text:
    David W. Hoag, Resp’t, v. Edward O. Pierce, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Deed—Bounded on a highway—Peima eacie cabbies title to cenTEB OE BOAD.
    A deed bounded on a highway prima facie carries the title of the grantee-to the center of the road, on the assumption that the grantor owned it. But, if it'appears to have been owned by another, the language found in? the deed is satisfied by a title extending only to the roadside.
    2. Basements—Well in street—Dedication to public use.
    A well in the centre of a road may be dedicated to private use by long-continued use and maintenance under a claim of right, when the same is. not inconsistent with the public rights in the street.
    Appeal from a judgment entered upon a decision made at the-Onondaga special term in an action on the equity side of the-court. Parties owned parcels of real estate situated on the south side of Main street in the village of Elbridge, upon which properties are two hotels. In Main street opposite the premises of the-defendant, some eight feet outside of the. curbstone and south oi the center line of the street, is situated a well in which is a pump from which water has been drawn for the use of sundry persons ¡residing in the vicinity for a period of some fifty years; apparently the pump was kept in order by contributions from the persons using the water from the well Defendant was about to insert a pipe in the well and conduct the water into that portion of his premises embraced within the enclosure thereof, and to remove the pump and to prevent the plaintiff and others from enjoying the use of the well as it has been enjoyed by the plaintiff and his predecessors in title and other neighbors for a great period of years. This action was brought to restrain the defendant, and an injunction obtained and continued down to the trial and made permanent by the decision at the trial. In the complaint is the following allegation: “ And plaintiff alleges on information and belief that said defendant is the owner .of the premises in said village, described as follows, to wit: All that tract or parcel of land situate in the village of Elbridge, county of Onondaga and state of New York, being part of lot No. 83 in said town, consisting of the hotel property in said village, bounded and described as follows, to wit: On the north by Main street; on the east by.South street; on the south by lands of the late Mrs. Carpenter, and formerly owned by Newell O. Merriman; on the west by land formerly owned by J. & E. Ingerson and the estate of Nathan Munro, containing one acre of land be the same more or less, said premises being commonly known as the Monroe House in said village.”
    In another part of the complaint it was alleged as follows: ¿‘And plaintiff further alleges on information and belief that said well is not on the premises of the said defendant, the same being within and upon the land of said Main street, and about twelve feet north of the defendant’s north line, and the south line of said Main street. That neither the said defendant nor any other private person has any right whatever to remove or fill up, or change or alter said well or its location, or to do any other act or thing whatever (except to use in common with numerous other persons herein described and mentioned, the waters thereof), which may in any way or manner abridge or interfere with the free and unobstructed use of and the right to the use of the waters of said well by the said public, including the plaintiff and the numerous other persons described and referred to herein.” In the answer of the defendant were the following words: “And the defendant for further answer to said complaint, alleges that he is the owner in fee of the premises upon which said well is located; that said premises are described as follows: ” (Then follows a description like the one which has been quoted from the complaint).
    The trial court found: “ That the well mentioned in the complaint was dug more than fifty years ago in the public highway, running easterly and westerly through the village of Elbridge, and about twelve feet from the south bounds of said street, between the sidewalk on the south side and the beaten track of carriages and teams. And that said well has stood there ever since and its waters have been enjoyed by many persons, including the plaintiff, residing in the immediate vicinity, and their predecessors and grantors, for more than twenty years before the commencement of this action, such waters having been so used by the plaintiff and said persons as their water supply for domestic use; ” and also found : “ That the plaintiff is the owner or occupant of the premises, used by him as a residence and hotel, in the immediate vicinity of said well, being a few rods westerly on the south side of said street, and that he has been such occupant and in possession thereof for about four and a half years under a contract to purchase the same, and that for more than twenty years prior to the commencement of this action he and. his predecessors and grantors had continuously and uninterruptedly used the waters from said well, and his predecessors for more than twenty years before his occupancy began had so used the waters, and that the plaintiff and his predecessors and the other persons using said waters and their predecessors had contributed to keep said well in repair, the expense being in part defrayed by subscription.” The court also found5 as a matter of fact: “ That the defendant is the owner and occupant of certain, premises adjacent to the south side of said street, north of which the well is located, but is not and was not at the commencement, of this action the owner of said well nor of the land in said street, within which said well is situated.” The court found as a fact that the defendant “ wrongfully and without right threatened to- and attempted to take up said well, and to close up the well and. conduct the waters thereof, by means of a pipe under the surface-of the ground, within an enclosure on his own premises, formed by his buildings and a high and close board fence and partition, which he had built previously, and that the effect of said act would be to deprive the plaintiff and others of like interest, of access to said well except by defendant’s consent, which acts were restrained by the temporary injunction granted in this action.” And the court also found : “ That the plaintiff, and the other persons of like interest, by the open and uninterrupted use of said well by himself and his predecessors in- the ownership of said premises occupied by him and having so used the same for more-than twenty-five years next preceding the commencement of this action, and without hindrance or objection from the real owners of said well, has acquired as against the defendant the right to use-said well in the way be and they had been accustomed tó use it.”
    As conclusions of law the court found “ That the plaintiff had the right as against the defendant to the use of said water at the-time of the commencement of this action and now has it, and that the defendant had no right to do the acts threatened or attempted by him, or to close or cover up said well or to conduct the waterstiierof upon his own premises, nor had the defendant the right to-do any act which would impair, abridge or interfere with the right of the plaintiff to use and enjoy the waters of said well in common with others of like interest, except the right to use the same in common with the plaintiff and said persons. That the plaintiff. had the right to bring this action to restrain the defendant from doing the acts threatened or attempted by him, and he is entitled to the following judgment and relief as against said defendant, viz r

      “ 1. That it be adjudged that as against this defendant the plaintiff and others of like interest have the right to perpetually draw and use the waters from said well in common as heretofore.
    “ 2. That the defendant, his agents, servants, heirs and assigns be perpetually enjoined and restrained from interfering with said well, and from taking up or filling up said well, or removing the same or said pump, and from any and all acts that may impair, abridge, hamper or interfere with the rights of plaintiff and others of like interest in the use of the water of said well in its present location, excepting that the defendant may use the same in common with plaintiff and said other persons.”
    Exceptions were filed by the defendant to several parts of the decision, and to the refusal to find in accordance to several requests made by the defendant.

      A. W. Shurtleff and Louis Marshall, for app’lt; Frank D. Wright and F. C. Cushing, for resp’t.
   Hardin, P. J.

—It is insisted in behalf of the appellant that, by the pleadings it was conceded “ That the defendant was the owner in fee of the land on which the well stood.” In the-complaint it was alleged “ That said well is not on the premises of the said defendant; the same being within and upon the land of said Main street, and about twelve feet north of defendant’s north line, and the south line of said Main street.” Eeading that allegation in connection with the averment in the earlier part of the complaint to the effect that the premises of the defendant were bounded on the north by' Main street, it must be assumed that the words of description found were used for the purpose of indicating in a general way the occupation of premises by the defendant. Again; upon the trial it-is apparent that the position was taken1 by the plaintiff that, the defendant only owned to the side of the street, and gave evidence tending to support that position, and the defendant so-understood during the. progress of the trial, and gave what evidence he was able to upon the issue of the actual ownership of the well in question. No attention seems to have been called to-the peculiar language of the answer relied upon now by the defendant with a view of sustaining his position that the complaint, in effect averred ownership in the defendant of the well in question.

We therefore think the court was called upon to find as a matter of fact, and determine whether or not the defendant-owned the well in question. Upon that subject plaintiff furnished evidence from the earlier deeds relating to the defendant’s premises, showing that his premises were bounded by the south side of Main street, and therefore that he was not an owner to the center of the street. Besides, it appears in the evidence that as early as the year 1800, by chap. 78 of the Laws of that year, the “old Seneca turnpike, or Seneca turnpike,” was incorporated; and that “ it was empowered to acquire and hold to itself and successors forever lands, wherever it should deem it most convenient to build its road between Utica and Cayuga county. N. Y.” Evidence was given tending to show that the turnpike company occupied the premises where the well is situated for a long period of years, and down to the time when “ it was turned into a plank road company." By chapter 97 of the" Laws of 1850, the Seneca Road Company was authorized to sell or to abandon its road, or parts thereof. By chapter 87 of the Laws of 1854, it was provided that if the plank road company should abandon .its road the property should become the property of the town. It appeared by the evidence of Luke Ranney that the Seneca Road Company operated its road “ until it was turned into a plank road company.” It appears by the evidence that it has not been operated either by the Seneca Company or by the Plank Road Company for more than twenty years, and that the^ street has been under the care, supervision, and in the use of the incorporated village of Elbndge, at the place where the well is situated. It seems, with this evidence before the court, the assumption that the roadway or well was owned by the village of Elbridge was warranted ; and that 'being so, the language found in the defendant’s deed was “ satisfied by a title extending only to the roadside; ” according to the rule laid down in Dunham, v. Williams, 37 N. Y., 251, especially when we recall that the earliest deed in the defendant’s chain of title bounded the premises occupied by the defendant on the north by the south bounds of Main street.

Dunham v. Williams, supra, was referred to approvingly in Kings County Fire Ins. Co. v. Stevens, 87 N. Y., 287, and at the close of the opinion in that case Andrews, Ch. J., said: “ The side of the road may have been made the boundary of the land conveyed, upon the mistaken supposition that the company had acquired by the proceedings for condemnation the absolute title to the land taken, or some other reason may have existed for restricting the grant. But we have no guide in ascertaining the intention of the parties to the conveyance outside of the language of the deed, and upon this language, as interpreted by the courts of this state in analogous cases, we think the southerly side, and not the center of the Wallabout road, is the boundary.” We think the trial judge was warranted in applying that rule to the ease made before the special term.

(2) It was made apparent by the evidence upon the trial that the plaintiff and his predecessors in interest for more than twenty years had enjoyed the use of the well and had from time to time contributed to the expense for the maintenance of a pump therein, under an assumption of, and claim of right to, the use of water from the well.

The learned counsel for the defendant calls our attention to Burbank v. Fay, 65 N. Y., 65; in that case it was held “ no private use or occupancy, whether adverse or by permission, however long continued, will vest a title inconsistent with a public right, or will impair or affect the rights of the state.” It seems that the use made of the well in question by the plaintiff, as well as others, was not inconsistent with the public rights in the street; did not interfere with the right of way or public passage; on the contrary contributed to the comforts and needs of the public for a long series of years; and the enjoyment of the waters of the well and of the use of the pump by the plaintiff in no way tended to interfere with the public passage or use of the street or highway.

In Meyer v. Phillips, 97 N. Y., 489, referred to by the appellant,, the use made of a stream across the plaintiff’s land had been for only a few years in floating logs, and it was, therefore, held that there had been no easement acquired by prescription. We see nothing in the case which aids the appellant.

The evidence before the special term warranted the finding that the defendant contemplated not only removing the water by means of a conduit from the well into his enclosure, but that he threatened to, and contemplated a destruction of the pump. The-plaintiff had contributed and had a proprietary interest therein which the defendant was not entitled to destroy, as he threatened to do before the commencement of this action. We think from the evidence before the special term the conclusion reached that the defendant should be restrained from conducting the waters, away from the well, covering up and destroying the usefulness of the well, and taking down, removing or destroying the pump then in use in the well, towards the purchase of which the plaintiff had contributed, was warranted.

In The City of Cincinnati v. The Lessee of White, 6 Peters, 431, it was held: “ There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” In the course of the opinion in that case, in considering public dedications, and the dedication of an easement for the use of the public, it was said that the doctrine was applicable to dedication of lands to public use, and that the doctrine had been applied by that court “ to the reservation of a public spring of water for public use, in the case of McConnell v. The Trustees of the Town of Lexington, 12 Wheat., 582;" and the court added: “ The reasonableness of reserving a public spring for public use, the concurrent opinion of all the settlers that it was so reserved, the universal admission of all that it was never understood that the spring lot was drawn by any person, and the early appropriation of it to. public purposes, were decisive against the claim.” See Denning v. Roome, 6 Wend., 657.

. We think the decision made at the special term should stand-

judgment affirmed; with costs.

Martin" and Merwin, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J. Martin, J.

license: Public Domain

text:
    Edwin B. Root, Administrator, Resp’t, v. Charles A. Borst, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Replevin—Evidence—Memoranda.
    In an acti-'n of replevin for i he recovery of a catalogue of the posil io > < " stars, made by plaintiff while i i charge of an observatory, and t"h-" •■which was claimed by defendant, plaintiff was permitted to introduce in evidence, after objection, memoranda which he had made to be used in the preparation of a preface to the catalogue; plaintiff had been permitted to testify that he had made written memoranda preparatory to a preface, without objection. Held, that the introduction of the memoranda was not prejudicial to the defendant.
    3. Same—Cross-examination.
    A witness testified that plaintiff went to the National Academy of Science in 1886, and there gave a description of the catalogue. Upon cross-examination he was asked if he were present at the meetings of the academy at that time; if a pamphlet produced was a correct record of the session, and if he was secretary, to all of which he answered yes; he was then asked if the plaintiff there read selections from the catalogue, and, after objection being overruled, answered yes. Held, that the ruling was correct. ^
    3. Same—Production of letter of witness when not present. '
    H., a witness, upon cross-examination, testified: “ I had a correspondence with plaintiff; I had the impression that he had collected the position of stars.” After this testimony an adjournment was taken. At the next hearing plaintiff produced several letters received from H., and offered to read portions relating to the catalogue in evidence. They were objected to as incompetent, and that they were not shown to H. when present as a witness. Whereupon the court said: “ By way of cross examination cf H., I will receive them.” No objection "as to the genuineness of the letters was made, nor did defendant ask for time to produce H. to explain the letters. Held, that the admission of the letters was not prejudicial to the defendant.
    4. Same—Bes gestee.
    It appeared that application had been made to B. for the loan of some books.- When B. was upon the stand he testified: “I think plaintiff wrote to me in reference to the books.” As bearing, upon this question, letters of B. were produced by plaintiff. Held, admissible as part of the res gestos of the transaction.
    (Martin, J., dissents.)
    Appeal from a judgment entered in Oneida county upon a ■decision made by the circuit court without a jury in an action of •replevin wherein Doctor Peters, deceased, was plaintiff, he having died subsequent to the trial.
    Plaintiff in his complaint alleged that on or before the 17th day •of December, 1887, at Clinton, the defendant “ wrongfully took •and wrongfully detains from the said plaintiff ” the property described in the complaint; and the complaint alleged that plaintiff demanded a return of said property, and that the defendant refused to return and surrender the possession of the said property. In the complaint the property is described as follows, viz.: “ 1. A book (in quarto) forming volume 2 of Dr. Peters’ collection of star positions. The book contains also additions of J. Gr. Porter’s hand, and a few of Mr. Borst’s and of about or over 8,000 positions.
    “2. A manuscript, consisting of about 800 sheets (foolscap size, ruled and written closely on both sides). The nucleus of this MS is a copy from volumes 1 and 2 of the above mentioned collection, but compiled in Order of right ascension of the stars. It is in two parts, the first series of the stars being for the year 1850, .and the second for the year 1875. Included in this compilation are also the star determinations, made with the equatorial of the Tiitchfield Observatory, and it contains many notes of my hand.

      “3. A manuscript copy of the preceding (the sheets in large folio, written on both sides) made because the latter had become too overcrowded by the insertion of stars from other sources, formerly not considered. The following sheets will show incompleteness in several of the columns, especially in the first one.
    “4. Papers (in loose sheets, mostly in quarto) containing in Dr. Peters’ handwriting abstracts, intended to be inserted in the foregoing MS., from the various Greenwich publications, from the Madras, and from the Cape of Good Hope observations, etc., made by Dr. Peters.” .
    The answer contained a denial of the allegations of the complaint, and it alleged that the “plaintiff is not and never was entitled to the possession thereof or of any part thereof; and alleges that said defendant was on and before the 17th day of December, 1887, ever since has been and now is the lawful owner thereof and of each and every part thereof, and lawfully entitled to the possession thereof and of each and every part thereof, with the exception of the chattel in folio 7 of said schedule 1 A ’ attached to said complaint, described therein as follows, viz: 1A book (in quarto) forming volume II. of Dr. Peters’ collection of star positions; * * * which said chattel defendant alleges belonged on or before December 17, 1887, ever since has belonged and now belongs to the trustees of Hamilton College at Clinton, H. Y., and was duly delivered by said trustees on or before December 17, .1887, to defendant, and into his possession, and defendant alleges that he ever since has been and now is lawfully entitled to the possession of such chattel, and defendant alleges that he retains and holds the same and possession thereof by virtue of authority from said trustees and by virtue of a special property therein as aforesaid.”
    The court found as fact that the Litchfield Observatory, situated at Clinton, and the astronomical instruments and apparatus therein and connected therewith, belonged to and were the property of Hamilton College, a corporation located at Clinton. That since the year 1858 Dr. Peters had been the director of said observatory, having been employed by Hamilton College at an annual salary paid to him by said Hamilton College. That the defendant m 1881 graduated from Hamilton College and “ went to the observatory as an assistant and remained there as such assistant until about the 1st of January, 1888. That his salary for the first ^year was $500, and for the subsequent years $600 per
    . A*?0’ “ the duty of the said defendant as such assistant in the observatory was to aid and assist the plaintiff in the work carried, on at said observatory and he remained in that position until the trouble between the parties as to the ‘Star Catalogue’ began, about the 1st of January, 1888.” And also found that lir. Peters m 1850, while at Constantinople, and before he came to this country to reside, “ first conceived the idea of making a otar Catalogue.’ He then began to accumulate the material, using the book known in this case as‘Exhibit 1.’ This book was used for this purpose before and after he came to this country and became connected with Litchfield Observatory, and down to the year 1862. This book then became substantially filled with materials, about 7,800 star positions having been entered therein.” The court also, found that the exhibits 2, 4, 5, 6 and 8 are the chattels which are the subject of this action.
    The court also found “ That the plaintiff regarded this catalogue all along as his own work; that he never consented to surrender it to the defendant; that he intended to give defendant full credit for all he did upon or with reference to it. That the defendant as he became familiar with the work and learned how to manage its details, conceived the design of appropriating the whole work to himself, and depriving the plaintiff of all credit for, or reputation growing out of it. That defendant on or about the 17th day of December, in the year 1887, at Clinton, in the county of Oneida, wrongfully took and wrongfully detained from said plaintiff the articles of personal property known on the trial as exhibits 2, 4, 5, 6 and 8. . That prior to the commencement of this action the plaintiff duly demanded of said defendant the return of said property, which return the said defendant has refused.” The court also found: “ That the books and manuscripts known as exhibits 2, 4, 5, 6 and 8 were, at the time of the commencement of this action, the property of the plaintiff, who was then and is now entitled to the possession thereof; and the court, found the value of them to be $2,260 and that the plaintiff had suffered six cents damages by reason of the unlawful detention of said property.
    As conclusions of law the court found as follows :
    “ L That the books and manuscripts in question and the work intended to be published as a ‘ Star Catalogue,’ did not belong to the Litchfield Observatory or to Hamilton College.
    “ 2. That the property in these books belonged to the plaintiff and to him alone.
    “ 3. That the books and manuscripts known as exhibits 2, 4, 5, 6 and 8 were at the time of the commencemént. of this action the property of the plaintiff.
    “ 4. That the plaintiff is entitled to recover from defendant the possession of the chattels known in the action as exhibits 2, 4, 5, 6 and 8, the value of which is hereby affixed at $2,260, with six cents damages, and, the costs of this action.
    The defendant seasonably filed exceptions to the findings of the court as to the facts and as to the law, and made several requests for additional findings, some of which were yielded to and some of which were refused. The trial was commenced January dl, 1889, and on the 1st day of February it was adjourned to the 7th day of February. . ,7 „ , ■,
    . ,7 „ , William, Kernan, for app’lt; K D. Matthews, Ehhu Boot ana H. M. Love, for resp’t.
   Hardin, P. J.

—Upon carefully reading the evidence found in the appeal book, we see that there is a conflict in the evidence m respect to the paramount question involved in the issue between the parties. Plaintiff asserted upon the trial property in and ownership of the articles described in the complaint and particularized in the evidence. Defendant, as a witness, contradicted the plaintiff in many respects and called witnesses tending to substantiate the position taken by the defendant. On the other hand, the plaintiff as a witness, and with other witnesses more or less supporting his theory of the case, gave evidence tending to show an ownership of the property in question. The trial judge saw and heard the witnesses at great length; he had an opportunity to investigate their frankness, honesty and intelligence and freedom from bias, or to discover their mistakes or coloring of circumstances and events to favor the theory put forth by the party in whose interest the testimony was given. The trial judge “ has made up his mind where the right and truth lies.” We are not prepared upon a careful inspection of the evidence to interfere with his findings upon the conflicting evidence. See Roosa v. Smith, 17 Hun, 138; Baird v. The Mayor, 96 N. Y., 567; Lowery v. Erskine, 113 id., 52; 21 St. Rep., 917; Murray v. Murray, 41 id., 428; Moulton v. Cornish, id., 41.

(2) After the defendant had rested, the plaintiff was called to the stand, and testified that the defendant had asked him to write a preface; and he added: “ He did not ask me to write the preface for him as a preface for his work. After the talk about making a preface I did not commence the preparation of notes for making a preface. These written memoranda which I now produce I made during the progress of the work, which I intended' to use in the preparation of the preface.” The case then states, viz.: “ A package of papers being the memoranda in question were here marked Exhibit Ho. 58, and were offered in evidence by the counsel for the plaintiff Counsel for the defendant objected to them as incompetent and not evidence against the defendant. Court overruled the objection and admitted the evidence, to which ruling and decision counsel for the defendant excepted. Papers were read in evidence, and may be produced by either party on argument of. the case.

“ The court said: I receive this upon the theory which we have received more or less evidence of which Mr. Borst did, which, it is claimed, were brought to the knowledge of the plaintiff. Eor example, the memorandum which was brought before; the exhibits 4 and 5; it is not claimed that the doctor saw that.” The exhibit is not printed or found in the appeal book. The plaintiff was allowed to testify that he had made written memoranda preparatory to a preface, without objection. Ho witness was called to contradict the plaintiff in that regard. We see nothing in the ruling prejudicial to the defendant.

(3.) During the cross-examination of Dr. Hall he was asked if he was present at a meeting of the Hational Academy of Science at Boston in Hovember, 1886, and he testified that he was; and he also testified that the pamphlet produced was a correct record of the session, and that he was secretary. He was then asked, viz: “ Q. Were you present at that meeting when the following papers were read by Dr. Peters: (Beading from pamphlet) ‘Ho. 13, Peters, C. H. F., catalogue of stars from position in various astronomical periodicals?’ ” This question was objected to, and the objections were overruled, and the defendant excepted. The witness answered “I was present.” The defendant had testified that. “ Dr. Peters went to Boston in the fall of 1886.” He also testified “he went to'the Hational Academy of Science, and gave a description of this catalogue, and did not tell me anything about it.’ It seems the defendant saw some notice in the Tribune, and held a conversation with Dr. Peters after he came back in respect to the “ description of the catalogue ” made at the meeting. We think the ruling made by the court was not erroneous.

(4.) The defendant testified that “Dr. Hall visited Dr. Peters at the observatory in August, 1885. Dr. Hall and myself had the conversation in the observatory. Dr. Peters was present.” The defendant then details a conversation held with Dr. Hall, and adds again, viz: “This conversation was in Dr. Peters’ presence. He sat in the chair at the desk, smoking his cigar and looking out of the window.” Dr. Hall was called by the defendant as a witness, and testified to the interview held" with the defendant in August, 1885, at the Litchfield observatory; and he says: “ There was only one occasion when we were examining the manuscript, and had a talk about it in the observatory. 1 know the Doctor was about the observatory.” The witness adds, “Hot a word was said by Dr. Peters.” When Dr. Peters was called to the stand he testified as follows': “I heard the defendant sworn and heard his statement as to the conversation with Dr. Hall. I was not at that time, or at any time, present, nor did I hear any such conversation. I was not present at the conversation between him and- Dr. Hall, which he gave. I remember when Dr. Hall visited Clinton, the year he refers to.” In the course of the cross-examination of Dr. Hall, he mentioned, viz.: “I had a correspondence with him (Dr. Peters).” He also testified: “I have this impression that Dr. Peters had collected the positions of stars, and I knew of it and saw some memoranda of it.” It seems that after Dr. Hall’s testimony was given the cause was adjourned from the 1st of February to the 7th of February, and on the adjourned day the plaintiff, being upon the stand, produced several letters received from Dr. Hall dated in 1886, and offered to read them in evidence.. They were objected to as not competent and “ that they were not shown to Professor Hall and his attention was not called to them when here as a witness on the last hearing.” Thereupon plaintiff’s counsel offered to read from the letters paragraphs which related to the catalogue. Plaintiff’s counsel stated the letters show Dr. Hall’s understanding as to whose catalogue this was, and they show that he could not possibly have received an impression from any conversation that this was the defendant’s catalogue. Thereupon the court said: “ By way of cross-examination of Dr. Hall I will receive, them.” The court overruled the objection and admitted the letters in evidence, to which ruling and decision the counsel for the defendant excepted. (The letters were here read in evidence.) We think we should not disturb this decision on account of this ruling:

First. The genuineness of the letters- was not objected to by the defendant, either at the trial or upon the argument before us. Apparently the letters were shown to the defendant when he was upon the stand as a witness and he admitted the handwriting of Professor Hall.' The theory upon which the plaintiff produced Professor Hall’s letters was that they were inconsistent with his testimony and were offered and received by the court for: the purpose of impairing his credibility.

In Romertze v. East River National Bank, 49 N. Y., 581, Chief Judge Church, after reviewing the authorities bearing upon the-rule of evidence, observes “ The result of all the authorities is-that it is sufficient for a party, proposing to impeach a witness by proving inconsistent written statements, to show him or read to him the paper, and, if its genuineness is admitted, to introduce it; when he has a right to put in evidence; and that it is not the legal right of the other party or the witness to enter into any explanation of the contents of the paper until after it has been introduced in evidence. The court may doubtless permit the explanation in the first instance and may vary the order of proof in this as in many other cases for the purpose of elicting truth and preventing injustice. Many questions of this character are within the discretion of the court.” In that case it was held that, “ The; plaintiff offered the paper at the right time and it was error to reject it.”

In Clapp v. Wilson, 5 Denio, 285, it was held, “A party in a suit may give in evidence, to impeach the credit of a witness of his adversary, a written or sworn statement of such witness, made on another occasion, contradicting his testimony then given, without calling the attention of the witness to it, otherwise than by giving it in evidence on the trial.”

If the defendant had asked for time or opportunity to produce the witness to explain the letters, doubtless it would have been error to have used the discretion in such a .way as to deprive the defendant of Professor Hall’s explanation. Perhaps, however,, we ought not to assume that he was not present. We think inappropriate to quote the language of Danforth, J., in Neil v. Thorn et al., 88 N. Y., 276, as applicable to the suggestion made by the counsel for the appellant: “If the defendants were prejudiced by the ruling, it was their duty so to present the case upon appeal that his absence and their inability to obtain him should be made-apparent A witness once summoned and called to testify upon-a trial is presumed to be present until its conclusion. It is his. duty to be in court, and without consent of the opposite party or permission of the court he could not lawfully leave. Had it. appeared that the witness left the court and -was not present when wanted, it would have been in the discretion of the judge to suspend the trial until he could be again brought in. Rapelye v. Prince, 4 Hill, 119. If that was refused, the defendant might, perhaps have bad the benefit of an exception.”

It seems tfie object of showing a letter or document to a witness is to give him an opportunity to admit or deny its genuineness. It is apparent that the genuineness of Professor Hall’s letters was admitted at the trial, as no question was made there, or is made before us, as to the genuineness.

Second. We think from the appeal book it is manifest that the plaintiff offered the letters of Professor Hall for the purpose of bearing upon his credibility, or perhaps, more correctly speaking, the accuracy of his memory, and were intended to be received by the court for no other purpose.

We are inclined to agree with the counsel for the appellant that “ the letters do not contradict the testimony of the witness given in the trial” in any essential respect; and we think we should be warranted in saying that their admission was not prejudicial to the defendant. ,

(5) During the examination of the parties, it appeared an application had' been made to Professor Boss, of the Dudley Observatory, for the loan,of some astronomical books, known as “ the volumes of the Mchtrichten.” When Professor Boss was upon the stand he testified : “I think Dr. Peters wrote to. me in reference to the books.” A question arose in the evidence whether the books were written for' by the defendant or by Dr. Peters,,and as bearing upon that question the letters of Professor Boss were produced by the plaintiff, and when an objection was made to their reception, the court observed: “ The object of the letters is to show that the volumes were sent to the plaintiff.” We think they were admissible as part of the res gesta of the transaction, and that no prejudicial error was committed by the court in overruling the objection to the letters of Professor Boss.

Upon a careful examination of the appeal book we have not found any “strong grounds to believe that the merits have not been fully and fairly passed upon ” by the trial court, and we discover nothing in the case to indicate that a new trial would be more likely to result in a more just conclusion than the one reached at the circuit. Hotchkiss v. Germania Fire Ins. Co., 5 Hun, 102.

Our conclusion is that the decision made at the circuit should remain.

Judgment affirmed, with costs.

Merwin, J., concurs.

Martin, J.

(dissenting)—On the trial the plaintiff was permitted to introduce in evidence memoranda which he had made to be used in the preparation of a preface to the catalogue which was the subject of litigation. This evidence was objected to as incompetent and not evidence against the defendant. The court overruled the objection and admitted the evidence, and the defendant excepted. The papers were then read in evidence and were produced upon the argument of the case. It will be observed that these written memoranda were made by the plaintiff, had never been seen by the defendant, and were at most written statements made by the plaintiff in his own favor. I think the admission of this evidence was error

The plaintiff was also permitted to introduce thiree letters' received by him from Professor Boss, to show that certain books were sent to the plaintiff and not to the defendant. These letters were objected to by the defendant, the objection overruled, and the defendant excepted. I think this exception was well taken,

I am also of the opinion that the court erred in admitting in; evidence the letters of Professor Hall, which were objected to on the ground that they were not competent and that they were- not. shown to Professor Hall or his attention called to them when he was upon the witness stand.

The correctness of the decision in this case is not sufficiently manifest to justify a disregard of these errors. For these, and. other errors committed on the trial to which special attention! need not be given, I think the judgment should be reversed and aj new trial ordered.

Judgment affirmed, with costs.


author: Landon, J.

text:
    James C. Bell, Resp’t, v. George W. Skellen et al., Ex’rs, Impl’d, App’lts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    2. Mortgage—Foreclosure.
    H. & C. were partners under an agreement by which in ease of' the-' death of either the business was to be continued until the expiration of five years, the estate to share in the profits and losses. C. died and appointed defendants Skellen and Colwell his executors. H. carried on the-business, and to secure plaintiff for the purchase price of real estate contracted for by the firm during C.’s life gave him a purchase money mortgage thereon, paying the balance of the price out of partnership fu ds. The mortgage in suit was given with the written consent of the executors-for money borrowed by H. of plaintiff to be used in the business, H. at. the same time giving a mortgage upon his individual property for the same debt, and three years later made a ge eral assignment. ■' eld. that H. held_ the title to the real estate as survivor, and had the power to mortgage it in aid of the proper business of the survivorship, and that the. mortgage as between the plaintiff, who loaned his money on it, and C.’s estate, whose representatives approved the loan, was valid and binding according to its terms, and not subject to any defense based upon a repudiation of the consent expressly written upon it by such representatives.
    2. Same.
    That equity required that the debt thus contracted should be satisfied from the mortgaged property of the firm before a recourse be had to the individual property of H., also at the same time mortgaged for the same debt.
    Appeal from a judgment of the general term of the second department, affirming a judgment of foreclosure and sale, entered upon the decision of 'the court upon the trial at the Westchester special term.
    The action was to foreclose a mortgage made to the plaintiff by the defendant Samuel S. Hepworth, as survivor of the firm of S. S. Hepworth & Co., June 26, 1884, to secure the payment of $23,000 and interest. Joseph Colwell in his lifetime and Samuel S. Hepworth were co-partners in business under the name of S.. S. Hepworth & Co., in the manufacture and sale of certain machinery, at first under articles of agreement made February 22„ 1878, which provided that the partnership should continue for five years from January 1, 1877, and containing the provision that “ should either partner die during the term of said co-partnership," the firm shall not be deemed dissolved thereupon, but the wife and children of the decedent shall immediately succeed to his interest, which thenceforward shall be prosecuted for the-remainder of the term for the benefit of them and the surviving partner. Either partner may designate by will what interest his wife and children, as between themselves, shall have in his said .co-partnership interest in the event of his death as aforesaid.”
    On the 18th of October, 1881, and before the expiration of the five years, the parties made a further agreement that the co-part-, nership should continue until dissolved by mutual consent, or terminated by six months notice in writing by one party to the other, and that “ in the event of the death of either, the business shall be continued by the survivor until the expiration of five years from the first day of February next'succeeding such death, the estate of the deceased partner to have the same share and interest in the profits, and to bear the same share of the losses of the business as would have been received and borne by the deceased partner had he lived.”
    . The firm business was thereafter continued under these agreements until June 1,1882, when Colwell died leaving children, and .a will made subsequent to the last mentioned agreement. He appointed these appellants and one Robinson executors and trustees, and gave them, in trust for his children, the greater part of his estate. The will made no reference to the firm business, but gave his executors power to continue any existing investments and revoked all former wills. After Colwell made his will, the partners made a contract with the plaintiff to purchase from him the premises covered by the mortgage in question.
    After Colwell’s death, Hepworth as survivor continued the partnership business. Colwell’s executors did not participate in carrying it on, nor did Colwell’s children. The plaintiff gave the deed of the premises in question Hovember 80, 1882, after Col-well’s death, to “ Samuel S. Hepworth, survivor of the firm of S. S. Hepworth & Co." The consideration was $18,000, $15,000 of which was secured by a purchase money mortgage to the plaintiff, made by “ Samuel S. Hepworth survivor, of the firm of S. S. Hep-worth & Co.,” and the balance was paid by said Hepworth out of the funds of the partnership estate. The mortgage in suit was given about two years later for money borrowed by Hepworth of the plaintiff to be used in the business still carried on by him under the name of S. S. Hepworth & Co., and the money was used in said business.
    Hepworth continued to carry on the business as survivor until October 4, 1887, when he made a general assignment both individually, and as survivor, for the benefit of both his individual .and the firm creditors.
    . At the timé of Colwell’s death the value of his interest in the firm property and business was $50,000.
    The plaintiff at the time of talcing the mortgage in suit was acquainted with the facts. Colwell’s executors and trustees did not object to Hepworth’s carrying on the firm business as survivor. September 30, 1884, they loaned him of the astets of Colwell’s estate $35,000 to be used in the business of S. S. Hepworth & Co., and took from him individually and as survivor a mortgage upon the premises in question as security fór the payment thereof. The defendants and Bobinson as executors and trustees were parties to the mortgage now sought to be foreclosed, not, however, to the obligations thereof, but for the purposes expressed in the following recital contained therein: “And, whereas, the business of the said copartnership has, since the decease of said Joseph Colwell, been continued and is now continued by the said Samuel S. Hepworth, as survivor as aforesaid, who alone is charged with the conduct and management thereof. And, whereas, it has become necessary in conducting, managing and continuing the said business to the best advantage as well to the said Samuel S. Hepworth as to the interest of the estate of the said Joseph Colwell that the real estate and. property of the said firm, hereinafter particularly described, should be mortgaged for the purpose of securing the payment of the loan hereinafter particularly referred to. And, whereas, the said George ‘ H. Bobinson, George W. Skellen and Frank W. Colwell, executors and trustees as aforesaid, as parties of the second part, have consented and do hereby consent to the loan hereinafter particularly referred to, made by the party of the third part hereto, and have consented and do hereby consent to the mortgaging of the real estate and » the property of the said firm hereinafter particularly described for' the purpose of securing to said party of the third part the sum or sums hereinafter mentioned, and at the times and in the manner hereinafter mentioned and described, and have stated and declared and do herein and hereby state and declare that the moneys secured by these presents are for the uses and benefit of the business of said firm, as aforesaid; and that the said Samuel S. Hep- • worth, as survivor as aforesaid, is alone fully authorized and empowered to make, execute and deliver this instrument securing the loan herein mentioned and binding the property herein described with its payment, to all intents and purposes, as herein provided.”
    The defendant Hepworth at the time of giving the mortgage in suit also gave a mortgage to the plaintiff for the same debt upon certain of his individual real estate.
    The appellants insisted that the mortgage in suit was the individual debt of Hepworth, and that the mortgage given by him upon his individual estate should first be foreplosed and the proceeds applied upon the debt Also that the mortgage in suit was subject to the lien of $50,000, which the trial court found was the value of Colwell’s interest in the partnership at the time of his death.
    The trial court refused so to hold, and directed the usual judgment of foreclosure and sale. The general term affirmed the judgment entered upon the decision of the trial court.

      Wm. B. Ellison, for app’lts; Wm. Allen Butler, for resp’t.

       Affirming 22 St. Rep., 114.

   Landon, J.

—In Stewart v. Robinson, 115 N.Y., 328; 26 St. Rep. 117, an action in which was involved the effect of the partnership agreements between Colwell and Hep worth upon the right of Hep-worth to continue as survivor the partnership business after the death of Colwell, and upon the liability of the assets of his estate outside of the firm business to be charged with the debts created . by the survivor after Colwell’s death, this court passed upon several questions material to the decision of the present appeal. It was held in that case that the partnership ended with the death of "Colwell; that Hep worth, as survivor, could not thereafter bind •Colwell’s estate outside of his interest in the assets of the late firm; that the will of Colwell did not by its terms authorize his executors and trustees to embark in the partnership business with Hep-worth, and they had not done so, and therefore no new partnership was created; that whether the agreement between Colwell and Hepworth for the continuance of the business of the firm for five years after the death of either partner, was or was not binding upon the estate of Colwell, if the estate had chosen to resist it at the outset, it was not unlawful for the executors and trustees to acquiesce in it, and await for five years the winding up of its affairs ; that in such case only the capital and property which the deceased partner had put into the firm business could be compulsorily continued in it' after his death ; that the survivor, from the moment of Colwell’s death, became'the sole and absolute owner of the assets of the late film, and was charged with the duty of winding up the firm estate, and doing all the acts relating to it, and thereupon accounting to Colwell’s estate for its proper share of the net proceeds. The court then said: “ The estate of Colwell had a pecuniary interest in the winding up of the concern, and so that period did not exceed the limitation of five years from their testator’s death, they (the executors and trustees) were not required to: interfere. They might do what they could to promote its sue-, cessful business.”

Mothing appears in the present case tending to impeach the soundness of these conclusions. It follows that the acts of Hep-worth, as survivor in continuance of the firm business after the death of Colwell, done with the consent of the executors and trustees with the view to promote the success of the business, were not unlawful, and that the mortgage in question being one of such acts of the survivor, executed for the purpose and with the consent mentioned, was, as between the plaintiff, who loaned his money upon it, and Colwell’s estate, whose representatives ap- . proved it, valid and binding according to its terms, and not subject to any defense based upon a repudiation of the consent expressly written in it by such representatives.

As between the parties to the mortgage it was the act of the survivor of the firm holding the title to the property and charged with the administration of the business and assets of the late firm, and therefore binding the mortgaged property, and that any lien of Colwell’s estate upon the firm property was thereby postponed to the lien of the mortgage. Hoyt v. Sprague, 103 U. S., 613. Equity requires that the debt thus contracted should be satisfied from the mortgaged property before recourse be had to the individual property of Hepworth, also at the same time mortgaged for the same debt.

The discussion would rest here except that we think it proper to notice some of the positions taken by the appellants. They assail the validity of the provision of the partnership agreement between Colwell and Hepworth which authorized the surviving partner to continue the partnership business for five years after the death of either partner. They claim that this is in effect a testamentary provision without the statutory formalities of execution, and if that objection is invalid, that its effect is to suspend unlawfully the alienability and absolute ownership of personal property of the estate continued for five years in the business of the survivor. The general question thus presented is an open one in this court. National Bk. of Newburgh v. Bigler, 83 N. Y., 51.

It may, however, be remarked with respect to this partnership agreement that, if valid, its effect would be, as held in Stewart's case, to leave in the partnership business for five years the amount which Colwell had in it at the time of his death. That would practically be a loan of that amount to the survivor for five years, subject to the gain or loss of the business. The survivor would be the sole owner and manager of the business and property, and Colwell’s estate would not, beyond the amount thus continued in the business, be liable for new debts. Thus the estate would have an investment in the business, and as in the case of other investments having five years in which to mature, the executors could sell or otherwise dispose of it in the course of due administration whenever opportunity offered. The value of the asset, but not its disposability, would be affected by the conditions of its investment

But the case does not require us to hold that the contract for the continuance of the partnership business was valid. It was not necessary in Stewart’s case, and is not necessary now. The court in Stewart's case assumed that a provision for the continuance of the partnership business, if made in the will of the deceased partner, would be valid, and held that if the like provision in the contract of partnership was also valid, its terms must necessarily be construed as strictly as in case of a will, and the court ascertained the measure of that strictness of construction with respect to a will, and applied the same measure to this contract, and thus found that if the contract were valid, its terms did not give creditors in respect of debts .incurred by the survivor after Colwell’s death any recourse against his estate other than the part thereof continued in the firm business, and gave them none against the executors and trustees, for they were not partners in any new firm.

But the court was clear in its expression that although the executors and trustees might not have been bound by the contract, and might have taken instant steps to compel Hepworth, as survivor, to wind up the partnership business, they were not bound to do so.

This was said in respect of the rights of general creditors who became such -after the death of Colwell, and with the view of ■showing why their recourse was limited to the firm property, and that acquired by the survivor. It was' based upon the assumption that the continuance of the business was lawful as to those interested in it either as lienors or actors so long as they assented to it.

While the strict duty of the survivor is to wind up the firm business and not to continue it any further than is necessary for that purpose, it is obvious that the continuance is not unlawful as to those who consent to it. It may be beneficial to all parties in interest that it should be continued. But of course there are hazards, and the most hopeful prospect of gain may result in loss. In the present case, the survivor apparently had the right to continue the business under the firm articles. The executors and trustees apparently thought so.' They were vested by the will with the title to the lien of the estate upon the firm business and property. They were authorized by the will to retain, without change, the testator’s investments as they existed at his death. They knew that the business had been prosperous. They were not simply executors charged with administering Colwell’s estate, but were trustees holding title to.the lien upon the film assets, and were acting with the view of increasing its value. They were not limited by the restrictions imposed upon executors, Schmittler v. Simon, 101 N. Y., 554, but they had the larger powers of owners of the lien. For their own personal protection, they needed to act with prudence and discretion, and the facts just referred to would be pertinent to the consideration of that question, but as between themselves and the other parties to the mortgage they had the legal right as trustees and owners of the lien upon the firm assets to give or withhold their consent to the mortgage. Hepworth held the title to the real estate as survivor, and had the power to mortgage it in aid of the proper business of the survivorship. Williams v. Whedon, 109 N. Y., 333; 15 St. Rep., 265; Durant v. Pierson, 124 N. Y., 444; 36 St. Rep., 463. Whether the continuance of the business for a time before winding it up was a proper business was, so far as the plaintiff’s rights were involved, to be determined by the survivor and the -trustees. By executing the mortgage they determined it in plaintiff’s favor, and as between Hepworth and Colwell’s estate they determined it in favor of Hepworth.

The effect of the transaction was that the mortgage became a lien upon the mortgaged property in preference to the lien of Col-well’s estate, and to the extent of the moneys to be realized upon it in exoneration of Hepworth’s individual property.

The judgment shotild be affirmed, with costs.

All concur.


author: Maynard, J.

text:
    In the Matter of the Petition of Hugh M. Stanfield.

      (Court of Appeals,

      Filed October 4, 1892.)

    Will—Bequest in trust—Interest.
    Whore the income of an estate, or of a designated portion, is given to a legatee for life, he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time.
    Appeal from judgment of the supreme court, general term, first department, affirming order of surrogate.
    Lowrey, Stone & Auerbach, for app’lt; Wm. A. Boyd, for resp’t; John Notman, for general guardian.

       Affirming 46 St. Rep., 346.

   Maynard, J.

—The respondent is given in the will of his father the income of twenty thousand dollars for life. The estate was inventoried at three hundred thousand dollars. There were bequests of the income of various sums aggregating, with the respondent’s, eighty-five thousand dollars. It is undisputed that after the payment of all just debts, the income bearing principal of the estate will be largely in excess of this sum. The decedent’s property was so invested at the time of his death as to be productive of revenue, and the income received by the temporary administrator and the executor, from May 28, 1890, to February 12, 1892, was over thirty thousand dollars, or at the annual rate of six per cent upon its inventoried value. The executor is directed in the will to invest twenty thousand dollars in bonds and mortgages, or government bonds, and pay over the income to the respondent; but this investment has not been made. Upon a proceeding properly instituted, the surrogate’s court made an order directing the executor to pay the respondent the interest on ten thousand dollars at the rate of three per cent annually from the testator’s death until the further direction of the court. Both parties appealed to the supreme court, where the order was affirmed, without costs, and the executor has brought this appeal, upon which the attorneys for the residuary legatee also file a brief for a reversal of the order.

Where the income of an estate, or of a designated portion, is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary or of administration, Matter of McGowan, 124 N. Y., 526; 36 St. Rep., 686, has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent’s estate. In the present ease, the bequest is not of a part of the principal of the estate, or of any property possessed by the testator in his lifetime; but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondent’s legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself, and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies.

It is argued that the bequest of the income to the respondent and of the principal sum, out of which it is to arise, to the residuary legatee, are to be treated as but one legacy payable to different persons; and that as the executor is directed to invest the principal sum in a certain class of securities and pay over the income to the respondent, he has the statutory year in which to make the investment; and that thus the case is brought within the operation of the rule upon which appellant relies. Such a construction cannot be adopted without doing violence to the language of the will. The gift of the income is independent of the gift of the principal, and the right to the income does not depend upon the investment, but was created and exists regardless of it. The direction to the executor, with respect to the investment of the fund, has reference to the administration of the trust, and cannot be available to defeat the legatee’s title to income accruing previously to the time when the investment is required to be made. Until it is made an equivalent in value of the property out of which the fund is to be raised must be deemed to stand in place of the investment, and whatever income arises from it meanwhile belongs to the legatee to whom it has been expressly given.

The rule which deprives the legatee of interest upon a general legacy for the period of one year is not founded upon any presumed intent of the testator. It had its origin in the ecclesiastical courts,' and was, to a certain extent, a rule of convenience. It was, also, in part, the outgrowth of the ancient doctrine that the assent of the executor was necessary to complete and perfect the title of the legatee, and to authorize.him to take possession of his legacy, and the period of one year from the testator’s death was fixed upon as a reasonable time in which the executor must determine whether he would take upon himself the execution of the will. At the end of that time he was required either to renounce the appointment or be prepared to liquidate the debts and legacies.

When this rule was adopted, the principal, if not the sole, assets of a decedent’s estate were, ordinarily, not interest bearing or income producing; and hence there was both justice and propriety in deferring not only the time of payment of a legacy, but also the right to interest thereon, until the personalty could be converted into money for its satisfaction. At the present time the personal estate of a testator is frequently made up of securities, or investments bearing interest, or yielding an income, and in such cases there does not seem to be any rational grounds upon which the rule can rest, except for such brief period of time as the money required to pay the legacy is actually lying idle and uninvested in the executor’s hands. The executor must account for the increase of the estate from the testator’s death, and so it will often happen that such increase will fall into the residuary-estate and go to the legatees but remotely entitled to the testator’s consideration, to the prejudice of general legatees who had the principal claim upon his favor, and for whom he undoubtedly intended to make immediate provision. Such would be the practical result in this case if the appellant succeeds in its contention. The income of $20,000 given to the respondent, a son of the testator, would, for a period of nearly fourteen months, be wrested from him and paid to the residuary legatee, a grandson, who is otherwise munificently remembered in the will.

We are asked to cause this to be done, not by virtue of the command of any statute, but because a rule formulated under different conditions than now exist, and founded in part upon a legal fiction, seems to require it While we recognize the binding force of the rule, we are not disposed to extend the field of its operation to other than general legacies, payable out of the body of the testator’s estate. There is no difference in principle between the gift of an annuity and the gift of income, with respect to the time when each begins to accrue, and it is conceded that an annuity is payable from the death of the testator, unless a different time is prescribed in the will It is true that an annuity usually consists of a gross sum payable in any event, while income must depend upon the earnings of the estate, or some part of it, after deducting lawful charges and commissions, and,' of course, if not earned cannot be paid.' But this is a contingency which affects not the quality of the gift, but its amount and the certainty of payment. If the estate is sufficient for the liquidation of debts and other charges, and is so invested as to be productive of income from the death of the testator, a bequest of income to a legatee for life must be construed to invest him with a title to such income from the date of the testator’s demise'; unless there is some provision in the will from which a contrary intent is to be inferred. The statutory time of payment of the income to the legatee is not affected by this construction. He must still wait, as the respondent did, until the expiration of one year from the grant of letters before payment of the income can be demanded; but he is then entitled to his share of the net income which has previously accrued.

There are many authorities which support our conclusion in this case. Cooke v. Meeker, 36 N. Y., 15; Pierce v. Chamberlain, 41 How., 501; Matter of Lynch, 52 id., 367; Powers v. Powers, 16 St. Rep., 770; Barrow v. Barrow, 29 id., 240; Matter of Fish, 19 Abb. Pr., 209; Craig v. Craig, 3 Barb. Ch., 76; Hilyard’s Estate, 5 Watts. & S., 30; Eyre v. Golding, 5 Binn., 472.

We would have been content to have affirmed this order upon the áuthority of the case of Cooke v. Meeker, supra, but it has been repeatedly insisted in the surrogate’s courts that the views of the learned chief justice upon the point here involved were obiter and, therefore, not authority to sustain the claim of the respondent; and that the decision of the case turned upon the fact that the legatee was a minor; and that the gift of income was intended for her support and maintenance; and that the case was, therefore, brought within a well-known exception to the general rule with reference to the payment of interest upon legacies. We do not so read the opinion. While the plaintiff was a minor, it does' not appear that the testator stood in loco parentis to her, or that there were any words in the will indicating that the bequest was for her support, further than the direction that the income of a specified sum was to be applied to her use during her lifetime. There were other like bequests of income, some of which were to adults; and the court evidently intended to lay down a general rule for the guidance of the executors and trustees with respect to all such legacies in the will. At page 19, it is said: “ The weight of authority, undoubtedly, now is in favor of allowing the payment of annuities, or incomes, to commence at the testator’s death; ” and again, at page 22, after reviewing the cases : “ The authorities would seem abundant, therefore, to sustain the doctrine that when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s death.”

The order must be affirmed, with .costs to the respondent, to be paid out of the residuary estate.

All concur.


author: Peckham, J.

text:
    In the Matter of the Application of The Mayor, etc., of New York, to Acquire Title to Lands, etc.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Eminent domain—New York city—Taking property to construct piers, etc.—“Private” use.
    The condemning of land along the river front of New York city, to be used for piers, etc._, set apart to the sole use of special kinds of commerce or of steamboats, is not unlawful as providing for a primte use of such . property.
    2. Same.
    The fact that the property or some part of it is already in use by a railroad or gas company, does not prevent its being condemned for wharf purposes.
    Appeal from orders of the supreme court, general term, first department, affirming orders appointing commissioners to appraise value of property.

      Henry H. Anderson, for app’lt; Charles Blandy, for resp’t.

       Affirming 45 St. Rep., 937.

   Peckham, J.

—In the above title are comprised three separate and distinct proceedings on the part of the city authorities to acquire title to the lands particularly described in the several petitions.

The land described in the first petition is situated'between Thirty-Fourth and Thirty-Fifth streets, and belongs to the New York Central & Hudson River Railroad Company, although the legal title thereto is vested in the individuals Cornelius and William JL. Vanderbilt. It is used by the company for the purposes of its. business.

The fee of the land described in the second petition, and which, lies between Thirty-Fifth and Thirty-Sixth streets, belongs to the estate of the late Marshall 0. Roberts, and the property has been leased by the executors of his will to the New York Central & Hudson River Railroad Company for purposes connected with the business of that corporation.

The land described in the third petition, and lying between Forty-First and Forty-Second streets, belongs to the Consolidated Gas Company of the city of New York, and is in use by that corporation for its own purposes.

The proceedings to acquire the various interests connected with these lands were inaugurated by the city authorities in the due prosecution of the general plan duly adopted by the proper city officers, pursuant to the various statutes relating to the construction, possession, ownership and maintenance by the city of piers and bulkheads in the North and Bast rivers.

The application for the appointment of commissioners to appraise the value of the property to be taken was opposed in each instance by those owning or interested in the property. At spe-. cial term the application was in each case granted, and the general term, upon appeal, affirmed the order appointing the commissioners. An appeal has been taken from each order to this court.

The parties who oppose these proceedings' do so upon three principal grounds. .

(1) They maintain that the act which permits the city to appropriate any of the wharfs, piers, etc., to the sole use of special kinds of commerce or of steamboats, and also to lease the piers or property, does thereby in effect provide for a private use of such property, and they say that property which is intended for private use cannot be acquired against the will of its owner by the exercise of the power of eminent domain either by the state itself, or, as in this instance, by its agent or substitute, the city of New York. (2) .They claim that the property or some part of it is already devoted to public use by the railroad and the gas companies and cannot be condemned to any other public use undpr a general act of the legislature. (3) They also urge that the statute contemplates a real and actual, although ineffectual attempt to agree upon a price to be paid for the land, as a condition precedent to the right of the city to exercise the power of eminent domain, and in each of these proceedings it is contended that no real bona fide attempt to agree upon such price was eYer in fact made.

■ The first ground taken by the owners, if tenable, is conclusive in their favor. It strikes at the foundation of the whole proceeding and no step can be taken which will avoid the objection. Private property cannot be taken for private use against the will of its owner, even upon full compensation being made. The objection raises a most important question. If the privilege of leasing to a particular steamship line, to the exclusion of all others, certain parts of the water front upon which a bulkhead and a pier have been erected, make the use of the pier a private use, one owner o£ wharfage rights may refuse to sell and thus absolutely prevent the building of a pier in that locality by the city and thus also obstruct to that extent the development of the general plan for docks and piers adopted by the officers of the city under authority of the legislature. The learned counsel for the owners cites' many cases to show that the use to which the property is to be applied must be a public use. The question whether or not it be such an use is a judicial one. There is, as I think, unquestionably a distinction between the use which is public and an interest which is public, and where there is simply a public interest as distinguished from a public use the right of eminent domain cannot be exercised. The interest may be of a public nature when the use may tend incidentally to benefit the public in some col’ lateral way. In such case the right to take property in invitun does not exist.

Speaking in general terms I should say that the public must, under proper police regulations, have the right to resort to the land or property for the use for which it was acquired, independently of the mere will or caprice of any private person or ■corporation in whom the title to the property would vest upon condemnation. Otherwise the use could not be public. Cases might be cited which declare such principles. The case of In re Eureka Basin, etc., 96 N. Y., 42, supports this general doctrine. In that case the use to which the company intended to put the land that it desired to acquire was held not to be a public use, and among others one reason for so holding was the fact that when acquired no one would have the right to resort to it upon any terms whatever against the arbitrary will of the company. It was also held that the company itself was not proceeding in good faith.

So also in regard to highways. It has been truly said it is not the amount of travel upon a highway which distinguishes it as a public instead of a private road. A private road might have the larger amount. It is the right to. travel upon it by al"l the world, and not the exercise of the right, which makes it a public highway.' A public highway to which the public had not the right of access would be an impossible creation. And so a public use might generally be defined as the use which each individual might of right demand upon the same general terms and for the same general purposes as any other individual.

These general definitions, however, do not always cover the case. The statement that the land must be intended for such use that all the public may resort to it upon the same terms was correct undoubtedly in those cases in which the rule itself has been thus formulated. It does not, however, accurately describe, for instance, the public use of the land which has been taken for railroad purposes.

The public has a right of access to the various stations of the company, which right is necessary to enable the public to avail itself of the right of transportation. But it has no legal right to use the bed of the road for any purpose whatever. There is a right to demand crossings of the road under certain circumstances, but there is no general right of the public to use the land of the railroad company. In the case of such a corporation the right is transformed into a right on the part of all the public to demand, at any station of the company, transportation over its road upon the legal terms of compensation for person and property. It is this right on the part of the public which makes the use of the land by the company, upon which to lay its rails and plant 'its depots and freight houses, a public use.

Other illustrations might be given to show, what is plain enough without them, that property may, under certain circumstances, be devoted to a special and particular public use and yet the entire public be permitted to use it or have access to it only in a very restricted manner.

These observations bear, I think, upon the act which the defendants assail. If the pier or dock is leased to a lessee, the public necessarily is itself, to the extent of the possession of the lessee, excluded from the possession of it. At the outset it is, however, to be observed that the act of 1871, as set forth in § 716 of the consolidation act, does not provide that all the piers and docks, when owned by the city, shall be leased to the highest bidder at public auction, or at all. The property may not be leased to anyone. It is to rest in the discretion of the corporation whether a lease of any portion shall be effected. It cannot, therefore, be said at present that the property required in these proceedings will ever be leased, and hence it could not i be affirmed that the property was to be taken for private use, as such expression is construed by counsel for defendants. And when we come to examine the provisions and effect of the statute under consideration as to exclusive use for special kinds of commerce and the leasing of piers to lessees, we must consider the nature of the property which is to be so used or leased, and the object and purpose of such use must be viewed in connection with the whole of the property of like nature under the control and ownership of the city.

The legislation regarding the water front of the city of New York, has been quite frequently of late years under examination in this court.

The legislature conferred upon the city, by a series of early statutes, general authority to construct wharves, and the system adopted was for the city to convey the land under water to individuals, and they were required to fill up such land and construct wharves, and the right to collect wharfage was at the same time conferred upon them. The lands under water were, conveyed to the city in fee by acts of the legislature and by charters and grants, to enable the city to fill in such lands itself, or to procure others to do it, as the interest of the city, or in other words, the demands of commerce might require. Langdon v. Mayor, 93 N. Y., 129.

This continued the general policy of the city and the state for a number of years. The state itself owed a duty to its own citizens to provide adequate means for the carrying on. of the commerce which was sure to come to the one great seaport within its borders. That duty, as was observed by Finch, J., in Williams v. Mayor, 105 N. Y., 419, 436; 7 St. Rep., 529, it early imposed upon the city and the citizens, by whom it has steadily been performed at great cost. In 1871 the legislature changed entirely the general system by which this duty of building bulkheads, docks and piers had theretofore been performed.

Instead of devolving upon private owners the duty of building such structures, and giving to private individuals the right to collect wharfage, a general and vast system was provided for by the act of 1871, (chap. 574). That system involved the adoption of a plan for the building of bulkheads and piers by the city itself along the whole water front washed by the two rivers, and the collection of wharfage by the city, as compensation for their use. In the opinion of the legislature the time had come when the duty to furnish facilities for commerce should no longer be performed by the action of private owners, and the right to collect wharfage should no longer reside with them, but should be reposed in the municipality which was to provide for the'growing necessities of a commerce that was advancing with almost unheard of rapidity. The steps which were to be taken as provided by the legislation ■of 1871, have already been alluded to in detail in the cases above cited, and in Kingsland v. Mayor, 110 N. Y., 569; 18 St. Rep., 701, and it is unnecessary to repeat them here.

The adoption of the plan spoken of contemplated the purchase or erection, and the possession and ownership by the city of a great number of piers, to the exclusion of all private ownership, and built in accordance with such plan, and in a manner uniform with an exterior line adopted by the city as and for a bulkhead line. In 1871 the transportation of persons and property from and to foreign ports by steamships had even then grown to such dimensions in the city of ¡New York that it became practically impossible to transact the commercial business óf the port unless these steamships had permanent piers at which they could load ■and unload their cargoes, and their numbers had become so great that not only were permanent piers a necessity, but the exclusive and entire possession of such piers had also become so necessary that it was impossible to think of doing the business which was to be transacted unless such exclusive use were in some way provided. To minister to the necessities of commerce by providing fit and proper places in a seaport where ships can be loaded and unloaded with all proper facilities is a public duty owing by the state, and through it by the municipality which governs and controls the port. The only standard by which to judge of the extent of the duty consists in the necessities óf the business. If a permanent pier and an exclusive right to its use be a necessity of those large steamship lines, without which business cannot be properly transacted, and in the absence of which the steamers will, be sent across the river to ¡New Jersey or to some other port, then the duty rests with the state or municipality to furnish such quarters for a fair compensation, or else the state is bound to permit the steamship companies to obtain such accommodations from private owners. Having undertaken the duty imposed upon it by the state to provide such accommodations as the interests of ■commerce fairly require, all acts by the city done in the performance of that duty are for a public purpose.

Land which is thus taken is taken for a public use, although .some portion of all the land actually used may be thereafter, in the discretion of the city, divided off and placed in -the exclusive possession of a lessee for the sole purpose of using it in the transaction of the necessary business connected with the loading and unloading of passengers and cargoes of ships and steamers.

If the necessity for exclusive use exist, such necessity ought to be recognized by the city, and the attempt to supply such necessity is an attempt to fullfil a public duty. The fact of exclusive use by the lessee must be considered with reference to all the ■other property of a like nature possessed by the-city and at which all necessary and proper facilities may be afforded for the remainder of the commerce of the port. If an act should be passed which provided for the ownership by the city of all, the piers and docks in the port already erected or thereafter to be built, and also directed the leasing thereof by the city to one steamship company so that there would result a total exclusion of all other steamers or ships, it seems to me that the city could acquire no land in inviium for the purpose of owning or building piers or docks to be thus let.

It would then indeed be the case of an attempt to take private property for private purposes. Such an act would not be a regulation, but in effect it would be a wanton attempt at the destruc-, tian of our commercial interests and power. There would in that ■event be no fulfilment of a public duty, but on the contrary, the perpetration of a crime against the public and the interests of our ■own citizens. Neither the state, nor the city as its agent, would be justified, to say the least, in such an arbitrary abuse of its obligations to the civilized and commercial world.

Extreme cases may always be imagined, although they should have but little, if any, legitimate weight in an argument. The act under consideration is not of such a character. The authority to lease or to give the exclusive use of some piers for specified kinds of commerce bears no relation in fact to the kind of legislation just spoken of. The circumstances surrounding the case must be viewed in all aspects. The act plainly contemplates through all its provisions the fact that there will always remain under the direct control and possession of the city sufficient piers and docks for the accommodation of all the commerce■ which may seek our port, and which has no special pier or dock leased to the owner of the vessel desiring dock facilities.

Considering the large extent of the property of this description owned and to be owned by the city, together with the fact that there is no absolute direction to the city to lease the smallest portion thereof to any one, we become at; once convinced that the leasing which will be actually carried on under this mere permission will amount to no more than a special regulation of the manner in which a comparatively small portion of the whole property of this nature owned by the city shall be used for the legitimate ends of commerce.

This mere permission to use property by leasing it to others, when the whole surrounding circumstances are examined, cannot be regarded as providing for its private use.

When used by lessees under the facts already stated the use is-a public one. The use is public while the property is thus leased, because it fills an undisputed necessity existing in regard to these common carriers by water, who are themselves engaged in fulfilling their obligations to the general public; obligations which could not otherwise be properly or effectually performed. And in filling the necessity for such accommodations the city or the state is only performing its public duty. For these reasons we are of the opinion that the first objection taken to the granting of the order for the appointment of commissioners is not tenable.

The defendant’s second ground of objection is, I think, equally fallacious.

It is claimed that this property has already been devoted and is actually occupied for a public use and that it is not within the legislative intent, as evidenced by the general statutes upon the subject, that any land thus used should be condemned for dock or pier purposes.

The general rule contended for by the defendant, that property devoted to one public use will not be regarded as subject to the right of condemnation for another public use, unless the statute plainly grants such right, may be admitted to the full extent thus Stated. It is not necessary that the statute should in terms so enact. A necessary implication arising from language used is quite sufficient in this as in other cases for the purpose of an enactment. There is, however, in' this statute a clear grant in terms of the power to condemn all wharf property in Mew York city to which the city has no right or title, and also any rights, terms, easements and privileges pertaining to any wharf property in the city and not owned by the city. Section 715, New York Consolidation Act

We think this is a sufficient grant of power to include in condemnation proceedings property of the nature described in the statute, even when owned by a railroad or a gas company and used by the company for landing freight or other property. The property to be taken need not be necessary for the purpose of building a pier or dock according' to the plan adopted by the city officers.

The act goes much farther than that, and includes the power to take property of this nature belonging to private individuals, so that the whole wharf property may belong to the city. In building piers, wharves, docks, etc., under and pursuant to the plan adopted by the commissioner of docks, the actual building is to be carried on pursuant to the conditions imposed by § 714 of the consolidation act, without interfering with the rights or property of any other person excepting as therein Stated. Further power is then given by § 715 of the same act, by which private ownership of all property of this nature may be extinguished and converted into ownership by the city. It is not, therefore, necessary to show that the land proposed to be taken is required in order to carry out the building of any particular pier, or dock, or bulkhead, under the plan already spoken of. It may be required in order to enable the city to carry out its general plan and to extinguish the title of private parties to certain wharfage property, and to acquire the same for the city, and if so, the statute permits the acquisition for that purpose.

It was said in Kingsland v. Mayor, supra, that the wharves ■of private owners were to be purchased under the provisions of this act or taken in the ordinary manner by proceedings under the right of eminent domain. It is plain that the act contemplated the purchase or condemnation of this kind of property without reference to the question of the particular owners of the same, whether they were private individuals or corporations. The purpose was to place the ownership of all property of this nature in the city itself, to which the whole power of regulation and government was to be given. We agree with what was said upon this subject by the learned presiding justice who delivered the opinion of the general term in the case of the Consolidated Gas Co., the order in which proceeding is among those herein under review.

As to the third ground of objection, which sets up that there has been no real attempt at an agreement upon the price, and that therefore there is no inability to agree set forth, we can add nothing to what has already been said in the supreme court upon that subject, and for the reasons therein expressed we conclude the objection to be unfounded.

The orders must, therefore, in all the proceedings be affirmed, with costs.

All concur.