author: Tompkins, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of John H. Braunsdorf, as Sole Surviving Executor, etc.

      (Surrogate’s Court, Rockland County,

      Filed July, 1895.)

    1. Executor—Extra services—Compensation.
    An executor, who continues the business of the testator, merely at the request of some of the next of kin, and without any direction in the will, is entitled to compensation f&r services rendered therein as a skilled mechanic, though the amount exceeds the commissions of the executor as-fixed by statute.
    2. Same—Estoppel.
    Where the executor erects a building upon the real estate of the testator, with the assets of the estate, all those interested, who reap the benefit of the improvement, and receive their respective shares of the increased price for which the property is sold, are estopned from questioning the right or duty of the executor in erecting the building.

      Final judicial settlement of the accounts of John H. Braunsdorf, as sole surviving executor of the will of Julius E. Braunsdorf, deceased.

      Garret Z. Snider, for executor; I. Newton Williams, for contestants ; A. X. Fallon, for special guardian.
   Tompkins, S.

Julius E. Braunsdorf died at Pearl River, Rock-land county, FT. Y., on the 30th day of August, 1880, leaving a will by which his widow (Julia Braunsdorf) and JohnH. Braunsdorf were made executrix and executor. Julia Braunsdorf died on the 13th day of June, 1891. By his will the testator devised and bequeathed all his estate, real and personal, to his executors in trust, “to have the custody, care, and management thereof, and to collect and receive the rents, income, and profits thereof, and pay all necessary expenses and charges for the proper care and preservation thereof, and, after the payment of such charges and expenses, to pay over, on the first day of December of each year, from such net income, to my mother, Henrietta W. Braunsdorf, the sum of three hundred dollars, during her natural life.” All the remainder of said income was given to his widow, for her maintenance and use so long as she should remain his widow, and after the death of the widow to his children; one of his daughters, Wilhelmina, however, to receive only the income of her share. The mother died prior to the death of the widow. The surviving executor, John H. Braunsdorf, now makes and renders an account of his proceedings as sole surviving executor. At the time of the death of the testator the widow was occupying the homestead farm, at Pearl River; and living with her were several of the testator’s children, then under age, and some of them quite young. At the time of the testator’s death, and for some time prior thereto, he was engaged in the manufacture of machinery, and occupied a factory for that purpose at Pearl River. At the time of his death there was a large quantity of goods and material which had not been made up, and which were of little, if any, value in that condition. It is substantially conceded that the stock and merchandise in the factory at the time of the testator’s death, in proc§ss of manufacture, were valueless, except as junk, unless made up. For some years prior to the death of the testator, John H. Braunsdorf, the executor and the testator’s eldest son, had been in his father employ as a machinest in this factory. After the death of the testator, the executor, John H. Braunsdorf, with the consent of the widow and all of the children, continued the business until the widow’s death, in June, 1891. For a short time he employed a number of hands in the factory, in making up the unmanufactured stock and completing unfinished machinery, and in filling unfilled contracts and orders. Some of the executor’s brothers worked in the factory with him after their father’s death, and received wages from the executor. It was at the request of the widow and William Braunsdorf, who was then of age, and the other children, who are contestants in this proceeding, that the executor, John H. Braunsdorf, continued the manufacturing business. The will did not require or provide for a continuance of the business by the executor. The testimony of the executor, which is uncontradicted, shows that it took seven or eight years to make up and complete the machinery, of which certain parts were in stock at the time of the testator’s death. This he did, and during the early part of the time he had a number of persons employed in the factory ; he himself acting as superintendent and working, and devoting all of his time to the business, as a skilled machinist. Afterwards, and during the greater part of the time, he had but one or two persons, besides himself, working in the factory. Immediately after the testator’s death it was agreed between the widow and the children who were of full age that the executor should continue to receive the sum of eighteen dollars per week for his services as a machinist in the factory, that being the amount which he had received from his father during his lifetime. After about a year, and the orders which had not been filled at the time of the testator’s death were completed, William Braunsdorf suggested that, for the further-services of the executor in making up the unfinished parts of machines then in stock, he should receive the sum of twelve dollars per week, instead of eighteen dollars per week. This was agreed to, and the executor continued the business, down to the death of the widow, without any objection on the part of any of the children, who had in the meantime all become of age.,. From the time of the testator’s death the net income of this manufacturing business was paid by the executor to the widow, and was used by her in the support of herself and children upon the farm. In the account the executor charges himself with the amount of the inventory, to wit, $21,953.09, and with the sum of $9,467.43, increase over inventory ; also, with $5,450.31, being amounts received from sale of property and collection of accounts not inventoried, which amount also includes the net profit of the manufacturing business carried on by the executor as aforesaid.

The first objection made by the contestants is that the account should be surcharged with the sum of $7,344, being the amount retained by the executor for wages, out of the proceeds of the manufacturing business, during the time he carried it on as aforesaid. The executor, by his account, gives no items of the manufacturing business; nor does this account show that he paid himself anything for the service thus rendered, but shows simply a. net profit of $2,289.35. The contestants, by their examination of the executor, have shown that, out of the gross receipts of the manufacturing business, the executor has retained the sum of $7,344,—■ being at the rate of eighteen dollars for the first year, and twelve dollars per week thereafter; and the contestants now seek to charge the executor with that amount, qn the ground that he is not entitled, for whatever services he may-have rendered, to more than the commissions allowed by law. I am of the opinion that the account should not be so surcharged. The will did not require the executor to continue the business. He did it on his own responsibility, and, if there had been losses to the estate by reason thereof, he would have been personally liable. He is chargeable with all the profits. The business was profitable, and he charges himself therewith. In Munzor's Estate, 4 Misc. Rep. 874, it was held:

“ Where an administrator continues the business of his intestate, it becomes his individual business, though the estate is entitled to the profits ; and therefore the administrator, on accounting, need not state the details of the business, or produce vouchers for the disbursements thereof.”

On the question of the executor’s liability for the wages retained by him, I find the facts to be as follows: The testator had carried on the business of manufacturing machines for some years before his death, and from the income thereof supported his family. The executor worked for him as a skilled machinist, received for his services eighteen dollars per week. Upon the death of the testator there were lot of unfinished machines in the factory, and a large lot of material in course of manufacture, and a lot of unfilled orders for complete machines. The widow, with five of the minor children, continued to live upon the farm near the factory. There was but little property from which any income could be derived for their support but the factory. It was agreed between the widow and William Braunsdorf and Mrs. Deckelman, children who were of full age, and Henry Braunsdorf, who was about eighteen years of age, that the executor should continue with the business, supplying the unfilled orders, and completing the unfinished machinery, and that he should receive the same wages paid to him by his father, to wit, eighteen dollars per week. The executor continued the business for about a year, paying' the net income to the widow, who in part, supported herself and children therewith. During that time two of the three other children worked in the factory, and received their wages from the executor, and thus the business was carried on for about a year. Then it was suggested by William that, inasmuch as most of the large orders had been filled, $12 per week would be sufficient compensation for the executor, which was agreed to; and from that time until the widow's death, in June, 1891, the business was carried on by the executor, he also doing outside jobbing, etc., and paying all the net income to the widow. After the children grew up and left the old home, they frequently returned, and in the summer lived for weeks and months at a time with the mother, without paying board, the expenses of the household being met in part by the receipts from the factory. At one time William said to the executor: “John, we cannot do without you. You keep right on. We want your help to sell the goods,” etc. Several letters from William to the executor were put in evidence, in which William commended John’s work and services, and cautioned him against overworking himself. The executor was a skilled mechanic, and remained there in the factory, working for his mother and brothers and sisters, at less wages than he might have earned elsewhere, while his brothers went off to the city of Hew York, as they grew up, and entered into various occupations. These same brothers and sisters now insist that the executor shall repay to the estate the wages which he retained for those eleven years’ work. For six years after the testator’s death, George, Julius, Laura, Julia and Henry were at the homestead, .and were supported partly by the proceeds from the factory. The executor acted as manager of the business, as well as performing the work of a skilled mechanic. The rule is well settled that an executor can receive no greater compensation for his own services than the commissions fixed by statue. In re Hayden's Estate, 26 St. Rep. 911; In re Taft's Estate, 28 St. Rep. 315; Collier v. Munn, 41 N. Y. 144. This case is, however, distinguishable from the cases cited, in several particulars. Here the will did not direct the executor to continue to carry on the business. He did it on his own responsibility, and at the request of some of the contestants. The duties performed by him as a skilled mechanic were notin the line of his duty as executor, and were not imposed upon him by the will, nor by law. In all the cases cited by counsel for the contestants, the duties for which extra compensation was sought were executorial in their character. The services rendered by this executor were of such a character as an executor could not be required to render, and could not perform without the mechanical skill and training which this executor possessed. The •case most parallel is case of Lent v. Howard, 89 N. Y. 169, in which it was held that an executor who managed a farm, in respect to which he owed no duty under the will, was entitled to receive odt of the proceeds a reasonable compensation in addition to legal commissiops. There being no claim of waste or neglect by the executor in the management of this estate, or the conduct of the factory business, he is only chargeable with the net profit, as shown by Schedule B of the account.

The executor credits himself with the sum of $8,715, paid to the widow as income, pursuant to the provisions of the will. This item is objected to, and it is claimed that the actual net income to which the widow- was entitled amounted to but the sum of $356.76, and that the above item should be disallowed, to the extent of $8,358.30. At the time of testator’s death he owned considerable real estate, including a large brick factory, upon which there was a mortgage of $10,500. By the account it appears that' the executor is chargeable with personal estate aggregating the sum of $30,089.72, including the profit earned by the executor in the factory. Substantially all this was used in the payment of the funeral expenses, expenses of the administration of the estate, and debts, including the mortgage for $10,500. In fact, it appears that the executor and executrix mingled the personal and real estate, using the personal estate for the benefit of the real, and using the rents of the real estate forthe support of the widow and family, and payment of debts and expeúses; it having been necessary so to do in order to keep the family together, support them, and preserve the estate. There is no claim, and certainly no proof, that the executor acted other than in good faith, atrd for the best results. It is impossible, on this accounting, to entirely separate the personal and real. It is conceded, however, that substantially all of the personal estate, to wit, $30,089.72, was used in the payment of debts and expenses. The gross income of the real estate, down to June, 1891, the date of the widow’s death, was the sum of $14,284.21. . The executor paid out of the rents, for insurance and taxes, the sum of $7,863.51; leaving the sum of $6,420.70, being the net income, if no other deductions are to be made.

It is contended, however, by the contestants, that the sum of $5,764.14, paid by the executor for repairs, should be deducted from the income. I think not. These repairs were made for the permanent improvement of the real estate, and enhanced its value; and in the partition and sale of the real estate (the judgment in which action is in evidence) all the parties to this proceeding were benefited, to the extent to which these repairs enhanced the property. Under the circumstances, I think that these repairs should be charged against the principal, and not against the income. If the income had been forced to pay for all of the repairs amd improvements to the' real estate, there would have been no income for the widow.. It was certainly the intention of the testator that the widow should have the income, and it was evidently his intention that there should be some income for her support and maintenance; and it having been paid to her, and used by her for her own support, and the support of the contestants while with her, it should not now, in justice or equity, be disallowed.

The above amount of $6,420.70, plus the sum of $37.26 (being the surplus of the personal estate after the payment of all the debts, etc.), making in all the'sum of $6,457.96, I find to be the total net income of the estate, out of which the executor paid $300 to the testator’s mother, pursuant to the will; and the balance of $6,157.96, then, was income, to which the widow was entitled. This amount, deducted from $8,715.06 paid to her, leaves the sum of $2,557.10, with which the executor should be charged, in addition to the amounts charged against him by his account, unless it is shown that these amounts have been paid to the contestants. It is claimed on behalf of the executor that it appears that these contestants have received their respective shares of this difference. It appears that most of them .lived with the mother several years; that all of them visited there frequently, and remained during the summer vacations, etc. But there is not sufficient proof to create legal liability upon their part. Morally and fairly, not one of them should seek to charge the executor with this difference; but they insist upon the objection, and I must find—reluctantly, however —that the executor is chargeable with this amount of $2,557.10.

The next question to be considered is whether the executor should be charged with the sum of $7,448.64, which is claimed to be the difference between the total receipts from the sale of real estate and the total amount paid to the children out of such receipts. The will gave the executors power to sell. The executor sold certain premises, from 1880 to 1892, for the aggregate sum of §23,448.64. Bach of the children received various amounts out of these proceeds. The balance was used for the payment of taxes, insurance, etc., and the whole amount is accounted for by the account. It makes little difference where the money came from with which these items were paid. They had to be paid, and it matters little to the contestants from what source the money came, so long as none of the proceeds were used for improper use. If proceeds of the real estate wore used to pay debts, etc., these contestants received their respective shares of the personal estate, which otherwise would have been used for the same purpose.

The executor asks credit for the sum of $1,285.77, paid for the erection of a frame factory. It seems that in 1881, not needing so much room, the executor rented the large factory for $1,000 per year, and he moved the manufacturing business into a small new frame building, which he had erected at a cost of $1,285,77. It appears that it was necessary for the storing of the estate’s property, and for the carrying on of the business, and that it enabled the executor to rent the large factory at a good rental. The new building, however, was started in January, 1881, for the purpose of providing a place for the sale of the goods of the estate. The-executor testifies that it was necessary, and that no other place could be gotten, and when the large factory was rented for $1,000 a year the executor moved his manufacturing business into it. On the sale of the premises in the petition snit, this frame factory and the lot on which it stood sold for $1,950, and it was shown that the lot was worth from $800 to $500; and each of these contestants received his share of the proceeds, with knowledge of the cause of increase of value. So that it is clear that the building of this factory was in every respect a benefit to the estate and these contestants, and the only question now is did the executor have the power to expend the estate moneys for that purpose? The will imposed the duty of caring for and preserving the estate. It took several years to dispose of the peculiar stock and machinery of the business in which the testator was engaged, and the executor testified that it was necessary to have some place in which to store and sell these goods. Was it not within the powers of the executor to provide a place with the assets of the estate, for the care and preservation of estate property ? However, the claim should be allowed for the reason that the contestants have all reaped the benefit of these improvements, and received their respective shares of the increased price for which the property sold in the partition suit, and are now estopped from questioning the right or duty of the executor to erect the building. In the case of Rose v. Rose, 6 Dem. Surr. 26, the executor, without authority, with assets of the estate, erected a house upon land of the estate,' which after-wards was accepted by the beneficiaries, and sold at a loss, they receiving and retaining the proceeds, and it was held by the surrogate of Westchester county that their act amounted to a ratification of the investment, and discharged the executor from liability for the loss. Here the sale of the premises by these contestants, and the acceptance of the proceeds, which were increased by the act of the executor, constituted a ratification of his act in building, even if it was unauthorized.

As to the payments made to the children and contestants, they are all allowed. They are all established by the testimony of the contestants themselves. Those who were under age at the time payments were made have testified that the amounts were received and have been retained, and thereby the payments have been ratified.

Objection is made to the payment of income to the widow on the ground that sufficient vouchers have not been produced. There is sufficient competent evidence to establish these payments. Further, the widow is dead, and no claim is made on behalf of her estate. These contestants have no interest in that income as devisees of Julius E. Braunsdorf. ^

Let a decree be submitted, upon two days’ notice, for settlement, at which time my attention may be called to any errors in respect to the testimony or the figures. Costs to all parties out of the estate.

Ordered accordingly.


source: Caselaw Access Project

author: Finch, J. Gray, J.

license: Public Domain

text:
    John Cookman, Resp’t, v. The New York Elevated Railroad Company, et al., App’lts.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Damages—Elevated bailway.
    Where the proof shows that, before the coming of the elevated road in the particular locality, that locality was substantially or mainly vacant and not built up, and, after the road came, the building and improvement quickly followed, accompanied by steady and serious increase of value, it is the duty of the judge or jury to award no damages and dismiss the complaint, even though experts may guess, or side streets appreciate more rapidly.

      2. Same.
    But, where the proof shows that the elevated road has occupied a locality already substantially built up, in which normal city growth is operating and seriously increasing in values, but, as a consequence of the road, the natural advance is halted, or palpably lessened, while in the adjacent side streets it. continues, there is possibly an inference of fact that the abutter has been injured.
    3. Same.
    Where a vacant area is built up and gains an increase of value coincident with the coming of the railroad and obviously stimulated by it, the appreciation of property in the adjacent side streets is largely due to the same cause, and the case Is one in which benefits only have accrued, and they do not become injury on the avenue because they help more largely the residence lots near by.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at an equity term.
    This action was brought to restrain the operation and maintenance by defendants of their elevated railroad in front of plaintiff’s premises, in Third avenue, New York city, and for the recovery of damages caused thereby.
    The plaintiff’s properties in suit were, at the time of the trial, Nos. 261, 1028, 1240, 1242, 1244, 1246, 1248 and 1255 Third avenue.
    The judgment was in the form usual in this class of actions. It decreed an injunction, and as incidental relief awarded the plaintiff $8,200 as past damages to cental value, and provided for the avoidance of the injunction on payment of $9,800, which was found to be the damage to the fee value, over and above all benefits, by reason of the construction, maintenance and operation of the elevated road in front of the plaintiff’s premises.

      Arthur 0. Townsend, for app’lts; E. W. Tyler, for resp’ts.

       Reversing, 63 St. Rep. 873.

   Finch, J.

It is impossible to decide this appeal correctly without a full and definite appreciation of the difference between the case of Bohm v. Met. E. R. R. Co., 129 N. Y. 576; 42 St. Rep. 247, and that of Becker v. Met. E. R. R. Co., 131 N. Y. 509; 43 St. Rep. 726. Both belonged to the class of actions in which the abutting property was shown to have seriously increased in value since the construction of the elevated road, so that, presumably and apparently, benefit instead of damage had resulted ; and in each it was, therefore, necessary to show as ground of recovery two things; first, that when the road was built the locality was increasing in value from the tendency toward it of incoming population and normal city growth, and, second, that in the continuance of progressive increase of value the plaintiff’s property would have shared if the railroad had not been built, but was prevented from so sharing to its due extent by the presence of the road operating more or less as a barrier to a normal advance. In the earlier case we held that there was no evidence of either essential fact, ,and reversed an award of damages ; in the later case we decided that there was some evidence of the necessary facts and so a reversal was not possible, however just such a reversal might have been. Since the evidence in the two cases was very much alike the real difference in its effect was necessarily due to the' wide difference of situation and surroundings existing when the new structure was built, and some consideration of that difference and of its results may prudently precede a reference to the facts now before us.

Where an elevated street railroad enters a vacant and uninhabited locality, which normal growth has not effectively reached, .which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation, and thereupon and thereby population and growth, tending elsewhere, are dividerted to the new line of rapid transit, and build up the vacant locality, creating a demand for lots and a steady and persistent increase of values both directly on the line and in the side streets near by, the only reasonable and sensible inference is that the increased values are the sole and substantial product of the newly opened line which has brought prosperity to a neglected locality: So far as normal growth or incoming population has had anything to do with the increase of value they are themselves as operating causes due to the new mode of access, and in no respect separate from or independent of it. In and of themselves they would have spent their force elsewhere; would have built up homes even in other states whence steam would give rapid and easy passage, and left the locality to its normal solitude. Of course, in such a case, it is little short of an absurdity to say that the coming of the road prevented the abutter from having his share of the normal city growth, since it is the coming of the road that enables him to participate in that growth at all; that brings it to his vacant and unmarketable lots ; that sets it in operation as a cause of increasing values. It is the obvious truth of such a situation that the removal of the road to some other locality would at once diminish the value of the abutting property by taking away the adequate cause of its advancement, and diverting the growth which had begun to the new line adopted. It is further true of such a case that no ingenuity and no proof can separate what is called the normal city growth as a cause of increasing value from the chief and principal cause, which is the rapid transit system. The two are not only interwoven and inextricably mingled, but the former has no existence in the supposed locality separate from and independent of the latter. It follows that in the supposed situation neither proposition essential to a recovery is or can be proved, for it is not true that the local values were seriously increasing when the road was built, nor that the increase when it came was due to any cause independent of the stimulating effect of the road. Such was the Bohm Case, and we were justified in refusing a,n áward of damages, in disregarding the guess of experts, and in denying any force to a greater increase in the side streets.

But the situation changes materially when the elevated road enters an area already substantially built up and improved. In such a locality normal growth has come, and built the blocks up solidly, or nearly so, and caused an increment of value due to itself alone, and with which the rapid transit line had nothing whatever to do. Such normal growth it is evident had its own independent existence and operation because it had already worked and was continuing to work its result of an increase of values when the railroad did not exist. The average rate of that observed increase in such locality can be approximately ascértained, and if the rate continued after the construction of the elevated road in the side streets, but a less rate of increase is found on the avenue occupied by the cars, and facts are shown explaining such loss by evil effects of the new line, it <is possible to infer that the avenue property has not shared as it should in the normal and independent increase of value to the extent to which it was entitled. That I understand to be the substantial basis of the Becker Case. The distinction I have sketched was plainly drawn in the opinion. It was there said, “ that although certain of the side streets were not all built upon when the road was erected and put in operation, yet it does appear that the locality where this property is situated was fairly built up before the road was operated, although to some extent the adjacent side streets have been more compactly built upon since that time. There has been no such change from absolute vacancy within large and extensive portions of the city limits as has occurred in the vicinity of Harlem, where it has appeared in evidence the side streets and the avenues have been practically brought into existence and peopled since the building and operation of the elevated roads. It was in regard to such a locality that we said in the Bohm Case there was no proof whatever of damages." I have thus repeated the languages of Judge Peckham’s opinion, pointing out the difference between the Beclcer Case and that of Bohm, to show that I have strictly followed it and merely further explained and discussed it, and that no new doctrine is in‘any manner asserted. The distinction is not narrow or argumentative, but radical and real. It will enable the courts below to put an end to any such injustice as awarding damages where benefits have instead accrued, and upon speculative theories destitute of actual foundation. If the proof shows that before the coming of the elevated road in the particular locality that locality was substantially or mainly vacant and not built up, and that after the road came the building and improvement swiftly followed, accompanied by steady and serious increases of value, it will be the duty of judge or jury to award no damages and dismiss the complaint, even though experts may guess, or side streets appreciate more rapidly. But if the proof shows that the elevated road has occupied a locality already substantially built up, in which normal city growth is operating and seriously increasing values, but as a consequence of the road the natural advance has halted or palpably lessened, while in the adjacent side streets it continues, there is possible an inference of fact that the abutter has been injured. But even in those cases a trial court may well hesitate, and require decided and clear proof, and refuse to be misled by deceptive comparisons. It is very rare that in any case or any locality, where the value of the property has largely increased from the date of the coming of the road, and is more or less coincident with it, that any damages ought to be awarded by the process of entangling one’s common sense in a web of theory. There may be here and there some exceptional case. We thought the Storck Case, 131 N. Y. 514; 43 St. Rep. 730, was one, and affirmed it as such, though with much of doubt and hesitation. The property involved was in the same locality with that owned by Bohm, and a similar decision denying damages would have been inevitable but for the proof of some exceptional facts and circumstances. There was evidence of a diminution of rentals because of the erection of the road, that the influx of population which usually and naturally tends and to increase values was of such a character as to prejudice rather than benefit the values in question. We though there was something to raise a question of fact, and, without approving the judgment, felt bound to affirm it. That case was not intended to overrule the Bohm Gase, and must be deemed exceptional and to stand on its own facts.

The present case comes clearly within the scope of the Bohm decision. It is specifically and explicitly found, and upon the evidence no other finding was possible, as to all the property except Ho. 261 Third avenue, that the locality was substantially vacant and unimproved, or at the most only partially built up, while soon after the construction of the elevated road it was compactly built up. It is found that the rental value of No. 261 was increased after such construction, and that the fee value rose from $22,500, in 1869, to $40,000, in 1890, and that the premises were worth more in 1890 than at any time prior to the coming of the new line. It is further found that the presence of the railroad, with its station? near by, has brought multitudes to the locality, increased business and benefited the fee and rental values, a benefit in which property on the adjacent side streets has also shared.

As to No. 1028 it is found that its rental increased from $2,400, in 1875, to $5,500, in 1892, and the fee value from $36,000, in 1881, to $75,000, at the date of the trial. And the same facts as to the beneficial effect of the railroad upon values are again found.

As to Nos. 1240 to 1248 and 1225 a similar state of facts appeared. The rents of the former in 1877 were $9,136, and in 1892 had grown to $11,855, and in that year the rents were greater than ever before the construction of the road. The great change was in the rental of the stores. While the rental of the flats overhead diminished, evidently because of the new supply of better apartments, the business rentals increased from $3,440, in 1876, to $8,200, in 1893, showing a gain of 138 per cent. It must have been difficult to persuade the owner who took that gain that nevertheless he had been damaged. The value of the lots as distinguished from the buildings was, in 1872, about $66,000, and at the time of the trial about $120,000. The value of No. 1255 was $15,000, in 1873, and at the time of the trial about $20,000. It is further found that, in 1873, the streets and avenues in the vicinity were practically vacant and have all been built up since 1877 ; that the increased accessibility has induced the settlement and building; that the same improvement would not have occurred in the absence of rapid transit, and that the defendant’s road has been one of the great and efficient factors in building up the locality.

We have thus before us a state of facts correrponding to that disclosed in the case of Bohm. The result must be the same That there may have been a greater increase in the side streets, due in part, at least, to the influences of the defendant’s road, does not prove or even indicate damage in a situation like the present. Bor in every case where a vacant area is built up and gains an increase of value coincident with the coming of the railroad and obviously stimulated by it, the appreciation of property in the adjacent side streets is largely due to the same cause, and the case is one in which benefits only have accrued, and they do not become injury on the avenue because they'help more largely the residence lots near by. In such a case there is no normal city growth operating independently, or capable, by itself, of severance or measurement. It is, relatively to the unimproved locality, a secondary cause set in operation by a primary one, and the primary one originating the general benefits flowing from the secondary one, does not become hurtful to one lot because it helps to a greater degree some other. The railroad in the vacant locality cannot be said to hinder what it in fact produces.

It follows that the judgment rendered is erroneous. The finding that the plaintiff’s property was injured by the railroad over and above all benefits conferred is wholly unsupported by proof and contradicted by the specific findings.

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

Gray, J.

(dissenting). I feel constrained to dissent from the opinion in this case, not because I am unwilling to agree to the particular rule therein adverted to ; but because I think there was some evidence upon which the decision of the trial court could rest. It may be considered unsatisfactory and it may be vague; but that consideration is no ground for reversing the judgment, as we held in the Beecher Case, 131 N. Y. 500; 43 St. Rep. 726. I do not object to the rule which prohibits an award of damages where there has been no proof of damage, or where it must rest upon theoretical inferences. That rule was laid down in the Bohm Case, 129 N. Y. 576; 42 St. Rep. 247, and must be regarded as established by that decision; but I do not object to the application of the rule to the facts as developed in the present case, which disclose a different condition of things from what was found to exist in the Bohm Case. It cannot be said in respect to the entry of the elevated railroad into the neighborhood of the properties described in the complaint, that that part of the city was brought into existence and peopled through the agency of the defendants, unaided by a normal city growth which was operating to increase city values. It seems to me that consistency with our prior decisions, which have affirmed recoveries based upon a comparison of property values in the neighborhood in connection with other facts relating to the railroad, as the only practicable proof within the reach of the complainant, requires us to affirm the recovery here. The Balter Case, (supra), is an authority which we cannot well overlook in the consideration of the disposition of the present case.

Andrews, Oh. J., Peckham and Haight,.JJ., concur with Finch, J., for reversal; O’Brien and Bartlett, JJ., concur with Gray, J., for affirmance.

Judgment reversed.


author: GRAY, J.

text:
    John Flood, Resp’t, v. Henry Van Wormer, as Commissioner, etc., App’lt.

      (Court of Appeals,

      Filed October 22, 1895.)

    Injunction—Public officers.
    Where a public officer, under color of office threatens to do an act which will inflict permanent damage to property, the owner is not bound to wait till the officer has actually committed the threatened act, but may invoke the aid of a court of equity to restrain the threatened mischief, when he establishes that he does not come within the provisions of the act, under whose authority the officer threatens to proceed.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.

      Alonzo P. Strong, for app’lt; Lewis Gass, for resp’t.

      Affirming 53 St. Rep. 682.

   GRAY, J.

This was an action in equity to restrain the defendant, as commissioner of highways, from removing the plaintiff’s house as encroaching upon the highway. The judgment recovered by the plaintiff adjudged that his house did not encroach upon the highway and restrained the defendant as prayed for.

We think that the equitable interference of the court was properly invoked and that its decree should be sustained, upon the ground that the defendant, as a public officer, under color of office, had threatened to do an act which would inflict permanent damage to plaintiff’s property and that the plaintiff was not bound to wait until the defendant had actually committed the threatened act

Section 105 of chapter 568 of the Laws of 1890, known as the Highway Law, provides, in the event of the neglect or refusal of the owner or occupant of land to remove an encroachment within the time specified in the notice served by the commissioners of highways, that, “he shall forfeit to the town the sum of twenty-five dollars; and that the commissioners may remove such obstruction or encroachment at the expense of the town, * * * or the said commissioners may bring an action in any court of competent jurisdiction to compel such owner or occupant to'remove such obstruction or encroachment.” The defendant served a notice upon the plaintiff to the effect that his house encroached upon the highway, to an extent described, and he was “'required, according to the statute in such case,” etc., to remove the building within sixty days. Annexed to it was a copy of an order, reciting that the commissioner of highways had ascertained that the highway in question was encroached upon in a certain manner and to an extent described, and which ordered the house to be removed.

Ido not think the action could be maintained upon the ground that the notice, which was filed in the town clerk’s office, created a cloud upon the plaintiff’s title. The notice lacked the elements of a judicial determination and was an ex parte proceeding.

But I think the action was maintainable upon the ground of a threatened abuse of authority by a public officer, under color of office. By the terms of the Highway act, authority was conferred upon the commissioner of highways to remove the obstruction, or encroachment, upon the highway and it is made optional with him whether he shall first bring an action to compel such a removal. According to the evidence, and the referee so found, the defendant stated to the plaintiff that he would move his house, after collecting the fine. Was the plaintiff bound to wait until the commissioner had actually commenced to remove his building and had committed a trespass upon his freehold, of a nature perhaps not to be compensated for in damages ? I think not.

The section of the Highway Law referred to did not provide the opportunity, which previously existed under the law, for the trial of the question of encroachment and it seems to be in the line of a just protection to the rights of the citizen, with whose property a public officer, acting under the color of law, has threatened to interfere, that" he should be permitted to go into a court of equity and, assuming the burden of providing that he has not rendered himself amenable to the provisions of the law, under which public officer claims to act, have the question once and for all determined and thus prevent irreparable injury.

In Ryan v. Brown, 18 Mich. 196, the bill was filed to restrain the defendants, a canal board, from committing a threatened trespass upon complainant’s property, by removing certain cribs as a foundation for docks in a river and the point was made that the injury complained of was not such as to authorize the interference of a court of equity. ■ Justice Campbell, speaking for the court, very.pertinently observed that “the case also involves an abuse of authority by public officers and agents, under color of office; and ever since the case of Osborn v. Bank of U. S., 9 Wheat. 738, it has been held that such official oppression would make it proper to interfere upon a less grievance than would justify proceedings on private misconduct, for reasons that are too obvious to require explanation.” In People v. Canal Board, 55 N. Y. 390, it was held that while a court of equity has no supervisory power or jurisdiction over public officials, or public bodies, it will exercise its peculiar jurisdiction over them to prevent some illegal act, under color or claim of right, affecting injuriously the property rights of individuals. It is under one of the heads of equity jurisdiction that the court interferes to prevent injury to land, if the trespass will be attended by irreparable mischief and plaintiff may be unable to obtain relief at law. Spear v. Cutter, 5 Barb. 486.

The Highway Act gives the power to the defendant to proceed summarily against the plaintiff’s property and he has threatened to exercise it, and I see no good reason for refusing the plaintiff the aid of a court of equity, to restrain the threatened mischief, when he establishes that he does not come within the provisions of the act, under whose authority the defendant threatens to proceed.

The judgment should be affirmed, with costs.

All concur, except Peckham, J., dissenting, on the ground that there is no evidence in the case showing any threats made on the part of the defendant to do any irreparable injury. The threat was to commence an action first, and, upon recovery in that action, then to remove the obstruction.

Judgment affirmed.


author: Haight, J.

text:
    The People ex rel. William Barnes, Jr., et al., App’lts, v. The Court of Sessions of Albany County, Resp't.

      (Court of Appeals,

      Filed October 29, 1895.)

    Contempt—Mandate.
    . The mandate or judgment in a contempt proceeding, where it convicts the person charged of a criminal contempt and imposes punishment by fine and imprisonment, must specify the particular circumstances of the ofEense, as required by section 11 of the Code.
    Appeal from order of the general court of the supreme court in the third judicial department, 1894, which affirmed, on certiorari, a judgment of the court of sessions of the county of Albany adjudging relators guilty of a criminal contempt, and dismissed the writ of certiorari.

    The mandate of commitment, or final order entered in the proceeding in the court of sessions, was as follows: “On the 12th day of May, 1894, the matter again came before us, on all the papers in the proceeding, the parties appearing in person and by counsel and after hearing Matthew Hale, Esq., of counsel for the defendants, and James W. Eaton, Esq., district attorney of the county of Albany, we did determine and adjudge the said William Barnes, Jr., George U. Southwick and Arthur Lucas to be guilty of criminal contempt of court, and did sentence said William Barnes, Jr., George N. Southwick and Arthur Lucas, as a punishment for said offense, to each pay a -fine of $100, or, in lieu thereof, to each stand committed to the Albany county jail for the period of thirty days.”

      Matthew Hale, for app’lts; James W. Eaton, for resp’t.

       Reversing 63 St. Rep. 821.

   Haight, J.

It is charged that on the morning of April 12th, 1894, the relators, as the editors and publishers of the Albany Morning Express, published in that paper two articles, one in the editorial column, entitled “ The disgrace of Clute,” and the other in the news column, entitled “His action needs explanation.” That these articles reflected seriously upon the motives and action of the judge presiding at the court of sessions, and that they amounted to a criminal contempt. The editorial proceeds as follows: “County Judge Jacob H. Clute added to his unsavory notoriety yesterday by assigning Arthur L. Andrews and Henry A. Peckham to defend men who were arrested on election day charged with attempting to vote illegally.

“Messrs. Andrews and Peckham have been prominent among the lawyers whose services have been given freely and without charge to prosecuting violators of the election laws. Of this fact Jacob H. Clute, of course, was fully aware, not only because their activity in the interest of honest election has been a matter of current news, but also because they have appeared before Judge Clute’s own tribunal in the performance of their duty.

“In the light of these facts the low-down character of the judicial trick to which Jacob H. Clute descended may be realized. He availed himself of his power as county judge to place these two worthy lawyers, who have fought to prevent suffrage stealing in Albany, in the dilemma of defending election criminals or else subjecting themselves to a fine of $500 and imprisonment for thirty days for contempt of court.”

Then follows a denunciation of the judge in unmeasured terms witli allusion to his judicial action in other cases.

The proceedings were instituted upon the affidavit of James W. Eaton, the then district attorney, upon which the order was issued for the relators to show cause why they should be punished for contempt. On the return day the relators appeared personally and their counsel moved to vacate, the order to show cause, which was denied. They thereupon filed their answer, which is as follows: “The above-mentioned defendants, and each of them, hereby deny, each for himself, that he has been guilty of the publication of any false or grossly inaccurate reports of any of the proceedings of the said court.” Interrogatories were thereupon filed requiring the relators to answer at to whether they wrere the editors and publishers of the articles in question. Answers having been filed the court entered the following mandate or judgment:

“On the 12th day of May, 1894, the matter again came before us, on all the papers in the proceeding, the parties appearing in person and by counsel, and after hearing Matthew Hale, Esq., of counsel for the defendants, and James W. Eaton, Esq., district attorney of the county of Albany, we did determine and adjudge the said William Barnes, Jr’, George N. Southwick and Arthur Lucas to be guilty of criminal contempt of court, and did sentence said William Barnes, Jr., George N. Southwick and Arthur Lucas, as s punishment for said offense, to each pay a fine of one hundred dollars, or in lieu thereof to each stand committed to the Albany county jail for the period of thirty days."

The comments in the articles published reflecting upon the character and conduct of the presiding judge were of a most extraordinary nature. It is to be regretted that the editors and publishers of a prominent and influential journal should so far violate their privilege and misconceive their duty to the public. The publication of the articles was exceedingly harmful. They tended to bring into disrepute the administration of the law, and to destroy the confidence of the public in and its respects for the proceedings .of our courts. If the judge is guilty of the acts charged complaint should be made to the proper officers, and proceedings" instituted for his removal. If he is not guilty, the dignity of the court should be preserved by the prompt punishment of the offenders. The punishment, however, must be inflicted under due forms of law, and such must be the point of our inquiry with reference to the proceedings under review.

Criminal contempt of court is defined as: “1. Disorderly contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt, its proceedings, or to impair the respect due to its authority. 2. Breach of the peace, noise, and other disturbance, directly tending to interrupt its proceedings. 3. Willful disobedience to its lawful mandate. 4. Resistance willfully offered to its lawful mandate. 5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory. 6. Publication of a false, or grossly inaccurate report of its proceedings. But a court cannot punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision or other proceeding therein.” Code of Civil Proceedure, § 8.

Such contempt may be divided into two .classes: 1. That which is committed in the immediate view and presence of the court; and 2. That which is committed out of court. When the contempt is committed in the view and presence of the court, it may be punishpd summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense. Code Civ. Pro. § 10. The publication of a false and grossly inaccurate report of a proceeding in court belongs to the latter class, and as we have seen, the party charged must be notified of the accusation.

It is urged on the part of the appellants that the court obtained no jurisdiction to punish them for contempt, for the reason that the order to show cause was based upon an affidavit of the dis? trict attorney, which was made wholly upon information and belief, and that it failed to specify the part or portions of the articles published which were claimed amounted to a contempt; and also, that there was no sufficient evidence showing that the articles were published by the appellants and were grossly false and inaccurate. The conclusion reached by us renders it unnecessary to consider these questions in detail. The court undoubtedly obtained jurisdiction of the appellants when they appeared before it and were charged with the contempt. The only office of the order to show cause was to bring them before the court; and if it was issued on an insufficient affidavit, they must now be deemed to have waived the defect by their personal appearance and answer. If they deny guilt they doubtless have the right to have it established by evidence in so far as it is not within the personal knowledge of the court. The court had personal knowledge of its own proceedings. It could not, however, have had personal knowledge as to whether the appellants were the editors and publishers of the articles or as to whether the attorneys mentioned in the articles were the counsel of the so-called committee of fifty, But for the purposes of this case we shall assume that the proceedings were regular and that the evidence was sufficient to warrant the conviction. Our difficulty is with the formal mandate or judgment. As will be seen, it convicts the appellants of a criminal contempt and imposes punishment by fine and imprisonment. It does not specify the particular circumstances of the offense. In case of criminal contempt this is specifically required: “When a person is committed for such a contempt the particular circumstances of. his offense must be set forth in the mandate of commitment.” Code Civ. Pro. § 11. This is but a re-enactment of the Revised Statutes, which provided that “whenever any person shall be committed for any contempt specified in this article, the particular circumstances of his offense shall be set forth in the order'or warrant of commitment. 2 R. S. 377. Under the Revised Statutes it is called the “order or warrant; ” under the Code it is called the “ mandate of commitment.” They doubtless mean the same and relate to the final order entered in the proceeding. This is no new doctrine. Rapalje on Contempts, at page 178, says, “ the final order must designate the particular misconduct of which the defendant is convicted.” In De Witt v. Dennis, 30 How. 131, Morgan, J. says: “ The order of conviction is not sufficiently definite and specific, and does not properly describe the particular misconduct for which he is convicted.” And for this reason the order convicting the person of contempt was set aside. Tire same rule prevails in England. Oswald on Contempt, at page 158, says: “An order of committal is bad if it does not specify in what particulars the person committed has been guilty of contempt.” In the Pollard case, 2 P. C. 120, it was said that “ Ho person should be punished for contempt of court (which was a criminal offense) unless the specific offense charged against him was distinctly stated.” See, also, In re John Rea, 14 Cox’s Criminal Law Cases, 139; Reg. v. County Court Judge of Lambeth, 36 W. R. 475; People ex rel. Johnson v. Nevins, 1 Hill, 154.

The reason for the statute is perfectly apparent. In the criminal contempts committed in the immediate view of the court it may punish summarily. The only record preserved is in the final order or mandate of the court entered in the minutes of the clerk. If the particular circumstances of the offense were not required to be set forth, there would be nothing that the accused could have reviewed, or that he could interpose as a defense to a subsequent conviction for the same act. If the court saw fit to call his act, no matter what it might be, a criminal contempt, that determination would of necessity be final, even though the act of the accused consisted in the putting on of his hat as he was going out of the court room door, and failed to come within any of the provisions of the Code constituting a contempt of the court. The rule applies with equal force to contempts which are not committed in the presence of the court, aud its importance is made apparent in the present case. The articles published, as we have seen, contained numerous accusations and denunciations of the judge. These accusations and denunciations may be libelous, but they were not within the statute contempts of court. It was only in so far as the articles complained of purported to give the proceedings of the court of sessions that there could not be a contempt if it were true and fair. The appellants, therefore, had the right to know whether they were adjudged guilty because of the publication of such proceedings of the court, or whether they were adjudged guilty by reason of other matters that appeared in the articles.

The order appealed from should be reversed and the proceedings dismissed, but, under the circumstances, without costs to either party.

All concur, except Peckham, J., not sitting.

Ordered accordingly.


author: Bartlett, J.

text:
    Naicho Fortunato, Pl’ff, v. Thomas Patten, App’lt, Impleaded with The Twelfth Ward Bank of the City of New York, Resp’t, and The Mayor, etc., of the City of New York et al., Def’ts.

      (Court of Appeals,

      Filed October 22, 1895.)

    1. Contract—Construction.
    A provision in a contract between the city of New York and a contractor that the contractor shall not assign the contract or any of the moneys payable thereunder, without the consent of the city, signified in writing by the commissioner of public works indorsed on the agreement, and that in the absence of such consent, no right under the contract, nor to any moneys to grow due by its terms, should be asserted against the city of New "York, is a shield to protect the city, and not a weapon with which a junior assignee is to fight his way to a more favorable position in the line of payment.
    2. Same.
    As between the contractor and the city, the said covenant has the force of law for the reason that they are parties to the contract, but a subsequent assignee, not being a party to the contract, cannot invoke this provision of the agreement to-defeat the claim of a prior assignee.
    3. Same—Assignees—Priority.
    As between different assignees of a chose in action by express assignment from the same person, the one prior in point of time will bo protected, though he has given no notice of such assignment to either the subsequent assignee or the debtor.
    4. Same—Waiver.
    The rights of an assignee, under an assignment, as collateral security for a loan, of money due under a contract, are not waived by his taking a second assignment and releasing a portion of the moneys payable by the contract, where the latter assignment is taken by way of additional collateral to secure the payment of a balance due on the original loan, and the release refers only to the second assignment.
    Appeal from judgment of the general term of the court of common pleas for the city and county of New York, which affirmed a judgment entered upon the report of a referee determining the order of payment to various creditors our of a fund paid into court, by the city of New York.

      Robert E. Deyo, for app’lt; Gharles E. Patterson, for resp’t.

       Reversing 54 St. Rep. 832.

   Bartlett, J.

This is an appeal from a judgment of the general term of the court of common pleas for the city and county of New York affirming a judgment entered upon the report of a referee determining the order of payment to various creditors out of a fund into court by the city of New York.

John F. Dawson, in October 1886, enterrd into a contract with the city to regulate and grade Edgecomb avenue and other streets.

Prior to April 11, 1887, the appellant Patten loaned to Dawson six thousand dollars, and the latter on that day assigned to Patten all his rights and interests under the contract. The referee found that this absolute assignment in form was made as security for a debt, being the balance due of five thousand dollars on the loan made by Patten to Dawson. Under the familiar rule that the form of words used in making an agreement is not alone to receive attention, but all the circumstances of the transaction are to be considered, Williams v. Ingersoll, 89 N. Y. 521, Patten stands as an assignee of a portion of the moneys due under the contract. It is also found that Dawson entered upon the performance of the contract and thereafter entirely completed the same, and the work was accepted by the city on the 28th day of January, 1891.

In December, 1887, Dawson assigned to the Twelfth Ward Bank all moneys due and to grow due under the contract as collateral security for the payment of moneys advanced and to be advanced by the bank to Dawson.

On the 1st day of March, 1889, Dawson made a second assignment of five thousand dollars of the first money to grow due on the contract as collateral security for the payment of that amount, which was the balance then due on the original loan made to Dawson by Patten.

It is provided by the contract in substance that the contractor shall not assign the contract, or any of the moneys payable thereunder, without the consent of the city, signified in writing by the commissioner of public works indorsed on the agreement; that in the absence of such consent no right under the contract, nor to any moneys to grow due by its terms, should be asserted against the city of New York.

The city was not asked to consent to the first assignment to Patten, but it did consent to the assignment to the Twelfth Ward Bank and the second assignment to Patten.

Upon the completion of the contract the city owed Dawson a balance of a little over fifty-seven thousand dollars. In February, 1890, the plaintiff began this action to foreclose a mechanic’s lien filed against the money so due, and all persons interested in the fund were made parties.

The issues were tried before a referee, who rendered judgment as between Patten and the bank that the assignment of the latter was entitled to priority for the reason that Patten’s assignment was not consented to by the city, and also because the bank had no notice of Patten’s assignment. As this judgment has been affirmed by the general term, and it appears that if the bank is paid in full Patten will receive nothing, it becomes of importance to inquire whether the judgment can be sustained.

The provision of the contract adverted to has been treated by the court below as rendering void all assignments of moneys to grow due unless the consent of the city was obtained, and as available by any assignee to defeat the rights of a senior assignee who had failed to secure the necessary consent.

We do not think that this provision is capable of any such construction; it was inserted in the contract solely for the benefit of the city, and prevents any claim being asserted against it in the absence of consent; it is a shield to protect the city, and not a weapon with which a junior assignee is to fight his way to a more favorable position in the line of payment.

The general term held that this case is governed by the maxim modus et conventio vincunt legem. The late Judge Allen of this court liberally translated the maxim as follows: “The terms and conditions of a contract have the force of law over those, who are parties to it.’’ Lowry v. Inman, 46 N. Y. 129.

As between Dawson and the city the covenant we are considering does have the force of law, for the reason they are parties to the contract and come within the express terms of the maxim quoted, but the bank is not a party and cannot invoke this provision of the agreement to defeat the claim of Patten.

The city has paid into court the money due under the contract and will be protected by any judgment rendered; no claim is being asserted against it, and the covenant does not apply to the situation now presented.

It was strenuously urged on the argument by the counsel for the bank that the disposition of this case by the court below is justified by Burck v. Taylor, 52 U. S. 634. It is sufficient to point out that the case cited dealt with a contract made by an individual with the state of Texas, which contained an absolute, unqualified covenant that it should not be assigned in whole or in part without the written consent of the state.

In the case at bar the substance of the covenant is that if the contract or any of the moneys due under it are assigned without consent no claim can be asserted by virtue thereof as against the city.

In the case at bar no absolute assignment has been made of the contract, but all transfers were of moneys due thereunder as collateral to secure the payment of a debt.

There is a wide difference between assigning moneys due under a contract and an absolute assignment of the contract itself, as the latter act disturbs that relation of personal confidence which exists between one desiring work done that requires a high order of skill and intelligence and the contractor he may have selected as possessing these necessary qualifications. Delaware County v. Diebold Safe & Lock Co., 133 U. S. 379.

For these reasons, we think, the case of Burck v. Taylor has no application to the case before us.

It is further argued on behalf of the bank that, even if Patten’s assignment is valid, he is estopped from urging his claim as against the bank, as he allowed Dawson to continue in the performance of the contract and that the bank was misled by his apparent ownership.

We have already referred to the finding that Patten’s first assignment, while absolute in terms, was intended and treated as a collateral security, and that Dawson’s relations with the city were not disturbed. It cannot now be claimed, in the face of the proofs and the findings, that Patten was the owner of this contract between Dawson and the city by absolute assignment; he stands in the position of an assignee who is entitled to receive as collateral security moneys due under the contract.

Furthermore, there is nothing in the evidence to justify the claim that the bank was misled; no proof was offered that Patten knew of the provision of the contract requiring the consent of the city, or that he knew the bank was advancing money to Dawson or held his assignment, or that he attempted to conceal his first-assignment.

The bank cannot claim to have been misled, unless it is the fact that Patten was legally bound to have notified it and the city of his first assignment.

We have already pointed out that he rested under no obligation to notify the city unless he sought to assert some claim against it; in that event he would have been compelled to obtain the consent required by the contract.

Patten, as a matter of fact, makes no claim as against the city and stands in no different position than any other assignee of a share of the fund which is sought to be distributed in- this action; this being so, he comes within the rule laid down by this court to the effect that, as between different assignees of a chose in action by express assignment from the same person, the one prior in point of time will be protected, although he has given no notice of such assignment to either the subsequent assignee or the debtor. Fairbank v. Sargent, 104 N. Y. 108; 5 St. Rep. 531; S. C., 117 N. Y. 320; 27 St. Rep. 411; Williams v. Ingersoll, 89 N. Y. 508; Muir v. Schenck, 3 Hill, 228.

A different rule exists in England, in some of the states, and in the United States courts. The respondent’s counsel has cited many of these foreign cases that are contrary to the law as long established in this state.

Is is also urged by the bank that Patten waived all rights under his first assignment by taking a second assignment and releasing all but thirty per cent of the moneys payable by the terms of the contract.

The second assignment was by way of additional collateral to secure the payment of a balance due on the original loan, and did not in any way affect the first assignment, and the release referred only to the second assignment.

The learned counsel for the bank has submitted upon his brief other legal -propositions, which have .been carefully considered, but the views we have already expressed render a further discussion of the case unnecessary.

The judgment entered upon the report of the referee and the judgment of the general term should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


author: O'Brien, J.

text:
    Samuel J. Haight et al., Resp’ts, v. Littlefield et al., App’lts.

      (Court of Appeals,

      Filed October 29, 1895.)

    Right of way—Boundary en deeds.
    Where a grantor, who owns land on all sides of a strip of land dedicated to him in his deeds, and in maps referred to in the deeds, as a street, though . not accepted as such by the public, conveys a Ipt abutting on the strip with reference to the strip as a boundary, the grantee secures an easement in the strip, and is entitled to have enjoined any obstruction thereof by his grantor, though, at the time of the conveyance, such grantor was using with the grantee's knowledge, the strip in a manner inconsistent with the existence of the right of way.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which modified, and affirmed, as modified, a judgment in favor of plaintiffs entered upon the report of a referee.

      Worthington Frothingham, for app’lts; Isaac Lawson, for resp’ts.

       Affirming 54 St. Rep. 783.

   O'Brien, J.

The purpose of this action was to protect, through the judgment and decree of a court of equity, a right of way which the plaintiffs claim as appurtentant to their land, and to prevent its unlawful obstruction by the defendants. The facts which lie at the basis of the controversy have been alleged in the complaint, and found by the referee in great detail and with minute regard to every conveyance in the chain of title of both parties. The questions involved in this appeal can be sufficiently presented by a brief reference to some of the main or general facts alleged and found.

On the 28d of November, 1868, the defendant Dennis G-. Little-field became the owner, by grant from the executors of Stephen Van Rensselaer, of a parcel of land in the city of Albany which was bounded on the south by the north line of a street to be at least fifty feet wide. In the body of the conveyance was a map of the parcel, showing the boundary lines and the street on the south side. On August 1, 1870, the same grantors conveyed to the same grantee two other parcels of land, both of which were bounded on a street fifty feet wide. One of the parcels was bounded on the south by the north line of this street, and the other on the north by the south line of the street. This conveyance also con-' tained a map which was referred to in the descriptions, and which showed the boundary lines of the parcels granted, and betweenothe two parcels a street fifty feet wide was plainly delineated. The defendant Littlefield, under these grants, became the owner of all the lands on both sides of the street referred to, as it was a ml de sac about three hundred and fifty feet in length extending from North Pearl street to the railroad which closed it at one end. This way had never been accepted by the public authorities as a public street, and was not used as such, but simply as a means of ingress and egress to and from the lands along its boundaries. In the deed last referred to, however, there was a clause inserted to the effect that both parties to the grant dedicated this strip of land forever to the public as a public street, contemplating its extension in the future beyond the railroad where it then terminated. All the defendants have some title or interest in the land described in the deeds referred to, which right has been derived solely through mesne conveyances from Littlefield, in which the lands were bounded and described substantially in the same language as in the conveyances to him. In all of them the existence of the street was recognized, and in none of them was it expressly restricted or any language used indicating an intent to extinguish it in whole or in part.

On June 15, 1885, Littlefield also conveyed to the plaintiffs a parcel of this land on the south side of the street, which is now-used by them for manufacturing purposes. It was bounded on the south line of this street, which in the conveyance is called Pleasant street, and further described as a portion of the premises conveyed to Littlefield by the deed of August 1, 1870, by the executors of Yan Rensselaer. This conveyance and the others referred to with the maps bounding the premises upon a street secured to the plaintiffs an easement or right of way in the strip of land so delineated, described and recognized. Whether it was then a public street or not, this easement or right of way was attached as an appurtenance to the land conveyed, and part of the thing granted, and thereupon the plaintiffs acquired the right to insist at all times that the way be kept open and unobstructed for the benefit of their premises, and as a means of access to and from the same. It is a property right the destruction or ivasion of which constitutes a ground of relief in equity. Irrespective of the rights of the public street, the owners of lots bounded upon a street have, under the circumstances disclosed, a right of way as between themselves and their grantor. People v. Underhill, 144 N. Y. 316; 63 St. Rep. 610; Hennessy v. Murdock, 137 N. Y. 317; 50 St. Rep. 717; Lord v. Atkins, 138 N. Y. 184; Cunningham v. Fitzgerald, 138 N. Y. 138; 51 St. Rep. 840. The referee has found that subsequent to the grant to the plaintiffs the defendants obstructed the street or way by the digging of -a ditch across it, and by inclosing some portion or it with fences for their own exclusive use. This was an invasion of the plaintiff’s rights which equity could properly interpose to prevent or to remedy. Some of the findings of the referee,- made at the request of the defendants’ counsel indicate that some of the fences, by means of which the defendants had inclosed some portion of the street and appropriated it to their own use, were in existence and upon the premises at the time of the plaintiffs’ grant, and to their knowledge.

The mere fact that the defendants had obstructed the street to some extent before conveying to the plaintiffs, and that the plaintiffs, at the time of this grant, knew of the existence of such obtructions, or could have known, we do not regard as material. The plaintiffs’ rights depend upon the construction of their deed, and if ■ that instrument secured to them an unobstructed right of way they are not estopped from insisting upon such right by reason of the fact that the defendants were, at the time of the conveyance, using some part of the premises in a manner even inconsistent with the existence of the right of way now claimed. It must be remembered that the defendants then owned the land on both sides of the street and could have extinguished the easement entirely unless there had been a dedication of it to the public, a question not now important to solve. In this condition of things the defendants conveyed to the plaintiffs, recognizing the street as the boundary and without any restrictions or qualifications in the grant upon the manner or extent of its use by the grantees. It is not claimed by way of defense that the deed does not in every respect express the intention of the parties or that there was any intention on the part of grantors or grantees to limit its effect by reason of physical appearances which the defendants had created before the conveyance in the use of the premises. If the case presented such an issue the presence of the fences on the ground at the time of the conveyance to the plaintiffs might possibly be material, as the question would then be whether the deed did not convey more than was intended. Taylor v. Hopper, 62 N. Y. 649. But, in view of the fact that the defendants had, prior to the grant to the plaintiffs, used, possessed and owned the whole of the premises, including the street, there was nothing in the appearance of things upon the premises at all inconsistent with the terms of the deed granting a right of way over the street, as described in the several conveyances. The plaintiffs have, therefore, under these circumstances, the right to insist that their right in the street shall be governed by the deed and not by the actual physical appearances when it was made. It is the defendants’ grant, and no equitable ground is presented for limiting its scope or construction by reason of the fact that the defendants had at the time put some part of the obstruction complained of in the street, so long as they have not acquired the right to continue it by user or adverse possession. One who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has to the land. He may insist upon its use whenever occasion requires, and it is ordinarily no answer to his claim to urge that his rights under the deed are more extensive than he had any reason to expect from the situation existing at the time it was made. The right conveyed can be defeated only by showing that it has been waived or lost in some of the ways recognized by law. Welsh v. Taylor, 134 N. Y. 450; 47 St. Rep. 653. That has not been done in this case. There is evidence to sustain all the findings of the referee, and these findings warrant the judgment given.

We think there was no error in the disposition of the case in the courts below, and that the judgment should be affirmed with costs.

All concur.

Judgment affirmed.


author: Andrews, Ch. J.

text:
    In the Matter of the Petition of the Brooklyn Elevated Railroad Company, App’lt, Relative to Acquiring Title to Real Estate, etc., v. John Flynn, Owner of Parcel No. 26, Resp’t.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Appeal—Condemnation peoceedings.
    No appeal lies to the court of appeals from the order of the general term, affirming the order of the special term, confirming the report of commissioners appointed under chap. 606 of 1875, where no question of jurisdiction is raised, and only an error of law presented.

      2. Same—Ebbob op law.
    Where there are three buildings on a tract of land, taken by condemnation proceedings under chap. 608 of 1875, the question whether the depreciation of the part, on which one building stood, should be set off against the benefits to the others, is one of law.
    Appeal from, order of the general term of the supreme court in the second judicial department, which affimed a final order of the special term confirming the report of commissioners of appraisal in condemnation proceedings instituted under the Rapid Transit Act (Laws of 1875, chap. 606).

      Frederick P. Delajkld, for app’lt; Stephen M. Hoye, for resp’t.

       See 67 St. Rep. 653.

   Andrews, Ch. J.

No appeal lies to this court from the order of the general term affirming the order of the special term confirming the report of the commissioners of appraisal. • The condemnation proceedings were instituted under the provisions of the Rapid Transit Act, ch. 606 of the Laws of 1875. The first report of the commissioners was sent back for correction on the application of the petitioner, and was corrected in certain particulars and returned to the court at special term and was confirmed. The petitioner appealed from the order of confirmation to the general term, where the order was affirmed. The petitioner seeks in this court to reverse the order of affirmance, on the ground'that the commissioners treated the property of the respondent not as a whole, but as consisting of three distinct parcels. The case shows that there was one tract on which there were three separate buildings, and the claim is that the depreciation of one piece should have been set off against the advantage to the others. The question does not go to the jurisdiction of the commissioners, and, upon the claim made, presents an error of law simply. We held in the case of The Metropolitan Elevated Railroad Company, 128 N. Y. 600; 88 St. Rep. 881, that condemnation proceedings under . the Rapid Transit Act were governed by the rule applicable to proceedings under the General Railroad Act of 1850, and that the determination of the supreme court at special term confirming the report of commissioners is final, and that no appeal therefrom to tin's court can be taken either for error of law or fact. A similar determination was made in The Matter of the Commissioners of the State Reservation at Niagara Falls, 102 N. Y. 734; 2 St. Rep. 533, under a statute nearly identical, so far as respects this question, with the Rapid Transit Act. If the case presented a question of jurisdiction the rule might be different. Matter of S. B. R. R. Co 143 N. Y. 253; 62 St. Rep. 150.

The appeal should be dismissed.

All concur.

Appeal dismissed.


text:
    Hiram F. Henry, App’lt, v. Norman M. Allen, Resp’t.

      (Court of Appeals,

      Filed October 29, 1895.)

    1. Appeal—Motion for new trial.
    The pendency of an appeal in the court of appeals does not prevent a motion in the court below for a new trial on the ground of newly discovered evidence.
    2. Same.
    In such case, an order to transmit the return on appeal to the court below is unnecessary.

      John Q. Milburn, for motion; W. H. Henderson, opposed.
   Bartlett, J.

The appellant moves for an order directing that the return herein be transmitted to the supreme court, and that this case be remanded there, without prejudice to the appeal to this court heretofore taken, for the purpose of enabling him to move for a new trial on the ground of newly discovered evidence.

We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case for all general purposes still remains in the court oil original jurisdiction. People ex rel. Hoffman v. Board of Education, 141 N. Y. 86; 56 St. Rep. 560. In the above case we said : “In all matters pertaining to the appeal itself and to the proper hearing thereon this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of the appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.”

The production in the court below of the return of this court on the motion for a new trial is manifestly unnecessary, as that motion is made on facts dehors the record.

If the supreme court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper.

The motion should be denied, without costs.

All concur.

Motion denied.