too many to be retained in the mind of a jury, who keep no minutes of the evidence. Section 974 of the Code of Civil Procedure is not designed to send a counter-claim made by a defendant to a jury, in an action which is referable by reason that the trial will involve the examination of a long account.”

      Philip S. Oroohe, for the appellant.

      Henry W. Jo/mson, for the respondent.
   Opinion by

Barnard, P. J.;

Gilbert, J., concurred; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.


author: Pratt, J.;

text:
    JAMES E. DELANEY, Respondent, v. WILLIAM C. VAN AULEN, Individually and as Trustee under Will of MARY L. KIRBY, Deceased, Appellant.

      Legacy of an annuity, payable out of the income of an estate — when the principal thereof must he resorted to, in case the income prove insufficient.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The defendant’s testatrix left á will, the third item of which was as follows:
    ££ Third. — I give, devise, and bequeath unto my executors hereinafter named and to the survivor of them, all the rest, residue, and remainder of the estate real and personal of which I may die seized and possessed, in trust,.nevertheless, to and for the uses and purposes following, that is to say, to receive the rents and profits of such part thereof as shall consist of real estate, and to invest and keep invested upon bond and mortgage on real estate, or in the public funds of the United States, State and city of New York, as they may deem most safe and productive, such paid thereof as shall consist of personal estate — and apply said rents and profits of real estate and interest, or income of personal estate, to the use of my said husband William L. Kirby during his natural life; except that they shall ajiply tó the use of James E. Delaney, who was brought up by me, the sum of $500 per annum thereout, until lie shall arrive at the age of 21 years, and from and after that time the sum of $1,000 per annum thereout, during the lifetime of my said husband William L. Kirby, and from and after the decease of my said husband the sum of $2,000 per annum thereout dining his natural life.”
    No other disposition of the residue was made in the will.
    The plaintiff prayed for a judgment declaring that the annuity to him of $2,000 during his natural life be adjudged to be a demonstrative legacy, payable out of the principal of the estate, in case of a deficiency of income.
    The defendant claimed that the legacy to the plaintiff was payable out of the income of the estate only, and that, in' case in any one year there should be a deficiency of income, that then the said legacy was to rebate in proportion to the amount of such deficiency.
    The court at General Term said:
    “ The case of Pierrej>ont v. Edwards, 25 N. Y., 128, is decisive of this. There the annuity was directed to be paid £ out of the income of the estate.’ Yet it was held, that, income failing, the principal must be resorted to, and the annuity paid therefrom. No difference is perceived between that and the present case to authorize the application of another rule.
    “We have no alternative but to affirm the judgment.”

      James F. Malaom, for the appellant.

      D. P. Barnard, for the respondent.
   Opinion by

Pratt, J.;

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgment affirmed, with costs.


author: Gilbert, J.

text:
    In the Matter of LIVINGSTON STREET, RHINEBECK.
   Order affirmed, witb costs and disbursements.

Opinion by

Gilbert, J.


author: Pratt, J.

text:
    ROBERT DENT, Respondent, v. LUORETIA C. SMITH, Appellant, Impleaded, etc.
   Order affirmed, witb costs.

Opinion by

Pratt, J.


text:
    ELIZABETH DENIKE and CHARLES W. DENIKE, Respondents, v. CHARLES J. HARRIS and ROBERT C. REEVES, Executors, etc., of ABRAHAM DENIKE, Deceased, Appellants.
   Order affirmed, witb costs and disbursements.

Opinion by

Pratt, J.


author: Barnard, P. J.

text:
    SAMUEL A. LYON, Respondent, v. HUBBARD BLAKESLY, Appellant.
   Order affirmed, witb costs and disbursements.

Opinion by

Barnard, P. J.


text:
    In the Matter of the Application of THE NEW YORK, WOODHAVEN AND ROCKAWAY RAILROAD to acquire Lands of John C. Shaw, and others.
   Appeal withdrawn.


author: Barnard, P; J.

text:
    CATHARINE L. PHIPPS, Respondent, v. THOMAS D. CARMAN, Appellant.
   Order reversed, witb costs and disbursements.

Opinion by

Barnard, P; J.


text:
    JOHN PAULDING and ESTHER PAULDING, Appellants, v. JAMES SHARKEY and JAMES R. MARVIN, Respondents.
   Part of Surrogate’s decree appealed from, affirmed witb costs.

Opinion by

Pratt, J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. ANDREW ZEISER, and the said ANDREW ZEISER, Respondents, v. MOSES KESSEL, Appellant.
   Judgment reversed, and new trial- granted, costs to abide tbe event.

Opinion by

Barnard, P. J.


text:
    CATHERINE BLAUVELT, Respondent, v. CAROLINE M. SHEPARD and WILLIAM A. SHEPARD, her Husband, Appellants.
   Order of November 29, 1879, affirmed with costs and disbursements, Justice Pratt not sitting, and order of November 17, 1879, affirmed with costs and disbursements, Justice Gilbert not sitting.

Opinion by

Barnard, P. J.


text:
    JOHN C. WHITE, as Administrator, etc., OF ESTEY R. WHITE, Deceased, Plaintiff, v. OLIVER TITUS, and ESTHER L. TITUS, as sole Executrix of ROBERT W. TITUS, Deceased, Defendants.
   Exception overruled, and judgment for tbe plaintiff upon tbe verdict.

Opinion by

Pratt, J.


text:
    LAWRENCE ODELL, Appellant, v. ALEXANDER McCUE and EDGAR M. CULLEN, Respondents.
   Judgment and order confirming referee’s report reversed and new trial granted, costs to abide event.

Opinion by

Gilbert, J.


text:
    HORATIO N. TWOMBLY, Appellant, v. PATRICK CASSIDY and others, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.


text:
    SILAS DAVIS and others, Respondents, v. LOUIS LEOPOLD and others, Respondents.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Gilbert, J.


text:
    HERMAN TALMAN, Respondent, v. ALBERT G. ZABRISKIE, Appellant.
   Judgment and. order denying new trial reversed and new trial granted, costs to abide event.

Opinion of

Barnard, P. J.


text:
    HENRY W. SAGE v. EDWARD ROBERTS.
   Judgment affirmed, with costs.


text:
    In the Matter of the Petition of THE NEW YORK AND BRIGHTON BEACH RAILWAY COMPANY, Filed June 26, 1879, and July 9, etc.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    JOHN P. HAWKINS v. DANIEL H. TERRELL.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.


text:
    CONVERSVILLE COMPANY, Appellant, v. CHAMBERSBURG WOOLEN COMPANY, and others, Respondents.
   Judgment reversed and new trial granted at Special Term, costs to abide event.

Opinion by

Gilbert, J.


text:
    SAMUEL NICHOLS, Jr., Respondent, v. RICHARD M. BOWNE, CHARLES NICHOLS and OLIVER N. PAYNE, as Executors, etc., of SAMUEL NICHOLS, Deceased, Appellants.
   Judgment affirmed, with costs

Opinion by

Pratt, J.


text:
    SOPHIA A. NEW, as Administratrix, etc., of JOHN H. OSBORN, Appellant, v. ANDREW COLE and SARAH OSBORN, as Executrix, etc., of DANVERS OSBORN, Deceased.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    HARRIET A. DIXON, Appellant, v. DOMINICK DIXON Respondent.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    EDWARD OLMSTED and HENRIETTA C. BOOTH, Surviving Trustees, etc., Appellants and Respondents, v. GEORGE LOFFLER, Appellant and Respondent, Impleaded with others.
   That part of judgment appealed from by plaintiff reversed, and that part appealed from by defendant Loffler affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    ELISHA NORTON v. LUTHER M. SATTERLY.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    SAMUEL C. EATON, Trustee, etc., Respondent, v. THE GOODENOUGH HORSE SHOE MANUFACTURING COMPANY, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    N. H. ODELL, Administrator, v. DAVID CROMWELL.
   Judgment affirmed, with costs.

Opinion by

Gilbert, J.


text:
    ANNIE O’BRIEN v. MARGARET MARBLE.
   Motion denied, without costs.


text:
    JOHN RICHARDSON v. JOSHUA DRAPER and others.
   Re-argument ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAM H. DAILY and ABRAM H. DAILY, Respondents, v. WALTER D. LIVINGSTON, Appellant.
   Order reversed, with $10 costs and disbursements.

Opinion by

Barnard, P. J.


author: per Cubiam.

text:
    GEORGE W. PLATT, Jr., v. GILBERT V. HUNTER and others.
   Order reversed, with costs and disbursements.

Opinion

per Cubiam.


text:
    WILLIAM R. McCULLOUGH and BERNARD REILLY, as Sheriff, etc., Respondents, v. GEORGE CARRIGAN, Appellant.
   Re-argument ordered, for the reason that two judges were disqualified.

ítttmoran&a of (Easts HJfiTEEMIKED IN THE THIRD DEPARTMENT, AT GENERAL TEEM, Jflag, 1880.


text:
    CHAUNCEY STEVENS, Respondent, v. OLIVER GLOVER, Appellant.
   Motion to open default denied, with $10 costs.


text:
    FREDERICK T. WRIGHT, Appellant, v. HARMON W. VAN BUREN and others, Respondents.
   Order, affirmed, with $10 costs, and printing disbursements.


text:
    In the Matter of DELOS M. POWERS, an Attorney, etc.
   Motion to strike name from roll granted. See order on file.


text:
    L. M. PAYNE and A. S. STORM, Appellants, v. FENNIMORE C. TERRY, Respondent.
   Appeal dismissed on authority of Andrews v. Long, 9 Week. Dig., 513.


text:
    JAMES ECKERSON and others, Appellants, v. JOHN PIER, Respondent, Impleaded with others.
   Order affirmed, with $10 costs, and printing disbursements.


text:
    FRANK F. HATHAWAY, as Administrator, etc., Appellant, v. NATHANIEL ELMORE, and others, Respondents.
   Appeal dismissed, with costs.


text:
    JAMES CAREY, Respondent, v. HENRY SCOTT, Appellant.
   Judgment affirmed, with costs.


author: Learned, P. J.

text:
    GEORGE H. KILLEEN, by his Guardian, Respondent, v. LORENZO F. SAMSON, Appellant.
   Judgment affirmed, with costs.

Memorandum, by

Learned, P. J.


text:
    WILLIAM BREESE, Respondent, v. SILAS R. HILL, Appellant.
   Judgment of County Court reversed, and that of justice affirmed, with costs.

Memorandum by

Learned, P. J.


text:
    SAMUEL LAW, Appellant, v. LUTHER S. McDONALD, Respondent.
   Judgment affirmed, with costs.

Memorandum by

Learned, P. J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. CHARLES V. BAILEY and others, Respondents, v. WILLIAM A. GIFFORD and others, Appellants, and JAMES S. FOSTER, Applicant, also Appellant.
   Judgment reversed; certiorari granted.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Dependants in error, v. AMENZO FRY, Plaintiff in error.
   Judgment and certiorari reversed, and case sent back to Court of Sessions for new trial.


text:
    POLLY M. AMES, Respondent, v. FANNY J. VAN VRADENBURG, Appellant.
   Judgment affirmed, with costs.


text:
    SAMUEL E. BIRDSALL and others, as Administrators, etc., of MARY L. BIRDSALL, Deceased, Respondents, v. FANNY J. VAN VRADENBURG, Appellant.
   Judgment affirmed, with costs,


text:
    JOHN E. KNAPP, Respondent, v. CORNELIUS VAN SCHOYK, Appellant.
   Judgment and order affirmed, with costs.


text:
    WILLIAM H. WATSON, Appellant, v. JACOB SHUITZ, Respondent.
   Judgment of County Court reversed and that of justices’ court affirmed, with costs.


text:
    JANE SEAMAN and others, Appellants, v. HENRY C. HARVEY and SUSAN AMELIA HARVEY, Respondents.
   Judgment and order affirmed, with costs.


text:
    WILLIAM W. SCRIVER and JOHN W. ROBERTS, Respondents, v. CALVIN S. DOUGLASS, Appellant.
   Order‘of Special Term reversed, and verdict and all subsequent proceedings set aside for irregularity in the verdict.

New trial granted, costs to abide event.


text:
    POLLOCK v. HUNT.
   Motion for leave to go to the Court of Appeals denied.


text:
    ADRIANCE O. MATHER and others, Appellants, v. DANIEL R. WILSON, Respondent.
   Appeal dismissed, with costs.


text:
    In the Matter of the Application of the ATTORNEY-GENERAL v. THE NORTH AMERICA LIFE INSURANCE COMPANY.
   Order affirmed.


text:
    SARAH GRAVES, Respondent, v. PHINEAS M. BURLEW and others, Appellants.
   Order affirmed, with $10 costs, and printing disbursements.


text:
    DANIEL H. CARVER, as Receives, etc., Respondent, v. KATE C. HALL, Appellant.
   Appeal dismissed, with costs.


text:
    JANE A. WEED and FANNIE S. WEED, Respondents, v. CHARLES O. ROOT, and others, Appellants.
   Appeal dismissed, with costs.


text:
    NORMAN DODGE, Respondent, v. HERMAN BROWER and others, Appellants.
   Motion denied, with $10 .costs.


text:
    CHARLES O. TAPPAN and GEORGE Z. ERWIN, Respondents, v. PARKER AMES, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    WHITBECK v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.
   Motion for permission to go to the Court of Appeals denied.


author: Smith, J.:

text:
    CAROLINE A. STEWART, Respondent, v. GEORGE CRYSLER and JONATHAN K. CRYSLER, Appellants.

      Action to remove a cloud upon title — when it will not lie — chapter 858 of 1867— as to whether notice to redeem, from a sale under ■must he given — when sale cannot he attacked for an error in the description of the land — 1867, eh. 858, § 10. —1855, ch. 437, § 34.
    The plaintiff, claiming to be the owner of a lot in the city of Syracuse, brought this action to have a deed thereof, executed by the County Treasurer, upon the sale of the lot for unpaid taxes, set aside, as a cloud upon hep title, upon the ground that no notice to redeem had' been given to the owner or occupant thereof.

      Meld, That, if section 13 of chapter 858 of 1867 (the act under which the sale was made) did not make applicable to proceedings under it, the provisions of the general laws of the State relating to the giving of a notice to redeem after a sale for taxes (1855, eh. 437, §§ 68-75), then no such notice was required, as the act of 1807 contained no provision requiring such notice to be given, and the defendant’s deed was valid.
    That, if the provisions of the general laws on that subject did apply, then the plaintiff’s right to redeem was still perfect, and as the defendant’s deed would not entitle them to recover possession of the land without the production of the treasurer’s certificate, showing a failure on the part of the owner or occupant to redeem after due notice had been given, the plaintiff had no occasion to come into a court of equity for relief.

      That, in either event, this action could not be maintained.
    Section 10 of chapter 858 of 1867 renders the deed conclusive evidence of the regularity of the sale, and prevents its validity from being attacked by proof of a misdescription of the land in the notice of sale.
    Under section 84 of chapter 427 'of 1855 the validity of a sale is not affected by any error in the description of the land in the printed notice of sale. Qusere, as to the constitutionality of these provisions. ■ _
    Appeal from a judgment entered on the decision of a single judge, upon a trial of the action at the Onondaga Special Term.

      Perl&ms da Weston, for the appellants.

      Hwnt da Werner, for the respondent.
   Smith, J.:

The action is brought by the plaintiff, claiming to be the owner of a lot of land in the city of Syracuse, to remove an alleged cloud upon her title, consisting of a deed executed to the defendants by the treasurer of the county of Onondaga, upon a sale of said land for taxes. The trial judge found the deed valid on its face and a cloud upon the plaintiff’s title, but as we understand the decision, invalid in fact, upon the grounds: (1) That the property was incorrectly described in the notice of sale; and (2) That no notice to redeem had been given to the owner or occupant.

The latter ground is the one principally relied on by the plaintiff. A question argued by counsel, upon this branch of the case, is whether section 12 of the act of 1867, in reference to the collection of taxes in the county of Onondaga (Laws of 1867, ch. 858), makes applicable to proceedings under it, the provisions of the general laws of the State relating to the giving of notice to redeem after a sale for taxes. (Laws of 1855, ch. 427, §§ 68-75, inclusive.) The question is not free from doubt, but we do not think it necessary to decide it, in order to dispose of the present case. ■ If those provisions are pot applicable to a sale for taxes made by the treasurer of the county of Onondaga, the plaintiff was not entitled to notice to redeem after sale, as the Onondaga act contains no provision requiring such notice. On the -other hand, if the provisions of the general laws on that subject do apply, the plaintiff has yet a perfect right to redeem, and the defendant’s deed will not enable them to recover possession without the production of the treasurer’s certificate, that the occupant failed to pay the money necessary to redeem, according to notice. (Jackson v. Esty, 7 Wend., 148 ; Bush v. Davison, 16 Id., 550; Lucas v. McEnerna, 19 Hun., 14.) If the Onondaga act is independent of the provisions of the general statutes in respect to giving notice to redeem, after sale, the defendant’s deed is valid in fact; if those provisions are made a part of the Onondaga act, the deed is subject to the plaintiff’s right to redeem, and the plaintiff has no occasion to come into a court of equity for relief.

The misdescription in the notice of sale consists in this: The land was correctly described in the deed, as follows: “ Block 262 Water Street, 203 ft. front to Canal and lumber yard.” In the notice of sale it is described, “ Block 262, lot 203 front to Canal Street lumber yard Water Street.” Is this such a misdescription as would mislead ? The number of the block is correctly given, and the name of the street on which it is situated. The figures 203 ” do not purport to indicate the number of the block, but they are, in fact, the number of feet of its extent. And the names of the owners were given correctly in the notice. But whether or not the error in the description contained in the notice was calculated to mislead, it does not affect the validity of the deed, under either the Onondaga act or the general statutes. The Onondaga act provides that the deed shall be conclusive evidence that the sale was regular. (§ 10.) A deed executed under the act of 1855 is made presumptive evidence, only, of the regularity of the proceedings in general attending the sale (§ 65), but the act exXpressly provides that no error in the printed description in the designated newspapers, of the land to be sold, “ shall vitiate, or in any manner affect the validity of such sale.” (§ 34.) In this case, no question is made but that the land sold and conveyed, was the land assessed. No question has been made by counsel on either side as to the constitutionality of the statutes above referred to, and therefore the point has not been considered.

We think no case is made for the exercise of the equitable power of the court to remove a cloud upon title, and that the judgment should be reversed, and a new trial ordered, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

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


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    EMMA STROBRIDGE, Appellant, v. GEORGE M. STROBRIDGE, Respondent.

      A defendant who fails to pa/y over to the plaintiff money to enable her to carry on a suit for divorce, as ordered, is liable to arrest — his inability to pay it is no defense to an application for his commitment — 2 S. S., 538, § 20, is only applicable to those actually imprisoned.

    Where a defendant, in an action brought against him by his wife, for a limited divorce, fails to comply with the terms of an order, requiring him to pay a certain sum of money to her attorney to meet the expenses of the suit, he is guilty of a contempt for which the court may issue a precept committing him to jail.
    Upon the return of an order, requiring the defendant to show cause why he should not be committed for failing to comply with the terms of such an order, he cannot show, in opposition to the motion, that his pecuniary circumstances are such as to render him unable to pay the moneys thereby required to be paid.
    An application, under 2 R. S., 538, § 20, for relief, on the ground of the applicant’s inability to comply with the requirements of the order, must be made to the court, upon notice to the adverse party.

      Bernble, that the remedy afforded by the said section was intended for those only who are actually imprisoned. (Per Smith, J.)
    Appeal from an order made at the Onondaga Special Term, denying a motion for an order directing a precept to issue to commit the defendant to jail for his refusal to comply with certain orders of the court previously made in this action, requiring him to pay to the plaintiff’s attorney the sum of $80, for the plaintiff’s expenses in prosecuting this suit. The defendant is the husband of the plaintiff, and the action was brought to obtain a limited divorce.

      Ma/rtm da Knctpjp and Ed/uom Nottwujham, for the appellant.

      Scmdall cfe Scmddll, for tbe respondent.
   Smith, J.:

The plaintiff’s motion was denied by the Special Term, principally upon the ground that the court has not power to imprison the defendant for his non-compliance with tbe orders requiring him to pay a certain sum of money to tbe attorney of the plaintiff, to meet tbe expenses of her suit. The power has been exercised so frequently, that it is somewhat surprising to find it questioned, and we think an examination of the statutes and adjudged cases bearing upon the question will show that the existence of the power cannot be denied.

Tbe view of the matter which prevailed at the Special Term was this: Section 1 (2 R. S., 534) provides that “Every court of record shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court maybe defeated,impaired, impeded or prejudiced in the following cases;” . . . (Sub. 3.) “Parties to suits, attorneys, counselors, solicitors and all other persons, for tbe non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot Toe awarded for the collection of such sum; and for any other disobedience to any lawful order, decree or process of such court.” In 1840, an act was passed, entitled “An act concerning costs and fees in courts of law and for other purposes” (Laws of 1840, cb. 386), the fifteenth section of which provided, among other things, that “ where the order for the payment of costs, or any sum of money, upon special motion, is not conditional, a precept to enforce payment of such costs, or sum of money, may be issued without any demand or application to the court.” The construction adopted at special term was that the precept thus provided for is an execution against property, and not a body execution, as otherwise a party might be imprisoned for a contempt without an opportunity being given him to show cause. And hence the conclusion was reached that the fifteenth section of the act of 1840, had tbe effect to take tbe case of an order for tbe payment of a sum of money, made on special motion, out of tlie operation of section 1 above cited, and also to abrogate section 4 of the same title, which provides for a precept to imprison a party disobeying an order for the payment of money.

We do not think the conclusion can be maintained for several reasons.

■ 1. It seems clear that by section 303 of the Code of Procedure, which repealed “ all statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions,” the provisions of the act of 1840, above referred to, relating to costs, including section 15, were swept away. Section 303 is yet in force. (See also § 315 of the Code.)

2. Section 15, as we understand it, had no application to the Court of Chancery, which was then in existence. By its terms, it related exclusively to courts of law, and. the subsequent abolition of the Court of Chancery, and vesting of its power in the' Supreme Court, did not enlarge the ’ scope of the section, or extend it to orders thereafter made by the Supreme Court in purely equitable actions. And it merely exempted parties from imprisonment for non-payment of interlocutory costs, leaving the provision concerning the payment of money, other than costs, untouched. (Ford v. Ford, 41 How. Pr., 169.)

3. We incline to the opinion that the term “execution,” contained in the third subdivision of section 1, is there used in its technical sense, referring to the process provided by law, for enforcing a final jiodgment, as distinguished from an order, and that the practice in regard to enforcing an order for the payment of a sum of money is regulated by section 4 of the same title. (See Matter of Watson v. Nelson, 69 N. Y., 536, per Rapallo, J., 544.)

4. Chapter 390 of the Laws of 1841 provided that “No person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors and counselors and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on attachment for non-attendance.” (§ 2.) “ Process in the nature of a fieri facias agaiiist personal property may be issued for tlie collection of such costs founded on such order of court.” (§ 3.) The act of 1847 was repealed before this action was commenced (Laws of 1877, eh. 417, § 1, subd. 21), so that-it does not affect the case, but its enactment throws light on the construction of the act of 1840. If that act had the effect’ ascribed to it by the Special Term, the provision of the act of 1847, that no person should be imprisoned for non-payment of costs, was useless and idle. Again, it has been held that the exception in section 2 of the act of 1847 left the Revised Statutes in full force in the excepted cases (In the Matter of Kelly, 3 Hun, 636 ; S. C., affirmed, 62 N. Y., 198), a position inconsistent with the idea that the Revised Statutes had been abrogated by the act of 1840.

5. The exception in the Revised Statutes as to cases in which execution may issue, has been in force nearly half a century, and is contained in section 14 of the Code of Civil Procedure (subd. 3), which has superseded section 1, yet no reported case has been cited, and we are not aware of any in which it has been held that the court has not power to imprison for contempt in a case like the one before us. Lansing v. Lansing (4 Lans. 377), cited at Special Term, holds merely that a final judgment for alimony is a judgment for money, and hence can be enforced by execution, and not by proceedings as for contempt. The decision does not touch the point in this case, and its correctness is questionable. The extending of the use of the writ of execution to courts of equity did not deprive them of any remedy previously employed for the enforcement of their decrees. (Brockway v. Copp, 2 Paige, 578.) In the Lansing case, Learned, J., dissented. See his comments on that case, in Park v. Park (18 Hun, 468). There are numerous cases in which the power in question has been exercised, or has been assumed to exist, since 1840. Among them are Brinkley v. Brinkley, 47 N. Y., 48; and People v. Campbell, 40 Id., 133. See also 6 Wait’s Pr., 139 ; In the Matter of Clark, 10 N. Y. W. Dig., 27; and the case of Allen v. Allen, there referred to. Our conclusion is that the Special.Term erred in holding that the power does not exist.

The Special Term also permitted the defendant, against the plaintiff’s objection, to read affidavits in opposition to the motion, to the effect that his pecuniary circumstances were such that lie was unable to comply with the orders for want of means to pay the sum therein directed to be paid. And it appeal’s, from the opinion of the judge who presided at the term, that he held that the affidavits so read showed that the defendant was “unable to comply with the orders, and by reason of such inability lie should not be convicted for contempt.” Section 20 of the title of the Revised Statutes above referred to (2 R. S., 538, as amended by ch. 9 of 1843) provides that the court ordering the imprisonment, “ may, in their discretion (in cases of inability to perform the requirements imposed), relieve the person or persons so im/prisonecl in such manner and upon such terms as they shall deem just and proper.” This seems to import that the remedy is intended for those only who are actually imprisoned. An opinion to the contrary was expressed by Learned, J., in Park v. Prnk (supra). But, however that may be, it is clear that the relief can only be obtained upon an application to the court for that purpose. And notice must be given to the opposite party to enable such party to oppose the application. Here, no notice was given; but the defendant, on being brought in to show cause why he should not be imprisoned, as for a contempt, was allowed, against the objection of the plaintiff, to turn her motion against herself, and to be relieved from imprisonment, not upon terms merely, but absolutely (for no leave was given to the plaintiff to renew the motion), and that too, upon affidavits which the plaintiff had not seen before the motion was brought on, and which, of course, she had no opportunity to answer’. If any defense whatever was open to the defendant on the motion, it was to show, if he could, that he had obeyed the orders. If he had not done so he was guilty of a contempt, and the plaintiff was entitled to the relief which she asked for. The defendant certainly could not be heard to allege his lack of means as a defense to the motion, a point that was presumptively litigated and adjudicated against him, upon the application for the order requiring him to pay to the plaintiff’s attorney money to carry on her suit.

The order of the Special Term should be reversed, with $10 costs of the appeal, and disbursements.

Talcott, P. J., and Handin, J., concurred.

So ordered.