text:
    John H. Ashton et al., App’lts, v. The City of Rochester et al., Resp’ts.

      (Court of Appeals,

      Filed April 19, 1892.)

    1. Municipal cobfobations—Rochesteb—Common council—Jubisdiction—Stbeets—Res ad judio ata .
    Under the charter of the city of Rochester the power of contracting for paving, etc., devolves upon what is known as the executive board afUr the common council has authorized the work and designated the district upon which the assessment is to be laid. On January 8, a resolution was-adopted by the common council to do the paving in question, and the matter was turned over to the executive board. More than a month thereafter-a motion was adopted in the common council “that action on the final ordinance for Lake Ave. * * * be reconsidered,” and subsequently another that such action be indefinitely postponed. Subsequently the. executive board, in compliance with a writ of mandamus, awarded the 0 contract, and the cost was assessed, with the usual hearing, and confirmed, by the common council. Held, that the decision upon the application for the mandamus was a judgment of a court of competent jurisdiction, and. could not thereafter he questioned collaterally by any party represented in. the proceeding.
    2. Same—Estoppel.
    Such judgment bound these plaintiffs, though not parties by name, as-they had the statutory notices of all the proceedings, and were represented by the executive board, who acted in a certain sense as agents of the property holders.
    Appeal from judgment of the supreme court, general term,, fifth department, affirming judgment dismissing the complaint.

      George T. Parker and John van Voorhis, for app’lts, Henry J*. Sullivan, for resp’ts.

       Affirming 38 St. Rep., 974.

   O’Brien, J.

The plaintiffs sought to enjoin the collection of a local assessment alleged to" be apparently valid but in fact void, imposed by the municipal authorities of the city of Rochester, to defray the cost of a local improvement. The record shows that, the plaintiffs are, respectively, the owners of parcels of real estate, situate on Lake avenue between Vincent place and Lyel avenue- and Driving Park avenue, which have been assessed for the im« provement. They brought this action in their own behalf, and in. behalf of all other persons having property fronting on the street, and assessed for the improvement, for the purpose of obtaining a. judgment declaring the assessment null and void, and enjoining the city treasurer, who is also made a defendant, from issuing his. warrant for the collection thereof. The courts below have determined the controversy against the plaintiffs’ contention, and the only question here is whether there is any legal error in that determination. The question is really one of jurisdiction in the authorities to make the assessment. Under the charter of that city (Laws 1880, chap. 14) the common council has power to order the paving and improvement of any street, and to pass the necessary ordinances requiring the same to be done and to determine the manner and cost of such paving, and to designate the portion of the city which should bear the expense thereof. The work when authorized and determined upon is to be performed by contract, but the power of contracting for the execution of the work is, by the charter, devolved upon another separate and independent body, called the executive board. The power of this board" to let and supervise the execution of the contract commences only after the common council has authorized the work and designated the district upon which the assessment is to be laid.

When the common council has authorized the particular improvement and. described the district upon which the assessment is to be imposed and ascertained the expense thereof, then the-assessors of the city are to levy the amount upon the several lots- or parcels of real estate in the designated territory, in proportion, as-near as may be, to the benefit which such lot or parcel shall be' deemed by them to have received by reason of the improvement, subject to the correction and confirmation of the common. ■council. The assessment, when completed and confirmed, he-' comes a lien upon the several lots designated in the roll, and the same is delivered to the city treasurer, whose duty it is to collect ■the same.

On the 11th of December, 1888, the common council duly •adopted a resolution providing for paving the streets and avenues above mentioned with asphalt pavement, and therein directed the clerk to publish notice in accordance with the provisions of the charter for all persons, directed to be assessed, to appear at a meeting of the council, December 26, 1888, at which time all persons interested could be heard. At this meeting, after hearing all parties interested, the common council adopted the final resolution for the improvement, in which the work is particularly specified, and the whole expense thereof directed to be assessed upon the property therein described. There is "no criticism made upon the form or sufficiency of the resolution or the regularity of •any of the proceedings up to this point. The resolution, however, did not become operative, for the reason that it was vetoed by the mayor, till January 8, 1889, when it was again unanimously adopted, notwithstanding such veto. By reference to title seven of the charter it will be seen that the executive board is clothed with very extensive powers and intrusted with very important duties. The members are elected by the people, are required to devote their entire time to the business of the city, and are compensated by a fixed salary. They have the control ■of the expenditure of the funds for street purposes and they are' expressly made commissioners of highways of the city. The board can appoint and remove at pleasure the superintendent of streets and fix his compensation. It is plain, from reading the enumeration of the various powers conferred upon the board by •the charter, that the legislature intended to strip the common council of Rochester of most of the ordinary functions and powers that such a body exercises in other cities and transfer them to the •executive board.

' The common council has very little to do with respect to the -care, improvement and superintendence of the streets. The most important exception to this is the provision that whenever the expenses of any work or improvement shall be required to be paid for by a local assessment, the common council alone shall have power to pass the ordinance therefor. But when the common council has passed such an ordinance then the judgment and discretion with respect to such an improvement which .the charter has confided to the board for the public good is at once called into action. The question as to the necessity and propriety of improving a street by local assessment must be passed upon by the common council, in the first instance,, but when that body makes its decision another body, entrusted by law with the general subject of street expenditures and improvements, must carry it out and the latter body is thereby vested with jurisdiction on the subject. On the 19th of March, 1889, and more than a month after the resolution was passed and sent to the executive board, a motion was made and adopted in the common council, “ that .action on the final ordinance for Lake avenue * * * he re•considered,” and at a subsequent meeting on March 28, 1889, another resolution was passed “ that further action on the pending final ordinance for Lake avenue asphalt improvement be indefinitely postponed,’’ and that the surveyor be ordered to prepare a new first ordinance for the improvement. The plaintiffs claim that this motion and resolution had the effect to withdraw from the board all authority conferred by the original resolution. The •executive board after receiving the copy of the first resolution proceeded to act and advertised for bids and received the same, .and on March 12, 1889, postponed action thereon from time to time until March 29, 1889, when it laid the matter on the table. On the 25th of April, 1889, the board was served with a peremptory writ of mandamus from the supreme court, granted ¡after a full hearing, requiring them to award the contract and to ¡show to the court on a day subsequently in what manner the writ was obeyed.

On the 29 th of April the board entered into a written contract for the work, in accordance with the first ordinance. The contract was performed and on the 13th of October, 1889, the board ■certified the cost to the common council, in conformity with the charter, and that body then directed the assessors to assess the .•amount upon the parcels of land described in the original resolution. The assessors made the assessment and published notice of 4i hearing for all persons aggrieved, and after such hearing certified the roll and delivered it to the common council. That body ■also published notice for a hearing before them, and, after such hearing, confirmed the assessment and caused the roll- to be delivered to the city treasurer for collection. The resolution of the ■common council confirming the assessment was passed some time .after June 6, 1890. The plaintiffs’ claim for relief is based upon the fact that the common council reconsidered and subsequently postponed indefinitely the resolution authorizing the improvement and that, consequently, all subsequent proceedings were invalid. If the question as to the legal effect of the action of the common council in resolving to reconsider its former action was still open to the plaintiffs, we would be inclined to hold that the resolution was, by the adoption of the motion to reconsider, brought back to the stage in which it was before the final vote by which it was originally passed. The vote on the resolution was reconsidered .and, consequently, the effect which it would otherwise have was lost. Jefferson’s Manual, § 43 ; Roberts’ Rules of Order, 66.

The record shows that upon the application of certain of the property owners on the street, other than the plaintiffs, liable to be assessed for the improvement, the supreme court at special term awarded a mandamus against the executive board, commanding it to proceed upon the resolution and to award a contract for the performance of the work. That, acting in obedience to this command, the board did award the contract in accordance with the provisions of the charter prescribing the powers and duties of the board.

The decision upon the application for the mandamus was a judgment of a court of competent jurisdiction. It adjudged that, the resolution of the common council was in fall force, notwithstanding the motion to reconsider, and that it was the clear legal duty of the executive board to proceed and let the contract. This; judgment could not thereafter be questioned collaterally by any of the parties, nor any one else who was represented in this proceeding. They might attack it directly by appeal or motion to-set aside, or for a rehearing, but so long as it remained unreversed and not set aside it bound every one who was a party, or repre-. sented, in any subsequent collateral action or proceeding. It já quite clear that it bound the property owners who applied for the-writ, the executive board and the city. The only question is-whether it bound these plaintiffs who were not parties by name. But the judgment of a court of competent jurisdiction will sometimes operate as an estoppel and a former adjudication against persons who were not named in the proceeding and who were not parties to the record by name. It is enough if they were represented in the action or proceeding which resulted in the judgment, or were entitled to be heard. Y7hen a judgment is rendered against a county, city or town in its corporate name, or against a board or officer who represents the-municipality, in the absence of fraud or collusion, it will bind; the citizens and taxpayers. This is upon the principle that they áre represented in the litigation by agencies authorized' to spealc for them, and to protect their interests. Herman on Estoppel,. Yol. I., p. 166; Clark v. Wolf, 29 Iowa, 197; Lyman v. Faris, 53 id., 498; Tredway v. Sioux City & P R. Co., 39 id., 663; Freeman on Judgments, § 178; Robbins v. Chicago City, 4 Wall., 657; S. C., 2 Black, 418; Preble v. Supervisors, 8 Biss., 358.

When a judgment is rendered by a competent court awarding a writ of mandamus against a board of "supervisors or other-body or officer having power to audit claims against a county or other municipality, commanding them or him to audit a claim or demand against the county or municipality, and it is-audited in obedience to such command, the validity of the claim cannot be questioned subsequently by the taxpayers in any collateral action or proceeding. Their remedy is to appeal from the-judgment awarding the writ or move for a rehearing. So also a receiver of a corporation, appointed in an action by the "People-for dissolution, represents the creditors, and a judgment that, would estop him estops them also. Herring v. N. Y., L. E. & W. R. Co., 105 N. Y., 340; 7 St. Rep., 547.

We are not aware of any reason for holding that this principle-does not apply to the plaintiffs in this case. True "there is not., a general tax,;but a special and local assessment. But it is nevertheless an exercise of the taxing power and its validity as well as the right of the plaintiffs to question or assail it in the courts, rests on the same principles as are applicable to an assessment or tax for general purposes. If the expense of the improvement was to be paid out of the city treasury, there would then be little-doubt that an adjudication upon an application for a mandamus,. involving as this did the validity of the proceedings up to that time, would have bound all the taxpayers. Is the rule any different when a small part or even the whole of the expense is to be paid by the property owners within a certain district ? Is the ■principle changed because the area over which the tax was distributed is contracted ? The executive board laid the matter on ■the table, and, in effect, refused to act, treating the. resolution as rescinded by the common council. They were brought into court .and the very question involved was whether the board had authority to contract for the execution of the work, and the court held upon full argument and against the contention of the board •that they had. The question was whether they had power under ■the proceedings to make a contract and incur an expense which was to be paid by the property owners, and it was adjudged that they had and that it was their duty to do so. When the executive board was before the court on this application, they represented and spoke, not only-for themselves - and the city, but also the property owners who were to be bound by the contract, and whose property was to be assessed for the expenditure which the work embraced in the contract involved. When the court directed the board to make the contract the effect of its judgment was to direct the imposition of a tax upon the plaintiffs’ prop•erty. On that question the plaintiffs could have been heard and on their application were entitled to a hearing, and to be made parties to the proceeding and to appeal from the decision. This was a right that no court would have denied to them had they ■demanded it. The Code, § 452, provides that “ Where a person, not a party to the action, has an interest in the subject thereof, or in real property the title to which may in any manner be affected by the judgment, and makes application to the court to be made .a party, it must direct him to be brought in by the proper amendment.” People v. Alb. & Ver. R. R. Co., 77 N. Y. 232.

The executive board in making the contract and supervising •the work acted in a certain sense as the agents of the property owners, Matter of Anderson, 109 N. Y., 554; 16 St. Rep., 168, and, therefore, the judgment of the court that the resolution of the common council was still in force not only bound the agents but the parties they represented as well. There are cases where an order of a court, such as an order of confirmation, is a part of the statutory proceedings for imposing the assessment. Such an order, when made upon the application of the city might not be conclusive in all"cases upon the property owner as to jurisdiction or the validity of the proceeding, especially where statutory methods of review are provided. We do not now stop to point ■out cases where the principle we are now considering would, not apply. All we hold now is that it is applicable to the facts of this case. Granting that the resolution of the common council to make the improvement was, in fact, rescinded by the motion to ■reconsider still a competent court held otherwise in a proceeding to which the executive board was a party, and that board was •compelled by the judgment in that proceeding to make the contract which .they did. The plaintiffs looked on, neglected to intervene in the application for the mandamus, or to appeal from the order granting it. They knew that the contract was made- and the work on the street in front of their property executed and they have the benefits of the same. They witnessed the proceedings by which the tax was assessed and confirmed and they made no resistance until the proceedings were completed and the expense incurred. We think that under such circumstances the plaintiffs -are estopped from raising the question now th§4 the executive board was without power to contract for the work by reason of the motion to reconsider the resolution in the common council. The plaintiffs had the statutory notice of all the proceedings under the charter, and the proceedings before the court were of such a public nature and they were so connected with the-interests of the plaintiffs, that we must assume that they had knowledge of all that transpired.

This court has sanctioned the principle stated in Robbins v. Chicago, 71 U. S.,657, that “persons notified of the pendency of a suit in which they are directly interested must exercise reasonable-diligence in protecting their interests, and if, instead of doing so, they willfully shut their eyes to the means of knowledge which, they know are at hand to enable them to act efficiently, they cannot subsequently be allowed to turn around and evade the consequences which their own conduct and negligence have superinduced.” Village of Port Jervis v. First National Bank, 96 N. Y., 557.

In an inquiry with respect to the binding force of a former judgment the term “ parties ” includes all who are directly interested in the subject matter, and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. Robbins v. Chicago, supra.

There is a stipulation in the record by the respective attorneys-to the effect that none of the plaintiffs were parties or privies to' the proceeding for the mandamus. This, of course, was not intended to bind the court upon any question-of law arising upon undisputed facts. Its only effect is to establish a fact, namely,, that none of these plaintiffs were parties to that proceeding by name nor do they stand in the place of any of the property owners who applied for the writ. The legal conclusions to be drawn from the findings and the proceedings contained in the record were left open. While we nave not been able to concur in their reasons for the decisions given by the courts below, yet we think that the judgment was right and should be affirmed, with, costs.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    In the Matter of Opening Lexington Avenue. In re The New York Elevated Railway Co.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

      1. Eminent domain—Damages—Benefits.
    There is no presumptipn that by taking away a portion of a building it can derive any benefit therefrom, and that it will be more valuable as a building after it has been mutilated than it was before.
    2. Same.
    Where a portion of a building has been taken the proper measure of damage to the building is the difference between the value of the building as it stood before, and what would be the value of the remaining portion; after the improvement had been consummated.
    3. Same—Report.
    It is proper for the commissioners to fix the valuation of the property as of the date of their report. It is impossible for them to ascertain what it will be at the time the report is finally confirmed.
    Appea-l from order confirming the report of the commissioners of estimate and assessment.

      J. A. Deering, for app’lts ; Carroll Berry( for resp’t.
   Van Brunt, P. J.

This is an appeal from the order confirming the report of the commissioners. And it is claimed that the proceedings of the commissioners were irregular and not in accordance with the statute, and that the commissioners did not award just compensation to the appellants.

The first point has already been disposed of upon the appeal from the order denying a motion to vacate and set aside the report of the commissioners. And it is only necessary to consider here the point last made.

It is claimed that the commissioners did not make an estimate of the loss and damage, if any, over and above the benefit and advantage or of the benefit and advantage, if any, over and above the loss and damage to the appellant, as required by § 970 of the Consolidation act

This objection is founded upon the fact that the commissioners made a map or survey called a damage map, 'upon which they laid out the parcel of land seventy-five feet in width, running from Ninety-eighth to Ninety-ninth street, that being the land included within the line of the street, and the portion of the building included therein. This parcel óf land they divided into nine small parcels, and for each made a separate award, amounting in all to $29,248.40. They then made a separate award for the building, it being partly situated upon said nine parcels, of $22,000, the award for land and buildings aggregating $49,248.40, They then made a map showing the land on both sides of the avenue, which they divided into separate parcels and assessed each of those parcels separately.

The appellant claims that the amount awarded for the separate parcels of land and for the building could not represent the actual damage to the property, which should have been considered as a whole, for the actual damage was the difference in value of the entire property before and after the improvement.

It appears from the affidavit of one of the commissioners that they considered the measure of damages, as far as the buildings were concerned, to be the value of the buildings as they stood before and what would be the value of the remaining portion after the improvement had been consummated.

This it is claimed was a method which would necessarily take into consideration any benefit to the remaining lands and structures and be the net damage to the appellant. This view, although specious, has really no foundation in fact There is no presumption that by taking away a portion of a building it can derive any benefit therefrom and that it will be more valuable as a building after it has been mutilated than it was before. The record shows that as to the land the valuation proceeded upon an entirely different basis. The commissioners made awards for the land taken, and assessed the benefit upon the land benefited, and in the assessment of the value of the land taken the commissioners nowhere considered the benefit of the taking to the remaining lands, and as we have already seen there is no presumption that the taking away of a part of a structure makes that which remains more valuable, there does not seem to have been any error in the proceedings of the commissioners in this respect.

The claim is also made that the commissioners erred in not awarding the value of the property as of July, 1890, when their report was finally presented for confirmation and was confirmed, but that they reported the value as of the time when they made their report.

It is undoubtedly true that in proceedings for the opening of streets the valuation to be fixed by the commissioners is as of the time of the termination of the proceedings, and the closest approach which the commissioners can make to a compliance with this rule is to fix the valuation as of the date of their report. It is impossible for the commissioners to ascertain what will be the valuation of the property at the time the report is finally confirmed. That would be the merest speculation, and as delays in the confirmation of these proceedings ordinarily arise from the obstacles placed in the .way by those whose property is taken, no great hardship seems to result.

In the case at bar much of the delay arose from the dilatory proceedings upon the part of the appellants.

We think, therefore, that the fact that a considerable time elapsed from the time the report was originally made before it was confirmed in no way affects the correctness of the valuation as given by the commissioners.

The order appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    In the Matter of Opening One Hundred and Eighty-First Street between Tenth and Eleventh avenues. In re Martha J. Fitzgerald.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Eminent domain—Award—Interest.
    A report of commissioners and order confirming the same was opened on application of a property owner who failed to appear before the commissioners by mistake, on condition that she stipulate to claim only the value of the land as it existed at the time of the original assessment. Held, that she was estopped by such stipulation from claiming interest on . the award made at the rehearing.

      Appeal from order confirming the report of commissioners.

      P. B. Olney, for app’lt; Jno. P, Dunn, for resp’t.
   Van Brunt, P. J.

In April, 1884, the corporation counsel gave notice of a motion for the appointment of commissioners of estimate and assessment in this proceeding. In May such commissioners were appointed. In July, 1888, the commissioners made and filed their report, and no objection being made thereto, in December, 1888, the same was confirmed at a special term of the supreme court.

In and by said report the commissioners awarded for the lands within the line of the street to unknown owners four dollars and assessed said award and costs upon the adjacent property. In January, 1890, the appellant Fitzgerald gave notice of a motion for the opening of said report and order of confirmation upon the ground of mistake on her part in not appearing before the commissioners ; and that the commissioners be required to make for the land owned by her a substantial award. This application was opposed upon the part of some of the proper owners, but was granted on the 23rd of April, 1890.

An appeal was taken by said property holders to the general term, and the general term affirmed the order on condition that Mrs. Fitzgerald would stipulate to claim only the value of the land as it existed at the time of the original assessment. 35 St. Rep., 548. The reason for thus restricting the appellant’s claim, as appears by the opinion of the general term, was because of the claim made upon the part of the property owners, who would be assessed for the land taken, that the granting of the relief desired to Fitzgerald would operate as an injustice to them in that the property taken for the improvement since the original proceedings were commenced and the appraisals made had increased in value, and for such increase an assessment would be levied upon them, which they would not have been required to pay had the mistake not have occurred. This position the court thought well taken, and accordingly as a condition of granting the relief, and in order to avoid all question of the power of the court to modify the order in the manner suggested, and to restrict the claim of the appellant to the value of the land at the time of the original assessment, compelled her to "stipulate that she-would claim before the commissioners only the value of the land as it existed at the time of the original assessment, and not its value at the present time, and the appellant having given said stipulation, the order as modified by such stipulation was affirmed, without costs. An appeal was taken from the order of the general term to the court of appeals, which was affirmed in April, 1891. In June, 1890, notice of hearing before the commissioners was given by the corporation counsel, and several meetings were subsequently had extending to the 30th of January, 1891, at several of which testimony was taken as to the value of the land owned by the appellant Fitzgerald.

It was claimed before the commissioners that Mrs. Fitzgerald was not only entitled to her award for the value of the land as it existed at the time of the original assessment, but to interest upon the same. This claim was rejected by the commissioners, and they made an award to the appellant for the value of the land as of the time of the original assessment, and made their report accordingly. Upon motion to confirm the report, objection was made by the appellant because of the failure to allow interest; but notwithstanding such objection the report was confirmed, and from the order of confirmation this appeal is taken.

It was not the intention of the general term in opening the proceedings and allowing the appellant to present her claim to the commissioners that she should recover anything more than she would have recovered had she presented her original claim.

■It was deemed by the court that this was the only just disposition to be made of the proceedings, and they, therefore, as the condition of granting the favor of allowing her to go before the commissioners, required that she should be required to stipulate to claim only the value of the land as of the time of the original assessment. This was all that the parties who were liable to be assessed therefor should in equity be called upon to pay. This was clearly equitable, and the appellant accepted the condition and made the stipulation. If she was dissatisfied with its terms, she need not have accepted the same. The claim now presented, that interest upon this award should be allowed, certainly is not in harmony either with the stipulation or the order of the court; and it certainly was not intended by the court that any such recovery should be had, even if it was possible that it might be had.

It is certain that the adjacent property owners should not be involuntarily mulcted in the amount of the interest upon this award, and there is no other source from which it could have been collected, and it was for the purpose of preventing an injustice of this kind that the court required the stipulation upon the part of the appellant as a condition of granting the relief.

We think, therefore, that the order should be affirmed, with' costs.

Lawrence, J., concurs.


author: Lawrence, J.

text:
    Paul F. O’Neill, Resp’t, v. Emory M. Van Tassell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Vendor and purchaser—Incumbrances—Party wall.
    A contract for the sale of real estate recited that the north wall was a party wall and bound the vendor to give a deed free from all incumbrances. It appeared that the south wall was also subject to a party wall agreement, and that the premises were subject to payment of, a proportion of the expense of maintaining an alley in the rear. Held, that the premises were subject to incumbrances which justified the purchaser in refusing to accept the deed.
    Appeal from judgment in favor of plaintiff.

      W. H. Arnoux, for appl’t; Charles M Miller, for resp’t.
   Lawrence, J.

On the 11th of February, 1890, the defendant entered into a contract with the plaintiff, by which, for the consideration therein specified, he agreed to sell to the plaintiff two certain lots of land in the Eighth ward of the city of New York, together with the buildings' thereon erected, now known and designated as “ Nos. 22 and 24 Eenwick street,” said lots, taken together, being about forty-one feet in width in front and rear and sixty feet in depth. The agreement recites that the northerly wall of No. 24 was a party-wall, and the defendant agreed to execute, acknowledge and deliver to the plaintiff a proper deed for the conveying and assuring to him, etc., the fee simple of the said premises, free from all incumbrances. The title was subsequently rejected by the plaintiff, on the grounds that the land was deficient in quantity; second, that the premises were subject to a party-wall agreement affecting the southerly wall of the building; and, third, that the premises were subject to the payment of a proportion of" the expense of maintaining an alley adjoining the premises in the rear, and the taxes and assessments thereon. This action was brought by the plaintiff to recover $500 paid by him upon the execution of the contract, and $200, for expenses in the examination of the title. The justice before whom the cause was tried in his opinion states that the objection that the premises, instead of being about forty-one feet in front and rear, were, only thirty-nine feet and two inches in width, would not be sufficient to justify him in upholding the plaintiff in rescinding the contract; but he bases his decision upon the ground that, as the contract, stated that the northerly wall of No. 24 wa's a' party-wall, and made no reference to the fact that the southerly wall was likewise a party-wall, the purchaser was on that ground warranted in rejecting the title; and he found as a matter of fact that as, in and by the terms of the deed under which the defendant claims title, and prior deeds, the premises in question are subject to the bearing and paying of the just and equitable proportion of the expense of maintaining an alley adjoining said premises in the rear, and the taxes and assessments falling thereon, the premises were burdened with a covenant which rendered the title defective.

We are of the opinion that the conclusion which was reached at the special term was correct. This contract, like every other, is to be construed according to the intent of the parties, and it seems perfectly obvious that by the agreement the defendant intended the plaintiff to understand that only the northerly wall of No. 24 Eenwick street was a party-wall. If there had been nothing said about party-walls on either side, it is possible that the case of Hendricks v. Stark, 37 N. Y., 106, might have been deemed controlling in this case, although that casein other respects depended upon peculiar features which do not exist in this case. Here, however, the vendor has asserted, and the-vendee has been led to believe from the terms of the contract of sale, that there was only one party-wall; and we think that the plaintiff, the vendee, is entitled to insist upon the terms of his contract. This case more closely resembles the case of Stokes v. Johnson, 57 N. Y., 673, than the case of Hendricks v. Stark. There the plaintiff claimed to rescind the contract of sale on account of the falsity in material respects of the statements made in the hand bill distributed by the defendants, the property having been purchased at an auction sale. The language of the hand bill was : ' “No. 19 Fourth street, a substantial, three-story frame house, with basement and sub-cellar, filled in with brick to the roof. * * * House, 22 feet 4 inches by 30 feet; lot 22 feet 4 inches by 75 feet. The property is finely located, * * * is surrounded by stores, and is rapidly increasing in value.” Plaintiff gave evidence tending to show that the vendor did not own the whole lot purporting to be sold, but that the house stood an inch and a half on land to which the owner had no title. The court charged the jury : “ If you find this house did stand upon the lot of somebody else to the extent of one and one-half inches, it was a reasonable ground of objection; ” and, notwithstanding the exception taken to that charge, it was sustained on appeal. In that case, as in this, the vendee was misled by a misrepresentation on the part of the vendor; in that case, the misrepresentation being contained in the hand bill; in this, in the contract. Yre think that the vendor had the right to rely upon his contract, and that we should not compel him to take a title where one side of the premises has a party-wall which the vendee, it being a covenant running with the land, would have to pay an equal share of the expenses of repairing and rebuilding. It also seems to us that the premises are subject, under the deeds which were introduced in evidence, to the-bearing and paying of charges and an equitable proportion of the expense of maintaining the alley adjoining the premises in the rear, and the taxes and assessments falling thereon. The Messrs. Stewart, the former owners of the premises in question and of five lots adjacent thereto, made six deeds, all of which contain the following provision: “Together with the right of passing through and out of said alley, in common with all others legally entitled to such right, subject, nevertheless, to the paying and bearing of all charges, and an equitable proportion of the expenses of regulating and maintaining said alley, and of the taxes and assessments falling thereon.”

We think, under the authorities, that this right or privilege was for the benefit of the owners of all the lots; that they were tenants in common thereof, and chargeable with their respective proportion of the expenses for keeping, repairing and maintaining the same. For these reasons we are of the opinion that the judgment of the court below should be affirmed, with costs.

Yah Bruht, P. J., concurs.


author: Van Brunt, P J

text:
    Caroline A. Benjamin, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    .1. Reference—Findings .
    A referee is not bound to find as an additional finding of fact an inference which may be drawn from established facts which he has found.
    3. Railroad—Elevated—Motion to strike out answer.
    In answer to a question as to whether he had observed any effect on his business owing to the presence of the elevated road, a witness answered : “Yes, sir; if the railroad was not there I would be taking $100 a day-more than I am now.” Held, that a motion to strike out the answer as not íesponsive and stating a conclusion was properly denied, as it was too broad in asking that the whole answer be stricken out.
    3. Same—Evidence.
    In an action against an elevated railroad, evidence as to the effect of the road on other premises in the same street, although not exactly similarly . situated to those of plaintiff, is admissible as tending to corroborate the evidence as to the manner in which plaintiff’s premises were injured by the maintenance of the railroad.
    Appeal from judgment entered on report of referee.

      J. G. Thomson, for app’lts. G. G. Bennett, for resp’t
   Van Brunt, P J

This action was brought by the owner of premises on Third avenue to restrain the operation of the defendants’ elevated railroad in front thereof, and resulted in a judgment requiring the defendants to pay the sum of $1,700 in exchange for the conveyance of the easements appropriated by them, and allowing the plaintiff to recover from the defendants $646 for past rental damages.

The ground upon which the appeal' is based is that the referee erred in refusing to find that the proximity of defendants’ station at Twenty-eighth street was advantageous to the business portion of the premises in suit and produced a special benefit to the same for business purposes. The referee did find that the presence of defendants’ station at Twenty-eighth street brought a large number of persons daily into Third avenue in the immediate neighborhood of the premises, and' increased the traffic on said avenue at that point, but refused to find, as requested, that “ the fact of the proximity of defendants’ said station at Twenty-eighth street to the premises in suit is advantageous to the business portion of Said premises and produced a special benefit to the same for business purposes.” And an exception was taken to this refusal to find.

We do not see that any error was committed by the referee in this refusal, as it appears that the finding requested was not one .of fact, but an inference to be drawn from facts which he had already found.

We do not understand that the referee is bound to find, as an additional finding of fact, an inference which may be drawn from established facts which he has found.

It is further objected that the referee erred in permitting a witness to express his opinion as to the number of vacancies in houses on Third avenue as compared with houses on streets and avenues where there is no railroad.

Upon examination of the evidence we do not think that this objection is well taken, in that the witness did not testify as to his opinion, but gave evidence as to facts resulting from his knowledge of the occupation of the houses in the neighborhood.

It is urged that the referee erred in permitting a witness to testify as to the relative course of values. on Third avenue and on other streets and avenues. In respect to this objection it is sufficient to say that it is not raised by any exception taken upon the trial. The testimony related particularly to the course of values on Lexington avenue, and the objection taken was upon the ground that the values upon Lexington avenue were not in issue, and therefore not a proper subject of opinion.

The claim that is now made for the purpose of establishing error in the rulings of the referee, viz. • that the testimony was the expression of the conclusion of the witness, and therefore incompetent, was not taken before the referee. It cannot, therefore, be availed of upon this appeal

The claim of error in the denial of the motion to strike out the answer of the witness as to the amount of business he would do if the elevated railroad were not in front of the premises was not well founded, because the motion was too broad. The witness was asked the question -.

. “ Did you observe any effect on your business there owing to the presence of the elevated railroad; on your liquor business ? A. Yes, sir; if the railroad was not there on Third avenue I would be taking $100 a day more than I am now

The counsel for the defendants objected to the answer as not responsive to the question and as stating a conclusion, and moved to strike it out. The motion was denied, and an exception taken.

It is claimed that the witness ought to have stopped' after the words “yes, sir,” arid that the rest was a gratuitous assertion, and ought to have been ruled out by the referee. But tjie difficulty with the motion was that it asked the referee to strike out the whole answer, and as the result the motion was rightfully overruled.

Meither is the objection that the referee erred in permitting a witness to state the reasons why he changed his building to a hotel well taken.

It may be that the witness’ premises were not exactly similarly situated to those of the plaintiff in this action. But they were affected by the railroad operated by the defendant, and were in the same street, and therefore evidence as to the effect of the railroad upon them tended to corroborate the evidence as to the manner in which the plaintiff’s premises were injured by the maintenance and operation of the defendant’s railroad.

We are of opinion, therefore, that the judgment appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    William M. Averell, Resp’t, v. Amzi L. Barber et al., Deft’s.

      (Supreme Court, General Term, First Department,

      Filed Feburary 18, 1892.)

    Subp.cejta—Duces tecum.
    Where an action brought against a corporation and individual defendants to recover profits realized by them from the use of patents which really belonged to plaintiff has been dismissed as to the corporation, the only question remaining is as to the profits realize 1 by the individual defendants, and a subpoena requiring the corporation to produce its books should be vacated, as the contents oí such books could have no bearing on the question, but only show the secrets of the corporate business, with which the plaintiff has no concern.
    Appeal by the Barber Asphalt Paving Company from an •order denying its motion to vacate a subpoena duces tecum.

      Wm. IK. lViles and Tim. IK Niles, Jr. (A. S. Worthington, of counsel), for app’lt; G. M Eushmore, for resp't
   Van Brunt, P. J.

This action was brought by the plaintiff, for ■.the benefit of the American Asphalt Paving Company and its stockholders, to recover against the defendants, Barber, McLean, Lang-don, the Barber Asphalt Company, and others, certain large profits realized by them from the use of certain patents in said complaint alleged, whicn rightf ully belonged to the said American Asphalt Company After a trial of the case a decree was entered which provided, among-other things, that the defendants, Barber, McLean, Langdcn and the Barber Asphalt Company, severally account for and pay over the profits made by them, or either of them, directly or indirectly, from or by means of the De Smedt patents, or either of them, or by means of either of the reissues thereof, and a referee was appointed in said decree to take the account. Upon appeal to the general term this judgment was reversed so far as the Barber Asphalt Company was concerned, and the complaint dismissed as to it. Subsequently the plaintiff proceeded with the account before the referee, and caused a subpoena to be issued to the Barber Asphalt Company to produce its books and papers and contract before the referee. " A motion was made to vacate this subpoena, which was denied, and from the order thereupon entered this appeal is taken. This motion ■seems to have been based upon two grounds, one of which was that, upon the reference, there was no necessity for the examination of the books of the company,1 and the other, that the supreme court had no jurisdiction of the questions involved in this action. Without considering the last question mentioned, we think the first objection is well taken. Whatever might have been the propriety of having the books of the Barber Asphalt Company before the referee had the decree remained as originally entered by the learned' judge who tried the case, that decree having been reversed so far as that company was concerned, and the action dismissed as to it, the only question remaining to be investigated by the referee was.the profits of Barber, McLean and Langdon, made by means cf the De Smedt patents, or either of the reissues .thereof With this question the Barber Asphalt Company had ¡absolutely nothing to do and the secrets of their business should not be brought into a controversy between the plaintiff and outside parties and the question as to what contracts it had made, •or what profits it had realized, was of no importance whatever in the investigation of the profits of-the defendants therein named. We think that a subpoena of the description issued'n this case was, under the circumstances, oppressive in - the extreme, and was ¡a perversion of the process of the law. The plaintiff having been ad] udged to have no cause of action or right to inquire into the-methods of business or profits of the Barber Asphalt Company, an inspection of its books could have been sought only for the purpose of discovering the business of the company, in which the plaintiff had no interest.

We think the order appealed from should be reversed, with ten dollars costs, and disbursements of this appeal, and motion granted.

All concur.


author: Barrett, J. Van Brunt, P. J.

text:
    William W. Averell, Resp’t, v. Amzi L. Barber et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Motions and orders—Reargument.
    A motion for reargument of a motion previously denied is properly made at a suecial term for the hearing of non-enumerated motions ; and the fact that the justice who decided the original motion does not happen to preside will not justify either a denial or dismissal of the application. The proper course in such case is to refer the application to the justice who heard the original motion, or defer its hearing until he presides at. special term.
    (Van Brunt, P. J., dissents.)
    - Appeal from order of special term denying motion for reargument and resettlement of a previous order.

      Wm. W. Niles and Wm. W. Niles, Jr. -, (A. 8. Worthington, of counsel), for app’lts; 0. B. JRushmore, for resp’t.
   Barrett, J.

I am unable to concur with the ¡¿residing justice in the conclusion arrived at upon this appeal. The motion for a reargument was properly made at the regular special term for the hearing of non-enumerated motions. There was no other-term for which it could properly be noticed. The fact that the learned justice who decided the original motion did not happen to preside.when the motion for a reargument was brought on did not justify either a denial or a dismissal of the application. _ I entirely agree that the application should not have been entertained by the learned justice who then did preside (for the reasohs well, stated by the presiding justice), but that was no reason why the-applicant should be refused the hearing to which he was entitled-He ivas not applying to any particular justice, but to the- court, and his application should not have been denied or dismissed because the justice who should properly have heard him did not happen to be sitting. The proper course would have been to-refer the application to the justice who decided the original motion sought to be reargued, or to defer the hearing until that justice should preside at the regular special term for the hearing, of non-enumerated motions. The order appealed from should therefore be reversed, with costs.

Andrews, J., concurs.

Van Brunt, P. J.

(dissenting)—The order mentioned in the-opinion handed down herewith in the case of the same title- having been entered, a motion was made by the defendants to the special term for a reargument of this motion or to vacate or modify or resettle said order, which motion being heard was defied, with ten dollars costs, ón the ground that the motion was .made before and the order signed by another justice, and that this motion should have been made before him. And from such ■order this appeal is taken.

The fact that the order sought to be vacated, modified or resettled was made by another justice did not authorize a denial of ■the motion for reargument. But it was eminently proper that •such a motion should have been dismissed, because it is not a practice to be encouraged to permit motions which have been heard and disposed of by the court when held by one justice to be.renewed and reargued when the court is held by another justice. It is not proper-to permit an appeal from one special term to another. The appellate court is the general term, and parties should be remitted to that tribunal if they feel aggrieved by the ■orders made at the special term.

There is business enough to be done by the justice holding the branch of the special term which is devoted to the hearing of motions without his being compelled to hear rearguments of motions which have already been dispbsed of.

"We think, therefore, that the order of Mr. Justice O’Brien should be modified by dismissing the motion instead of denying it, .and as so modified affirmed, with ten dollars costs and disbursements.

Order reversed, with costs.


author: Andrews, J.

text:
    Benajah M. Martin, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroad—Elevated—Damages.
    In an action against an elevated railroad damages to the rental value of plaintiff’s premises cannot be recovered for a longer period than six years prior to the commencement of the action.
    .2. Same.
    Nor can rental damages be allowed for a period during which an old building on the premises was being removed and a new one erected in its stead, as plaintiff during such period could not have leased it and hence could not have suffered any actual loss of rent.
    Appeal from a judgment in favor of the plaintiff, recovered ■after a trial at special term.

      Julien T. Davies and A. 0. Townsend, for app’lts; E. W. Tyler, for resp’t.
   Andrews, J.

The rental damages allowed in this action were :$2,651.59, and the fee damage was fixed at $5,500.

We think there was an error in fixing the rental damages which requires a reversal of the judgment

The action was commenced on September 17, 1889, and rental damages could be recovered in this action for a period of six years only immediately prior to that date. Cornell v. N. Y. & Man. R. Cos. 37 St. Rep., 624; Hamilton v. N. Y. El. R. Co., 58 Superior Ct., 22; 30 St. Rep., 17; Kearney v. Manhattan R. Co., 14 St. Rep., 854.

Such rental damages were allowed from March 19, 1883, the-date when the plaintiff purchased the property, and they should have been allowed from September 17, 1883, only.

We also think it was error to allow rental damages for the-period during which the old building was being pulled down, and the.present building was being erected. Such rental damages have been refused in several cases not yet reported, but which are cited upon the brief of the appellant’s counsel; and under the-doctrine laid down by the court of appeals in the case of Tallman v. Metropolitan R. Co., 121 N. Y., 119; 30 St. Rep., 491, it is-clear- that such damages should not be allowed. In that case the-court said “ He can recover only the damages he sustains from day to day, or from month to month, or from year to year in the use of his lots; and the question to be determined in such action isr How much has the rental or usable value of the lots been, diminished by the "construction, maintenance and operation of the railroad ? As a basis for estimating the damages the lots must betaken as they are used during the time embraced in the action, and .the plaintiff’s recovery must be confined to the diminished rental or usable value of the lots just as they were.”

The evidence in this case shows that the old building, which was on the lot when the plaintiff purchased the property, was removed, and the construction of the building now on the lot was commenced in the summer of 1883. The new building was finished sometime during the winter of 1883-4, and during the period while it was being erected it could not have been leased and the plaintiff could not have suffered any actual loss of rent.

It is suggested by.the plaintiff’s counsel that, if the objections; taken to the amount of rental damages should he sustained, the excessive amount could be ascertained by computation, and deducted from the judgment, and thus the necessity of a new trial’ be avoided. This, perhaps, might be done with reference to the-amount awarded for the period from March 19,1883, to September-17, 1883", but we cannot undertake to determine from the evidence-in the case just what amount should be deducted for the period occupied by the removal of the old building and the erection of the new one.

The judgment should be reversed and new trial ordered, with, costs to defendants to abide the event.

Yah Bruht, P. J., and Barrett, J., concur.


author: Patterson, J.

text:
    Isaac K. Cohn et al., Ex’rs, Resp’ts, v. Louis Beckhardt, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Pleading—Monet had.
    The complaint alleged that defendant was employed as agent to collect money by plaintiffs’ testator; that he collected it “and wrongfully and unlawfully wholly refused, failed and neglected to pay the same or any part thereof to said" testator, ‘‘ although the same was demanded, but wholly misappropriated and misapplied the said sum to his own use.” Held, that the complaint was not one in tort, but simply for money had and received; that the latter words, alleging a misappropriation, were a mere-statement of a legal conclusion, and could be treated as surplusage.
    Appeal from judgment in favor of plaintiffs.

      L. L. Van Allen, for app’lt Benno Loewy, for resp’ts.
   Patterson, J.

The real question in this case is as to whether-the complaint is one in tort purely and simply or one for money had and received. The action was brought, by the executor and executrix of one Cohn, who, during his lifetime, had employed the defendant to collect from one Godfrey Fischer a certain sum. of money. Apart from the formal allegations, the complaint sets forth that the defendant, as agent, being employed to collect the money, did, on the 9th day of November, 1887, so collect it, “and wrongfully and unlawfully wholly refused, failed and neglected to pay the same, or any part 'thereof, to the said Cohn, although the same was demanded, but wholly misappropriated and misapplied the said'sum, etc., to his own use,” and judgment is asked for the specific amount and interest.

In the answer the employment and collection of the amount, are admitted, but it is set up that at the time of the original employment the defendant was to receive, as compensation for his services, twenty-five per cent of the amount of the claim, and that afterwards it was agreed between Cohn and the defendant the compensation of the latter should be increased to fifty per cent of the claim.

On the trial the plaintiff introduced the mere formal proof showing the right of the plaintiffs as the representatives of Cohn to sue and rested. Thereupon a motion was made to dismiss the-complaint, which was denied. The defendant was then put upon the stand and was asked certain questions as to the agreement between himself and Cohn, which were properly excluded, and nothing being shown as to the substance of the defense the court directed a verdict for the plaintiff for the full amount claimed.

The contention of the defendant is that there was a total failure of proof of the cause of action alleged in the complaint, and that either the complaint should have been • dismissed, or the defendant allowed to go to the jury “on the question of embezzlement.” But as we look at this complaint the gist of the action is not the-“misappropriation and misapplication"’ of the money collected, but the not paying it over. It is true the words referred to are-coupled with the general statement of facts and characterize the conduct of the defendant; but are they really the ground of the action ? Is the defendant sued for the misappropriation of the money or for not paying it over after demand, and are the words “ misappropriated and- misapplied to his own usé ” anything more than a mere statement of a legal conclusion which necessarily follows,in every case where a "person, after' demand, retains money belonging to another and which- ex aguo ev bona he should have restored on demand, having no excuse for retaining it. The words above quoted are merely surplusage.

There is nothing alleged that the defendant received the money in a fiduciary capacity. That may possibly be inferred on the ¡same ground on which it is true that every agent to receive money for another necessarily acts in a fiduciary capacity; but that inference does not make a person liable ex delicto unless averments are contained in a complaint showing that the whole intention and purpose of the action is to hold the defendant strictly .and absolutely for his wrong and not on his mere legal obligation to pay money he should not detain from its real owner. If a ¡suit is brought for the non-payment of a promissory note and it .should be alleged iu the complaint' that the defendant fraudulently and with intent to cheat the plaintiff refused to pay, it would scarcely be supposed that such an allegation would indicate that the action was in fort.

What the defendant in this case omitted to do was to pay over the money collected on demand, and it is settled in this state by .authority that where an agent or one who may be assumed to have been acting in á fiduciary capacity does not pay over money he 'is not necessarily to be held liable in tort for not paying it over, and that even in a suit for an admitted balance due after an accounting, the plaintiff adds nothing to his cause of action on the ■express or implied promise to pay by asserting that the defendant has converted the money to his own use. Segelken v. Meyer, 94 N. Y., 474. The words above quoted from the complaint in this action are tantamount to an immaterial averment that the defendant converted the money to his own use.

The learned judge at the circuit took the right view of the pleadings and. correctly excluded the testimony offered by the •defendant, and the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    In the Matter of Alexander Avenue.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

      1. Municipal corporations—-Street opening—Depot grounds—Rights op CITY.
    Land owned by a railroad company, originally acquired by purchase, and not by condemnation proceedings, and used for terminal facilities within city limits, may be taken for street purposes by the city without aid from special legislation.
    :2. Same.
    Section 957 of the consolidation act which provides that no streets, not laid out before May 33, 1873, shall be constructed through or upon depot grounds within certain wards, unless by consent of the company,_ is a clear recognition of the city’s right in respect to streets laid out prior to that time to open them through depot grounds.
    :3, Same—Land under water.
    By § 1, chapter 604, Laws of 1874, conferring upon the commissioners of the department of public parks the exclusive power to lay out streets, etc., in the city of New York, over lands belonging to the state, the city has power in laying out streets to take, upon proper condemnation proceedings, land lying under water outside the exterior line established by ;aw at the line of solid filling and belonging to the state.

      4. Same—Bulkheads—No special award oe damages.
    Where land along a river is taken for street purposes, the award of damages for the land will include the bulkhead rights thereon, as they are mere appurtenances to the land.
    5. Same—Assessment proportioned to benefit.
    Where lands of the railroad company alone receive a new frontage by the opening of the street, they are properly assessed with a greater proportion, of the expense than the other adjacent property.
    6. Same—Section 990, consolidation act—Streets oe first class excepted.
    Section 990 of the New York consolidation act does not apply to proceedings to open sireets of the first class; that is, streets needed for the convenience of the general public.
    Appeal from order confirming report of commissioners of estimate and assessment.

      K H. Anderson, for app’lt; 0. Berry, for resp’t.
   Van Brunt, P. J.

The Harlem River & Portchester Railway-Go., some t.wenty years ago, acquired a large tract of land by-purchase, chiefly betweén high and low water, upon the northerly side of Harlem river. The land under water had been filled in and a bulkhead constructed along the entire front, extending several hundred feet upon the Harlem river, and the land appropriated by said railroad for its business.

It appears that prior to the commencement of these proceedings Alexander avenue had been informally opened from Third, avenue to the premises of the appellant, and that this proceeding was commenced for acquiring the title to said avenue and opening-the same from Third avenue to the Harlem river, the said aventie having been designated as a first class street by the department of public parks, and in the proceeding the land to be taken was"’ specifically and expressly described. Such proceedings were thereupon had that commissioners of estimate and assessment were appointed who made their report, and upon a motion to confirm the report objections were filed in reference to the method of assessment, and also upon the ground that certain bulkhead rights-were not valued, and certain property was taken and assessments-laid therefor which should not have been included in the assessment These objections being overruled, this appeal was taken.

It is now urged that these proceedings were ultra vires the-mayor, aldermen and commonalty without some act authorizing the laying out of such avenue through the premises of the objectors, because the land had been appropriated for terminal facilities in connection with the railroad, to be used as a depot for the landing of passengers and freight and for the transportation of passengers and freight therefrom.

Upon an examination of the record we fail to find that this objection to the proceedings was in any way made a part of this record prior to the time of this appeal.

It is not stated among the objections filed to the,confirmation of the report It does not appear to have been urged at the time of the appointment of the commissioners, and might very well be held to be waived under the rule laid down in Re Cooper, 93 N. Y., 507.

not so', by the railroad company was originally acquired by purchase and not by condemnation proceedings, and is now held under such purchase in fee simple .absolute, and may be devoted by it, if it sees fit, to any use it may desire in the same way as would a private individual.

Besides, in § 957 of the consolidation act it is provided that no street not laid out before May 23, 1873, shall be constructed through or upon the depot or station grounds of any railroad or branch of the same then operated by steam power within the said wards (Twenty-third and Twenty-fourth), unless with the consent •of said railroad company. This is a clear recognition upon the part of the legislature of a right in the city in respect to those streets laid out prior to May 23, 1873, to open them through •depot or station grounds. And if any express legal authority were needed it seems to be found in this enactment, the avenue .in question being laid out before the period named.

It is also urged that the commissioners erred and the proceeding is illegal in that there is embraced in the land for which •awards were made land which does not and cannot form part of said street, but is a part of the Harlem river, outside of the exterior line established by law at the line of solid filling, land lying under water and belonging to the People of the state of New York, •over which neither the mayor nor any party representing the mayor, etc., has jurisdiction.

It is conceded in the objection that the land in question belongs to the People of the state of New York, and, therefore, they have clearly the right to authorize the taking of any such land for the purposes of a street.

By chapter 604 of the Laws of 1874, § 1, the commissioners ■of the department of public'parks have conferred upon them the •exclusive power to lay out, survey and monument all streets, roads, avenues, public squares and places embracing the locus in question. Now if the department of public parks had the power conferred upon them by the People of the state of New York to lay out a street over this land belonging to the state, it certainly was clearly intended that upon proper proceedings being taken :such laying out might be made effectual by condemnation of the land; § 963 of the consolidation act expressly authorizing the mayor, etc., to acquire the land of any person or persons or body politic or corporate.

It would appear, therefore, that there was ample authority for 'the proceeding.

It is said in the brief of the counsel for the respondent that the title of this land has been conveyed to the mayor, etc. We do not find any evidence of this fact in the record, but that seems to be immaterial in view of the condition of the legislation.

It is further urged that -the commissioners awarded nothing to the appellant*for its bulkhead rights. But it appears from the •evidence that an award was made for all the land which was taken, and the bulkhead rights were mere appurtenances to the land which abutted upon the bulkhead and gave such land its value for which compensation has been made.

It is also urged that the assessment for benefit on the lands of the •objectors is wholly and greatly disproportionate in amount to the assessments laid on lands similarly situated, so much so as to work serious injustice, which the appellate court should cure. As already stated, the avenue in question had been opened informally ■for a considerable portion of its length and no awards (except a nominal one of one dollar) were made for the land included in the limit until it reached the premises of the appellant. Thereupon a substantial award was made to the appellant for the land which had been taken and this award was assessed back on the ■other land owned by them, because it was the only property which received the benefit of a new frontage, all the other property possessing a frontage upon the existing avenue for the taking of the land in which it is fair to presume they had contributed.

It further appears that in the making up of their assessment the commissioners assessed in the first place the costs and expenses of the proceedings, exclusive of the awards for lands and buildings, at so much per lineal foot throughout the entire extent of the avenue from the Harlem river to Third avenue.

They then assessed one-third of the awards made for the buildings upon the city and the remainder they apportioned upon the property benefited throughout the entire extent of the avenue. They then upon the property benefited in each block assessed the .amount of the awards for the land taken for the avenue in that block. Thus each lot paid for half the street in front, and the ■land upon the whole avenue paid the other expenses of the proceeding.

The claim that the opening of the avenue to the river was a benefit to the other property, and that, therefore, it should be .assessed, has no foundation in fact; because if the whole avenue had been opened from Third avenue to the river, and awards had ■been made for the land for the whole of the avenue, the result to 'this appellant would have been precisely the same, its prop■erty deriving benefit as well as the other property along the .avenue.

It is also urged that the court erred in confirming the report .against the objection of a majority of the persons who appeared by the report to be interested. This objection is founded upon ■§ 990 of the consolidation act, which it is claimed directs that in .such case the court shall order the proceedings to be discontinued.

It seems to us that this objection cannot prevail; and that an ■examination of the legislation upon this subject shows that it was not the intention of the legislature to permit the discontinuance of the proceedings to open avenues of this character. Section 673 provides that where maps or plans are prepared and filed in accordance with the provisions of the preceding section, ■the Department of Public Parks shall designate each street, •avenue, or road as belonging to one of three classes." A street of the first class should be such as in the judgment of the commissioners is or may be needed for the convenience of the general public either as a main route of travel or for drainage.

• Streets of this class- may be opened by the board or deoartment of the city government having control of such avenue whenever in their opinion the interests of the public demand such opening. Streets of the second and third class are to be opened at the option of the owners. And it is evident that it is to these two classes that § 990 referred to, proceedings to open which may be discontinued where a majority in amount of the owners object to further proceedings. But it would be idle to give power to the department of public parks to open a street of a certain character whenever in their opinion the interests of the public demand such opening,, and to compel the discontinuance of the proceedings upon the objection of the property owners. The object of classifying these streets was to give notice as to the streets which it was claimed by the department of public parks were needed for the convenience of the general public; and that as to such streets there should be an absolute power to open whenever in their opinion the interests, of the public demanded such opening.

We think, therefore, that no error was committed in the order confirming the report and the same should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    John McClave, Resp’t, v. Simon Sterne, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Mortgage—Assignment—Evidence of consideration.
    J. conveyed certain premises to S., subject to a mortgage ; thereafter an action was begun to foreclose the same, and J. purchased it for $3,216.50. Subsequently he gave it to McG. and plaintiff, to collect for him, they to repay him the amount paid out to protect himself, and the balance, if any, to be divided between themselves. It appeared that McG. subsequently-procured J. to assign the mortgage to B., the consideration expressed being $2,000 ; that defendant gave McG. his check for $2,000, and he paid the proceeds to J.; that B. afterwards assigned the mortgage to defendant without consideration, The mortgage was redeemed by payment of $5,597.50, and the court directed that defendant be repaid the $2,000. Plaintiff brought suit to recover one-half that amount as a balance over the amount due J. Feld, that the court erred in giving judgment for plaintiff, as the $2,000 was paid to J. in consideration of the transfer of the-mortgage.
    2. Same—Immaterial facts.
    Whether the money represented by the check of defendant to McG. was. defendant’s nr money which McG. had deposited with him, was entirely immaterial with respect to plaintiff’s demand, that being a question entirely between themselves.
    3. Same.
    Nor had the plaintiff any interest in'questioning the propriety of the-assignment of the mortgage by B. to defendant without consideration, after McG.’s death.
    Appeal from judgment entered after trial at special term. ■

      J. A. Beall, for app’lt; A. Price, for resp’t
   Van Brunt, P. J.

This action was brought to recover upon-an alleged agreement between one John J. McGrurk and the plaintiff.

The complaint alleged that in the spring of 1886 the said McGrurk was employed by one Mrs. Louise Jarvis to prosecute the ■collection of a bond and mortgage on property situated in the ■city of New York, to secure the payment of the sum of $3,000 ; that such employment was entered into by said McGrurk upon the express understanding that he should have as pay for his services all moneys which might be recovered over and above the sum of $3,266.90.

The complaint further alleges that the plaintiff secured to said McGrurk his employment as attorney in said proceeding, and in consideration thereof it was' agreed that said plaintiff should receive one-half of all the moneys realized upon said mortgage ■over and above the $8,266.90 aforesaid, and his employment by the owner of said bond and mortgage was made upon that express condition, and was. so accepted by said McGrurk; that said McGrurk proceeded in his efforts to collect or realize upon said bond and mortgage until his death in February, 1888, and that in ■aid of his contract of employment he procured the assignment of ;said bond and mortgage to one Brennan in April, 1886, which assignment was wholly without consideration, and wholly for the purpose of carrying out the contract aforesaid; that thereafter .and after the death of McGrurk in July, 1888, said Brennan, at the instigation' and procurement of the appellant Sterne, assigned the bond and mortgage to Sterne, which said assignment was wholly without consideration on the part of Sterne; that thereafter the owner of the premises upon which the mortgage was a lien by leave of the court paid the amount due on said bond and mortgage,. namely, $5,597.50, into court, and the mortgage was discharged of record, and that thereafter the appellant Sterne and the owner of the bond and mortgage procured an order of this ■court by which the sum of $3,266.90, agreed by said McGrurk to be paid tó the owner in his lifetime, was directed to be paid to her or her attorney, and the balance paid into court, namely, $2,330.60, was directed to be paid to said Sterne, the •defendant herein, as his attorney, and such payments were made; .and that said Sterne had notice of the plaintiff’s claim upon said bond and mortgage, and the plaintiff was entitled to receive one-half of the sum received by said Sterne, namely, $1,165.30. The .answer of the defendant denied the allegations of the complaint, except the existence of the bond and mortgage in question, the payment of the amount into court, and the receipt by said defendant of the sum alleged.

The court found the agreement substantially as alleged in the •complaint, but that of the sum received by said Sterne he was entitled to receive for his own account $150 counsel fee and eighty-live dollars .costs, and gave judgment in favor of the plaintiff for one-half of the balance, viz., $1,047.80, and from the judgment thereupon entered this appeal is taken.

Upon an examination of the evidence in this case, we think the learned judge erred in the conclusions of fact which he drew from the evidence produced upon the trial; and a very brief examination of the evidence seems to us to demonstrate the fact that no such agreement as was claimed in the complaint was ever entered into by the owner of the bond and mortgage and McGrurk and the plaintiff, but that the sole agreement was that McGrurk and the plaintiff should divide the profits which might arise over and above the amount due upon the bond and mortgage upon a sale-of the premises upon which it was a lien.

It appears from the evidence that in June, 1868, one William A. Whitbeck conveyed to Nathaniel Jarvis, Jr., certain premises, and took back a mortgage of $3,000 to secure part of the consideration money on said purchase. This mortgage is the invest-' ment in question. In December, 1868, Jarvis and wife conveyed the said premises to one Mary J. Squires, subject to the mortgage-in question. In 1869 Whitbeck assigned the mortgage to oneBronk Van Loan. In December, 1876, Van Loan commenced an action against Mary J. Squires, and her husband and Nathaniel Jarvis, Jr., and others, for the foreclosure of this mortgage. On the 1st of January, 1878, Mr. Jarvis purchased said bond and mortgage, taking an assignment in the name of his wife, Mary L. Jarvis, but paying for the same out Of his own money’the sum of $3,215.50, being $3,000 principal and $120 costs and disbursements, and the balance seems to have been interest.

Subsequent to this time, in or about 1886, Mr. Jarvis gave this-bond and mortgage to McGrurk to collect for him, who was an attorney introduced to him by the plaintiff. He told them if they would pay him the amount he had already paid in order to-save himself from a judgment of deficiency, stating the amqunt at $3,100 odd, that all that they realized over and above that amount he would let them divide between themselves share and share alike. The arrangement with McGrurk was that if he would on a sale of his property, through the plaintiff and himself realize sufficient to pay him the amount he had paid for several years, amounting to $3,100, with the accumulations of interest, thereon, he would allow him and the plaintiff to divide it between themselves share,and share alike.

In furtherance of that arrangement Mrs. Jarvis assigned the-bond and mortgage in April, 1886, at the instance of McGrurk to* one Henry T. Brennan, the consideration expressed in the instrument being $2,000. It further appears that McGrurk and the appellant Sterne had business relations together and that about this time, on the 16th of April, 1886, said Sterne gave to said McGrurk a check payable to his own order for $2,000 which he drew in-cash. It further appears that McGrurk paid to Jarvis at or about this time four $500 bills. It is true that Jarvis states that no consideration was paid to him on behalf of his wife on account of that assignment. But it seems to me, in view of the fact that Mr. Jarvis advanced his own money on the purchase of this bond arid mortgage, and the fact that he received at' or about this time $2,000 from McGrurk, and that $2,000 was mentioned as the consideration of the assignment of that bond and mortgage to Brennan who was to hold the same for McGrurk, that the conclusion is-irresistible, notwithstanding the fact that Mr. Jarvis in another part of his testimony states that this $2,000 had nothing to do with the assignment, that lie did receive that sum on that account.

And this conclusion is borne out by the fact that he further testified that McGrurk and the plaintiff were to receive all over and above the amount due him. Now, the amount due him was $3,216.90, with interest from January 1, 1873; and it further appears that when the sum due on this bond and mortgage was paid into court, amounting to $5,597.50, by the consent of the parties Mrs. Jarvis, who had made the assignment of the bond and mortgage to Brennan, was paid $3,266.90, and the appellant Sterne, to whom Brennan had assigned the bond and mortgage without consideration, was to receive $2,330.60. Thus the amount which Mrs. Jarvis was to receive was about the sum of $3,216.90, which Mr. Jarvis had advanced on the assignment of the bond and mortgage to her, with interest from January, 1878, to the time of the payment of the bond and mortgage, the $2,000 being ■credited thereon as of April, 1886; and the appellant was entitled to the $2,000 then paid, with interest to the time of the deposit into court; and upon the settlement in respect to the division of "these moneys, these are substantially the amounts received by the parties interested in the bond and mortgage. There was no profit to which the plaintiff could lay any claim whatever. There is no testimony throughout the case in conflict with this conclusion and it harmonizes all the declarations which were testified to as being made by the various parties in connection with the transaction.

Whether the moneys represented by the check of Sterne to Mc-Grurk were Sterne’s moneys or were moneys which McGrurk had deposited with Sterne to be kept for him is entirely immaterial so far as this controversy is concerned. That is a question between .Sterne and the estate of McGrurk.

Nor has the plaintiff any interest in questioning the propriety ■of the assignment of the bond and mortgage by Brennan to Sterne without consideration after McGrurk’s death.

We think, therefore, that there was no evidence whatever to support the contention of the plaintiff, and that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event

O’Brien and Lawrence, JJ., concur.


author: Haight, J.

text:
    Frances E. Cooper, Resp’t, v. The United States Mutual Benefit Ass’n of the State of New York, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Insurance ^Accident)—Limitation.
    Where an accident insurance policy requires action to be begun “within one year from the time of the alleged accidental injury,” the beneficiary in case of the death of the insured must begin action within one year from said death, without regard to the time of the original injury;'that is, within one year from the time the right of action accrues.

      Appeal from a judgment of the general term, second department, affirming a judgment entered upon a verdict.

      William Bro. Smith, for app’lt; Lewis E. Carr, for resp’t.
   Haight, J.

This action was brought upon a certificate of insurance, issued by the defendant, to recover $5,000.

The defendant by its certificate undertook to insure Theodore-H. Cooper against personal bodily injury, and in case he should receive such injuries disabling him from transacting business pertaining to his occupation, to pay him certain amounts specifically named dependent upon the nature of his injuries, and in case death should result .from such injuries within ninety days the defendant agreed to pay to the plaintiff, as his wife, the sum of $5,000. The certificate contained the following: “Ho suit or proceeding at law or in equity shall be brought * * * to recover any sum under this insurance unless the same is commenced within one year from the time of the alleged accidental injury.”' Cooper received an accidental bodily injury on December 10r. 1887, which resulted in his death on January 2,1888.

This action was commenced on December 29, 1888, more than one year after the accident, but within one year of his death.

It is claimed that the action was not commenced within the time required by the provision of the certificate referred to.

It will be observed that provisions are made in the certificate for two different persons, who, upon the happening of the events-specified, may have a right of action against the association. One provision is'in favor of Cooper, who may recover during his lifetime the amounts provided for his disability resulting from the accidental injury received. The other is to his wife, which is for the injuries which she suffers by reason of his death resulting from such accident.

The accident received by Cooper did not injure the plaintiff, or give her a right of action until death ensued. So far as she is concerned, the infliction of the wound is but the beginning, and the death is the completion of the injury. Her suit must be “commenced within one year from the time of the alleged accidental injury.” In other words, within one year from the time of the injury to her, which was the death of her husband as the result of the accident As to Cooper, he suffered from the date of the wound. His right to indemnity dates from that event, and. it is possible that his right to maintain an action would not continue after the expiration of a year from that date.

But as to the plaintiff, it appears to us that the construction already indicated was intended and should be given to the certificate. As thus construed, the various clauses of the contract are rendered harmonious, and the different beneficiaries thereunder are given the same period of limitation within which to bring actions to-establish their claims. That is, within one year from the time-that their right of action accrued. This construction is in a measure sustained by the authorities.

In the case of Steen v. The Niagara Fire Insurance Company, 89 N. Y., 315, the policy of insurance required actions to be» brought within twelve months next after the “ loss or damage shall accrué.’’ In an action upon the policy it was held that the period of limitation prescribed did not commence to run until the loss became due and payable and the right to bring an action had accrued. And to the same effect are the cases of The Mayor, etc., v. The Hamilton Fire Insurance Company, 39 N. Y., 45, and Hay v. The Star Fire Insurance Company, 77 id., 235.

The case of King v The Watertown Fire Insurance Company, 47 Hun, 1, 14 St. Rep. 93, appears to us to be clearly distinguishable. In that case the policy provided that no suit or action •could be maintained unless commenced !l within twelve months next after the -fire shall have occurred.’' In that case it was held that the year within which the action must be brought commenced to run from the date on which the fire occurred, it so having been •expressly stipulated in the policy.

We consequently are of the opinion that the judgment should be affirmed, with costs.

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

       Affirming 32 St. Rep., 725.


author: Landon, J.

text:
    Archibald Farr, Resp’t, v. John P. Nichols, Impl’d, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Mortgage—To secure endorsements—Continuing security.
    In June, 1888, defendant D. gave a mortgage to plaintiff for $15,000, to secure him for the “ payment of any and all notes, checks and drafts endorsed” by him for the benefit or accommodation of said D. and his firm. Before the mortgage was given plaintiff had been endorsing for D. and his firm, and a $3,000 note endorsed by plaintiff was then outstanding. This was renewed in July and paid by D. in September. In August, 1888, D. gave defendant Nichols a mortgage upon the same premises for accommodation endorsements. Nichols had no notice of plaintiff’s mortgage and recorded his in July. In October and November plaintiff again endorsed notes for D. with no notice of the Nichols mortgage, which notes he was compelled to pay. Held, that plaintiff’s mortgage covered his payments on the two notes last mentioned and was not limited to past endorsements.
    •■2. Same—Evidence—“ Endorsed."
    As between the plaintiff and the mortgagor it was proper to show the amount of the plaintiff’s endorsements then existing, in order to aid in ascertaining whether they used the word “endorsed” in the mortgage solely with reference to such existing endorsements or with reference to existing and future endorsements.
    Appeal by the defendant Nichols from a judgment of the •general term, fourth department, affirming a judgment entered upon the decision of the trial judge at special term.
    The action was to foreclose a mortgage given by the defendant Doxstater to the plaintiff upon three parcels of land, June 18, 1888, and recorded April 8, 1889. The expressed consideration was $15,000, and it was given as security to the plaintiff for the •payment of any and all notes, checks and drafts endorsed by the .said Archibald Farr for the benefit or accommodation of said Robert H. Doxstater or of any firm in which, said Robert H. Doxstater is interested or in any manner connected.”
    Before the mortgage was given the plaintiff had been endorsing for the accommodation of Doxstater and his firm. When the mortgage was given there was outstanding and unpaid one note at three months for $3,000, dated April 16, 1888, made by Doxstater and endorsed by plaintiff. This note was renewed at. maturity, and the renewal note paid by Doxstater September 22, 1888. Meantime and on August 9, 1888, Doxstater executed and delivered to the defendant Nichols a mortgage upon the same premises to secure the accommodation endorsement by Nichols of five promissory notes of the same date made by Doxstater’s firm and endorsed by Nichols amounting in the aggregate to $25,000. Nichols then had no notice of the mortgage to plaintiff. Nichols-recorded his mortgage July 24, 1889. Nichols subsequently was-compelled to pay upon these notes $14,115, no part of which has been repaid him.
    October 22, 1888, the plaintiff endorsed another note for Doxstater’s accommodation for $2,000 at ninety days, which being renewed plaintiff paid in full August 10, 1889.
    November 8, 1888, the plaintiff endorsed another note for Doxstater's accommodation for $3,000 at three months, which being renewed plaintiff paid in full August 30, 1889.
    When plaintiff endorsed the two notes last mentioned he had no notice of the existence of the mortgage to Nichols.
    The trial court held that plaintiff’s mortgage was a valid and' prior lien for the amount of plaintiff’s payments upon the two-notes last mentioned. The court refused to hold that the mortgage to plaintiff was not a continuing security, and refused to-hold that it only extended to the notes already endorsed by plaintiff at the date of its execution, and also refused to hold that it was invalid as against the mortgage given to Nichols.

      Ojiarles Lyons and Merritt M Sawyer, for app’lt; Q. S. Kbclc, for resp’t.

       Affirming 32 St. Rep., 1134.

   Landon, J.

The appellant claims that the plaintiff’s mortgage, by its terms, covered past endorsements only, and did not cover those for which recovery was had. This contention is based upon the terms of the mortgage, which declare it to be given as security for the payment of “ any and all notes, checks and drafts endorsed ”, by the plaintiff.

At the time plaintiff made his endorsements upon the last two-notes of the mortgagor he had no notice, actual or constructive, of the existence of the mortgage to the appellant. He, therefore,, had the same right to make endorsements upon the faith of his mortgage security as if the appellant’s mortgage had not been, made. Ackerman v. Hunsicker, 85 N. Y., 43.

Evidence was received to the effect that when the plaintiff's-mortgage was given, the plaintiff was endorser for the mortgagor-upon only one note. That was for only $3,000, and as the consideration expressed in the mortgage was $15,000, and the mortgage was given to secure payment of “ any and all notes, checks., and drafts endorsed” by the plaintiff, the inference was justifiable: that a series of endorsements to the amount of $15,000; or nearly,, was within the contemplation of the parties.

As between the plaintiff and the mortgagor, it was proper to-show the amount of the plaintiff’s endorsements then existing, in. order to aid in ascertaining whether they used the word “ endorsed ” in the mortgage solely with reference to such existing, endorsements, or with reference to existing and future endorsements. Agawam Bank v Strever, 18 N Y , 502, Simons v. First National Bank, 93 id., 269. Merchants’ Nat’l Bank v. Hall, 83 id., 338.

Since the plaintiff was not affected by the appellant’s mortgage, it follows that the appellant was in no position to resist the application- of this rule of evidence.

The evidence showing the existence of the note when the mortgage was given, in connection with the evidence touching the two-subsequent notes, was necessary to enable the court clearly to understand the subject matter in controversy.

When the facts were understood the terms of the mortgage were also understood; they were not altered or varied. The-mortgage was for the protection of the plaintiff. The words “any and all notes, checks and drafts. endorsed ” are comprehensive words; there are no words restricting the meaning of the word “endorsed” such as, now, heretofore, already, or which have been. The plaintiff may construe the promise as beneficially to» himself as its terms will fairly admit.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.