text:
    Henry K. S. Williams, Resp’t, v. Mayor, etc., of New York et al., App’lts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Wharf—New York city—Rights of city in—Easement granted by STATE,
    When the state, by the act of 1813, granted to the city wharf rights, which might extend into the deep water, it granted property in the land covered by the wharf, and an easement for the approach of vessels in its front, and that easement it could not take away or destroy without awarding compensation.
    2. Same—Laws 1857.
    The act of 1857 moved the wharf line eighty feet further into the stream, and the same consequences followed, and the city was authorized to fillup and occupy the open space as a necessary .incident to the use of and the access to the new wharf.
    3. Same—Title to the made land.
    So the state, by its earlier acts and their recognition in 1857, permitted solid filling on its land under water within the bulkhead lines, and by that process parted with its title and transferred it to him who lawfully made the new land as an approach to the docks.
    4. Same.

      Therefore, when the city, owning the upland in front of which the harbor commissioners’ line had been established, and desiring to have a new wharf erected, conveyed to plaintiff “ all that certain water lot or vacant ground and soil under water to be made land and gained out of the Hudson or North river or harbor of New York, and so much thereof as has already been made and gained,” etc., and stipulated that the deeds should “pass the estate, right, title and interest they may have or may lawfully claim in the premises hereby conveyed by virtue of their several charters and the various acts of the people of the state of New York,” and it conveyed all its rights, and with them the right to make a solid filling, which plaintiff would own and possess, and if said land is taken away and his wharf right destroyed by a new exterior line and structures of the dock department, he is entitled to adequate compensation.

      Appeal by defendants from judgment of supreme court, general term, first department, in favor of plaintiff, directing a referee to ascertain the damages to his property caused by the appropriation by the city, under Laws 1871, chap. 574, § 6, of a portion of the dock in front of his building, for the purposes of a wharf, without having made compensation to him.

      James C. Carter, for app’lt; Stewart & Boardman, for resp’t.
   Finch, J.

Since the rights of the plaintiff depend upon deeds given by the city to his predecessors in 1858 and 1859, and which it is said purported to convey what the corporate grantor did not possess, and rights which remained vested in the state, it will be the most natural route to a conclusion if we start with the inquiry, what rights the city possessed, derived from the state, at the instant of those conveyances. Before 1857 the city owned the upland covered by these grants, and which bordered'on the river, to a line which is now the west line of Thirteenth avenue. The process by which it became such owner is not immediately material, since its title and that of its grantees thus far is not here in dispute. The land had a water front, and the city was a riparian proprietor; but with much wider rights than simply attached to it in that character. The state had granted to the city by several earlier acts, but notably by the act of 1813 (2 Rev. Laws, 432, §§ 220, 227, 228; Laws 1806, chap. 126, § 1), a general right to build and maintain wharves, piers and slips along the water front wherever the municipality should choose. • This general grant had at the time no limitation upon the original choice of location. It carried with it necessarily, and was surely intended so to do at least two incidental and subsidiary rights, because inevitably involved in the terms and character of the grant. One of these was to occupy and possess the lands of the state under water, so far as needed for the construction and maintenance of the wharves which the city was at liberty to build. It needed no authority from the state to erect wharves on its own land. What it did need was a right to build them on land under water owned by the state, and safety and protection for them when built. The sovereign began by granting to the city belts of its land along the water front. The Dongan charter granted the strip between high and low water; the Montgomerie charter, one of 400 feet extending out beyond low water, and which, in 1807, was extended northerly, to accommodate the growth of the city in that direction. But, at least as early as 1801, another process began by giving to the city the grant of a general power to build and maintain wharves. Laws 1801, chap. 129. In 1806 (chapter 126) the right was granted “ to cause piers to be sunk in such places and manner as .they shall think eligible between the Whitehall slip and the east side of the Exchange slip;” “and also, at their own expense, to cause such and so many other public basins to be formed and completed in said city as they may deem necessary for the trade thereof, and to take to their own use the shippage or wharfage arising from the same.” The act of .1813 was broader, and seems to have been a substantial re-enactment of the act of 1801. It provided “that it shall be lawful for the mayor, aldermen and commonalty of the said city, in common council convened, to lay out wharves and slips in the said city whenever and wherever they shall deem it expedient.”

I have no means at hand of ascertaining precisely at what date the western line of the city’s bulk-heads passed the limit of the 500 feet and occupied the land of the state lying under water, although one of the maps used on the argument shows that the line at some points had already been passed when the revision of 1813 was made; but that event might easily occur, since the westerly bounds of the city ran to the west line of the state in the Hudson river. The authority thus given, being commensurate with the municipal limits, involved a grant of so much of the land of the state under water as those wharves would occupy if the city’s choice of location required such appropriation. This right was tantamount to an ownership. It embraced the entire beneficial interest, and was inconsistent with any title remaining in the state. The wharf, when built, completely occupied the land under water, and might be built, if need be, of stone and earth. All use for the floating of vessels disappeared, so far as it occupied the water. The new and substituted use created by the city or its grantees belonged wholly to them; for the entire benefit in the form of shippage, wharfage and cranage was given to them. There was never any restraint put upon this general grant, and the ownership involved, where the plans carried the wharves onto the state’s land in the stream, except the limitation of exterior lines beyond which the authority should not go, or that imposed by general plans agreed upon by both parties.

But this general grant of authority to build wharves, and take their use and product, involved another right. We decided in Langdon v. The Mayor (93 N. Y., 129), that a wharf right so implied a right of approach for vessels that its grant carried with it an easement for such approach over the grantor’s land under water lying in front. The act of 1813 fully recognized and protected that easement. It in terms "forbade, after the city had located its dock, any filling or the erection of any structure in its front; and so, by its own act, incapacitated itself, without the assent of its grantee, from destroying or obstructing tbe easement given. So that when the state granted to the city wharf rights which might extend into the deep water, covering its own land, it granted two things,—property in the land covered by the wharf and occupied by it, and an easement for approach of vessels in its front. That easement the state, by its own sole action, could not take away or destroy without awarding adequate compensation. To say the contrary would be to declare that after the city, under its authority from the state, has completed its entire system of wharves and piers, at a cost of millions, the state may yet destroy it all, in violation of its own self-imposed prohibition, by building in front, on its own land, under water, obstructing docks or walls.

But in 1857 a new agreement was made between the state and the city. I call it such, because it was that both in fact and in legal effect. It was preceded by an act of 1855 (chap. 121), a preamble to which recited that it was represented that the harbor had become obstructed by the erection of piers, wharves and bulk-heads, and that grants to occupy lands under water had been made and “are liable to be made” without sufficient knowledge; and then appoints a commission to ascertain all the facts, and advise as to a new exterior line, and a plan of construction, and in the meantime, to prevent further injury, forbade any new grants of land under water, either by the commissioners of the land-office or the common council. The ultimate result of that commission was the act of 1857, which moved the wharf or bulk-head line, at the locality here in question, about eighty feet further into the stream, and located there the exterior wharf line fronting on the water. The city accepted this change. Practically, this enactment operated upon the existing restrictions as to exterior lines, and gave the city, under its general right of building wharves, authority to locate them upon the land of the state under water at the new line. The same consequences followed as it respected the city’s right to the land under water occupied by the new wharves and piers, and the new easement of approach in their front. But this change had another effect. There was left, in the execution of the plan agreed upon by the city and the state, open water and land under it, in front of the former bulk-head, and extending to the new wharf-line, known as the “harbor commissioners’ line.” Upon that line, and extending back from it, the act of 1857 contemplated the building by the city of a new wharf, under its general grant of power. What was to become of that intermediate space ? One thing about it was certain, the grant of the new wharf, upon the new exterior line, carried with it a right- of access and approach over the state’s land under water, either by an adequate and sufficient bridge, or by a filling with earth. Such filling, if permitted by the sítate, would necessarily give the new-made land to the city.

The learned counsel for the appellant himself says: “It may well enough be that a permission by the state to a riparian proprietor to fill up and occupy land under water in front of his premises would be equivalent to the grant of a fee. He insists, however, that no such permission was given. Of course, he would not claim that no right of access was involved in the grant, and that the state authorized a wharf in the interest of the commerce of a great seaport only to cut off all approaches to it from the land.

Now, the act of 1857, as we read it, in the light of the situation and of prior legislation, fairly authorized the city to fill up and occupy the open space as a necessary incident to the use of and the access to the new wharf. Its second section reads : “It shall not be lawful to fill in with earth, or other solid material, in the waters of said port, beyond the bulkhead line or line of solid filling hereby established.” The learned counsel for the appellant says, in his clear and terse way: “The purpose of these acts was simply to prevent filling up beyond a certain line, not to permit it up to such line.” But why prohibit at one point, if no permission had been given at any? If no general permission had ever been given, why specially prohibit in part ? In the appellant’s view, what was the need of this provision at all ? Did anybody suppose that it ever was lawful, in the absence of permission or a grant, to fill up with earth the state’s land under the water of a navigable stream ? It is clear that the act of 1857 proceeds upon an assumption. It assumes that the city and its grantees have a right of solid filling upon some of the state’s lands under water, and proceeds upon that assumption not to deny, but to limit and restrict, that right; and so, when it says that no filling shall be done “beyond,” it strongly implies that it may be done “up to.” Three times in the act of 1857 the new bulkhead line is described as synonymous with the “line of solid filling.”

If we go back a little along the current of legislation, we shall find in the Revised Laws of 1813 the reason and the basis for the assumption and the language of the act of 1857. By the terms of the earlier act, the city, already authorized to build wharves where it pleased within' the corporate boundaries, was further and expressly authorized to compel the riparian owners to build such wharves at their own expense; and, where there was open space between the land and the wharf, to require such proprietors “to fill up and level at their own expense, according to such plan, and by the said days respectively, the spaces lying and being between their said several lots and the said streets and wharves; and shall, upon so filling up and leveling the same, be respectively entitled to and become the owners of said intermediate spaces of ground in fee simple.” Of course, if the city was the upland owner, with an open space between its land and the new wharf, it had the right to fill it in, and thereby become its owner. By this act, the state granted to the city, and to the upland owner, the right to fill out to the permitted wharves, and vested title to the new made land in the adjoining owners. The line of solid filling, therefore, permitted by the state, was exactly synonymous with the bulk-head line. When the city was restricted in its general right of building wharves to limits within exterior fines, it was natural equally to restrict the solid filling permitted within the same lines.

We do not think it alters the case that this grant by the state was to persons compelled to fill under the terms of the act. Where the city itself was adjoining owner, the compulsion became simply a privilege or right; and it is quite possible that as to the citizen a similar change occurred. We may infer, from the constant repetition of grants, that what at first was a burden borne under compulsion, soon became a benefit, and was sought as a privilege; and so, instead of the compulsory direction of an ordinance, the city gave the same direction, and with the same results, by the terms and stipulations of a grant. And thus we discover the assumption upon which the law of 1857 rested, and see in it a clear recognition by the state that its removal of the exterior bulk-head fine further into the stream carried with it a surrender by the state to the city, or its grantees, or the upland owners, of its land under water, behind the new wharves, whenever they should be constructed. Why should the state have done otherwise 1 How could it have done otherwise, unless it meant not only to throw the necessities of an enormous commerce upon the city, but to hamper and obstruct the bearing of that burden by withholding a right useless to itself? And so I reach the conclusion that the state did, by its earlier acts, and their recognition in 1857, permit solid filling on its lands under water within the bulk-head fines, and by that process part with its title, and transfer it to him who lawfully made the new land as an approach to the docks. And this view is further strengthened by the two facts that the state has seen this process going on for about half a century without once interfering or asserting a hostile right, but, on the contrary, has given to the city, whenever requested, formal conveyances of its lands so occupied.

We are able now to see what the rights of the city were when it conveyed to Williams and Towle. The city owned the upland. In front of it the harbor commissioners’ line had been established. The erection of a new wharf on that line was desired. Its construction would shut in and destroy the old wharf on the old west line of Thirteenth avenue, and require a solid filling which the city had a right to make, and, having made,-would own and possess. It had a further right, as against the state—an easement for the approach of vessels over the lands of the state under water, in front of the harbor commissioners’ line, whenever a new wharf should be built upon that line. All these rights it conveyed to Williams and Towle, and vested every one of them in them. It had the power to convey them. Langdon v. The Mayor (supra). It did convey them. Its deeds cover the open space between the avenue bulk-head and the harbor commissioners’ line, and make that the west or outer line of the grant. The deed was made and accepted upon an understanding of the city’s rights precisely as we have held them to exist. It described the property thus: “All that certain water lot or vacant ground, and soil under water, to he made land, and gained out of the Hudson or North river or harbor of New York, and so much thereof as has already been made and gained,” etc. The municipal authorities either at that date understood their rights as we do, or else perpetrated a deliberate fraud upon an unsuspecting purchaser. The grantees in the two deeds were required to covenant, and did covenant, to build, at their own expense, within three months, the new wharf and bulk-head along the west or river front; to build such streets as ran through the premises, grading and paving the same, and laying the sidewalks thereof; to repair and maintain the whole of Twenty-sixth street lying west of Eleventh avenue, and such other streets as should be laid ■out on the premises. The city on its part, withholding covenants of seizin or warranty, did stipulate that the deeds should “passthe estate, right, title and interest they may have, or may lawfully claim, in the premises hereby conveyed, by virtue of their several charters, and the various acts of the people of the state of New York;” and covenanted that the grantees should take and hold “allmanner of wharfage, cranage, advantages or emoluments growing out or accruing by or from that part of the said exterior line of said city lying on the westerly side of the hereby granted premises fronting on the Hudson river.” We determined in the Langdon Case that such deeds granted a wharf right which lay in grant if not in covenant. The temporary prohibition contained in the act of 1855, staying the city from conveying pending the examinations of the commission, was repealed before these deeds were made, and for the obvious purpose of allowing the city to resume that system of grants which the legislature in the preamble to the act of 1855 had recited “were liable to be made.”

The grantees in the present case performed their covenants. They constructed the wharf on the river line; filled in the space between; built the streets required; and went peaceably into the possession of their land and wharf rights. They became owners of the newly made land, as well as-that already “gained” at the date of the deeds, and owners of an easement for the approach of vessels in front of their wharf, both as against the city and against the state. In this respect is developed the only serious difference between the Langdon Case and this. In that case the city owned the land under water in front of the dock; in this the state owns it. In that the grant of a wharf-right by the city carried with it an easement in the city’s land under water in front; in this the state’s grant to the city carried the right to such easement over the state’s land under water to the city, and the deeds of the latter carried it to the grantees.

We are not unmindful of the criticisms which have been made upon this view of the case, or the further grounds-upon which the rights of the grantees are assailed.

It is suggested that, if the effect of the acts to which we have referred was to convey a title to the city to all land belonging to the state lying between the new bulk-head and the city’s old wharf and land, “ it must also have been their effect to convey to private proprietors all land belonging to the state between the land of such proprietors and. such bulk-head fine,” and that doctrine has been expressly denied. Van Zandt v. The Mayor, 8 Bosw., 375. But the-alleged vicious conclusion does not follow because the mere riparian proprietor has no right to the new outside wharf, or to use or approach the same, or to take the wharfage therefrom, which is the right of the city. The private owner has no interest in the new bulk-head which can carry him over the intervening space, and the city has. The-former has simply been deprived of his rights, and suffered a loss of his property, for which he is entitled to compensation.

It is said that, by a law of the state (Laws 1837, chap. 182), Thirteenth avenue had been laid out as an exterior public street, and the plaintiff is claiming by virtue of grants from the city alone to convert Thirteenth avenue into an insidie street, contrary to the express law of the-state. That is very far from a correct view of the situation. The change was made, as we have seen, by force of the law of the state which carried the west wharf-line further into the stream, and the line of solid filling to the same point. The process had been going on for years, and outside transformed into inside streets continually. A glance at one of the maps used on this argument shows that original high-water mark was but a little west of Tenth avenue, and even the west line of the 400 feet beyond low water given by the Montgomerie charter was east of Eleventh avenue, and from that point on the city has been permitted to grow into the river over the lands of the state under water, not only by its consent, but through its direct participation and agency.

It is argued that under his deeds plaintiff had no right of wharfage, except at the west line of Thirteenth avenue; that he lost that by filling up himself in front of that bulkhead; and that such right of wharfage has no immunity from destruction by a filling up in front either by the state or its grantee,” citing Gould v. Hudson R. R. Co. (6 N. Y., 522). It is not necessary to express either approval or disapproval of that authority. It is enough to say that it has no sort of application to the present. There the plaintiff had no rights beyond that of a mere riparian proprietor. If he had possessed, in addition, a wharf-right derived from the state or its grantee, quite a different question would have been presented. But we have sought to show that plaintiff’s wharf-right was not at the old line, but at the new one, and the filling was covenanted to be done as a necessary incident to the wharf-right granted.

Much was said on the argument as to the rule of construction applicable to grants by the state. The subject was fully considered in the Langdon Case, and need not here be resumed.

It seems only necessary to add that we do not view the grant by the state to the city as without consideration, and purely and simply a gift. The state owned but a single sea-port open to commerce, and touched by tide-water, and that one a harbor of remarkable size and convenience. Its interest to concentrate there ships and cargoes from all parts of the world, by protecting the harbor and lining it with docks and piers, was very great, and took on the character of a duty due to the prosperity of the commonwealth. It early imposed that duty upon the city and the citizens, by whom it has been steadily performed, at very great cost, and one in the future to be largely increased. Every grant the state made was in aid of the expenditure involved in the performance by the city of that duty, and in consideration of that performance. Little enough of its own duty has been borne by the state, and to call that little a pure gratuity amounts almost to a sarcasm. We do not understand Dermott v. State (99 N. Y., 101), to have limited the Langdon Case.

A point was made over the reservation in the deeds of “ such streets as now are or hereafter may be laid out through the premises hereby granted;” and it was claimed that a new river street, 250 feet wide, and absorbing Thirteenth avenue, and all the land west of it to the river, was laid out by the department of docks. We do not think the power to lay out streets was conferred upon that department. It belongs to the board of street opening and improvement, by whom no such action has been taken. It may be added that the plan for what is called a “ river street” upon “Sheet' A,” of the general plan did not have indorsed thereon a certificate of adoption by the commissioners of the sinking fund, and “Sheets C and D,” which were adopted and indorsed, are utterly silent as to any river street.

It follows from what has been said that the plaintiff, whose land will be taken away and his wharf-right destroyed by the new exterior line and structures of the dock department, is entitled to adequate compensation. The act organizing that department will, and was intended to, change utterly the water-front system of the city. Upon the new line the municipality is to build 'all docks and wharves and piers, and own them all, and the old plan of wharves and piers owned by individuals is to be swept away. But by the act the rights of private owners are respected, and there is not in it a word or line of meditated spoliation. The wharf property of citizens may be taken, but must be paid for fairly, and in the ordinary manner.

The judgment should be affirmed, with costs.

All concur, except Raparlo, J., not voting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Peter Bowe, Sheriff, Resp’t, v. Charles W. Wilkins et al., App’lts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Sheriff—Bond of indemnity—Attachment — Void when attachment VACATED.
    The plaintiffs in action in which they attached the goods of the defendant, gave the sheriff abend of indemnity “from all liability, suits and judgments against him, by reason of the levying, attaching and making * sale under and by virtue of such attachment of the property, and for the defense of any action which might be brought against the sheriff for such taking.” The attachment was vacated, and the sheriff being sued for the goods, gave notice to said plaintiffs, and at their request defended, and was defeated. He now seeks to recover from these defendants upon their bond of indemnity. Held, that after the vacating of the bond the sheriff was bound to surrender the. property on reasonable demand, and his refusal was an illegal act, which it cannot be supposed the bondsmen indemnified against.

      2. Same—Pleadings liberally construed.
    Where a complaint alleges a wrongful taking by the sheriff, a demand for return and a refusal, and the defendant set up the issuance of the ■ attachment, etc., the plaintiff could properly prove that it had been vacated, and a demand had been made thereafter and refused before suit commenced.
    3. Evidence—Parol.
    When it does not appear from the record what was the precise ground upon which a case was decided, parol evidence may be given, provided such ground was within the issues of the case.

      4. Same.
    As the refusal of the sheriff to deliver was unconditional, it is too late for him now to claim it; he was entitled to the service of a certified copy of the order vacating the attachment, and to be paid his costs, etc.
    5. Same.
    The defense of the suit by the original plaintiffs, at the notification of the sheriff, was not equivalent to a ratification of his action, as it did not appear that they knew of the demand and refusal after the attachment had been vacated. Huger, 0. J., dissenting.
    Appeal from supreme court, general term, first department.

      A. Blumensteil, for app’lts; Chas. F. MaoLean, for resp’t.
   Peckham, J.

The plaintiff brought this action to recover from defendants some $5,000, which he had paid upon a judgment recovered against him by one Gallinger, under the following circumstances: In December, 1880, one Harriet S. Briggs was the owner of a stock of goods in a store in New York, and on the second of that month she assigned them to Gallinger, for the benefit of her creditors. On the same day, William H. Talbot and others commenced an action against Mrs. Briggs, and procured an attachment against her property, and placed it in the hands of the sheriff, who levied upon the goods which she had assigned to Gallinger, and which were claimed by him. The sheriff, on the 16th, took a bond" of indemnity, signed by these defendants, and kept the goods. The condition of the bond was that, if the obligors should indemnify the sheriff from all liability, suits, and judgments against him by reason of the levying, attaching, and making sale under or by virtue of such attachment of the property, and for the defense of any action which might be brought against the sheriff for such taking, then the bond to be void, otherwise 'valid. This attachment was, on the twenty-first, of December, vacated, and, on the twenty-fourth of that month Gallinger commenced an action to recover from the sheriff the value of the goods which had been taken by him. The sheriff gave notice of the suit to these defendants, and at their request he defended it; they being represented by counsel on the trial thereof. The trial resulted in a verdict and judgment against the sheriff for the value of the goods, which he subsequently paid, and then commenced this action to recover from the defendants, on their bond, the amount he had paid under the Gallinger judgment, and the expenses he had been put to in defending it. The defendants herein set up in their answer that the sheriff, after the attachment had been vacated, and after due demand had been made upon him, refused to surrender the property attached, and this refusal was without the knowledge or assent of the defendants herein, and that the recovery in the Gallinger action was based on this demand and refusal, and that such conduct on the part of the sheriff was not within the condition of the bond, and consequently they were not liable therefor.

Upon the trial of the action the plaintiff claimed to have proved his case by the production, among other things, of the judgment-roll in this Gallinger suit. The defendants then, under plaintiff’s objection, proved by parol the ground upon which that suit was decided; viz., that the sheriff became liable for a conversion upon the attachment being vacated, and his refusal to give up the property upon a demand made after that event. Notwithstanding this evidence, the circuit court gave judgment for the plaintiff, which has been affirmed by the general term, and the defendants have appealed here. They claim (1) that the condition of their bond did not cover the facts upon which the judgment was founded in the Gallinger suit; (2) that the ground upon which the recovery was based was within the issues raised by the pleadings in that action; (3) that it was proper to show by parol what that ground was. It is beyond dispute that the recovery in the Gallinger suit was upon the sole ground above stated. The evidence upon the trial of this action as to what that ground was, is wholly uncontradicted, and consists of the stenographer’s minutes of evidence upon that trial.

As to the first contention of the defendants, was this act of the sheriff within the condition of the bond ? We think not. When the attachment was vacated, it became his duty, upon reasonable demand, to deliver up the property to the defendant, or to the person entitled to it, who in this case was Gallinger. Code, § 709. The bond indemnified the sheriff for his act in taking the property as that of the defendant in the attachment suit, and for his keeping it under such attachment, and refusing to give it up to Gal-linger or any one else. The property was originally taken by virtue of the attachment, and the writ was the only justification for its retention; and if, in truth, it -belonged to Gallinger, as he claimed, the writ would then furnish no justification for taking or retaining the property. The bond taken was intended to and did cover the risk of this taking and detention under the writ. It cannot be construed to cover a detention by the sheriff after the writ (which was his sole authority for ever taking and for continuing to keep the property) had been vacated. After such vacation the sheriff was bound to surrender the property upon reasonable demand, and his refusal to do so would be an illegal act, which it cannot be supposed the indemnitors in the bond proposed or assumed to indemnify against, and as to which, if they had, such bond would have been void to that extent. Griffiths v. Hardenbergh, 41 N. Y. 464.

As to the second claim of the defendants. The basis of the recovery in the Gallinger suit was fairly within the issues. Pleadings are to be liberally construed, with a view to substantial justice, or in other words, with a view to get out the real truth of the case, when it will not involve surprise or injustice to either party. The complaint in the Gallinger suit (which was brought several days after the attachment had been vacated) did allego a wrongful taking from Gallinger’s possession, on or about the eleventh of December and a conversion to the defendant’s use. It also alleged a demand made for a return, and a refusal by defendant. It then demanded judgment for the value of the property. The defendant answered by setting up the issuing of the attachment, and justified the taking and retention under that writ, and alleged that the assignment from Mrs. Briggs to Gallinger was void, as made with intent to hinder, etc., the creditors of the former. This answer did not set up new matter constituting a counter-claim, and did not call for a reply, and, under section 522 of the Code, such new matter was deemed controverted by the plaintiff by traverse or avoidance, as the case might be. Therefore, upon evidence by the defendant that the property was taken and held under the attachment as the property of Mrs. Briggs, the plaintiff could properly prove that it had been vacated, and a demand for the return of the property had been made thereafter, and had been refused before suit was commenced. If this were proper to put in evidence, the court could then decide upon its effect. It did so decide, and held the defendant liable for his conversion, or, in other words, for his retention of the property subsequent to the time when the attachment was vacated.

The defendants then make the third claim, that it was proper to prove by parol the ground upon which the Gallinger case was decided. When it does not appear from the record what was the precise ground upon which the case was decided, parol evidence thereof may be given, provided such ground was within the issues in the case. Wood v. Jackson, 8 Wend. ,9. We have just seen that this ground was within such issues."

The plaintiff herein makes some answers to these several' defenses, and he says that, as matter of fact, there was but one demand made by Gallinger for the goods after they were taken, and that demand was made on the day of their seizure by the sheriff, and he gave some evidence to that effect on this trial. The difficulty with this evidence is that it was not given on the trial of the Gallinger suit. The evidence is wholly uncontradicted as to what took place on the trial of that suit, and its only possible importance was to show the reason for the decision of the Gallinger suit, and that it was decided upon a ground not covered by the bond. As I say, the evidence on that trial was uncontradicted and conclusive, showing that Gallinger made a demand after the attachment had been vacated, and that there was a refusal of the sheriff to give up the property notwithstanding such fact, and that the action was decided on that sole ground.

The plaintiff herein also states that the case does not purport to contain all the evidence taken on the trial of the Gallinger case, and that, to support this judgment, it must be presumed that other evidence was given, and upon a point which was covered by the defendants’ bond; but the difficulty is that the language of the court on that trial, as proved by defendants, shows explicitly that the sole ground of recovery was the demand and refusal subsequent to the attachment being vacated. In the face of such language no such presumption can be indulged in. - It is also urged, in behalf of the plaintiff, that, even after the attachment had been vacated and demand made (cohceding for this purpose that a demand was made), still the sheriff was not bound to surrender the property forthwith. He says the sheriff was entitled to demand service of a certified copy of the order vacating the attachment, and to be paid his costs, fees and charges before a delivery could be claimed. Assume that the sheriff would be entitled to all these privileges, even including his costs (which he, as to the latter, probably would not be, in case of the writ being vacated), yet the evidence on the Gallinger trial was uncontradicted, that, when Gallinger made his demand for a return of the property after the attachment had been vacated, the refusal of the sheriff to deliver was not put on any of these grounds, but was absolute, unconditional and final, and placed solely upon the ground that he had a bond of indemnity, and it was no use to ask for a delivery. In the light of such facts the claim now made in behalf of the sheriff comes too late. It would have very likely constituted a defense to the Gallinger judgment, if proved on that trial, as having bear a position taken by the sheriff in answer to the demand for the property after the writ had been set aside. To prove it on this trial was useless, because too late, and no answer to the proof of what took place on the Gallinger trial, and what was the ground of that judgment. Nor is any defense made out by proof of the proceedings subsequent to the rendition of judgment in the attachment suit. Judgment was therein duly obtained February 12, 1881, and on that day an execution was issued thereon—nearly two months after the commencement of this action.

The sheriff under that execution proceeded to levy on the goods which he had attached and kept in his hands, and he sold them under such execution, and turned over the money to the attorney for the plaintiffs in the execution, who knew it came from the sale of those • goods. There is no evidence that these defendants ever knew one word as to where the money came from to pay a judgment in an action to which they were not parties, and none that any orders were given by any one to the sheriff as to what property to levy on. Issuing an execution without any directions as to how it is to be enforced, or as to what property is to be taken, implies only an authority to do a lawful act pursuant to its command (Welsh v. Cochran, 63 N. Y., 181); and the knowledge of the attorney in the execution as to where the money came from which he took from the sheriff, there being no proof of like knowledge by the plaintiffs in the execution when they received the money from him, would be no ratification, even as to them, of the prior illegal act of the sheriff in refusing to surrender the goods, much less on the part of these defendants, being equally ignorant. Clark v. Woodruff, 83 N. Y., 518.

Neither is the defense of the Gallinger suit by the defendants, at the notification of the sheriff, equivalent to a ratification. It does not appear that at that time they knew of the demand and refusal after the attachment had been vacated, and the pleadings in the Gallinger suit would not necessarily disclose that fact; but, even if they at that time did know of such demand and refusal, it nowhere appears that they knew of or approved it when it happened, or that they ever requested or expected the sheriff to so refuse. An attempt to defend the sheriff from the consequences of an illegal act, done without their request or sanction, cannot properly be set up as a ratification of such act, as between the sheriff and these defendants.

Upon a careful consideration of all the facts in this case, we are reluctantly brought to the conclusion that the judgment should be reversed and a new trial ordered, with costs to abide the event.

AH concur, except Huger, 0. J., dissenting.


author: Earl, J.

text:
    Christopher Schwinger, Resp’t, v. Alonzo B. Raymond et al., App’lts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Appeal from order denying new trial — Must be taken on exception.
    The court below has the power to set aside the verdi&t as contrary to the evidence without any exception, but this court will consider no objection not based upon some exception taken at the trial, and the appeal to this court from order denying defendants' motion for a new trial brings here only questions of law upon exceptions taken at the trial.

      % Expert evidence.
    Whether barrels upon the deck of a canal boat were properly covered by the captain, is not properly a subject of expert evidence.
    3. Exception' to judge’s refusal to charge.
    Where, after being requested to charge in certain words, the court said: “ It is unnecessary, I think, as my charge covers it.” Held, it was a clear intimation to the jury that the request was proper, and if the charge did substantially cover it, an exception to such response by the judge would not lie.
    Appeal from judgment of the supreme court, general term, fifth department.
    S. C. Hyde, for app’lts; Geo. M. Osgoodby, for resp’t.

       Affirming 35 Hun, 666, mem.

   Earl, J.

This action was brought by the plaintiff to recover his freight for transportation of 200 barrels of beans on a canal-boat from Albion and Brockport to New York city. The defendants allege, by way of counter-claim, that the beans were transported in such a careless and negligent manner that they became wet, and in consequence thereof sprouted, and were greatly damaged. Upon the trial the plaintiff gave evidence tending to show that the contract was to carry the beans on the deck of his boat, and that he was not to be responsible for any damage to them from moisture, but that he was to furnish lumber sufficient to cover them, and that the defendants were to cover them with the lumber thus furnished. The plaintiff claimed, and gave some evidence tending to show, that he furnished the lumber in pursuance of this agreement. On the part of the defendants, they gave evidence tending to show that there was no agreement that the plaintiff should be exempt from any responsibility as carrier; that he was to furnish lumber to cover the beans; and that they were to give directions to the captain of the boat as to covering them with the lumber; that the plaintiff failed to furnish lumber for that purpose; and that the boat entered upon its voyage without any covering upon the beans, and that in consequence thereof they became wet, and were greatly damaged. As to what the contract really was between the parties there was a fair conflict in the evidence, but there was a great preponderance of evidence that the plaintiff did not furnish lumber to cover the beans, and that he failed in that respect to keep his contract. There was no motion, however, to nonsuit the plaintiff at the trial, or for the direction of a verdict, and no exception which brings to us the question whether there was sufficient evidence to sustain the verdict of the jury. The court below had the power to set aside the verdict as contrary to the evidence without any exception, but in this court we can consider no objection which is not based upon some exception taken at the trial; and the appeal to this court from the order denying defendants’ motion for a new trial brings here only questions of law based upon exceptions taken at the trial. Therefore, however unjust this verdict may be upon the facts appearing in the case, we are powerless, on that account, to give the defendant any relief.

The record contains but one exception taken by the defendant during the progress of the trial before the submission of the case to the jury. While one of the defendants was testifying as a witness, he stated that he had heard the testimony of the captain of the boat as to the manner in which he covered the beans; that he was acquainted with the manner of covering deck-loads, and had been for fifteen or twenty years; that he had been a shipper on the canal for sixteen or eighteen years; and that the defendants’ warehouse was on the canal. He was then asked this question: “What is a proper and proof way of covering deck-loads ? ” To this there was objection on the part of the plaintiff, and then this question was asked: “I will ask if loose boards on barrels tiered in the manner mentioned by the witness Jacobs, loosely lapping one on the other in that way, lengthwise with the boat, if that will protect deck freight from rain?” To this plaintiff’s counsel objected, and the objection was sustained, and defendants’ counsel excepted. We think the question was properly excluded. Whether the barrels were properly covered by the captain so as to protect them from rain was not properly a subject of expert evidence. The facts were proved, and from them the jury were to deternine whether the covering was sufficient. It was not difficult to place all the facts before the jury, and from them they must be supposed to have had sufficient skill and knowledge, dealing with elements with which all men are adequately informed, to determine whether the barrels were properly covered for protection against rain.

The only other exception which requires any notice whatever, is that taken to the refusal of the judge to charge as requested by the defendants, as follows: “If they find from the evidence that it was a part of the contract of affreightment that defendants should perform or help perform the labor of covering the goods with lumber to be furnished by the plaintiff, and that he would not be responsible for the manner in which such labor would be done, nor for protection of the goods by such cover from the elements, and did furnish the lumber, yet that the defendants were entitled to a reasonable opportunity for performance after the production of the lumber, and the proper arrangement of the goods on the deck to receive the cover, and if the captain departed with the goods from Albion or Brockport without a proper cover, or the defendants consent that they might go uncovered, and without giving the defendants such opportunity, the plaintiff waived, performance by defendants in that respect, and was bound to care for the goods as though no special contract had been made.” In reply to this-request the court said: “ It is unnecessary, I think, as my charge covers it.” This was a clear intimation to the jury that the request was proper, and we think the charge did substantially cover it. The court had charged the jury as follows: “If you find that the property should be carried upon the deck, and, further,, the agreement was that the plaintiff should furnish the. lumber, and the defendants should themselves place the lumber on the beans, and cover them, then, if the captain furnished the lumber, and they omitted to use it, and cover the beans, when they had an opportunity, then they cannot recover; and that involves the proposition that the captain did furnish lumber either at Albion or Brockport, for it was not contemplated that the defendants should at any other place adjust the lumber. -If you find it was the agreement that the plaintiff was to furnish, and that the defendants were to advise the captain how to use it, and cover and protect the property, and the lumber was furnished, and they gave instructions to the captain, then they did all their duty, and the plaintiff was liable to them for the damages which might have occurred, the plaintiff himself assuming the risk that he would protect and preserve the property; and, if he didn’t furnish the lumber at all, then they were under no obligation to adjust it.”

It may, however, be said that there was really no controversy at the trial that the defendants had opportunity to cover the beans, provided the lumber was furnished by the plaintiff. The contention of the plaintiff was that he furnished the lumber; and that of the defendants was that no lumber was furnished, although they repeatedly requested that it should be. And therefore they are not in a position to contend that they had no opportunity to use the lumber. The principles controlling this case were in the main settled when it was here before (83 N. Y., 192), and nothing further needs to be written now.

The judgment should be affirmed., with costs.

All concur.