text:
    Washington H. Taylor, App’lt, v. Catharine Taylor, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Evidence—Confessions.
    Confessions are weak and indecisive evidence.
    3. Deed—Evidence to invalidate.
    To invalidate a conveyance of real estate the law requires that the evidence shall he clear and convincing beyond reasonable controversy.

      Appeal from a judgment recovered on trial at the special term.

      Noah Davis and Charles Wehle, for app’lt; Benjamin Scharps and William Fullerton, for resp’t
   Daniels, J.

The parties are husband and wife, having been married about the year 1871, and continued to live together until the year 1887, when a separation took place. The action was commenced in 1883, and its object was to secure a conveyance from the defendant to the plaintiff of a lot of land, with the buildings thereon, situated on the northeast corner of Thirty-third street and Ninth avenue in the city of New York. The claim made by the plaintiff to the property arose out of the facts that-he alleged himself to have been engaged in business as the keeper of a restaurant on Chatham street, or Park Row, and that the defendant had abstracted and taken money from the safe used in the business without his knowledge or consent, and invested the money in this property. The deed was made to the defendant on the 2d of February, 1883, and recorded on the 5th. of the same month. The plaintiff testified when he discovered that the defendant had purchased this property, that he asked her where she got the money, and that she replied, “ I may as well tell you, I took the money from the safe while you were lying asleep, but I took it for the benefit of .both, and I am willing that you shall have the property transferred to you on condition that you don’t make any more trouble about it.”

And that she further stated to him that she had taken $36,000, and then added, “ Yes, I have taken more; I have taken forty thousand dollars, and I wish I had taken more.” This evidence tended to maintain the plaintiff’s action, although it is not entirely consistent with a preceding answer given by him, in' which he. stated that “ the occasion when my wife took money was in 1883, after she purchased the Thirty-third street property.” The statements are somewhat in conflict, and tend to diminish the force of the plaintiff’s evidence in which he undertook to relate what he testified she had said to him about the abstraction of the money. Evidence was also given by the witness John Dougherty that he saw the defendant take money from the safe nearly every day he was on duty, and that he went to work near Christmas in the year 1881. But in the evidence which was given by the defendant as. a witness in her own behalf she positively denied all these statements, and added that she had discharged the witness Dougherty from the business, from which it might be inferred that his feelings were not entirely friendly towards herself. But without placing any special reliance upon the effect of that circumstance, it may be safely affirmed in this state of the evidence that the fact was not established that the money of the plaintiff was used by the defendant in the purchase of this property. And proof of that fact was essential to the ability of the plaintiff to maintain this suit. These witnesses, as well as the others whose testimony was taken upon the trial, were under the observation of the court, and with that advantage the question was addressed to the judge presiding at the trial, as to which was the most reliable in the statements made by them. What the plaintiff relied upon werd confessions testified by him to have been made by the defendant, and they have been characterized on frequent occasions as weak and undecisive evidence. And when contradicted, as they were in this instance by the defendant, with a fair appearance or probability, they certainly lose still more of their weight and effect, even if the fact should be considered to be proved that the confessions or statements had been made by her. But in this instance she did not rest upon a mere explanation, but interposed a positive denial that she had made these statements to the plaintiff.

It has, however, upon the argument been insisted that her testimony was so far in conflict with the savings bank books produced upon the trial as to entitle the plaintiff to a determination of this essential fact in his favor. But an examination of the accounts contained in these books fails to supply that degree of support to the plaintiff’s case as would entitle him to a reversal of this judgment. For these accounts do not disclose the fact to be that the defendant obtained the bulk of the money from the banks with which they were kept to pay the purchase price of this property. And it is not pretended, and could not very well be, that any credit had been given to her for the future payment of any part of that money. The only draft made by the defendant upon either one of these savings banks accounts, near to and prior to the date of this deed, was that for the smn of $3,063.73 upon the Hew York Savings Bank. And it is probable from this date that this amount did go into the purchase of the real estate. But that fact affords the plaintiff no assistance whatever in the maintenance of the action. For it appears by the account that no more than the sum of $272.70 was deposited to the credit of this account after the lease taken by plaintiff for the premises known as 110 Chatham street, where his business was carried on, from which it was averred that "these abstractions of money were made by the defendant. The principal deposits, on the contrary, were made in 1878 and 1880, when the defendant testifies she herself carried on the business at this and another place. As to this fact there was a conflict in the evidence, the plaintiff testifying that the business was then his own and carried on by him. And the evidence of various other witnesses was taken during the trial to prove the fact that he was in the charge and management of the business prior to as well as after the time when this lease was taken by him.

But that evidence was by no means controlling over the fact, for the defendant testified that he was there in each, as well as other preceding businesses, so far as he devoted his attention to it, under her employment and authority. And the lease under which the business was first done at 110 Chatham street was taken in the defendant’s name, which is an additional circumstance tending to support her testimony. To avoid its effect the plaintiff states that he took the lease in her name in compliance with her request, but not for the purpose of enabling her to carry on the business. This has been denied by the defendant, who stated the fact to be that she was the person whose money was paid for the place, and that the business was carried on by her with the aid and assistance of the plaintiff. And that when the new lease was to be and was taken in March, 1881, that her directions to the plaintiff were to take it in her name, and that she did not for some time after that understand that a change had been made and the lease was taken to himself. This state of the evidence warranted the court in concluding that the money drawn from this bank on the 2d of February, 1883, which probably went into the purchase of this property, was the money of the defendant and not that of the plaintiff. The case in this respect, as well as others, was for him to establish, and that he failed to do by this state of the evidence, especially as the law has required to invalidate a conveyance of real estate, a degree of evidence which shall be clear and convincing beyond reasonable controversy. Cadman v. Peter, 118 U. S., 73, 78; Erwin v. Curtis, 43 Hun, 292; 6 N. Y. State Rep., 116.

It is true that this rule was applied in these cases to absolute -deeds alleged to be mortgages, but its authority appears to be equally applicable wherever one person may attempt to deprive another of the advantages of an absolute deed of real estate. The evidence to deprive the grantee of the effect of the instrument should be reasonably clear and well sustained. That was not the character of the proof given upon this trial, and as it was not improperly accepted and believed by the judge presiding at the trial, necessarily defeated the plaintiff’s action. For the probabilities disclosed by the case are decidedly in favor of the existence of the fact that the defendant paid for this property out of moneys belonging to and controlled by herself.

The savings banks accounts do not disclose drafts upon them out of which the purchase price of the property could have been paid. For in the other instances in which money was drawn by the defendant from the banks near the time when the deed of this lot was received by her, the drafts were made and the money paid after the date of the deed and after the 5th of February, the day on which it was actually recorded. It is quite probable, therefore, as the money must have been paid for the purchase of the property when the deed was received, that the defendant had other accounts besides those contained in the printed case, and from those sources in part obtained the money which was paid for the purchase price of this lot. It does appear from the evidence of the witness Augustus E. Butts that she loaned him the sum of $7,000 in the year 1879, and that he repaid her $3,000 in the fall of 1882 ; and the further sum of $4500, including the balance of the loan and interest, as he thought, about March, 1883. It is not improbable that this witness was mistaken as to the final payment being made in March, 1883. There is at least a probability arising out of his indefinite statement that it was made prior to the time when this deed was taken, and with the other sum of $3,000 went into the purchase price as a part of its consideration. For the bank accounts which were produced upon the trial do not show any credit of either of these amounts to the defendant, and there is a probability, therefore, that they were otherwise retained and applied by her in the manner already stated. That this sum was actually loaned by her at the time when her testimony is that, she was carrying on the business for herself at 100 Chatham street,, is sustained not only by the testimony of the witness who swore that he borrowed it, but also in great part by the testimony of the witness Henry J. Smith, who was present and states that he saw the $4500 paid to the defendant. As neither of these items went into the accounts which were produced, and no drafts were made upon these accounts which would supply the remaining sum required to make up the $15,000 for which the property was purchased, it can well be inferred that she obtained that difference-from some other source, and that it included no • money belonging to the plaintiff in this action.

It does appear from the accounts that the plaintiff made large-deposits in the New York Savings Bank in the year 1880; but that was a portion of the period when she testifies that this business was carried on by herself.

And these large deposits made by her in her own personal account had a further tendency to maintain the correctness of her statement. For in her evidence generally her testimony was to-the effect that she had made at least the sum of $31,000 in this-business and others in which she employed the plaintiff to represent her prior to the time when the lease in 1881 was taken by her husband. And that of this amount -she had accumulated $26,000 while the business was going on at 110 Chatham street,, which the plaintiff himself concedes to have been a profitable business. After the commencement of the year 1883 and the execution and delivery of the deed to the . defendant large deposits were made by her in her savings bank accounts, but she testified that these were made by putting her money chiefly in the Irving Savings Institution and not from any moneys obtained by her from this business. And her statements in this respect appear to be supported by the bank accounts, for in October, 1883, she did deposit with this institution the sum of $12,500 which was within $3,500 of the residue of the sum of $31,000, which she stated she-had before purchasing the property in controversy. The accounts instead of being in conflict with her evidence are entirely consistent with that given by her upon the trial, for it is not contended, that she took any money from the plaintiff’s business after February, 1883. And the court was, therefore, fully warranted in accepting her testimony as the truthful disclosure of what had actually taken place. And the force of this evidence was in no manner diminished by the fact that after the year 1883 large deposits appear to have been continued by herself in her accounts with this particular bank. The judge presiding at the trial, therefore, had sufficient proof before him to sustain his conclusions not only that no part of the plaintiff’s money went into the purchase-price of this property, but that it was purchased and paid for by the defendant with her own money.

An exception was taken to the exclusion of the answer to the-question propounded to the plaintiff, whether he at any time discovered the amount that the defendant had deposited in the various savings banks, and if so, how much. But this exception, without discussing or considering whether it was well taken or not, is fully disposed of by the evidence afterwards received from the plaintiff in the course of his own examination, in which he stated that he saw these bank books in 1879, and that there was deposited in the banks $36,000. That fully answered all that was expected to be obtained by the question which was overruled. It appeared by the evidence that the plaintiff was in the service of the postoffice in 1874, and the inquiry was made of him under what circumstances he went into the postoffice. This was objected to as being immaterial, but the question was allowed to be answered, notwithstanding the exception of the plaintiff. The answer in no manner affected the controversy between these parties. It had no relation whatever to this business, or the purchase or payment for this lot, and receiving it in the case produced no injury to the plaintiff in the prosecution of his action. It appeared by the evidence of the defendant that she made an addition to the building standing upon the lot in the year 1885, at an expense of $8,000, for which she obtained the money upon a mortgage. During this time, and from early in the year 1883, the plaintiff resided with her on these premises, and these additions were made with his knowledge. And it was a circumstance of some importance in the case to prove these facts, for they tended to indicate an acquiescence on the part of the plaintiff in her title to the land. In this connection she was asked what the repairs and additions amounted to. This was objected to as immaterial, but the answer was allowed to be taken, and to that the plaintiff excepted, and she stated that the contract price was $5,300. This fact, though not very important, was sufficiently pertinent to the use and - management of this property to entitle the defendant to make proof of it as she was allowed to do. The defendant testified that she leased other premises in Chatham street in 1885. And after giving this evidence she was asked whether she went into business under that lease, and answered that she did. This was objected to as immaterial. The objection was overruled, and the plaintiff excepted. It probably was, as the objection stated, not material to any part of the case to prove this fact, but receiving the evidence could have been of no possible detriment to the plaintiff’s case, and for that reason the exception is of no benefit to him. Upon the trial she testified that she had conveyed this property to her sister, Margaret Barnes, and she was asked whether her sister paid her anything for conveying it to her. The answer to this question was excluded, and the plaintiff excepted. The ruling was entirely proper, for no issue was made by the pleadings in the case relative to this conveyance, or to its legal validity. There was, accordingly, no error in excluding this answer. These are the only exceptions which have been urged upon the attention of the court as including erroneous rulings made upon the trial, and it is entirely evident from them that the plaintiff has no just ground of complaint concerning these decisions. The case as it was disposed of at the trial was very well sustained, and the judgment, should be affirmed, with costs.

Van Brent, P. J., concurs.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    James Galway, Resp’t, The Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Railroads—Elevated—Damaos to easements.
    The plaintiff owned five lots on the east side of Sixth avenue, New York city, running northerly from the corner of Eifty-seventh street. The defendant, afterwards leased hy the other defendant, the Manhattan. R. Co., erected a railway, and afterwards put up station buildings, beginning at a point twenty-four feet eight inches south of plaintiff’s north line, for a distance along the avenue of 255 feet. The railway and structure-filled all the street and infringed slightly on the east sidewalk. The station buildings, with the railway, reached a height of twenty feet at the-point opposite plaintiff’s north lot. A floor extended the whole distance of 255 feet, shutting out light and air. Plaintiff recovered for the depreciation of his property.' Held, proper.
    2. Same.
    The plaintiff was entitled to recover upon the fact that the structure-extended north of his property as described, since the structure was continuous, and also covered the whole street. It was not remote, and on the. evidence was the cause of substantial damage.
    3. Same—Evidence.
    A witness gave evidence of the value, had the structure not damaged' them, of two lots lying north of plaintiff’s, and immediately adjoining them. Held, proper, although, perhaps, not very material.
    4. Same.
    Evidence was given of posts and columns between Fifty-eighth and Fifty-ninth streets, a part of the continuous structure. Held, competent.
    Appeal from a judgment recovered on trial at the special term.

      Davies & Rapallo, for app’lts; John E. Burrill and J. Archibald Murray, for resp’t.
   Daniels, J.

The plaintiff is the owner of five lots of land on the easterly side of Sixth avenue, which is a street of the width of 100 feet in the city of Hew York. They extend northerly from Fifty-seventh street 125 feet, 5 inches. ' He became the owner of the four northerly lots in 1868 and of the lot upon the corner in 1871. The Metropolitan Elevated Railway Co., under the authority of an act of the legislature of this state, erected an elevated railway through the avenue ending in the vicinity of Fifty-ninth, street. It went into operation in June, 1878. At this termination-of the railway a station was constructed extending from a point 24 feet, 8 inches south of the northerly line of the plaintiff’s land for a distance along the avenue of 255 feet The structure of the' railway itself, as well as of the station, was 14 feet, 8 inches above the surface of the avenue and it all extended upwards a space of nearly 6 feet to the surface of three railway tracks which were constructed and operated in the business of the company, At the-sides of the tracks platforms were made and buildings erected to-complete therewith the passenger stations of the company. This structure extended across the surface of the traveled part of the street and to the extent of a foot and about two inches inside of the sidewalk, where it was in part sustained by columns or pillars. The upper surface of the structure was covered with plank or boards intercepting the passage of the light and the air. And other buildings besides the rooms occupied as the station were erected towards the northerly termination of the structure.

Another building was erected southerly, extending to the distance already stated south of the northerly line of the plaintiff's lots. This building was one story in height and used by the persons in the employment of the railway company, as well as the others northerly of the station buildings, in the course of its management and business. After this structure was in this manner erected, the Metropolitan Railway Company leased its road to the Manhattan Railway Co., the other defendant, for the period of 999 years. This lease was made in May, 1879, and the structure, including the road, has been operated under its provisions since that time and maintained in this manner in front of the plaintiff’s premises. Southerly of the building, standing partly in front of the plaintiff’s northerly lot, was the structure of the railway itself, consisting there of the same three tracks and covered substantially in the same manner, with a walk on each side, which extended the structure over the street for the distance of thirty-eight feet and within thirty-one feet of the westerly line of these lots. They were unimproved, but it was alleged on behalf of the plaintiff that they had been depreciated in value by these structures and their use and operation in the business of the railway company. And to obtain redress for that injury, and the restraint and prevention of its continuance, were the objects for which the action was instituted.

Evidence was given upon the trial to the effect that*the value of these lots had been greatly depreciated by the construction and use of the railways and the station. And the court under that evidence held that the plaintiff’s property had been depreciated in value from these structures and their use as railways and station buildings, to the extent of $20,000, and directed a judgment restraining the further use of the property in this manner, unless the defendants should pay to the plaintiff this sum pf money upon receiving a conveyance, or grant, of the property of the plaintiff and the easements appurtenant to it, which had been appropriated by the defendants for the purpose of their structure and railroad, as that had been authorized by law. And judgment to that effect was entered upon the decision.

To support the appeal the objection has been taken that the court in its decision required the defendants to pay the plaintiff for the depreciated value of his property, arising out of the construction and maintenance of the station and the buildings upon it, which were northerly of the north line of his property. But if this has been done, as the fact was that the structure extended continuously from a point twenty-eight feet and eight inches south of the northerly line of the plaintiff’s lots, it would not appear to include an erroneous allowance, if in truth and in fact the property was injured by this extension of the structure over the surface of the avenue. In that respect there would be a manifest distinction between what was said in Kings County Fire Ins. Co. v. Stevens, 101 N. Y., 411, 417; Hier v. N. Y., West Shore, etc., R. R. Co., 40 Hun, 310, and Rummel v. N. Y., Lackawanna, etc., R. R. Co., 30 N. Y. State Rep., 235, and the present case, which is peculiarly distinguishable therefrom by the facts included in it. For in those cases the obstruction complained of was so far distant from the property in question as not to be the source of any substantial injury to it. While in this case, if this continuous structure interfered with the passage of light and air to and from the plaintiff’s property, remuneration for that injury, so far as that was the effect, would be due to him under the well settled principles which have become applicable to this class of cases. But it is evident from the language of the decision which has been made that the court did no more than to include, or intend to include, compensation to the plaintiff for the loss or injury that had been sustained by the diminution in value of his lots by the structure immediately in front of them and adjacent to them. A full and minute description of this entire structure, extending from Twenty-seventh street to near Fifty-ninth street upon Sixth avenue, is contained in the decision as facts found by the court. And so is the manner and use to which the property has been devoted not only as a station, but as a termini of the road, and in the passage and repassage of trains upon the railway track.

And then in the further finding upon which this allegation of error has been based, the court has added:

Tenth. That said several acts and doings of the defendants hereinabove described and complained of have been without right or authority and without the consent of this plaintiff; and said defendants have in manner aforesaid, and by the acts aforesaid, obstructed said avenue, streets and sidewalks aforesaid in front of and adjacent to the plaintiff’s premises, and have deprived plaintiff of his property in said avenue and streets, and of the easements appurtenant to his said premises, and have obstructed his said premises, and the access and approach of light and air thereto, to which he is by law entitled, and have deprived him of the free and uninterrupted passage and circulation of light and air through and over said streets and avenue aforesaid for the benefit of his property hereinbefore described, and have thereby diminished the value of this plaintiff’s said premises.

But it has not been stated in this conclusion of fact, neither is it to be inferred from its language, that the court intended to or did make any actual allowance to the plaintiff on account of this structure not in fact affecting or injuring his property. On the contrary the statement is that the defendants had, in the manner stated, and by the acts aforesaid, obstructed said avenue, streets and sidewalks aforesaid in front of and adjacent to the plaintiff’s premises, and have deprived plaintiff of his property in said avenue and streets, and of easements appurtenant to his said premises, and have obstructed his said premises and the access and approach of light and air thereto. And that as a matter of fact the evidence proved' was the truth. And if it was, the court could do no less, in a proper disposition of the action, than to compensate the plaintiff for the obstructions which had been erected and maintained in front of and adjacent to his land. The effect, as it has been in this manner expressed in the decision, was direct by way of injuring and depreciating in value the plaintiff’s property. And it was for the injury resulting from this source, and from no other, that the court concluded that the plaintiff’s loss had extended to the sum of $20,000.

This is the only construction which can fairly be placed upon the language of this finding of fact, and it clearly distinguishes this case from the others which have been mentioned where the obstructions complained of were in no manner connected with the property in controversy and produced no direct or injurious effect upon it. Here the case is entirely different. The structure in great part complained of was commenced southerly of the northerly line of the plaintiff’s property, and with the erections made upon it extended therefrom to its termination near Fifty-ninth street. It was one continuous erection from which it would uot be unreasonable to presume that his property was injured in the manner described by the court.

The language referred to in the eleventh finding, that the defendants threaten and intend to continue to maintain, use and operate the said railroad, stations, structures and other erections, and will thereby continue to injure and damage the said plaintiff and his said property, justifies a construction of the preceding finding no broader or extended than that which has already been given to it. The language is similar in its effect, and discloses no intention on the part of the court to remunerate the plaintiff for anything beyond the actual injury sustained by him in consequence of this structure and the uses made of it and of the railway in front of his property. The case in these respects seems to have been properly disposed of by the justice presiding at the trial.

The witness O’Reilly had his attention directed to two lots immediately north of the plaintiff’s property and fronting on the east side of Sixth avenue. These lots were twenty-five feet front by ninety-five in depth, which were the precise dimensions of the plaintiff’s northerly lot. And he. was asked whether he estimated the value of these two lots, which had been offered to him for the price of $23,000 each. The defendant’s counsel objected to the question as immaterial, but the objection was overruled, and an exception taken to the decision. And he added that he valued these lots at $20,000 apiece if he could use them for the purpose he intended. This ruling of the court has been earnestly insisted upon as erroneous. And the case of Sixth Avenue R. R. Co. v. Metropolitan Railway Co., 56 Hun, 182; 30 N. Y. State Rep., 521, has been referred to as sustaining the correctness of this objection. But it is far from doing so. For the property concerning the value of,which inquiries were there held to have been improperly allowed was distant from and in no manner connected with that which was involved then in controversy. While here the two lots to which the attention of the witness was directed were situated the same as the plaintiff's northerly lot, and sustained substantially the same relation to the structures of the defendants. And while the evidence of their valuation may have been of no service whatever in the case, as the attention of the witness was 'afterwards brought to the lots owned by the plaintiff, there was no substantial error in taking the answer of the witness. Indirectly, it necessarily did include the plaintiff’s northerly lot, and in that manner bore a relation to the .controversy in the action. And that, as well as the other facts, substantially distinguished this part of the case from the inquiries held to be improperly allowed in the instance already cited. An exception was also taken to the ruling allowing general evidence to' be given of the manner in which the property had been improved and occupied in this vicinity and upon Fifty-seventh, Fifty-eighth and Fifty-ninth streets. But, although having no very direct effect upon the case, it was competent for the court to receive it as indicating the probable uses and advantages which might have been derived by the plaintiff from the improvement of his own property. A similar objection was taken to proof of the posts orcolumns between Fifty-eighth and Fifty-ninth streets, supporting a part of this structure. But as this was a portion of that which formed the subject of complaint, and from which the plaintiff’s property had probably received injury, there was no impropriety in permitting this evidence to be given. ¡Neither was there in allowing the photograph of, the Sherwood building, on the southerly corner of Fifty-seventh street and Sixth avenue. In fact there was no evidence received by the court which it can be consistently held, in view of what was said in the case of the Sixth Avenue R. R. Co., which should have been excluded by the court. If it did not directly bear upon the controversy included in the action, it had an indirect effect upon it, and that justified the court in receiving it.

The allowance made by the judgment for the diminution in value of the plaintiff’s land by the maintenance and use of this structure in front of it has been objected to as unwarrantably large. But the evidence of the witnesses, O’Eeilly and Fox, who were engaged in business ’ as dealers in real estate, was that the difference' in the value of these lots, as that value would have been if these structures had not been placed in the street, and their value with the street occupied and obstructed in this manner, was much greater than that allowed by the judgment. And their testimony upon this subject was likewise sustained by that of the plaintiff himself. Bernard Smyth and William J. Eoome, who were examined as witnesses on behalf of the defendants, and were likewise engaged as dealers in real estate, testified that, in their judgment the plaintiff’s lots were worth the sum of $150,000 as they were situated, and had received no substantial injury from these structures and their use in the manner already mentioned. And other evidence was given by witnesses produced by the defendants to the effect that property lower down the avenue and used for business purposes, had not been depreciated or injured by the erection of the railway and its use in the passage and re-passage of trains. But this evidence, with that given on behalf of the plaintiff concerning the important effect of these structures and this use upon his lots, created a direct conflict, which it was for the court-at the trial to settle and determine. And the probabilities suggested by the leading facts located at this point cannot be said to be inconsistent with the conclusion which he adopted.

For it is hardly reasonable to suppose that a structure of the character described, extending over the entire surface of the avenue between the curbs and upwards of a foot into the sidewalk itself where the pillars or columns supporting it had been placed, could be erected as this was and used for the objects of railway trains in front of and adjacent to the plaintiff’s property without producing substantial in j uiy to it. As it was situated, for the distance of twenty-eight feet and four inches he was wholly deprived of the unobstructed use of the street with the exception of eighteen feet and ten inches .in width of the sidewalk. And below the point to which that obstruction extended, the street was obstructed by the railway, and the passages connected with it, to within thirty-one feet of the front of the plaintiff’s land. And the evidence tended to prove that both the light 'and the air was excluded from, the premises by these structures, and smoke and cinders distributed over them from the trains constantly passing and repassing upon the railway with the exception of a few hours between midnight and morning. The probabilities of the case were with the plaintiff. And under this evidence it was for the court to determine what would be a fair measure of compensation to him for the diminished value of his property from these sources. And in making this allowance the fair effect of the evidence, as the court was authorized to accept and act upon it, has not been transcended. And the judgment should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


author: Brady, J. Van Brunt, P. J. (dissenting)

text:
    Elise Kohler et al., Resp’ts, v. John Lindenmeyr, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Partnership—Limited—Contribution oe special partner.
    Prior to November, 1885, a firm had existed under the name of P. Lenk & Co., in which H. was special partner. In August and September, 1885, the defendant lent the firm money and took its notes. In Novem- • her an attempt was made to form a partnership with H. and diféndant as special partners. To the second firm defendant contributed the notes above mentioned. In an action to hold defendant as general partner, Held, that his was not a payment in cash and that he was liable.
    3. Same—Evidence.
    In order to show the facts plaintiff put in evidence the books of the old firm, which showed the entries of defendant’s notes and the appropriation of notes for the same amount to the new firm. Held, no error; for defendant gave no evidence at all on the subject and the entries were at least prima, facie evidence enough to put defendant upon the defense.
    8. Same.
    The fact that defendant was only a special partner and hence had not the books of the new firm under his control or their entries did not make such entries improper evidence as to him, for he had the right to examine the books, 4 B. S., 8th ed., 8495, and ascertain what entries had been made therein as to capital.
    (Van Bbunt, P. J., dissents.)
    Exceptions ordered to be heard in the first instance at the general term after the direction of a verdict.

      Samson Lackman, for pl’ffs; Lucien Birdseye, for def’t.
   Brady, J.

The object of this action was to establish the liability of the defendant as a general partner of the firm, of P. Lenlc & Company, wine dealers. An attempt was made on the 16th of November, 1885, to establish a limited partnership with the defendant Lindenmeyr and Otto Huber as special partners. The action was originally brought against both of these persons, but Huber having died it was continued against the present defendant, a suggestion of Huber’s death having been made upon the record at the time of the trial. The gravamen of the plaintiff’s case is the alleged falsity of the statement that the capital furnished by the defendant was contributed in cash as stated in the certificate and affidavit filed under the statute . relating to the subject. Upon the trial the plaintiffs sought to establish the averment of falsity suggested, and when they rested a motion was made to dismiss the complaint; but no grounds were stated of which that motion could be predicate and on which it should be granted. The counsel for the defendant then produced and read in evidence the affidavit of publication from the World and Register of the statutory certificate and other documents to establish the validity of that performance; in other words compliance with the statute relating to the subject, and rested his case. No question was raised about the regularity of that proceeding, the plaintiff’s counsel, as already suggested, resting entirely upon the proposition that the statement of capital contributed was false, the same not having been paid in cash as required by the statute and the adjudications relating to the subject.

The objections interposed on behalf of the defendant relate only to the sufficiency and competency of the proof to establish the asserted falsity of the certificate.

It appears conclusively that before the special partnership mentioned was formed there had been in existence another partnership ■ of a like character under the same name of P. Lenk & Co., in which Otto Huber was a special partner, but the defendant was not; that on the 12th of -August, 1885, the defendant lent or advanced to that firm $7,000 and received a promissory note of the firm for that amount, and further that on the 28th of September following he lent or advanced to the firm the further sum of $13,000 and received another promissory note of the firm for that amount; and it appears from, the testimony given on behalf of the plaintiffs that when the new partnership of which the defendant was a special partner was formed, he appropriated the notes already mentioned, held by him, amounting, as we have seen, to $20,000, as his capital in the firm, and this was the mode in which he attempted to comply with the statute and to contribute cash to the new copartnership of which he became a member. These facts could not be proved without resort to the books of the old firm, and they were used, it is evident, for that purpose and for that purpose only; that is to say, to prove the giving of the notes mentioned for the sums of seven and thirteen thousand dollars; and the books clearly show the entries of the notes mentioned and the appropriation of notes of a similar amount 'to the new firm, and not the amount of them in cash or any immediate conversion of them into cash, inasmuch as the amount of cash to the credit-of the new firm established by reference to the books of the new firm shows conclusively that there was no such sum to its credit in hand or in bank.

The learned counsel for the defendant thinks that these entries were erroneously admitted, inasmuch as the defendant was not a member of the old firm; but they were entries relating to his transactions with the old firm and to his advantage and benefit, and from which, in the absence of any proof to the contrary, it should be presumed that the notes mentioned were issued and delivered to him as stated upon the books. At all events they were prima facie evidence thereof, and there is nothing in the case to gainsay its truthfulness. It may be said in addition that if the capital was not contributed in the manner stated according to the books of the new firm as shown by Mr. Davidson, sworn on behalf of the plaintiffs and who was an attorney at law and an accountant, it was not paid at all, because, as already suggested, he shows that the cash on hand on the 16th of November, 1885, and the bank balance united, amounted to but forty-six hundred and twenty dollars and eighty-three cents only. And this evidence was quite sufficient to put the defendant to his answer, which was made only by showing, as already stated, the publication of the notice and other papers required by the statute relating to the formation of special partnerships nothing more. Under these circumstances the evidence properly received seems to show conclusively that the sum the defendant purports to have contributed in cash was not paid in cash, and he therefore became, as a result, a general partner.

It is idle to urge the proposition upon which the counsel for the appellant lays some stress, that the books of the partnership of which the defendant became a member on the 16th of November; 1885, were not under his control, and that he could not direct the making, altering or erasing of any entry in the books, even under the original statute, as amended by § 17 of chapter 414 of the Laws of 1857.

He could not employ or discharge a clerk or bookkeeper or govern him in the performance' of any duty or service to the firm perhaps, but he had a right under that section from time to time to examine into the state and progress of the partnership concerns and might advise as to their management and should have the same rights and remedies in the respects named in the statute as any other creditor. He might also negotiate sales, purchases and other business of the partnership. He was prohibited, it is true, from transacting business on account of the partnership except as stated in the section, and could not be employed for that purpose as agent, attorney or otherwise; but that he had a perfect right to examine the books within these lines for the purpose of ascertaining what entry had been made with regard to his capital there seems to be no question whatever. In answer to the facts and circumstances arrayed against him in reference to the payment of his capital as sworn to by him in the certificate, it was incumbent upon the defendant to offer some evidence to overcome it.

It is well established that the entries in partnership books áre prima facie as between the parties. Cheever v. Lamar, 19 Hun, 130; 1 Phillips on Evidence, 449; 2 Wharton on Evidence, § 1132. And it is said by a learned writer that in the absence of an express agreement to the contrary every partner has a right without the permission of his co-partners to inspect, examine and make extracts from all the books of the firm. 1 Bindley on Partnership, 404 ; Bates on Partnership, § 378.

As a special partner, as we have seen, he might from time to time examine into the state and progress of the partnership concerns and advise as to their management, 1 E S., 766, § 17; vol. 4, 8th ed., p. 2495, and he certainly could look after his capital and he was bound so to do. Strict compliance with the statute in reference to special partnerships is demanded. As said by Judge Folger in Van Ingen v. Whitman, 62 N. Y., 520: “The statement of the amount of the cash payment is required so that the public may guage thereby the extent of its dealings with the firm. The affidavit is called for that the public may have reliance upon the existence of the fact of payment.

The statute is thwarted, the public is misled, and its reliance is misplaced and deceived, as much when there is an unintentional untruth as when there is an intentional one. This statute does not set out to deal with motives, but with acts and their results; and it guards the public, not by requiring good intentions, but a certain act done in a certain mode, and a true statement that it has been done thus.” When the supposed true statement therefore is fairly and successfully impugned as false, it behooves the assailed partner to establish by reasonable evidence that the assault is unwarranted, and the statement true in fact.

For these reasons the exceptions should be overruled and judgment upon the verdict ordered for plaintiff.

Daniels, J., concurs.

Van Brunt, P. J. (dissenting)

I think that the admission of the entries in the books of the old firm was error. The defendant had nothing to do with those books or the entries therein contained. He was not a partner of the firm whose books they were, and because he subsequently became a special partner he did not become chargeable with notice of the entries which had been made previously in the books of the firm. I therefore dissent.

Exceptions overruled and judgment upon the verdict ordered for plaintiff.


author: Brady, J.

text:
    The Hong Kong & Shanghai Banking Corporation, App’lt, v. Thomas H. Campbell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Attachment—Examination of third person as to certificate—Code Civ. Pro., § 651.
    In order to justify an examination of a third person .under § 651 of the Code, very strong reasons must be given. The proceeding is collateral and despotic, and a person is to be interrogated on a proceeding in which he is neither plaintiff nor defendant, and yet his examination can be used against him.
    Appeal from an order which vacates an order granted for the examination of William B. Cooper, Jr., on the ground that there is reason to suspect that a certificate made and given by said. ■Cooper concerning property of the defendants to the sheriff was untrue.

      Amasa A. Redfield, for app’lt; John M. Bowers, for resp’ts.
   Brady, J.

The application for the examination of Mr. Cooper was made § 651 of the relating to proceedings attachments, which provides that if it is made to appear by affidavit to the satisfaction of the court, or a judge thereof, that there is reason to suspect that a certificate given is untrue, the court or judge may make an order directing the person giving such certificate to attend at a specified time and place and submit to examination, under oath, concerning the same. It was therefore incumbent upon the plaintiff, after the certificate had been delivered by Mr. Cooper, to show to the satisfaction of the court that the certificate was untrue.

It may be, as suggested by the counsel for the respondent, that .a prima facie case was made when the affidavit upon which the order was first obtained was presented to Justice Ingraham. The motion to vacate, however, was made on an affidavit of Mr. Cooper .and a prior order vacating an order for the examination at the instance of the same plaintiff, and other papers which were submitted with such affidavit. On these papers Justice Beach, having the whole subject before him, arrived at the conclusion that there was not only no reasonable ground to suspect the certificate to be untrue, but that in two litigations, one of which went to the court of appeals, Cooper’s right to the ownership of the fund which it was charged he had received had been substantially established.

The allegation in the affidavit upon which the order for Mr. Cooper’s examination was obtained is to the effect that between June, 1884, and May, 1890, he had received large consignments of goods for account of his principals, inferentially the attachment debtors, and sold the same and received the proceeds thereof, amounting to over $200,000. The affidavit was made by Mr. Bedfield, who proceeds to state his knowledge thus:

Deponent has knowledge of the foregoing facts from the testimony of Cooper himself in two certain actions brought in this court, and finally determined; that by the final judgment of the court in said action the amount of said surplus, to wit, fourteen thousand and odd dollars, was awarded to the said Cooper as against the plaintiff, with the distinct proviso that such award should be “ without prejudice to any claim thereto against said attachment debtors or their assignee or their creditors.” The affiant proceeds to say further that, “ he believes that such fourteen thousand and odd dollars, together with a sum not less than twenty-five thousand’ dollars, the proceeds of the other cargoes of sugar and hemp above referred to, is now due and owing from Cooper to the attachment debtors.”

It is quite apparent that the foundation for granting the order was the $14,000, no facts being set out to justify the belief that Mr. Cooper held in his hands any other money belonging to the defendants against whom the attachment was issued.

Mr. Cooper’s affidavit in response to this, and upon which in part it was sought to have the order for his examination vacated, shows that in June, 1889, the presiding justice of this court vacated a kindred order, without prejudice to the rights of the plaintiff to renew on further affidavits and paying ten dollars costs. These costs have never been paid. He further alleges that the question as to the fund of $14,000 was determined in an action brought by the plaintiff herein against him, and which went to the court of appeals and is reported in 114 N. Y, 388; 23 N. Y. State Rep., 787.

It is, also, alleged by Mr. Cooper that it became necessary for him, in order to recover the $14,000, to show that the defendants in this action were indebted to him in an amount exceeding that sum, and not he to them, and a finding to the effect appears to have been made by a referee, as shown by his affidavit.

It also appears that Mr. Cooper brought an action against the agent of the plaintiff and another concerning the fund of $14,000 mentioned, the right to which was litigated by the plaintiff in the action reported in volume 114 of the New York Reports, as already stated, and the plaintiff’s agent also contested Mr; Cooper’s right to the fund in the action which was commenced by him as just'mentioned.

Justice Lawrence in the course of the opinion in that case said that while the court of appeals in the case, supra, was careful to decide that it did not pass upon the rights of Cooper as against his principals or" their representatives, it was distinctly held that as between the banking corporation and Cooper the latter was entitled to the fund; and the attempt of the banking corporation subsequently to come in as a creditor of Martin, Dyce & Co. or Martin, Turner & Co. appeared to be an attempt to avoid the effect of that direct adjudication. And Justice Beach in disposing of the motion from which this appeal has sprung refers to these two cases, namely, the case of the Hong Kong & Shanghai Banking Corporation v. Cooper, reported as already stated in the 114th of New York; to the action brought by Cooper against Palmer and others for the recovery of the deposit, and to the opinion of Justice Lawrence reported in the Law Journal of April 26, 1890; and upon the effect of them vacated the order for the examination,, it appearing, as he no doubt held, fromathese litigations and from the allegation made by Mr. Cooper in response to the charges made against him it seemed to be established, that he was not indebted to the attachment debtors in any sum whatever but that they appeared to be indebted to him.

The learned counsel for the appellant seems tó be under the impression that on a motion such as this the court has the power and it becomes its duty to investigate and determine the truth of the •allegation that the person proceeded against is a debtor or has property of the attachment debtors, and therefore insists that judgments referred to affecting the ownership of the fund of $14,000, already mentioned, are of limited range, and only decide the question of ownership as between the plaintiff in this action and Mr. Cooper, leaving the question of his indebtedness to the firms already mentioned, and who are the debtors of the plaintiff, untouched by any decision affecting them in that relation. Assuming this to be so, and that the 651st section of the Code substantially so declares, nevertheless such investigation must rest upon the falsity of the certificate, unless a refusal be made to give one. There must be reason to suspect that the certificate given was untrue, or that it fails fully to set forth the facts required to be shown. There should appear, at least, rin the attempted enforcement of such assumed remedy, first, that there is reason to believe the debtor has property belonging to the debtors in the attachment, and that the person proceeded against has not given a truthful certificate in relation to it, or that the certificate itself fails fully to set forth the facts required to be shown. In this case, under all the facts and circumstances disclosed on behalf of Mr. Cooper, there seems to be no satisfactory reason for suspecting that the certificate given by him is untrue; and, therefore, the disposition of the motion in the court below was correct.

It appears from the note to the section of the Code referred to, in Throop’s edition of the Code, that it was prepared as a substitute for the remainder of the section as it formerly existed, the design being to change the rule which was then laid down in several cases, that the substantial effect of the previously existing section was that if the certificate were given there could be no examinanation, even although it were false.

It is somewhat embarrassing to know exactly what disposition to make of such an application as this, where there are facts and' •circumstances coupled with the denial of the person proceeded against tending to show that there is no property in his possession belonging to the debtor.

The proceeding is collateral and despotic, inasmuch as the person proceeded against when the statute is enforced is to be interrogated about the claim, subject to all the machinery of the law in that regard, in a proceeding in which he is neither plaintiff nor defendant, but in which his examination can be used against him. It would seem that a very strong case should be presented before •such scrutiny should be allowed; indeed some proceeding in the name of the attachment debtors should be required to be inaugurated in order that the issues, whatever they might ■ be, as to the ownership of the property supposed to be held could be determined in the ordinary course of procedure to which litigants are subjected.

Under all the circumstances presented, and discussed, therefore,, it is thought that the order appealed from should be affirmed,, with ten dollars costs and the disbursement of the appeal.

Van Brunt, P. J., concurs.

Daniels, J.—I agree to the result


author: Pratt, J.

text:
    In the Matter of the Application of The Citizens’ Water Works Co., App’lt, v. David Parry et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Emiment domain—Water works companies.
    Before lands or water rights can be taken by a water works company by condemnation for the purposes of its incorporation in supplying a town or village and its inhabitants with water, there must be a contract with the. town or village authorities.
    2. Same.
    The petition alleged the due incorporation of the petitioner ; that the-lands were necessary for its use, but did not allege any contract with town or village authorities. The answer admitted that petitioner was duly incorporated, but denied that there was any contract, and petitioner has conceded that there was none. Feld, that there could be no presumption that, a contract had been entered into with the town authorities.
    Appeal from judgment in favor of defendants directed by the court.
    Proceeding to condemn certain rights in a stream claimed by defendants.

      Calvin Frost and C. E. Tracy, for app’lt; A. H. F. Seeger, for resp’ts.
   Pratt, J.

The petition sets out that the plaintiff is a duly incorporated company for the purpose of furnishing pure and wholesome water to the town of Highlands in Orange county. That it requires the land described in the petition for the purposes of the corporation, and that they cannot agree with the owners upon a price to be paid therefor. There are other allegations not necessary to be mentioned, but there is no allegation that the consent of the town or village was obtained before the filing of the articles of incorporation, as required by chap. 737 of the Laws of 1873, and no allegation that they have ever entered -into a contract with the authorities of any town or village to furnish water for hydrants for sanitary purposes.

The appellant claims that by the admission of the defendants that the appellant was duly incorporated, it must be presumed that-the consent required'under the act of 1873 was given, and that a contract express or implied was entered into as required by the-statute, to wit, chap. 415 of Laws of 1876, and chapters 422 and 423 of Laws of 1885; but the question whether a contract had been made was put in issue by the defendants, and it was conceded by the petitioner that no contract had been made.

There has been so much legislation upon this subject and the' acts have been so inartificially drawn that it is difficult to determine the legislative intent.

It may well be that the legislature intended to make a distinction between towns and villages, and the inhabitants thereof,, and between furnishing pure and wholesome water for the inhabitants and furnishing water for hydrants and sanitary purposes under a contract to be made with the authorities of such 'towns and villages.

Under the act of 1873, with the consent of the authorities, a corporation could be formed for the purposes of furnishing pure and wholesome water to individual inhabitants, but such corporation could not condemn land.

Merely furnishing water to inhabitants was in its nature a private enterprise, but when it comes to the question of furnishing water for public purposes, like hydrants, which must be paid for by taxation, the case is different and before condemnation proceedings can be instituted there must be a contract with the authorities.

It is to be noted that the first act that authorizes such a corporation to acquire land by condemnation was passed in 1876, chap. 415; that act expressly provides that there must be such, a contract and the same requirement is contained in chap. 422 of Laws of 1885.

I cannot see that the decision in the case of the Stamford Water Co. v. Stanley, 103 N. Y., 650, helps the appellant out of the difficulty.

It does not appear from the report of this case that the plaintiff had not made a contract with the authorities of the village, and, besides, the question there decided was that the act authorizing condemnation proceedings was constitutional.

I can find nothing in this case that authorizes a presumption that any contract has been entered into with the town authorities, as the contrary is proved.

The respondent had the right to insist before his lands were taken that the statutes in that regard should be strictly complied with.

The fact that in every one of the statutes that confer upon such corporations the right to condemn property there is a clause making a contract with public authorities a condition precedent to the exercise of such right, constrains me to hold that the legislature . intended to make a distinction between furnishing water to individuals and to the village and town for public use, which was to be paid for by taxation.

If these views are correct, the judgment must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Ludlow W. Valentine, by Guardian, Resp’t, v. Herman T. Richardt, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

      1. Deed—Fraud—Money judgment.
    In an action to set aside a conveyance alleged to have been procured by this defendant from plain tiff's mother by fraud, undue influence and domination, such fraud and undue influence were proved, but it also appeared that the other defendants were bona fide purchasers and mortgagees. Held,, that the equitable cause of action failed as to the bona fide purchaser, but the court had power to retain jurisdiction so as to give relief by a money judgment against this defendant.
    3. Same—Proof of fraud.
    Proof that defendant was the physician of the grantor, and maintained illicit relations with her; that he had procured a former deed, which he returned when she commenced an action to set it aside; that she was of weak mind, and under unfounded apprehensions created by defendant; and that he had obtained moneys from her for which she drew a receipt at his dictation, is sufficient to sustain a finding of fraud and undue influence in the procurement of the deed in question.
    Appeal by defendant Eichardt from so much of the judgment herein as awards a money judgment for $20,063.97 against him.

      W. C. Beecher, for app’lt; Horace Secor., Jr., for resp’t.
   Barnard, P. J.

This action was brought to set aside a certain deed of conveyance which was alleged to have been procured from Catharine A. Valentine by fraud, undue influence, domination and without consideration. Upon the trial it was proven that the property had passed into the hands of a bona fide purchaser, and was mortgaged to a bona fide mortgagee, and as to the parties the complaint was dismissed.

The jury found that the deed was obtained by the defendant Eichardt by undue influence, and that he paid her no consideration therefor. Upon these findings the court gave a money judgment against Eichardt for the value of the land. Eichardt appeals, and thus there is presented the question whether the money judgment was proper, and whether there is sufficient evidence to sustain the verdict of the jury as to undue influence. The plaintiff is the infant heir of the grantor. If there had been no subsequent purchaser in good faith, the heir would have been entitled to the land by the destruction of the deed procured by Eichardt by undue influence. The deed gave no title to Eichardt as against the grantor or her heir. The recording laws protect a purchaser from one clothed with the usual evidence of title who takes the title in good faith and for a valuable consideration. This rule applies as well to title to personal property. One who invests another with an authority to dispose of it must yield to the rights of a bona fide vendee even if the power or evidence of title was procured by fraud. Weaver v. Barden, 49 N. Y., 286.

As between the parties the deed was void, and the death of the grantor did not give it any greater force then if she had lived to bring the action herself. Where the equitable cause of action failed as to the bona fide purchaser, it was still within the power of a court" of equity to retain jurisdiction so as to give relief by a ?ersonal judgment. Van Rensselaer v. Van Rensselaer, 113 N. Y., 207; 22 N. Y. State Rep., 947.

The money judgment was not given in affirmance of the deed. It was given for the land, which as between the plaintiff and Eichardt belonged to plaintiff. The objection therefore to the money judgment cannot be sustained. There was sufficient proof of undue influence. The defendant Richardt was a physician. He had obtained a deed of the same property before, which the deceased lately had brought an action to set aside. Richardt met this action by deeding the property back. He obtained another deed, and within a short time after sold the same to a bona fide purchaser. The condition of the grantor is made the subject of much evidence Her relation with Richardt is also made the subject of proof. The grantor was of weak mind, and was under unfounded apprehension. There is reason to believe from the evidence that these apprehensions were created by her physician. He is proven to have obtained $10,000 besides the house in bonds. He is proven to have obtained a receipt for moneys in respect to these transactions, which were false and were manifestly dictated by Richardt and written and signed at his dictation by Mrs. Valentine. The expression of that receipt manifestly shows this. The jury could find nothing in the case to uphold such transactions as these between physician and patient. Mrs. Valentine died insolvent, and was made so by the defendant Richardt. The record of proceedings for a recovery in an action in which Richardt was not a party was admissible. An affidavit of Richardt was annexed to the papers, and in this affidavit Richardt was called upon to deny the receipt of the $10,000 or to explain it. He did not deny it, but only denied its fraudulent receipt. Other evidence of the fraud and undue influence by which it was obtained was given on the trial.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    The People, Resp’ts, v. James E. Morgan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)
    Bubglaby—Possessing bubglab’s tools—Penal Code, § 508.
    Where the instruments found on a person are adapted to the commission of the crime of burglary, and the circumstances justify a finding of an intent to use them to commit the crime, the case is one within § 508 of the Penal Code, even if the instruments could be used innocently in legitimate business. It is not necessary that they should be of such a character that they are adapted to burglary only.
    Appeal from judgment entered upon conviction of defendant, of the crime of having in his possession implements and tools, adapted, designed and commonly used in the commission of burglary, he having been previously convicted of burglary.

      Jerry A. Wernberg, for app’lt; Jas. W. Ridgway, dist. att’y, for resp’ts.
   Barnard, P. J.

Section 508 of the Penal Code provides as follows: “Any- person who makes or mends, or causes to be made or mended, or has in his possession in the day or night time any engine, machine, tool, false key, pick lock, nippers or implements adapted, designed or commonly used for the commission of burglary, larceny or other crime under circumstances evincing an intent to use or employ or to allow the same to be used or'employed in the commission of crime or knowing that the same is to be used, shall be guilty of misdemeanor, and if he has been previously convicted of any crime, he is guilty of a felony.”

Under this section of the Code the grand jury of Kings county indicted the defendant for having in possession burglar’s tools adapted and designed to the commission of the crime of burglary, of which crime the defendant had been convicted in the city of New York in the year 1885. It was proven on the trial that the defendant at about one o'clock in the morning was standing on Madison street He came out from Madison street on Sumner avenue in Brooklyn. He loitered about this locality some twenty minutes, when a policeman crossed over and asked why he was loitering there at that hour in the morning. He refused to answer the policeman. The policeman then asked for his place of residence. The defendant’s reply was, that he lived in a house; when pressed as to the locality he replied Glynn street and Howard avenue and East New York, and he acted as if he didn’t know where he lived. The policeman arrested him and found on him a hammer, a cold chisel and a file which seemed also to be adapted for use as a punch. These instruments could all be used in honest work, but it was proven also that they were all adapted to burglary. The question of fact was left to the jury as to the guilt of the accused and he was found guilty. The appellant claims that the tools must be of such a character that they are adapted to burglary only. This is not the correct view of the statute. If the implements found on the person were adapted to the commission 'of crime, and the circumstances justified a finding of an intent to use them to commit crime, the statute covers the case even if the implements or tools could be used innocently in legitimate business. The demeanor and answers of the accused, the time of night, the distance from his home, with the finding of the implements secreted on his person and being himself a convicted burglar, taken as a whole, made out a plain case for conviction. The remarks of the prosecuting attorney in respect to the character of the tools and the use of the language of the court of appeals in respect to the character of implements with which to commit crime, were legitimate and proper.

The conviction should, therefore, be affirmed.

Dykman and Pratt, JJ., concur.


text:
    Andrew Moylan, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Negligence—Street railroads.
    Plaintiff signalled one of defendant’s cars to stop and it thereupon' slowed up and came almost to a standstill and he attempted to get on, but before he could do so the driver started up the horses and brought plaintiff in contact with a passing truck and injured him. Held, that it was not contributory negligence per se to attempt to get upon a car almost at a standstill, and that the questions of negligence were properly sent to the jury.
    3. Same—Evidence—Hypothetical question.
    It was not proved that plaintiff had no cold before the accident, but a hypothetical question stated a freedom from cold. The expert -witness testified that plaintiff's disease was chronic pleurisy and was such that it could only result from violence and not from exposure. Held, that the statement as to freedom from cold was immaterial and worked no harm.
    3. Same—Damages.
    Defendant’s injury resulted in pleurisy, which affected his earning capacity, and his proof tended to show it was permanent with an uncertain liability to grow worse and possibly tend to something else; while defendant’s testimony tended to show that a majority of such cases resulted in recovery, but five per cent were mortal. Held, that there was no error in allowing the jury to include damages for permanent injury in the verdict
    Appeal from judgment in favor of plaintiff, entered on verdict for $1,000.
    Action to recover damages for injuries alleged to have been caused by defendant’s negligence.
    The hypothetical question referred to in the opinion was as follows:
    “ Q. Assuming that a man in the condition of life of the plaintiff, in a fair state of health, who has not been suffering from any colds, is severely bruised by a collision between a car and truck, so that shortly thereafter he faints and is unable to leave his bed for a day or two, and has continuous pain in his right side, and you found him in such a condition as you discovered on your examination of plaintiff, to what would you attribute the condition?”

      Augustus S. Hutchins, for app’lt; Frederick S. Massey (James C. Ghurch, of counsel), for resp’t
   Barnard, P. J.

The plaintiff signaled one of the defendant’s street cars to stop for him.. The car in response to the signal stopped nearly, but not entirely. The plaintiff took hold of the stanchion near the middle of the car, which was an open one, and before he could get upon the car the driver started the horses attached to the car very fast and thereby brought the plaintiff in contact with a truck and occasioned the injury. The duty of a passenger-carrying railroad is to give a sufficient opportunity for the passengers to get on and off the car. That the passenger attempted to get on before the car fully stopped is not of itself contributory negligence. In the present case it plainly was not negligent upon the plaintiff’s part to attempt to get upon the car almost at a standstill and where it appears quite certain that he would safely reach the car but for the sudden starting up of the car before he had time to accomplish his purpose. The case is so similar in its facts to those contained in the case of Eppendorf v. The Brooklyn City, etc., Railroad, 69 N. Y., 195, that it was proper to send the case to the jury both upon the question of defendant’s negligence and upon the question of freedom of plaintiff from all contributory neglect which contributed to the accident The hypothetical question was one which the evidence justified. The inference was fair that plaintiff was well and able to earn eighteen to twenty dollars per week as a brass and iron polisher. That after the accident he had a pain in the side and could only earn twelve dollars per week. That he could not work continuous and had to take rest at intervals. It was not proved that he had no cold before the accident and the hypothetical question stated a freedom from cold. The physician stated that the disease of the-plaintiff was chronic pleurisy and that it was of such a character that it was due solely and could result solely from direct violence and not from exposure. The statement in the question as to freedom from cold was carefully excluded from any effect upon the-answer and therefore harmed no one. As to the injury the plaintiff’s proof tended to show it was permanent with an uncertain liability to groty worse and possibly tend to something else. The defendant’s medical evidence tended to show that the disease “ in a majority of cases resulted in recovery.” That five per cent, were mortal.

Upon this evidence the jury could find an injury which was to continue in the future and could give damages for such injury. Ho possible further proof could be given in the case. There was an injury from a wound which occasioned pleurisy and prevented a proper purification of the blood from an inability to fully use the lungs. In half of the instances of such disease the patient got no-better during life. And five out of 100 die of the disease. Of necessity the question on this proof must go to the jury and the charge was free from objection in respect, thereto.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    The People ex rel. Rosalie A. Oakley, Resp’t, v. Frederick W. Bleckwenn, Treasurer, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Municipal cobpoeations—Assessments—Impboyement cebtbbtcates— Laws 1874, chap. 326.
    Redemption from a sale for assessments under chap. 326, Laws of 1874, may be made in improvement certificates issued under that act to the amount of the assessment and interest.

      {People ex rel. Byan v. Bleckwenn, 29 ÍT. Y. State Rep., 826, followed.)
    Appeal from order granting motion for a peremptory writ of mandamus.'
    The relator is one of the owners, as tenant in common, of certain real property in Long Island City.
    In 1888 the premises were sold for an assessment laid under chap. 326, Laws of 1874, to one of the other tenants in common. Within the time allowed for redemption the relator tendered to the treasurer of the city improvement bonds issued under said act to the amount of the sum for which the sale was made, and also cash to the amount of the interest thereon and the expenses of sale,, in redemption 'of said premises, but the treasurer refused to accept the certificates or anything but cash.

      W. J. Foster (George W. Stevens, of counsel), for app’lt; Hatch. & Warren (Evarts, Choate & Beaman, of counsel), for resp’t.
   Barnard, P. J.

The legislature, by chapter 326, Laws of 1874, authorized certain improvements in Long Island City, a part of the scheme of the act was that the work should be paid for by improvement certificates. This act was amended by chapter 501, of Laws of 1879. These certificates were made receivable by the city in payment of the assessments against the property liable thereto. These certificates were also to be received at the sales of the land made for the assessments. By chapter 656, Laws of 1886, a certificate was to be given to the purchaser of land for an assessment, and redemption was to be made by paying the treasurer for the use of the purchaser the sum mentioned in this certificate given upon the sale, with interest. The land in this case was sold and a certificate given to the purchaser, J. Lyon Gardner. The purchaser paid the assessment in the improvement certificates. The owners of the land tender improvement certificates in redemption of the land. Such certificates were refused by the city treasurer. The question, therefore, is whether improvement certificates must be taken for the “ use of the purchaser.” The question has been decided by this court in the case of The People ex rel. Ryan v. Bleckwenn, treasurer, 29 N. T. State Rep., 826.

The court was not unanimous, but we are constrained to follow the decision in the Byan case as controlling upon the present one.

The order should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Rosalie D. Oakley et al., Resp’ts, v. James Gardner et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

   Barnard, P. J.

This case is governed by the decision in the foregoing case. This is an action for an injunction to prevent the delivery of a deed for the premises sold for the assessment The case rests upon the same construction of the statute as was presented by the case of The People v. Bleckwenn, treasurer.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Cornelius Ferguson, as Shore Inspector, Resp’t, v. P. Sanford Ross et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Constitutional law — Local bills—Laws 1875, chap. 604; Laws 1886, chap. 630.
    The act in relation to the depositing of carrion, offal, dredgings, etc., in the North and East rivers and the bay of New York, Laws 1875, chap. 604; as amended by Laws 1886, chap. 630, operates upon a subject in which the whole people are interested, and is a general and not a local act.
    _ Appeal from judgment against defendants, entered on the verdict of a jury.
    This was an action brought to recover a penalty under the provisions of chapter 604 of the Laws of 1875, as amended by chapter 414 of the Laws of 1885, and chapter 630 of the Laws of 1886; the original was entitled as follows: i“ An act to prevent the deposit of carrion, offal or dead animals in the North and East rivers or in the bay of New York or Earitan bay, within the jurisdiction of the state of New York.”
    By the amendments in question the scope of the act was broadened so as to include “ mud, sand, dredgings, etc.,” within its prohibition. The defendants being guilty of violating the provisions in reference to the deposit of dredgings, the suit was brought and the jury gave a verdict for the plaintiff.
    Defendants’ motion for a new trial on the ground of the unconstitutionality of the act having been denied, from such order and the judgment the appeal is taken.

      R. D. Benedict, for app’lts; James C. Church, for resp’t.
   Dykman, J.

This is an action for the recovery of .a penalty under chapter 604 of the Laws of the state of New York for 1875 which is entitled “An act to prevent the deposit of carrion, offal or dead animals in the North and East rivers, or in the bay of New York or Earitan bay within the jurisdiction of the state of New York.”

The complaint charged the defendants with the deposition of earth, mud and materials dredged from a slip, basin or shoal, and upon a trial before a jury a verdict was rendered against the defendants and so the question of fact was decided against them.

The paramount and serious question presented by the appeal has reference to the validity of the legislation under which the defendants were prosecuted.

The defendants insist that the act in question is a local bill and, therefore, violative of the constitution of the state which provides that no private or local bill shall embrace more than one subject and that shall be expressed in its title.” Art, 3, § 16.

Much has been written upon the question involved, and the uncertainty which is felt arises principally from the difficulty of applying the rules of law which have been laid down upon the subject to a particular state of facts.

This case is an illustration. The statute in question operates upon a subject in which the people of the world are interested.

The deposit of the refuse matter of two large cities in the bay of New York tends to shoal the water and interfere with navigation, and also with public health, and those were the evils against which the law was aimed.

Its purpose was essentially public, and the fact that it wears some local features is insufficient to place it among the local acts.

The case of Williams v. The People, 24 N. Y., 405, brought before the court a statute which provided that whenever larceny should be committed in the city of New York by stealing from the person of another, the offender might be punished as for grand larceny, although the value of the property taken was less than twenty-five dollars. Judge Denio, whose opinions are characterized by solidity of wisdom, wrote an opinion in which he held the act to be general, and all the other judges of the court of .appeals except one concurred in such opinion, but that point was not settled. Yet the opinion is entitled to great consideration.

We think that inasmuch as the act in question operates upon a ■subject in which the whole people are interested and prescribes a rule of conduct for all persons, and renders all persons liable to its penalties, wherever they reside, it is to be considered a general as •contradistinguished from a local act. '

This view seems to be decisive of the appeal and the judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.