author: Ruger, Ch. J.

text:
    Charles M. Adams, Resp’t, v. James G. Fitzpatrick et al., App’lts.

      (Court of Appeals,

      Filed January 13, 1891.)

    Master and servant — Yearly hiring- — Continuance in employment RAISES PRESUMPTION OP REHIRING POR YEAR.
    Where one is employed by the year at a certain annual salary, and he continues in such employment after the expiration of the year, the law presumes a new employment for another year at the same compensation, and this rule obtains even though the original contract was for a year and fifteen days, where it has been voluntarily performed by both parties.
    Appeal from judgment of the New York superior court, general term, affirming judgment of referee in favor of plaintiff.

      Donohue, Newcombe & Oardozo, for app’lts; Dill, Ghandler & Seymour, for resp’t.

       Affirming 23 N. Y. State Rep., 203.

   Ruger, Ch. J.

The defendants were manufacturers and dealers in corsets in New York. The plaintiff was a salesman in'the same business, and on or about October 15, 1885, contracted, orally, with the defendants to enter into their employ as a salesman at the rate of $3,000 per annum, and to work from that time until November 1, 1886. The plaintiff commenced the service and continued therein, without further contract, until May 1, 1887. In March, 1887, the defendants notified the plaintiff that they should dispense with his services on the 1st of the succeeding May; but the plaintiff protested against his dismissal, and claimed that his employment was from year to year, and that he could not legally be dismissed until the expiration of the year. The plaintiff left - the defendants’ service, by their direction, on May 1, 1887, and obtained other employment, for the balance of the year, at the rate of $2,000 per annum. He now claims as damages the loss incurred from the difference in his compensation for the latter portion of tliQ year.

In reference to the contract of employment, the plaintiff's amended complaint alleged “that heretofore, and on or about the 1st day of November, 1886, the defendants employed the plaintiff for the period of one year at a salary of $3,000 per year.’’ This allegation was denied by the answer. The plaintiff claims to support this allegation from an implication arising from his continued service without objection after the expiration of his term of service under an express contract. The only witnesses testifying to the original contract were the plaintiff and the defendant, James Gr. 'Fitzpatrick, and they differed in some respects as to its terms; but agreed as to the fact of a contract, the amount of compensation per annum and the services actually rendered by the plaintiff. Upon the point of difference the plaintiff testified that on or about the 15th day of October, 1885, he contracted to work for the defendants in their business for a period of one year therefrom at the rate of $3,000 per year, and continued to labor in their employ without further agreement until May, 1887, when he was discharged. When asked on cross-examination why he swore in his original complaint that he contracted to work for one year from November 1, 1885, he replied: “ Merely, it was a customary thing to say the first of November, or from the first of November, and not because my engagement was made then ; we are apt to speak of our engagements as being from the first of November.’’ The defendant testified: “I remember making an engagement with Mr. Adams in October, 1885. I believe it was consummated some days before the 15th of October, but it commenced on the 15th or 16th of October, 1885, for twelve and one-half months from the lath of October until the first of November of the following year at three thousand dollars a year.” He further testified, as a reason for commencing October 15th, that “I said I couldn’t engage him if he couldn’t set in, because we usually begin our business on the first of November, and we terminate our business on the first of November.” * * * It was twelve and one-half months, because we would not have any arrangement terminate during the month of October.” The undisputed evidence also shows that this contract was fully performed by both parties up to the first day of November, 1886, and the plaintiff then continued to work without further arrangement to the time of his discharge.

The referee found as a fact “ that the agreed term of such employment was from the 16th day of October, 1885, to the 1st day of November, 1886; that the agreed salary to be paid the plaintiff was the sum of $3,000 per year, and that the employment was entered into by the plaintiff under said agreement on the 15th day of October, 1885 ; that after the expiration of the term .of service of the plaintiff under the agreement aforesaid, lie continued in the employ of the 'defendants, rendering like services and receiving a like salary, without any other or further agreement between them as to the hiring or the terms thereofand he also found, as a conclusion of law, that the plaintiff, having continued in the service of the defendants after the term agreed upon had expired without any express contract, the agreement for services and for payment therefor was, by implication of law and the .acquiescence of the parties, renewed for the period of one year from November 1, 1886, upon the same terms.” The referee awarded the plaintiff the difference between, the rate of $2,000 and $3,000 per year as damages for breach of contract for the period between May 1 and November 1, 1887.

The defendants excepted to the finding of the referee, holding that a renewal of the original contract for another year was effected by the continuance of the plaintiff in the defendants' employ after the term of the original contract expired; and this exception presents the only point worthy of notice on this appeal. The defendants’ contention in support of this exception is founded solely upon the argument that the original contract, being for a year and fifteen days, any contract to be implied therefrom must necessarily be for a similar term, and such term, not being capable of performance within a year, would be void under the statute of frauds. This contention is founded upon an erroneous assumption, and, therefore, falls with the hypothesis upon which it is predicated. It is true that the original contract, so long as it remained executory, was void and unenforceable; but having been voluntarily performed by both parties, neither could afterwards be heard to allege its invalidity, and it controlled the terms of service and compensation under it as against both parties as well as afforded an authority from which the intention of the parties in relation to a further contract could be inferred. In other words, after execution it was to all intents valid. Stone v. Dennison, 13 Pick., 1; Dodge v. Crandall, 30 N. Y., 294. The evidence, as well as the finding of the referee, showed that the parties originally contemplated a hiring for a year, and this is strengthened by the fact that an annual compensation was agreed upon. Fawcett v. Cash, 5 B. & Ad., 904; Emmens v. Elderton, 4 H. of L. Cases, 640.

This evidence clearly authorized the finding of a renewal of the contract for one year, and this applies as well to the rate of compensation as the time of service.

This conclusion seems to be fully supported by the authorities. The rule in Reeve’s Domestic Relations, 4th ed., 431, is stated as follows: “When one serves another under a contract for a year’s .service and holds over, continuing in the same service after the expiration of the year, there is a presumption, analogous to the presumption in the case of yearly leases, that the parties assent to the continuance through another year of the contract of service.” Sines v. Wayne Co., 58 Mich., 503; Tatterson v. Suffolk Mfg. Co., 106 Mass., 56; Moline Plow Co. v. Booth, 17 Ill. App., 574; Wallace v. Floyd, 29 Pa., 184. In each of these cases the rule was-applied to the term of service as well as rate of compensation. Schouler’s Domestic Relations, 607, states the rule as follows: “ If the hiring be general without any particular time limited, the old law construes it into a year’s hiring. But the equity of this rule extended only to such employment as the change of seasons effected, as when the servant lived with his master or worked at agriculture. By custom such contracts have become determinable in the case of domestic servants upon a month’s notice or what is an equivalent, payment of a month’s wages, yet as to hiring in general the rule still is that if master and servant engage without mentioning the time or frequency of payment it is a general hiring and in point of law a hiring for a year. Fawcett v. Cash, 5 B. & Ad., 904; Lilley v. Elwin, 11 Q. B., 742. Custom modifies this principle, and the date and frequency of periodical payments are material circumstances in each case. The principle of yearly hiring is applicable to all contracts of hiring and service, whether written or unwritten, whether express or implied, and whatever the nature of the services, its modifications arise whenever the contract contains stipulations inconsistent with its application, or when, from some well-known custom on the subject, the parties may be considered to have contracted with sole reference to such customs. In this country, at least, if a contract for hiring is at so much per month it will readily be presumed that the hiring was by the month, even if nothing was said about the term of service.” It is stated in Wood’s Master and Servant: “ When a person has been employed by another for a certain definite time at fixed wages, if the services are continued after the expiration of the term, in the same business, it is presumed that the continued services are rendered upon the same terms.” Sec. 96. In Smith’s Master and Servant, 41, it is said that “ when no time is limited, either expressly or by implication, for the duration of a contract of hiring and service, the hiring is considered a general hiring, and, in point of law, a hiring for a year. This rule is applicable to all contracts of hiring and service, whether written or unwritten, whether express or implied, and whatever be the nature of the service.” Story on Contracts, § 962c, states the rule to be: “When there is a general hiring, nothing being said as to its duration, and no stipulation as to payments being made which may govern its interpretation, the contract is understood to be for a year, and the reason for this rule is said to be that both master and servant may have the benefit of all the seasons. This rule applies to the hiring of all menial and household servants, trade servants, reporters of newspapers, servants in husbandry,” etc. “ But where wages are payable at a stipulated period, as per week, or month, or half year, such circumstances, standing alone, indicate that the hiring is for such period.” Sec. 962d.

The rule as stated in Addison on Contracts, 684, is: “ When the employment of a servant is of a permanent nature, and annual wages are reserved, the hiring is a yearly hiring; and when the servant is not a household or menial servant, the hiring cannot be put an end to by either party without the consent of the other before the termination of the current year.”

The following cases may be referred to as illustrative of the rule: Mansfield v. Scott, 1 Cl. & Fin., 319; Fawcett v. Cash, 5 B. & Ad., 904; Beeston v. Collyer, C. P. (4 Bing.), 309; Collins v. Price, C. P. (5 Bing.), 132; Grover & Baker Co. v. Bulkley, 48 Ill., 192 ; New Hampshire Iron Factory Co. v. Richardson, 5 N. H., 294; Vail v. Jersey Little Falls Mfg. Co. 32 Barb., 564; Wallace v. Devlin et al., 36 Hun, 275; Greer v. People's Telephone Co., 50 Supr. Ct. Rep., 517; Bleeker v. Johnson et al., 51 How. Pr., 380; Hodge v. Newton, 14 Daly, 372; 13 N. Y. State Rep., 139 ; Huntingdon v. Claffin, 38 N. Y., 182; Smith v. Velie, 60 id., 110.

Ho question can arise as to the sufficiency of the evidence to sustain a finding that the parties intended a yearly hiring by a continuance of the service after the expiration of the original term; but a quaere has been suggested, whether this inference arises by implication of law or as an inference of fact, and whether the findings may be construed as a finding of fact that the contract was renewed for another year. We are inclined to think that the findings may and ought to be so construed. Ho point upon this question is presented by the appellant’s brief, and the question does not seem to have been raised or considered in the courts below. The referee has based his decision, not alone upon an implication of law, but also upon the assumed acquiescence of the parties in a renewal of the original contract, to be implied from a continuance of the service, without objection. This finding, although in form classified as a finding of law, is, in effect, a finding of fact; and for the purpose of upholding the judgment should be so regarded. Parker v. Baxter, 86 N.Y., 586.

We have, therefore, determined to affirm the judgment on the ground that the contract of employment for another term of one year was a just inference of fact from all the circumstances in evidence.

The judgment should therefore be affirmed.

All concur.


source: Caselaw Access Project

author: Beckham, J.

license: Public Domain

text:
    Charles B. Franc, Resp’t, v. Henry H. Dickinson, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Bills and notes—Fraud—Bona fide holder—Burden of proof.

    Where a purchase of stock is procured 'by fraud and notes procured from the purchaser by fraud and by virtue of an agreement that they were to be mere memoranda, not to be paid, and not to partake of the nature of promissory notes, then the burden rests on the holder of said notes that he or some one of its prior holders had taken the note in good faith before maturity for full value in the usual course of business.
    2. Same.
    A large discount obtained by a previous holder upon the note of a perfectly solvent maker, which note had but a short time to run, is a circumstance for the jury to consider upon the question of good faith.
    3. Same.
    Defendant swore that Wild, the previous holder, asked him “How about this note of yours, is it all right;" to which he answered, “So far as giving it to Mr. Sterner was concerned, I suppose it was all right, but that it was distinctly considered that the note was not to be negotiated.” Held, that the answer was one tending to rouse suspicion, and to cease questioning at such a point might lead a jury to a belief that the purchaser did not "desire any further information, and the question of good faith should have been submitted to them.
    Appeal from judgment of the supreme court, general term, second department, affirming a judgment entered on a verdict directed by the court. ‘

      James McKeen, for app’lt; John L. Hill, for resp’t.

       Reversing 24 N. Y. State Rep., 446.

   Beckham, J.

The proof in this case should have been submitted to the jury. There was sufficient evidence, if believed, for the jury to find that Sterner procured the notes (of which that in suit was one) from defendant fraudulently. Even if the transaction between defendant and Sterner would otherwise have amounted to a sale of the stock and the giving of .notes in payment, yet, if such purchase were procured by fraud, and the notes were obtained in carrying it out, and by virtue of an agreement that they were to be mere memoranda, not to be paid, and not to partake of the nature of promissory notes, then the burden rested on the plaintiff to show that he, or some one of its prior holders, had taken the note in suit in good faith before maturity, for full value in the usual course of business. Canajoharie Nat’l Bank v. Diefendorf decided October term 1890, by this court; 33 N. Y. State Rep., 389 ; Vosburgh v. Diefendorf 119 N. Y., 357 ; 29 N. Y. State Rep., 448.

If the jury believed the evidence of Dickinson, they might have . found that Sterner sold the stock to defendant, and procured the notes from him by means of the statements contained in the circular, and by falsely pretending that it was desirable to have the stock of the company held by a few parties in order' to control it, but that the notes to be given by defendant in exchange for the stock issued to him were to be regarded only as memoranda, and not in any real sense as promissory notes, and that in no event was Dickinson to be called upon to pay them. The inducement offered for such giving of the notes was, that defendant should have the benefit of any sale of the stock which Sterner might make over the price which was named to him for his taking it, .and that the notes, although only memoranda, should, in case of the sale of the stock, be then paid out of its proceeds, but in no event should the defendant be called upon to pay any part of them.

Taking the whole of defendant’s evidence, it might also bear the construction that the transfer of the 50,000 shares to him was merely formal; that Sterner was still to make the sale of the stock, and to induce defendant to give the notes it was agreed that defendant should have the profit of the sales over the amount of the notes, and that in no event should the defendant be called upon to pay them, and that they were to be used only as memoranda. In that event, if Sterner made these representations in order to procure the notes which he intended to use for his own benefit, then their acquisition was a fraud, and Sterner could not have maintained any action on them. Hor could any one else who was not a bona fide purchaser.

The stock was never sold, and there appears to be no doubt that it was at this very time wholly without value. The jury might have found that the defendant was not aware of such fact at that time. In saying the jury might have found these facts, I,' of course, do not say that it should or should not have found them, but that the evidence made it a question for the decision of the jury, and not for the court. If, upon the evidence, the jury might find that a fraud had been practiced upon the defendant, by which the notes were procured, then it was necessary for the plaintiff, under the authority of the above cited cases, to show the ‘circumstances under which he purchased, or under which some prior holder purchased, the note before maturity, in order to show that he was entitled to the benefit to be derived from the position of a bona fide purchaser.

We think there was enough in the case to fender it necessary to submit this question also to the jury. It appeared that Mr. Wild, a former holder of the note, purchased it from Sterner about December 81, 1886, when it had about three months to run. The note was for $2,400, dated December 7th, and payable in four months from date. He took a discount of $450, paying $1,950 only. Or, in other words, he succeeded in obtaining a rate of interest for his investment of over seventy per cent, and the maker of the note was, so far as appears, entirely solvent and able to pay it at maturity, so that no risk was run of that nature. The defendant says Wild asked him once, “How about this note of yours; is it all right ?” The defendant says he answered, “ So far as giving the note to Mr. Sterner was concerned, I suppose it was all right, but that it was distinctly understood that the note was not to be negotiated.”

Defendant says at this time he did not understand that Wild intended to purchase. This was before the purchase of the note by Wild, as he says. Wild testifies to quite a different conversation be tween mm. and defendant, and it was upon the strength of defendant's answer, as testified to by Wild, that he says he purchased the note. The j ury might have found the defendant’s version the correct one. If so, we think it was upon the facts in the whole case a question, for the jury to say whether the plaintiff represented the rights of a Iona fide purchaser. The large discount obtained by W ild upon the note of a perfectly solvent maker, and having but a short time to' run, was one of the circumstances for the jury to consider upon the question of good faith. The defendant’s answer might have been interpreted, by any one who heard it, as a simple acknowledgment that he had made such a note in form and given it to Sterner, but there was flowing from the transaction no right in Sterner to negotiate it, and it was expressly agreed that it should hot be negotiated. At this point Mr. Wild stopped further ques-; tioning. An intending purchaser of a note upon hearing such an answer to the question, might naturally proceed further and inquire into the transaction in order to see how far he would be safe in purchasing. The answer was one tending to rouse suspicion, at the very least, even if it did hot prevent an intending bona fide purchaser from taking further steps in the matter. To cease questioning the maker at such a point and to go at once to Sterner and purchase the note at this enormous discount, and without, so far as appears, seeking any further information from defendant, or even from Sterner, as to the transaction, might lead a jury possessed of ordinary intelligence to a belief that the intending purchaser did not desire any further information, that he studiously omitted to seek for it, and that in truth he was not such a bona fidepurchaser as the law protects.

Assuming the jury to find that the note was procured by fraud, the plaintiff, having omitted proof as to how any one other than Wild obtained it, is bound by the position which the jury might from the evidence in the case find that Wild occupied towards such. note. If he were not a bona fide purchaser, the plaintiff could not recover.

The questions above discussed should have been submitted to a jury.

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

All concur.


author: Finch, J.

text:
    Dora Wheeler, App’lt, v. The Oceanic Steam Navigation Co., Resp’t.

      (Court of Appeals,

      Filed January 13, 1891.)

    Carriers—Liability eor hoh-deliveby—U. S. Rev. St., § 4281.
    By | 4281 of the Revised Statutes of the United States it is provided that if any shipper of certain articles, among others “ pictures,” shall lade the same as freight or baggage on any vessel without, at the time, giving notice to its owner, master or agent of the true character and value of the property shipped and have the same entered upon the bill of lading, the ship owners shall not be liable as carriers in any form or manner. Plaintiff, an artist, on returning to this country delivered to defendants a package of portraits inclosed in a box, with hinges, etc., its appearance indicating that it was different from ordinary baggage, but did not enter it in the bill of lading or give notice of its contents, and it was never delivered to its owner. Held, that the liability of defendants as bailees for hire still remained; that the non-delivery at the port of destination was presumptive evidence of negligence and the case should have gone to the jury.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing complaint upon trial at circuit.

      Boudinot Keith, for app’lt; Lawrence Qodkin, for resp’t.

       Reversing 22 N. Y. State Rep., 590.

   Finch, J.

Section 4281, of the Revised Statutes of the United States, provides, in substance, that if any shipper of certain articles which are specifically named, and among which are “pictures,” shall lade the same as freight or baggage on any vessel, without at the time giving notice to its owner, master or agent, of the true character and value of the property shipped, and having the same entered upon the bill of lading, “ the master and owner of such ship or vessel shall not be liable as carriers thereof in any form or manner.” The protection of this statute has been successfully invoked by the defendant company against the loss which forms the subject of this action.

Dora Wheeler, the plaintiff, and described in the evidence as an artist of established reputation, returning home from a foreign journey, took passage on the steamer Germanic, and in addition to her ordinary baggage delivered to the ship for transportation a package of valuable portraits which she had painted while abroad. These were contained in a box of white Wood, with iron hinges and corner clasps, and closed by a lock. The package itself, besides the address, was marked “ Studio,” and its appearance unmistakably indicated something other than and different from the -ordinary baggage of a traveler. There was no attempt to deceive the defendant as to its true character, or by artifice or misrepresentation to make it appear to be personal baggage, or shield it as such from proper freight charges.

Nevertheless, it was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put in the hold of the vessel for transportation to New York. The voyage was unattended by either accident or delay, and it is reasonably certain that the package came in the ship to its port of destination. Arrived at its wharf, the trunks and packages of the passengers were landed upon the dock, each individual being left to find and collect together his own. The package in question was never delivered to its owner, but was probably misdelivered, or permitted to be taken by one having no right to receive it. For the damages thus sustained the plaintiff brought this action, and has been defeated upon a construction of the statute which is challenged upon this appeal.

That construction is a very broad one. It denies liability “ in any form or manner.” It relieves the ship-owner from all responsibility where the baggage or goods have not been entered upon the manifest. It involves a ruling that he may accept the property for transportation, and. yet owe no duty, even of the slightest care, to its owner, who finds that he has put his baggage in a lottery, and must take the chances of its restoration. The goods may be-delivered to the wrong person through gross carelessness, or be ruined by inexcusable negligence, or even stolen or converted by the crew, and yet the ship-owner is not liable “ in any form or manner; ” and such, it is claimed, is both the language and purport of the statute. Its provisions meet the shipper -at the port of destination, and place him at the mercy of the owner or master of the vessel. If the property is restored it is through the grace of those in command; if it is not delivered, they are not liable for its loss “in any form or manner.” Such construction goes far beyond the due protection of those engaged in the transportation of property, and, instead of merely moderating or lessening their liability, sweeps it all away, and leaves the baggage and property of the passenger protected by no duty and guarded by no liability.

It is quite true that even upon this construction the courts would hesitate and halt "before a proven theft or an actual conversion, on the ground that the fact and opportunity of transportation did not change the nature or character of such positive wrongs; but there would still remain a gap to be spanned between the actual wrong-doer and the defendant company, and, when safely crossed, as it well might be, the relief would be of but little value, since ordinarily the shipper can neither know nor prove the cause of the loss, especially where motive exists for its concealment. If, therefore, the statute admits of a more just construction, and one which, while giving needed protection to the ship-owner, preserves some reasonable duty to the shipper or to the passenger, I think we should not hesitate to adopt it.

The construction which has "prevailed eliminates from the statute the words, “as carrier thereof,” and gives them no force or meaning. They become wholly superfluous. „ To us they appear to be ‘vital to the true interpretation. The liability of the carrier as such was well understood by the framers of the statute. It had long been settled so that no one could mistake it. By force of his public employment he became an insurer of the property entrusted to his care, and liable for its loss irrespective of the cause unless from the act of God or the public enemy. But involved in this greater liability and absorbed by it was a lesser liability as bailee for hire; of no consequence while the greater liability existed, but surviving the destruction- of that, so that-when the carrier ceased to be liable as carrier he yet remained liable as bailee.

In Dorr v. N. J. St. Nav. Co., 4 Sandf., 145, the doctrine was thus expressed: “A common carrier has in truth two distinct lia7 bilitics; the one for losses by accident or mistake, where he is liable by the custom of the realm or the common law as an insurer; the other for losses by default or negligence, where he is answerable as an ordinary bailee,” and the language was cited by the-federal court in Railroad Co. v. Lockwood, 17 Wall., 363, and the doctrine approved in Dott v. N. Jersey St. Nav. Co., 11 N. Y., 485, where it was held that the carrier might by special agreement-strip himself of that character,-and so become as to the particular transaction an ordinary bailee and private carrier for hire. In Lamb v. Camden & A. R. R. Co., 46 N. Y., 278, Grover, J., said: In considering this question it must be borne in mind, that it has already been determined that the defendant was exonerated from all liability as carrier for a loss caused by the destruction of the cotton by fire, by an express provision of the contract in pursuance of which it transported the cotton. Relieved of this responsibility, it was liable only, in case it was destroyed, as bailee for hire; and it is undisputed that such a bailee is liable for the loss of the property only in cases where the loss is the result of his negligence.” These cases show that the liability for negligence as bailee survives even when by special contract the carrier has thrown off his liability as i such; and the courts of this state have exhibited a very decided purpose to retain and enforce that liability wherever it is possible. Even that may be thrown off by force of a - special agreement, but we have refused to permit any general words to accomplish such result, and have insisted that, where the carrier seeks to contract against the consequences of his own negligence, he must say so openly and plainly so as not to be in the slightest degree misunderstood, and is not at liberty to hide the stipulation away under any form of words however broad or formidable. Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y., 872.

But what the carrier and his customer might accomplish by special agreement, congress could effect by statute in the absence of such agreement; but must necessarily leave the lesser liability of bailee unaffected if it merely removes the liability as carrier, and does not, by clear and definite language, indicate its purpose to go further. So much, and no more than that, the section under consideration accomplished, for it distinctly removes the liability as carrier without touching that as bailee. We are bound to assume that the word “-carrier ”■ was used in its recognized legal sense, and not in some loose or careless or merely colloquial way; and that, especially, because it occurs in connection with the idea of liability, and the phrase “ liable as carrier ” can only mean the liability attached by law to that public employment.

Nor is this construction affected by the added words, “in any form or manner.” They are not used disjunctively, and so as to constitute a separate command, but qualify the expression “ shall not be liable as carrier thereof; ” the full force of the words being that the liability as carrier shall not exist in any form of action or by any manner of procedure. In Atlantic Mut. Ins. Co. v. McLoon, 48 Barb., 28, it was held that the carrier’s liability assumed two different forms, and that he might be proceeded against either in tort for a violation of his public duty, or in contract for a breach of his implied agreement to carry and deliver safely. And so the statute deemed it prudent, in relieving the carrier from liability, to add “ in any form or manner;” that is, by any form or mode of action or proceeding whatever.

We are further referred to the case of Hinton v. Dibbin, 2 Ad. & Ell., N. S., 646, in which it was held under a similar statute, 1 Wm. IY., chap. 68, that the carrier could not be held liable even for gross negligence, but that decision was founded upon an enactment from which the words “ liable as carrier ” were conspicuously absent. That act freed the ship owner from any liability for the loss, and even under such provision, where the property was not lost, but merely delayed in its transit, damages -for the consequent injury resulting from negligence could probably be recovered.

It follows that the nonsuit in this case was erroneous. The plaintiff in her complaint alleged negligence and the facts which she proved prima facie established it. The non-delivery at the port of destination is presumptive evidence of such negligence. Canfield v. B. & O. R. R. Co., 93 N. Y., 538. In addition it was shown that the vessel stopped nowhere until the port of destination was reached and then the baggage was placed upon the dock with little of order or control and leaving the passengers to find their own in the consequent confusion. And so a case was made-which should have gone to the jury.

A possible criticism upon this view of the statute is qfuite likely at this point to suggest itself. One may inquire of what value to the ship owner is the enactment when after all he is left liable for the loss, and responsible whether the property is entered upon the ship’s manifest or not? The inquiry goes to the root of the matter and its answer will further test the justice and propriety of our interpretation. Under it I tliink the ship owner is protected as far as he should be, and in two very important respects.

First. The statute leaves him at liberty to refuse to carry the property at all unless its value and character are disclosed and entered upon the ship’s manifest. The law leaves him master of the situation and able, if he shall please, to enforce obedience to it. As carrier he could not refuse, but since he does not become such unless the proper entry is made he may refuse until then to transport the property at all. As a simple bailee he may take the property or decline it. If now he chooses to take it in that character the act is voluntary; there is no compulsion about it; and on what.principle shall we say that because he so takes it he shall be absolved from all care over it, at liberty to be as negligent as he pleases and the only bailee in the world having that lawless control ?

Second. If a loss occurs he is no longer liable as an insurer. The door to a just defense is opened before him, and the burden of proof to establish negligence is shifted to his adversary. If the ship-owner has in truth exercised due care he may show it and go discharged. If he has not exercised it, if he has been negligent and careless, he ought to respond in damages and must do so.

It was suggested by the general term in aid of their construction that one reason for the enactment was the interest which the government had in procuring entries upon the vessel’s manifest of all property shipped. If that be true the construction of the courts below tends very distinctly to defeat such purpose; for while it makes it for the interest of the passenger to enter his baggage or parcel upon the bills of lading, it leaves him liable to pay possible charges for freight and so makes his action doubtful; while on the other hand it becomes at once the strong and paramount interest of the ship-owner and master to keep all baggage and property carried as such off of the ship’s manifest so far as possible; since, if it goes on they become liable as insurers, but if it does not they incur no responsibility, not even that of private bailees. Passengers are little likely to be versed in the shipping laws; owners are sure to be; and the traveler who sought to put his baggage upon the manifest might find it no easy matter to accomplish against the will of ship-owners and officers. In the haste and confusion of departure they could easily postpone or avoid attention to the subject, or repel the passenger with the insolence of command. All baggage and parcels for which no separate freight was to be .charged would be kept off of the manifest so far as owners and officers could effect that result.

It may be that congress might go as far as the English statute has gone, but our judgment is that it has neither done so, nor intended to do so ; and that it has stopped short of a rule which would protect master and ship-owner from the consequences of their own negligence. That the federal court has held is against public policy and, presumably, would not encourage a construction in such direction where any other was permissible. It follows that the plaintiff was erroneously defeated, and should have an opportunity to present her case to a jury.

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

All concur.


author:
      O’Brieit, J.
      Peokham, J.

text:
    Anna E. Talcott, Resp’t, v. The City of Buffalo et al., App’lts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Municipal corporations—Action by taxpayer to restrain action oe common council.
    A taxpayer cannot maintain an action to restrain the governing body in a city from official action, within its power and discretion, without a charge of fraud, collusion, corruption or bad faith. (Peokham, J., dissenting.)
    2. Same—Laws 1872, chap. 161.
    The terms “waste” and “injury,” used in chapter 161, Laws 1872, and subsequent statutes comprehend only illegal, wrongful or dishonest official acts, and were not intended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunals.
    Appeal from judgment of the supreme court, general term, fifth department, affirming interlocutory judgment entered on decision of special term overruling appellant’s demurrer to complaint.

      Philip A. Laing, for app’lts; Norris Morey, for resp’t.

       Reversing 32 N. Y State Rep., 774.

   O’Brieit, J.

The plaintiff, a resident and taxpayer of the city of Buffalo, seeks in this action to restrain the governing authorities of that city from substituting electric street lighting for that of gas in Bouck avenue, between Niagara street and Chapin place. The defendants demurred to the complaint on the ground, among others, that a cause of action was not stated. The demurrer was overruled by the special term, and this decision was affirmed at the general term. As the other ground of demurrer was not disclosed in the courts below as presenting any substantial question, and as it seems to us to be without merit, further consideration of it is not needful. The complaint states at length the action of the common council at various times prior to .the year 1885, which resulted in placing in this avenue suitable and proper gas lamps, mains and service pipe, and in suitably and properly lighting the avenue at a considerable expense which was ultimately paid by the property owners in the locality who were benefited thereby.

In May, 1888, as is alleged, the common council passed a resolution providing for the substitution of electric lighting in place of gas, in this avenue, in compliance with the prayer of a petition by what was claimed to be a majority of the inhabitants on the street. That subsequently a remonstrance in writing, containing the names of what is claimed to be an actual majority of the taxpayers, both in number and value of property upon the avenue, was presented to the common council against the change, but was disregarded. It is then alleged that the mayor, in the exercise of his powers and duties, vetoed the resolution, but it was subsequently passed, notwithstanding this veto, by the common council. It is also alleged that, in pursuance of this resolution, the proper officers of the city had taken proceedings to enter into a contract bétween the city and an Electric Lighting Company. That this company was proceeding to erect the necessary poles for electric lighting in the streets to the damage of private property therein; that it was about to remove the gas lamps, mains and service pipe, the cost of which would be lost to the city; that the expense of lighting the street by electricity would be greater to the property owners than gas by a considerable sum, which is named, without conferring any additional convenience or benefit, either to the city or the local property owners; that in consequence of a combination between the electric light companies, the price charged for such lighting was exorbitant and much larger than paid by neighboring municipalities; and that the official acts of the common council and other officers to substitute this method of lighting the avenue for gas was illegal. The relief demanded was that the authorities be restrained from making the contract, or executing the resolution, or changing the present method of lighting, requiring the old method to be restored, so far as it has been changed, that an account be had in regard to the expense or damage which the city had or might incur in consequence of the proceedings to change the manner of lighting the avenue, and that the individual members of the common council, who voted for the resolution substituting electricity for gas, be adjudged to pay the same with the costs of the action.

The facts stated in the complaint and which are well pleaded must be deemed to be admitted by the demurrer, but the allegation that the proceedings of the common council looking to a change in the manner of lighting the avenue were illegal official acts was not the averment of an issuable fact but the statement of a legal conclusion, and therefore is not admitted. It is not seriously urged in the argument for the plaintiff or in the decisions of the court below that the common council did not have, under the charter of the city, full power to provide for the regulation and lighting -of the streets and avenues in such manner and to such extent as in the exercise of its discretion might be deemed most advantageous to the city. The complaint contains no charge that the action of the authorities was fraudulent or corrupt, or that any dishonest or unlawful end was in view or was sought to be accomplished. The most that can fairly be said to be charged in the complaint is that the authorities of the city are using the powers conferred by the charter unwisely and without due regard to economy. The question for our determination in this case therefore is, whether a taxpayer can maintain an action to restrain the governing body in the city from official action within its power and discretion and without any charge or allegation of fraud, collusion, corruption or bad faith. _ The decision of this question must depend upon the construction to be given to the legislation passed in this state from time to time authorizing and regulating actions of this character. The first statute that gave the right to a taxpayer to interfere by action in the conduct of municipal affairs was chap. 161 of the Laws of 1872. The title of the act was “ An act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and-agents,” which no doubt expressed the general scope and purpose of the law. In a single section authority was given to any person residing in the county, town or municipal corporation assessed for and liable to pay taxes therein, or who had paid taxes therein within one year previous, to maintain an action against all officers, agents, commissioners and other persons acting for or in behalf of such, county, town or municipal corporation to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation.

That this legislation was aimed at “ frauds, embezzlements and wrongful acts of public officers and agents,” as indicated by the title, is also clear when the causes that moved the legislature to its enactment, and which are matters of public history, are considered. The origin of the statute is to be found in certain well known fraudulent and corrupt acts on the part of officers and commissioners in the city and county of Hew York, whereby public funds were abstracted from the treasury, mainly by' the audit and allowance of fidtitious claims and corrupt contracts, and the proceeds converted to the individual benefit and use of these officers and agents. The terms “waste ” and “injury,” used in this statute, comprehended only illegal, wrongful or dishonest official acts, and were not intended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some tax-payer might conceive to be unwise, improvident or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court without some proof or allegation that the official act or proceeding complained of was without power or was tainted by corruption or fraud. This act was incorporated into and became § 1925 of the Code of Civil Procedure, and this provision of the Code has been supplemented by chapter 531 of the Laws of 1881, and chapter 673 of the Laws of 1887. The general powers conferred upon the courts by the act of 1872, as incorporated into the Code, were not enlarged but rather restricted and regulated by the legislation of 1881 and 1887. It was provided in these acts that the plaintiff, previous to the commencement of such an action, should give a bond, to be approved by a justice of the supreme court or county judge, in such penalty as the judge might direct, in no case less than $250, conditioned that the plaintiff, in case the action failed, would pay all costs awarded the defendant. If an injunction was granted, the bond might also provide for the payment of the damages arising therefrom to the party entitled to the money, the auditing, allowing or paying of which was enjoined, if it was ultimately held that the plaintiff was not entitled to such injunction.

The statute as amended by the act of 1881, then, for the first . time, -specifically enumerates certain official acts as well as the general character of the claims to which it is but reasonable to suppose the new remedy that the legislature had in view was intended to apply. The language is, “ In case the waste or injury complained of consists in any board, officer or agent of any county, town, village or municipal corporation, by collusion or otherwise, contracting, auditing, allowing or paying, or conniving at the contracting, audit, allowance or payment of any fraudulent, illegal, unjust or- inequitable claims, demands or expenses, or any item or part thereof against or by such county, town, village or municipal corporation, or by permitting a judgment or judgments to be recovered against such county, town, village or municipal corporation, or against himself in his official capacity, either by default or without the interposition and proper presentation of any existing legal or equitable defenses, the court may in its discretion prohibit the payment or collection of any such claims, demands, expenses or judgments, in whole or in part, or may enforce the restitution thereof if heretofore or hereafter paid or collected by the person or party heretofore or hereafter receiving the same, and, also, may in its discretion adjudge and declare the colluding official personally responsible therefor, and out of his property provide for the collection or repayment thereof, so as to indemnify and save harmless the said county, town, village or municipal corporation from a part or the whole thereof, and in the case of a judgment the court may in its discretion vacate, set aside and open said judgment, with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in its judgment or order, designate and appoint” In chapter 673 of the Laws of 1887, entitled “An act to amend chapter 531 of the Laws of 1881, entitled ‘An act for the protection of taxpayers,’ ” the language of the act, which it amended, was repeated, with some additional provisions, only one of which it is important to notice. At the enil of the section the following language was inserted: “ The provisions of this act shall apply as well to those cases in which the body, board, officer, agent, commissioner or other person above named has not, as to those in which it or he has, jurisdiction over the subject-matter of its action.”

These words, we think, did not enlarge the remedy given by the statute so as to include official acts or claims within the power and discretion of the officers mentioned, not alleged to be fraudulent, collusive, corrupt or otherwise infected with the vices specified in the preceding part of the section. They were aimed at dishonest or wrongful acts on the part of public officers or bodies, and of the same general character as those enumerated and specified, whether they were within the jurisdiction of such officers or bodies or not. We have referred to the origin of the statute under which this action is brought, the title of the act of 1872, and the language used by the legislature, subsequently, when re-enacting it in 1881 and 1887, for the purpose of ascertaining whether it was intended to authorize a tax-payer to maintain an action against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining official action within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we are of the opinion that it was not Full force and effect can be given to the statute by confining it to cases where the acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged. Any other construction would subject the discretionary action of all local officers and municipal bodies to review by the courts, at the suit of the tax-payer, a result which would burden the courts with litigation, without increasing the efficiency of local administration. Whatever evils may exist in the government of cities that are due to mistakes, errors of judgment or the lack of an intelligent appreciation of official duty, must necessarily be temporary, compared with the mischief and inconvenience which judicial supervision, in all cases, would ultimately produce. Local officers are elected or appointed for such brief periods that frequent opportunity is afforded to the public and the tax-payers, interested in their official acts, to change them and substitute others in their place. There is a broad field for the operation of the statute without extending it to the official action of the common council in regard to the choice of methods for lighting a city street, a construction which, it seems to us, would greatly impair the right of local self-government

The order and judgment of the general and special terms s hou be reversed, with costs m all the courts.

Peokham, J.

(dissenting).—I dissent from the principles laid down in the opinion of Judge O’Brien.

Under the statute as it now reads, I think the court has jurisdiction to enjoin the performance of an act by a public officer of the kind mentioned therein, if it be of such a character as to necessarily, result in a plain, bald, useless waste of the property or funds of the public. The act must be such that there can he no fair question in the judgment of reasonable men as to its character. It must be plainly and beyond all fair controversy wasteful ; a mere squandering of public funds.

In such case I do not think it necessary to allege or prove that a corrupt or fraudulent intent accompanies the act..

Jurisdiction in the courts to enjoin such conduct on the part of public officers who are merely trustees for the public would be in my judgment exceedingly healthful, and I think no strained construction of the statute is necessary to hold that such jurisdiction lias been granted by it Perhaps the case made out by this plaintiff does not quite come up to the standard required, but as the opinion of the court is founded upon the idea that the statute requires a corrupt or fraudulent intent to accompany the act, I desire to express my dissent from that construction.

The construction I contend for would not result in the mere substitution of the judgment of the court for that of the body to which the law confided the administration of such matters. If it were possible for fair minded men to differ in regard to the character or policy of the proposed act, then the judgment of the officers should prevail. If, on the contrary', the proposed act were of the character I have already described, then the court should have power to enjoin it, and I believe the statute confers such power. The right at some future time to elect other officers in place of the reckless ones who have already wasted the moneys of the public affords no redress for the wrong already done, and experience has shown that it has the very slightest deterrent effect.

Order and judgment reversed, with costs in all courts, and the demurrer sustained.

All concur, except Peokham, J., dissenting.


author: Andrews, J.

text:
    Edith Kane, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts. Margaret W. Duyckinck, Resp’t, v. The New York El. R. R. Co. et al., App’lts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Railroads—Ancient streets in New York city—Abutting owner.
    An abutting owner upon a street in New York city opened during the Dutch occupation of Manhattan Island, has the right to have it kept open as a public street and to the advantages of light, air and access in and from the same for the benefit of his abutting property, and is entitled to compensation for injuries caused by the construction and operation of an elevated railroad therein.

      .3. Same.
    All the streets owned by a city are held in trust that they shall forever he kept open as public streets ; and the legislature cannot abrogate this trust or authorize its violation without making compensation for any injury sustained by abutting owners.
    3. Same.
    The dedication by the state of the streets in the city of New York to be public streets is irrevocable.
    ■4. Same—Damages—Noise.
    As to abutting owners having easements in the streets through which an elevated railroad is constructed it is a trespasser, and any consequential injury (suchas noise) to the plaintiff’s property while engaged in the unauthorized occupation and use of the street is proper to be considered by the jury. (Baku, J., dissents).
    Appeal from, judgment of the New York common pleas, affirm - ing judgment as against the New York Elevated Bailroad Company and reversing the judgment as against the Metropolitan Elevated Bailroad Co.

      John F. Dillon, for app’lts; Q. Willett Van Nest, for resp’t

      Affirming 25 N. Y. State Rep., 587.

   Andrews, J.

The plaintiff is the owner of a lot on the easterly side of Pearl street in the city of New York, which on the 1st day of December, 1768, was granted by the mayor, aldermen and commonalty of the city to the plaintiff’s predecessor in title by a description which bounded the westerly side of' the lot on Queen (now Pearl) street.

When the grant was made the tidal waters of the East river washed the easterly side of the street, which was coincident with the water line, and the lot granted was then under water. It was subsequently filled in and reclaimed and has been built upon and Pearl street has become one of the important business streets of the city of New York.

The road of the defendant has been constructed in front of plaintiff’s loi^ and this action is brought for damages thereto caused by its construction and operation. Few questions have come before the courts in this generation of greater practical importance or involving larger pecuniary interests than those growing out of the •construction of railways in city streets. Whether such streets may, under legislative and municipal authority, be occupied by railroad tracks to the inconvenience of abutting owners without making compensation and what limitation if any there is to the legislative power over streets which cannot be transgressed without violating the legal and constitutional rights of lot owners are ■questions which have excited the gravest debate and have been the subject of the most careful judicial consideration. Under the ■decisions made there seems to be no longer any doubt in this ■state that streets in a city laid out and opened under charter provisions may under legislative and municipal authority be used for any public use consistent with their preservation as public streets, and this although the use may be new and may seem to impose an additional burden and may subject lot owners to injury. The mere disturbance of their rights of light and access by the imposition of a new street use must be borne and gives no right of action.

It is also the law oí this state that the use of a city street for an ordinary horse or steam railway, unless it practically closes the street, is a street use, which may be permitted, and that abutting owners, whose lots are bounded by the side of the street, have no legal redress in the absence of negligence in the construction or operation of the railroad, although it interferes with the enjoyment of their premises or seriously impairs their value. Fobes v. R., W. & O. R. R. Co., 121 N. Y., 505; 31 N. Y. State Rep., 828.

In the Story case, 90 N. Y., 122, three principal questions were considered: (1) whether the appropriation of Front street for the use of the elevated railroad was consistent with the use of the street as an open public street; (2) whether Story, an abutting owner on the street, the fee of which was (as was assumed) in the city, had any property rights in the nature of easements of light, air and access, in and from the street, for the benefit of his adjacent property, which were invaded by the construction of the' road; (3) whether such rights, if they existed, were property within the constitutional provision prohibiting the taking of private property for public use without due compensation.

The decision of the court on the first point, while recognizing the rule that the legislature may authorize the construction and operation of an ordinary surface railroad in a city street, placed its decision against the defendant on the character of the structure, and held that it was destructive of the street uses for which streets, are established. Upon the second point it was held that the plaintiff had easements in the street of light, air and access, appurtenant to his lot, which were affected by the structure of the defendant, impairing the value of his lot. The court, in tracing the origin of his property rights in the nature of easements in the street, placed much stress upon two facts, viz.: The original grant from the city, then the owner both of the land granted and of that which subsequently became Front street, describing the lot granted by reference to a survey and map on which Front street was delineated, and second, the express covenant of the city, contained in the grant, that the streets referred to therein should forever thereafter continue to be public streets.

It was decided in respect to the third point that incorporeal rights annexed to property were property within the protection of the constitution and could not be taken or impaired without compensation.

In the Lahr case, 104 N. Y., 268 ; 4 N. Y. State Rep., 340, the street upon which the plaintiff’s lot was situated had been opened under the statute of 1813. The decision in the Story case left open but one point for discussion, viz., whether lot owners upon streets opened under that statute had similar easements of light, air and access, as those which Story had, although the plaintiff and those under whom he claimed did not derive their title from the city, and had no express covenant such as existed in the case of Story. The court decided that the plaintiff, notwithstanding this difference in the circumstances in the two cases, had easements of the same character as Story. The court regarded the statute of 1813, which permitted the taking by the city of lands; for streets and the assessing of the cost of improvement upon the property "benefited, taken in connection with the trust declared therein, as equivalent to a contract or covenant by the city with the adjacent lot owners that the streets opened under the statute should forever remain open and public streets, and the consequence was held to follow that they could not be appropriated to other than street uses, to the injury of abutting owners, except upon the condition of making compensation.

The present case presents still another phase of the general question. Pearl street, on which the plaintiff’s lot is situated, was a street prior to 1664, and was opened under the Dutch regime during the Dutch occupation of Manhattan Island. It passed with all the other territory occupied by the Dutch under the control of the crown of Great Britain, upon the capitulation in 1664. There is no evidence in the case of the circumstances attending the opening of Pearl street, or whether the soil forming the bed of the street was, when it was laid out, private or public property.

" The contention of the defendant upon this state of facts in brief is that under the civil law, which was the law of Holland, the sovereign was vested with the absolute title to the soil of all streets and highways within his dominions, and that no private rights or easements existed therein, and that an owner of land adjacent to a street acquired no rights by reason of adjacency, or from the fact that he had built upon the street in reliance upon its continue^ existence, to. have it kept open as a street or way, but that it was competent for the sovereign to close the street, or to convert it to any different public use at any time, without making any compensation to owners of adjacent lands, although by so doing the value of their property might be diminished or even substantially destroyed. The argument following from this premise is that the English crown succeeded to the rights and power of the states general as to all streets laid out under the Dutch occupation^ and that whatever rule may prevail as to streets in the city of Hew York laid out since 1664, the owners of lands abutting on Pearl street have no private rights whatever in the street, and that the legislature has absolute and uncontrolable power to close such street or to convert it to any use, however inconsistent with its use as a street, and that abutting owners would have no remedy whatever.

In the very learned and able brief of the counsel for the defendants many authorities are cited and quotations made from the writings of the civilians in support of their statement of the rule •of the civil law. But assuming the powers of the sovereign under the civil law to be as broad as claimed, and that the English crown succeeded to the same powers as to streets in the city of Hew York opened prior to 1664, as existed in the sovereign under the civil law, it still remains to be considered whether these powers have since been modified as to these ancient streets, by grant or covenant, or legislation or otherwise, so as to vest in abutting owners rights in such streets, in the nature of easements, which before they could not have claimed.

In this case the only open question is whether the plaintiff, as-abutting owner, has the right to have Pearl street kept open as a public street, and to the advantages of light, air and access in and from the same, for the benefit of his abutting property, and whether it is distinguishable in principle from the cases heretofore decided. By the Dongan charter, the colonial government granted to the mayor, aldermen and commonalty of the city of New York all the streets in the city for public use. This was in 1686, nearly a century before the grant by the city to the plaintiff’s predecessor in title of the lot now owned by him. In its grant the city bounded the lot on Pearl street The city was then the owner both of the soil of the street and of the land granted. If it was necessary to decide the question, it would be worthy of serious consideration whether, under these circumstances, there was not a grant by implication by the city to its grantee of a right to have Pearl street kept open as a public street for the benefit of the lot granted, within the principle of many of the cases referred to in the Story case, that where an owner of land conveys a lot, bounding it on a street laid out by him on his own land, he thereby establishes it as a way for the benefit of his grantee, and his successors in title, which the grantor cannot thereafter close or obstruct to their prejudice. But, as we place our decision on a broader ground than is suggested by these special circumstances, we pass the point without consideration, and shall assume that no covenant was implied in respect of Pearl street, in the grant by the city of the lot in question. The main argument pressed upon om&attention in opposition to the claim that the plaintiff has an easement or property right in Pearl street by virtue of his being an abutting owner merely, is founded on the principle of the common law, that an easement in another’s land must have its origin in grant, or in prescription, which presupposes a grant, and upon the fact that not only is there no evidence of such a grant in this case, but that it having been shown that the street was opened by the Dutch, and presumably governed by the rules of the civil law, the existence of any private right or easement in the street in favor of abutting owners is conclusively disproved.

It is undoubtedly true that there is inseparably associated with the idea of a common law easement the existence of a grant whereby one tenement is subjected to a burden or servitude for the benefit of another, and it must be admitted (upon the assumption we have made as to the construction of the grant of 1768), that the plaintiff’s case is destitute of any proof that the easements or rights which he seeks to enforce originated in grant or in any covenant which operated as a grant between himself, or his predecessors in title, and the city of New York.

The defendant is also entitled to the further admission that if the rights asserted by the plaintiff in Pearl street could only be created in the mode prescribed by the common law for the creation of easements in land, the plaintiff must fail in his action. But, however difficult it is to trace its origin, or to refer it to any exact legal principle, it is undoubtedly the prevailing doctrine of American jurisprudence, that the owner of a lot abutting on a city street the fee of which is in the municipality, has, by virtue of his proximity, special and peculiar rights, facilities and franchises in the street, not common to the citizens at large, in the nature of easements therein, constituting property of which he cannot be deprived by the legislature, or municipality, or by both combined, without compensation. Crawford v. Village of Delaware, 7 Ohio St., 460; Street Railway v. Cumminsville, 14 id., 524; Railroad Co. v. Esterle, 13 Bush (Ky.), 668; Lackland v. Railroad Co., 31 Mo., 180; South Carolina R. R. Co. v. Steiner, 44 Geo., 546; C. B., etc., R. R. Co. v. Twine, 23 Kas., 415 ; Same v. Andrews, 30 id., 590; Theobold v. Railroad Co., 66 Miss., 279; B. & M. R. R. Co. v. Reinhackle, 15 Neb., 279 ; Haynes v. Thomas, 7 Ind., 38; Rensselaer v. Leopold, 106 id., 29.

In several of the cases just cited it was held that the laying of a railroad track in a town or city street, and the operation thereon <?f a steam railroad, was inconsistent with the uses for which streets are established, and in this respect the decisions are more favorable to the abutting owners than those in this state, but this does not weaken their force as an adjudication of the principle that abutting owners have as such a property right in the street in front of their premises, which entitles them to restrain its appropriation to other and inconsistent uses.

The opposite view has been maintained in Pennsylvania, The courts’ of that state have strenuously asserted the supreme power of the legislature to appropriate streets to public uses destructive of their ordinary use as public ways, and have denied the right of abutting owners to compensation, however serious the injury to their property occasioned by such appropriation. The injustice of this rule led to the insertion in the new constitution of Pennsylvania, adopted in 1874, of a provision declaring that municipal and other corporations invested with the privilege of taking private property for public use, should make compensation for property taken, injured or destroyed ’* by the construction of their works, etc. Subsequently, in the case of Pennsylvania R. R. Co. v. Duncan, 111 Pa. St., 352, the court sustained,' under this constitutional provision, an action in favor of an abutting owner on Filbert street in the city of Philadelphia for damages to his premises caused by the construction by the defendant of an elevated track for its road, in the street in front of his premises, which obstructed access thereto, and impaired the value of his property. The Story case decided that Story was entitled to relief against a similar structure, on the ground that the injury complained of by him was a taking of his property under the provisions of our state constitution in reference to the taking of private property for public use, which does not contain the words “ injured or destroyed,” as does the similar provision in the Pennsylvania constitution of 1874.

The city of New York has a proprietary interest in the streets of that city. It owns the fee of the land occupied by the streets, whether such streets were laid out under the Dutch regime, or during the colonial period, or subsequently, after the organization. of the state government. Exit its tenure is in trust for street uses, declared or recognized in the original charters and in the state statutes.

The Dongan charter expressly vested the title to the streets in the mayor, aldermen and commonalty of the city, and the trust was declared in the following words: “ For the public use and service of the mayor, aldermen and commonalty of the said city, and of the inhabitants of Manhattan’s Island and travelers therein.” The Dutch streets, as xvell as all other streets in the city then existing, were included in this grant and were all impressed with and were to be held under the trust so declared. Under the act of 1813, the title to streets laid out and opened under that act also vested in the city, but the statute declared the trust: “In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares and places in the city are and of right ought to be.” This statute was in precise harmony with the policy indicated by the Dongan charter, to vest the proprietary interest in the streets in this corporation as the donee of a trust for those for whose benefit it was created. The legislature, by the acts of 1779 and 1793, Green. L., 31; 3 id., 54, confirmed and emphasized this policy by a formal investiture of the city with all the rights of the state (if any) in the public streets.

It is to be observed that the declaration of trust in the act of 1813 expressly recognized that all of the streets of the city then existing were held under the same trust as was declared in respect of the streets to be laid out under that act. The words are: “ In like manner as the other streets, etc., in the said city are and of right ought to be.” If the trust declared as to streets to be opened under that act was in legal construction any broader than ihe trust declared in the Dongan charter, then manifestly there was an express legislative declaration in the act of 1813 that the city thereafter was to hold the streets in existence when that act was passed upon the same trust and tenure as the new streets to be opened thereunder. The question then arises, for whose benefit was this trust created. There can be no doubt, of course, that the public at large were beneficiaries.

The streets were to be kept open as public streets forever, and it has always been recognized as one of the primary duties and functions of the state to open and maintain streets and ways as channels for transit, traffic and commerce. But streets, as is well understood, especially in centers of population, subserve the interests of the state in other ways than by affording passage to the public from one point to another. They afford opportunities for erecting wharves and warehouses, stores and dwellings, and public buildings, by public and private enterprise, which contribute to the convenience of the public, and enhance the wealth and prosperity of the state. They encourage the improvement of private property located upon the streets, and as is well known, real property in cities derives its chief value from such location. We think it would be limiting the scope of the trust declared in the charter and statutes to which we have referred quite unwarrantably to confine it to the aggregate public, and deny its application for the special benefit and protection of property abutting on the streets. This question was reférred to by Judge Tracy in his opinion in the Story case. He says (p. 176), “that the trust created by the act of 1813 was intended to be for the benefit of the abutting owner as well as for the public we can not doubt,” and we concur in this view. We have then an express and deliberate legislative declaration of a trust in respect to all the streets owned by the city, however or whenever acquired, that they shall forever be kept open as public streets, upon faith of which owners of abutting property have, or are presumed to have acted in improving and building thereon. Can the legislature abrogate this trust or authorize its violation without making compensation for any injury sustained by abutting owners? Justice requires a negative answer, and we think it may be properly said that the acceptance and acting upon this trust by owners of abutting property creates in them a right which the law will enforce, to have and enjoy the advantages and incidents of a public street in connection with their property, of which the legislature can not'deprive them without compensation.

The statutes for laying out streets proceed on the theory that special advantages are thereby conferred upon and will be enjoyed by the owners of abutting property. In 1793 the legislature by chap. 42 of the Laws of that year authorized the widening of John street and directed that the expense should be apportioned by commissioners who should determine the part to be borne by the city and the part which ought to be borne “ by individual citizens whose estates in the said street and vicinity will become advanced and increased in value by such improvements.”

In 1784 the legislature provided for the alteration of certain streets in the city and provided for damages to individuals whose property should be injured by such alteration. Chapter 56. The system of maintaining, paving and repairing streets and assessing the expense on the adjacent property recognizes the existence in abutting owners of a special and peculiar interest in the streets other than that of the public at large.

The defendants’ counsel in support of the claim that the legislature may deprive abutting owners of the use .of the streets in front of their premises or convert them to other and inconsistent uses, urge the analogy of cases which have arisen in respect of the rights of riparian owners on navigable waters by which, as they allege, it is settled that one whose grant is bounded by high water mark of a navigable stream may under legislative authority be cut off from access to the water without receiving any compensation. The cases of Gould v. Hudson River R. R. Co., 6 N. Y., 522, and Lansing v. Smith,, 8 Cow., 146, S. C., 4 Wend., 9, are cited in support of the proposition. It is sufficient to say in respect to the case of Gould v. Hudson River R. R. Co., that it has been frequently criticized and cannot be regarded as a decisive authority upon the point adjudged therein. The case of Lansing v. Smith was the case of a public improvement to promote the navigation of the Hudson river and afford greater facilities for commerce. The improvement was consistent with the use of the river as a highway. In the regulation of this public right the use of the plaintiff’s dock was rendered less convenient but was not prevented. The court held that the act was constitutional. But the chancellor in his opinion expressly reserved the question whether the legislature could grant a right to build a wharf in front of the plaintiff’s so as to destroy it entirely, saying, “that is a question which it is not necessary now to discuss.”

The main question presented on this appeal is difficult of solution. There must be a property right in the street to authorize the maintenance of the action. The plaintiff’s easements or rights in the nature of easements are not created by grant or covenant. They arise, we think, from the situation, the course of legislation, the trust created by statute, the acting upon the faith of public pledges and upon a contract between the public and the property owner, implied from all the circumstances, that the street shall be kept open as a public street and shall not be diverted to other and inconsistent uses. There is some analogy, we think, between the rights of abutting owners as against the public, and those acquired by the public against private persons in streets or highways by dedication. The public acquires, upon acceptance of a dedication by the owner of land of a highway over the same, a perpetual easement therein for a highway, although there may be no deed, or writing, or covenant, and no formalities attending the transaction such as is required for the creation of an easement at common law.

Here the state has dedicated the streets in the city of New York to be public streets. The abutting owners have acted upon the dedication and upon the pledge of the public faith that they shall •continue to be open public streets forever. It would be gross injustice to deprive them of the advantages intended without compensation. The dedication ought to be, and we think is, irrevocable. We conclude this part of the case with the remark that neither the Story nor the Zahr case imposes any limitation upon the legislative power over streets for street uses. They simply hold that the trust upon which streets are held cannot be subverted by devoting them to other and inconsistent uses. .

We have so far assumed that the fee to the bed of Pearl street was in the Dutch government at the time of the capitulation in 1664. But there is an admission in the case that the fee of a portion of the bed of Pearl street, including that part opposite the plaintiff’s lot, had been granted to individual owners of lots on the opposite side of the street, and that the fee is in their successors in title, of which the plaintiff is not one. The original grants are not in evidence. ' There are some confirmatory grants referred to, made by Gov. Nicolls, which contain a condition that the grantees shall “ not rear any building fabric thereupon, nor debar it (Pearl street) from being a public highway.”

We do not perceive that these grants either weaken the plaintiff’s case or strengthen that of the defendant. The defendant does not claim under the grantees, and if the fee of the street is in privote persons their title is nominal merely and as against them the plaintiff has clearly a prescriptive right, nor could such title prevent the acquisition by the plaintiff and his predecessors of rights against the public in the nature of easements, under the views heretofore stated.

The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its part, furnish a ground of action. But we held in the Lahr case, that as to abutting owners having easements in the streets through which the road was constructed, whose rights had not been acquired by condemnation, the defendant was a trespasser. Upon general principles, therefore, it would seem that any consequential injury to the plaintiff’s property from the acts of the defendant while engaged in the unauthorized occupation and use of the street, was proper to be considered by the jury. In the Lahr case, Ghief Judge Buger, referring to this point, said: “No partial justification of the damage inflicted by an unlawful structure and its unlawful use can be predicated upon the circumstance that under other conditions, and through a lawful exercise of authority some of the consequences complained of might have been produced without rendering their perpetrator liable for damages.” See also opinion of Finch, J., Drucker’s case, 106 N. Y., 158 ; 8 N. Y. State Rep., 599.

The point sought to be raised as to the rule of damages where the premises have been leased by the owner and were in the occupation of a tenant during the period for which damages are claimed, is not, we think, raised by any specific and proper exception and ought not, therefore, to be now determined.

The rejection of evidence as to the diminution of rental value of other buildings near to that of the plaintiff, but not on the line of defendant’s road, if technically erroneous, ought not, we think,

lead to a reversal of the judgment. In the early part of the trial the parties seem to have assented to a rule excluding evidence of this character. It is not at all probable, moreover, that the defendant was harmed by the ruling upon this point.

These views lead to an affirmance of the judgment.

We should have been satisfied to have rested our judgment upon that in the case of Abendroth, recently decided in the second division of this court But the present case was originally moved for argument before the Abendroth case was finally disposed of in the other branch of the court, and in view of the circumstances and the great importance of the main question involved, we have thought it not inappropriate to express in a supplemental opinion, our concurrence in the judgment in that case.

The judgment below should be affirmed, with costs.

All concur; Earl, J., concurs except as to the rule in reference to noise, and that he thinks erroneous.


author: Pratt, J.

text:
    Catharine McLaughlin, Resp’t, v. William W. Armfield, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Negligence—Owner of factory building—Liability for absence of fire escapes—Laws 1888, chap. 583, tit. 14, § 16; Laws 1887, chap. 462, § 4.
    Where the owner of a building used as a factory has collected rents therefor for five years he cannot evade responsibility for injuries caused by the absence of fire escapes by alleging he had no personal knowledge that they had not been erected as required by law.
    2. Same.
    The initial duty of erecting fire escapes rests on the owner of the building and he should bring the subject before the commissioner and seek his direction.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Plaintiff was employed in a factory building four stories high, owned by defendant. A fire broke out which spread rapidly, shutting off the stairway, and there being no fire escapes, plaintiff leaped from the third-story window to an adjoining roof and was injured.
    Defendant resided at Penn Yan and had leased the ground to one Wooster, who was to erect a building thereon, and defendant claimed to be ignorant of the character of the building or the use to which it was to be put.

      J. H.V. Arnold, for app’lt; Andrew L. Gardiner and Frederic A. Ward, for resp’fc
   Pratt, J.

The appellant for five years before the accident had owned and collected rent from the defective building. If, under those circumstances, he can avoid responsibility by alleging he had no personal knowledge that the fire escapes were not erected as required by law, the statute would be a snare and not a safeguard.

The appellant argues that as the statute does not in express terms declare that fire escapes shall be erected by the owner, the duty cannot be placed upon him by a judicial construction of the law.

The law enacts that any building occupied or built to be occupied as a manufactory shall be provided with such fire escapes as shall be directed by the commissioner. We think the initial duty rests upon the owner, that he should bring the subject before the commissioner and seek his direction.

The statute is intended to protect human life; its intentions are easily discovered and no reason is perceived why the court should strain after so strict a construction of its language as to deprive it of all useful operation.

The appellant argues that had plaintiff not given way to fright and exercised a sound discretion as to the method of escape adopted, she might have found a safe egress by another window.

All those considerations were properly submitted to the jury. Their finding was adverse to defendant and was sustained by the testimony.

It follows that the judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Patrick J. Flannery, Resp’t, v. Aslan Sahagian, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Arbitration—Award.
    The parties to a building contract agreed to submit to arbitration a controversy as to the amount due thereunder. The arbitrators decided that the contractor was entitled to the last payment. Later in the day a formal decision, properly acknowledged, and stating the amount found to be due, was delivered to the contractor. Held, that but one award was made.
    2.,Same—Waiver oe oath.
    Where the oath prepared for the arbitrators was destroyed upon their stating that they would swear to their report, and the hearing proceeded to adjudication without objection or request for an oath of office, Held, hat the oath was waived.
    Appeal from order denying defendant’s motion to set aside an award of arbitrators, from order confirming award and from judgment entered on the last order in favor of plaintiff for $1,350.04.
    The plaintiff and defendant having a controversy upon the amount due on contract, and for extra work on a building in Yonkers, and for damages in consequence of the negligent manner in which the work was done, agreed to submit the matter in controversy to four arbitrators. '
    The arbitrators met and after questioning the parties and examining the plans, specifications, architect’s certificate and the building, rendered the following decision :
    “Yonkers, FT. Y., December 30, 1889.
    “ We, the undersigned, Messrs. E. K. Baldwin, James W. Prendergast, F. Durand and J. 0. Campbell. Jr., being selected by Messrs. P. J. Flannery and A. Sahagian as a board of arbitrators, do report as follows: We find, according to the plans, specifications and certificates issued by the architect, that Mr. P. J. Flannery is entitled to his final payment.
    “E. K. Baldwin,
    “ James W. Prendergast,
    “ Frederick Durand,
    “ J. C. Campbell, Jp

      “ Sworn to before me this 30th) day of December, 1889, j
    “ Albro A. Hubbard,
    “ Notary Public, Yonkers, N. Y."

    A copy of this was given to each party.
    Later, on the same day, the arbitrators executed and delivered to plaintiff a formal decision or award, Which was subsequently acknowledged, and which (exclusive of the formal parts), is as follows:

      “Row, therefore, know ye that we, the arbitrators mentioned in the said submission, having heard the proofs and allegations of the respective parties, and examined the matters in controversy, by them submitted therein, do therefore make this award in writing, that is to say, the said Patrick J. Flannery is entitled to recover of the said Aslan Sahagian the final payment due him on his contract, and as certified' to by George Eayner, the architect; and that such payment amounts to thirteen hundred and eleVen and forty one-hundredths dollars, and interest thereon for seven months, amounting to $38.64, making a total of $1,350.04.”
    Defendant claims that there were two awards, and objects to the failure of the arbitrators to take the oath.

      Joseph F. Daly, for app’lt; F. X. Donoghue (Martin J. Keogh, of counsel), for resp’t.
   Barnard, P. J.

There was .but one award made. The question submitted was whether a bill for work and materials was due and owing by the defendant to the plaintiff. This turned upon the fact whether the work was well and sufficiently done according to a contract between the parties. The claim was specified in a bill, which was referred to and described in the submission. The informal decision was only to the effect that the plaintiff was-entitled to the last payment. This was virtually deciding the case, but not sufficient facts were stated upon which to enter judgment. On the same day a formal decision, properly acknowledged, was made and delivered to the plaintiff, stating the amount of- the bill which was found to be due the plaintiff, and being the very bill submitted to the arbitrator. The papers, I think, show that the arbitrator’s oath was waived The defendant had an affidavit or oath of some kind, presumably an oath of office. The arbitrators said they would swear to their report, and thereupon defendant tore up the oath, and the hearing proceeded to adjudication without dissent or further request for an oath of office.

The order confirming the award and the order refusing an application to set it aside should be affirmed, with costs and disbursements.

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


author: Dtkman, J.

text:
    Enoch C. Swain, Resp’t, v. William H. Schieffelin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Tout—Injury to business of plaintiff by sale of poisonous substance.
    Defendants sold to plaintiff a compound called carlat red, to be used in coloring ice cream. Some of plaintiff’s customers who partook of the-cream so colored became sick and showed symptoms of arsenical poisoning, and this becoming known caused a loss of business to plaintiff. In an action for the damages sustained thereby, it was admitted that carlat red contained arsenic, but not sufficient to produce this result, and defendants’ scientific witnesses so testified. On the other hand, it was shown that only those persons who partook of the colored cream were affected. Held, that a verdict in favor of plaintiff could not be said to be destitute of support.

      3. Same—Damages.
    The verdict included an allowance for loss of business, as well as for the ice cream injured and rendered useless. Held, no error.
    Appeal from, judgment in favor of plaintiff, entered upon verdict.

      William Jay and John Jay Chapman, for app’lts; John 0 McGuire, for resp’t.
   Dtkman, J.

The plaintiff is a manufacturer of ice cream and other similar substances, which he sells to different people for consumption as an article of food.

The defendants are engaged in the business of manufacturing chemicals and extracts, and other similar substances for sale, and in December, 1888, they sold to the plaintiff a liquid compound called carlat red, to be used by him as a coloring substance for his ice cream.

The coloring substance so sold was used by the plaintiff to impart a strawberry hue to his ice cream, which he sold to his customers in the usual course of his business, and the persons who partook of the same became sick, and manifested symptoms of arsenical poisoning.

The facts received publicity, and the plaintiff sustained loss of business, besides destroying $100 worth of the poisoned cream, and this action was commenced for the recovery of his damage.

The cause was tried at the circuit before a jury, and a verdict was rendered in favor of the plaintiff for $800. Thereupon the counsel for the defendant moved for a new trial, and to reduce the verdict to fifty dollars, the damages which the j ury found the plaintiff had sustained by the destruction of the ice cream rendered useless by the presence of carlat red; and .both motions were denied, and the defendants have appealed from the judgment entered upon the verdict and from the order denying the motions.

The main defense to the action is founded upon the inadequacy of the cause to produce the alleged effects upon the customers of the plaintiff, and the insistance is that although the coloring substance called carlat red does contain small proportions of arsenic, yet the quantity contained in the portion sold to the plaintiff by the defendants was so small as to be incapable of producing injurious results upon the consumer.

To that defense the testimony of the defendants was mainly directed, and the evidence so adduced made a strong case in support of the position. The witnesses for the defendant, however, admit the presence of' arsenic in carlat red.

On the part of the plaintiff, upon this question, there was the' undisputed sickness of the persons who partook of the substances with which the carlat red was mingled. It was mixed only with the strawberry and chocolate ice creams and apricot water ice, and ■only the persons who consumed those two varieties were made sick. So that the plaintiff went to the jury with proof of the presence of arsenic in the carlat red, sickness resulting to those who ate it, with symptoms of arsenical poison and absence of adequate causes for the effect. Then came the men of science and said it was impossible to produce the results experienced by the diminutive quantity taken into the system.

The weight of the testimony of one of the experts who endeavored to attribute the sickness to poisonous substances in the 'milk was diminished .by the fact that none of the persons who ate the lemon and vanilla cream were sickened.

Thus the case s.tood with fact on one side and theory on the other, and who was to locate the truth; assume for the testimony on the part of the defendants all that they claim for it, yet with the facts adduced by the plaintiff, no appellate tribunal can say the verdict is unsupported.

All the facts and circumstances and the scientific theories went to the jury and it is easily perceived how that body would seize upon an undisputed fact in preference to a scientific theory. Hypothetical testimony is no better than the assumption upon which it is based. If a supposition be faulty, the hypothesis is unreliable, and if in this instance an unusual quantity of arsenic went into the carlat red by mistake or -carelessness, the scientific testimony respecting the impossibility of the results attributed to its use would be without value.

In whatever light we view the testimony we cannot escape the decision of the jury and we cannot say it is destitute of support

The charge of the trial judge is not furnished and we assume that the case was submitted to the jury with proper directions.

Fault is found with the measure of damages, but we can find no error in that respect.

The judgment and order appealed from should be affirmed, with costs.

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