author: Dykman, J.

text:
    In the Matter of New York and Brooklyn Bridge. In the Matter of Thomas J. Leary et al.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894 )
    Condemnation proceedings — Dower.
    The inchoate right of dower, in condemnation proceedings, will be protected in the proceeds as against the husband.
    Appeal from an order directing the entire value of the land to be paid to the owner, and disregarding the inchoate right of dower of the wife.

      Gaynor, Grout & De Fere, (Edward M. Grout, of counsel,) for app’lt; Fromme Bros., for resp'ts.
   Dykman, J.

This is a proceeding for the acquisition of real property by the exercise of the right of eminent domain. The fee of the property was in Thomas J. Leary, and his wife;. Jessie Leary, was made a party to the proceeding. A judgment entered upon default was opened on the application of the wife, on the ground that she had not been served with notice, and the judgment was modified so as to provide that one-third of the compensation for the property, after the payment of liens, should be paid into court to abide further order. That judgment hac been acquiesced in without appeal, and its provisions have been performed. The compensation for the premises condemned was $31,000. One-third of the equity, after the payment of a mortgage, is $6,711, and that is the sum of money now involved. Subsequently, the husband made application to the court for the payment of this last sum to him. The wife opposed such application, and demanded that the money be invested during the lifetime of the husband, and that her inchoate right of dower in the-.premises be recognized and protected. Her application was denied, and an order was made which directed the money to be paid to the husband. Upon that motion no one appeared but the husband and wife, and the controvérsy is between them exclusively. The wife has appealed from the order, and the question involved is whether, in proceedings for the condemnation of real property under the5 right of eminent domain, the inchoate right of dower of a wife is to be recognized and protected in the proceeds as against her husband.

Wliefe real property belonging to a married man is taken for a public purpose by the exercise of the right of eminent domain during the coverture, upon an appraisement and payment of the value to the owner of the fee, an absolute title is acquired, divested of any inchoate right of dower existing in his wife. So much is fundamental, resulting from the nature of the proceedings, and the theory 'upon which the power of the sovereign to condemn private property for a public use is based. That theory is that the people, in their right of sovereignty, are deemed to possess the original and ultimate property in all lands within the jurisdiction of the state, and may resume the possession again to mieet public necessties. That was also the decision of the court of appeals in the case of Moore v. Mayor, etc., 8 N. Y. 110. But that does not seem to dispose of the question involved in this appeal. Here the question arises between the husband and the-wife over a fund which may be deemed real estate, as well as the surplus arising from a sale upon the foreclosure of a mortgage upon the property of the husband, in which the wife had joined. In that case the inchoate right of dower is held to attach. Matthews v. Duryee, 4 Keyes, 525. In the case of Miller v. Van Voorhies, 20 N. Y. 412, it was said the inchoate rights of the wife are entitled to protection as much as the vested rights of a widow. The case of Moore v. Mayor, etc., decided that the wife had no interest in the lands of her husband which required compensation to be made to her where they were taken for a public purpose ; that, while the husband lived, he represented the absolute fee which the -statute vests, and concludes persons upon the confirmation of the réporfc of the commissioners. But is that decisive of this appeal ? In the case of Simar v. Canaday, 53 N. Y. 304, it is said, in the opinion of the court:

“We think that it must be considered as settled in this state, notwithstanding Moore v. Mayor, etc., and some dicta in other cases, that as between a wife and any other than the state or its delegates or agents, exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest, which will be protected and preserved to her, and that she has a right of action to that end.”

This limitation of the Moore Case materially circumscribes its operation, and leaves it to stand as an authority only as between the wife and the state and its delegates. In the Simar Case a husband and wife had joined in a conveyance of his land, the sale being induced by the fraud of the grantee, and it was .held that the wife had a cause of action against him for damages sustained by the less of her inchoate right of dower. This limitation of the Moore Case was also noticed in the opinion in the pase of Doty v. Baker, 11 Hun, 222, where it was held that a release by a wife of her inchoate right of dower in the lands of her husband was a good consideration for his payment or promise to pay her a portion of the purchase money. In the case of Smart v. Haring, 14 Hun, 276, it was held that such a release by the wife was a good consideration for such a promise, and that a conveyance of property to her in pursuance of such agreement is valid, except as to creditors, and is valid as to them to the extent of the value of such inchoate right, computed according to the rule laid down in Jackson v. Edwards, 7 Paige, 408. Where a husband, in order to induce his wife to relinquish her right of dower in certain lands which he wished to sell, agreed to give her $70 a year during her life, the release of her dower was a valuable and sufficient consideration for the promise. Foster v. Foster, 5 Hun, 557; Garlick v. Strong, 3 Paige, 440. In the case of Jackson v. Edwards, 7 Paige, 408, the chancellor laid down the rule for computing the value of the wife’s contingent right of dower during the life of her husband. That case was decided in January, 1839, and in 1840 the legislature enacted a law which provided for settling the rights of married women in the manner stated by the chancellor for ascertaining the value of the inchoate right of dower of married women in case of a sale of premises and of securing the money by investment. Laws 1840, c. 177. Dower is highly favored in equity. The right of a doweress is a legal and moral right to sustenance out of the husband’s estate, and in that respect she is in the care of the law. 1 Story, Eq. Jur. § 629. In view of the authorities, therefore, and also upon principle, our conclusion is that an inchoate right of dower in lands taken by right of eminent ■domain is a subsisting interest, which will be protected. The right of the wife in the fund involved in this appeal should be settled in accordance with the rule laid down by the chancellor in Jackson v. Edwards, supra, and the order should be reversed, with $10 costs and disbursements.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    The Village of New Rochelle, Resp’t, v. Fredericka Lang, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Injunction—Village obdinance.
    An action to restrain the building of a wooden house within the fire limits of a village, in violation of an ordinance, will not lie.

      C. H. & O. A. Young, for app’lt; Charles F. Irwin, for resp’fe.
   Cullen, J.

This is an appeal from an order denying an injunction to restrain the defendant from constructing a wooden building in the village of New Bochelle. The injunction was properly denied. We think that the plaintiff had no standing to-maintain the action. “It is no part of the province of a court of equity to enforce the penal laws of the state or the by-laws of a corporation by an injunction unless the act sought to be restrained is a nuisance.’-’ Mayor, etc., v. Thorne, 7 Paige, 261. The same rule was held in Village of Brockport v. Johnston, 13 Abb. N. C. 468. Even if the act weie a nuisance, the remedy was by indictment, or in equity only at the suit of the people, or of some private person who alleged special damages. The provision of the statute (chapter 306, Laws 1876) authorizing the village to “prohibit, restrain', and prevent” gave the plaintiff no standing in equity to bring an action otherwise not attainable by it. It provides for restraint not by injunction, but by the means placed in the power of the village penalties, etc. We have also grave doubts as to the validity of the ordinance enacted. The village is empowered to fix a fire district, and “to prohibit, restrain and prevent within said fire district the construction of any frame or wooden building for any purpose whatever.” The ordinance passed by the trustees prohibits the erection of any such building within the limits named without the consent of the trustees. This is a different prohibition from that authorized by the statute. The law authorized the establishment of a district in which there should be no wooden buildings. The trustees have fixed the district in which there may or may not be wooden buildings, as the trustees pleased.

The order appealed from should be affirmed, with $10 costs and disbursements.


author: Pratt, J.

text:
    Franklin P. Roberge, Resp’t, v. Maria N. Winne et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Execution—Judgment in equity.
    An execution for the sale of the property cannot be issued on a judgment which provides that the land shall “be subject to, and bound by, the lien of the judgment herein directed for” a specified sum.

      Appeal from an order granting leave to issue execution, and from an order denying a motion to vacate the sheriff’s certificate of sale.

      Mooney & Shipman, for app’lts ; Frank K Gray, for resp’t.
   Pratt, J.

These are two appeals by the defendant Winne from orders made at special term,—First, from an order granting leave to issue execution for the sale of real property; and, second, from an order denying defendant’s motion to vacate the sheriff’s certificate of sale. The action is in equity, brought to set aside a deed of premises described in the complaint, made by the defendant Winne to the defendant Gavannah; and to enforce by specific performance the execution and delivery by Winne to the plaintiff of a bond and mortgage for $3,500 on said premises. In December, 1891, plaintiff owned certain real estate in New Jersey, and entered into a contract with the defendant Winne, whereby plaintiff agreed to convey said real estate to said Winne, and defendant Winne agreed to assign to plaintiff a mortgage for $3,500, representing that it was a purchase-money mortgage on property in the city of New York, and that there was no prior liens on said premises, except a lien for $21,000. The plaintiff, in compliance with the agreement, conveyed said New Jersey premises to the defendant Winne, by proper deeds of conveyance, in the month of December, 1891. It appeared shortly after that the premises in New York were incumbered by other liens to the extent of $33,000, which were prior to the mortgage which the defendant Winne was to assign to the plaintiff. Thereupon plaintiff and defendant Winne entered into a new agreement, by which the defendant Winne agreed to execute and deliver to plaintiff a mortgage upon the premises in question in the sum of $3,500, payable in one year. The defendant Winne failed to execute and deliver this mortgage to plaintiff, who thereupon brought this action for a specific performance of the contract, and that she be required to execute and deliver the bond and mortgage above referred to. The court, at special term, gave judgment for plaintiff, directing the defendant Winne to execute a bond and mortgage on the real estate in question to the plaintiff, to be dated January 3, 1893, conditioned for the payment of the sum of $3,858.75, on January 3, 1894, with interest at six per cent, per annum; and further decreed that “ the said property of said defendant be subject to and bound by the lien of the judgment herein directed for said $3,-858.75, and for said $281.49 costs.” The defendant Winne thereupon moved for a stay of proceedings, and on the 25th day of February, 1893, the court made an order denying defendant’s motion for a stay of proceedings, and directing that the plaintiff “may issue execution for a sale of said property to satisfy the judgment and costs decreed in the above-entitled action.”

It seems to us that the court erred in making the order that execution issue for a sale of the property to satisfy the judgment. The judgment directed defendant Winne to execute and deliver to plaintiff her bond and mortgage in the sum of $3,858.75 to bear date January 3, 1893, payable in one year from date, with interest at six per cent. It also decreed that the real property be subject to and bound by the lien of said judgment for said $3,-858.75, and for $281.49 costs. It was in all respects a judgment in equity, requiring the defendant to do a specific act, and was a final judgment. In no sense can it be considered a judgment at law for a sum of money. Without discussing the question whether a final decree can be altered or amended unless it contains some provision for such an application, it is sufficient to say that such an alteration or amendment cannot be made except on due notice. Here a judgment in equity is, in effect, turned into a judgment at law for a sum of money, and that, too, not on a motion to amend the judgment, but by adding to the order denying defendant’s motion for a stay something neither party had moved for, to wit, leave to issue execution for the sale of the land to satisfy the judgment.

So much of the order appealed from as directed a sale should be reversed, and the order denying defendant’s motion to vacate the sheriff’s certificate of sale should also be reversed, both with costs.


text:
    In the Matter of the Will of Stephen Townsend, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Will—Capacity—Test.
    Testator, who can comprehend the condition of his property, his relation to the objects of his bounty, and the scope and effect of his will, is competent to make a will.
    Appeal from a decree admitting the will to probate.

      Eugene B. Travis, for app’lts; Clayton Ryder and Geo. E. Anderson, for resp’t.
   Pratt, J.

This is an appeal from a decree of the surrogate of Putnam county admitting to probate the will of Stephen Townsend, deceased. The appellants contested the probate of the will, claiming that the will was not testator’s free act; that he was not capable of making a will, and was not of .sound mind; and that the will was not executed as required by law. The proof of the due execution of the will was ample, and we see nothing to criticise either in the admission or rejection of evidence by the surrogate. His rulings seem to us to have been correct.

The only questions remaining for our consideration are: First, was the testator unduly influenced to make the will? and, second, had he mental capacity to make the will ? As to the first, it is sufficient to say that there was not only no proof of any influence, but positive evidence from the one who drew the will (the husband of decedent’s granddaughter) that the deceased asked him to draw it, and stated that he had made advances to certain of his nine children, giving the amount advanced to each, and wished to divide his property among them so that each should be charged with what he or she had received, and so all share equally. Accordingly Parker drew the will, and explained to the testator how the different proportions were arrived at. There was no evidence to show what sums the testator had advanced to each of his children, and, in the absence of such evidence, and the testimony of Parker, it may be presumed that the disposition of the testator’s estate was not an unequal one. A more serious question is that of testator’s capacity to make a will. He was a farmer, about 80 years old, working on his farm, and attending to its management. The testimony of the witnesses as to his mental condition was conflicting. They were before the surrogate, and we are not disposed to reverse his decision. It seems to us that the weight of evidence was decidedly in favor of the proponent. Upon the question of testamentary capacity the law is well settled, and in the leading case of Delafield v. Parish, 25 N.Y. 9, is stated as follows:

“ It is essential that the testator has sufficient capacity to comprehend perfectly the pondition of his property, his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars ■or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

The decree of the surrogate should be affirmed, with costs.

All concur.


text:
    James A. Buchanan, App’lt, v. Stephen M. Whitman, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Lease—Expiration .
    A lease to extend for one year from the date thereof, terminates at the end of the preceding day of month in the next year.
    :2. Same—Renewal.
    Where the original lease, made to two tenants, gives them a right of renewal, the landlord is not bound to renew the lease to one alone.
    Appeal from a judgment of the county court reversing the judgment of the justice of the peace in favor of plaintiff.

      H. B. Fullerton, for app’lt; Lewis E. Carr, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county ■court which reversed a judgment for the plaintiff in summary proceedings to recover demised premises. W.e think that the lease included the 8th day of April, and terminated at the expiration of the 7th day 'of April, the next year. The weight of authority in this state includes the day of the date of a lease in the demised premises, unless the instrument showed a contrary intention, or custom a different usage, though it must be confessed that there is no very clear adjudication on the question. Wit- cox v. Wood, 9 Wend., 346; Deyo v. Bleakley, 24 Barb., 9 ; People v. Robertson, 39 Barb., 9. In Mack v. Burt, 5 Hun, 28, the lessee was to have possession “from and after May 1st.” This expression unquestionably excluded the 1st of May, but it is not an authority for this case. The lease gave the tenants a right of renewal. But the lease was made to two tenants, and the partnership between them had been dissolved prior to the expiration of the original term. It appears that Whitman alone remained in possession. He could not renew the lease without the consent of his cotenant, and the landlord was not bound to renew the lease to him alone. James v. Pope, 19 N. Y., 324. On the conceded facts, therefore, we think that the plaintiff was entitled to recover.

The judgment of the county court should be reversed, and that of the justice affirmed, with costs.

All concur.


text:
    Mary A. Walsh, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Damages—Elevated bailboad—Easements.
    The coireet rule of damages is applied, where the court finds that the premises were worth a specified sum less than they would have been, if the easements had not been taken.
    Appeal from a judgment restraining defendants from operating the railroad in front of plaintiff’s premises, unless they pay her §500.

      Hoadly, Lauterbach & Johnson (Wm. N. Cohen, of counsel), for app’lts; Stephen M. Hoye (Francis Russell Whitney, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment awarding plaintiff an injunction unless the defendants pay $500 for damages to the fee of plaintiff’s property. Under the decisions of the court of appeals the trial court should have found that plaintiff’s easements in the street, of light, air, and access, were, in themselves, only of nominal value. Bookman v. N. Y. El. R. R. Co., 137 N. Y., 302; 50 St. Rep., 703. But the failure to so find nowise affected the judgment. The court found as a matter of fact that the abutting premises were worth $500 less than they would have been had plaintiff’s easements not been taken. This was the, correct rule of damage. For that $500, judgment was given, and no award was made for the easements, in themselves. There was evidence that justified the finding, and it should not be disturbed.

Judgment appealed from should be affirmed, with costs.

•All concur.


text:
    Julia V. D. Thompson, App’lt, v. The Manhattan Railway Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Carriers—Fellow passenger.
    The fact that, by reason of his intoxication, a passenger is dangerous or annoying to others, gives the right, and imposes the duty, of expulsion.
    3. Same—Injury.
    If, by neglect of this duty, a fellow passenger receives an injury which might have been reasonably anticipated, the company is liable.
    3. Same.
    Where the injury is an accident which no ordinary diligence will prevent» the company cannot be made liable.
    Appeal from a judgment dismissing the complaint.

      Chas. J. Patterson, for app’lt; Davies, Short & Townsend, for resp’t.
   Dykman, J.

This suit was for the recovery of damages for injuries to the plaintiff’s foot. The complaint contains two counts for injuries to the same foot. The first injury was by being trodden upon by a passenger who was standing in the same car where the plaintiff was seated, about the 1st of June, 1888. The plaintiff entered the car at the City Hall station, and after it started she noticed a man in a state of intoxication standing in the aisle, holding onto a strap, nearly in front of her. After the man had been in that position some time, he lurched, and stepped on the plaintiff's foot. He was ¡holding onto the strap, and lurching at every turn. Some ladies appeared to be frightened, but neither they nor the plaintiff made any special manifestation of tlieir fear. A passenger called the attention of the guard to the intoxicated man, and suggested that he be put off or found a seat, and made some other suggestions, but he was not removed. He addressed no one," threatened no one, and was neither obscene nor profane, so far' as we can gather from the record. In relation to the second cause of action the facts are these. The same foot of the plaintiff was stepped on about three years afterwards, on the platform of the defendant’s station at the city hall, in New York city, as she left the defendant’s car. She was returning home, and reached the station about 6 o’clock in the evening, when the station platform was unusually crowded. When the train came to a stop, the guard on the car platform opened the car gate, and cried out, “Let them off first,” and then left the car. The plaintiff landed safely, and had advanced a few steps on the platform, pushing her way through the crowd, when another person stepped on the same foot, and inflicted the second injury. At the trial, when the plaintiff-rested her case, the trial judge dismissed the complaint on motion of the defendant, and the plaintiff excepted to such dismission.

The question, therefore, is whether the testimony introduced on the part of the plaintiff was sufficient to carry the cause to the jury. Carriers of passengers are not insurers of their personal safety against all contingencies. They are responsible only for want of care or skill. As, therefore, they are liable for failure to", exert such care and skill, they are bound to take all reasonable means and measures to secure the safety and comfort of their passengers. In the exercise of that power, they have the right to-repress disorderly conduct in their vehicles, and to expel therefrom persons whose conduct is such as to render it reasonably certain that disturbance or impropriety will follow. Vinton v. Railroad Co., 11 Allen, 304. There is no legal principle which imposes liability upon a carrier of passengers for the wrongful acts of the passenger; but because such carriers have the right to-refuse passage to one who is drunk or disorderly, and to expel him after he has been received if he so conducts himself as to be dangerous to other passengers or interfere with their comfort, and it is their duty to expel persons who imperil the safety or annoy their fellow passengers, they may become responsible for injuries inflicted or resulting as a consequence of such negligence. Yet it must be borne in mind that all passengers have the same legrd rights, of which they cannot be deprived until they are forfeited by their misconduct. A man in a state of- inebriety has a legal right to ride in a public conveyance. So long as he remains quiet, and molests no one, he cannot be legally expelled. It is only when he becomes dangerous or annoying to" other passengers that he becomes liable to expulsion. The question was dully examined in the court of appeals in our state in the case of Putnam v. Broadway & S. A. Railroad Co., 55 N. Y. 114, and the principles there laid down were these: A railroad company is not liable for the wrongful acts of a passenger, but it is bound to exercise the utmost vigilance in maintaining order and guarding its passengers against violence. It has authority to refuse to receive as a passenger, or to expel, one who so demeans himself as to endanger the safety, or interfere with the reasonable comfort and. com yenience, of other passengers: and this police power the conductor or other servant in charge of the car or train is bound to exercise, with all the means at his command, when occasion requires. If this duty is neglected, and in consequence a passenger receives-injury which might have been reasonably anticipated, the company is liable. The fact that an individual has drunk to excess will not, in every case, warrant his expulsion. It is rather the effect on him, and the fact that, by reason of his intoxication, he is dangerous or annoying to others, that gives the right, and imposes the duty, of expulsion. The conductor is only called upon to act upon improprieties or offenses witnessed by or made known to him, and the company can only be charged for the neglect of some duty arising from circumstances of which the conductor was cognizant, or of which, in the discharge of his duties, he ought to have been cognizant. That was the celebrated car-hook murder case, when Foster killed Putnam with a car hook. Both were passengers on a surface car. Foster was tried for the crime, and convicted of murder, and executed. Thereafter the administratrix of Putnam brought civil suit against the railroad company fot’ the recovery of damages resulting lrom his death, which she claimed was the result of the negligence of the company. The court of appeals held the facts, even in that case, insufficient to charge the railroad company with negligence, and the misconduct of Foster in that case was much more disorderly and annoying than that of the man who inflicted the injury upon the plaintiff.. Foster made himself obnoxious to the other passengers, insulted a. lady, and made threats of personal violence against Mr. Putnam. This man did nothing of that kind. He was in a state of inebriation, but not very profound, as we assume from the fact that he kept his feet, and, as we must assume from the testimony of the plaintiff, walked into and out of the car. His inebriety made him neither belligerent or loquacious. There is no claim that his injury to the plaintiff was intentional, and we detect no misconduct on his part that would have justified his expulsion from the car. We also find the evidence entirely insufficient to charge-the guard with any neglect of duty which the law imposed upon him. It is true that his attention was called to the man, but he neither saw nor received information of any impropriety, nor anything to indicate a disturbance. It follows that we find no cause of action under the first count.

Under the second count there is no reason for an extended examination. The railroad company was bound to furnish a safe and convenient place of exit from its car, and it did so. The station platform was in order, and adequate for the strain to which it was subjected. The plaintiff left the car in a crowd of people, and took one or two steps upon the platform, when some person trod upon her foot. There was no sign of approaching danger, and it could not have been averted. The guard directed the people to allow the passengers to leave the car first, but his request was unheeded, and he was powerless. He saw nothing to indicate danger to the plaintiff, and her injury was an accident which no ordinary diligence would prevent, and for which the company cannot be made liable. It thus appears that the plaintiff had no cause of action against the defendant, and the judgment should be. affirmed, with costs.

All concur.


text:
    In the Matter of the Estate of Nathaniel O. Hawxhurst, Deceased. In the Matter of the Estate of Thomas J. Ritch, Jr., as Sole Administrator, etc.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Costs—Executor, etc.
    Where an administrator has reasonable grounds upon which to appeal and acts in good faith, he should be allowed his reasonable disbursements.
    Appeal from a decree settling the administrator’s accounts.

      Geo. 0. Brainerd, for app’lt; Benjamin W. Downing, for resp’fe,
   Pratt, J.

This matter seems to have been determined by the surrogate, not upon the ground that the services for which the $200 were charged - were ■ not performed, or that they were not worth that amount, hut upon the theory that no appeal ought to have been taken, and hence they were unnecessary. It is plain, I think, that if the decision was based upon the point that the services were not worth the amount charged, it is not sustained by the proofs, as there is no evidence going to show they were worth less than charged; neither is there any direct proof that they were incurred in bad faith. The surrogate, however, has found as a fact “that all the rest'of kin, except the plaintiff, who had recovered the judgment, united in a request and a statement that said administrator have the said judgment reviewed by other tribunals.” Here was a judgment that swept away the entire estate, and it is not to be supposed for an instant that a clamorous judgment creditor would favor an appeal that might upset his judgment. The questions raised upon the appeal were sufficiently doubtful to warrant a hope that the/judgment might be reversed. Considering this fact, and the further fact that all the next of kin urged an appeal, we think the administrator acted in good faith; that he had reasonable grounds upon which to appeal, and should be allowed his reasonable disbursements.

Order reversed, with costs.

All concur.


text:
    George Gerbig, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Evidence—Opinion.
    It is competent for experts to testify to matters of fact which are not matters of common knowledge.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial. •

      Lewis M Carr, for app’lt; Arthur S. Tompkins, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff, entered on a verdict of a jury. The plaintiff, an employe of defendant, was injured by the collapse of a coal bin, where he had been put to work shoveling coal. The bin was full, while the adjoining bin was empty. There was evidence tending to show that before the accident the side towards the empty bin had partially given way or been displaced by the pressure of the coal, and that defendant had notice of that fact. Negligence was claimed in three respects ; the character of the lumber used, the insufficiency of the anchoring strips, and the failure to strengthen the bin after it had shown signs of weakness. The evidence was ample to warrant the verdict, and the judgment should stand if no legal errors were permitted on the trial. The first error claimed is the admission of testimony as to the character of the wood used for the partition, to the testimony that the anchors, to sustain any horizontal pressure, would have to extend.into the coal, beyond the natural line or rest. No objection is made to the competency of the witnesses giving this evidence. The first was a carpenter; the second, a civil engineer and builder. But it is claimed that such testimony related to matters of opinion, and was, therefore, incompetent, under Van Wycklen v. City of Brooklyn, 118 N. Y. 429; 29 St. Rep. 790; and Davis v. N. Y., L. E. & W. Railroad Co., 69 Hun, 174, 177; 52 St. Rep. 740. The testimony of the witnesses was, in one sense, as to the matters of opinion, but it was also as to matters of fact. Whether a certain wood is strong or weak, brittle or tough, is a matter of fact, and is a matter of opinion only in the sense that it requires knowledge of and experience with lumber, and the exercise of judgment on such experience, to become aware of the fact. The same is true of the statement of the holding power of the anchors. It was a mechanical or physical fact. But, whether considered matters of fact or matters of opinion, the testimony was admissible. It is competent for experts to testify to opinions concerning matters justly the subject of expert knowledge, or to matters of fact which are not matters of common knowledge. The testimony admitted comes exactly within the rule approved in the Van Wycklen Case, “ that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons rather than descriptive facts.” Surely the majority of people do not know the respective merits and demerits of hemlock lumber, and fewer know the law of mechanics governing the holding of an anchor any more than the thrust of an arm. Hor does the ruling of the trial court conflict with our previous decisions in the cases arising from this accident. Indeed, we are inclined to the belief that in those decisions the principle of excluding testimony as to opinion was pushed too far. The evidence offered by the defendant that the Hillsdale Goal & Iron Company had built the partition and stored the coal in the adjoining bin was properly excluded. The answer (paragraph 8) admitted defendant’s construction of the bin. It allegéd that defendant furnished suitable material in character and in quantity, and intrusted the work to competent persons, and that the negligence, if any, was that of plaintiff’s fellow servants in performing the work. This is a plain statement that the defendant did construct the bin; otherwise, how could the persons who constructed it have been plaintiff’s fellow servants ?

The judgment and order denying motion for a new trial should be affirmed with costs

All concur.


author: Cullest, J. Dykman, J.,

text:
    Thomas L. Johnson et al., Resp’ts, v. The Atlantic Avenue Railroad Company of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Pleading—Amendment.
    The defendant will not, after pendancy of action for three years, be granted leave to file an amended answer setting up an alleged known defense.

      Appeal from an order denying a motion for leave to serve an amended answer.
    Tracy, Boardman & Plait, for app’lt; James C. Church and Mihu Root, for resp’ts.
   Cullest, J.

This is an appeal from an order denying defendant’s application for leave to serve an amended answer. This litigation arises out of a lease executed by the defendant to the plaintiffs. The defendant sued the plaintiffs for the rent agreed t.o be paid, but was defeated. Atlantic Ave. R. R. Co. v. Johnson, 134 N.Y. 375; 47 St. Rep. 535. The plaintiffs brought this action to recover damages for breach of defendant’s covenants. The lease was executed in 1886. The defendant’s action was instituted in 1888, and this action in 1890. In the defendant’s action for rent, the present plaintiffs alleged as a defense an assignment of the lease of the Brooklyn Cable Company, and its acceptance as a tenant by the Atlantic Avenue Railroad Company. The decision in that case proceeded on another ground. It thus appears that the* defendant, long before the institution of this action, knew of the assignment. The amendment now desired by it is to plead such assignment.

We think that the application was properly denied, on account of the laches of the defendant. This suit has been in litigation over three years, and has been to the court of appeals upon an interlocutory order. As to whether, under the present answer, the defendant can show the assignment to defeat the title of the plaintiffs to the damages suffered, or whether such assignment, if shown, would defeat the plaintiffs’ title, we express no opinion. But it appears from the affidavits that the cable company practically is the property of the plaintiffs. The defense sought to be interposed does not go to relieve the defendant from liability, but to establish that its liability is to another person in law. If it was intended to question Johnson’s right to the recovery, if any such might be had, it should have been done promptly. If the defense sought to be pleaded was that defendant was liable to no one, we might look upon it with favor. But the effect of the amendment will be to cause the bringing of another suit by the cable company, so that, in one case or the other, there may be the "right plaintiffs. We think the defendant should not now be granted any favor in this respect, but the defendant should be saved from any risk of a double litigation, or of being compelled to pay the claim twice. The order appealed' from should be affirmed, with costs, provided that within 30 days the plaintiffs obtain an assignment to themselves of any claim the cable company may have against defendant under the lease. In default thereof the application may be renewed.

Dykman, J.,

(dissenting.) The defendant in this action made a motion at the special term for leave to amend its answer to the complaint by the insertion of an allegation that, prior to the commencement of this action and the breaches of the contract charged in the complaint, the plaintiffs assigned the contract to the Brooklyn Cable Company; that, by reason of such assignment, the cause of action for the breach of the contract belongs to the cable company, and the plaintiffs are not the proper parties to sue thereon. The motion was denied, and the defendant has appealed to this court from the order of denial. Our system of pleading and practice is very liberal, and amendments to pleadings are granted by the courts with great freedom. In practice, it is almost a matter of course to permit an amendment to a pleading on application to the court for that purpose. If there be any doubt respecting the sufficiency of the original answer in this case to enable the defendant to introduce testimony to show that the plaintiffs are not the real parties in interest, then the uncertainty should be removed by the allowance of the proposed amendment to the answer. The delays in the litigation and some inconsistent positions of the counsel for the defendant are urged as a reason for the affirmance of this order, but the argument can have but little force. There is ever, more or less delay in all legal proceedings, and there is penalty provided lor the inconsistency of lawyers. But neither the delay nor the inconsistency has been very remarkable in this case. Moreover, courts cannot administer j ustice upon the retributive plan. This defendant has done nothing to forfeit its rights to a fair trial and a fair opportunity to present every defense there is to this action. We do not deem it incumbent upon us now to determine whether the amendment proposed sets up a valid defense, nor whether the defendant is liable to the cable company. The answer should be sufficiently broad to admit the defense, and the question of its validity may be left for determination upon the trial. The merits should be reached unimpeded by technical objections under the pleadings.

The order should be reversed, with $10 costs and disbursements, and the motion granted on payment of $10 costs.


text:
    Coe H. Ten Eyck, Resp’t, v. George W. Sayers et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Injunction—Damages.
    Reasonable counsel fees and expenses in obtaining a dissolution of an injunction are properly recoverable on the undertaking.
    Appeal from an order assessing damages under an undertaking, given by plaintiff in procuring a preliminary injunction.

      Bacon & Merritt and George W. McElroy, for app’lts; James Parker, for resp’t.
   Pratt, J.

This is an appeal by .defendants from an order of the special term assessing their damages by reason of an injunction at $94. The injunction restrained defendant from preventing the closing and opening of a swing bridge on a public highway. This necessitated the employment of a man to open and close the bridge. The wages of the bridge tender during the continuance of the injunction, $28, should have been allowed.

_ The defendants having been successful in obtaining a dissolution of the injunction, their reasonable counsel fees and expenses for that purpose were properly recovered on the undertaking. Hovey v. Rubber-Tip Pencil Co., 50 N. Y., 335; Andrews v. Glenville Woolen Co., Id., 282. In the fact that they succeeded in the motion to dissolve, lies the difference between this case and that of Randall v. Carpenter, 88 N. Y., 293. The special term having allowed such damages, the only question is whether it fixed the amount at too small a sum. We think it did. The action was important. The case involved substantial questions of law and fact, and the affidavits were voluminous. On the evidence, an allowance of $100 for the services of Mr. Bacon in preparing for and arguing the motion to continue the injunction would be entirely moderate. An allowance of $25 should also be made for similar services by his associate. The other charges of counsel seem fairly to relate to the general conduct of the action.

The order appealed from should be modified by increasing the amount awarded defendants by $103, with $10 costs and disbursements to appellants.


text:
    In the Matter of East Eighteenth Street. In the Matter of William Mathews et al.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)
    Municipal corporations—A ssessments—Exemption.
    The property of an abutting owner, who has improved a part of the street at his own expense which has been accepted by the authorities, is properly excluded from the assessment for improving the whole length of the street.
    Certiorari to review an assessment made by the board of improvement.

      JosiaK T Marean, for relators ; Gaynor, Grout & Be Fere, ( Wm. F. C. Mayer, of counsel,) for resp’ts.
   Cullen, J.

This is a certiorari to review an assessment for the improvement of East Eighteenth street, in Flatbush, from Church avenue to the town line. It appears that a part of this street within the limits named had been improved and regulated by the abutting owner, one Ficken, at his own expense, and accepted by the town authorities. The contract for the work excluded that part of the street. Only a nominal assessment was placed on the property adjoining the improved part of the street, and the ' expense of the improvement was imposed upon the remaining property. The statute provides that “if the district of assessment shall not extend beyond,the middle of the blocks between said street or avenue, and the street or avenue next adjoining thereto on each side thereof, they shall apportion and assess the said expense ratably, according to the number of feet fronting on said street or avenue on the lands of the several owners, extending back to the middle of such’ blocks.” Laws 1892, c. 572. The relator contends that under this provision the commissioners should have levied its ratable share of the costs upon Ficken’s land according to its front upon the street. This would be grossly unfair, and such an assessment should not have been levied upon that land unless the statute required it. Ficken’s part of the street, having been improved and accepted by the town authorities, was not subject to further improvements under the statute under which these proceedings are taken.. The petition, it is true, asks the improvement of the whole length of the street within the limits named. This should be construed as excluding such part of the street as had already been improved both in fact and in law. So, under the statute, the lands upon which the expense was to be apportioned and assessed were the lands fronting upon the street or avenue, but this plainly was limited to the part of the street or avenue improved. There was ho improvement of the street in front of Ficken’s land, and therefore no assessment should have been imposed upon it. But the imposition of the nominal assessment in no wise injures the relator, andFicken does not complain.

The proceedings and assessment of the commissioners should be affirmed, with costs.

All concur.


text:
    James C. Brower, Resp’t, v. Leopold Kahn, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Attorney and client—Appearance.
    An appearance by an attorney for a party in an action will not be vacated, where the latter is not prejudiced thereby.
    Appeal from an order denying a motion to vacate a notice of appearance interposed on behalf of defendant.

      Hahn At Myers (Hmanuel J. Myers, and Arthur A. Alexander, of counsel), for app’lt; William T. Gilbert ( William H. Ford, of counsel), for resp’t.
   Pratt, J.

The appearance of a duly-admitted attorney of the court is prima facie good. Where it is shown that he was not authorized to‘appear, and it is shown that injustice will be done by allowing the appearance to stand, the court, upon the application of a party whose rights are imperiled, will take adequate measures for their protection. That is not this case. Kahn has no rights in the premises, and no interest in the litigation. If the facts which are shown in this application appeared upon the real property records, he would not have been made a party to the litigation. The appearance for him of the attorney does him no injury, and the motion to strike it from the record was properly denied.

Order affirmed, with $10 costs and disbursements.


text:
    Elwin S. Piper, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Negligence—Contributory.
    A passenger, on discovering the toilet room to be dark, is not, as a matter of law, negligent in not calling the porter and waiting for a light.

      Appeal from a judgment entered upon a verdict directed in favor of the defendant.

      Jackson & Burr {Jos. A. Burr, Jr. of counsel), for app’lt; Saunders, Webb <b Worcester {Thorndike Saunders and Edwin D. Worcester, Jr., qf counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment for the defendant upon a verdict at circuit directed by the court. The plaintiff, on an evening in January, took a sleeping car at Albany, bound for New York, where the train was to arrive at 6:30 in the morning. His testimony was to the effect that on the approach of the train to the city, about 6 o’clock, he was awakened by the porter; that, partially dressed, he started for the washroom, which he found wholly dark; that, to comply with a call of nature, he felt for the water-closet, the location of which he knew, having been there the night before; that he grasped for the knob, and found one which he supposed to be that of the closet, but which proved to have been that of the rear door of the car,.which had lpeen left open; and that he was immediately precipitated through it from the train upon the ground, and was seriously injured. That the plaintiff fell from the car was not disputed; but the absence of light, and that the door was open, war disputed. There was no conclusiveness of the evidence in favor of the defendant as justified a direction in favor of the disputed questions of fact. It is therefore to be determined whether, in the most favorable aspect of the evidence, the plaintiff failed, as a matter of law, to_ show any liability on the part of the defendant. The plaintiff, being a passenger on the sleeping car, had the right to expect those conveniences which are furnished by such cars, and for which he had paid. Carpenter v. N. Y., N. H. & H. Railroad Co., 124 N. Y. 58 ; 34 St. Rep. 854. It is a matter of common knowledge that on such cars passengers are expected to use the conveniences of the car during the night, and also are a wakened in time that they may both dress and make their toilets before arriving at their destination. When the plaintiff reached the toilet room he found it dark. He.liad a call of nature, which it was reasonable for him to discharge, provided he did not place himself in danger. We think that it cannot be said as a matter of law that the plaintiff, upon discovering the darkness of the toilet room, should have returned to the body of the car, found the porter, and waited until the room was lighted. The question of contributory negligence, therefore, was for the jury. The defendant’s negligence was also for the1 jury. We think no negligence can be predicated on the character of the car itself. But the absence of light might be found to be negligence, for the duty of the defendant was not only to light the lamps, but also to use reasonable diligence to maintain the light in the toilet room. Negligence possibly might not be predicated from the door being left open. The rules of the company provided that it should be kept closed between the stations. As this was the last car of the train, it was hot necessary to open the door for communication between different cars. It is not entirely clear how this door was required by the rules to be fastened, and it may appear on another trial that it might have been opened by a passenger for any purpose, such as air, or to go out on the platform. But we think, in any aspect of the case, the question of negligence, based on the absence of light, should have been submitted to the j ury.

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


text:
    Robert S. Forbes, Resp’t, v. Rachel L. Kennedy, as Executrix, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Appeal—Finding.
    A finding, in an action for services, for the same sum as that testified to, without contradiction, hy plaintiff’s witnesses as the value thereof, must stand.
    Appeal from an order confirming the report of a referee, and denying a motion to set aside such report.

      jEdwards & Odell, (Walter Edwards, of counsel,) for app’lt; Martin & Smith, (Geo. A. Strong, of counsel,) for resp’t.
   Cullen, J.

This is an appeal from a judgment entered upon the report of a referee on a disputed claim against the estate of a deceased person. The report was confirmed at special term. When this case was before the court on a prior appeal we were of opinion that there was no evidence sufficient to make out the plaintiff’s case. Our judgment was reversed by the court of appeals, Forbes v. Chichester, 125 N. Y. 769; 36 St. Rep. 248, where it was held that the evidence was sufficient to require a court or jury to pass upon the question of fact. Accepting this decision that the question of fact as to the claimant’s employment as a physician by the deceased was fairly presented by the evidence, we cannot say that the referee erred in deciding that question in favor of the claimant. The case had to be proven by circumstantial evidence, and our prior decision was not based on our disbelief of any employment, but on what we deemed the insufficiency of the evidence legally to establish that fact. The referee found that there was no specific agreement as to compensation. The claimant, therefore, must recover on a quantum meruit. The referee has found that the claimant’s services were rendered on the implied promise by the deceased to bear all the expenses, and to pay what the services were fairly and reasonably worth. The value was found to be $5,000. This sum seems to us large, considering the plaintiff’s ordinary professional income; but, as it was the value testified to by the witnesses for the plaintiff, and no evidence was given to controvert it, the finding in this respect must stánd. But we can find no evidence in the case that the services were worth this sum over and above the expenses of the plaintiff, and no proof of any usage or custom that the patient should pay the physician’s expenses. There is no proof of what the expenses of the plaintiff were. Certainly the expenditures made by the plaintiff and his wife in traveling apart from the deceased should not fairly be termed expenses of the plaintiff's employment. It is conceded that the deceased gave plaintiff £200 by a letter of credit. We cannot see why, in any aspect of the case, the defendant should not have credit for this sum. We think the judgment must be reversed, and a new trial had, unless the plaintiff stipulates to reduce the judgment by the equivalent of £200, with interest, in which case the judgment is affirmed, without costs of this appeal to either party.


text:
    The People ex rel. Asa W. Wilkinson, Resp’t, v. John E. Ireland et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Highways — Location.
    An order laying out a highway will be reversed on certioran'i, where a much better-route to serve the public convenience, and involving much less injury to the relator, can be obtained.
    Certiorari to review the affirmance, by referees, of an order of the highway commissioners.

      H. H. Benjamin, for relator; T$. A. Carpenter, for resp’ts.
   Pratt, J.

This is a certiorari to review the determination of referees appointed by the county judge of Suffolk County, that affirmed an order of highway commissioners of the town of Southampton "laying out a highway in said town. Considerable evidence was produced before the referees, but it fails to show to my mind that there is any such public necessity for the road as will warrant doing the injury that must result to the rights of the relator. The evidence is undisputed that, where the proposed road is laid out, the land of the relator is worth $1,500 per acre, and that it would cut off and render worthless quite a strip of land, be a serious blot, and render unsalable his whole property. Again, the weight of evidence seems to be that a much better route to serve the public convenience, and involving much less injury to the relator, can be laid to the west of the proposed route, and also a route on the west side of the creek. It also seems quite inequitable that the route should be laid upon land of the relator, when the evidence shows that it might be placed between the lands of Goodman and the relator, which would afford equal facilities of travel, afford as good, or better, landing for boats, as safe a harbor, and so much' less injury to private property. On the whole case, we are forced to the conclusion that no public necessity exists for the particular route laid out, and that the proposed road will result in great injury to the relator.

Order reversed.


text:
    Sarah M. Jackson, Resp’t, v. Pierre M. Brown, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed Feb'y 12, 1894.)

    Evidence—Release—Fraud.
    Evidence that a release pleaded in an action for conversion, was procured by fraud, is admissible without such fraud being pleaded.

      Appeal from an order granting a new trial after a verdict in favor of defendant.

      A. A. Gardner, for app’lt; Mansfield Compton, for resp’t,-
   Cullen, J.

This is an appeal from an order of the county court granting a new trial. The action was for conversion. The defendant pleaded a release. Plaintiff offered to prove that the release had been procured by fraud. The court excluded the proof on the ground that fraud was not set up in the pleadings, and directed a verdict for the defendant. On motion of the plaintiff, the court granted a new trial.

We think that the court erred, on the trial, in excluding the proof of fraud, and properly granted a new trial. Concededly it erred in the ground upon which it excluded the testimony. But the defendant contended on the trial, and now contends, that the evidence should have been excluded because the consideration for the release had not been returned or offered to him before the action was begun. This contention we think erroneous. Being an infant, the plaintiff might, upon showing his inability to make restoration, rescind the release without restoration. Green v. Green, 69 N. Y. 553. It is true that she would be bound to show affirmatively a case which entitled her to rescind without restoration ; but, the court having excluded the evidence of fraud upon the ground that it was not pleaded, it was not necessary for her to make further offers of proof. The ruling made, if correct, was fatal to her case. But, apart from this, she offered to prove fraudulent representations as to the character and contents of the instrument she had signed,—that it was represented that it was a mere receipt. If she should establish a fraud in this respect, it would not be necessary for her to make restoration, even if an adult. Cleary v. Municipal Electric Light Company, 139 N. Y. 643; 54 St. Rep. 932.

Order granting a new trial should be affirmed, with costs.

All concur.


text:
    Henry A. Bowerman, Resp’t, v. Warren D. Bowerman et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed Feb'y 12, 1894.)

    1. Account stated—Impeachment.
    To opea an account stated, it is usually required that the account be produced and the errors pointed out, so that the necessary corrections can be made; and, so far as not impeached, the account will stand as stated.
    2. Evidence—Reputation.
    In an action to set aside a deed for fraud, evidence of the grantee’s repu tation for honésty, integrity, and general reputation of character, is admissible.
    Appeal from a judgment in favor of plaintiff.

      Merrill & Rogers and Edmund Coffin, Jr., ( William C. DeWitt, of counsel), for app’lts; Cornell, Secor & Page (Horace Secor, Jr., of counsel), for resp’ts.
   Pratt, J.

This action is brought to set aside a deed made in 1884 by this plaintiff to William D. Bowerman, deceased, and fora copartnership accounting. It is alleged that, in 1882, William D. Bowerman fraudulently represented that an indebtedness of $12,-000 existed in his favor, and against the plaintiff; that plaintiff believed the statement, and executed the conveyance in discharge of the alleged indebtedness, which, in fact, had no existence. William D. Bowerman died in September, 1891, and in November, 1891, this action was begun. In 1882 the plaintiff and William D. Bowerman had been copartners about 30 years, and had also had many outside speculations aside from the firm affairs. During most of that time, and until 1879, they resided with their mother, and the evidence shows that their evenings were generally spent with her, and their business affairs were a principal subject of their evening' conversations, in which their mother freely and intelligently participated, the sons consulting their mother about their business. In 1882, William D. Bowerman claimed that the plaintiff was in his debt $12,000. Plaintiff was somewhat surprised. William told his brother Ben jamin, also a partner, that plaintiff owed him (William) $12,000. Benjamin was very much surprised. A few days later, William, in presence of Benjamin and of W. S. Childs, their cousin, who was familiar with their speculations, gave plaintiff a statement which purported to show how the indebtedness arose. Childs examined the statement, and plaintiff had a conversation with him on the subject, that may have lasted five or ten minutes. Plaintiff does not remember how long he kept the paper, but thinks two or three days. “He probably put it in his pocket, and looked it over.” lie afterwards' gave it back to William, and has not seen it since. After examination, he believed that he owed William the $12,000, and suggested that the claim be discharged by a deed of the Westcliester property. This was plaintiff’s own offer, and it is clear that William was in no haste to profit by it, for two years elapsed before the deed was executed which is now the subject of attack. The claim is now made that William’s statement of a balance due him from Henry was willfully false, and plaintiff asks that the account thus stated be opened, and the deed by which it was settled be set aside.

To open an account stated, it is usually required that the account be produced, the errors pointed out, whatever has been entered in error or wrongfully omitted being shown, the necessary rectification can be made, and, so far as not impeached, the account will stand as stated. In the present case the account is not produced, and the parties who examined it do not claim to remember any of the items. Obviously, it must have been a statement which, if true, would prove the $12,000 debt, and the plaintiff testified that he believed it to be true. It cannot be said that he was hasty in acting upon his belief, for it was two years before he made his deed; and apparently no thought of questioning the deed or the account stated occurred to plaintiff until after his brother’s death. The ground upon which we are asked to find the account stated to be false and fraudulent" is that an examination now made of such accounts as can he found is said not to show the plaintiff indebted to'William, but the contrary. If none but firm, transactions had taken place between the partners, there would be considerable force in the argument, for the firm books were regularly kept by expert bookkeepers; they were constantly open to the inspection of all the partners; trial balances were prepared and given to each partner twice a year; and, in the ordinary course of business, a correct record would be made of firm transactions, and any error would be discovered, if not before, when the trial balances were inspected by the partners. But the force of this argument in the present case is diminished when we learn that the plaintiff and William D. Bowerman had numerous and important speculations, in which large sums were invested, which had no connection with the partnership, and of which slight trace, if any, can be found in the firm books. They were not reported to the bookkeepers, and outside of the two persons directly interested, no one seems to have had much knowledge of them, if we except their mother, who died in 1879. The records which exist, and have been produced upon the trial, obviously fail to afford the complete knowledge which would be requisite to accurately state the condition of the accounts in 1882, at the time the account was stated, or in 1884, when the indebtedness then said to exist against the plaintiff was discharged by the conveyance now attacked. The transactions upon which that account rested, and to investigate which an attempt has been made, are ancient. The Metropolitan Collar Company business, from which the referee finds a present indebtedness in favor of the plaintiff of $28,000, was closed in July, 1868. It was not a partnership transaction, and the books show the Bowerman interest was then disposed of, and show little more. The Commercial Warehouse investment was not a partnership matter, and was closed in 1873 In that matter the firm books contain entries to the amount of $2,000 only, and from that matter the referee finds an indebtedness in favor of the plaintiff of $100,000. From areal estate sale in 1869, an indebtedness is spelled out of $9,700. From the Manhattan Market business, closed in 1.873, an indebtedness is found of $25,000. From such investigation as he had been able to make of a great number of transactions, including the foregoing, extending from 1852 to 1882, the referee has concluded, not only that the sum of $12,000 was not, in fact, owing from the plaintiff to William D. Bowerman in 1882, and that the deed executed in 1884 must be set aside, and the proceeds of the property conveyed, now amounting to $60,000, must be paid to plaintiff, but that other valid claims exist in favor of the plaintiff, in whose favor judgment is given for $164,000 against the heir and executrices to WilliamD. Bowerman. The whole foundation of this judgment rests on the assumption that it is now possible for strangers to ascertain the exact facts of transactions taking place between two parties from 25 to 40 years ago, where one of the persons is dead, and the other claims to have been always ignorant, and where, if full accounts of the transactions were ever kept, they cannot now be found. We do not think such possibility exist. We do not think it proved that the account stated in 1882 was fraudulent or erroneous. If it was glaringly wrong, it would have provoked suspicion and investigation. The statement of the amount due was made openly, and in the presence of plaintiff’s friends. The written account in support of the claim was delivered to plaintiff in presence of his friends. Ho suggestion is made that any desired information was asked for and refused, and two years elapsed before the debt was paid. These are not indications of fraud, but the reverse. As most of the important items litigated, some of which we have cited, antedated 1882, it follows that they were allowed in and concluded by, the settlement then made.

We think an error was committed in excluding evidence of William D. Bowerman’s reputation for honesty, integrity, and general reputation of character during his lifetime. The contention of plaintiff is that, during a long term of years, a man, now deceased, carried out a comprehensive and consistent scheme of fraud, involving enormous sums. The evidence was circumstantial. One of the witnesses was the plaintiff, and another principal witness was plaintiff’s brother, who might reasonably nave expectations of benefit from a recovery by plaintiff. Such writings as were produced came from plaintiff’s custody. The. transactions were ancient. It is not usually the case that men with a reputation for honesty and integrity embark in a scheme of persistent fraud, and if they do, it is not often they can carry it on for years without discovery. Under the circumstances of this case, we think the testimony admissible, and its exclusion error.

Judgment must be reversed upon both law and fact, and a new trial had before another referee, with costs to abide the event. Let the order be settled on notice.

All concur.


text:
    Coe H. Ten Eyck, Resp’t, v. Town of Warwick et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Navigable watees—Definition.
    All streams are deemed navigable which are capable, in their natural state and in their ordinary volume of water, of transporting to market the products of the fields, forests and mines.
    Appeal from an order continuing an injunction pendente lite.

      Bacon & Merritt and Oeopge W. McMroy, for app’lts; James Parker, for .appellee.
   Dykman, J.

— This is an appeal from an order continuing an injunction. The defendants besides the town are the commissioners of highways, and the object of the action is to prevent and restrain them from closing a bridge over a stream which leads into the lower portion of Greenwood lake. There is a large number of affidavits on both sides, and we have endeavored to glean from them facts which are either uncontradicted or satisfactorily established, upon which to base our conclusions. In that effort we find the following facts : Greenwood lake was formerly called “ Long Pond," and lies partly in the state of Hew York and partly in the state of Few Jersey. The portion in Few York is in Orange county. In its natural condition the lake was about six miles long from north to south, and about three-quarters of a mile wide. Fo navigable stream ever issued from the lake, and there was, far back into time, an old dam at its lower end. Feilher was there any inlet except small brooks or mountain streams. There was a highway leading from the Chester road to the northerly end of the lake, near where the Windmere Hotel now stands, and from there easterly to and across a small stream of water called “ Sucker Brook,” which emptied into the lake at its northerly end, near the Waterstone cottage. The road was carried across the brook by an ordinary plank bridge. The brook was about three and a half miles in length, three or four feet wide, and quite shallow. That brook ran in front of the premises occupied by the plaintiff, through level meadow land, but below there the banks of the stream were higher. About the year 1835 the Morris Canal & Banking Company constructed a dam at the southerly end of the lake, about ten feet in height, for the purpose of creating a feeder for its system of canals in the state of Few Jersey. After the erection of that dam, the water was raised by means of it, and filled up the channel of Sucker brook, and flowed out over the meadows above, and so formed what is now termed the northerly portion of the lake. The hotel of the plaintiff is about one mile north of the original northerly end of the lake, and upon the portion thereof so formed by the, slack water held by the new dam of the Morris Canal & Banking Company. When the water was so raised by means of such dam, it submerged the old road and bridge, and left them about six feet under water, and thereafter there was a road opened further up, and on higher ground, and a bridge was constructed at the place where the bridge in dispute now stands, over which the new road was carried. That road and bridge were cunstructed by persons living on the east side of the lake, who were .cut off by the submergence of the old road and bridge. The bridge was made of plank which rested upon wooden sleepers in the ordinary manner. Rowboats could pass under it, but no others. That road was used by the public, and was subsequently adopted as a public highway by the town of Warwick, Orange county. The lands overflowed by the raising of the dam were paid for by the Morris Canal & Banking Company, which has and exercises the right to draw off the water at its pleasure. The bridge so erected by private parties, and afterwards adopted and maintained by the public authority of the town, was as complete an obstruction to navigation as the present bridge. That bridge was repaired from time to time, and was finally condemned as dangerous. In the fall of 1891 the plaintiff commenced the construction of a steam launch above the bridge, and completed her in the forepart of the year 1892. Upon her trial trip the plaintiff desired to run her down the stream, into the lower part of the lake. Upon reaching the bridge, the plaintiff signed a written instrument, by which he agreed to replace the bridge if it was removed, and. it was thereupon demolished, and the boat passed along, The plaintiff did not replace the bridge, and it remained down for some time, and that seems to have been the period during which the plaintiff operated his boat up and down the stream.

Some facts in relation to the construction of this draw or swinging bridge are not unimportant. After the old bridge was broken down to allow the passage of the plaintiff's boat, he requested the commissioners of highways to build the new bridge so high that his steamer could pass under the same, and proposed to build the approaches to such bridge at his own expense if it was so built higher. Upon ascertaining the expense of such approaches, however, he declined to build the same. Thereupon the plaintiff proposed to the town officers that they should build a swing bridge, and promised, if such a bridge was built, that he would take charge of the same, open and close it, and save the town harmless from all expense and damage resulting from the same. The town officers desired to accommodate the plaintiff, and to facilitate him in his business, and for the purpose of such facilitation, and in reliance upon his promise and agreement, they built a swing bridge, which they would not have done except for his promise. These facts manifest the reason why the bridge was constructed so as to swing, and dispose of the claim that the defendants are under obligation to operate the bridge as a swing bridge because it is constructed in that way. After the completion of the new bridge, the plaintiff refused to carry out his agreement to operate the same, and demanded that the town should open and close the bridge. Such demand was based upon the proposition that the water under the bridge was public navigable water, and that the town could not obstruct the free use and navigation thereof. Thereupon the commissioners of highways fastened up the bridge, and expressed the intention to close the same permanently. This suit was then commenced, and a preliminary injunction obtained, and, from the order continuing the same, this appeal is taken.

The claim of the plaintiff is based upon his right in the stream in question as a public navigable stream of water, and, unless it be such, his claim is baseless. He makes no claim beyond his absolute right in the stream, in common with the public, to navigate the water over which the bridge is built. His position- is that the bridge is a public nuisance, because it is an obstruction to a public navigable stream of water. Without a pause to examine the right of the plaintiff to maintain this action to repress a nuisance which is common to the public, and a wrong against the public only, and therefore to be redressed by a prosecution instituted by the state (Doolittle v. Supervisors, 18 N. Y., 155), we have concluded to examine and decide the appeal upon the merits. The prolongation of Greenwood lake by the erection of the new dam assumes the character of a private reservoir. Its bed is owned by a private company, and the enlargement of the stream is due to the same cause. By the common law of England, the test of navigability of a stream of water was the eb.b and flow of the tide; but that rule never prevailed in this country, because it was inapplicable to its condition. We have rivers navigable for thousands of miles, and capable of floating the commerce of the world, which are tideless. By the Roman civil law, rivers in which the flow of water is perennial belonged to the public, and were navigable if they were capable of being “ navigated,” in the common-sense meaning of that term. According to the Digest, a navigable river is “ statio iiurve navigio.” The Code Napoleon speaks of navigable rivers as “ flottables; ” that is, rivers admitting floats. Angel, Tide Waters, p. 79. The rule of the civil law has ever prevailed in the United States, and is another instance of our great obligation to that splendid system of jurisprudence which was developed in the Roman people. In the state of New York the doctrine of the civil law has been carried to its utmost limit, and the rule to be deducted from the authorities is that all streams are deemed navigable which are capable, in their natural state, and in their ordinary volume of water, of transporting to market the products of the field, forest, and mines. Because some products may be floated to market as rafts, and upon rafts, it is not essential to the public character of the stream that property can be carried in vessels. As some streams are unnavigable against their current, if they are floatable in their natural state, so as to be of public use with the current, their public character is liberally supported. Neither is it essential that the- floating capacity must be continuous. If it be ordinarily subject to fluctuations in volume, attributable to natural causes, and occurring with regularity, and continuing sufficiently long to make it useful as a highway, it is subject to the public use. These deductions are justified by the following cases: Shaw v. Crawford, 10 Johns. 236; People v. Canal Appraisers, 33 N. Y. 498; Morgan v. King, 35 N. Y. 459; Town of Pierrepont v. Loveless, 72 N. Y. 211; The Daniel Ball, 10 Wall. 557; U. S. v. Burlington & H. Ferry Co., 21 Fed. 331. It will be observed that in all these authorities the words “ ordinary condition,” or “ordinary volume,” and “ natural state ’’ are used to specify the condition required to constitute navigability; that is, streams must be capable, in their natural condition, oh floating commodities to market. In the case of Morgan v. King, supra, the court said: “The true rule is that the public have a right in every stream which is capable, in its natural state, and in its ordinary volume of water, of transportating, in a condition fit for market, the products of the forest, mine, etc.” It must be “so far navigable or floatable in its natural state, or its ordinary capacity, as to be of public use in the transportation of property.” The stream in question, in its natural state, answered none of the requisites of the law to render it navigable. In its ordinary condition it would float nothing of importance. We have seen that a stream may be subject to a public use if it be ordinarily subject to periodical fluctuations in volume and height, which occur with regularity; but this stream meets none of these requirements. Its augmentation was caused by artificial means, by a private company, and it may be reduced to its original condition at any time at the volition of the company, subject to no public control. Sir Matthew Hale, in his celebrated treatise De Jure Maris, says:

“ There be streams or rivers that are private, not only in property or ownership, but also in use, as little streams and rivers that are not a common passage for the king’s people. Again, there be other rivers as well fresh as salt, that are of common or public use, for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie, publici juris, common highways for man or goods or both, from one inland town to another.”

In the case of Ledyard v. Ten Eyck, 36 Barb. 124, the judge who prepared the prevailing opinion of the court, in speaking of Cazenovia lake, said:

“ This lake is about five miles long and three-fourths of a mile wide; has no current and no main inlet. Tire land lying along its shores is mostly improved, and used as farming land. Elegant mansions have been erected, and the region of country is healthy and beautiful. But this lake, in my judgment, is in no legal or just sense of the term ‘navigable water.’ It is not, in the language of Lord Hale, a highway ‘for man or goods, or both, from one inland town to another,’ ”

These remarks apply with equal force to Greenwood lake ; and extensive and thorough examination has failed to disclose either principle or authority for holding the stream in question a public navigable stream of water. It is distinguishable in no way from the numerous small meandering streams throughout this state, which find their way into rivers and lakes, but which are entirely useless for any practical purpose of floatage.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.


text:
    In the Matter of Andrew D. Baird et al., App’lts, v. G. Cochran Broome et al., as Supervisors, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Assembly distbicts—Division.
    The proceeding to divide a county into assembly districts will he sustained, where the average number in each district is 54,877, and there is not a variation in any district of more than 6,000.
    Appeal from a denial of the application for a writ of mandamus.

      Jesse Johnson, F E. Barnard, B. F. Blair, and Edwin H. Hobbs, for app'lts ; John B. Meyenborg and Almet F. Jenks, for resp’ts.
   Dykman, J.

The opinion of the court of appeals in this case, when it was decided there, contains this language:

“We do not intend by this'decision to hold that every trifling deviation from equality of population would justify or warrant an application to a court for redress. Such, we think, is not the meaning of the provision. It must be a grave, palpable, and unreasonable deviation from the standard, so that, when the facts are presented, arguments would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for. This is as near an exact definition of the meaning of this section, in this regard, as I am now able to give.”

In view of the rule so enunciated, and of the duty devolved upon the board of supervisors to divide the county of Kings into 18 assembly districts, each of convenient and contiguous territory, and equal in point of population as possible, without a division of the four towns in the county, our conclusion is that there is not only no unreasonable deviation from the standard, but that the standard has been observed. The average number of inhabitants in each district is 54,877, and the variation from standard is only about 6,000 in any case, and in most cases it is much less. Our conclusion is that the order should be affirmed.

All concur.