author: Earl, J.

text:
    The People ex rel. Flavius Allen, Resp't, v. C. J. Badgley et al., Assessors, App'lts.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Taxes—Assessments—Inequality.
    The assessment roll, standing by itself, furnishes no evidence upon an issue of inequality of assessments.
    2. Same.
    Before a taxpayer can be said to be aggrieved and claim a reduction of his assessment, he must establish that his property is assessed at a higher proportionate rate than property generally in the town. Some property-may be assessed at a higher rate than his, and some at a lower rate; but if upon the whole the average rate is no lower than his, and if his assessment is not at a higher rate than assessments generally, he is not aggrieved within the meaning of the statute, and cannot claim in a proceeding by certiorari under the act of 1880 to have his assessment reduced.
    3. Same.
    Eelator was assessed at $6,000. He testified that the lot and improvements cost about $9,000, and put in evidence the assessment roll of the town. The proof given by the assessors showed that plaintiff’s lot and improvements cost $13,000; that his neighbor was assessed at fifty per cent, the relator sixty per cent, and as to other valuations that they were higher than relator's. This evidence was not rebutted. Held, that the evidence did not authorize a reduction of the assessment.
    Appeal from order of the supreme court, general term, second department, affirming order of special term reducing assessment. W. Farrington, for app’lts; William B. Woodin, for resp’t.

       Reversing 51 St. Rep., 410.

   Earl, J.

— Chapter 269 of the Laws of 1880 authorizes an aggrieved taxpayer to procure the review by certiorari of the assessment of his property on the ground that it is illegal, or erroneous, by reason of overvaluation, or is unequal in that it has been made at a higher proportionate valuation than other property on the same assessment roll. The relator under that act, claiming that his real estate in the town of Poughkeepsie, was, in the year 1892, assessed at a higher rate than other real estate in the town, procured a writ of certiorari for the purpose of correcting the •assessment The assessors made a return to the writ, denying that the assessment was at a higher rate than that of other real property in the town, and alleged that it was at a fair, just and equal rate, and no higher in proportion to its value than other propertjr on the assessment roll. The judge, at special term, referred the matter to a referee, to take the evidence.

The real estate in question, consisting of eight acres of land ■and the improvements thereon, was assessed at $6,000. Upon the hearing before the referee the only witness for the relator, as to the valuation of his property, was the relator himself. He testified that he purchased the property in September, 1890, for .$2,000; that he subsequently built a new house upon it, which cost him at least $5,000; that he built a new barn and stable, the cost of which he could not specify; that he paid for laying a stone wall around the lot $308; that he built a fence around the lot, and that he paid $1,500 for cleaning up and grading the land. It thus appears that the land and the improvements thereon cost him in the neighborhood of $9,000, besides the items of cost which he could not specify. After giving this evidence, he put in evidence the entire assessment roll of the town, and then rested his case, and he gave no other evidence. .

It is obvious that no one looking at the assessment roll alone could legally or judicially ascertain that the assessments were unequal, unfair or unjust The assessment roll standing by itself furnishes no evidence whatever upon the issue joined between these parties. The only evidence furnished by the relator was that he was assessed at $6,000, and that his property with the improvements had cost him more than $9,000, and upon that evidence certainly it could not be determined that the assessment of "his property was excessive or unequal. The assessors could have rested their case upon the evidence given by the relator, and it would have been the duty of the court upon that evidence to have found against him, and dismissed the writ The burden was upon him to show that the assessment was too high, and he utterly failed to sustain that burden.’

But the assessors did not leave the case there. They called several witnesses, who gave evidence as follows: Mr. Burgess, who appeared to be an experienced contractor and builder, testified that the building of such a dwelling-house as the rélator erected upon his lot would cost $6,000, and that the barn and other outbuildings erected by him would cost $1.300 ; that the picket fence would cost $1,000 and the stone wall $700. If to these figures we add the cost of grading, $1,500, as testified to by the relator, and the cost of the land, $2,000, we have the total cost of the relator’s property at $12,500. W. H. Lawson testified that Webster Wright’s farm, adjoining the relator’s property, consisting of 102 acres, was worth $9,000, and it was assessed at only $4,500, fifty per cent of the value. He estimated the relator’s property to be worth $10,000, and upon his estimate it was assessed at sixty per cent of its value. Charles Wicks testified that the relator’s property was worth $13,000, thus showing that it was assessed at forty-six per cent of its value.

He also testified to the value of four other pieces of property, and his evidence showed that they were assessed at an average of sixty per cent of their value. Henry Allen testified that the relator’s property was worth $9,000, and according to his evidence it was assessed at 66§ per cent of its value. He testified to the values of eighteen other pieces of property, and it appears that they were assessed at 77-J per cent of their value. Casper Lawson testified that the relator’s property was worth $10,000, and thus showed that it was assessed at sixty pfer cent of its value. He also testified to the values of two other pieces of property, showing that they were assessed at eighty-one per cent of their value. The relator gave no evidence whatever in rebuttal of this evidence, and it thus appears that the relator’s property was assessed at a lower proportionate value than many other pieces of property in the town. It is utterly impossible to say from all the evidence that his property was assessed at a higher proportionate value than other property generally in the town. It is probably true that other pieces of property could be found in the town which were assessed at a lower rate of valuation than his. But, as we held in People ex rel. Warren v. Carter, 109 N. Y., 576; 16 St. Rep., 367, that is not sufficient to enable him to procure a reduction of his assessment. It always happens upon every assessment roll that some pieces of property are assessed at a higher rate of valuation than others, and out of proportion to other property. But before a taxpayer can be said to be aggrieved and claim a reduction of his assessment, he'must establish that his property is assessed at a higher proportionate rate than property generally in the town. Some property may be assessed at a higher rate than his, and some at a lower rate; but if, upon the whole, the average rate of assessment is no lower than his, and if his assessment is not at a higher rate than assessments generally, he is not aggrieved within the meaning of the statute, and cannot claim, in such a proceeding as this, to have his assessment reduced.

In this record there is not an atom of proof authorizing a reduction of the relator’s assessment, and the orders of the general and special terms should be reversed and the writ of certiorari dismissed, with costs to the appellants in all the courts.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    George S. Wallace, App'lt, v. The Central Vermont Railroad Co., Resp't.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Negligence—Contributory—Brakemen.
    Plaintiff was a brakeman in defendant’s employ and was injured by collision with a bridge which crossed the tracks. The bridge was sixteen feet high, and fifty feet therefrom was a tell-tale or tickler to give notice of its proximity, but it was out of order. Plaintiff had passed under the bridge thirty times-and knew of its existence. At the time of tne accident he was on top of a car twelve feet high, with his back to the engine, and intent on his work of watching for breaks in the train, which was a long one, and the bridge was not in his mind at the time. Held, that one thus situated could not, as matter of law, be charged with negligence because he did not take notice that he was approaching the bridge,
    2. Same—Railroad—Tell-tales.
    It is the duty of a railroad company under the statute, not only to put up tell-tales, but to use reasonable care that they are kept in order.
    3. Same.
    Whether a tell-tale erected so close to the bridge is suitable for the purpose intended is a question for the jury.
    4. Same—Evidence.
    It is competent on this branch of the inquiry to ask a witness what is the-usual and ordinary distance to erect these tell-tales from a bridge or low structure.
    Appeal from judgment of the supreme court, general term, third department, affirming -judgment in favor of defendant entered on order granting a nonsuit.

      Theodore H. Swift, for app'lt; Louis Hasbrouck, for resp't.

       Reversing 43 St. Rep., 639.

   Earl, J.

The plaintiff in June, 1889, was a brakeman for the defendant, and while in the discharge of his duty on the top of a moving train he was hit by a low bridge and severely injured, and he brought this action to recover his damages against the defendant. The defendant denied the allegations of negligence against it, and alleged contributory negligence on the part of the plaintiff, and upon the trial he was nonsuited. The propriety of that nonsuit is the matter for our determination.

At the time of the accident there were fifty-four cars in the train and there were two brakemen assigned to duty upon the train. It was the duty of the plaintiff to be on top of the cars, ready to respond to calls for brakes, and to keep watch over the train to see that it did not part and run together. He was required to be in position so that if the train broke he could observe it, and at ■once signal the engineer. At the time of the accident the train was at a place in the road where there was a reverse curve, and more than ordinary risk from the circumstance that it might break. The distance from the rail to the bottom of the bridge was sixteen feet and four inches. The top of the car was twelve feet and a ■quarter of an inch above the track, and the plaintiff was five feet and ten inches high. The plaintiff had been in the employment of the defendant for several'weeks at the time of the accident and had daily passed over the road under the bridge, and had thus made about thirty-one trips over the road. He must have known of the existence of the bridge, and must repeatedly have noticed it. When he passed under the bridge at prior times he may have been facing it, and may thus have avoided the danger, or he may have been sitting down on top of the car, and thus been out of reach of the bridge.

At the time of the accident he was upon a very long train, intent upon the discharge of his duty, with his face toward the rear of the train, in a position to most effectually discharge his duty, and thus his back was toward the bridge. He was not at the time aware that he was approaching a place of danger, and had no warning of the bridge. Indeed the bridge was not in his mind, and the trial judge nonsuited him because he did not at the time have the bridge in his mind, and thus guard himself against the danger of injury.

We do not think that one thus situated can, as matter of law, be charged with negligence because he did not take notice of the fact that he was approaching the bridge, and thus know that he was in a place of danger. He was in a place where there was danger that the train might break in two, and he was intent upon the discharge of his duty. It cannot be ■said that a brakeman is, as matter of law, careless because he does not bear constantly in mind the precise location where the train is, and where every bridge is.

There is another fact entitled to some weight upon this branch ■of the plaintiff’s case. It is provided by § 2 of chapter 439 of the Laws of 1884, that every steam railroad shall, within six months after the passage of the act, erect and thereafter maintain suitable warning signals at every low bridge or structure which crosses the railroad above the track, where such warning signals may be necessary for the protection of employees upon the top of cars from injury. This railroad had erected warning signals, called tell-tales, on the sides of its bridges by putting up cross-bars at some distance from each bridge over the tracks, with wires hanging down from the same, which, by striking a brakeman on top of the car, would warn him of his approach to the bridge. The plaintiff knew of this requirement, and of the existence of these tell-tales at the bridges, and while he could not omit on that account all care for his own safety, yet the absence of tell-tales would be one of the circumstances proper for the jury to consider in determining the question of his negligence.

The cases of McGrath v. N. Y. C. & H. R. R. R. Co., 59 N. Y., 468; S. C., 63 id., 522; Cullen v. Del. & Hud. Canal Co., 113 id., 667; 23 St. Rep., 719, and Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y., 526; 35 St. Rep., 814, are not applicable to such a case as this. They have their application to a traveler upon a highway crossing a railroad. He approaches a known place of danger, and is, therefore, bound to be vigilant in the use of his senses for his own safety, without any reliance upon the statutory warning by bell or whistle, or the mere absence of a flagman. But a brakeman on the top of a moving train cannot always be expected to know when he is approaching a low bridge. His duties require his attention to the rear of his train, away from the place of danger, and he cannot be expected to bear constantly in mind and to know where the train is, or where a bridge is. He knows that if the statutory requirement is obeyed by the railroad company, and the telltales are kept in order, they will always warn him of danger, and he cannot, therefore, be charged with carelessness if he place some reliance upon them. Suppose some statute or rule of the company requires the engineer always to blow a whistle for the express purpose of warning the brakeman of the approach to a low bridge, could he not place some reliance upon that circumstance, and omit that degree of care which he would otherwise take for his own safety, without the imputation of culpable negligence ? There is no principle or authority which requires this question to be answered in the negative.

The plaintiff calls our attention to the case.of Kane v. Northern Central R. Co., 128 U. S., 91, as an authority in his favor upon this branch of the case, and it has some bearing. The defendant calls our attention to the case of Williams v. D., L. & W. R. R. Co., 116 N. Y., 628; 27 St. Rep., 760, as an authority in its favor. It must be conceded that the latter case goes far to uphold a non-suit upon such facts as we have here. But it was a border case, decided against the plaintiff by a divided court, and it is distinguishable from this in that the brakeman there knew that he was approaching the bridge, and when near the bridge turned his back towards it, knowing, or bound to know, as the court held, that it was a low bridge. Under such circumstances, it was held that he was guilty of contributory negligence.

We think, therefore, that the trial judge erred in holding as matter of law that the plaintiff in this case was guilty of contributory negligence. All the- evidence bearing upon that branch of his case should have been submitted to the jury.

It cannot well be denied that there was sufficient evidence for the jury as to the defendant’s negligence. It was proved in this case that the telltale was put up in the usual form fifty-one feet from this bridge, and that it was out of order, in that some of the wires were out of place and wound around the crossbar, so that a brakeman might pass under it without being warned of his approach to the bridge. It is manifestly the duty of the company, not only to put up these telltales, but to use reasonable •care that they are kept in order. It should be the duty of some one connected with the railroad to pay some attention to them and see that they are kept in order to answer the purpose of the statute.

Still further, the statute requires suitable warning signals. Whether a signal of this kind erected so close to the bridge is suitable for the purpose intended is a question for the jury. The train was passing at the rate of twelve or fifteen miles an hour, and a jury might well find that a telltale so near to the bridge is not adequate to answer the purpose of the statute. It should be placed so far from the bridge that after giving the warning there is time for the brakeman on top of the train to avoid the danger. Here, notwithstanding the defective condition of this telltale, if it had been placed at a greater distance from the bridge it is quite probable from the evidence that while it did not touch the plaintiff, yet that he would have seen it, and would thus have been warned before he reached the bridge, as he did see it just as the bridge struck him.

We, therefore, think there was evidence enough for submission to the jury upon the question of defendant’s negligence.

This question was put to one of the plaintiff’s witnesses: “ What is the usual and ordinary distance to erect these telltales from the bridge, or low structure ?” This was objected to on the part of the defendant as incompetent, and the objection was sustained. We think this question was proper. It was competent for the plaintiff to show in some way that this telltale was placed too near the bridge to answer the purpose of the statute, and upon that point he could properly show how this road, and possibly other roads, constructed its telltales, and at what distance from the bridges.

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

All concur.


text:
    Allan C. Dalzell, App'lt, v. The Fahy's Watch Case Co., Resp't.

      (Court of Appeals,

      Filed May 5, 1893.)

    Pleading—Assignment of patents.
    In an action upon an agreement for the transfer to defendant of plaintiff’s right and title to certain inventions and letters patent on request, the complaint alleged that plaintiff owned certain letters patent; that they were the ones mentioned in said agreement; that plaintiff did duly assign, transfer and set over unto defendant, or for its use and at its request, said letters patent; that defendant has manufactured a large quantity of articles under the same, and has received a certain ret sum therefrom; that plaintiff has demanded his share thereof, hut defendant has refused to pay or account therefor. On demurrer, Held, that the complaint was clearly sufficient; that if the assignment was not as complete as defendant was entitled to have it, it should have refused to accept it or use the patents, hut having taken an assignment of the patents under the agreement and used them, it cannot refuse to pay the share of the profits stipulated in the contract.

      Appeal from judgment of the New York superior court, general term, affirming a final judgment entered in favor of the defendant upon its demurrer to the plaintiff’s complaint. The complaint is as follows:
    “ Plaintiff herein complaining of the above-named defendant shows to this court, and alleges:
    “ 1. On information and belief that at all the times hereinafter mentioned the defendant was and still is a corporation duly created, organized and existing under the laws of the state of New York:
    “ That heretofore there were issued, in due form of law, unto this plaintiff by the United States of America five several letters patent, as follows:
    “Number 329,284, granted October 27, 1885;
    “Number 329,285, granted October 27, 1885 ;
    “Number 329,286, granted October:. 27, 1885;
    “Number 384,620, granted September 7, 1886 ;
    “ Number 355,144, granted December 28, 1886; and being the same letters patent mentioned in the contract duly made, executed and delivered interchangeably between the parties hereto, a copy of said agreement being hereunto annexed and made a part hereof.
    “ That thereafter and under and by virtue of said annexed contract in that behalf, this plaintiff did, on or about December 27, 1887, duly assign, transfer and set over unto the defendant or for its use and at its request the letters patent aforesaid.
    “ That thereafter and ever since the defendant, as plaintiff is informed, verily believes and alleges, has manufactured and sold under said letters patent and contract upwards of one million two hundred and fifty thousand of the commodities thereby covered and referred to, and that after all the deductions authorized by said agreement from the proceeds of such sales, there remains received by defendant and being net profits the sum of one hundred and fifty thousand dollars.
    “ That plaintiff has duly and fully done and performed all the matters and things by him to be done and performed under said contract on his part, and from said defendant demanded his said moiety of net profits thereunder accordingly, but the defendant has refused to pay over said moiety nor account thereof, to plaintiff’s damage seventy-five. thousand dollars.
    “ Wherefore, plaintiff demands judgment against defendant for seventy-five thousand dollars, besides the costs and disbursements of this action.”
    The contract annexed to the complaint is as follows:
    “ Whereas, Allan 0. Dalzell, of Sag Harbor, on Long Island, in the state of New York, now employed by the ‘ Fahys Watch Case Company,’ a corporation of the state of New York, has obtained a number of Letters Patent of the United States for improvements in Watch Cases, Watch Movements, Jewelry, etc.
    “And whereas, The said, The Fahys Watch Case Company, is desirous of acquiring an interest in said inventions and patents, and in all future inventions of said Allan 0. Dalzell and the patents obtained thereon:
    “ Now, this Indenture witnesseth, That for and in consideration of the sum of one dollar to the said Allan C. Dalzell in hand paid by the said Fahys Watch Case Company, the receipt of which is hereby acknowledged, the said Allan C. Dalzell hereby agrees to assign, sell and set over unto the said, The Fahys Watch Case Company, all the right, title and interest in all inventions and the Letters Patent obtained thereon which the said Allan C. Dalzell may now have and which he may hereafter acquire by future inventions and Letters Patent thereon or otherwise relating in any way or important in and valuable to the business of The Fahys Watch Case Company, provided the said, The Fahys Watch Case Company, may desire to manufacture under said Letters Patent, and shall require in writing the said Allan C. Dalzell so to assign said patent or patents. In consideration of which the said, The Fahys Watch Case Company hereby agree to and with the said Allan 0. Dalzell, that the said The Fahys Watch Case Company, when in manufacture under any patent so assigned or to be assigned as aforesaid will furnish all the machinery and money it deems necessary to conduct the business of manufacturing and placing the goods so manufactured upon the market, and that the net profits arising from the sale of the said goods so manufactured under patents aforesaid, after deducting all costs and expenses, including cost of manufacture, selling, bad debts, etc., shall be equally divided between the parties hereto.
    “ In witness whereof, the said Allan C. Dalzell has hereunto set his hand and seal, and the said, Fahys Watch Case Company, has caused its corporate seal to be hereto affixed and attested by its secretary, and these presents to be signed by its president, the twenty-first day of April, in the year eighteen hundred and eighty-six. ”
    The demurrer is upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action.

      Edmund F. Oldham, for app'lt; William A. Jenner, for resp't.

       Reversing 43 St. Rep., 57.

   Earl, J.

The complaint is clearly sufficient. It contains a plain and precise statement of facts constituting the plaintiff’s cause of action. It specifies five patents which were issued to him at the dates mentioned, and avers that those patents are the same that are mentioned in the contract annexed to the complaint; that under the contract the plaintiff did at a date mentioned duly assign, transfer and set over to the defendant, or for its use and at its request, the patents mentioned; that it has manufactured and sold under the patents and contract a large quantity of the commodities covered by and referred to in the patents, and that after all the deductions authorized by the contract, there remained net profits received by it amounting to the sum of $150,000; that he has demanded his half of such net profits ; that it has refused to pay that share to him, and he demands judgmeat. So far as we can perceive this complaint is absolutely unassailable. It is quite true, as contended by the defendant, that the plaintiff was bound to assign to it not only the letters patents, but all the inventions. We may assume that the plaintiff has not assigned the inventions, but we cannot assume that he has refused to do so. The averment in the complaint is that upon the request of the defendant he assigned the patents, and that it has used them and made the net profits by the use of them. It has, therefore, had the substantial benefit of the agreement thus far. If the plaintiff’s assignment was not as full and complete as it was entitled to have, it should have refused to accept it, or to use the patents, and then it could have compelled him to perform his contract, or have sued him for damages. But having taken an assignment of the patents under the agreement, and used them, it cannot refuse to pay the share of the profits stipulated in the contract. If it now wishes an assignment of the inventions it must demand it, and if refused, it may compel the assignment by suit or recover damages for the refusal; or it may retransfer the patents to the plaintiff and refuse further to use them. But it cannot retain the patents and use them without any liability to pay the stipulated compensation for their use. So, too, if the defendant has suffered any damages because the plaintiff has refused to assign the inventions, it may interpose a counterclaim for such damages in this action.

The agreement requires the plaintiff to assign the patents to the defendant, and it is claimed that the complaint is defective because it alleges that he assigned, transferred and set over the patents “ to the defendant, or for its use.” But it is alleged that the assignment was thus made at its request. It certainly would be a performance of the contract on the part of the plaintiff if, at the request of the defendant, it assigned the patents to some person for its use, and it thereafter used them and had the benefit of them. It is quite hypercritical to say that the letters patent mentioned in the complaint are not those referred to and contemplated by the contract. It is alleged that they were issued to the plaintiff; that they are the same letters patent mentioned in the contract ; that the patents were assigned to the defendant at its request, in pursuance of the contract, and that it used them. What further allegations were needed ?

This complaint cannot be condemned as insufficient without applying rules for its construction more stringent than have ever prevailed in this state, in despite of the provision of the Code, §519, which requires the allegations of pleadings to be liberally construed, with a view to substantial justice between the parties.

The judgments of the general and special terms should be reversed and judgment given for the plaintiff upon the demurrer, with costs, with leave, however, to the defendant, within twenty days after the filing oí the remittitur in the court below, upon payment of all the costs subsequent to the demurrer, to answer the complaint.

All concur.


author: Per Curiam.

text:
    Daniel E. Donovan, Resp't, v. Heman Clark, App'lt.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Partnership—Evidence.
    Where a bookkeeper of a firm is employed by one of the partners and has kept the books under special instructions from him, and is authorized by him to furnisb statements from the books of the firm to another partner as to the latter’s share in the business, his acts, declarations and communications while engaged in the employment and relating to the information which he was instructed to give, are competent evidence against his principal.
    3. Same.
    Although a partner claiming a share in a firm business may put in evidence the books kept by his other partner of the partnership transactions, he is not concluded by the entries made therein of credits to such other partner. He may snow that they were fictitious or represented expenditures foreign to the business of the firm, or were for any other reason not allowable.
    3. Same.
    In an action upon the equitable side of the court to establish a partnership and for an accounting, exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

      Edward T. Lovatt, for app'lt; John D. Kernan, for resp't.

       Affirming 45 St. Rep., 936.

   Per Curiam.

The important and controlling issue in this case was one of fact. It involved the question, not of the existence of a partnership, for that seems to have been conceded by the defendant, but of its extent. The plaintiff claimed a one-half interest in the profits of the adventure, and the defendant insisted that he was entitled to only a third. After a protracted trial before a referee, in which the defendant seems to have been accorded every opportunity for a full presentation of his case, the referee has found in favor of the plaintiff’s contention. There is no exception to any finding of fact, or to the refusal to find any fact, and this courtcannot, therefore, review any finding, or refusal to find, even upon the ground that the finding is not supported by evidence, or that the uncontradicted testimony established the facts which the referee refused to find, which is the extent of our power to review upon the facts. The defendant has excepted only to the conclusions of law; and as the facts 'found abundantly sustain the legal conclusions of the learned referee, these exceptions do not present any error which requires a reversal of the judgment.

We have carefully examined the exceptions taken during the course of the trial which have been called to our attention, and do not find any which we regard as tenable. The statements furnished by the witness Gridley from the books of the firm were admissible against the defendant. He was the bookkeeper of the firm, employed by the defendant, and who kept t,he books under special instructions from the defendant. He was authorized by the defendant to furnish these statements to the plaintiff, and his acts, declarations and communications, while engaged in the employment and relating to the information which he was instructed to give, were competent evidence against his principal.

While the plaintiff put in evidence the books kept by the defendant of the partnership transactions, he was not concluded by the entries made therein of credits to the defendant. He might show that they were fictitious or represented expenditures foreign to the business of the firm, or were for any other reason not allowable.

The offer to prove by the son of defendant that he had been paid $10,000 under an agreement between his father and plaintiff, was not admissible under any issue raised by the pleadings which we have been able to discover. The defendant, however, subsequently testified to the same fact without objection, and the evidence was, therefore, before the court for whatever it might be worth.

There is a multitude of minor exceptions, but they are all destitute of any substantial merit. The action was upon the equitable side of the court to establish a partnership and for an accounting. In such case exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.

We think the defendant has entirely failed to point out any prejudicial error, and the judgment must be affirmed, with costs.

All concur.


author: Maynard J.

text:
    Sarah F. Galusha, App'lt, v. Norman H. Galusha, Impl'd, Resp't.

      (Court of Appeals,

      Filed May 5, 1893.)

    Husband and wive—Articles ov separation—Demurrer—Estoppel.
    Plaintiff and defendant in 1883 executed the usual deed of separation with one Phillips as trustee, by which defendant agreed to give plaintiff §5,000 for the purchase of a house and lot, §1,000 for medical attendance and §1,200 annually and if the husband died first and she elected to take dower the §5,000 should he applied thereon. In 1885 the plaintiff brought an action for absolute divorce and inserted in the complaint the usual allegations entitling her to alimony. The defendant pleaded the separation agreement as a bar. Judgment was entered dissolving the marriage and directing the defendant to pay §3,750 annually, with a provision that either party might apply for a modification of the alimony. The alimony was reduced to §3,000 by the general term, and the agreement of separation terminated, but the court of appeals struck out the alimony anil the clause terminating the deed of separation. The complaint in this action set up that the execution of the agreement was procured by coercion and duress, asked that the divorce judgment he opened; the separation deed he adjudged invalid and that plaintiff be allowed alimony of §3,000 per year from the date of judgment, deducting amounts already paid. Defendant’s demurrer, on the ground that the former adjudication was an estoppel and that all the facts might have been litigated in the divorce action, was sustained by the courts below. Held, error; that the burden of the present cause of action is the cancellation of the deed of separation by evidencc dehors the instrument establishing its invalidity, which could not have been adjudicated in the former suit, as the trustee was not a party to that action, and while such deed remained unimpeached it must be the measure of the allowance for the support of the plaintiff, which the defendant shall pay.
    Appeal from judgment of the supreme court, general term, fifth department, affirming interlocutory judgment sustaining demurrer to the complaint.

      J. A. Stull, for app'lt; Esek Cowen and John P. Bowman, for resp't.

       Reversing 43 St. Rep., 968.

   Maynard J.

The defendant, Norman H. Gralusha, has demurred to the complaint upon the ground that it does not contain sufficient facts to constitute a cause of action. It, therefore, becomes necessary to state the material facts alleged, according to their legal import, as we understand them, and in the light of the rules which must be applied in the construction of pleadings. The plaintiff and the demurring defendant intermarried in 1858, and lived-together until 1883, when a separation occurred, and an agreement under seal was executed between them, and the defendant. Gralusha Phillips, as trustee, in which it was recited that on account of existing differences the husband and wife had mutually agreed to live separate and apart from each other, and by the terms of which the husband agreed to give the wife $5,000 for the purchase of a house and lot, $1,000 to defray the expenses of medical attendance, some articles of personal property, and $1,200 annually, payable in monthly instalments. The wife agreed, in consideration of the payments to be made, to accept them in full satisfaction for her maintenance during her husband’s life, and if he first died she might elect to continue the agreement and receive the monthly payments during her life out of his estate upon releasing her dower and all claims against his estate, and if she elected to take dower, the $5,000 paid should' be applied thereon. The trustee covenanted with the husband that the wife should support and maintain herself, and perform the agreement on her part, and at all times, when so requested, sign and acknowledge all deeds and mortgages which the husband might require for the purpose of conveying any real estate which he might wish to sell or mortgage, and to save the husband harmless from the payment of any and all sums of money for and on account of the support, maintenance, medical attendance and other expenses, legal or otherwise, of the wife. It was also agreed between the wife and the trustee that he should have a lien on the $5,000 when paid or invested, to protect him against his liability under the agreement. The husband and wife also mutually covenanted that they would, at all times, permit each to live separate and apart from the other, and would not sue any person for receiving or harboring either of them, and that neither should in any way molest, sue or interfere with the other.

It sufficiently appears from the complaint that the execution of this agreement by the wife was procured by coercion and duress on the part of the husband. We need not state the averments in detail. It is enough to say of them that if established by the proofs at the trial, they would support' a finding that the agreement was not her free and voluntary act, but was entered into through fear of her husband, and to purchase immunity from cruel and inhuman treatment at hi.s hands, with which she was threatened, or to which she was subjected by him in order to compel her to consent to a separation. The husband was then worth $150,000. The wife, at that time, suspected that he was guilty of adultery, but the proofs were not obtainable. In 1885 the plaintiff brought an action for absolute divorce, on the ground of the alleged adultery of her husband, and inserted in the complaint the usual allegations entitling her to alimony. The defendant did not deny the adultery, but pleaded the separation agreement as a bar to the action; and also averred that the property transferred by him to the plaintiff, under the .agreement, with the allowances secured to her thereby, were adequate and sufficient for her support and maintenance according to her station and condition in life. The case was tried before the court, without a jury, and upon the decision of the trial judge judgment was entered dissolving the marriage, and directing the defendant to pay annually the sum of $3,750, permanent alimony, in quarterly payments; and the judgment contained the following provision: “ It is further adjudged that either party may apply to the court, from time to time, to modify this judgment as to alimony, in case of a change of circumstances of the parties, or for other good reasons.”

The execution of the deed of separation was not found by the trial judge, but it was introduced in evidence by the defendant, and the judge held upon the trial that it did not bar the action, or conclude the court from granting a proper amount for alimony beyond the amount provided in the deed, and refused to hear evidence as to the treatment of plaintiff by defendant leading to its execution. It is also alleged that because of this holding of the court the plaintiff did not give testimony to prove the coercion and duress under which the agreement was executed.

Upon appeal to the general term the judgment in the divorce suit was modified by reducing the amount allowed for alimony to $3,000, and the quarterly payments accordingly, and by inserting a clause providing “ that the force and legal effect of the agreement of separation, dated April 30, 1883, executed by the parties- and one Galusha Phillips, be and the same is hereby terminated,” and affirming the judgment as thus modified in all respects. An appeal was then taken to this court, where, according to the remittitur sent down, the judgment of the general term was modified by striking out the provision allowing alimonj-, and the clause terminating the deed of separation, and as thus modified the judgment was affirmed. When judgment was entered upon the remittitur, a clause was inserted striking out of the original judgment the provision declaring that either party might apply to reduce or increase the alimony, a provision which is not found in the original judgment in these words, and if it is assumed to have reference to the clause authorizing either party to apply to the court from time to time to modify the judgment as to alimony in case of a change of circumstances of the parties, or for other good reason, it does not appear to have been authorized by the remittitur. The complaint prays that the judgment in the divorce suit may be opened; that the separation deed be adjudged invalid, and that the judgment be modified by allowing plaintiff alimony at the rate of $3,000 per year from the date of entry of judgment, after deducting amounts actually paid, and concludes with a general prayer for relief.

The special and general terms have sustained the demurrer, and the plaintiff has brought this appeal.

The principal ground upon which the respondent relies to sustain the decision below, is the estoppel of the former adjudication. It is insisted that it appears from the complaint and the accompanying papers that every material fact which the plaintiff now seeks to establish might have been litigated in the divorce suit, and that all the relief she now demands might have been sought and obtained in that action. We cannot assent to this view of. the scope of the complaint and of the effect of the prior judgment. The burden of the present cause of action is the cancellation of the deed of separation by the production of evidence dehors the instrument establishing its invalidity.

An issue involving that question was not raised by the pleadings in the former action; it could not have been appropriately tried therein; it was not in fact litigated, and under the ruling of the trial court it could not have been heard and determined. There were two difficulties in the way of its adjudication in that suit. The trustee was not a party to the action, and without his presence there could be no effectual or final determination of the question of its validity. It was for this reason that the decision of the general term, terminating the agreement, was properly reversed in the second division of this court. Galusha v. Galusha, 116 N. Y., 635; 27 St. Rep., 738.

By reference to the official report of the case, it is found that the learned counsel for the respondent here, who was the appellant there, distinctly made the point that “ The agreement of separation being valid and binding between the parties, it was not within the power of the general term to annul and destroy it in an action of divorce, to which the trustee was not a party, and its order to that effect was utterly erroneous ” (p. 637), and many authorities are cited by him in support of the proposition. A principle so fundamental could not be overlooked. It is made the basis of the opinion of the learned judge who spoke for the court, and at page 645 he says: “We have then a valid tripartite agreement, and a subsequent judgment of divorce rendered in an action wherein two of the parties to the agreement only are plaintiff and defendant.’’ And farther on he denies to the court below “ the power to ignore all existing rules as to parties, pleadings and proofs, and arbitrarily set aside a valid agreement.’’ In the deed of separation the trustee was the central figure. He was the party who assumed the responsibility of the performance of its covenants as between the other contracting parties, and by its terms he had an interest in the property conveyed as security for his protection. In any suit brought for a breach of its covenants or a specific performance of its provisions, it would have been necessary to have joined him as a party, and if an action were directly brought to set aside the deed without making him a party, it would be the duty of the court, upon its own motion, to stay its prosecution until he could be brought in, even if the nonjoinder was not pleaded. Moulton v. Cornish, 138 N. Y., 133; 51 St. Rep., 845; Mahr v. N. U. F. Ins. Co., 127 N. Y., 452; 40 St. Rep., 218; Bear v. An. Rap. Tel. Co., 36 Hun, 400.

The plaintiff could not have united a cause of action for an absolute divorce with one for the annulment of the deed of separation. They do not belong to the same class and do not both affect the same parties. Code, § 484. The demand for alimony in a divorce suit is not an essential part of the cause of action. As described by Bishop, it is merely an “appendage” of the action. Sec. 351, 6th ed. Or where it enters into the final decree it is, as defined by this court in the Forrest case, 25 H. Y., 501, “amere incident of the judgment.” It need not be determined, when the judgment dissolving the marriage is entered, providing the right to have it subsequently determined is reserved in the judgment. In that celebrated case the right to permanent alimony was litigated for twelve years after the judgment of divorce was granted. The plaintiff may omit from the complaint all reference to alimony, and not thereby prejudice her right to claim it if she succeeds in the action, providing she asserts her demand for it before the entry of judgment. In fact the orderly conduct of the cause would require the delictum of the husband to be first established by the verdict of the jury, or the finding of the court or referee, before an inquiry into the allowance for alimony could be properly entered upon. Such was the practice approved by the chancellor, Cooledge v. Cooledge, 1 Barb. Ch., 77, and in his court a decree of divorce might be immediately entered, when the husband’s guilt had been proven and found, reserving to the complainant the right to a proceeding upon the foot of the judgment for alimony.

In ordinary practice the demand for alimony is incorporated in the complaint with appropriate averments, and the evidence relating to it on both sides taken upon the trial of the principal issue, where it is had before the court or a referee, but if the defendant insists upon bis right to a jury trial, there would be a manifest impropriety in taking in their presence the testimony relating to the question of alimony. The practice to be pursued in each case must be left in a great measure to the sound discretion of the trial court. In Bishop on Marriage and Divorce, vol 2, § 487, 6th ed., it is stated that: “ In principle, the proceeding for alimony being collateral to the main issue, whereof it is not necessarily a part, and the hearing on the question being practically or permissively subsequent, and a separate allegation of faculties with a prayer for the alimony being in practice esteemed requisite, no rule either of law or of propriety requires that the same shall be also inserted either in the libel or the answer. But singularly this question as to the form of the libel or answer seems not to have arisen in any American reported case.”

It must, therefore, we think, be admitted that there was not set, up in the divorce suit any separate substantive cause of action or defense, upon the trial of which the question of fraud, or undue influence, or coercion, or legal duress in procuring the assent of the plaintiff to the deed of separation could be properly tried and finally determined. The defendant unquestionably had the right to put in evidence upon the inquiry as to a just allowance for alimony the separation agreement, to show what provision he had already made for his wife’s support, and to prove any circumstance which might aid the court in reaching a correct conclusion upon that question ; but when the factum of the instrument was admitted, we do not think it was competent for the parties to impeach it in that action by extrinsic evidence. At least the court had the power to decline to receive such evidence, because the proper parties were not before it to enable it to determine the issue which its introduction might raise, and leave the plaintiff free to resort to an independent action to establish its invalidity.

It is not accurate to say that this court, upon the former appeal, decided that the plaintiff was not entitled to alimony. As the parties had, by an agreement lawful in form and apparently valid, stipulated as to the amount which the husband should pay for the support of the wife, that agreement, it was held, so long as it remained unrevoked, was the proper measure of compensation which the defendant should render for her maintenance after the dissolution of the marriage tie. Alimony, in its primary signification, means a provision for support. When used in the law the term has reference to the provision which the husband is required to make for the support of his wife. In its enlarged sense, the provision in the deed of separation is alimony. It is evidently so regarded in the opinion of this court upon the former appeal, and the thought is emphasized in the statement that there is no precedent for “ a further allowance while that agreement is in force.” That decision is authority for two propositions, which must be accepted as the law of this case: First, that the deed of separation cannot be annulled in an action to which the trustee is not a party; and second, that while it remains unimpeached, it must be the measure of the allowance for the support of the plaintiff, which the defendant shall pay. It plainly suggests the necessity for a resort to the remedy which this action contemplates, if the plaintiff deems the-enforcement of the agreement inequitable because of the manner in which its execution was obtained.

If the plaintiff, upon the trial, establishes to the satisfaction of the trial court a state of facts sufficient, under the rules of equity, to authorize the cancellation of the deed of separation, she will then be in a position where she can invoke the determination of the court upon the question of a suitable allowance for alimony. It will not be necessary to open the judgment in the divorce suit for that purpose. By force of its own provisions the court has reserved the power to modify it in this respect, and the only obstacle to the exercise of the power is the existence of the deed of separation. It is not deprived of this power by anything contained in the remittitur upon the former appeal, and the defendant could not by an exparte entry of judgment enlarge the scope ■of the decision of this court, as evidenced by the record which it has sent down. The plaintiff cannot be required to restore to the defendant what she may have received as a condition of obtaining the relief which she seeks. The compensation she has ret ceived is simply the equivalent of the support which the defendant was legally bound to provide for her while the marriage relation continued, and which he was equitably bound to furnish when it was dissolved because of his infidelity to it. Even the use of the $5,000 intended for the purchase of a house and lot was only the equivalent of a home which it was his duty to provide her with, and the principal of the sum can be taken into account in determining the allowance to be made, and the plaintiff in her complaint consents to a deduction for moneys received under the agreement. The rule which requires a party seeking to rescind a contract on the ground of fraud or other wrong to restore or offer to restore the fruits of it before rescission will be decreed, has no application here. It rests upon equitable considerations, which disappear in a case like the present, where nothing has been received, except as a substitute for the discharge of a duty by the adverse contracting party, and from the performance of which he has been absolved during the existence of the contract. If upon the trial a case is made for relief, it is not seen how it can antedate the commencement of this action.

The effect of the former decision is to render the separation agreement conclusive upon the plaintiff as to the amount of her allowance out of her husband’s estate until she becomes the actor in some action or proceeding like the present to terminate it, and if successful in the pursuit of the relief which it may afford the court can allow such sum as may be equitable and just from the date of the commencement of this action, and may modify the judgment in the divorce suit accordingly.

The judgments of the general and special terms must be reversed, with costs, and the demurrer to the complaint overruled with costs, and the defendant have leave to answer upon payment of costs within sixty days after service of a certified copy of the order making the judgment of this court the judgment of the court below.

Judgment accordingly.

All concur, except Earl, J., not voting.


text:
    Mary E. Bradley, Resp't, v. Isaac Walker, App'lt.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Vendor and purchaser—Acknowledgment by married woman— Evidence op.
    In 1846 twelve persons entered into a mutual agreement that they would leave an open space and court between their houses and the street. Defendant constructed bow windows extending in front of his house and plaintiff brought this action to restrain such construction and compel its removal. The party to the original agreement, through whom defendant derived title, was a married woman whose husband had a freehold estate in rightof his wife in two of the lots only,and the certificate of acknowledgment to such agreement did not state that she acknowledged it on a private examination apart from her husband, freely and without compulsion from him. Held, that such record or a transcript thereof was not evidence against her of the agreement, nor could the original agreement have been read upon the trial of this case without proof of her signature other than that furnished by her imperfect acknowledgment.
    2. Same—Notice.
    Defendant was not chargeable with notice of the existence of such agreement because his counsel found it in making his search, as if he had found the record he would have seen that the agreement did not bind said married woman, and, therefore, did not affect the lot in question.
    3. Same.
    Defendant was not bound to know, from the circumstance of finding a courtyard in front of a block of houses, that there was any binding agreement in reference to the open space in front of them.
    4. Same.
    The agreement bound the husband of the married woman during the joint lives of himself and wife, or any purchaser was bound during his life, but as he died some years after ho and his wife had made a conveyance of the lots by warranty deed, his agreement ceased to bind any one, and the covenants he made ceased to run.
    5. Same.
    Some six years after the making of said agreement an adjoining gore of land, not included therein, waspurchased by said married woman, and became part of the lot in question. Held,, that the restrictions did not apply to such part.
    Appeal from judgment of the New York superior court, general term, modifying judgment of special term.

      Henry Hoyt, for app'lt; George W. Cotterill, for resp't.

       Reversing 44 St. Rep., 313.

   Earl, J.

It is claimed by the plaintiff that in July, 1846, twelve persons, who were seized in fee of sixteen lots on the northerly side of West Thirtieth street in the city of New York, entered into a mutual agreement with each other, in writing, in which they recited that they had agreed with eacli other to improve their lots by leaving all such parts of the lots as were between Thirtieth street and a line drawn parallel with the street at a distance of eight feet therefrom, as and for an open space and court, and that they had laid out and,J appropriated all such parts of the lots for an open space and court, to remain unobstructed forever, otherwise than by the necessary steps for entrance, verandas, balconies, platforms, pedestals, iron fence and railings connected therewith and inclosing the same, and the foundations and copings upon which said iron fences and railings should be placed. And they covenanted for themselves and their heirs and assigns, that the open space and court in front of each of the lots should forever remain open and unobstructed, except as above stated. They further mutually covenanted and agreed that the covenants contained in the agreement should be, and they were declared to be, covenants running with the lots respectively and with the titles thereto, and should be equally obligatory and binding upon the heirs of the several respective parties thereto, and upon all and every person who shall thereafter become the owner of any of the lots, as upon the parties who signed the agreement.

Thereafter, as early as 1857, houses were built upon all of the lots, and the principal front of each house was placed eight feet back from the line of the street The plaintiff, by several mesne conveyances, has become the owner of one of the sixteen lots, now number 19 West Thirtieth street, and the defendant, by several mesne conveyances, has also become the owner of one of them, now number 7. He took title to his lot in April, 1890, and thereafter commenced to construct, and did construct, two bow windows in front of his house, extending therefrom about six feet. The plaintiff, claiming that this structure was in violation of the agreement above mentioned, commenced this action to restrain the construction and maintenance ¿hereof, and to compel its removal, and she recovered judgment, which has been affirmed at the general term.

In her complaint she based her right of action solely upon the agreement executed in July, 1846, a copy of which she annexed to the complaint. Lots 45 and 47 designated in the agreement had prior to the execution of the agreement come to Mrs. Susan Alvord by inheritance. She became married to Alonzo A. Alvord, and they were seized in fee "of the two lots, he having a freehold estate in right of his wife during their joint lives, and having no other right or interest therein. Upon the trial the original agreement, a copy of which is an nexed to the complaint, was not produced, but the plaintiff attempted to prove it by a transcript of the record thereof in the register’s office of the city of New York, and she produced and put in evidence a transcript properly certified by the register. From that transcript it appears that while Mrs. Alvord acknowledged the execution of the instrument, the cerficate of acknowledgment does not state that she acknowledged it on a private examination apart from her husband, freely and without any compulsion from him. When the transcript was introduced the defendant objected to it on the grounds, among others, that its execution was not proved; that it was not acknowledged by Mrs. Alvord as required by law, and that as against her the alleged agreement was not entitled to be recorded ; that she, at the time of the alleged execution of the agreement, was a married woman and had no right to contract with reference to her separate property, and that Mr. Alvord had no right to make any agreement imposing a servitude upon the separate property of his wife. These objections were overruled and the transcript received in evidence, and no further or other proof was given of the execution of the agreement by Mrs. Alvord.

At common law the deed and covenant of a married woman in reference to her real estate were absolutely void, and the only way in which she could convey her real estate was by uniting with her husband in levying a fine. Clowes v. Vanderheyden, 17 Johns., 167; Martin v. Dwelly, 6 Wend., 9. Under the Revised Statutes which were in force in 1846, the only mode in which a married woman could convey her real estate was by a deed acknowledged in the mode prescribed by the statute as follows : •“ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her shall not be taken unless, in addition to the requisites contained in the preceding section, she acknowledge, on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband; nor shall any estate of any such married woman pass by any conveyance not so acknowledged." 1 E. S., 758, § 10. The instrument, a copy of which is annexed to the complaint, was a conveyance of real estate within the meaning of the Eevised Statutes, where it is provided, 1 E. S., 762, § 38, that “the term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.”

The instrument was entitled to be recorded only because it was a conveyance of real estate within the meaning of the statute. It was not entitled to be recorded as against Mrs. Alvord, because not properly acknowledged by her. Therefore the record, or a transcript thereof, was not evidence against her of the execution of -the agreement. Indeed, if the original agreement had been produced, it could not have been read in evidence against her without proof of her signature other than that furnished by her imperfect acknowledgment. There was, therefore, a total failure of proof that Mrs. Alvord ever executed the alleged agreement, and there was not an atom of proof that she ever recognized or adopted it or acted upon it, or that she ever in any way became bound by it. Knowles v. McCamly, 10 Paige Ch., 342. On the contrary, the only act which it is proved she ever did in reference to this lot, after the date of that agreement, was a conveyance thereof by a deed executed by herself and husband, with full covenant and warranty, to Eyer and Fielder, on the 1st day of April, 1857, and that deed contained no reference to or mention of the alleged agreement

It must be inferred from the form of that deed that she did not then understand that she was bound by any covenant which in any way impaired her title to the lots or incumbered them, or restricted her right to use them as she saw fit. The plaintiff lays some stress upon the fact that in that deed to Eyer and Fielder the conveyance was made subject to the conditions of two agreements for building and maintaining party walls on the easterly and westerly sides of the lot. The party wall agreements provided that the walls should commence eight feet back from the street line. Those agreements were not executed by Mrs. Alvord. They were executed by her husband, and were adopted and ratified by her, undoubtedly, by making the conveyance to Eyer and Fielder subject to them. But it is not a just inference from these party wall agreements thus recognized by her that she had ever agreed or that she understood that eight feet of the lots adjoining the street were to be kept open as provided in the agreement referred to in the complaint. Much less did that deed operate as a devotion or dedication o£ the eight feet as a court-yard.for the benefit of all the lots along the street. By the party wall agreements Mr. and Mrs. Alvord and their successors in title to the lots were not prohibited from building on the eight feet adjoining the street, and certainly were not prohibited from putting in front of the dwelling house the structure now complained of.

It is claimed on the part of the plaintiff that the defendant became bound to recognize and maintain the courtyard in front of his house in accordance with the agreement because he had notice of it, and therefore the rule of law became applicable that where anyone buys real estate with notice of an equity attached to it he buys it at his peril, and becomes bound by the equity. 2 Pomeroy’s Eq. Jur., 14; Hodge v. Sloan, 107 N. Y., 245; 11 St. Rep., 770. But here there is no proof that he had notice of the agreement of 1846. There is no claim that he had actual notice, and no claim that he actually knew of the instrument on record in the register’s office. But it is claimed that he had notice because his counsel had, searched the records. It would be going a great way to hold that we must presume that in searching the records counsel found such an agreement, and then presume further that he communicated the information to his client. But there is no presumption that anyone has notice of a paper which is not properly recorded, and here, if the defendant’s attorney had found this record, he would have seen that the agreement did not bind Mrs. Alvord, and, therefore, did not affect this lot, as the record did not furnish any evidence that she had ever executed the agreement.

There is some claim made that the defendant may be charged with notice of the alleged agreement, because when he purchased he found the courtyard there in front of the houses. It is quite true that he found the houses generally set back eight feet from the line of the street But he was not bound to know from that circumstance that there was any binding agreement in reference to the open space, and it could not be assumed that there was. In all the deeds in his chain of title from Mr. and Mrs. Alvord there was no allusion whatever to the alleged agreement, and all the deeds were with full covenants and warranty. lie had a right to rely upon the covenants contained in his deed, and had no reason to suppose from anything that appeared upon his lot that there was any burden or easement in favor of other lots except as to the party walls. Indeed, as he looked at the lots at that time he found that the houses located thereon were not uniform in style, height or material, and in the case of several of them there were structures which encroached- more or less upon the eight feet.

It is, therefore, entirely clear that there is no proof of any act of Mrs. Alvord, either in writing or in any other way, devoting or dedicating the eight feet in front of her lots as a courtyard for the benefit of the other lots on the street.

But the agreement executed in 1846 bound Mr. Alvord. As husband, he owned a freehold estate in the land jure uxoris, and during the joint lives of himself and wife he had the right to the rents and profits, and to the use, control and management of the lot During that time he could bind it by his contracts and agreements, and he could deal with it as if he were the absolute owner thereof, except that he could bind it only for the period of the joint lives. 2 Kent, 130, 133: 2 Blackstone, 126; Vartie v. Underwood, 18 Barb., 561. He was undoubtedly bound by that agreement, and could have been restrained from its violation, and any purchaser from him, or from him and his wife, was also bound during his life. But he died in 1862, some years after he and his wife had made a conveyance of the lots by warranty deed. Then his agreement ceased to bind anyone, and the covenants he made ceased to run. If' his wife had survived him she would not have been bound by his covenants, and neither is the successor in the title who holds under her.

It is, therefore, clear that if we assume that Mrs. Alvord owned the whole of the lot No. 7 West Thirtieth street at the date of the alleged agreement, it would be impossible to maintain that a court yard of eight feet had been devoted or dedicated in such a way as to bind the defendant

But. there is a further difficulty in the plaintiff’s case which, upon this record, is insuperable. At the time of the agreement in 1847, only a portion of lot No. 7 came to the line of Thirtieth street. At that time Mr. Anderson owned a gore in the southeast corner of what is now lot No. 7, owned by the defendant. The width of the defendant’s lot is twenty-five feet, and of that twenty-five feet fronting on the street Anderson owned seventeen feet and five inches. The gore owned by him was upon the same map upon which Mrs. Alvord’s lot was numbered 47, designated as 58, and the latter lot was in no way included in the agreement. So, even if Mrs. Alvord could be held bound by the agreement of 1846, that agreement in no way touched this gore, lot No. 58. More than six years after the execution of that agreement Mrs. Alvord purchased the gore of Anderson for $2,000, but there is no evidence of any kind that that lot was' ever subject to the agreement, or that she ever intended to subject it to the agreement, or ever dedicated any portion of it for a court yard, and it does not appear that any portion of the structure now complained of is upon that portion of the lot which she owned in 1846. Even if this lot, to the extent of seven feet and five inches on the westerly side thereof, could be subjected to this court yard agreement, we find nothing in the evidence that could subject the other portion of the lot purchased by her of Anderson in 1853 to that agreement. It does not appear that the purchase of lot No. 58 was contemplated by Mrs. Alvord at the date of that agreement, and a serious burden, such as is claimed by the plaintiff, could not be imposed upon that portion of the present lot No. 7 without more proof than we are able to find in this record.

For all these reasons, we think the judgment should be reversed and a new trial granted, costs to abide the event ' .

All concur.


text:
    In the Matter of the Application of Helen S. McGillivray for the Removal of Edward C. Hawks as Trustee.

      (Court of Appeals,

      Filed May 5, 1893.)

      1. Surrogate—Removal of testamentary trustee—Code, §§2817, 2818.
    Where the evidence tends to establish any o£ the causes for removal of a testamentary trustee mentioned in § 2817 of the Code, whether the trustee should be removed is a matter resting in the first instance in the discretion of the surrogate, subject to review by the general term. But if his decision is there affirmed, and there be some evidence to sustain the decision,, the court of appeals has no jurisdiction to interfere with the discretion vested in the courts below.
    2. Same.
    A trustee who seems to be eager and willing to waste the trust estate in unnecessary and frivolous litigation, while unwilling to pay the needy beneficiary the portion to which she is entitled until compelled to do so by legal proceedings, in spite of the plain purpose of the creator of the trust that she should be liberally supplied with whatever was needful for her comfort and happiness, cannot well complain that there was error of law and abuse of discretion in his removal from the management and control of the trust estate.
    Appeal from judgment of the supreme court, general term, . fifth department, affirming decree of surrogate of Erie county removing appellant as testamentary trustee under the last will of Eli B. Smith.

      Spencer Clinton, for app'lt; John G. Milburn, for resp’t.
   Earl, J.

Eli B. Smith died in Erie county in September, 1888, leaving a widow and six children and an estate valued at over $600,000. He had made a will, in which, after providing for his wife, he divided the residue of his estate among his six children. He placed the share of his daughter, Mrs. McGillivray, the respondent, in trust, and appointed Edward C. Hawks, his son-in-law, the appellant, the trustee thereof. He was to take and hold her share of the estate and apply the net income thereof to her support and maintenance during her life. And it was provided that it should be a sufficient appropriation of the income to her use to permit and allow her, at her option, to take and have the personal possession and use of any thereof so long as the trustee should deem it best, or to pay the income directly to her.

The will also provided that if at any time, in the opinion of the trustee, the well-being and comfort of his daughter would be substantially promoted, or if she should at any time actually need more than the income of the trust fund, then and in such case he might, in his discretion, pay over to her so much of the principal of the fund as he might deem proper and necessary under the circumstances ; and further, that upon her death the trust estate should pass to her children. • Hawks accepted the trust and assumed the duties thereof, and this is a proceeding to remove him as such trustee and appoint another in his place, under §§ 2817 and 2818 of the Code. In the former section it is provided that a trustee may, upon the petition of any person beneficially interested in the estate, be removed, when “ by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or •otherwise improvidently managed or injured the property committed to his charge, or by reáson of other misconduct in the execution of his trust, or dishonesty, drunkenness, improvidence or want of understanding, he is unfit for the due execution of his trust.” The facts as disclosed in this record do not make a very flagrant case of misconduct against the trustee, but we think there was sufficient evidence to give the surrogate jurisdiction and to justify the exercise of the discretion conferred upon him by the section referred to. .Where the evidence tends to establish any of the causes for removal mentioned in the section, then whether the trustee should be removed is a matter resting in the first instance in the discretion of the surrogate. If he concludes that the evidence is sufficient he may remove him, and his discretion is subject to review upon appeal by the general term. But if his decision be there affirmed, and there be some evidence in the record to sustain the decision, then there is no question of law for consideration here, and we have no jurisdiction to interfere with the discretion properly vested in the courts below.

In June, 1889, not receiving anything for her support from the trustee, Mrs. McGillivray instituted proceedings in the surrogate’s court against him for an accounting, and then after the filing of the petition he paid her $500. That accounting was contested by him and resulted in a decree by the surrogate, in which he was ordered to pay the balance of the income, $176.60, remaining in his hands to her. It was further ordered that he should pay to her semi-annually the net income which should during the preceding six months come into his hands, less his commissions and expenses and less such part thereof as he had during the six months applied to her use and maintenance in accordance with the terms of the will.

From that decree of the surrogate he appealed to the general term, which affirmed the decree, and awarded costs against him personally. He then appealed to this court, and here the judgment of the general term was affirmed, and costs were again awarded against him personally. About the time of the filing of her petition for an accounting, and after he had notice that she intended to file the same, he commenced a suit as trustee against the executors of Mr. Smith’s will, and Mrs.McGillivray and her children, for the construction of the will, claiming that doubts had arisen as to the proper construction of the portion thereof relating to the trust; and, among other things, he prayed for costs of the action. The action was put at issue and brought to trial, and resulted in a judgment construing the will as claimed by Mrs. McGillivray, and the judgment awarded costs in her favor to be paid out of the trust estate, but gave no costs to him. From that judgment he appealed to the general term, and that appeal was pending at the time this proceeding was commenced for his removal.

We think it is not an unreasonable inference that the appeals from the decree of the surrogate and from the judgment of the general term to this court, which were clearly frivolous, were taken for the purpose of harassing Mrs. McGillivray. They subjected her to great expense and annoyauce, and had a tendency to deplete and waste the trust estate. So, too, it is not an unreasonable inference that the action for the construction of the will was brought for the purpose of vexing and harassing her. If the trustee simply desired protection in the discharge of his duties, the decree of the surrogate seems to have been ample for that purpose. He was a lawyer of twenty years’ practice, and must have known that there was no confusion or uncertainty about the meaning of the will, and that an action for its construction was wholly unnecessary. Certainly, after he had the decision of the special term construing the will, he needed no further instruction or protection, and it is difficult to perceive any justifiable reason for his appealing to the general term. That action had a tendency further to waste the trust estate. Mrs. McGillivray had no means except her interest in the trust estate, and her costs had tobe paid out of that estate, and thus tlio means which her father intended for her support were wasted in unnecessary litigation.

But this is not all. After the general term and the court of appeals had determined that the appeals from the surrogate’s decision upon the accounting were so frivolous that the trustee ought personally to pay the costs, and after the court at special term, in the action for a construction of the will, had determined that Mrs. McGilivrav’s costs should be paid out of the trust estate, he paid ' to his attorney, out of the trust estate, for his services in those litigations, $446.25, without any authority or justification whatever. It does not shield him from censure that he took from his attorneys a receipt for the moneys so paid to them, inw hich they agreed that if the sum, or any item thereof, should not be allowed on the settlement of his accounts, they would refund the part disallowed, with interest. He thus diverted to an improper purpose, for an indefinite length of time, funds which should have been applied to the. needy beneficiary of the trust, and subjected the trust estate to the risk of a litigation on some future accounting over the allowance of that item.

Without considering other charges of misconduct made against the trustee and found by the surrogate, wb think in the facts already stated there was enough to justify the inference that he had wasted and improperly applied money belonging to the trust estate; that he had improperly managed and had injured the trust estate, and that he was guilty of misconduct in the execution of his trust which rendered him unfit to be intrusted further with the execution of the trust. A trustee who seems to be eager and willing to waste the trust estate in unnecessary and frivolous litigation, while unwilling to pay the needy beneficiary the portion to which she is entitled until compelled to do so by legal proceedings, in despite of the plain purpose of the creator of the trust, that she should be liberally supplied with whatever was needful for her comfort and happiness, cannot well complain that there was error of law and abuse of discretion iu his removal from the management and control of the trust estate.

We are, therefore, of opinion that the order of the general term should be affirmed, with costs against the appellant personally.

All concur.


author: Andrews, Ch. J.

text:
    Henry Bischoff, Resp't, v. The New York Elevated Railroad Company et al., App'lts.

      (Court of Appeals,

      Filed May 5, 1893.)

    1. Railroad—Elevated—Fee damages—Basis for.
    Defendants built in front of plaintiff’s building a two story building occupying 6,000 square feet of the street, using it for a coal and water station, with tank house, switch house and coal bin, and supplying their engines there, emitting smoke and cinders, which are cast on plaintiff’s house. Plaintiff’s property was sold in 1877 for $30,000, and he paid $60,-000 for it in 1884. It was shown that from 1883 to 1891, the time of the trial, there had been no advance in plaintiff’s property, although the surrounding property had largely advanced. Held, that there was a basis for the award of fee damages.
    3. Same—Past damages.
    The fact that the property claimed to have been injured rented in 1873 for $6,000, and now yields but $4,400, and that the next property rents for much less than when the road was constructed, whereas the rents of property just beyond the structure and on adjacent streets have largely appreciated, furnishes a basis for past damages.
    3. Same—Noise.
    In ascertaining past damages, the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street for railroad purposes.
    4. Same.
    It not appearing that the court adopted an incorrect rule in awarding damages, nor excluded from consideration any benefits, general or special, and awarded nothing but consequential damages, the refusal to find that the easements were of nominal value only, separated from the abutting property; or that only damages to the extent that the disadvantages exceed the advantages could be recovered; or that in estimating damages, benefits caused by the railroad to plaintiff’s property,and not shared by the community in general should be allowed; or that the station (passenger), near plaintiff’s premises, was daily used by great numbers of people, some of whom passed through Park Row, in front of plaintiff’s premises; or that this constituted a special benefit thereto, present no legal error.
    5. Same. :
    The building of plaintiff was a single structure extending along Duane street, but also having a front on Chambers street and Park row. It was let by the plaintiff as a whole. The lower floor was used as' a restaurant and bar, but the lessee rented the upper stories to different tenants. Held, that it was properly treated as one property by the court.
    6. Same. •
    The fact that plaintiff took his deed, subject to an outstanding lease having three years to run did not preclude him from recovering past damages for those years.
    7. Same—Reduced rent.
    Plaintiff, in good faith, cancelled a lease at $5,000, and granted a new lease at $4,400, because the tenant was unable to pay the larger rent. Held, that the plaintiff was not precluded from making the change nor from having the reduced rent considered in considering the value of the premises.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered on findings at special term.

      Brainard Tolles, for app'lts; W. G. Peckham, for resp't

       Affirming 46 St. Rep., 863.

   Andrews, Ch. J.

(1) The trial judge awarded the sum of $3,500 for injury to rental value of the property from April, 1884, to May, 1891, the date of the trial, and $6,000 for fee damages. The claim in behalf of defendants that there was no evidence to support these findings is not sustained by the record. The plaintiff’s building fronts on Park Bow, Chambers St. and Duane St. At the junction of Park Bow and Chambers St. the defendants, directly in front of plaintiff's building, and rising above their tracks and platforms, have constructed a two-story building, with sub-story underneath, used for a coaling and water station, with tank house, switch house and coal bins, and there supply their engines with coal and water. Their engines occupy the tracks in front of plaintiff’s premises for this purpose, drilling backwards and forwards, and emitting smoke and cinders which are cast upon the plaintiff’s house. This structure rises above the building of the plaintiff, and occupies 6,000 square feet of the streets in front of his lot. It prevents to a great extent any outlook from the plaintiff’s building on the Park Bow and Chambers St. sides, beyond the elevated structure. The maintenance of such a structure at this point would naturally suggest injury to the plaintiff's property, which is located near to the City Hall, Court House and Printing House Square.

The award of fee damages is claimed to have been unauthorized on the ground that there was no evidence that the property had been permanently depreciated by the construction in question or the operation of the elevated road, and the defendants refer to the fact that the plaintiff’s property was sold in 1877 for $30,000, and that plaintiff paid $60,000 for it in 1884. This latter sum was, as witnesses testified, the value of the property in 1873, when the panic commenced. In 1883 the Brooklyn bridge was completed, which, as was shown, tended to increase the value of lands in the vicinity of this property. The plaintiff’s witnesses testified that since 1884 up to the trial in 1891 there had been no substantial advance in the value of the plaintiff’s property, although, as was shown the value of the property on Park Bow beyond the elevated railroad structure, and but a short distance from the property of the plaintiff, had largely advanced during that period. The fact that the property of the plaintiff was injured by the occupation of the streets by the structure of the defendants was testified to by the expert of the defendants.

Upon the facts stated and other facts not necessary now to detail, we think there was a basis for the award of fee damages. So also in respect of past damages. The property rented in 1873 for $6,000. It now yields $4,400. The property next to the plaintiff's lot, on each side, in front of which the railroad structure also extends, rents for much less than before the road was constructed, whereas the rents of property just beyond the structure on Park Row and adjacent streets have largely appreciated. The character of the occupation has changed. The building next west of plaintiff’s is owned by a savings bank, and rooms are now occupied by a barber shop which before were let for insurance offices.

The awards made by the experienced and able judge who-tried this case seem to be reasonable and are justified by the evidence.

(2) It does not appear that any error was committed in the principle upon which the court proceeded in awarding damages. The principles governing the award of damages in cases like this have come to be quite well understood. The property rights of an abutting owner consist of easements of light, air and access. There are no easements of privacy or quiet, or other easements than those mentioned, for which compensation can be claimed. In ascertaining past damages the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street for railroad uses. Am. Bk. Note Co. v. New York Elevated Railroad Co., 129 N. Y., 252; 41 St. Rep., 531. The damages and the compensation to be paid are measured by the balance of injury over benefits, and in ascertaining them the advantages and the disadvantages are to be considered, and the benefits, whether general or special, from the construction and operation of the railroad which tend to counterbalance the disadvantages, are to be taken into account in reaching the final result. Bohm v. Met. El. R. Co., 129 N. Y., 576; 42 St. Rep., 247. We discover no departure from these principles in the case before us.

By the eighteenth finding the sum awarded for past damages was based upon the injury sustained by the plaintiff in the diminished rental value of his premises from 1884 to 1891, from the impairment of his easements of light, air and access, “ over and above all special benefits,” etc. There is no evidence that there were any general, as distinguished from special benefits, resulting to the property from the railroad, and no inference can be drawn that the trial judge excluded from consideration any advantages, however, arising in arriving at the award.

The nineteenth finding relates to the fee damage, and the sum awarded is for the appropriation of the same easements of light, air and access, and the depreciation of the property thereby “over and above all special benefits,” as in the other case. It not appearing that the court adopted an incorrect rule in awarding damages, nor excluded from consideration any benefits, general or special, and awarded nothing but consequential damages, the refusal to find that the easements were of nominal value only, separated from the abutting property; or that only damages to the extent that the disadvantages exceed the advantages could be recovered ; or that in estimating damages benefits caused by the railroad to the plaintiff’s property, and not shared by the community in general, should be allowed; or that the station, passenger, near the plaintiff’s premises was daily used by great numbers of people, some of whom passed through Park Row, in front of plaintiff's premises; or that this constituted a special benefit thereto, present no legal error.

(3) There is no reason to infer, that the noise entered into the damages awarded, or that anything was allowed except for the impairment of the easements of light, air and access. No other easements were considered by the court in awarding damages. If the last clause in fifth finding could bear the interpretation put upon it by the counsel for the defendants, it was harmless in view of the specific grounds of the award of damages stated in the eighteenth and nineteenth findings. In respect to noise this element seems to have been excluded even in fixing past damages, although it might properly have been considered.

(4) The case does not present the question whether the owner of property near to, but not abutting on a street occupied by the elevated railway, has any legal gz-ouzzd to complain of its construction and operation. That has not, so far as we know, been hitherto claimed and is not now claimed by the plaintiff. The building of the plaintiff was a single structure extending along Duane street, but also having a front on Chambers street and Park Row. ’ It was let by the plaintiff as a whole. The lower floor was used as a restaurant and bar. But the lessee z-ented the upper stories to different tenants. It was one property and was properly so treated by the court.

(5) The fact that the plaintiff took his deed subject to an outstanding lease having three years to run, did not preclude him from recovering past damages for those years. The principle of the case of Kernochan, 128 N. Y., 559; 41 St. Rep., 110, applies.

(6) The cancellation of the Sauer lease of 1887, and tlze granting of a new lease for the rent of $4,400 was, so far as appears, made in good faith, because the assignee, Lange, was unable to pay so large a rent as $5,000. We think the plaintiff was not precluded frozn making this change in the interest of the defendants, who were in the street without right as against him, or that he was thereby prevented from having the reduced rent considered in ascertaining the value of the premises.

(7) We think the evidence of the witness Harnett on his redirect-cxamination, which involved the giving of an opinion as to the amount of injury to the plaintiff’s property by reason of the elevated road, was nothing more than an amplification of an opinion called out by the defendants on their cross-examination of the same witness, and that the exception thereto is not tenable.

(8) The exception to the admission of the slips made by the witness Fogg and in part used by him on his examination in chief by the defendants in giving his evidence as to the course of values, even if erroneous, furnishes no ground forreversal. The plaintiff’s counsel, on cross-examination, called for the slips and introduced several of them. They related to tz-ansactions in real estate in Park Row. It ■ does not appeal from an inspection of the record how they were material, or that they had or could have any effect upon the issue involved. No explanation was given of their force or significance.

We find no material error in the record, and the judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.