text:
    ARTHUR McGOLDRICK, Respondent, v WILLIAM C. TRAPHAGEN, Executor, etc., of JAMES W. WILSON, Deceased, Appellant.
   Judgment affirmed, without costs.'

Opinion by

Brady, J.


source: Caselaw Access Project

author: Davis, P. J.

license: Public Domain

text:
    ELMORE A. KENT, Respondent. v. WILLIAM H. POPHAM, Appellant, Impleaded with FRANK J. BARRETTO and others.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Davis, P. J.


author: Brady, J.

text:
    MOBILE FIRE DEPARTMENT INSURANCE COMPANY, Respondent, v. FREDERICK T. PARSONS, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Brady, J.


author: Per Gwriam.

text:
    GEORGE H. PUTNAM and others, Appellants, v. LEO T. MEYER and others, Respondents.
   Order affirmed, without costs.

Opinion

Per Gwriam.


author: Per Curiam.

text:
    SAMUEL R. PLATT and another, Executors, etc., of JOHN W. MOTT, Deceased, Appellants, v. CHARLES H. VAN AMBURGH and others, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Curiam.


text:
    In the Matter of the Appointment of a Receiver of the NATIONAL TRUST COMPANY OF THE CITY OF NEW YORK.
   Order reversed; order entered as directed in opinion.

Opinion by

Davis, P. J.


author: Barrett, J.

text:
    THOMAS S. ROBINSON, Respondent, v. MATTHEW T. BRENNAN, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barrett, J.


text:
    ANNA C. DEVLIN, as Administratrix, etc., of CHARLES P. DEVLIN, Deceased, Respondent, v. WILLIAM KELLY, Appellant.
   Order reversed; motion granted.

Opinion

Per Curiam.


text:
    ISRAEL BROWN, Appellant, v. JULIUS BECHT and others, Respondents.
   Judgment reversed, new trial ordered, costs to abide tbe event.

Opinion by

Davis, P. J.


text:
    WILLIAM J. COMLY, Respondent, v. THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant.
   Order reversed, new trial ordered, costs to abide the event.

Opinion by

Brady, J.


text:
    GEORGE N. WESTON and THOMAS P. FISKE, Respondents, v. THE CHROME STEEL COMPANY, Appellant.
   Judgment affirmed.

Opinion

Per Curiam.


text:
    J. EUGENE ROBERT, Appellant, v. ABRAHAM STRASBURGER, Respondent.
   Judgment affirmed, with costs.

Opinion by

Barrett, J.


text:
    LEVI S. CHATFIELD and another, Appellants, v. ISAAC P. WHITEHEAD and others, Respondents.
   Order reversed, witb ten dollars costs and disbursements.


text:
    SAMUEL SHETHAR and another, Respondents, v. THEODORE BABCOCK, Appellant.
   Order affirmed, witb ten dollars costs and disbursements.


text:
    JOHN T. WILSON v. HELEN L. SIMPSON.
   Order reversed and motion granted so far as to direct that unless judgment be entered by respondent within ten days after service of the order to be entered hereon, the appellant have leave to enter judgment in conformity to ■ the order on the appeal, without costs to either party.


text:
    DION BOUCICAULT, Respondent, v. GEORGE S. GARDNER, Appellant.
   Order affirmed, with, costs and disbursements.


text:
    MARGARET MURPHY, Appellant, v. WILLIAM R. TRAVERS and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements, on the opinion of Daniels, J.


text:
    CATHARINE MOONEY, Respondent, v. JAMES MOONEY, Appellant.
   Order modified by reducing the amount allowed from $250 to $100, and as so modified, affirmed without costs to either party.


text:
    RICHARD FIELD, Respondent, v. SUSAN BLAND and JOHN B. BLAND, Appellants.
   Order affirmed, without costs.


text:
    ETTA ARMSTRONG, v. WILLIAM A. CUMMINGS.
   Order affirmed, with ten dollars costs and disbursements.


text:
    HORACE B. CLAFLIN, Appellant, v. THE LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES F. RICHMANN v. JOHN J. D. MEYER and another.
   Proceedings reversed, with costs on opinion in People ex rel. Hambrecht v. Campbell (22 Hun, 574).


text:
    ROSALIE L. WALDO v. HORACE WALDO and others. SAME v. MARY A. H. WELSH and others.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    THE UNION TRUST COMPANY, Appellant, v. UNION IRON COMPANY, Respondent.
   Order modified by increasing the allowance to the Trust Company to $500, and as so modified affirmed, without costs.


text:
    JAMES H. FERGUSON, Respondent, v. CHARLES H. GREEN, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLARD F. HAUSE, Appellant, v. THE BOARD OF POLICE COMMISSIONERS, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    ALFRED LOW and another, Respondents, v. FRANCIS H. HART, Appellant.
   Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE D. HENCKEN v. THE BOARD OF MANAGERS OF THE PRODUCE EXCHANGE.
   Order affirmed, with ten dollars costs and disbursements.


text:
    JOHANNA GROTH, Respondent, v. THOMAS J. WASHBURN, Appellant.
   Judgment affirmed.


text:
    HENRY SIEBERT and another, Appellant, v. PETER J. VAN ALST, Respondent.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    CHARLES O. LOCKHARD, Appellant, v. THE GERMANIA FIRE INSURANCE COMPANY, Respondent.
   Judgment affirmed.


text:
    GEORGE A. BURNETT, Appellant, v. MARIA L. TUERS and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    ROBERT CUNNINGHAM, Appellant, v. REHUL T. BENE, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    ROSALIE L. WALDO v. HORACE WALDO.
   Motion denied, without costs.


text:
    MOSES HEILMAN v. ISAAC LAZARUS.
   Motion denied, with ten dollars costs.


text:
    In the Matter of DIANA BANNISTER.
   Motion granted, with ten dollars costs, unless the papers be printed and served in time for the March term.


text:
    In the Matter of GEORGE W. ERSKINE.
   Order vacated with leave to bring on the case for reargument, for the purpose of showing the facts and circumstances in respect of the payment of the assessment. No costs to either party.


text:
    ETTA ARMSTRONG v. WILLIAM A. CUMMINGS.
   Motion denied.


text:
    JESSE A. MARSHALL v. FREDERICK A. MACY.
   Motion for restitution granted.

Memorandum.


author: Brady, J.:

text:
    FANNIE E. MUSGRAVE, Appellant, v. JOHN E. SHERWOOD, Respondent.

      Basement — statement by vendor of the use to which adjoining buildings owned by him are to be applied — when the vendee may restrain him, from applying them to other uses.

    Prior to November, 1873, the defendant, who owned a lot on the north-east corner of Fifth avenne and Forty-fourth street, in the city of New York, had erected four dwelling-houses on Fifth avenue covering the entire width of the lot, and had nearly completed a house on the part of the lot fronting on Forty-fourth street. In December, 1873, he conveyed one of the houses and lots on Fifth avenue by a warranty deed to the plaintiff, receiving therefor the sum of $110,000. In the fall of 1874 the defendant remodeled his Fifth avenue houses, joining them by a four-story structure with his building on Forty-fourth street and converting them into a family hotel. Thereafter, and in the spring of 1877, he. was preparing to erect two additional stories on the Fifth avenue houses and enlarge his hotel, and for that purpose was preparing to carry up the party-wall between his house and the plaintiff’s, when the latter brought this action to restrain him from using any part of the said party-wall, or from altering the exterior of his Fifth avenue buildings.
    Upon the trial it appeared that prior to the sale to the plaintiff, in 1873, she in company with her husband and the defendant visited the house subsequently purchased by her and went through it; that on her saying to the defendant that the outlook from the rear of the house was not very prepossessing the latter said, “ Well, there will be nothing upon it that will be disagreeable, because all the property around these buildings are under restrictions; nothing that is objectionable can be built. I, myself, am restricted from putting any-tiling but first-class private residences on this property; and they will always be, first and last, private residences.” The plaintiff also testified that this statement had great influence upon her, and that it was upon the strength of it that she bought.

      Held, that the plaintiff having purchased the premises relying upon the statement of the defendant, was entitled to an injunction restraining him from carrying up the party-wall for the purpose of enlarging the adjoining building and using the same as a family hotel.
    That as to the changes made in the other buildings prior to the commencement of this action, the plaintiff having allowed them to be made without objection, must be deemed to have assented to them, and must bear the consequences of the alteration so made.
    Appeal from a judgment, entered upon the trial of this action, rendered at Special Term.
    In the year 1868 the defendant became the owner of five lots of land situated at the north-east corner of Fifth avenue and Forty-fourth street, constituting together a plot of ground of about 125 feet five inches on the avenue, and 110 feet on the street.
    The defendant’s title to all this land was derived, either directly or through mesne conveyances, from deeds of William L. Cowdrey, referee in the partition suit of Fcwr v. Islcmd, and each of the said referee’s deeds contained the usual covenants against nuisances in the words following:
    “And the said party of the second part, for himself, his heirs and assigns, hereby covenants with the party of the first part, and with each of the parties to said action, and with the other purchasers of any lots on the same block sold under said judgment, and with their heirs and assigns, that neither the said party of the second part, nor his heirs or assigns, nor any of them, shall or will at any time hereafter, erect, make, establish or carry on, or suffer to be erected, made, established or carried on upon the above described and conveyed premises, or any part thereof, any stable, nor any tenement house, coal yard, slaughter-house, meat shop, tallow chandlery, steam engine, smith shop, forge, furnace, .brass foundry, nail or other iron factory, or any manufactory of glass, gunpowder, starch, glue, varnish, vitriol, ink or turpentine, or any coopers’, carpenters’ or cabinetmakers’ shop, or any establishment for tanning, dressing, preparing or keeping skins, hides or leather, or any brewery, distillery, sugar or other bakery, or any lager beer establishment, or any other trade, manufactory, business or calling, noxious or offensive to the neighboring inhabitants.”
    Prior to November, 1873, the defendant had erected upon the Fifth avenue lots four buildings designed to be occupied as dwelling-houses, and covering on the avenue the entire width of the plot of ground aforesaid. He had also, at the same time, nearly completed a house on the eastern portion of the plot of land on Forty-fourth street, being about thirty feet in width on the street and running back (including a one-story extension known as the “picture-gallery ”) to the rear of the Forty-fourth street lot.
    By a warranty deed bearing date December 15, 1873, the defendant, with his wife, conveyed to the plaintiff the third house of those mentioned above, on the Fifth avenue, for the consideration of $110,000.
    The said house so purchased by the plaintiff was and still is known as No. 535 Fifth avenue, and it was taken possession of by the plaintiff and her husband immediately after the delivery of the said contract. They fitted it np and furnished it in accordance with their taste, and ever since have continued to occupy it, and now occupy it, as a private residence.
    In the fall of 1874, the defendant remodeled his two Fifth avenue houses, standing between the plaintiff’s residence and Forty-fourth street, uniting them by a structure of the same height, .four stories, with his building on Forty-fourth street. The basement of the corner building was soon thereafter used, and has ever since continued to be used by the Fifth Avenue Bank, with signs on the Fifth avenue and Forty-fourth street fronts. The other portions of the entire building (comprising the two on Fifth avenue and the one on Forty-fourth street, with the new erection) were and still are so used as to form a family hotel, known as the Sherwood House. Suites of rooms with board in the general dining room, were rented to permanent guests; transient boarders were not received.
    This hotel building was, and still is, rented to James P. Colt, who occupies the same as landlord. The rooms are heated by the landlord, who supplies the usual attendance for the guests. There have been and are no kitchens or laundries in the entire establishment, except those of the landlord for his own use as such, and no cooking or washing of clothes is permitted in any of the rooms occupied by or rented to the guests. The guests take their meals in the public dining room of the hotel, except that in a very few instances the landlord furnishes a private table in the guests’ rooms, as is customary in all hotels.
    These alterations in the buildings were fully completed in the winter and early spring of 1875, more than two years before this action was commenced, and within sixteen months of the purchase of her house by the plaintiff. Until this action was commenced, on the 7th day of July, 1877, it was not suggested by the plaintiff or her husband that the plaintiff’s rights had been in any wise violated or encroached upon by the defendant.
    In the spring of 1877, the defendant formed his plans for erecting two additional stories on his hotel, for the purpose of affording accommodation for a larger number of guests. The plaintiff then suggested to the defendant that he should hire her house, in order to connect that building with his hotel, but the parties could come to no agreement as to a fair rental to be paid for the same. While the parties differed, however, in that respect, there was no suggestion made on behalf of the plaintiff that his past acts had violated, or that his proposed acts would violate, any agreement or promise on the defendant’s part.
    A question, however, then arose between the parties as to the defendant’s right to raise the party-wall between their respective properties, for his proposed new structure of two additional stories. The line between these properties, as appears from the deed of the defendant and wife to the plaintiff, ran through the middle of a party-wall. This wall was twenty inches in thickness below the first story, and the remainder of it was sixteen inches thick. The defendant proposed to increase the height of this wall to the extent of the two new stories.
    The rooms in the two proposed stories were to be finished in first-class manner, and to be made of the same style of finish as the two stories immediately below. They were not to contain conveniences for cooking or laundry or house-keeping purposes, but the occupants were to take their meals in the general dining room, and in all respects to act and be treated as the other guests of the hotel. The charges were to be relatively the same as those made for rooms below. It was competent for the defendant to carry up the party-wall, without in any way breaking or injuring tbe wall, or damaging tbe plaintiff’s property, and sucb was tbe defendant’s intention.
    On tbe 7th day of July, 1877, tbe plaintiff commenced this action after tbe defendant bad made bis contracts for erecting tbe additional stories. On that day she obtained an exponte injunction restraining tbe defendant from using any part of tbe party-wall for bis proposed new structure, witb an order to show cause why the injunction should not be made permanent and tbe restraint enlarged by prohibiting him from altering tbe exterior of bis Fift^b avenue buildings.
    Tbe defendant proceeded witb bis additional stories so far as be might without violating tbe injunction. He carried up tbe walls on three sides, leaving tbe party-wall untouched and that side exposed to tbe elements.
    Tbe court below held that:
    I. Tbe defendant has tbe right to build upon and increase tbe height of tbe party-wall standing upon bis premises and those of tbe plaintiff.
    II. Tbe defendant cannot be enjoined from using bis buildings for any other purpose or business than dwelling-houses. ■
    III. Tbe defendant has the right to build tbe proposed additional stories, and use them in tbe manner in which be proposed to use them.
    IV. It is not necessary to decide whether tbe covenants contained in tbe defendant’s deeds are extinguished, but even if those covenants were not merged and extinguished, tbe defendant has done and proposes to do nothing in violation of them.
    V. Tbe complaint should be dismissed and judgment rendered for tbe defendant on tbe merits, with costs and disbursements to be adjusted.

      W. A. Beach, for tbe appellant.

      A. J. Ya/nderpoel and Herbert B. Twrnetr, for tbe respondent.
   Brady, J.:

Tbe questions presented by this appeal have been tbe subject of elaborate investigation and of numerous consultations between myself and associate Justice Barrett. We approached the consideration of them impressed with their importance and the results which might attend our conclusions. This deliberate and careful examination has led3 however, to the conclusion that upon all of them, except one, and those incidental to or necessarily connected with it, the conclusions arrived at in the Special Term were correct.

The learned justice who presided in the court below has expressed his views in an extended and able opinion, and we adojit them as a forcible exposition of the law of this case with the single exception to which we shall presently refer. We do not consider it necessary, therefore, to make any further allusion to them and proceed at once to the consideration of the question about which we think he has erred.

The evidence shows that prior to the purchase of the premises by the plaintiff there were interviews between her, her husband and tbe defendant in regard to tbem, in which certain statements and representations were made as to the character of the houses of which her purchase was one and their then present and future use.

■ It appears from the findings of the learned judge that these representations were made, although denied by the defendant, and that they in fact influenced the plaintiff in purchasing the house bought by her.

The testimony of the plaintiff on this subject is as follows:

Q. At either of those conversations, do you recollect any statements or declarations by Mr. Sherwood in regard to the occupation of his remaining buildings % A. Perfectly.

Q. And you are able to designate at which of the conversations that occurred? A. No; I can’t designate at which one, because before we had positively gone that far we had had a good many conversations ; had looked through the house several times, I remember.

Q. Will you now state what those representations or statements of Mr. Sherwood, to which you allude, were ? A. I remember perfectly on one occasion, which conversation I can’t remember, we were going through the lower rooms of the house; Mr. Sherwood had a cane in his hand and he was constantly knocking the plate-glass to show the superiority of the glass, and also to examine the woodwork of the house; we came to the rear room of the house, the outlook was not very pleasant, as one of the lots on the north side was not cultivated at all or built upon, and I said to Mr. Sherwood, “this does not look very prepossessing,” and he said, “well, there will be nothing upon it that will be disagreeable, because all the property around these buildings are under restrictions, nothing that is objectionable can be built. I, myself, am restricted from putting anything but first-class private residences on this property; and they will always be, first and last, private residences.”

Q. What influence did that declaration of Mr. Sherwood, in regard to his buildings being always first-class private dwellings, have upon your proposed purchase ? A. It had a great influence upon me; it was upon that that we bought, knowing that the two houses on Fifth avenue were all finished, and the one on Forty-fou/rth street nearly completed, which he told me would be his own private residence.

Q. Would you have made the purchase of this house without those statements and representations? A. No, sir; I should have seriously objected to it; I should not have bought.

And we regard the learned justice as having found this, because in answer to the application of the defendant to make one finding involving this element, he says: “As a whole I decline to find this proposition; ” but in reference to the contract of sale says, as follows: “ In my decision, filed herewith, I have stated as my conclusion upon the evidence that on one occasion, in the early stages of the negotiations and anterior to' the contract of the fifth December, in an interview between the parties while inspecting the premises, the defendant, in response to a remark made by the plaintiff in regard to other property, made certain statements which are stated in my decision as well as the circumstances under which they were made. The statements were, however, in substance as those stated in this proposition. But I do not attach to them the character of formal representations or promises made to induce the purchase. No agreement of the parties was then reached; and in view of what afterwards transpired between the parties in coming to an agreement, and of the contents of the contract and deed, I do not regard these statements as material. The defendant and her husband have, however, both testified that they relied on these statements in making the purchase, and would not without them have made it. I accept their evidence as to the influence of these statements upon them, but I do not think the facts and circumstances' justify such reliance, as I have stated in my opinion.”

It also appears that at the time these representations were made four houses on Fifth avenue, including the plaintiff’s, were finished, and one in Forty-fourth street, forming a part of the defendant’s plot of land, was nearly completed, so that the representations were made as to existing things, to facts accomplished, namely, houses completed and one in process of erection and nearly completed, and all of which were necessarily of the character named, because, as the defendant said, he was restricted from erecting other than first-class private residences on the property.

The learned justice, while accepting the evidence of the plaintiff and her husband in reference to the representations referred to, did not deem the facts and circumstances embraced in them as sufficient to justify a reliance upon them, but regarded them as having no legal vitality, substantially for the reason that they were not incorporated in the deed, or in the contract of sale, and were not repeated or alluded to at the time the contract of sale and purchase was made. It appears, further, that after the representations were uttered, and while negotiations were pending, an offer was made by the defendant to accept $120,000 for the house, which elicited an offer for it on tbe part of tbe plaintiff of $110,000; and that offer being accepted tbe defendant drew tbe contract, be and tbe plaintiff’s husband uniting tbeir efforts to accomplish that end, and tbe contract thus prepared by them was copied and executed, each one taking a counterpart.

It is true that no reference was then made to tbe bouses in tbe respect embraced in tbe representations made in tbe earlier negotiations for tbe purchase, and that nothing was said about them at tbe time tbe contract was prepared and executed, according to tbe testimony. They were neither repeated, nor withdrawn nor modified, and therefore whatever impressions were formed were allowed to remain. But it appears from tbe evidence, and is regarded by us as having been substantially found by Mr. Justice Yan Yorst, that tbe representations and statements mentioned were tbe inducing cause of tbe purchase, one of which, as we have seen, and a very important one, was tbe restriction by which tbe defendant declared himself to be controlled as to tbe me of the lamd. Tbe location of tbe property, the character of the houses as erected, and the price paid by the plaintiff for the one that she purchased, all have an important bearing not only upon the question whether or not the representations were made, but upon their influence in effecting the sale, and tend to fortify the charge that such representations were made and were an inducing cause. It is evident from the testimony that the plaintiff was purchasing what she regarded .as a first-class residence in a desirable locality, the character of which was secured by restrictions to the extent statéd, and her testimony is that it was bought as a private residence and as a permanent home. The inference justly to be drawn from the facts, namely^ the locality and character of the house and its surroundings, and the consideration paid for it, was that the plaintiff was paying for the special privileges arising from the fact that it was, and the defendant’s houses adjoining it were by restrictions stated to be private residences, in the language of the plaintiff “ always, first and last,” as declared to her by the defendant himself.

Assuming, as we must, from the views expressed by the learned judge, that the defendant made the representations stated by the plaintiff and her husband to have been made prior to the purchase, and that those representations were the inducing cause of the purchase, we do not understand why the defendant should not, in equity, on the plaintiff’s application, be restrained from altering the character of the houses which he thus declared, by restrictions in force, were to be and should be, first and last, private residences, unless she has waived her rights in this respect.

The circumstances under which the contract was prepared should not be regarded in equity otherwise than as favorable to the plaintiff, because neither of the parties framing it were lawyers, and they prepared it without resort to professional aid, which would' probably have developed all the elements necessary for the protection of the plaintiff in reference to the representations made. The defendant in making these representations, which are in their nature promises to some extent, may have gone further in the negotiations than he designed, in his zeal to sell his 'property. But we have nothing to do with that, inasmuch as the court below has determined the issue which we have suggested on that subject in the favor of the plaintiff.

These representations having been made, and the property having been purchased through the influence which they exercised upon the plaintiff, the defendant has created an obligation which imposes upon him the observance of his representations and promises, relating, as they do, not merely to acts in the future, but, as already suggested, to an existing state of facts, namely, the construction of houses completed which in ¡their character, by avowed existing restrictions, were and were to continue to be private residences, and this embraced the use of the easements connected with them.

We regard this case, therefore, upon these elements, as one which is governed by the principles enunciated in the case of Tallmadge v. East River Bank (26 N. Y., 105). In that case it was held that the owner of land, as stated in the syllabus of the case, might by parol contract with the purchasers of successive parcels, in respect to the manner of its improvements and occupation, affect the remaining parcels with an equity requiring them also to be occupied in conformity to the general plan which is binding upon a subsequent purchaser, with notice of the fact, though his legal title be absolute and unrestricted. It was said in that case by Sutherland, J.: From the facts found by the judge at Special Term it appears that when the plaintiff Maxwell and others bought lots in St. Mark’s Place, of Davis, they were shown the map or plan of St. Mark’s Place, showing that the houses on both sides of the place were to be set back eight feet from the street, and that they bought on the assurance of Davis that that plan should be observed in building on the Place; that the strips of eight feet in width on both sides of the street should not be built upon but kept open. It is to be presumed that they would not have bought and paid their money except upon this assurance. It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid.” This case does not stand alone. In the case of Myers v. Watson (1 Simon [N. S.], 523), (a case in which the plaintiffs insisted that they were not bound to do anything except what was imposed upon them by the written contract) it was held that a specific performance would not be enforced for the sale of land, even in a case where no actual fraud had been perpetrated to induce the making of the contract, where the grantee was induced to enter into the contract in consequence of an independent engagement by which the vendor was to do something which he had failed to perform.

The court said: “Was there any engagement on the part of Potter to do anything which he has failed to do, and on the faith of which being done it is reasonable to believe that the defendants entered into the contract in question?” And, further, “If the court is satisfied that such independent engagement was made, and that on the faith of it the defendant entered into the contract sought to be enforced there, if the plaintiff fails to do that which he has undertaken to do, even though it may have been an engagement incapable of being legally enforced, this court will leave the plaintiff to obtain such redress as he may be entitled to at law.” And, further, “ When acting on the faith of those representations parties have entered into contracts, it would not be consistent with the doctrines of equity to compel them to perform these contracts at the instance of those who failed in fulfilling the engagements which they entered into, and on the faith of which the contracts were made.” And the concluding part of the opinion declares: “On the whole, therefore, I am of opinion that it is satisfactorily made out that the vendor by his agent induced the defendants to enter into these contracts on an assurance that certain things material to their interests should be done by him, and that having failed in performing what he had so engaged to do, his assignees are not entitled to relief in this court, so that their bill must be dismissed, with costs.”

In Pierce v. Woodward (6 Pick., 206) it was held also that on the purchase of land, parol evidence was admissible to show that the principal inducement to the plaintiff to purchase was a succession to the business which had been earned on in the premises by the grantor, and with which the latter undertook to interfere. (See also Grenawalt v. Kohne, 85 Penn., 369.) It might well be presumed from the evidence that this plaintiff would not have bought the house which she purchased from the defendant, and paid the consideration she gave for it, had it not been for the representations made in reference to the houses of which it was one, if it were necessary to invoke any such element; but it is not because the fact is found that she was induced by them to make the purchase. It is to be presumed, also, that relying upon this assurance the plaintiff gave a larger sum for the property than she would otherwise have paid.

The learned justice in commenting upon the case of Tallmadge v. The East River Bank (supra), observes, in his opinion in regard to it, that there is entirely absent from the plaintiff’s claim what was a special feature in Tallmadge’s case, namely, the reciprocal and mutual easement, and, further, that the plaintiff here was placed under no obligation to use her house as a private residence. If, however, the doctrine declared in the case just mentioned is to prevail, and we assume that it is, notice to her of the character of the defendant’s houses, and the terms upon which they were sold would be equally controlling upon her as upon Davis in the case (supra), and upon the subsequent purchasers as declared in that case. Indeed it seems to be quite clear that if the plaintiff had attempted to appropriate her house to purposes inconsistent with the design of the defendandant in constructing it and the other houses, she could be prevented, on her own statement, by a just application of the rule of law now invoked for her benefit. It must not be forgotten, in the consideration of the question involved, however, that the plaintiff’s house was built with an easement, a party-wall, and which consequently existed at the time of the negotiations for and the sale of it to the plaintiff, and which was referred to in the conveyance to her. Therefore, as already suggested, it is the use of the existing easement for purposes antagonistieal to the expressed design of the defendant in building the houses, made patent by his statements and representations, which is complained of and by which the house adjoining the plaintiff’s, to the prejudice of her property, as shown by the evidence, was enlarged not as a private residence, but for business purposes, namely, as a part of a family hotel. We do not wish to be understood, however, as declaring it to be our judgment that the defendant would have no right to build upon the party-wall, if the object were to enlarge his house as a private residence. W e think the case of Brooks v. Curtis (50 N. Y., 639), is decisive of that question in his fayor. Such a use might be in per- ‘ feet harmony with the original design in the structure of the houses and the representation and restriction to which reference has been made. The enlargement of the houses adjoining the plaintiff’s premises was not contemplated with any such intention or for any such purpose, according to the findings of the learned judge who presided at the trial, but, as already suggested, was for the purpose of affording accommodation for a larger number of guests in tbe hotel to which the defendant’s houses adjoining had been appropriated.

We do not wish to be understood either as declaring that the’ defendant is under obligations to reform the character of the houses, other than the one adjoining the plaintiff, because we think that the changes which were made prior to the commencement of this action in the other houses, must be regarded as having been assented to or acquiesced in by the plaintiff, because she allowed them to be thus changed without objection, and in equity must bear the consequences of the alterations so made.

Our judgment is, therefore, it appearing that the plaintiff did not assent to the use of the party-wall between her and the adjoining premises for the erection of the additional stories, which were made for business purposes, that her right to protection from such a use by the defendant exists, and in equity and good conscience should be enforced, and that the learned judge presiding at the Special Term erred in his conclusions of law upon that subject. This view renders the defendant liable to the consequences of his statements and representations discussed, which, as we have seen, induced the plaintiff to purchase.

It follows, therefore, that there must oe a. new trial, which is ordered, with costs to abide the event.

Barrett, J"., concurred.

Present — Bradt and Barrett, JJ.

Judgment reversed; new trial ordered; costs to abide the event.

       The following is the portion of the Special Term opinion, delivered by Judge Yan Vorst, above referred to:

        Party-wall — right to increase its height— Covenant against the use of premises for a tenement-house.

      A party-wall may be increased in height by either party interested therein, provided it can be done without detriment to the strongth of the wall, or to the building of the adjoining owner.
      A covenant in a deed against the use of premises as a “ tenement-house51 is not violated by their use for a family hotel or apartment-house
      Questions of great interest are presented by the facts appearing on the trial, and in the argument of the learned counsel appearing for the parties.
      They are best disposed of by determining first wlia/fc are the rights of the parties attached to and growing out of the wall in question, considered as a “party-wall; ” and if it shall appear that they include the right in the parties to add to its height, whether the defendant is restrained by any agreement; covenant or equitable consideration, of which this court can take cognizance from exercising that right.
      When any question has arisen, in respect to a party wall, the courts have always been careful to respect and uphold within legal limits the rights of the adjacent owners therein.
      A party-wall is in no just sense to be deemed a legal incumbrance upon property. The mutual easement of adjoining proprietors in a party-wall is a benefit, and not a burden, to each of them. It is a valuable appurtenant which passes with the title to the property, (Hendricks v. Stark, 37 N. Y., 106, Porter, J.)
      When the case of Nash v. Kemp (49 How. Pr., 522) was under consideration at Special Term, the right now claimed by defendant was, in part at least, incidentally examined, and the result was in substance reached, that as long as a party-wall was capable of answering the purposes for which it was built, the owner of either part might underpin the foundation, sink it deeper as occasion might require and increase its thickness within the limits of his own lot, or its length or height, if he could do so without injury to the wall or the building on the adjoining lot. He could, however, do nothing to its permanent injury as a mutual support to the adjoining house.
      An examination of the adjudged cases there cited seemed to lead to such conclusions. But the right to add to the height of the w;all, even within the limits of an owner’s lot, was not involved in that action, nor was the right claimed by the defendant herein determined by the cases therein cited.

        Brooks v. Curtis (50 N. Y., 639) does, however, distinctly pass upon and determine such right. Raparlo, J., in delivering the opinion of a unanimous court, says: “We think that the right of either of the adjacent owners to increase the height of a party-wall when it can be done without injury to the adjoining building, and the wall is clearly of sufficient strength to safely bear the addition, is necessarily included in the easement.”
      The question was directly involved, and this right should be regarded as definitely determined.
      But the learned counsel for the plaintiff, in his able argument, would limit that case to a wall which was in an unfinished condition, when it was constituted a “ party-wall.” He urges that while that case sanctions the right to carry up an unfinished party-wall, it has no application to the wall under consideration, which was a, finished structure, separating'two completed houses, built for use as private residences, when the plaintiff’s rights were acquired. It is true that in Brooks v. Curtis, when the plaintiff received his deed the wall wus unfinished ; but even in its incomplete condition it was regarded as a party-wall, which conferred the right to carry up the whole wall, although one-half thereof rested upon the land of the plaintiff. The wall was, however, afterward completed and had been in use for more than twenty years before the defendant commenced to add to its height. If the right reserved or created by the deed was only to carry up an unfinished wall, that right would have been exhausted when the structure had advanced to its then completion, and it could not have been added to afterward except through some newly acquired right or license, and of this there was no claim.

        Brooks v. Curtis announces the general and unqualified doctrine that a party-wall may be increased in height by either party interested therein, provided it can be done without detriment to the strength of the wall, or to the building of the adjoining owner.
      There is no evidence that the proposed addition to the height of the party-wall under consideration, will be to its detriment or to the injury of the adjoining building.
      It is claimed, however, on the part of the plaintiff that the proposed increased height of the defendant’s houses and the use to which he means to apply them, will constitute an injury to the plaintiff’s property, and would constitute a breach of the defendant’s promises and agreements with her.
      The question then arises, should the defendant, for any reason appearing in the case, be abridged of his legal rights, incident to his easement in the party-wall in question, and be restrained from increasing its height, in completing the addition to his adjoining buildings?
      (Here followed a consideration of the point discussed in the opinion of Brady, J.):
      A question yet remains to be considered, as to whether the contemplated changes in the defendant's houses and their devotion to the purposes of a hotel, constitute a violation of the covenants in the deeds through which he became gei&ed of the property.

        Witnesses, upon the trial, speak of the defendant’s houses as heretofore used andas contemplated to be used as an “apartment-house,” or “Frenchflats,”or“a hotel,” “a family hotel.” One witness calls it a “boarding-house.” Mr. Mus-grave only speaks of it as a “ tenement-house.” He says the changes give it the appearance of a large apartment hotel, tenement-house character, whatever you choose to call it.”
      But in adding to their height the defendant has not changed the general style or appearance of his buildings. They are externally the same houses with two added stories of the same material and architecture which belonged to them before the addition.
      William H. Guión, a witness for the plaintiff, says that from the added stories they have not lost the external appearance of private residences, although higher than private residences are built.
      There has been no evidence adduced as to what use constitutes a building a “ tenement-house."

      I am inclined to the opinion that the defendant’s houses best answer to the designation of a “ family hotel.” Together they are known as “ the Sherwood House.” The house is not, however, designed for the accommodation of transient guests or casual boarders. Booms in suites or singly on the different floors are taken by families or individuals for some period. The cooking for all the guests or residents of the hotel is done by the proprietor on the premises, the house having been provided with all the means and appliances for the purpose. No cooking or laundry work is allowed in the rooms of the guests. Occupants of the rooms take their meals in the dining-room of the hotel or in their own apartmeuts, according to their arrangements with the proprietor, who supplies all thQ tables.

        Does a house so managed, occupied and maintained, violate the covenants in the deeds to the defendant ?
      And here we encounter an objection, interposed by the learned counsel for the defendant, that the covenants in the defendant’s deeds do not inure to the advantage of the plaintiff — the argument being, that, as between the plaintiff and the defendant, the covenants were extinguished because not included in the plaintiff’s deed.
      It is true that the defendant has not placed the plaintiff under any of the covenants contained in the deeds to himself, and it may be that as between them he did not mean to perpetuate the covenants. But assuming that the covenants are in force, and that the plaintiff may avail herself of them as against her grantor, and through them limit the defendant as to the use of his own lands, yet I do not think the defendant’s houses violate the covenant.
      The covenants interdict by name the erection of buildings devoted to specific businesses and trades. A hotel or apartment-house is not among them. A “ tenement-house" is forbidden. I am referred to no legal definition of the word “ tenement-house ” as used in the covenant, and I am not aware that there is any.
      As already stated, the defendant’s houses, as united and conducted, are not, in terms or according to any accepted meaning or understanding of the word, proved to be such, and unless the word be the equivalent for a hotel or a/pa/i't/ment house, a breach of the covenant in this respect has not been proven, and is not •threatened.
      The burden is on the plaintiff to establish that the defendant’s houses, as conducted and proposed to be, come within the meaning of the covenant. As the covenants, as construed by the plaintiff, work a restraint of what would otherwise be a lawful use of tbe defendant’s bouses and lands, to be restrained, the breach made or threatened should be clearly and satisfactorily established.
      From the connection in which the word “ tenement-house ” appears in the covenant with othei forbidden buildings and business, it would imply that about such premises there is something noxious or offensive. The word " tenement,” in its ordinary acceptation, is applied to houses and other buildings, yet, in its proper legal sense, it signifies everything that may be holden. It not only includes land, but rents and other interests.
      Tenemental land means that part of a manor which is granted to tenants, as distinguished from the demesne lands. (3 Blackstone’s Com., 90.)
      But it is not reasonable to conclude that the covenant absolutely requires that the owner of the land should himself occupy the dwelling-house which he may erect thereon, and that he is forbidden to erect a house which he designs to let to a tenant, or that such letting would be a breach of the covenant.
      The word " tenement-house ” has, however, a comrr^n or conventional meaning. Webster in his definitions of “ tenement,” among others, says it is “ often in modern usage an inferior dwelling-house rented to poor persons or a dwelling-erected for the purpose of being rented, called also tenement-house.” I do not think that the defendant’s hotel answers in any sense either definition. I do not think it within the true meaning of the covenant to hold that it forbids the erection of a house which might or was designed to be rented. There is nothing necessarily offensive about a rented dwelling-house.
      There may be about houses erected for and occupied by many families as tenants, with all the appliances for housekeeping on separate floors. Such houses may become crowded by families and occupants, whose mode of living and conduct in the use of the premises and in their egress and exit therefrom may become offensive to the neighborhood. In large cities it must needs be that buildings will be erected for the accommodation, under one roof, of families of small means, as separate and distinct tenants of different parts of the same house. The tendency to the overcrowding of such houses, and the disregard of cleanliness on the part of occupants, may well constitute such buildings and their use an annoyance to the occupants of private houses adjacent.
      The existence of large numbers of such houses in the city of New York has called for legislative action for their regulation. Chapter 908 of the Laws of 1867 is an act for the regulation of “ tenement ” and “ lodging houses ” in the cities of New York and Brooklyn.
      Section seventeen of the act defines a “tenement-house ” for the purposes of the act:'
      “A tenement-house within the meaning of this act shall be taken to mean and include every house, building or portion thereof, which is rented, leased, let or hired out to he occupied, or is occupied, as the home or residence of more than three families, living independently of another, and doing their cooking upon the premises ; or by more than two families upon a floor so living and cooking, but having a common right in the halls, stairways, yards,” etc., etc.
      Such houses are made by this act the subjects of specific municipal oversight, and are measurably under the supervision of the board of health.
      I think that the covenant in question is directed against the erection and maintenance of buildings of the character of those mentioned in the act. It has no reference to a hotel of the character of the defendant’s, which is, in no just sense, noxious or offensive.

        There was evidence adduced on the trial as to the effect of a hotel upon an adjoining private residence in so far as its enjoyment and value was concerned. There are evidently two opinions upon that subject.
      While some witnesses discover great objections to living in a house adjoining or in the immediate neighborhood of a hotel, others see no disadvantage in such proximity. Some of the witnesses were of the opinion that a hotel depreciates the value of an adjoining house as a private residence ; others regard the devotion of the defendant’s houses to the purposes of a hotel as a ground of advantage, in the prospective advance in value of adjoining houses and lots for business and commercial purposes.
      But I am of opinion that this line of inquiry is foreign to the interpretation of the covenant and affords no proper criterion for its construction. Unless the maintenance of a hotel is forbidden by the letter or true spirit of the covenant, effects of the character indicated cannot control, so long as they do not show the buildings or the business to be noxious or offensive. The defendant’s houses have been well and in an orderly manner kept, as its title of a family hotel and the character of its guests and occupants would indicate. The plaintiff testifies that she has been annoyed by the playing of pianos and other musical instruments in the adjoining houses, and that since the defendant has carried up his additional stories the air and light have been decreased. The latter results have been produced in part by the additions to the defendant’s houses on Forty-fourth street.
      The party-wall is twenty inches thick up to the first story, and above that to the roof sixteen inches. Such a wall should afford reasonable protection against movements of orderly persons in an adjoining house. They are not, however. the consequences of an addition to the height of the party-wall. They cannot be characterized as a nuisance, nor do they exist to a degree to render the defendant’s houses “noxious or offensive to the neighboring inhabitants” within the meaning of the covenant. I should greatly hesitate under the evidence to pronounce them such.
      The case of Brooks v. Curtis (supra) decides that the right of either adjacent owner to increase the height of the party-wall exists where it can be done without injury “to the adjoining building,” and that the party making it does it at his peril. The injury alluded to, I apprehend, is physical to the building itself, the direct result of the addition to the wall. It has no reference to remote consequences.
      The interference with air and light, of which complaint is made, even if within the injuries contemplated by the decision above referred to, cannot be said to arise from the party-wall, as it has not yet been raised. I fail to see how the completion of the wall up to the proposed height cau in any way aggravate these results. Such consequences in a greater or less degree attend improvements and additions to city houses. * * *


author: Pee Cueiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellants, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY AND COUNTY OF NEW YORK, Respondents.

      City of New Yo7'k — the sinking of tracks in Nowrth amenue is am, alteration of a public street— the railroad company cannot be taxed f07' the tunnels and bridges — it may be taxed frr the easement acqwvred by it in the street — how the easement is to be mined— Lams of 1872, chap. 702.
    Chapter 702 of 1872 providing for the regulating of the grade of the New York and Harlem Railroad Company in Fourth avenue, in the city of New York, above Forty-second street, and the construction of viaducts and bridges over the same, was intended to relieve the public from the great dangers and annoyances of a steam railroad constantly passing and repassing with its locomotives and trains upon the surface of the avenue, by so placing the tracks and structures of the railroad that the avenue might, as far as practicable, be exclusively and safely used by the public, and at the same time the railroad enjoy equal or greater facilities of ingress or egress to and from its depot in the city than before; and the alterations and changes in the avenue are to be considered as, in effect, the,laying out or alteration and construction of a street, and the work done and structures erected to put the avenue in the condition required by the act are not a subject of taxation as against the railroad company.
    By virtue of the said act the railroad company acquired a perpetual and exclusive easement in the lands upon which its tracks and other appurtenances were constructed, independently of the public generally and of the city, in which the fee of the soil remains.
    This easement and the railroad constructed andused upon it are lands within the meaning of the statute relating to taxation, and are to be assessed at their fair value as a portion of a continuous railroad, having its connections and relations with the lines of railroads beyond the city and the terminus within it.
    Appeal by tbe relators from an order of tbe Special Term sustaining tbe action of tbe respondents in the assessment for tbe purpose of taxation of tbe real estate of tbe relators, and quashing a writ of certiora/ri which bad previously issued to review tbe same.

      Ohanmcey M. D&pevo, for tbe relators.

      WilUarn O. Whitney, for the respondents.
   Pee Cueiam :

It appears from the return in this case that many years prior to 1872 the relator acquired and had enjoyed the franchise of constructing and operating its railroad upon the Fourth avenue, from Forty-second street to Harlem river, in this city, and thence to Chatham Four Corners, in this State. It also appears that the Fourth avenue was designated as such upon the map or plan of the city, laid out by commissioners appointed for that purpose under the act of 1807 (ch. 95), and that it was subsequently opened as a public avenue under and pursuant to the provisions of the act of April 9, 1813, (ch. 86), entitled “An act to reduce several laws relating particularly to the city of New York into one act.” It further appears that in 1872 an act was passed by the legislature, chapter 702, Laws of that year, entitled “An act to improve and regulate the use of the Fourth avenue in the city of New York,” and which by its terms authorized and required the relator to regulate the grade of their railroad in the-Fourth avenue, and to construct viaducts, foot and road bridges over the same, and to make excavations and tunnels under the same, with openings for proper ventilation, for the purpose of rendering the same safe and convenient to any persons crossing the same, and for all railroad trains and passengers traveling thereon, in the manner prescribed in the act. This enactment also provided for a board of engineers, whose duty it was to execute, direct and superintend the construction of the improvement, and which was to be called the “ Board of Engineers for the Fourth Avenue Improvement.” It was to consist of four members, namely, Allan Campbell and Alfred W. Craven or their successors, the chief engineer of the board of public works of the city of New York for the time being, and the engineer of the relator. The duty was imposed upon the board to prepare the plans and specifications of the improvement in conformity with the act, and also to make an estimate of the expense thereof, and file a copy of the plans, specifications and estimate in the office of the comptroller of the city of New York. The members of the board were required, before entering upon the performance of their duties, severally to take and subscribe an oath or affirmation before some judge of a court of record, faithfully to perform the trust and duty required of them by the act as a member of such board of engineers. It was also provided that the cost of the improvement should be borne and paid for by the relator and.the mayor, aldermen and commonalty of the city, in equal proportions, as the construction of the improvement progressed. It was declared by section nine that the mayor, aldermen and commonalty were not to obstruct the improvement or the use of the Fourth avenue for the purpose of accomplishing it, and they were authorized and directed to pass such ordinances as might be requisite or necessary to facilitate it. It was further declared that the tunnel and railway should be exclusively for the use and purpose of the railroad company, and that it should not be lawful for any person or persons, other than a public officer in the execution of his duty as such, with his agents and assistants, to enter upon or pass upon or through the same or any portion thereof on foot or in any other way than in the proper ears of the relator provided for that purpose, or in such trains of other railroads as should have obtained the consent of the relator, without the sanction of the corporation, under a penalty. It was also provided that the board of engineers should begin the improvement and proceed with the completion thereof with" reasonable expedition. And it was further declared that when completed the railroad company were authorized and directed to run their trains over the improvement and in and upon their depot at Forty-second street and the switches, turnouts and sidings then authorized by law north of said street. The legislature reserved the right to alter, amend or repeal the act at any time.

It will be perceived that the engineers designated were officers of the city with one exception, namely, the engineer of the relator, and that it was their duty to superintend the construction of the improvement which was of the Fourth avenue; and that they were required, in accordance with the general rule relating to such subject to take an oath of office. '.This improvement having been made in accordance with the statute (■swpra), the respondents imposed a tax upon the relator by assessing as real estate, the tracks, substructures, superstructures, stations, viaducts and masonry by which the improvement was accomplished, and of this the relator complains as unjust under all the circumstances detailed.

In approaching the consideration of the question involved, it should be borne in mind, that the relator had for many years enjoyed the franchise of constructing and operating its road upon the Fourth avenue as laid out from Forty-second street to the Harlem river, and that the improvement contemplated did not confer upon the relator any new franchise, but provided for its use in a different mode which rendered it necessary, under the requirements of the act, for the company to expend a large sum of money.

It is apparent, therefore, that although exclusive privileges were granted to the relator, that the act was designed to improve the Fourth avenue as it then existed, and in the manner contemplated by the provisions of the act.

The appointment of persons as engineers who were to make the plans and to superintend the completion of the improvement, was analagous to the appointment of commissioners to open a street, and the result, notwithstanding that the relator was to pay one-half the expense attendant upon it, was that when the improvement was finished, it belonged to[ the city of New York, subject only to the easement created by the act in favor of the relator. In other words, it was the construction of a way by tunneling and excavating through and upon the Fourth avenue, leaving the original grade of the street in some parts of the route undisturbed.

It is apparent, from the provisions of the act, that the use of the Fourth avenue by the relator was regarded, in view of its employment of steam as a motive power, as a franchise dangerous to the life and property of citizens, which the improvement was designed to remove to a great extent, if not entirely. In this respect, decreasing as it did the dangers theretofore existing by the construction, for instance, of bridges and viaducts which in no way enhanced the value of the relator’s franchise, but was for the public benefit, it was an improvement of the Fourth avenue; and doubtless the equal division of the expense between the relator and the city arose from the exclusive privilege granted to the relator in the use of the track, and the greater safety resulting to the citizens of the city from its creation, the relator having, as already suggested, thitherto enjoyed the more dangerous franchise of using the Fourth avenue as laid out for the transaction of its business. The effect of this combination, notwithstanding the exclusive privileges granted to the relator, was, therefore, to improve, as designed, a public street, and not to create a private way, over which the city continued its legislative power, not only impliedly but directly, inasmuch as the act itself reserved the right to the public officers of.- the city to enter and pass through and over the improvement in any way and at any time. From tfyese views it follows that whatever structures or superstructures were necessary to accomplish the purpose contemplated became a part of a public street, and therefore were not liable to taxation.

It follows, also, from.these views that the tunnels, tracks, substructures, superstructures, stations, viaducts and masonry embraced in the improvement were not all taxable as real estate, and that the only taxation to which the railroad could be lawfully subjected would be that to which it would, be liable on the assumption that the rails were laid on the Fourth avenue without reference to the tunneling, excavation and masonry work, which,' in part or in whole, constituted the improvement 'under the act of 1872, and which was in part paid for by the relator.

This case is svñ generis, and presents features entirely different from any of the cases to which we have been referred on the argument, and for which no parallel has been found in the books. But the conclusions at which we have arrived are, that the alterations and changes of the Fourth avenue, under the act of 1872, so far as they relate to the avenue itself, and its restoration to the conditions provided for by the act, and to its support and use as a public street, were in effect the laying out or alteration and construction of a street, and that the work and structures done and erected for the ■ purpose of putting and maintaining the avenue for public use in the condition required by the act, though done at the joint expense of the city and the railroad company, are to be regarded as parts of a public street, and as such are not subject to taxation against the railroad company. They became necessary in order to accomplish the purposes of the act, which were to relieve the public from the great dangers and annoyances of a steam railroad constantly passing and repassing with its locomotives and trains upon the surface of the avenue, by so placing the tracks and structures of the railroad that the avenue might, as far as practicable, be exclusively and safely used by the public, and at the same time the railroad enjoy equal or greater facilities of ingress and egress to and from its depot in the city. The railroad was, therefore, wherever practicable, isolated from the street by the construction of tunnels, bridges, walls and arches which wei’e not so much essential to the use of the railroad as to the public enjoyment of the avenue.

The result of all the work and expenditure of moneys under the act of 1872 has been to put the railroad company into the enjoyment of a perpetual and exclusive easement in lands upon which its tracks and the other appurtenances of the railroad are constructed, independently of the public generally and of the city, in which the fee of the soil remains. This easement and the railroad conducted and used upon it are lands within the meaning of the statutes relating to taxation (People ex rel. Dunkirk, etc., R. R. Co. v. Cassity, 46 N. Y., 46), and this property is to be assessed at its fair value for what it constitutes, to wit, a portion of a continuous railroad, having its connections and relations with the lines of railroad beyond the city and the terminus within the city. Its fair value as a property of that character, considered with a view to its use by the relator and its lessees, is the subject of careful consideration by the assessors. (People ex rel. Buffalo, etc., R. R. co. v. Banker, 48 N. Y., 70.)

The return discloses that the assessors took into consideration the masonry, arches, walls, bridges' and structures necessary to uphold and maintain the avenue and to carry the cross streets over the railroad for public use as though they were the property of the railroad company.

They are not the property of the company, nor, indeed, are they essential to the enjoyment of its road, for the railroad could be used without or with them, but the avenue and the street, since the change in the sites of the tracks, could not be used without them.

We are constrained, therefore, to reverse the proceedings of the commissioners and remand the case for further proceedings.

Present — Davis, P. J., and Beady, J.

Proceedings reversed and case remitted for-further proceedings.


author: Per Curiam :

text:
       In the Matter of the BROADWAY UNDERGROUND RAILWAY COMPANY.

      Underground railroad— how the refusal of the property owners to consent to the construction of the road must be shown— Chap. 582 of 1880.
    To authorize a General Term of the Supreme Court, acting under chapter 582 of the Laws of 1880, to appoint commissioners to determine whether and in what manner an underground railroad shall be constructed it must be shown affirmatively, by a statement of the facts, what application for the consent of the owners of the property bounded on the line of the proposed railroad has been made and refused, and that the persons to whom the same was made were in fact the owners of at least one-half in value of such property.
    A statement that the affiant has endeavored, but failed, to obtain the consent of one-half in value of the property owners, and that he believes such consent cannot be obtained because such owners prefer that the railroad should be built under the guarantees that would be afforded by a proceeding under the statutes for the appointment of commissioners, is insufficient.
    Motion for tbe appointment of commissioners to determine whether an underground railroad should be constructed in the city of New York.
    The petition in the above entitled matter, addressed to the General Term, states that the said company is a corporation organized under the act of the legislature of the State of New York, entitled “An act to authorize the formation of railroad corporations and to regulate the same,” being chapter 110 of the Laws of 1850, and the acts amendatory thereof and supplementary thereto, for the purpose 'of building a railroad underground and in a tunnel, commencing at the north line of Park place, on Broadway, in the city of New York, and extending under Broadway to the north line of Fourteenth street, and to be constructed at such depth below the surface of Broadway as will enable your petitioner to build the same, and at all times to keep the surface of the street and the adjoining land of private owners in a firm and safe condition for public travel, and for the foundations of the buildings now existing or thereafter to be built upon the sides of the said street. That it is proposed to build the said road in pursuance of the powers granted by chapter 582 of the Laws of 1880. That the requirements of the laws aforesaid, with, respect to the incorporation of companies, have‘been fully-complied with, and that stock in the said corporation to the extent of $10,000 per mile of the road proposed to be built has been actually subscribed for, and ten per cent of said subscription been actually paid to the company in cash.
    That your petitioner has applied for the consent of the owners of one-half in value of the property bounded on the said street, and on the line of the proposed tunnel and railroad, to the building of the same, but for the reason set forth in the affidavit of Walter J. Morris, hereto annexed, such consent has not been given, and consequently a necessity has arisen for the appointment of commissioners under the provisions of the said act, chapter 582 of the Laws of 1880. That your petitioner has applied for the consent of the board of aldermen of the city of New York, the authority having the control of the said street, and such consent has not been obtained.
    Then follows a prayer for the appointment of commissioners.
    The petition is verified in the usual form by Robert Sewell, president, November 24, 1880.
    Annexed to the petition is the affidavit of Walter J. Morris, who says that he is a civil engineer, and the engineer of the said company petitioner; that such road has been surveyed, and a map and profile of the proposed railway has been filed in the register’s office as required by law, and that the same remains of record in the said office; “ that he has endeavored to obtain the consent of one-half in value of the property owners whose property is bounded on the said street, and on the line of the proposed railway, to the building of the same, and that he has not obtained such consent that he believes such consent cannot be obtained and is not withheld from opposition to the proposed work of public improvement, but because it is the wish and desire of the said property owners, who are in favor of the same, to have the same built under the guarantees that will be afforded by a proceeding under the statute in such case made and provided, in respect to the question of allowing the same to be built, and in what manner the work is to be carried on and completed.
    That he has devised a plan of construction which will be of advantage to the public interest, and that he believes any modififieations by tbe commissioners will be easily and cheerfully acceded to.
    Sworn to November 24, 1880.
    The application was for an order to show canse, the return day thereof being left blank, why commissioners should not be appointed under the act of 1880. (Chap. 582 of Laws of 1880.)

      G. T. OwUs, for the petitioner.

       Decided December, 1880.

   Per Curiam :

The petition states that an application has been made for the consent of the owners of one-half in value of the property bounded on Broadway along the line of the proposed tunnel and railroad, and that for the reason set forth in the affidavit of Walter J. Morris, thereto annexed, such consent has not been given.

The affidavit of Mr. Morris fails to show that any personal application has been made to such owners, and that any actual refusal has been given. The affiant simply states that he has endeavored to obtain the consent of one-half in value of the property owners, and has not obtained such consent, and that he believes such consent cannot be obtained because the property owners prefer that the railroad should be built under the guarantees that would be afforded by a proceeding under the statute for the appointment of commissioners, etc. This we cannot accept as a compliance with the requirements of the statute It must be shown affirmatively by a statement of the facts what application, to which consent has been refused, has been made, and to whom, and that the persons to whom the application was made are in fact owners of at least one-half of the property bounded on the proposed railroad, so that the court can judge, and not the affiant, whether there has been such an application and such a refusal as the statute requires.

The very general statements of the petition and affidavit does not confer jurisdiction upon the court to appoint the commissioners.

The motion must therefore be denied, but without prejudice to further proceedings after the requirements of the statute shall have been complied with.

Present — Davis, P. J., Brady and Barrett, JJ.

Motion denied, without prejudice to any further application on sufficient facts.


text:
    In the Matter of SAMUEL J. CROOKS.

      Beferee — when an adjournment should he granted on account of the professional engagement of a pa/rty — when a referee has no power to strike out testimony on the failure of a witness to a/ppea/r for cross-examination.

    Apeeal from an order made at Special Term confirming a referee’s report.
    It appeared that an order of reference was made herein on the application of Hannah Jacobs, by which the referee, George E. Martens, was directed to ascertain the amount collected by the appellant, Samuel J. Crooks, in the matters set forth in the petition, and what, if any, liens he had thereupon for services rendered, and to report the testimony with his opinion thereon. The referee, after several adjournments, proceeded with the examination of the appellant, and before his cross-examination was concluded an adjournment was had, and thereafter still another adjournment to the 17th of July, 1880. The appellant did not appear on that day, and an application was made to adjourn, on the ground that he was professionally engaged at Poughkeepsie, and therefore unable to attend. The motion to adjourn was denied, and then the testimony of the appellant which had been taken before the referee was, on motion of the petitioner’s counsel, stricken out, and the reference closed and a report made to this court. Exceptions were duly filed and a hearing upon them had, which resulted in an order confirming the report of the referee.
    The court at General Term said: “ There is nothing contained in the report of the referee to show that the statement made of the engagement of the appellant at Poughkeepsie was untrue; and it does not appear by anything in the record to have been questioned. There was no denial at the time, according to the record, of the truth of this statement. Assuming it to have been true, the application for an adjournment, was a reasonable one and should have been granted. There is nothing, either, in the report showing that the appellant received any money belonging to the petitioner except that which is contained in his evidence, and which, as we have stated, was stricken out by the referee on motion for that purpose. It appears, from the brief of the petitioner’s counsel, that the evidence was contained in the affidavit read by the appellant on the motion which resulted in the reference. But it does not appear from the report of the referee that that affidavit was exhibited to him or any portion of its contents given. Abstractly considered, there is no evidence before the referee of the receipt of the money by the appellant. But we do not base our decision upon that ground. We think that the referee erred, under the circumstances, in striking out the testimony. It was his duty to have reported all the proceedings had before him and the failure of the appellant to appear for cross-examination, to the court, and left the ultimate determination of the proceedings to the decision of the court.
    “ The referee was not vested with the power which he attempted to exercise. That belonged to the court, and to the court only.”

      Samuel J. Croohs, appellant in person.

      II. JET. Morcmge, for the respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., and Brady, J.

Order reversed, and proceedings remitted to the Special Term.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK AND HARLEM RAILROAD COMPANY v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK.
   Proceedings reversed and case remanded.

(See opinion, ante, p. 687.)


text:
    SAME v. SAME.
   Proceedings reversed and case remanded.

(See opinion, ante, p. 687.)


text:
    MOSES HEILMAN v. ISAAC LAZARUS.
   Order modified.

Opinion

Per Curiam.


text:
    In the Matter of MARY LYSAGHT.
   Order affirmed, without costs.


text:
    In the Matter of the MANHATTAN INSURANCE COMPANY.
   Order affirmed, without costs.


text:
    In the Matter of GEORGE H. BETTS.
   Order affirmed, without costs.


text:
    In the Matter of DAVID ARNOLD and others.
   Order affirmed, with ten dollars costs.


text:
    In the Matter of JAMES McLEAN.
   Order affirmed, without costs.


text:
    In the Matter of JONAS G. CLARKE.
   Order affirmed, without costs.


text:
    In the Matter of EDWARD LANGE.
   Order affirmed.


text:
    In the Matter of THOMAS LAUGHREN.
   Order affirmed.


text:
    In the Matter of JOHN J. MURPHY.
   Order affirmed.


author: Boardman, J.:

text:
    In the Matter of the Final Accounting of WILLIAM DEY ERMAND, as Executor, etc., of SAMUEL ROBINSON, Deceased.

      Surrogate — power of, to open a decree — when it should not he exercised ■*-» a decree should only be vacated in so far as it relates to the alleged, error — Direction for accumulation of income — when invalid — who entitled to the income.

    Although a surrogate has power to open a decree, even after the time to appeal therefrom has passed, in order to correct a palpable error therein, such power should only be exercised when the moving party shows fraud, deception or excusable negligence in regard to the error sought to be corrected.
    The fact that the moving parties, who were represented by counsel before the surrogate, were ignorant of the law at the time of the entry of the decree, and only discovered their mistake after the expiration of the time to appeal therefrom, furnishes no ground for the opening of the decree.
    When a proper case presents itself for the exercise of the power, the surrogate should not set aside or open the whole decree, but only so much thereof as relates to the alleged error.
    A testator devised and bequeathed to his executor the sum of $11,000 in trust, to invest the same in bond and mortgage, and keep the accumulations on the same invested until the decease of his sister-in-law, and then to pay the same to her children as therein provided. The balance, rest and remainder of his estate he devised and bequeathed to two persons named in his will.

      Held, that the direction as to the accumulation of the interest on the $11,000 was void.
    That the said interest should be paid over to the residuary legatees, and not to those entitled to the fund on the death of the sister-in-law of the testator.

      Appeal from an order of the surrogate of Albany county opening and vacating a decree theretofore entered upon the final accounting of William Dey. Ermand, as executor of Samuel Robinson, deceased.
    On February 4, 1879, a decree was entei’ed, passing and allowing the accounts of the said Dey Ermand, as executor of Samuel Robinson,' and directing as to the distribution of his estate.
    By his will the testator devised and bequeathed “ the sum of eleven thousand ($11,000) dollars to my said executor, hereinafter named, in trust for the following intents and purposes, viz.: To invest the same on bond and mortgage and keep the said accumulation of the same invested until the decease of my sister-in-law, Eliza Howe, of the city of New York; and then, in the event of the said Eliza Howe dying intestate, then I will and direct my executor to pay to Benjamin F., Alexander C. and John L. Howe each the sum of two thousand ($2,000) dollars, and the balance thereof to Margaret Chamberlain (all of the above are children of the said Elizabeth Howe). But reserving, however, that in case the said Eliza Howe dies leaving a last will and testament wherein she does not devise or bequeath to the said Margaret Chamberlain an amount equal to one-fourth of her estate, then, in that case, I hereby direct, and my will is, that my said executor pay over the whole of the said sum of eleven thousand ($11,000) dollars to the said Margaret Chamberlain ; nothing hereinbefore to the contrary notwithstanding.” * * *

    “Item 5th. The balance, rest and remainder of my estate I will, devise and bequeath to my brother and my much attached friend William Dey Ermand, share and share alike.”
    By his decree the surrogate held that the direction for the accumulation of the income on the $11,000 was invalid and ordered the said income to be paid over to the residuary legatees. Upon an application made by the children of the said Eliza Howe claiming that they and not the residuary legatees were entitled to this income, the surrogate, on September 28, 1880, made an order providing, among other things, thus, “ and it appearing to my satisfaction that the said decree was entered as against the said Alexander C. Howe, Benjamin E. Howe, John L. Howe and Margaret Chamberlain, because of inadvertence and excusable neglect on their part; and, further, it appearing that the said decree, so far as it directs the distribution of the accumulations received by the executor on the principal sum of $11,000 held in trust by him under the third paragraph of said will of Samuel Robinson, deceased, affects, or may affect, the rights and interests of the said moving parties in a substantial manner, as to which said moving parties claim that the said decree was erroneous, and upon which they ought to have an opportunity to be heard; and after hearing John H. Miller, Esq., in behalf of said motion, and Henry Smith, Esq., in opposition thereto, and due deliberation having been had, it is ordered that the decree entered herein be vacated and set aside.
    It is further ordered, that William Dey Ermand, individually and as executor of Samuel Robinson, deceased, and Edward Robinson, Alexander C. Howe, Benjamin F. Howe, John L. Howe and Margaret Chamberlain attend before me at my office, in the city of Albany, on the 10th day of November, 1880, then and there to be heard on the settlement of a final decree in the above entitled matter.”

      Henry Smith, for Dey Ermand individually and as executor, appellant.

      John H. Miller, for A. C. Howe and others, respondents.
   Boardman, J.:

The accounts of this executor were settled and distribution decreed February 4, 1879. Nearly a year afterwards the respondents herein, who appear from the decree itself to have been represented upon said accounting and distribution, apply to have said decree vacated and set aside. The surrogate has ordered the entire decree set aside, although but one error is alleged, which relates to the distribution of the income to be derived from the sum of $11,000, to be kept until the death of Mrs. Eliza Howe. We think in this respect, in any event, the order is too broad, and it should be restricted to the error alleged.

But' the appellants insist the decree should not be set aside in any respect: 1st. Because the granting of the order is an extension of the time to appeal and an evasion of the limitation of time in which an appeal may by law be taken, after a hearing and decision by the surrogate of the very question in dispute. 2d. Because no sufficient reason therefor is shown by the moving papers.

The power is undoubtedly given to the surrogate to open a decree, even after the time for appeal has passed, and correct a palpable mistake if the moving party shows fraud, deception or excusable negligence in connection with the alleged error. (Code of Civ. Pro., § 2481.)

The moving affidavits do not show any fraud or deception or bad faith on the part of the executor. There is some conflict as to the question of excusable negligence. Mr. Morrow did, in fact, appear for the respondents when the decree set aside was granted. He objected to the decree in the respect now complained of. He did what any counsel for respondents would have done ; whether well or ill does not appear, except that he failed of success. Mr. Morrow also swears he informed Alexander C. Howe and Mrs. Chamberlain of the decree made, and presented Alexander C. a bill for his services rendered to him and his brothers, and that he heard no objection to the decree or the bill for services until this proceeding was begun. Whether he was in fact retained by the respondents is controverted, and the different statements in .the affidavits are doubtless due to misunderstanding, and not to corruption .on either side. The fact, however, remains that the respondents were represented on the accounting; that the objection to the decree, now complained of, was then made and overruled by the surrogate; that respondent knew in advance of said decree that questions would arise as to the proper .order for distribution, and that, though advised by Morrow as to the terms of the decree, no appeal was taken within the time allowed by law therefor.

Is this, then, a case of inadvertence or excusable negligence, or is it a case of gross negligence ? The plea is, they were ignorant of the law then, have found it out since, and hence this application. Such plea would justify a neglect to appeal in all litigated cases in surrogates’ courts, and the setting aside the decree at any indefinite time in the future, if subsequent adjudications of the courts should show the decree was erroneous when entered.

But if we concede the existence of the power to set aside a decree for such an excuse as the respondents have made, have they shown any plain palpable error to exist ? (Decker v. Elwood, 3 Th. & Cook, 48.) Certainly the affidavits do not show it, except possibly upon information derived from Mr. Miller or some one else. Nor does the learned surrogate attempt to determine whether any error has been committed or not. His order is not founded upon any error that he has found and adjudged to exist, but recites that the original order of February, 1879, “ affects or may affect the rights and interests of said moving parties in a substantial manner, as to which said moving parties claim that the said decree was erroneous, and upon which they ought to have an opportunity to be heard therefore, the order is vacated and set aside. Is that an extraordinary case of undoubted error? No, the decree is not set aside for an actual error found to exist beyond a doubt, but to enable the question to be litigated and determined whether there has been a mistake made in the provisions of the decree entered. This, we submit, does not call for or justify the exercise of the power of the surrogate to s.et aside or open a decree. And, finally, was there in fact any error in the decree vacated ? Because if a wrong has clearly and plainly been done which can be redressed, without injury to others, courts will grant relief, unless by so doing well settled principles of law, adopted for the termination of litigation and to secure repose and quiet, must be violated. This question has not been discussed by the learned counsel for the appellants, he having assumed that the questions already discussed were sufficient for a reversal. We have, however, looked at the statute touching the point in dispute, and conclude the position of the respondents cannot be sustained. It is conceded, as was held by the surrogate, that the direction contained in the will to accumulate the interest on the $11,000, during Mrs. Howe’s life, was void, and that such income was not disposed of specifically. The question then is, does it go with the fund, or is it disposed of by the residuary clause of the will ? The surrogate held it went to the residuary legatees as assets of the estate not otherwise disposed of. The respondents insist that where the rents and profits are undisposed of,” they follow the fund and go to “ the persons presumptively entitled to the next eventual estate,” under section 40 of 1 Revised Statutes, 726. They claim the rule in regard to real estate is applicable to personal property under section 2 of 1 Revised Statutes, 773, which reads as follows: “ In all other respects (that is, except as provided in title 4, chapter 4, part 2 of Revised Statutes) limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act in relation to future estates in land.”

Conceding the premises as claimed by respondents, the answer is, that the rents, profits or income in this case are not undisposed of. If the accumulation were not void the income would go to the appellants at the end of the life estate under the residuary clause of the will. As the direction for the accumulation is void, the income vests immediately in the residuary legatees. It is given to them by the will. It is not undisposed of nor is it given to the respondents. They are only entitled to the $11,000. The provisions of the statute referred to are not then applicable. "We conclude, therefore, that the order of the surrogate should be reversed for the reasons:

First. That no satisfactory excuse is shown for respondents’ neglect to contest the proceedings and appeal from the decree.

Second. That no. error was shown by respondents in their application to have been committed, or so found by the surrogate as a reason for the opening of said decree, and

Third. That no error in fact was committed, and hence the application is without merits.

The order must be reversed, with ten dollars costs and printing expenses, and the motion to set aside or open the decree should be denied.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order reversed, with costs.


text:
    ROBERT MAY, Appellant, v. ALLEN COOPER, Respondent.

      Levy under an execution — the rights acquired thereby are hable to be divested by the subsequent action of the court — when an order takes effect as of the first day of the term — Stay by Cowl of Bankruptcy — Liability of sheriff for returning execution when a stay is granted.

    December 9, 1874, an execution upon a judgment recovered in the Supreme Court of this State by the plaintiff against one Davis was delivered to the defendant who, on January 9, 1875, levied upon property of the debtor sufficient in amount to satisfy the same. On January 12, 1875, all proceedings on the execution were stayed by the United States Bankrupt Court, and on January twenty-first notice was served of a motion in the Supreme Court to set aside the judgment and execution, to be made at a term of the said court commencing on February first. On February third the motion was decided, and on February eleventh an order was entered opening the default but allowing the judgment to stand as security. On February twentieth a motion was made to settle the order, and on March fifth an order was made, in pursuance thereof, allowing the judgment to stand as security, but setting aside all proceedings subsequent thereto. The term of the court continued from February first to March fifth. On February third the defendant, under a mistake as to his duty under the stay, returned the execution unsatisfied.
    The stay having been set aside in December, 1876, this action was brought by the plaintiff, in 1877, for the wrongful return of the execution.

      Meld, that the rights acquired by the plaintiff by the levy were subject to be divested by any subsequent act of the court in setting aside the judgment or execution.
    That the order of March fifth related back to and operated for the protection of the defendant as of February first, the beginning of the term, or, at the very latest, as of February third, the day on which the decision was made.
    That the plaintiff had suffered no damage by reason of the defendant’s acts, and that the action could not be maintained.
    Appeal by the plaintiff from a judgment dismissing the complaint, entered upon the trial of this action by the court without a pry.
    This action was brought to recover damages for an alleged wrongful act of the defendant, as sheriff of the county of Chemung, in releasing the levy made by him upon the property of a judgment debtor upon an execution placed in his hands upon a judgment in the Supreme Court of the State of New York rendered in favor of the plaintiff against such judgment debtor.

      -Armstrong & Briggs, for flie appellant.
    N S. Tm/lor and J. McGuire, for tlie respondent.
   Boardman, J.:

Defendant, as sheriff, received December 9, 1871, an execution upon a judgment in favor of the plaintiff against one Davis, docketed in his county on the same day. On the ninth of January following a levy was made on property sufficient to satisfy the execution. January 12, 1875, defendant was served with a stay of all proceedings on said execution issued out of the United States Bankrupt Court. January twenty-first motion papers to set aside plaintiff’s judgment and execution were served. The motion was to be made at a term of the Supreme Court of the State of New York to begin on February 1, 1875, and the motion was made and decided on February 3, 1875, but no order was entered until February eleven, which order permitted the judgment and execution to stand as security, t>ut opening the default. On the twentieth of February a motion was made to settle and enter said order in accordance with the decision, and on the fifth day of March the order, so settled and entered, set aside the proceedings after judgment, but allowed the judgment only to stand as security. The term of the court beginning on February 1,1875, was continuous to the fifth day of March.

On February 3, 1875, the defendant, under a mistake as to his duty by reason of the stay of the bankrupt court, returned said execution without satisfaction thereof. Afterwards, in December, 1876, the bankrupt stay was set aside.

On these facts the plaintiff brought this action, in 1877, to recover the amount of his debt by reason of the sheriff’s wrongful return of the execution. His complaint was dismissed upon the trial. The plaintiff brings this appeal.

It is alleged as error that the false and wrongful return of the execution by the defendant in February gave to plaintiff a right of action for the debt; that such right of action was vested and could not be divested by any subsequent act of the court in setting aside the judgment or execution. We do not think this proposition can be maintained. Whatever remedies the plaintiff had for the enforcement of Ms rights were given to him by the court. The action of the court and its process was and always must be subject to its control, not only on appeal but by motion to strike out or set aside. It is conceded that a reversal upon appeal after this return would have been a complete defense. Yet the right was as much vested in such case as the present. In either case it is the act of the court having competent authority and jurisdiction. The sheriff may defend against a void judgment his wrongful return or neglect to collect (Cornell v. Barnes, 7 Hill, 35), but not against an execution that is voidable only. The defendant only can take advantage of that. (Bacon v. Cropsey, 7 N. Y., 195.)

The issuing of an execution and a levy under it is no more a vested right than the lien of a judgment. Should the court for proper cause set aside the judgment the lien is gone. It is the same with an execution. Whether the order was as was not a proper one to be made may be reviewable on appeal, but while it stands, as in this case, it is destructive of plaintiff’s remedy. When such an order setting aside an execution is properly made and entered, it is as though no execution had ever been issued. The plaintiff to maintain this action must show a valid judgment, execution and levy on property. The judgment against Davis exists only as security. It cannot sustain an execution, because for all purposes except as security it is set aside and vacated. The execution had been set aside long before the action was begun. Hence, there can be no evidence of process on which to found a charge of wrong doing by the defendant. When the execution fell, any right of the plaintiff under or by virtue of its prior existence fell with it. It was no longer available to plaintiff in the collection of his debt. Its vitality for all purposes was spent and gone.

But the order of the fifth of March relates back to, and operates for the protection of the defendant as of the first day of February, the beginning of the term. (Manchester v. Herrington, 10 N. Y., 164; Nichols v. Chapman, 9 Wend., 452; Willson v. Henderson, 15 How., 90.) At the very latest, as may be inferred from the last case, the order should take effect February third, when the decision was made. The order entered on the eleventh of February was not the order of the court, because by the order of March fifth, the court has so held and decided. The order of March fifth, therefore, stands for present purposes as of the date of February-third, when the decision embodied in that order was made. That being so, the sheriff, on February third, was deprived of any authority to sell. His power to act under the execution was gone. Action under it would have been trespass. It follows that plaintiff has not suffered any damage by reason of defendant’s acts.

We think the judgment is right and should be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.