author: Haight, J.

text:
    Julia Rhinelander Dodge et al., App’lts, v. Mary L. Gallatin et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    Ejectment—Title.
    Plaintiffs, heirs of R., claim certain property as having been acquired by R. after the execution of his will in 1807, under which defendants claim. At that time R. was in possession of certain lands under water, which the city had agreed to convey upon his performing certain conditions precedent. R. completed the work, and subsequent to the will received the deed. Held, that he had equitable rights therein, which would pass under the law as it then stood, under a devise of all his real estate.

      2. Evidence—Ancient writings.
    William Rhinelander died in 1825, and his estate was for fifty years under the control of his son William C., and among his numerous papéis were found petitions to the board of aldermen of the same dates as those on which it was indicated by the city records that they had been presented, but the petitions themselves were not on file. Held, that the petitions so found were properly received as ancient writings.
    Appeal from a judgment of the general term, first department, affirming a judgment entered upon the report of a referee.

      Daniel Dougherty and William G. Bussey, for app’lts; Henry H. Anderson, for resp’ts.

       Affirming 22 St. Rep., 512.

   Haight, J.

This action is brought in ejectment to recover the possession of two lots of land known as Nos. 229 and 280 West street, between Beach and North Moore streets, in the city of New York.

The plaintiffs claimed the same as the heirs at law of William Bhinelander, Jr. The defendant, Gallatin, claims title through his last will and testament, and that she and her immediate grantors have held adversely for upwards of twenty years. The other defendants are merely tenants of Mrs. Gallatin.

It appears that William Bhinelander the first died in the year 1777; that he left surviving him three sons and three daughters; that the names of his sons were William Bhinelander, Philip Bhinelander and Frederick Bhinelander. Frederick Bhinelander died intestate in the year 1805, leaving him surviving his widow, Mary, his son, William Bhinelander, Jr., and his daughter, Maria, who became the wife of William Paulding. It appears that at the time of his death he was the owner of several parcels of real estate located upon Greenwich street, between Chambers and Beach streets, in the city of New York, and that subsequently his widow released her right of dower therein to her children, and thereafter and on the 18th of December, 1806, Maria, then the wife of William. Paulding, in consideration of the sum of $124,000, conveyed to her brother, William Rhinelander, Jr., all the real and personal estate wheresoever and whatsoever whereof her father, Frederick Rhinelander, died seized or possessed or was entitled to, either in law or equity, in possession, reversion •or remainder. It further appears that on the 3d day of February, 1807, William Rhinelander, Jr., made and published his last will and testament, in which, after devising specific property to his sister, Mrs. Paulding, and other persons not affecting the premises in question, provided and devised as follows:

Sixth. As to all the rest and residue of my property and estate whatsoever and wheresoever, real or personal, of which I am now seized or possessed, or of which I may he seized or possessed at the time of my death, I give, devise and bequeath the same to my uncle, Philip Rhinelander, and to his heirs and assigns forever; provided always, and the above devise is upon the express condition that if my said uncle, Philip Rhinelander, should die without leaving issue at the time of his death and without devising in due form of law the estate hereby devised to him, then it is my will that the said estate, or such parts thereof as shall not be devised in due form of law, shall go, and I do hereby devise "the same to my uncle, William Rhinelander, his heirs and assigns forever.”

As the heir at law of his father and grantee of his sister, William Rhinelander, Jr., had become seized and possessed of the real •estate upon Greenwich street, between Beaph and North Moore streets, extending to the high water mark of the Hudson River. As such owner, on or about the 1st day of June, 1807, he petitioned the common council of the city of New York to deliver to him a grant of the lands under water in front of his uplands out to the permanent line in the river established by the corporation. The application was agreed to by the board of aldermen, and a .grant was ordered to be prepared, and the same was subsequently and on the 16th day of November, 1807, formally executed and delivered. This grant included the premises in question. Subsequently, and on the 4th day of April, 1809, William Rhine-lander, Jr., died, and there is no evidence that he republished his last will and testament after the execution and delivery of the aforesaid grant.

Thereafter his will was duly proved and admitted as a will of real and personal estate, and his uncle, Philip Rhinelander, as the devisee thereunder, entered upon and took possession of the premises included in the grant by the city. Thereafter, and on the 14th day of July, 1817, Philip Rhinelander made and published his last will and testament, whereby, after making certain specific legacies and devises not affecting the premises in question, he devised and bequeathed to his brother, William Rhinelander, the whole residue and remainder of his property and estate, real and personal, and in terms included in the devise and bequest the ■estate formerly devised to him by his nephew William Rhine-lander, Jr.

Thereafter, and in the year 1822, he died without leaving issue him surviving. Thereupon William Ehinelander entered into possession of the lands in question. On the 30th day of March, 1825, he made and published his last will and testament, whereby after making certain specific devises and bequests not affecting the premises mentioned, he devised all the rest and residue of his real estate to his executors in trust during the lives' of his children and the longest liver of them, and at the termination of the trust he devised the residuary to his grandchildren, and the issue of deceased grandchildren in equal shares per stirpes. He died on the 9th day of September, 1825, leaving seven children him surviving, of whom Eliza, the wife of H. G. Stevens, and the mother of the defendant Mary L. Gallatin, was one. Of such children William 0. Ehinelander was the longest liver, and upon his death June 20, 1878, the estate was partitioned among the grandchildren, and the lands in question in such partition action were set off to the defendant Gallatin as her share and portion of her grandfather’s estate.

It further appears that Mrs. Paulding died June 1, 1852, and her husband, William Paulding, died February 17, 1854; that they left two sons them surviving, Frederick W. Paulding and Philip E. Paulding; that Frederick W. Paulding died March 17, 1859, leaving him surviving his daughter, the plaintiff Julia Ehinelander Dodge; that Philip E. Paulding died August 20, 1864, leaving him surviving Grace, his only child and heir-at-law, who is now the wife of Louis P. Grant; that he also left a last will and testament, in which all of his estate was devised to his executors in trust during the lifetime of such daughter, and the plaintiff Greenfield is now the sole trustee thereof.

Under the statute of 32 Henry VIII, chap. 1, it was provided that all and every person and persons having manors, lands, tenements or hereditaments holden of the king or of any other person or persons, and not holden of the king by knight’s service and so forth, shall have full and free liberty, power and authority to give, will, dispose and devise as well by his last will or testament in writing or otherwise by any act or acts lawfully executed in his life all his said manors, lands, tenements or hereditaments, or any of them, at his free will and pleasure.

Under this statute it was held that a person could only devise such lands as he was seized and possessed of at the time of the making and publishing of his will. Jackson v. Holloway, 7 Johns., 394; Jackson v. Potter, 9 id., 312; Lynes v. Townsend, 83 N. Y., 558-563.

This was the recognized law of our state until the revision of 1830, when it was provided that: “Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was em titled to devise at the time of his death.” 2 E S., 57, § 5.

William Ehinelander, Jr., having made and published his will on the 3d day of February, 1807, nine months before he obtained title to the lands in question by grant fipm the city, the land would not under the law as it then stood have passed to his uncle Philip, the devisee, but would have descended to his sister Mrs. Paulding, his only heir at law.

It is claimed, however, that he was in possession and was the equitable owner at the time his will was made, and that it in express terms devised to his uncle Philip all the real estate of which he was seized and possessed at the time of making his will as well as all of which he may be seized or possessed at the time of his death. If he was in possession under a contract to purchase rounder equities which the courts would enforce, such rights and equities would pass under a devise subsequently made. Livingston v. Newkirk, 3 Johns. Ch., 312; McKinnon v. Thompson, id., 307; Malin v. Malin, 1 Wend., 625.

The question, therefore, is as to whether William Rhinelander, Jr., at the time of making his will was in possession of the lands in question, and had he such an equitable interest therein as would pass to his uncle under his will.

There appears to be no question but that the city was the owner of the lands. For under the Governor Dongan and Governor Montgomerie charters the lands under water surrounding Manhattan Island were granted to the mayor, aldermen and commonalty of the city of New York for the distance of 400 feet That the city had adopted the policy of conveying the lands so under water to the abutting upland proprietors appears from the reports made to the board of aldermen, and the ordinances adopted by it fixing terms, conditions and charges which should be made therefor. It is said that the city was under no obligation to make grants to the upland owners; that it had the right to grant the lands so under water to any other persons. Possibly this right may have existed, but we do not deem it important at this time to determine the question, for it is sufficient to say that it does not appear that there was any attempt on the part of the city or its officers to make conveyance of such lands to any other persons than the upland owners.

Formerly the abutting uplands in question belonged to Trinity Church and was known as the Church Farm. On the 6th day of March, 1797, the church conveyed to Frederick Rhinelander lots numbered 806, 807, 808, 809 and 810 on the west side of Greenwich street, bounded on the north by Beach street and the west by high water mark of the Hudson river. It is said that under a map produced from the files of the church made by Surveyor Charles Loss, in the year 1799, two years after the execution and delivery of the deed to Frederick Rhinelander, the lots conveyed did not extend to high water mark, and so it would seem to appear from the map, as the line indicated thereon as the high water mark does not quite reach the lots marked with the numbers mentioned in the deed. But there can be no question but that the deed must control. By it the lands conveyed were bounded on the west by the high water mark of the river, a boundary line well known and understood and about which there could be no question. This map is not the one referred to in the deed, but was subsequently made for the purpose of showing the unsold lands belonging to the church.

It appears that previous to this conveyance and in the year 1794, the board, of aldermen had passed a resolution to grant to the Episcopal church the water lots north of Read street agreeable to such survey thereof as shall be approved by the board. Subsequently and on the 10th day of May, 1797, Frederick Rhinelander, who under his conveyance had become an upland owner abutting on a portion of such water lots, petitioned the-board of aldermen to make him a grant of the soil under water in order that he might build a bulk-head and fill the same in.

Thereafter, and on the 29th day of May, 1797, the street committee, to whom the petition had been referred, reported that in their opinion a grant ought to be made to the petitioner out as far as the permanent line, he paying the quit rent established by the corporation after his paying as a consideration for the ground between high and low water mark £400. This report was agreed to by the board But it does not appear that any conveyance was executed or money paid, but on the 26th of March, 1799, the common council ordered the recorder to inquire into the state of the water lots which were intended to be granted to Trinity church and improved by Frederick Rhinelander. On the 15th of July thereafter a further resolution was passed directing the recorder to proceed against Mr. Rhinelander by ejectment or otherwise for any intrusion on the rights of the corporation to the soil in the Hudson river. It is thus apparent that Rhinelander had in some way taken possession of the land embraced in the report, and this is made apparent from a further report that was made by the comptroller of the city in 1808, in which he states that on the North river grants have been made from the Battery to Chambers street; that from Chambers street northward there had been no-grants made, but the proprietors of the ground had most of them docked out agreeable to their own discretion, and some of them beyond the permanent line; that they had been in possession and had had the use of the property for years without any compensation being made to the public. Here the matter appears to have rested until June, 1807. Frederick having died in 1805, his son William Rhinelander, Jr., petitioned the mayor, aldermen, etc., for a grant of the lands so under water, and in his petition he refers to the petition of his father, and of the action of the board thereon ordering the grant to be made. Upon the presentation of such petition it was referred to the comptroller, who was directed to make a report thereon, and in August thereafter the comptroller made a report to the common council reciting all of the facts; and recommending that grants be ordered to be made out in favor of the petitioner to the permanent line established by the city, and “present wharves inclusivelyupon such terms as may be just and right according to the usual prices of grants in that quarter of the city. Subsequent reports were made by him and the street committee pertaining to the terms on which the grant should be made, and finally, and on the 16th day of November thereafter, the grant was executed and delivere'd, conveying to him the lots in question, describing them as the lands of which he was at that time in actual possession.

It further appears that on the 12th day of February, 1798, the corporation of the city presented a petition to the legislature of the state showing that the city had lately directed a permanent street to be laid out and completed at the extremity of its grants, already made and thereafter to be made to individuals on the East river near South street, and on the ¡North or Hudson river-near West street, south and west of which no buildings of any description were to be erected, and that by reason of the irregularities of the shore and the grants theretofore made which were deemed to extend unequal distances into the rivers, and that although the city was willing gratuitously to give the soil under water on which the streets were to be made, yet doubts were entertained whether the city could compel any of the proprietors of the lots fronting thereon and who might be unwilling to make-the streets for public use in any given reasonable time, and, therefore, prayed the legislature to confer upon the corporation full authority in the premises. Thereupon chapter 80 of the Laws of 1798 was passed, entitled “An act concerning certain streets, wharves and piers, etc., of the city of Hew York,” whereby it was, among other things, enacted that it should be lawful for the mayor, aldermen and commonalty of the city of New York to lay out the streets mentioned in the petition, and that the streets or wharves should be made or completed according to the plan adopted and at the expense of the proprietors of the land adjoining, or nearest and opposite to the streets or wharves in proportion to the breadth of their lots, by certain dates to be for that purpose appointed by the mayor, aldermen and commonalty, and that the respective proprietors of such of the lots as may not be adjoining to the said street or wharves should also fill up and level at their own expense according to such plan and by the dates respectively the space lying between their several lots and the said street and wharves, and should upon so filling up and levelling the same be respectively entitled to become the owners of the said intermediate space of ground in fee simple.

The referee has found as facts that the corporation of the city accepted this act of the legislature and acted upon it accordingly; that Frederick Rhinelander, pursuant to the act, did fill out and level nearly all the space lying between his uplands and West street and was so engaged in filling out and levelling at the time of his death; that such filling was continued by his son William Rhinelander, Jr., up to the time that the grant was made to him and that the lands so filled up included the premises in question.

It is claimed that these findings are not supported by the evidence, but we are of the opinion that they are sustained. Of course, no living witness could be produced who could speak from personal knowledge. The facts had to be ascertained from the records and ancient papers that had been preserved. That Frederick was in possession is quite evident from the proceedings of the board of aldermen to which we have already alluded, the various reports that were made by the comptroller and street committee, and the admission in the grant. That the filling had also been done appears from the report in 1803 and the maps that were made in 1807.

It is true that there is no evidence showing that the city ever ■adopted a plan after the passage of the act of 1798, or that any dates or times were specified within which Frederick Rhinelander should do the filling. It does, however, appear from the maps that West street was laid out and that a permanent line was established beyond which no grants would be made. The provision of the statute providing for the fixing of a time within which the work was to be performed was for the purpose of enabling the city to enforce performance by causing the work-to be done and charging the expense thereof upon the owner of the abutting land. This however could not be done until such owner had been given a reasonable opportunity to do the work himself. If therefore the owner was proceeding with reasonable dispatch to perform under the act there would be no necessity for the city to give him notice to perform within a specific date or time, and inasmuch as no notice of that character is shown, we must assume that he performed under the act to the satisfaction of the officers of the municipality.

We thus have the provision of the act providing that he shall be entitled to become the owner of the spaces of ground in fee •simple, and the resolution of the board of aldermen adopting the report of the street committee ordering a grant to be made upon the payment of the quit rent, etc., together with the fact that possession was taken and the lots filled up as indicated.

These facts would seem to indicate an equitable title such as would pass by devise.

Undoubtedly there were some questions of difference as to rent reserved and the terms upon which the grant should be made, but these were matters which could easily have been determined by the court under the provisions of the act or the proceedings of the council.

A controversy as to the amount due upon a contract for the purchase of real estate would not prevent its passing by devise, subject of course to the payment of the amount that should be found due and owing. Livingston v. Newkirk, supra.

The defendant has alleged as a defense the statute of limitations and adverse possession. It appears that the possession of the premises in question after William Rhinelander, Jr., was in William Rhinelander as early as December, 1822, and March, 1823; that the premises were at such dates leased by him to James Wallace; that after his death his executors took possession thereof and leased the same from time to time until the death of William 0. Rhinelander in 1878, and that thereafter they were taken in charge by the receiver appointed in the partition action and so held until they were set apart to the defendant herein.

It does not appear at what period the premises were first built upon, but it does appear that in 1848 the building now standing thereon covering the same was constructed and that it took the place of an older building which previously existed thereon. During all the time that the premises were in the possession of the executor under the will of William Rhinelander the rents were collected with that of the other real estate held by him and the same divided among his children as provided for in the will.

It is claimed, however, that William Rhinelander was the trustee of Mrs. Paulding, and that because of such trusteeship the statute would not run as against her. If it was a fact that he was her trustee as to the real estate in question his possession thereof would, in the absence of any act or claim inconsistent therewith, be deemed to be that of his cestui que trust, and if he held the same as her trustee his title would not have passed under his-will to his executors, and if William C. Rhinelander subsequently took possession and held the same adversely, any rights gained by such adverse holding would have descended to his heirs or passed to his devisees, and would not have passed to the defendant under the will of her grandfather. But we do not understand that the referee has found or has been requested to find that William Rhinelander was the trustee of Mrs. Paulding so far as this real estate was concerned. It does appear that prior te the marriage of William Paulding with Maria Rhinelander a contract of marriage was entered into between them wherein William Rhinelander, Philip Rhinelander and Cadwallader D. Golden were constituted trustees, with power to put certain moneys at interest and take securities therefor in their names as trustees for her benefit, etc. It also appears from the testimony of the plaintiff, Mrs. Dodge, that on one occasion on examining the contents of an old trunk filled with papers which she received from her father upon his death, that she discovered a paper entitled “William Rhinelander, trustee for the estate of Maria Rhinelander, wife of William Paulding, in account,” which paper contained a list of houses and lots, some of which were on West street, but that this paper was subsequently burned by her direction. She did not testify, neither is it found as a fact, that the property in controversy was mentioned in that paper. Whilst there was a trust pertaining to the moneys that she had before her marriage, there is no evidence or finding from which we can determine that it continued to the real estate in question.

We cannot, therefore, overrule the findings of the referee, but must regard the possession of William Rhinelander as adverse to that of Mrs. Paulding. Mrs. Paulding was, at the time of the death of William Rhinelander, under the disability of coverture. She, however, died in 1852, and her husband died in 1854.

Chapter 183 of the Laws of 1801 provided that: “ Mo action for the recovery of any lands, tenements or hereditaments shall hereafter be maintained, nor any avowry or cognizance be made unless on a seizin or possession of the hereditaments, either of the plaintiff or person making avowry or cognizance, or of the ancestor or predecessor of such plaintiff or person making avowry or cognizance within twenty-five years next before such action brought or avowry or cognizance made; provided always that no part of the time during which the plaintiff or person making avowry or •cognizance shall have been within the age of twenty-one years, insane, femme covert, or imprisoned, shall be taken as a part of said limitation of twenty-five years.”

The Revised Statutes of 1830 contained, in substance, the provisions of the statute of 1801, with the exception that it reduced the period from twenty-five to twenty years, and in reference to the persons disabled by reason of infancy, insanity, coverture or imprisonment it provided that: “ Such person may bring such action or make such entry, avowry or cognizance after the said time so limited and within ten years after such disability removed, but not after that period. If the person entitled to commence such action or make such entry, avowry or cognizance shall die during the continuance of any disability specified in the preceding section, and no determination or judgment be had of the title, right or action to whom accrued, his heirs may commence such action or make such entry, avowry or cognizance after the time in this article limited for that purpose and within ten years after his death, but not after that period.” 2 R. S., 295, §§ 16-17.

The same was continued by the Code of Procedure of 1848. The disability of married women under the statute was removed by the Laws of 1870, chap/ 741.

Mrs. Paulding left two sons, both of full age. They should have brought the action within ten years after the death of their father, who would have had a life estate as tenant by courtesy. The action should, therefore, have been brought prior to February 17, 1864. Jackson v. Johnson, 5 Cowen, 74; Thorp v. Raymond, 16 How., U. S., 247-250; Fleming v. Griswold, 3 Hill, 85 ; Carpenter v. Schermerhorn, 2 Barb. Ch., 314; Tyler on Ejectment and Adverse Enjoyment, 932.

Exceptions were taken to the admission in evidence of the petitions of Frederick Rhinelander and William Rhinelander, Jr., to the board of aldermen for the grant of these lands, and also to the reception of the old maps and leases.

It appears that upon the death of William Rhinelander in 1825, he left a large landed estate in the city of New York, which for upwards of fifty years was under the chief management and ■control of his son and executor, William C. Rhinelander; that during this period William 0. had an office as executor in which there was a large safe, and that there was kept therein the deeds, maps, papers, books, etc., pertaining to the estate; that there were a large number of old deeds, books, leases and muniments of title. It was among these papers that the petitions, maps and’ leases were found. They were identified by persons connected with the ■office, who in that way had become familiar with the old papers and writings of the petitioners. The fact that petitions by these parties were actually made to the board of aldermen at the dates therein indicated appears from the record of the proceedings of such board. A careful examination failed to find the petitions on file among such proceedings. Under-the circumstances we think these petitions were properly received in evidence as ancient writings, and as.being the best evidence obtainable of the contents of the petitions presented to the board of aldermen; and the same may be said of the ancient maps and leases which were material as tending to show possession.

In 1 Phillips on Evidence, at page 281, it is said that ancient documents “ are often the only obtainable evidence of ancient acts of possession which may be of great weight in the investigation of titles, and they naturally accompany and constitute a part of such acts.”

In 1 Grreenleaf on Evidence, § 142, it is said: The value of these documents depends mainly on their having been contemporaneous at least with the act of transfer, if not part of it. Care is first taken to ascertain their genuineness, and this may be shown prima facie by proof that the document came from the proper custody or by otherwise accounting for it. The documents found in a place in which and under the care of persons with whom such papers might naturally and reasonably be expected to be found, or in possession of persons having an interest in them, are in precisely the custody which gives authenticity to documents found within it.”

In the case of Hewlett v. Cock, 7 Wend., 371, it was held that “ a lease more than thirty years old may be read in evidence without proof of its execution, although there be no direct proof of possession accompanying it, if found among the title papers of the estate affected by it, and the facts and circumstances in reference to the property specified in it be such as to afford a reasonable ground of presumption of its genuineness.” See also Jackson v. Laroway, 3 Johns. Cas., 283; Enders v. Sternbergh, 2 Abb. Ct. App. Dec., 31.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    The American Steam Boiler Ins. Co., Pl’ff, v. Edward C. Anderson et al, Def’ts.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    Insurance—Liability of agent—Cancellation of policy—Damages.
    Defendants were agents for plaintiff under a contract by which they were to have thirty per cent, on all premiums upon policies issued through them. They issued two policies to H. who paid the premium for three years in advance, defendants turning the same over to plaintiff less thirty per cent. The policies contained a provision that the assured might cancel at any time by paying short rates. Defendants having become agents for a rival company induced H. to cancel and plaintiffs returned $118 of the premium to him. Held, that plaintiff was entitled to recover of defendants thirty per cent of the amount repaid to H.
    Cross-appeals from judgment entered upon order of the general term of the superior court of the city of New York upon a verdict.
    In June 1884, by an instrument executed by the parties, the plaintiff appointed the defendants as its managers and general agents for the states of New York, New Jersey and Conneticut, with some local exceptions. The defendants were empowered to issue policies and as commissions to have thirty per cent of the premiums received. Either of the parties to terminate the agency at pleasure on ninety days notice. In December, 1885, a further arrangement was made to the effect that the agreement creating such relation should cease and determine on January 1, 1886, “ and from that date be null and void ” saving any claim the plaintiff should then have against the defendants for unpaid accounts. As such agents the defendants in December, 1884, made two policies to R. Hoe & Co., insuring them to the amount of $50,000 and $25,000; $75,000, for three years upon buildings, engines, boilers, etc., against damages by explosion, for which a premium of $1,125 was paid, of which the defendants retained $337.50 for their commissioiis. Provision was made in the policies for their cancellation at any time at the request of the assured, and that in such event the plaintiff should retain the charges for inspection and the customary short rates for the term the policies had been in force. These policies were, at the request of the assured, cancelled in March, 1887, and $118.13 of the premium were returned by the plaintiff as required by the contract of insurance The cancellation by R Hoe & Co. was induced and procured by the solicitation of the defendants, who had then become the agents of the Hartford Steam Boiler & Inspection Company, and induced and procured that, firm to take in place thereof insurance in the last named company. In consequence of which the plaintiff was required to refund such portion of the premium. The purpose of this action was to recover damages of the defendants for thus causing the cancellation of the policies and the refunding of the amount repaid, for thirty per cent of which, with interest, a verdict was directed for the. plaintiff.

      Robert Sewell, for pl’ff; T. Henry Dudley, for def’ts.

       Affirming 25 St. Rep., 814.

   Bradley, J.

There was upon the evidence no controversy of fact, but the questions presented had relation to the legal consequences, as between the parties, of the action of the defendants in inducing and procuring the assured to surrender the plaintiff’s policies of insurance and to demand a rebate of the premium paid to it. The motive of the defendants for doing this does not. appear further than may be implied from the fact that the defendants also induced R. Hoe & Co., the assured, to take in lieu thereof insurance in the Hartford Steam Boiler Insurance Company, which the defendants then represented. Their relation of agency to the plaintiff had terminated by the terms of their contract with it in that respect, and they had rightfully become the agents of the rival company in the business of like insurance. Their relation with the latter company required the defendants to subserve its interest faithfully and diligently ; and consistently with that relation it was in the line of their duty to induce R Hoe & Co. to take insurance in the company the defendants then represented.

But the question is whether any consideration was due from them for the contracts they had as agents for the plaintiff made while they held that relation to it. They had pursuant to such agency and for it insured the property of Hoe & Co., and that was done under a contract by which they were entitled to and did receive thirty per centum of the premiums paid. This was compensation for their skill and services as agents of the plaintiff. Although their fiduciary relation to the plaintiff had terminated, the contract of insurance they in that character had made with the assured remained only partially executed, the time of its indemnity had not expired, and as a consequence the premiums paid were not fully earned. The defendants had, pursuant to their contract of agency with the plaintiff, received thirty cents of every dollar of those premiums. They received this from the plaintiff in consideration of the services by them performed in its business and behalf by virtue of the contract between them. The policies of insurance were made subject to the right reserved to the assured of surrendering them and having a rebate and reimbursement pro tanto of the premiums paid, and this without prejudice to the defendants, since they had fully performed the services of creating the relation of insurer and assured. This is all they undertook to do for their stipulated compensation. But when they had accomplished this were they at liberty to defeat the purpose or duration of the contract of insurance and retain the fruits of it to the prejudice of the plaintiff? It quite clearly seems that they could not do so without failure to observe their obligation arising out of the contractual relation which they had assumed with the plaintiff and pursuant to which they made for it the contract of insurance, when their agency for the plaintiff terminated, the unearned portion of the premium upon the Hoe & Co. policies existed in the contract executory in character, and of which the defendants had received thirty per centum by virtue of their contract with the plaintiff. There is no well supported principle which would enable them to take from the plaintiff the benefit of the contract of insurance it had through them made, and 2-etain the portion of the consideration received by them, and which they had caused the plaintiff to restore to the assured.

The question was not one of disability arising out of fiduciary relation; that had ceased to exist between the parties. It was one founded in contract pursuant to which the defendants had received compensation out of the proceeds of the transaction measured by the term of indemnity; and by causing the defeat of the operation of the contract of insurance they had created, before its stipulated period expired, and thus requiring the plaintiff to rebate a portion of the premium, they caused a partial failure of consideration of the contract they assumed to perform, and to the extent at least of the amount received by them of the sum which the plaintiff was thus required to l-efund they became liable to reimburse it. The power of an agent to create rights by contract for his principal includes an implied duty to observe, and not to defeat or destroy them. The facts in the present case did not necessarily requii’e the conclusion of bad faith on the part of the defendants, although it may have been permitted. Nor was the action tried by the court upon the theory that they were chargeable with that imputation; and for that reason, if for no other, there was no error or prejudice in the exclusion of certain evidence offered by the defendants. And the question was finally treated by the parties at the trial as one of law only. In that view the measure of damages, as founded upon the contract between the parties by which the defendants’ agency was created, and pursuant to which, they issued the policies, was that which the court adopted in the direction of the verdict. And that amount the plaintiff was entitled to recover.

In legal contemplation the relief of the plaintiff from its contract of insurance was of some value to it at the time the policies were cancelled, although it turned out that no loss would have been suffered if they had continued effectual until the end of the term for which they were issued.

The judgment should be affirmed, without costs in this court to either party.

All concur.


author: Potter, J.

text:
    Frederika Egerer, App’lt, v. The New York Central & Hudson River R. R. Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Highways—Use of by bailboad—Discontinuance of stbeet.
    Plaintiff’s land adjoined the land of the defendant, which was outside of the limits of the street in the city of Rochester. The city discontinued the street for a short distance, and the defendant raised the grade of the road bed, leaving but a narrow space between it and plaintiff’s premises, insufficient to admit of the approach of a carriage to her hotel. Held, that plaintiff had a right of access to her premises, for substantial interference with which defendant was liable, and she could not be deprived of such right without just compensation.
    2. Same.
    As neither the state nor the city of Rochester could legally close this street without making compensation to the abutting owners, the defendant acquired no right to erect its structures in such abandoned or discontinued street.
    This action was tried at the Monroe circuit on January 25, 1886. At the close of the evidence the court directed a verdict for the defendant, to which plaintiff excepted, and the court thereupon ordered the exceptions to be heard at the general term in the first instance.
    The principal facts in the case are, that plaintiff’s premises are situated upon North avenue, formerly North street, which has been a street in use by the general public for many years and afforded access to plaintiff’s premises.
    Under the act of the legislature, chap. 147, Laws of 1880, the defendant was allowed to agree with commissioners appointed by the act upon behalf of the city of Rochester, upon a plan to elevate the track along and across the streets in said city, to close up streets and to change the location of defendant’s tracks.
    In carrying out the plan the portion of said street in front of plaintiff’s premises was discontinued, and the defendant erected at that point an abutment of stone and an earth embankment about fourteen feet in height and upon it placed its rails and structure and operated its road, leaving but a narrow space between it and plaintiff’s premises, insufficient to admit of the approach of a team and carriage to them.
    The defendant had acquired, previously to the time of discontinuing the street, the fee of the same for railroad purposes, subject to a use for the general public.
    The plaintiff’s premises had for several years previously, and at the time of said change, been used as a hotel and boarding house, and the rental value of the same had been diminished in consequence of these changes and compensation had not been made to plaintiff for the alleged interference with plaintiff’s rights and injuries. Other facts will be found in the opinion.

      Raines Bros., for app’lt; Harris & Harris, for resp’t.

       Reversing 17 St. Rep., 225.

   Potter, J.

The action is brought to recover damages occasioned to plaintiff’s means of access to her building and premises and to the air and light incident thereto in consequence of the structure of defendant in front or near the plaintiff’s premises.

A street or highway is principally designed and devoted to the use of the public to travel upon with teams and carriages and upon foot, and it may not be used for any other purpose except it be a quasi public use, such as a railroad carrying persons and freight under certain limitation. The People v. Kerr, 27 N. Y., 188; Kane v. The E. R. R. Co., 125 id., 164; 34 St. Rep., 876.

Certain, town and city officers are made by law trustees of highways and streets and are charged with the care of them and their legitimate use for the purpose of ordinary travel and passage by teams, vehicles and persons on foot.

The officers having charge of ordinary country roads have not the absolute power to lay out a new or to close an old highway. They cannot do either of said acts without the consent of the ■owners or abutters or a course of legal procedure prescribed by statute after notice to the owners, abutters and those interested, and the verdict of a jury and the assessment and payment of the damages sustained in consequence of the laying out of a new or the discontinuance of an old road. See the various provisions of ■art. 4, tit. 1, chap. 16, part 1, E. S., and the laws of 1882, chap. 317.

The charters of all cities, so far as I have had occasion to examine or observe them, contain similar provisions restricting the exercise of the power to open or close streets by municipal authority. I find the following in § 168, sub. 4 of the charter of the city of Eochester upon this subject, viz.: “ The executive board, whenever authorized by the common council, shall have the same power with respect to said city to discontinue any street therein as is now by law possessed by commissioners of highways of towns with respect to roads in towns; and the same proceedings shall be had and the same appeal shall lie from the decision of the said executive board, and the same proceedings shall be had on such appeal as are now provided by law in reference to towns so far as applicable.”

I do not at all question the power of the legislature to open and to close streets and highways within the constitutional limits, but I refer to these restrictions to show the safe guards and protection to the citizen which the legislature has imposed upon the public officers in the exercise of the power to open and close streets and highways.

But the legislature itself may not exercise this power absolutely and without regard to' the rights of the citizen. The constitution imposes the restraint upon the legislature that it shall not appropriate private property to public uses without j ust compensation therefor to the owner of the property. Art. 1, § 6; Abendroth v. The Man. R. Co., 122 N. Y., 1; 33 St. Rep., 475. Had the plaintiff any rights to air, light or access as “ abutting owner ” of lands bounded upon the street which was closed as a street, and upon which all the structures of the defendant complained of in this case are situate? ”

The street which was occupied by defendant’s structures in this case had been in the use of the general public as a street for more than fifty years, and the plaintiff and her grantors had used the access which it afforded to her house and premises for that period of time.

The structures complained of practically destroyed the only access to the plaintiff’s premises with a team and wagon, and the annual rental value of the plaintiff’s premises was diminished in consequence of the defendant’s structures by the sum of four or five hundred dollars. It has been held by this court, and recently by each division of it, that “ An owner of a lot adjoining a city street, although his title extends only to the side of the street, and he has no ownership of the land or interest therein save as abutting owner, has incoporeal private rights therein, which are incident to his property and which may be so impaired as to entitle him to damages. Such rights are private property within the provision of the state constitution, art. 1, § 6, which forbid the taking of private property for public use without just compensation. It is no justification, therefore, for the impairment that the act complained of was done pursuant to legislative authority. Abendroth v. The Man. R. Co., 122 N. Y., 1; 33 State Rep., 475.

“ The owners of lots abutting on a city street, the fee of which is in the municipality, have by virtue of proximity special and peculiar rights, facilities and privileges therein in the nature of easements, which are not common to the citizens, and constitute property of which they cannot be deprived by the legislature or the municipality, or both, without compensation; and any use of such street inconsistent with its use as a public street, which interferes with these easements, is a taking of property, for which said owners are entitled to compensation to the extent of the damages occasioned thereby.” Kane v. N. Y. E. R. R. Co., 125 N. Y., 165 ; 34 St. Rep., 876.

Since the able and exhaustive examination which this question has received in the opinions of the court, in the two cases last referred to, there is no occasion for further discussion of it. These cases hold, and they are supported by numerous authorities, that though the defendants therein had constructed and run their roads under authority of the legislature and of the municipality, yet there was a right of access to the plaintiffs premises, for substantial interference with which defendant was liable, and that the plaintiff could not be deprived of such right without just compensation.

We come now to the more particular consideration of the question whether a party enjoying the right of light, air or access may be deprived of such rights by the action of the municipal authority in the discontinuance of the street in respect to which such rights exist without compensation therefor or any provision for compensation. This question may be considered as simply a discontinuance of the street in question within the power and discretion possessed by the proper officers of the city of Eochester, or as a discontinuance or an alteration of this street by municipal authority, or by commmissioners acting for the municipality under an act of the legislature in connection with and in furtherance of the convenience and advantages of the defendant's railroad. Can the city exercise such power in a manner that shall deprive a citizen of the right of access to his premises while affording or leaving him no other access? We have seen from the cases above cited that a municipality cannot divest the citizen of such rights even where the municipality grants the right of laying the tracks and running the cars of a railroad along one of the streets of a city which is still devoted to and used by the general public as a street.

Under the provisions of the statute in relation to country roads, and as I apprehend under most- city and village charters as to ■streets and roads in cities and villages, the officers having them in charge cannot arbitrarily abandon or discontinue them.

The statute provides a regular mode of procedure with compensation to effect a discontinuance of them. The question of the right or power of a municipality to discontinue a street has frequently been presented to the courts of this state and it has been held that the authorities might do so when it is done in the manner prescribed by law and when there is left to the private citizen other and suitable means of access. To that effect are the cases of Radcliff's Ex’rs v. Mayor, 4 N. Y., 195; Coster v. Mayor, 43 id., 399 ; Fearing v. Irwin, 55 id., 490.

But it will be observed, upon an examination of these cases, that they clearly and distinctly recognize the right of access and that the owner of such rights cannot be deprived of a street affording him access to his premises unless there is left for his use nnd enjoyment other suitable means of access or the payment of a just compensation for the deprivation of the same.

Such was the character of the case of Wilson v. The N. Y. C.& H. R. R. R. Co., forming a part of the breif of respondent’s counsel and upon -the authority of which the learned general term seems to .have relied in the decision of this case. In that case the plaintiff's lot extended from King to Litchfield streets in the city of Rochester. The defendant under chap. 147 of the laws of 1880 (the act in question in this case) closed up Litchfield street but left the access afforded by King street In short, did not deprive the plaintiff of the means of access to his lot I am not disposed to-adopt the doctrine that a municipality may close up a street upon which abutting owners have built expensive structures for residences and business and enjoyed access to them from the street so-closed for many years arbitrarily and without compensation for the injuries done to such rights. Such rights are substantial and essential rights for the enjoyment of property and are appurtenances thereto. Abendroth v. M. R. Co., supra, at page 15 of the opinion and the cases there cited; Kane v. N. Y. E. R. R. Co., supra, at page 183 and cases there cited.

It would thus seem that the plaintiff could not be deprived of her rights if-the city of Rochester itself under any power that may reside in its municipal charter had closed the street and debarred the plaintiff from the enjoyment of those rights without making or providing compensation therefor.

But it may be contended that that view is not the real 'aspect in which this case is to be considered and decided. The municipality of the city of Rochester did not directly close this street and in that way interfere with the plaintiff’s right and that we need not here discuss or decide the liability of the city for that act as it is not a party to the 'action.

The defendant, the railroad company, did the act complained of, and this action is brought against that 'company for its agency in interfering with and violating plaintiff's rights. The railroad company had laid its track upon this street'with the consent of the city of Rochester, and by virtue of its right under ‘condemnation proceedings. The right it acquired under "the latter‘proceeding was the right to use this street to lay its track and run it cars, subject to the -older and superior rights of the general public to use the street, and, as we have seen, subject to the rights of the abultéis to access, air and light

Now it seems to follow as a conclusion from these premises that if neither the state nor the city of Rochester could legally close this street without making compensation to the abutting owners, the defendant railroad company acquired no right to erect its structures in such abandoned or discontinued street. Stetson v. Faxon, 19 Pick., 147. And if the street has not been legally discontinued, then the right of the railroad company is Still limited as it Was when ft was first acquired; and is subject to the rights of the plaintiff (in respect to the easements), and the rights of the general public in respect to travel and passage. When, therefore, the defendant placed the structures complained -of in the '■street, it violated the rights'of the plaintiff in a much more marked manner than was done by the elevated railroad companies in the Abendroth and Kane cases, supra, and for which this court held them liable in damages.

Since examining this case, and writing the views and the conclusion above expressed, I have had an opportunity of perusing the very able and interesting opinion of Judge Andrews in the case of John Reining v. The New York, L. & W. R. R. Co., 40 St. Rep., 392, recently decided, but not yet in the. regular reports.

The facts in that case were briefly these: The defendant road was located upon Water street, in the city of Buffalo. Plaintiff’s building was located upon premises fronting and abutting said street. Upon the east of plaintiff’s premises was Commercial street, and upon the west was Maiden lane street. The municipal authorities of the city of Buffalo authorized the defendant in that case to raise the grade of Water street some five or six feet in front of plaintiff’s premises and extending beyond the crossing of Commercial street, and leaving a strip of some nine feet in width along the north side of Water street for a wagon way and a strip fourteen feet wide for a sidewalk at the former grade. The raised grade was twenty-four feet wide and was supported by stone walls, and was paved and used as a street when that action was commenced.

The learned judge in his opinion reviews the cases bearing upon this subject and distinguished it from the case of Fobes v. R., W. & O. R. R. Co., 121 N. Y., 505; 31 St. Rep., 828, upon which the defendant in that case sought to sustain the defense, and held that the raising of the grade of the street in that manner, even under the license of the authorities of the city of Buffalo, was a violation of the plaintiff’s right of access, though the plaintiff had no-title to the land within the lines of the street, and that the defendant was liable for the damages plaintiff had sustained. The case under consideration is a much stronger case than the case cited.

In the case under consideration the obstruction prevented access to plaintiff’s premises with a team and vehicle. In the case referred to it made it inconvenient to approach plaintiff’s premises in that manner.

We think the direction of a verdict for the defendant was error, and that the question of plaintiff’s damages should have been submitted to the jury.

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

All concur, except Bradley and Haight, JJ., not sitting.


text:
    Aaron P. Bates, App’lt, The Lidgerwood Manufacturing Company, Resp’t.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Ejectment—Evidence.
    In an action of ejectment brought to recover certain lands in the county of Kings, state of New York, plaintiff alleged that the F. D. Co., a New Jersey corporation, was in possession of the premises in 1867, when one A. caused them to be sold under an execution against said F. D. Co. and plaintiff purchased at sheriff’s sale. Plaintiff proved entry of A.’s judgment in supreme court, Kings county, issuance of execution to the sheriff, who sold the premises and made certificate to one Armstrong, who-assigned it to plaintiff, and that the sheriff made a deed to him. Held,
      that the evidence introduced by plaintiff failed to establish any cause of action against defendant.
    2. Same.
    The exclusion of evidence which tended to prove no legal title in the F. D. Company, but at most only an equitable interest or estate derived from arrangement made by it with one Russel, one of the defendants in the New Jersey action, subsequent to his purchase on the execution, was not erroneous, as there was no evidence that the premises were in the possession of the company prior to the sale on the execution.
    Appeal from judgment entered on decision of the general term of the supreme court, in the second judicial department, affirming judgment of dismissal of the complaint
    This action of ejectment was brought to recover the possession ■of certain lands situate in the county of Kings. And the plaintiff alleged that the Fibre Disintegrating Company, a New Jersey corporation, was seized in fee and in possession of the premises on March 13, 1867, when one John Anson recovered against the company a judgment, upon which was issued execution, by virtue of which the premises were sold and a sheriff’s deed after-wards made to the plaintiff pursuant to the sale; that he had since then been seized in fee of such lands; and that the defendant unlawfully entered into and withheld the possession of the premises.
    The defendant, by its answer, put in issue the material allegations of the complaint
    The plaintiff proved judgment of Anson against the F. D. Co., recovered March 13, 1867, in supreme court for $48422, and docketed same day in Kings county, executions issued March 16, 1867, and August 2, 1872, to the sheriff, who sold the premises on last execution and made certificate of sale to one Armstrong, who assigned it to the plaintiff, and in January, 1874, the sheriff made deed to him. Some further evidence was offered by the plaintiff and excluded. Thereupon the complaint was dismissed.

      A. P. Bates, for app’lt; James D. Fessenden, for resp’t.

       Affirming 22 St. Rep., 395.

   Bradley, J.

The evidence introduced by the plaintiff failed to establish any cause of action against the defendant. • The main questions arise upon the exceptions to exclusion of evidence, which, it is claimed on the part of the plaintiff, would have tended to prove that the Fibre Disintegrating Company had title to the premises in question at the time of the recovery by Anson against it in March, 1867, and upon which the judgment became a lien and that by the sheriff’s deed to the plaintiff the latter took such title. The question, therefore, arises whether the excluded evidence was sufficient to prove that the F. D. Co. had a title or interest in the premises salable by execution issued upon the judgment through the sale on which the plaintiff bases his claim to right of action. His offer was to introduce in evidence a record of the court of chancery of the state of New Jersey consisting of a bill, answer and decree, in which one Ogilby was complainant and the F. D. Co. and Bobert W. Bussell were defendants, by which decree one Morris was appointed receiver of the estate, right, title and interest of that company in the premises in question; also a conveyance in compliance with the decree by the company of all its title and interest in such lands to the receiver; and a conveyance by Morris as such receiver and Bussell to the American Fibre Company, a corporation of the state of Mew York. This conveyance was made by the receiver pursuant to the power given him by the decree, and by Bussell to comply in that manner with the direction in it for conveyance to him by the receiver.

The complainant was creditor of the F. D. Co. and the bill was filed in January, 1867, for the appropriation of the estate of that company in the lands to the payment of his claims, and amongst other matters he alleged that on or about the 1st of February, 1864, Bussell purchased the premises, took conveyances, and after having paid a portion of it gave his bonds secured by his mortgages upon the lands for the balance ($30,000) of the purchase money; that Bussell having offered to transfer the benefit of his purchases to the F. D. Co. made an arrangement with it by which the company assumed the purchases and became entitled to the benefit of them as appeared by certain resolutions of the executive committee of the board of directors of the company adopted in March and May, 1864; that thereupon the company advanced the amounts of the purchase money paid at the time of the conveyances to Bussell, and thereafter under such arrangement occupied, used and enjoyed the premises and had up to 1866 paid interest on such bonds and mortgages and taxes. The allegations in the bill were admitted by the answers of the defendants, and decree was entered for the relief prayed for by the complainant.

The deeds before mentioned referred to the bill and decree and recited the adjudicating provisions of the latter. They were dated in March and April, 1867. The deed to the American Fibre Company recited the adjudication that the F. D. Co., having become entitled to the benefit of the Bussell purchases, owned the premises, having the equitable title thereto subject to such mortgages thereon.

It is urged that the bill, answers, decree and the deeds furnished evidence that the F. D. Co. was seized in fee and in possession of the premises subject to the lien of the judgment upon which the execution sale was founded and through which the plaintiff derived his alleged title. The legal title represented by the deeds was in Bussell until the conveyance to the American Fibre Company; and the arrangement alleged in the complaint in the chancery suit between him and the F. D. Co., pursuant to which that company went into possession, gave to the latter the equitable title subject to the mortgages. The judgment was not a lien upon such equitable estate, nor was it salable upon execution issued upon such judgment. 1 R. S., 744, § 4; Sage v. Cartwright, 9 N. Y., 49; Grosvenor v. Allen, 9 Paige, 74.

So far as appears by the statement in the deed to the American Fibre Company, executed by Russell, the F. D. Co. took its interest in the premises and possession by the arrangement between them made subsequent to the conveyance to Russell, and in assuming the purchases made by him it also assumed the payment of the purchase money secured by his bonds and mortgages, which he remained liable to pay to his obligees. And nothing appears to show that the company was entitled to take or perfect legal title to the premises until he was relieved from such obligations. A different question would have been presented’ if it had appeared, in the manner required by statute, that Russell had taken the conveyance in trust for the company. In that case the legal title would have vested in the company. 1 R. S., 728, 729, §§ 49, 58. But to accomplish this it was essential that the trust be declared by deed or conveyance in writing, etc. 2 R. S., 184, § 6. And the trust must have existed at the time of the grant to the trustee, although it may have been effectually declared afterwards. Wright v. Douglass, 7 N. Y., 564. This the deed executed by Russell to the American Fibre Company failed to do. And although the F. D. Co. advanced the money for the payments that were made upon the purchases, it cannot, in view ■of the statute, be held that the company took the legal estate by virtue of any trust resulting to it. 1 R. S., 728, § 51; Garfield v. Hatmaker, 15 N. Y., 475.

The evidence offered would have tended to prove no legal title' in the F. D. Co., but at most only an equitable interest or estate derived from arrangement made with Russell subsequent to his purchase and not subject to lien of the judgment; and as it could not be assumed if the evidence had been introduced that its possession was other than under such arrangement, the plaintiff was not prejudiced by its exclusion. The execution sale under which the plaintiff claimed was ineffectual to vest any estate in the sheriff ’s grantee. No evidence that the premises were in the possession of the F. D. Co. prior to the sale on the execution was introduced; ;and in view of the issue made by the answer it contained no admission to aid, without further evidence, the claim of the plaintiff.

It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Gray, J.

text:
    Josephine F. Clason, Pl’ff, v. Elizabeth S. Baldwin, Def’t.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Ejectment—Parties—Where owner of premises made sole defendant.
    Where tenants occupy the premises when an action for possession is commenced, and plaintiff does not make them defendants, but elects to sue the landlord alone, if the latter appears and omits to object to the defect of parties in the way provided by the Code, the effect is to leave the action to be tried upon the question of the plaintiff’s title and right to the possession.
    2. Same.
    Where the plaintiff in such an action recovers judgment establishing his title, the damages recoverable include the rents and profits^ or the value of the use and occupation from the commencement of the action.

      Appeal from judgment of supreme court, general term, first department, modifying judgment for plaintiff entered on verdict of jury by setting aside and reversing so much as permits the recovery of damages for withholding possession since commencement of action on the ground that it had not been set out in the complaint.

      George W. Stephens, for pl’ff; Isaac N. Miller, for def’t
   Gray, J.

This action was for the recovery of the possession of certain real property in Mew York city and judgment was entered by the plaintiff upon a verdict, which awarded that recovery and, also, a sum of money as the rental value of the premises' from the commencement of the action to the day of trial. The general term affirmed so much of the judgment as gave to the plaintiff the possession of the premises; but reversed that portion of it which awarded damages for the withholding of the possession. Both parties have appealed to this court.

Upon the defendant’s appeal the objection discussed by her ■counsel is that the complaint should have been dismissed, because the defendant was not the actual occupant of and was not proved to have claimed any interest in the premises at the time of the commencement of the action, and that possession" was not shown in the plaintiff or her ancestors.

We are quite satisfied with the disposition which was made by the general term of this objection and but a brief review of the principal point is called for. As an action to recover real property, the contest is necessarily over the title to it, and while § 1502 of the Code of Civil Procedure requires that where the complaint demands immediate possession the occupant of the property must be made defendant in the action, the following section provides that any other person claiming title to, or the right to the possession of the property, as landlord, etc., may be joined as defendant in the action. In this case the defendant’s tenants occupied the premises when the action was commenced, and might have been made parties defendant; and they must have been made so, in order that a judgment of possession might be executed. But not having made the tenants defendants and electing to sue the landlord alone, it followed that the issue for trial was that raised by the pleadings. The landlord was a proper party, and if she omitted to object to the defect of parties in the way provided for by the Code, in this case by answer, as the defect did not appear on the face of the complaint, the effect was to leave the action to be tried upon the question of the plaintiff’s title and right to the possession. Mo decision, that I am aware of, in this court militates against this view.

If the plaintiff in ejectment does not sue the tenant, but .does his landlord, and the latter joins issue and, by his omission to so plead, waives the defect of nonjoinder of the tenant, the consequence is that a recovery of the land cannot be enforced as against the tenant’s occupancy; but the judgment has determined the title to the land, as between the parties, to be in the plaintiff. Here the complaint simply alleged plaintiff’s seizin in fee and her right to the immediate possession of the described property, and that the defendant wrongfully withheld its possession from the plaintiff. The landlord, the sole defendant, in answering-denied each of these allegations, and set up a new defense of the statute of limitations.

Thus, while a necessary party under the Code may have been omitted as a defendant, a proper party to the action, in the person of the landlord, and one whose presence was necessary for the determination of the questions of title, was a defendant, and she elected to appear and defend alone upon the issue made as to plaintiff’s title and right to the land, and that she, the defendant,, was wrongfully withholding its possession. There was no errorim holding her upon the trial to the issues as then presented. The case of Finnegan v. Carraher, 47 N. Y., 493, is quite in point upon the question.

Upon the question of defendant’s possession of the premises in question, there was sufficient evidence of acts of ownership to warrant the submission of the question to the jury, and it was settled by their verdict.

As to the legal title of the plaintiff, it is unnecessary to add to the opinion of the general term.

Upon the plaintiff’s appeal the question is presented as to her right to recover damages for the withholding of the possession, measured by the annual rental of the premises from the date of the commencement of the action to the time of the trial. This, question the general term has determined adversely to the plaintiff, holding, on the authority of Larned v. Hudson, 57 N. Y., 151, that such a cause of action should have been set out in the complaint, and that it was not sufficient for their recovery that damages were included in the demand for judgment. Hence, they held it was error to admit evidence of such damages and for the trial court to rule that they might be recovered and, pro tanto, they modified the plaintiff’s judgment.

In so holding I think the general term have misapprehended the effect of the changed provisions of the Code of Civil Procedure. Larned v. Hudson did hold that a claim for damages for the withholding of the possession was distinct from a claim for rents: and profits during the time; but the ruling in that case was expressly based upon the provisions of the then existing Code; the 167th section of which permitted to be united in the same complaint several causes of actions arising in such a case out of “ claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same.” That language, it was held, recognized the fact that a claim for dam-, ages for withholding real estate, demandable and recoverable in an action for the recovery of the land itself, does not include, but is distinct from, a claim for the rents and profits of it during the time the possession is wrongfully withheld. In enacting the present Code of Civil Procedure. § 167 was replaced by § 484 and the subdivision of the old § 167, referred to, was modified so as to leave out from it the words “ and the rents and profits of the same.” The omission of this part of the former subdivision, after the court in Larned v. Hudson had given to it such significance, when considered in connection with the enactment of the present §§ 1496 and 1497, must be taken to indicate the intention of the legislature to modify the rule as deduced from § 167. Those sections occur in the article entitled as “action to recover real property.” Section 1496 provides that in such an action “the plaintiff may demand in his complaint, and, in a proper case, recover damages for withholding the property.” Section 1497 then reads: “ Those damages include the rents and profits, or the value of the use and occupation of the property, when either can legally be recovered by the plaintiff.”

These sections were new enactments, and I cannot perceive any particular usefulness in the change unless to obviate the effect of the construction placed upon § 167 of the old Code. I think the effect of these sections is to make all the recoverable damages incidental to the establishment of the plaintiff’s title to the property. While formerly that damage for withholding the possession, which was regarded as an element of mere injury, was incidental to the recovery of the title, and a claim for rents and profits, or for the value of the use and occupation, was a distinct and separate claim under the present procedure if the plaintiff recovers the judgment establishing his title, the incidental damages which he may then recover under his demand do include the rents and profits, or the value of the use and occupation. These latter items of damage are to be computed from the commencement of the action brought to recover the property. I doubt that these sections of the present Code would authorize a recovery of rents and profits, or of the value of the use, as a part of the damages, for a time prior to the commencement of the action. That, perhaps, would be stretching their significance as a rule of recovery; but as a part of the damages for continuing to withhold the real property after the bringing of the action, I think the plain reading of the sections warrants the recovery under the demand. The commencement of the action, with the demand in the complaint for damages for the withholding of the possession, was sufficient to apprise the defendant to prepare to meet the plaintiff’s proofs as to all t.he damages which the withholding comprehended in fact The evidence upon the trial, therefore, was competent; its admission was not error, and the instruction of the trial judge was correct.

So much of the judgment of the general term as modified the judgment entered upon the verdict of the jury should be reversed and the judgment so entered should be affirmed, with costs to the plaintiff at the general term and in this court.

All concur.

       Modifying 37 St. Rep., 213.


author: Ruger, Ch. J.

text:
    Sophia Shaw, App’lt, v. Miles Broadbent, Resp't.

      (Court of Appeals,

      Filed December 1, 1891.)

    Specific performance—Bab.
    In 1880, a contract was made between, the parties, whereby in consideration of board furnished and to be furnished and other services by plaintiff, defendant agreed to build a house on his lot and convey it to her to be applied as a credit of $1,2„0 for said board, borrowed money and other services, and in an action brought on said contract, it was held that defendant built the house and gave plaintiff possession, “who has ever since continued and still continues in possession thereof.” In 1883, plaintiff sued defendant for board, borrowed money and services, and gave no credit for the $1,200. She also obtained an attachment in the action, giving a bond of $250. The attachment was vacated and set aside on motion or defendant, and he began an action to recover damages by reason thereof. In answer to that action plaintiff sot up the contract of purchase, and asked for a judgment that defendant execute a conveyance. Upon the trial the judge refused to allow Mrs. Shaw to prove the contract of purchase, on the ground that she had waived her rights by previously electing to sue for the money, and a judgment for $101 was granted and a finding that the premises belonged to plaintiff. In the first action plaintiff had been, allowed to amend her complaint by introducing an allegation as to the- , making of the contract to convey, and giving defendant a credit of $1,200, and in that action it was decieed that the premises belonged to Mrs. Shaw and should be credited to defendant, and judgment was given for the latter. Upon showing this in this action brought in 1887 for specific performance of the contract to convey the land, the court dismissed plaintiff’s, complaint. IX Id, error; that plaintiff was entitled to a specific performance of the contract, that the adjudication in the second action was really in plaintiff’s favor as to issues there raised, and that was not overcome by the previous adjudication in defendant’s favor.
    Appeal from judgment of the supreme court, general term, fifth department, affirming a judgment in favor of defendant.

      D. C. Barnum, for app’lt; Geo. P. Decker, for resp’t.

       Reversing 37 St. Rep., 968.

   Ruger, Ch. J.

This action was brought in July, 1887, to enforce the specific performance of a paroi contract made by the defendant in 1880 to convey land to plaintiff, and resulted in a judgment for the defendant, which was affirmed on appeal by the-general term. The evidence was not returned in the case, and the-appeal was determined upon the findings of fact alone, and from these findings the case must be determined by this court.

The question is, what should have been the judgment of the court upon such facts, and it is our duty to order such a judgment as the findings of fact require. Among other things, it was. found by the trial court, “ That in the year 1880 a contract was made between the parties hereto whereby in consideration of board furnished and to be furnished, and of other services rendered and to be rendered by plaintiff for defendant, defendant agreed to build a house on a lot owned by defendant in the village of Holley, being the west half of the premises described in plaintiff’s complaint herein, and convey the same to her to be applied at the agreed sum of $1,200 on account for board, borrowed money and other services which defendant owed plaintiff, and plaintiff agreed to pay therefor by giving credit therefor as aforesaid,” and, “that, under said contract defendant did build a house on said lot and gave plaintiff possession thereof, who has ever since continued and still continues in possession thereof.”

The trial court refused to decree the specific performance of the contract, upon the ground that upon a previous trial between the same parties the question in controversy here had been adjudicated in favor of the defendant, thus constituting, as it was held, a bar to this action.

As appears from the findings, there had been two actions prior to the present, between the same parties, which involved, to a certain extent, the subject of this controversy, and in which judgments to a contrary effect had been rendered, and these judgments are now claimed by each of the respective parties to be decisive of the present controversy in their favor respectively. A chronological history of the prior litigation will show the relation which each action bore to the other, and the effect of the judgments rendered upon the rights of the parties respectively.

In July, 1883, Mrs. Shaw sued Broadbent in an action in the supreme court, upon account for board, borrowed money and services, and omitted to give credit in her complaint to the defendant for the sum of $1,200, now alleged to have been allowed as a' payment on said account by the terms of the contract of purchase above stated. She also obtained an attachment in that action upon giving an undertaking in the sum of $250, as required by the Code, against the said defendant, and under it his property was levied upon. The attachment was vacated and set aside by the court in September, 1883, on motion of the defendant, whereupon he, in October, 1883, commenced an action on the attachment bond against Mrs. Shaw and one Wickens, the surety thereon, to recover the damages which he claimed to have suffered by reason of such attachment. In answer to that action Mrs. Shaw set up, as a second defense thereto, the contract of purchase above set forth and demanded judgment that Broadbent should be decreed to execute and deliver to her a conveyance of such premises in accordance with the terms of his contract, and that the complaint should be dismissed, with costs. Eo reply seems to have been served to this answer. The action came to trial in February, 1884, before a judge at circuit without a jury, and Mrs. Shaw’s counsel, as a defense, offered to prove the contract to purchase, set up as a second defense in her answer, which was objected to by Broadbent’s counsel without specifying any grounds of objection, and the evidence was excluded by the court, the judge saying: “I place my decision upon the ground that the complaint in that action of Mrs. Shaw against the plaintiff, the effect of it is to waive the agreement on account of the refusal of Mr. Broadbent to perform, and that she then elected to sue for the money that was due and owing.” The trial then proceeded, and resulted in a decision in favor of the plaintiff for $100, damages and costs. The court found, among other things in that action, that said premises were the property of and belonged to the plaintiff in that action; and also that none of the allegations of defendant’s answer were sustained; and, as a conclusion of law, that plaintiff was entitled to damages and should have judgment therefor. - Judgment was duly entered in accordance with such findings in favor of Broadbent against Mrs. Shaw for such damages and costs in February, 1884. It was this judgment that was held in the court below to be res adjudicata upon the question as to whether a contract of sale of the property in question had been made between the plaintiff and defendant.

We will now return to the history of the action for board and services brought by the plaintiff against the defendant In June, 1884, the plaintiff moved the court for leave to amend her complaint therein by introducing an allegation of the making of the contract to convey the house and lot in question and giving defendant credit to the extent of $1,200 for such premises on his indebtedness to her. This motion was opposed by the defendant, but was granted by the court, without, as it says, passing upon or adjudicating the question whether such an agreement was made, and without impairing the effect of the decision and adjudication in the action on the attachment bond upon the rights of the parties. The complaint was amended in accordance with such order, and the defendant put in an answer wholly denying the allegations of the amended complaint. The action then proceeded to a trial before a referee, who, among others, made the following findings: “That defendant was indebted to plaintiff for board and extra services to the amount of $4,113.25, and that defendant had paid plaintiff in cash at different times, in all, $2,918.66 and, also, “ that in the summer of 1880 an arrangement was made by and between the parties, by which defendant built a house on a lot in Holley, and gave possession of the same to the plaintiff, and she has lived in and occupied the same, claiming it as her own from some time in October, 1880, down to the present time, with the agreement and understanding that plaintiff should credit and allow defendant therefor on her account against him the sum of $1,200 as the price of said house and lot, and this sum must be credited to this defendant in this action in addition to the aforesaid $2,918.66 paid in cash, making in all to be allowed defendant the sum of $4,118.66, which I find defendant has paid to plaintiff on account in that action,’’ and directed judgment in favor of the defendant dismissing the complaint, with costs.

The defendant caused judgment to be entered on July 12,1887, in accordance with these findings in his own favor against the plaintiff, with costs. Hpon this state of facts the trial court in this action dismissed the plaintiff’s complaint and denied the plaintiff’s prayer for specific performance.

We think the court erred in making this disposition of the case, and should have ordered the defendant to perform specifically the contract which it expressly found he had made and partially executed.

The questions arising upon this statement of facts are, first, whether the judgment of July 12, 1887, was effective as an adjudication in favor of the plaintiff upon the question litigated in this case. Second, whether the judgment of February, 1884, in the suit of Broadbent against Shaw, upon the attachment bond, was an adjudication in the defendant’s favor upon the same questions. And if these' questions should both be answered in the affirmative, then, third, what is the effect upon the rights of the respective parties in this action, who have each produced an adjudication in his or her favor respectively.

To answer the questions in the order in which they are stated, we are of the opinion that the judgment of July, 1887, was an adjudication in Mrs. Shaw’s favor. The precise question arising in this case was made an issue by the pleadings in that action and was litigated on the trial and expressly found in Mrs. Shaw’s favor by the referee; that finding was effective in establishing an offset to the plaintiff’s claim in the action to the extent of $1,200 in defendant’s favor. The judgment was to the effect that the contract of sale was made by Broadbent, and that he was thereby entitled to the application of the purchase price of the land upon his established indebtedness to Mrs. Price. This finding resulted in satisfying her claim against him, and this result was secured by the entry of a judgment satisfying her claim against him, and thus executing the contract so far as Mrs. Shaw’s obligations were concerned. The result in that action might have been otherwise if the defendant had availed himself of the privilege reserved to him by the order of amendment of using the former judgment in his favor as a plea in bar to the amended complaint; but, instead of this, he not only neglected to plead such adjudication orto put it in evidence, but voluntarily went to trial under a general denial of the complaint and thereby consented to a re-trial of the issues which he now alleges had been previously adjudicated in his favor. It is obvious that the force and effect of that judgment upon the rights of the parties as to the issues then tried and determined cannot be nullified by the posthumous production of a record, which might have defeated the claim if it had been properly presented on the trial. Revere Copper Co. v. Dimock, 90 N. Y., 33; S. C., 117 U. S., 559. If the trial of that cause was not to give the determination of the issues involved their natural effect, it is evident that the order permitting the trial was an idle ceremony. We do not doubt, therefore, but that such judgment was in all material respects an adjudication in favor of the plaintiff as to the issues therein tried and determined. It is claimed, however, that this is overcome by the previous adjudication in favor of the defendant, and it therefore becomes necessary to determine how far that judgment operated as an adjudication upon the questions litigated in this action. It was held by the trial court, and also by the general term, that it was an adjudication upon such questions. We cannot agree with those courts in such conclusion. In order that a judgment should have the effect claimed, it is not enough that the party produce a record showing a judicial determination of the same question litigated in his favor; but, it must also appear that it was rendered upon the merits, upon a material point, and substantially upon the same facts presented in the subsequent case. Campbell v. Consalus, 25 N. Y., 613 ; People ex rel. Reilly v. Johnson, 38 id., 63 ; Weed v. Burt, 78 id., 191; Webb v. Buckelew, 82 id., 555. There does not seem to have been any determination upon the merits. The question of fact tendered by the defendant’s plea was not tried, but it was substantially held that, admitting the truth of the plea, it did not constitute a defense to the action.

The offer of proof was excluded and there was no trial of the fact whether a contract had been made or not The decision was placed upon the ground that the commencement of an action by Mrs. Shaw to recover her account amounted to an election of remedies and was a waiver of her right to claim a specific performance of the contract to purchase. It hardly seems to us that this was a case for an election of remedies. The rights of the parties were fixed by contract and neither party could rescind or waive the obligations of the contract without the consent of the other; but it is unnecessary to consider whether the decision of that court was correct or not, for if the decision was upon a material point it would be equally binding upon the parties whether erroneous or not It is, however, perfectly apparent that the decision, whatever it might have been, had no effect upon the determination of that case. The action was in tort to recover damages for the seizure of property under an attachment illegally issued. The fact that it was wrongfully issued was established by the order of the court setting it aside. How could it affect the -plaintiff’s right to recover in that action for the defendant to show that the attachment was issued upon a valid debt; or that she had a good cause of action against the plaintiff for the specific performance of a contract to convey land. The plea was wholly insufficient, either as a counterclaim or a defense, and the evidence to sustain it was properly excluded by the court. It is quite immaterial whether it gave a good reason for its decision or not, as the evidence offered was, in any point of view, wholly inadmissible. It was competent for the plaintiff to object that the answer did not state facts sufficient to constitute a defense at any time, and the court was bound to. rule on that question when made. It is said in the opinion below that if the parties consent to try an issue, they are bound by the decision. That may be true as a general proposition; but it does not affect this case; for the plaintiff never consented to try that issue. He raised the objection the first opportunity that was offered to him and continued it until he obtained its exclusion by the court. The plaintiff objected to the trial of the issue tendered by the defendant and the court decided that it should not be tried, and it was not tried.

It may be said that the court tried and determined an issue of law as to the sufficiency of the evidence offered to constitute a defence, and that that determination was conclusive upon the parties. This would probably be so if the evidence offered could, in any view, operate as a defense to the action; but we have seen that it does not do so, and it was entirely immaterial in that action how the court decided the question. If the defendant then had proved her answer just as it was alleged it could not have affected the judgment rendered by the court. A further answer to the conclusiveness of the judgment, as a bar, is found in the changed character of the action effected by its amendment, which was then held to be a waiver of the plaintiff’s right to a specific performance. In that action it appeared that the plaintiff had brought suit claiming a judgment for the entire indebtedness of the defendant to her, omitting to give credit for the $1,200 item. Whether that was such an election of remedies as precluded the plaintiff from claiming the specific performance of her contract to purchase, it is unnecessary now to inquire; but it is beyond question that when that action was, by order of the court, converted into an action to collect her debt less the amount of the $1,200, it could no longer be considered a waiver of her rights under the contract, or an election to take money instead of the house and lot. There was nothing in the situation of the parties which estopped the plaintiff from changing the nature of her action if she felt so inclined, and when she received the sanction of the court to the change, the action became one practically for the enforcement of the contract. But even if it be conceded that the judgment of February, 1884, was an adjudication in the defendant’s favor as to the validity of the contract of purchase between the parties, he is still met by the fact that there was an equally valid adjudication in the judgment of July, 1887, of the same questions in favor of the plaintiff. There is thus an estoppel against an estoppel, which, in the language of Lord Coke, “ setteth the matter at large." 2 Smith Leading Cases, 620-800. In such a case it is held that one estoppel neutralizes the other, and the question is left to be tried over. Mersereau v. Pearsall, 19 N. Y., 108. Such a trial seems to have been had in this case and the result was a finding in the plaintiff’s favor.

It follows from the views expressed that' the judgments of the general and special terms should be reversed; and judgment of specific performance of the contract of sale by the defendant should be ordered, with costs to plaintiff in all courts.

All concur.