author: Beady, J.: Dahiels, J.

text:
    In the Matter of the Petition of the GILBERT ELEVATED RAILWAY COMPANY relative to acquiring title to real estate in the City of New York.

      Qilbert Elevated Railway Company — chap. 885 of 1872, chap. 837 of 1873, chap. 275 of 1874 — change in structure — Rapid transit act — chap. 606 of 1875 — constitutionality of.

    Chapter 606 of 1875, providing for the construction of steam railways in the counties of this State, is not a local act.
    Section 4 of said act authorizes the commissioners appointed to decide as to the necessity of constructing a steam railway in any county, to locate the route of such railway over the streets, avenues, places or lands in such county, provided that the consent of the owners of one-half in value of the property hounded on and of the local authorities having the control of that portion of the street upon which it is to he constructed, he first obtained, or in default thereof, the determination of three commissioners, to be appointed by the court, that such road ought to be constructed. Section 36 provides that whenever the route so designated shall coincide with that designated by the charter of an existing corporation, the latter shall have the like power to construct and operate such railway, upon the fulfillment of the requirements and conditions imposed by the commissioners, as a corporation specially formed under the act. J3eld, that where a corporation existing prior to January 1, 1875, the time of the taking effect of the constitutional amendments relating to the construction and operation of street railroads, availed itself of the privilege conferred by the latter section, it was not necessary for it to obtain the consent of the property owners and local authorities, or the determination by commissioners to be appointed by the court, as required by section 4 of the said act.
    The right of an existing corporation to proceed under the said act is not affected by the fact, that the plans and specifications of the railway prescribed by the commissioners, differ materially from those contained in the charter of the company.
    Such act does not in any way affect the franchise of the existing corporation, but only alters the mode in which it is to be used.
    ApplicatioN by the Gilbert Elevated Railway Company to procure the appointment of commissioners to condemn certain parcels of property, alleged to be essential for the construction and operation of their road, situated in South Fifth avenue, between Amity street and Amity lane.
    The petition alleges the incorporation of the Gilbert Elevated Railway Company under the 885th chapter of the Laws of 1872, amended by the 837th chapter of the Laws of 1873, and the 275th chapter of the Laws of 1874. It alleges the location of their route by commissioners appointed by, and in pursuance of the said several acts, and alleges that the commissioners were proceeding with due diligence to avail themselves of their said franchise. That the legislature on the 18th of June, 1875, passed another act, entitled “ An act to further provide for'the construction and operation of a steam l-ailway or railways in the counties of the State.” This act is chapter 606 of the Laws of 1875.
    The petition further alleges the appointment of commissioners, as provided for by the last mentioned act, and their determination upon the necessity of steam railways in the county of New York; and alleges that the said commissioners did fix and determine certain routes for such railways; and among other routes, did fix and determine a route in all respects coinciding with the route of the petitioners.
    That the said commissioners subsequently fixed and determined upon plans for the building and construction of the railway to be built upon and over the' routes designated by them, and imposed, in respect of the building of such railways, certain conditions and requirements. That the petitioners intend to construct and finish an elevated railway over the route so designated, and intend to construct the same under the aforesaid modified plan of construction prescribed by said commissioners, upon and along the route aforesaid, and upon and along the said South Fifth avenue from Canal street to Amity street.
    That the land described in the schedule 0, annexed to the petition, was required for the purposes of the corporation of the petitioner, to wit, for the purpose of constructing, maintaining and operating said proposed road. That the respondents claim a right of property in the said land. That the petitioners have not been able to acquire title thereto, and cannot agree with the owners of such real estate for the purchase or use thereof; and pray for the appointment of three commissioners to ascertain and appraise the compensation to be made to the owners of the said land according to law.
    The 885th chapter of the Laws of 1872, being the original charter of the Gilbert elevated railway, contained, in its third section, the provisions describing and regulating the railway, which the said company was authorized to construct, in the following language : “ The said corporation is hereby authorized and empowered to make, construct and maintain an elevated railway, to be operated by the plan known as ‘ Gilbert’s improved elevated railway,’ over, through and along streets, avenues, thoroughfares and places of the said city of New York, and to construct, maintain and operate the said tubular ways and railways by atmospheric power, compressed air or other power.” * * *
    Throughout the said act, whenever the structure of the corporation is alluded to, it is invariably described as the tubular ways and railways.
    Chapter 606 of the Laws of 1875, provides for the appointment of commissioners, for the purpose of ascertaining the necessity of a steam railway or railways in any of the counties of the State. By its- fourth section it is provided that if they find such railway or railways to be necessary, they shall, within sixty days afte.r their organization, fix and determine a route or routes for such steam railway or railways, and the said commissioners shall have the exclusive power to locate the route or routes of such railway or railways, over and under, through or across tbe streets, avenues, places or lands in sucb county, “ except Broadway and Fifth avenue below Fifty-ninth street, and Fourth avenue above Forty-second street, in the city of New York, and except such portion of such streets and avenues as are already designated for the main line of, or occupied by an elevated or under-ground railway in actual operation, * * * and to provide for the connection or junction with any other railway or'bridge, provided that the owner or owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway or railways, be first obtained, or in case the consent of such property owners cannot be obtained, that the determination of three commissioners appointed by the General Term of the Supreme Court, in the district of the proposed construction, given after a due hearing of all parties interested, and confirmed by that court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners.”
    The thirty-sixth section provides that whenever the route or routes determined upon by said commissioners coincide with the route or routes designated by the charter of an existing corporation, formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof, requiring the construction of the road or roads within the time prescribed by its charter, such corporation shall have the like power to construct and operate such railway or railways upon the fulfillment of the requirements and conditions imposed by said commissioners, as a corporation specially formed under this act.
    It appears from the proofs taken in this proceeding, that the commissioners designated by the rapid transit act did determine that steam railways were required in the county of New York, and that the said commissioners, after such determination, proceeded to decide upon the plans for such railways, and to act upon the other matters which were placed within their jurisdiction by the rapid transit act.
    In September, 1875, it appears that the Gilbert Elevated Railway Company bad petitioned the said commissioners to determine upon a rapid transit route, coincident with the then existing route of said company, and that in answer to the said petition, the commissioners requested that the said company should bind itself to the performance and conditions of the requirements, which they should establish in regard to the proposed railway.
    The petitioners thereupon passed a resolution, whereby they engaged to submit to such conditions and requirements in respect to structure and otherwise, as might be imposed by the said rapid transit commissioners.
    The petitioners had entered upon the construction of their railway in conformity with the commissioners’ plan, and were proceeding with the same upon the Sixth avenue, when their further progress was stayed by an injunction by the Superior Court of the city of New York.
    The present application seeks to condemn property over the line of their route, the title to which they seek to acquire for the purpose of constructing the modified road, as prescribed by the said rapid transit commissioners.

      Grosvenor P. Lowry, John K. Porter and Oha/rles Frcmois Stout, for the petitioner.

      Win. M. Evarts and E. Ellery Anderson, for owners of the property.
   Beady, J.:

The Gilbert Elevated Railroad Company was, by its charter, authorized to build an elevated road, according to the plans therein designated. The charter passed in 1872 was amended by acts .passed in 1873 and 1874 but the principle of construction was not changed in any respect. It is clear, therefore, that, until the passage of the so called rapid transit act of 1875, if the company constructed any road, it would necessarily be upon the plan known as the Gilbert elevated railroad; but the franchise was secured and could be employed in the manner designated. The company, in other words, was created with all necessary powers ; none of which were warped or destroyed. Jt was an existing company, requiring no further legislation to give it either vitality or the necessary authority to carry out the purposes of its incorporation; it was intact, and a power. The thirty-sixth section of the rapid transit act recognized this indirectly. It provides that, whenever the route or routes determined upon by the commissioners to be appointed, coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by the act, such corporation should have the like power to construct and operate such railway or railways, upon the fulfillment of the requirements and conditions imposed by said commissioners, as a corporation specially formed under the act, provided such corporation had not forfeited its charter or failed to comply with the provisions thereof requiring the construction of a road or roads within the time prescribed by its charter.

The evident design of this provision was to prevent any conflict between existing but unexecuted charters and companies to be formed under the act; and, at all events, to secure to the people the advantages* of an elevated road over the route selected. If the chartered company chose to adopt the route, they could do it by virtue of a quasi prior claim founded upon a vested right; and if not, then they abandoned the opportunity to avail themselves of it, and another could use it. They were not to be permitted, by a claim only, to prevent the consummation of rapid transit, which was the chief object of the act. It conferred the right to adopt the model prescribed by the commissioners to be appointed, upon fulfillment of the requirements and conditions imposed by them. It was not a right given to create or construct a road or railway, for that had already been granted and secured by the charter of the company, but an exercise of the right in a manner other and different — it might be in model — from that required by its charter. It authorized a change in engineering and in the mechanical details of the superstructure, if the company complied with the conditions lawfully imposed by the act. And, though magnified into a supposed fatal departure from the original charter, because of a supposed conflict with the provisions of the Constitution, it is in effect nothing more than this. The act of 1815 is not a local act, we have so declared; the charter of the Gilbert elevated road was predicated of the general laws with which it was required to comply. This general act —■ the so called rapid transit act — recognized the existence of the company, as already suggested, and by a general, not special provision, protected it against the consequences which might issue if its existing authority, legally and constitutionally conferred, was by conflict endangered or interfered with; and to make its exercise certain, extended to it the right to accept the route established by the commissioners in compliance with their requirements. The effect was not to change the entire character of the franchise; it was to be an elevated road, though different perhaps in its construction, mode of transit and propelling power. The legislature had reserved to itself, by section 10 of the act of incorporation, the power to alter, amend or repeal the charter, and had the undoubted right, therefore, to make such modifications in the structure as were deemed essential either to the public safety, the better preservation of the rights of the property owner, or the more successful accomplishment of the end in view by the act of incorporation.

The question as to such power has been considered and passed upon. (Suydam v. Moore, 8 Barb., 355.) The change from a tubular to an open or covered railway would be within this power. It would affect the model to be employed— the mode in which the franchise was to be consummated, but not otherwise. The right to the benefit and advantage of the result would be preserved and the franchise therefore held intact. The legislature have in many instances made substantial changes or modifications of existing charters, by which new elements were introduced, new features engrafted upon them, without violating constitutional provisions prohibiting new creations of a kindred character. (Mosier v. Hilton, 15 Barb., 663; Syracuse City Bank v. Davis, 16 id., 188; see, also, Zabriskie v. Hackensack and N. Y. Railroad Co., 3 C. E. Green, 178, 192; Veazie v. Mayo, 45 Maine, 562; Buffalo, etc., Railroad v. Dudley, 14 N. Y., 348.) In Mosier v. Milton {supra) it appeared that an act was passed authorizing an existing railroad company to sell its property and franchises, empowering the purchaser to issue stock and choose directors to manage and organize the corporation by any new name, and declaring that when so organized the company should have the same powers, etc., as the existing company, and it was held not to create a new corporation. The court said : “ It is also objected that the act of 1850, for the relief of the creditors of the railroad company, is in conflict with section 1 of article 8 of the Constitution. It is insisted that the legislature, by the act of 1850, created a railroad corporation by a special act. * * * The act of 1850 created no new corporation. The Lockport and Niagara Falls Railroad Company was incorporated in 1834; its charter had several times been amended, and it possessed property, franchises, rights and privileges which, under, the act of 1850, were sold; and the company was organized anew by choosing new directors and by changing its name. It is a continuation of the first corporation under a new name.”

In the ease of The Syracuse v. City Bank v. Davis (supra), it appeared that a bank having been organized under a certificate insufficiently subscribed and acknowledged, an act was passed declaring that it should be deemed a valid corporation, notwithstanding any such defect. In an action by the bank against the indorsers of a note which it had discounted, it was held that the act in question did not create a banking association within article 8, section 4 of the Constitution.

The court said : “ It is scarcely necessary to notice the objection that this act of 1852 violates the Constitution by creating a corporation by a special charter. (Const. 1846, art. 8, § 4.) The act does not profess to create a corporation, it only remedies defects in one already created. The institution may be said to have the powers and rights of a bank doing business de facto, while its rights were imperfect de jure. The statute in question was of a class of acts, entitled to be most liberally construed, for the advancement of the public ■ welfare and the' promotion of individual rights.” ' (j

In Zabriskie v. Hackensack and New York Railroad Company (supra), the court said : “ The power is to alter or modify the act, and the true construction of this I hold to be an alteration of something contained in or ■ granted by the act. Any of the franchises granted may be altered —-the right to take land by condemnation, the right to take tolls or fare, or the amount to be taken. But the legislature had no right to impose upon the company any other duty, or any thing involving any other duty, than that attending the building a railroad from the Paterson road to Hackensack; any thing in the manner of doing that they had a right to change.”

In Veazie v. Mayo, an act prohibiting any railroad from crossing any city street without the consent of the city, in writing, stating the manner in which the crossing shall be made, was held to be “ only the exercise of that police power, which is always necessarily retained by the people in their sovereign capacity, for the security of the public safety, and of which they cannot be divested by legislative enactments or chartered immunities.”

In the case of The Buffalo Railroad v. Dudley (14 N. Y., 336), it appeared that an act of the legislature amended the charter of "a railroad company, by doubling its capital, adding fifty per cent to its authorized length, changing its terminus from a village to a city thirty miles distant, and altering its corporate name. The court said: “ The change was not fundamental. The new powers conferred are identical in kind with those originally given. They are enlarged merely, the general objects and purposes of the corporation remaining still the same. It may be admitted that, under this reserved power to alter and repeal, the legislature would have no right to change the fundamental character of the corporation, and convert it into a different legal being, for instance, a banking corporation, without absolving those who did not choose to be bound. But this they have not attempted to do. The additional powers are of the same character.”

The provision under discussion in the act of 1875 is not an amendment of the Gilbert elevated railroad act. The effect of it, so far as it relates to the company, is to declare the route it may employ in the use of its franchise. It neither changes its character nor enlarges its power or franchise. It recognizes the rights of the company as existing by a general provision, and protects them, and by so doing prevents a conflict which might otherwise arise from the exercise of these rights, secured, as suggested by the act of incorporation, and those amendatory thereof. It does not purport to be an amendment of the act of incorporation, in terms or in effect. It is a recognition, and not a creation in substance or effect. The body of the franchise remains the same, although the mode of its use has been changed in some respects. This change the legislature reserved the right to make, and have made it. It differs, therefore, essentially, from the cases in Iowa and Ohio to which we were referred as illustrations of the proposition that the act of 1875 relating to the company was repugnant to the Constitution. In Atkinson v. The Marietta and Cincinnati Railroad Company (15 Ohio St., 21), which is one of -these cases, the court, under a Constitution which declares that the general assembly shall pass no special act confirming corporate power, held, that the charter of the Marietta and Cincinnati Railroad Company did not authorize it to mortgage or sell its corporate franchise; and that a judicial sale upon a mortgage executed by it would not invest ” the purchaser with any corporate capacity whatever ; and that a special act of the general assembly undertaking to give effect to the sale, and authorizing the purchasers to reorganize, create a new stock, and elect another board of trustees, was, in substance and effect, an attempt to create a corporation and to confer powers by a special act.

The answer to that case is, that an act of our legislature containing, by amendment, authority to sell the franchise, rights and privileges of a railroad corporation, and to invest the purchasers at once with them, was held not to. be repugnant to that provision of our Constitution which declared that corporations might be formed under general laws, but should not be created by special act except for municipal purposes. It was said by the court that the act was a continuation of the first corporation, although, by the sale, the company was organized anew by choosing new directors and by changing its name. (Mosier v. Hilton, supra.)

In the case of State of Ohio v. City of Cincinnati (20 Ohio St., 18), another of the cases referred to, it’ appeared that the general assembly, by an act passed by them, assumed to confer upon the corporation of Cincinnati additional powers. On certain conditions the act purported to confer on it the powers of municipal government, the power of political regulation and of judicial jurisdiction, and taxation and assessment, over a number of outlying incorporated suburban villages and other territory not before within .the limits of the city, and it was declared repugnant to the provision of the Constitution prohibiting the passage of a special act conferring corporate power. The statement of that case shows that it in no respect corresponds with this. The act was a flagrant violation of the Constitution. In the case of Ex parte Samuel Fritz (9 Iowa., 30), it appeared that an act was passed amendatory of the act to incorporate the city of Davenport, by which the office of police magistrate was abolished, and it was held to be invalid because special laws for the incorporation of cities and towns were prohibited by the Constitution of the State. There are many suggestions as to the authority of the legislature to amend an act the passage of which would, under the existing Constitution, be prohibited, but the act, so far as revealed in the case, was an attempt not to create or incorporate one, but to change the judicial system of one in existence with vested rights. The case is an authority for the State in which it was decided. It can have no extra territorial force save in a controversy presenting substantially the same elements. It must be borne in mind that in this case, as in the other, the original act was sought to be amended. Here there is no amendment under consideration. It must also be kept in view that, by a well established rule in this State, an act of the legislature will not be' declared unconstitutional unless it is clearly repugnant to some provision of the Constitution. The rule is, indeed, too well settled to require the citation of cases to sustain the assertion that it is so. In this case the clear violation of a constitutional provision is not only not shown, but it seems to be clear, upon general principles and adjudged cases, that none has been committed.

Having arrived at these conclusions, which cover the vital questions in this matter, in my judgment, I cannot concur with Justice DANIELS. We differ too much in our views to make a concurrence possible. Rapid transit, it may be said, in conclusion, is one of the objects of our municipal life which our people regard as of great importance. It involves a public improvement, and public improvements always involve sacrifice. The greatest good of the greatest number is justly the grand purpose of good government, and the comparatively few who are injured are required to submit to the laws of their rulers.

It is the consciousness that there are some of our people who, by the construction of the Gilbert Elevated Railway as contemplated, will be injured in their estates, if not ultimately, at least in the beginning, which makes the consideration of this matter an unpleasant duty, and impresses the conviction that if means to award ample compensation to property owners along the route had been provided, our sense of justice would have been gratified The law as it exists does not require this from the company, and the court can neither legislate nor undo legislation which does not conflict with the provisions of the Constitution ; and when called upon to declare whether an act of the legislature is or is not valid, must be governed, as it is, by the principles applicable and controlling. It follows from these views that the application should be granted.

Ordered accordingly.

Davis, P. J.; concurred.

Dahiels, J.

(dissenting):

The petitioner is a railroad corporation incorporated to construct and operate an elevated railway in certain streets of the city of New York, by chapter 885 of the Laws of 1872. (Yol. 2 of Laws of 1872,2179.) By section 3 of the act it was given all the rights, powers and privileges, and rendered subject to all the provisions of the act passed on the 2d of April, 1850, to authorize the formation of railroad corporations and to regulate the same. By the provisions of that act, as well as another contained in its own act of incorporation, the petitioner was empowered to acquire the title to land required for the purposes of its incorporation, or which should be necessary to enable it to construct, maintain and operate its-railroad. (Gen. Stats. N. Y., vol. 3, 621, § 14.) This right, by the plain import of the terms creating it, was limited to such lands as should be required for the purposes of its incorporation, or for constructing, maintaining or operating its railroad. And it consequently follows from the restriction so imposed, that if the railroad proposed to be constructed proves, for any reason, to be one which the company cannot erect and maintain, that it has no power to acquire the title to land over which it has been projected; for that cannot be necessary for it to obtain, which it has not the power afterwards to lawfully use for any of the purposes of its incorporation. It is insisted on behalf of the landowners that such a disability has been shown by way of answer to the petitioner’s application in this proceeding. If it has, that should be deemed sufficient to require a denial of the present motion.

By the act of its incorporation the petitioner was incorporated for a specific object, and that was to construct and maintain an elevated railway, “ to be operated by the plan known as Gilbert’s improved elevated railway,’ over, through and along streets, avenues, etc., of the city of New York, and to construct, maintain and operate the said tubular ways and railways by atmospheric power, compressed air, or other power.” (Laws of 1872, chap. 885, § 3.) That was the franchise and substantial grant of authority given to the corporation. And what was added beyond that was simply incidental and for the promotion of the object in that manner described; and that accorded with the principle of the Gilbert invention as it at that time existed. It was so understood by the legislature as well as the railway company ; for, wherever the kind of railway which was to be constructed was mentioned in the charter, it was designated as a tubular railway. This expression was the common one, adopted to describe the enterprise; and it will be found to be contained and repeated in the act whenever the railway is in any manner referred to. The same understanding pervades the amendatory acts of 1873 and 1874. In the first it is “the said railway,” and said road,” which has been made the subject of further legislation ; and in the last it has been mentioned as “ its tubular ways and railways,” that the company had been empowered to construct. (Laws of 1873, chap. 837; Id., 1874, chap. 275.) The description of the structure authorized by the charter was in no ways changed by the subsequent legislation ; it still continued to be the tubular “ways and railways,” known in 1872 as the Gilbert improved elevated railway, and nothing different from that. And .that railway was required to be “ substantially supported above the middle of the streets and avenues, by iron arches which shall span the same from curb to curb, the bases of which shall not, when practicable, be more than sixty feet apart, nor the arches less than fifty feet from each other.” (Laws of 1872, chap. 885, § 4.)

It has been urged that the mode of construction was not intended to be a limitation of the grant or franchise, but in the nature of a condition of its existence, which the State alone can take advantage of if the petitioner shall fail to perform it. But that view can hardly be sustained consistently with the charter, which in direct terms has authorized the company to construct and maintain only that form of railway which it has described.

The object the petitioner was empowered to accomplish was specific ; and the mode in which it was to be done was plainly designated. It was the grant of the authority as well as a description of the mode in which it was designed that it should be exercised. This construction is a more essential one to be applied and observed in such a case as the present one, than it would be if the company had been incorporated to construct a railway over its own land. There the plan might well be changed without detriment to the rights or privileges of others. But the petitioners railway was to be constructed upon a superstructure erected in the public streets and avenues of the chief city of the republic, having a large and active population, for whose convenience the streets themselves were opened and maintained; and as to such streets and avenues it is to be presumed that great legislative care would be observed, in providing the manner in which the railway should be constructed, in order to guard against their needless obstruction. If the system had been left to the discretion of the company, it might under such authority render the streets and avenues worthless for all ordinary purposes, and that possibility was a subject which required to be properly guarded against. The enterprise was a novel one, and to a great extent in the nature of an experiment; and it was undoubtedly intended that care should be observed in defining the grant of authority under which it should be tried. The language of the act indicates that the legislature was actuated by that purpose, and these considerations sustain the propriety of such a construction of it. The intention was to empower the company to construct a railway according to the invention mentioned, and that was a tubular railway, to be placed on the superstructure mentioned in the act, which, in the judgment of the legislature, would not deprive the streets and avenues of the city of their ordinary utility.

But if it be conceded that the description of the manner in which the structure should be made was simply in the nature of a condition, the non-observance of which could only be taken advantage of by the State, the case would not be essentially different in this respect; for even as a condition it would indicate the manner in which it was intended by the legislature that the railway should be built; and if it were not built according to the plan prescribed by the condition, it would still be as much a different road from that mentioned in the charter of the company, as it would be if the description given were a limitation upon the power of the company. In either case it would be equally the intention of the law, that the structure should conform to the description given of it. And making it differently would be the construction of a different device, as much in the one case as it possibly could be in the other. It was intended by the act that the structure should be what the legislature took pains to describe and declare; and the company cannot lawfully make a different one under the authority conferred by the charter, even if the limitation upon its power has been given the form of a condition merely. The court, certainly, should not sanction by its authority a plain departure from what may be regarded as duly a legislative condition.

It was on the improved plan then invented and existing that it was declared that this railway should be made. That was plainly expressed in the act; and to that the company should be restricted in the construction of its authority. If a different mode of construction is to be adopted the authority for it cannot be found in the charter nor any of its amendments. Its powers in that respect have not been extended, by the amendatory acts, beyond the original grant. And the railway, as that described it, is not the one which the petitioner now proposes to construct, and it consequently must be held to follow that its charter does not warrant or allow its present enterprise.

The stipulation entered into on behalf of the petitioner shows the two enterprises to be essentially different. According to that, “no tubular ways for the transmission of cars and passengers by the application of atmospheric power, compressed air or other power, are intended to be constructed.” And that involves an abandonment of the railway described in terms in the petitioner’s charter. For the road, as it is now proposed to build it, is to be, in all respects, constructed and operated in conformity with the conditions and restrictions prescribed by the commissioners of rapid transit.” These commissioners were provided for and appointed under the authority of chapter 606 of the Laws of 1875. This is a general law prescribing the terms on which elevated railways may be constructed and operated in all portions of the State. And the authority created by it is ample for the inclusion of all feasible plans which may be found promotive of that end. And they are to be devised and adopted only by the commissioners, whose appointment it has provided for. (Laws of 18Y5, 741, chap. 606, § 5.) It is according to their plan, which differs very materially from that of the petitioner’s charter, and in no way includes a tubular railway, that it is now proposed to construct the railway. That is clearly indicated from the description given of the design itself by the commissioners, and it is implied by the terms of the stipulation already referred to. Indeed, if there had been no material difference intended, the petitioner would have been in-no need of the authority of the commissioners acting under the act of 1875. It was because it was necessary to avail itself of the authority of that act that it was induced to adopt their plan.

And to empower it to do that the petitioner itself, by resolution, declared that its structure should “be an elevated double track, elevated railway, to be constructed, in all substantial respects, in accordance with plans and specifications to be made and agreed to by the president of- this company and the said board of commissioners.” And that board required the railroad of the company to be constructed with such modifications of the original plans, upon which said company was by its charter authorized to construct the same, as to make the same correspond with the plan or plans, and mode of construction, which shall hereafter, in due course, be decided upon by this board of commissioners for said route.” And in prescribing that mode the company was required by them, to so modify the plan of structure which said company is now authorized to construct, as to conform to the specifications and requirements following; and that was followed by a minute and explicit description of the plan adopted for the superstructure, as well as the railway, differing materially from that described in the charter of the company. It was clearly so understood by the commissioners, who, in their report of the arrangements made with the petitioners, stated that the structure that it was required by its charter to build was so costly, that after three years of effort the company had been unable to procure the money to erect it; ” and that it was of the opinion that -if it should be required “ to build upon their route a structure sufficient for the public wants, but less costly than that originally intended, they would be enabled to carry on the work.” And the commissioners.add that they “were satisfied that the location upon their chartered routes of rapid transit roads under this act,” which was the act of 1875, accompanied by the conditions above mentioned, would, humanly speakings render success certain.”

This evidence that the petitioner is not proceeding, and does not propose to proceed with this enterprise, under or according to the requirements of its chartered authority, is entirely decisive of the fact. The railway now designed to be constructed, and for the support of which the land desired is required, is not the one described in its charter, but that which has been devised by the commissioners acting under the authority alone of the act of 1815.

In constructing such a railway as that, the petitioners will not proceed under its act of incorporation or either of the amendatory acts, but under the authority of the law of 1875; and before it can be permitted to exercise that authority it must comply with the constitutional provision under which it was enacted. That provision declared that “ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value [of] the property bounded on, and the consent, also, of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or, in case the consent of such property owners cannot be obtained, the General Term of the Supreme Court in the district in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such road ought to be constructed or operated ; and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.” (Art. 3, § 18, of the Constitution as amended.) This provision, it is conceded on the part of the petitioner, has in neither respect been complied with by it. And as no law afterwards enacted upon this subject could provide for a street railway and at the same time dispense with that compliance, it would seem to follow, very clearly, that the petitioner lias no legal right to construct or maintain the railway as that is now designed to be done. The Constitution deprived the legislature of the power to authorize the construction of a street railroad of any description on any different terms than those expressed by this provision. By availing itself of the privileges secured by the act of 1875, the petitioner’s franchise has become qualified and subordinated to that extent to this prohibition of the Constitution. It proposes to build a railway which it could not construct without the assistance and authority of that act, and under the express terms of the Constitution, that can only be done by first procuring the assent of one-half in value of the property owners on the street, or the determination of commissioners that it ought to be constructed; without one or the other it cannot avail itself of the privilege to build a railway, created by a law which was only properly enacted under and subject to the restraints of this constitutional authority.

Beyond that, the act, in terms, imposes the same restraint upon the enjoyment of this corporate privilege by means of its own provisions. And while corporations then created and existing for the construction and operation of elevated railways in any portion of the State were empowered to proceed under its authority, the right to do so was rendered subordinate to the requirement of the constitutional restraint previously imposed on street railways afterwards to be provided for. The language of the act affecting this subject declared that whenever the route or routes determined upon by said commissioners coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof requiring the construction of a road or roads within the time prescribed by its charter, such corporation shall have the Wee power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said commissioners, as a corporation specially formed under this act.” (Laws of 1875, 750, chap. 606, § 36.)

It was no part of the purpose of this provision to relieve the existing corporations from the restraints of the constitutional provisions upon enterprises of this description afterwards authorized, but simply to entitle eacli of them to the privilege under it, which a new corporation formed for the construction of an elevated railway would have by virtue of its enactment. The petitioner’s route did coincide with one of the routes determined upon by the commissioners’ proceeding under the act, and, accordingly, it was entitled to the privilege-mentioned in the section already referred to, which secured to it the right to construct the railway under its provisions. But it was not designed, and the language used will not admit of the construction, that it could do that without complying, by means of one of the alternatives mentioned, with this provision of the Constitution. That is entirely evident from the language employed in the act. It was not used in such a manner as to give to any existing corporation the unqualified right to construct and operate an elevated railway. In view of the prohibition of the Constitution, the legislature could not have supposed that its powers extended so far as to allow the creation of such a franchise. And there is direct evidence of the existence of an intention to make no such provision. What the legislature did by this section was to secure to the existing corporation, found in possession of the franchise mentioned, the like power to construct and operate such railway as a corporation specially formed under the act. And that was a qualified power, conditional upon the assent of the owners of one-half in value of the property bounded on the streets and avenues to be used, or the favorable determination of the commissioners to be appointed by the court, that the railway ought to be constructed or operated. (Laws of 1875, 740, 741, chap. 606, § 4.) The corporations formed under that act were, by clear and explicit terms, required to procure the observance of one or the other of those alternatives before their right to construct and operate an elevated railway could become complete. And the like power which was all that was given to the petitioner, depended upon the observance of the same condition. It could not otherwise be a like power. But without that obligation it would be unconditional and unqualified by this limitation. That would be a more extended power than any corporation formed under the act could, by any possibility enjoy, and which it was not the design of the law to create. What was intended was, that an existing corporation should be accepted as having only the same authority as one formed under this act. In the former case tbe corporation was already created, which in the latter the legislature had provided should be organized. And its existence was accepted as a practical compliance with those provisions, declaring the manner in which a new. corporation for this object might be formed. And upon such a corporation the privilege of constructing and operating such an elevated railway as should be devised by the commissioners, acting for that purpose, was conferred. And that was no other or different railway than that which could be constructed after the plans of the commissioners.. (Laws of 1875, 741, chap. 606, § 5.) The newly formed, as well as the previously existing corporations, were invested in this respect with an identical authority. It was a like' franchise and power to all, and as it could not be exercised in one class of cases without one of the forms of consent mentioned in the Constitution, it is very clear that the same disability was designed to affect the others as well. ' Before the petitioner can construct the railway as that is now proposed to be done by it, which is conformably to the plans of the commissioners, and not according to the description and design of its own charter, the contemplated consent must be secured by it, and as that has not been done, the present application should be denied, without considering the other objections made in behalf of the owners of the land.

Application for commissioners granted, commissioners to be selected on two days’ notice.


source: Caselaw Access Project

author: Daotels, J.:

license: Public Domain

text:
    JONATHAN WOODRUFF, Respondent, v. ROBERT SHERRARD, Jr., as President of The New York Transfer Company, Appellant.

      Common carrier — limitation of liability — contract foi' — when given on demand for a receipt only — ineffectual.
    A daughter of the plaintiff, in company with another young girl, delivered a check for a trunk to the clerk of the transfer company at its office in New York, with directions to transport the same to her house at Brooklyn. She then turned away and was leaving the office, but upon the suggestion of her companion that she ought to have a receipt she returned to the desk and demanded a receipt of the clerk, who thereupon delivered to her a receipt by which it was, among otter things, stipulated that the company should not he liable to an amount exceeding $100 unless a special contract was made. She did not read the receipt or know its contents until alter the loss of the trunk. In an action to recover the value of the trunk, held, that she never assented to the terms of the contract limiting the liability of the company, and that she was entitled to recover the full value of the trunk.
    Appeal from judgment in favor of the plaintiff entered on the report of a referee.

      Luke A. LoeJewood, for the appellant.

      Theron G. Strong, for the respondent.
   Daotels, J.:

The recovery in this case was for the loss of a box and its contents, delived to the New York Transfer Company as a common carrier. They were then owned by the assignor of the plaintiff, who is his daughter. She was on her way from Rahway in Néw Jersey, to the city of Brooklyn, and left her check at the office of the transfer company, at the foot of Courtlandt street, in the city of New York, to have her baggage, consisting of a box and its contents, taken from the railway company to the place of her destination in Brooklyn. After delivering the check for them to the clerk in the transfer company’s office, she started to leave it, when her companion suggested the propriety of having a receipt for it. She then turned to the clerk and requested him to give her a receipt for the check. He wrote out and delivered her a receipt and also a contract limiting, in terms, the liability of the company in case of loss to the sum of .$100, unless further compensation was paid for the additional risk. She received it, supposing it to be merely a receipt, and did not read it, or become aware of its contents until after the box, and its contents, had been lost by the company. When it was delivered to her, nothing was said by the clerk indicating that it was any thing more than the receipt applied for by her. Upon these facts the referee held that no contract between the parties had been established, by which the liability of the transfer company was limited to the sum of $100. He found that the box, and its contents, were of the value of $330, and for that directed judgment in the plaintiff’s favor. The defendant insists that the recovery, on these facts, ought not to have exceeded the sum of $100, and as it is now well settled that common carriers of property may, by special contract, limit their ordinary liability, the only point presented by the objection taken is, whether such a contract was shown to have been made in this case.

When the check was delivered to the clerk of the transfer company, the plaintiff’s assignor could have refused to surrender it on any other terms than that the carrier should be charged with the full measure of its common-law liability concerning it. She had a right to decline to receive a contract of the limited nature of that contained in the instrument delivered to her, and that was the import of her request made to the clerk. It was for a receipt merely, which was probably required for the sole purpose of identifying the transaction in case the property was not delivered. And when the paper was given to her in response to her request, nothing was said or intimated by the clerk, that it was any thing different from the instrument asked for; she was not told that .it was a contract as well as a receipt. And the act of passing it over- to her without explanation, in compliance with her request that she should simply have a receipt, authorized the inference upon her part, that such was its nature and excused her for her omission to read or examine it. In complying with a request for a receipt, persons unacquainted with the modes of transacting business, as this young lady evidently was, would not expect to be handed a special agreement. If the clerk could not properly have given what he was asked for, he should have explained that he could not give a mere receipt without further compensation for the risk, in case the property exceeded in value the sum of $100. . Then the owner would have been in a position in which she could have provided for the complete safety or responsibility of and for her property. By not doing that but handing her a paper in response to her request for a receipt, and which she was justified by the circumstances in believing was nothing more than that, she was put off her guard and induced to leave her property under the control of the company, when she might not otherwise have done so.

To make a binding contract in such a case as this, requires at least the implied assent of the party receiving the instrument, and that was not made to appear. The fact was the other way, and the referee has so found it. A contract declaring the liability of the company was not requested, but merely a receipt, and it was that, in the absence of every thing indicating it to be different, that she must have supposed was handed to her in answer to her request. The minds of the parties did not meet upon the subject of a contract, and the paper received was not accepted as such. The case, for this reason, seems to be within the principle declared by the learned chief judge of the Court of Appeals, in deciding the case of Blossom v. Dodd. It was there said that “ the contract cannot be made by one party. If the traveler is informed of the charges graduated by value, he can have a voice in the bargain ; but in this case he had none. While the carrier should be protected in his legal right to limit his responsibility, the public should also be protected against imposition and fraud. The carrier must deal with the public on terms of equality ; and if he desires to limit his liability, he must secure the assent of those with whom he transacts business.” (43 N. Y., 264, 270.) The case of Kirkland v. Dinsmore (62 N. Y., 171) contains nothing different from this proposition, and in no way conflicts with what was decided in the other case. It was there said by ANDREWS, J., in delivering the opinion of the court, that “it is not claimed that there was any fraud or imposition practiced by the defendant’s agent. He did not represent that the paper was a bare acknowledgment of the receipt of the package, nor did he do any thing calculated to mislead the plaintiff or put him off his guard.” (62 N. Y., 178.) In the present case the agent did both the acts not shown there, and which it is to be implied would, if they had appeared, have sustained the carrier’s liability. For in apparent compliance with a simple request for a receipt, he handed her a contract, and did it in such a manner as to induce the belief that it was only the instrument she had asked for. The present case, in this respect, also differs materially from that of Belger v. Dinsmore (51 N. Y., 166), in which it was “ not shown, nor is there any evidence whatever warranting the inference that the wife of the plaintiff, when she took the receipt, did not know, and was not fully informed of what provisions it contained, and fully understood them.” (Id., 171.) And for the same reason it cannot be considered as controlled by Huntington v. Dinsmore (4 Hun, 66).

The existence of the instrument as a contract, was not shown by tbe evidence. It cannot be inferred .that it was intended to be assented to as being any thing more than a simple receipt, which was all that the agent was asked to deliver. No implication beyond that can be made from what was shown to have transpired between the parties preceding its' delivery and acceptance. The referee was right in the construction he gave to the transaction, and the judgment should, therefore, be affirmed.

Davts, P. J., and Beady, J., concurred.

Judgment affirmed.


author: DANIELS, J.:

text:
    EDWARD GROUT and FREDERICK C. LINDE, Administrators, etc., of FRANCES GROUT, Deceased, Plaintiffs, v. MARY J. COOPER, Defendant.

      Dower — bequest in lieu of — Election — Ejectment — rents a/nd profits — recoverable in.

      A testator, by bis will, gave to his wife all his personal estate and all his real estate during widowhood hut no longer, declaring that such bequest and devise was in lieu of dower; and providing further, that “in case my wife shall take any part of my personal estate, it shall be construed into an election by her of the provision herein made for her benefit, so that in case she shall hereafter think proper to marry again she shall thereafter have no right or title, claim or demand to any part of my real estate.” Held, (1) that the provision in the will declaring the effect of taking the personal estate, merely established what should be deemed conclusive evidence of an election on her part, and did not supercede the provisions of the statutes relating to that subject; (3) that by entering into possession of the real estate and neglecting for more than one year to commence proceedings to have her dower interest set apart to her, she must be deemed to have accepted the bequest in lieu thereof.
    After a recovery in ejectment an action was brought to recover the damages arising from the unlawful detention of the property, Held, that the right to the rents and profits was limited by statute to those accruing within six years, and that it was not necessary that the statute should be pleaded as a defense to entitle the defendant to its protection.
    MotioN by tbe defendant for a new trial, under section 268 of the Code, after a decision made in this action directing an accounting preparatory to the entry of a final judgment.

      The action was brought by the administrators of Frances Grout, deceased, to recover the rents, issues and profits of certain premises which were alleged to have been wrongfully received by the defendant, who was the widow of one Joseph Marshall, the father of the said Frances Grout.

      Edwa/rd 8. Olmoh, for the plaintiffs.

      E. JE. Benn, for the defendant.
   DANIELS, J.:

An action was prosecuted against the defendant in the Superior Court of the city of New York, by the heirs at law of Frances Grout, deceased, and a recovery had for their interest in certain real estate of which Joseph Marshall died seized, and which was withheld from them by the defendants, She was the widow of Marshall, and, by the terms of his will, was bequeathed all his household goods and furniture, personal effects and estate. He then devised to her all his real estate, to have and to hold the same during her widowhood, but no longer. The will then declared : “ The bequest and devise herein made are intended to be and are so given in full satisfaction of all claim, or right, or title of dower of, in, or to any part of my real estate in case of her second marriage. And I direct that in case my wife shall take any part of my personal estate, it shall be construed into an election by her of the provision herein made for her benefit; so that if she shall hereafter think proper to marry again she shall thereafter have no right, or title, claim or demand to any part of my real estate whatsoever.” She did marry again on the 12th of August, 1863, but the testator’s daughter, Frances Grout, took no proceedings to divest her of the possession of any part of the real estate affected by the devise. No action was taken for that purpose until after the decease of Frances, when the suit was commenced by her children in the Superior Court. The complaint in this action alleged that during her lifetime the defendant continued in possession of the real estate, received the entire income therefrom, and totally denied any right, title or interest of, in or to the same, or of, in, or to the rents, issues and profits thereof, of the said Frances Grout, and has retained in her possession all of such rents, issues and profits.”

It did not appear by any direct evidence given upon the trial that the defendant in her own right, or otherwise than as executrix under her husband’s will, had ever received any portion of his personal estate; but as she took charge of and carried on his business after the time of his decease, it might very well be presumed that his personal estate passed into her hands, and was actually enjoyed by her. The business could not very well have been carried on by her without being attended with that result.

But even if that were not. the case, and she received no part of the testator’s personal estate for her own use and benefit, the declaration that the bequest and devise should be in lieu of dower would be none the less effectual in that respect. The provision made declaring the effect of her taking any portion of the personal estate, was merely providing what should be deemed controlling evidence of her election. It did not supercede the statutory provision upon the same subject; and, accordingly, as she did not enter upon the lands to be assigned to her as dower, otherwise than under the authority of the devise, or commence proceedings for the recovery or assignment of her dower within one year after the death'of her husband, she is to be deemed as having elected-to accept the provision made for her by his will. (3 R. S. [5th ed.], 32, §§ 13, 14; Chamberlain v. Chamberlain, 43 N. Y., 424, 441.)

She went into possession of all the real estate left by the testator, and enjoyed its rents and profits, which she could only'do by virtue of the devise made for her benefit, and in that manner exhibited her intention to accept and receive the provisions made in her behalf by the will of her husband. She held the land solely by and under that authority, and subject to the condition upon which her right was rendered defeasible. It was an acceptance of the provision made in lien of her dower, and by her subsequent marriage she determined her estate. The cases of Bellairs v. Bellairs (L. R., 18 Eq. Cas., 510), and Smith v. Van Nostrand (3 Hun, 450), do not hold such a condition applied to an estate in lands invalid; but the law seems to be settled to that extent the other way. (2 Redfield on Wills [2d ed.], 674-676.)

• It has been urged that the present action cannot be maintained, even if the defendant’s estate determined on her subsequent marriage, because Frances Grout, in her lifetime, acquiesced in her continued possession and enjoyment of tbe property. And the case of Roosevelt v. Post (1 Edw. Ch., 579), is cited as an authority sustaining that position; but no such assent as would have deprived her of her rights to her share of the rents and profits of the land was shown upon the trial. It was alleged that the defendant retained possession, and denied the rights of her daughter Frances in the property as well as its rents, issues and profits. And no act of any nature, beyond mere neglect to institute proceedings for the recovery of possession, was shown, from which assent or acquiescence on the part of Frances could be properly inferred. That the defendant held possession on a denial of the rights of her daughter was not denied, and that was sufficient to render it adverse from the time of the determination of the condition on which the defendant’s estate depended.

The action in the Superior Court by the children and heirs at law of Frances proceeded upon that theory. It was ejectment for real property wrongfully withheld by the defendant. And, upon the basis of the judgment there recovered, and by force of which the plaintiffs in that action secured, possession, the administrators of their mother’s estate instituted the present action to recover what the law denominates damages for withholding it, and the rents and profits of the same. (Code, § 167, sub. 5.)

By the decision which was made, their right to that relief was sustained, and as the action was tried as one of an equitable character, a reference was directed to ascertain the amount of such rents and profits; but that direction was given in terms imposing no limit upon the period over which the accounting should be extended. In that respect it was too general. For the right of the successful party to rents and profits in cases of this description has béen limited to a period of not more than six years. (3 R. S. [5th ed.], 598, § 43.) And it is not necessary that the statute should be pleaded as a defense to entitle the defendant to its protection. (Jackson v. Wood, 24 Wend., 443.) To that extent only the right to recover such rents and profits has been declared by the statute. (Id., 597, § 36.) And it cannot lawfully in any case exceed that, and be extended beyond six years from the commencement of the present suit. (Budd v. Walker, 9 Barb., 493.) In that respect, but in no other, the direction concerning the reference should be modified; and with that modification, the motion should be denied, without costs.

Davis, P. J., and Beady, J., concurred.

Motion denied, without costs, with the modification suggested in opinion.


text:
    GEORGE W. BLUNT, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Gommismners to open, streets in New Torh — right of to maintain action for fees — confirmation of report.

    In an action by commissioners appointed to open and widen streets in the city of New York under the act of 1813, it is not necessary to allege in the complaint or to prove upon the trial that their report has been confirmed by the court.
    Appeal from an order overruling a demurrer to the complaint. This action was brought to recover the costs and fees of the plaintiff, as one of the commissioners of estimate and assessment, “ in the matter of opening of Sixty-fifth street from Third avenue to the East river.”
    The only question brought up by the appeal was, whether the complaint should have alleged that the commissioners’ report was confirmed by the court.

      D. J. Deem, for the appellants.

      Thomas D. Oottman, for the respondent.
   DANIELS, J.:

The point that this action cannot be sustained by the plaintiff without joining the other commissioners of estimate and assessment who acted with him, was not taken by the demurrer, and for that reason cannot be considered upon this appeal. The only objection made to the complaint was, that it did not contain facts sufficient to constitute a cause of action. And its deficiency in that respect, was limited by the argument to the omission of the averment that the commissioners report had been confirmed by the court. What finally became of the proceeding in no way appears, but it is contended on the part of the defendant that it should have been alleged that the report made was confirmed, before an action could be properly commenced for the recovery of the commissioners’ fees. Whether the defendant is right in that position is the only point presented by this appeal. The proceedings themselves do not become final or effective, until they have been confirmed by the court. And for the purpose of rendering them complete in that respect very ample powers have been conferred upon the court. It may refer them bach to the same commissioners, or to others from time to time, for reconsideration and correction, or direct their discontinuance when the confirmation is opposed by a majority in amount of the persons, who appear by the report to be interested either in the assessment for benefits or the awards of damages. (Revised Laws of 1813, chap. 86, § 1Y8, vol. 2, p. 413; Laws of 1839, 182, chap. 209, § 1.) And within four calendar months after the confirmation of the report, it has been made the duty of the defeudant to pay to the persons and bodies corporate respectively, “in whose favor any sum or sums of money shall be estimated and reported by the said commissioners, the respective sum or sums so estimated in their favor, respectively.” And in case of default after an application for payment, then an action may be maintained by either of such persons for the recovery of the amount awarded. (Yol. 2, R. L. of 1813, 418, § 183.) And all moneys paid or for which the defendant may become liable to make payment, including the charges and expenses of the estimate and assessment and report that may be made in the premises, and all such other expenses, disbursements and charges also, as may arise or take place by and in consequence of the provisions of this act, for and about the opening of any such public square, or place, street or avenue, or part or section^ of a street or avenue so to be opened, or laying out, forming or extending, enlarging or otherwise improving any such street or public place, etc., except such sums as may be assessed upon the defendant, shall be borne and reimbursed” “ by the parties and persons interested and entitled as owners or otherwise, unto and in the lands, tenements, hereditaments and premises deemed to be benefited thereby,” etc. (Id., 419, § 185.) While these provisions authorize and provide for the assessment and collection of the awards, only after the confirmation of the report, they do not render the right of the commissioners to their fees and expenses dependent upon that circumstance. And the intent to make that right dependent on confirmation cannot "reasonably be inferred from the fact that such fees and expenses may, to the extent mentioned, be assessed upon the property benefited by the improvement. The charges and expenses of the commissioners are provided for as an independent demand, to be added to the sums the defendant may become liable to pay by way of damages and compensation on account of the improvement to be made. The latter in express terms have been rendered dependent on the confirmation of the report, but the former have not either in terms or by reasonable implication. And it may reasonably be presumed to have been the intention of the law that the condition on which the payment of the awards was made dependent, was not designed to extend to the liability for the charges and expenses, because that was not so declared. The legislature’s attention was directed to this subject, and in its disposition this condition was not extended beyond the awards themselves. The omission to provide for any such extension in terms as would include the charges and expenses is evidence that the intention to do that was not designed to be included in the act.

The purposes not to render the commissioners’ right to compensation dependent on the confirmation of their report, is further and more clearly evinced by the provisions in terms made for their payment. The preceding act of 1807 provided that their compensation and all reasonable expenses for maps, field notes, monuments, chain bearers and assistants, should be paid by the defendant, and assessed as part of the expenses of the improvement. (Laws of 1807, 129, chap. 115, § 12.) And the amendatory act of 1813 was still more explicit on the subject, for it ¿declared “ that the commissioners who shall enter upon the duties of their appointment shall each be entitled to receive the sum of not more than four dollars, besides all reasonable expenses for maps, surveys and plans, clerk hire, and other necessary expenses and disbursements, for each day they shall respectively be actually employed in the duties of their appointment, the same to be paid by the mayor, etc., of the city of New York,” and included in the assessments to be made for benefits. (Yol. 2, Laws of 1813, 422, § 189.) And the act of 1818 made their payment to depend solely upon the same circumstance, that is, entering upon the duties of their appointment. For their services performed and their expenses incurred in that manner, it in terms declared they should “ be paid by the mayor, aldermen and commonalty of the city of New York.” (Laws of 1818, 205, chap. 213, § L) These sections created a positive obligation to pay, dependent only on the circumstance that the commissioners should discharge the duties of their appointment. A further obligation has since been added, requiring their costs and charges to be taxed before they shall be allowed or paid. (Laws of 1839, 185, chap. 209, § 12.) But no other change in the preceding law was made. Neither that, nor either of the other acts contains any thing which can properly be construed as depriving the commissioners of their costs and charges, because the report made by them may, in the end, have failed of confirmation. Such a provision would be unreasonable, unless it should appear that the failure resulted from the defective performance of their own duties, and if that should be shown such a provision would probably prove to be unnecessary for the proper protection of the defendant.

The complaint shows that the commissioners performed the duties assigned to them, and that the plaintiff’s bill has been lawfully taxed. And as no further objection than those already disposed of was taken to its sufficiency, the demurrer to it was properly overruled. That an action can be maintained for the recovery of such a demand was held in People v. Green (1 Hun, 2, 14), and cases there referred to.

The order appealed from should be affirmed with costs, with leave to defendant to answer in twenty days on payment of the costs of the demurrer and the appeal from the order.

Davis, P. J., and Beady, J., concurred.

Order affirmed with costs, with leave to defendant to answer in twenty days on payment of costs of demurrer and appeal from the order.


author: Daniels, J.:

text:
    JOHN A. GRAY, Respondent, v. SAMUEL W. GREEN, IMPLEADED, etc., Appellant.

      Contract — refusal to perform — when it constitutes a breach— Customary mode of payment — deportare from — notice of — Neglect to pay money into court, after tender — party changed with interest and costs.

    To entitle a party to maintain an action for a breach, of a contract on the ground that the other party has, before the arrival of the time therein designated for the performance of the acts therein provided for, refused to perform the same, it must be shown, unless the refusal has been actedjm. that such refusal was positive and was persisted in down to the time when the performance should have been made or tendered, or that the party had rendered himself unable to perforin the contract on his part.
    Where parties to a contract have modified or given a practical construction to its terms — e. g., as to the manner and place of making payments thereunder — such modification or construction continues binding upon them, until one or the other refuses to extend it further and communicates that conclusion to the other party.
    Where a party, after making a tender, neglects to pay the same into court, he is liable for interest thereon together with the costs of the action.
    Appeal from judgment in favor of the plaintiff, entered on the trial of the action at the Special Term.

      Edward W. Dickerson, for the appellant.

      Clarkson N. Potter, for the respondent.
   Daniels, J.:

The judgment recovered was for the whole amount unpaid upon a contract entered into between these parties on the 30th day of April, 1869. By its terms, the defendant agreed to pay the plaintiff $100,000, in installments of $2,500 each, with interest, on the amount unpaid, on the first days of August, November, February and May of each year, until the whole sum should be paid. It was further agreed that if the defendant should fail, or neglect to pay either installment, with the interest as it should become due, and it should remain due and unpaid for thirty days, that then the entire sum of $100,000, or the balance thereof unpaid should, at the option of the plaintiff, become immediately due and payable.

On the 14th of May, 1869, the plaintiff gave the defendant specific directions, by letter, concerning the disposition to be made of moneys becoming ckie under the contract. And on the 5th of November, 1869, he, in the same manner, gave further directions upon the same subject, by which he made the defendant, for the time being, his private banker. The defendant acquiesced in, and assented to, these directions, and acted according to their tenor and effect until April, 1870. After that, all the payments upon the contract were made to the plaintiff, and received by him at the office or place of business of the defendant, to and including the installment which became due on the 1st day of November, 1872. That mode of performance of the contract was tacitly adopted and conformed to during the intervening period of time. The practice was so uniform, in this respect, that it was found by the court to have become their established custom for the defendant to give written notice to the plaintiff at the time when the payments became due under the contract, specifying the amount due, and stating that it was ready to be paid at the office of the defendant, and the plaintiff called for the money and afterwards receipted for it on the receipt book of the defendant, at his office. This was done in respect to every payment, except those which were paid by the defendant, as the private banker, or the attorney in fact, of the plaintiff. And it indicated the existence of an understanding that the payments should be made and received at the defendant’s office, although no place of payment was mentioned in the contract, and that it should be performed in that way. It was a practical construction or modification of the terms by the acts of the parties, which continued to be binding upon them until one or the other refused to extend it, and intimated that conclusion to the other party. (Harris v. Troup, 8 Paige, 423; Boody v. Rutland R. R. Co., 24 Ver., 660; Barker v. Troy, Rutland and Burlington R. R. Co., 27 id., 767.) And as long as it continued to be so performed, without notice of any dissent from this practical arrangement, no forfeiture of the principal credit was incurred.

But before the payment of February 1, 1873, became due, a letter was written by the defendant to the plaintiff, from which it was held the latter could infer that these payments were to be discontinued. It was written on the 23d of January, 1873, and it contained the assertion that there had been a clandestine arrangement, to which the plaintiff was a party, by which a large portion of the proceeds of waste paper had been diverted from the treasury of the firm that had been dissolved by the agreement in controversy, and concluded by making a claim against him on that acqount to the extent of $25,000, besides interest, and demanding-payment of the amount. The letter made no allusion to the contract, and in no way intimated that the installments, payable by its terms, would not-be met afterwards as they previously had been. Whatever the plaintiff might have suspected, it, in fact, contained no refusal to make such future payments. And that, at least, was necessary to justify the plaintiff in abandoning the arrangement previously existing, as long as no notice of the existence of any such design was in any form given by him. The rule upon this subject requires that there must be a positive refusal to perform when it is made before the time fixed for performance by the contract, to justify the other party in regarding that as a breach, or the party alleged to be in default must have deprived himself of the ability to do the act required on his part. (Bernardy v. Harding, 8 Exch., 822; Skinner v. Tinker, 34 Barb., 333; Lovelock v. Franklyn, 55 Eng. C. L., 371; Newcomb v. Brackett, 16 Mass., 161; Leigh v. Patterson, 4 Eng. C. L., 267; S. C., 8 Taunt., 540; 2 Moore, 588.) And other authorities have held that a mere refusal itself, before the arrival of the time designated for performance, not united with any other circumstance tending to show an actual abrogation of the contract, or a design on the part of the other party to act upon it, will not be sufficient to maintain an action for the breach of an existing agreement. Phillpotts v. Evans (5 Mees. & W., 477); Ripley v. McClure (4 Exch., 358, 445); Danube, etc., Railway Co. v. Xenos (103 Eng. C. L., 151; affirmed, 106 id., 824), and Hockster v. De Latour (20 Eng. L. and Eq.), 157, and Coet v. Ambergate, etc., Railway Co. (6 id., 230), are also cases of that description. The most that was sanctioned by the last case was that a refusal unretracted, and continuing down to the time stipulated for performance, would constitute a breach of the agreement. (Id., 237.) And where the refusal has not been acted on, that is the result of the authorities upon this subject. They were generally referred to and considered in the case of Crist v. Armour (34 Barb., 378), and the conclusion was maintained that a mere refusal to perform would only constitute a breach where it was persisted in to the time when performance ought to be made or tendered, unless the party alleged to be in default had incapacitated himself to do what he had undertaken to perform. (Id., 387.)

The effect of a mere refusal has been stated to be, that if before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it, this of itself does not amount to a breach thereof, but if such expression of intention remain unretracted when the time arrives for the other party to perform his part of the contract, this fact will dispense with such performance. (2 Chitty on Con. [11th Am. ed.], 1079, 1080.) Under this principle, which appears to be very well sustained, and it certainly is a reasonable one, even if the letter could be properly construed into a refusal to make further payments until the claim asserted by it was adjusted, it was essential, as the plaintiff took no action upon it, that it should continue effective down to the time when the payment was to be made in order to relieve him of the obligation to call for the money. But that was not the case, as the evidence proved, and the court found the fact. Bor it appeared that on the 1st of March, 1873, which preceded the expiration of the thirty days within which the forfeiture could be saved by the customary and stipulated payment, the defendant drew his check on the Park bank for $3,651.40, the amount stated by him to be then due and payable, and left a statement of it, with the cheek, with his book-keeper, for the purpose of delivery to the plaintiff, in ease he called, and notified the plaintiff thereof by letter, as>he had formerly done. And these facts were found as established by the court. They showed that it was no part of the purpose of the letter, to refuse payment under the terms of the contract. And the plaintiff had notice of that fact before the time had passed, in which the forfeiture of the credit could be avoided by payment of the installment. If the letter could have been construed into a refusal to pay by the plaintiff, this was a plain retraction of it in time to save the defendant’s rights. It was a performance within the time allowed for the purpose of preventing the election by the plaintiff to declare the entire debt due and payable. The law does not favor forfeitures, and this was sufficient to avoid it according to the established practice and understanding of the parties, concerning the manner in which payment should be made and received under the terms of their contract. When the plaintiff received notice that the payment awaited his own action in the accustomed manner, it was his duty, if he designed to return to the letter of the agreement, which had never been insisted upon, to notify the defendant of the fact. Without such notice, he could have no knowledge of the plaintiff’s intention. And good faith required that he should not endeavor to secure an unjust advantage in that manner. The result of his success would be more than the mere recovery of his debt, for it was made a lien upon the property for the price of which it was incurred, and which the judgment required to be sold by a receiver for its satisfaction. Before that should be sustained, under the circumstances shown, the defendant ought also to have been admonished that the mode of performance previously sanctioned, and practically assented to by the acts of the parties, would no longer be accepted. The letter of the first of March indicated that the defendant supposed that practical arrangement still remained in force, and if he was then indisposed to assent to it, the plaintiff should, at least, have so informed him, when he might have tendered the payment, personally, which he still believed could well be made by leaving the check at his office. The defendant was misled by the course of their former dealings, and by his ignorance of the plaintiff’s probable purpose. To permit him to succeed tinder that state of the case without attempting, in any manner, to correct the misapprehension which it was plain existed, and had, in part, been produced by his own previous acquiescence, would be an injustice that should not be allowed.

After it became evident that the plaintiff had concluded to insist upon a personal offer of the payment to himself, and not to call at the defendant’s office for it, as he previously had done, and on the 11th of March, 1873, the defendant tendered him the. sum of $3,656.20, which he refused to receive unless the charge was retracted that was contained in the letter of the twenty-third of January. That was not done, and the money was not accepted. On the twenty-eighth of May following, a further tender was made of $3,607.17, which was also refused. These offers and refusals in no way changed the relations of the parties as they stood on the first of March, when the defendant was notified that the check for the installment that had become due awaited him in the usual manner. And that was sufficient to prevent the plaintiff from claiming the whole amount of the contract as due, as long as no dissent from the former mode of payment had then been expressed or intimated by him. It was a performance of the terms of the contract, as the parties had practically arranged it by their own previous conduct.

The money tendered or offered by the defendant was not paid into court with his answer, and that, it has been urged, deprived him of all benefit from it. So far as interest upon the installment itself is concerned, and also as to the right of the plaintiff to costs in the action, the objection is undoubtedly good. To that extent, the defense must fail, from the omission to pay the money into court. (Brown v. Ferguson, 2 Denio, 196; Simpson v. French, 25 How., 464; Roosevelt v. N. Y. and Harlem R. R. Co., 45 Barb., 554.) Bun, for the purpose of avoiding the forfeiture, that was not required, because the debt claimed on that account was not the one required to be extinguished by the payment. That was a collateral consequence entirely, which was avoided by the performance, of the contract on the part of the defendant. To prevent its occurrence, all that was required was that his default in payment should not exceed in its duration the thirty days mentioned in the contract. And as the check was drawn and left for the plaintiff, and notice given to him of those facts conformably to the mode previously adopted for the transaction of the business within the thirty days, the defendant did not so far fail in his performance, as to entitle the plaintiff to demand and recover the whole amount of the debt mentioned in the contract. That fixed for that time the rights of the parties, and a failure to pay the installment tendered into court did not have the effect of divesting them. It affected merely the amount of the tender, and not the right to the debt which had not then matured, and which was an entirely different subject. (Hunter v. Le Conte, 6 Cowen, 728; Kortright v. Cady, 21 N. Y., 343, 354, 355-366.) The judgment in this case, which was for the whole sum unpaid on the contract, was erroneous, and it should be reversed and a new trial ordered, with costs to abide the event, unless, within twenty days after notice of this decision, the plaintiff will stipulate to reduce it to the amount due for the installment, payable on the 1st day of February, 1875, with the interest, according- to the terms of the contract, in which case it should be affirmed as so reduced, without costs of this appeal.

Present — Davis, P. J., Beady and DaNIEls, JJ.

Judgment reversed and new trial ordered, costs to abide event, unless within twenty days plaintiff will stipulate to reduce it to amount due for installment, payable on February 1, 1875, with interest, according to the terms of the contract, in which case it should be affirmed, without costs.


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    GEORGE W. CASSIDY and others, Respondents, v. WILLIAM J. SCHEDEL and others, Appellants.

      Sureties — extension of time — when liability not affected by.

    An. action having been commenced, to foreclose a mortgage upon premises in the possession of the mortgagor, a bond was, on the 28th of November, 1873,’ given by him with two sureties, conditioned for the payment by him of a monthly rent of $1,600, payable on the first of December and on the first of each succeeding month. On the 24th of January, 1874, an agreement was made by which he withdrew his answer in the foreclosure action and agreed that judgment might be taken on May 16, 1874.
    In an action to recover the installments falling due December first and January' first, the sureties claimed that the time of payment had been extended without their consent, and that they were thereby released. Held, that as the installments were due at the time the agreement was made, and as it related only to the mortgage debt itself, that then- liability was in no way affected thereby.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.

      William Hildreth Field, for the appellants.

      Blumenstiel & Aseh&r, for the respondents.
   DANIELS, J.:

The recovery in this action was for two monthly installments of $1,500 each, besides interest, payable upon a bond executed by the defendants appealing, as sureties for William J. Schedel. He was in the occupation of premises affected by a mortgage in process of foreclosure, and on motion he was required to give security by a bond of the nature of the one in suit, for the payment of an occupation rent in monthly payments, and to comply with the terms of the order, he as principal, and the appellants as his sureties, executed and delivered the bond on which the action was prosecuted. The bond bore date on the 28th of November, 1873, and the monthly payments matured by its terms on the first day of each month, commencing with the succeeding month of December. On the 22d day of January, 1874, after both installments had become due a stipulation was entered into in the foreclosure case, by which the answer of the defendant Schedel was withdrawn, and the plaintiffs allowed to perfect their judgment in the case on the 16th of May, 1874. This may have resulted in an extension of the time of payment of the mortgage debt, and upon the theory that it did, and they were discharged in consequence of it, the sureties in the bond defended the. present action. But, as the installments had matured and become due- upon the bond on the first days of December and January preceding the making of the stipulation, and that in no way related to any thing but the mortgage debt itself, it seems to be reasonably clear that no such extension as would discharge these sureties, was in any form provided for. They became sureties for the payment of what was deemed a reasonable rent for the occupation of the premises while the foreclosure suit was pending, because the property was deemed an inadequate security for the debt, and their liability had become fixed before the stipulation was made, and by nothing contained in it was their principal to have indulgence or further time, for the payment of either of the installments on which the recovery was had. They were at liberty at any time to pay up the. installments and proceed against their principal for their reimbursement. There was nothing in the stipulation in any form intei’fering with the exercise of that right; and to discharge sureties the extension must be of such a nature, as in some form would prevent that from being done. It is only where the agreement can be attended with such a result, that sureties have been held to be discharged from their obligation by means of it. (Billington v. Wagoner, 33 N. Y., 31-33.)

Both the principal and his sureties were in the same situation as to this debt after, as thóy were before the stipulation was entered into. It merely provided a time before which judgment should not be taken for the mortgage debt, and neither expressly nor impliedly referred in any manner to the bond, or the payments which had matured at that time upon it, and for which the judgment was recovered. No defense was established in the case, and the court was right in directing a verdict for the plaintiffs. ' The judgment should be affirmed.

Davis, P. J., and Beady, J., concurred

Judgment affirmed.