author: Per Curiam.

text:
    Catharine P. Daniels, Adm’rx, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.

      (Court of Appeals,

      Filed January 27, 1891.)

    1. Negligence—Railboad—Lighting on headlight on engine. •
    Upon the trial of an action against defendant for killing plaintiff’s intestate at a street crossing, at 5:30 p. m., on the 3d day of November, the evidence showed that the engine and cars of the up train were perfectly visible where deceased was, and others standing much further away but on the same line of vision saw the engine and cars distinctly, and the absence of a light on the engine was not shown to have in any way contributed to the accident. The court confined the jury, as to defendant’s negligence, to the one question of its absence. Held, error ; that the defendant was entitled upon the undisputed evidence to an instruction that the question of the headlight was not a material element in the case.
    5. Same—Contributory negligence.
    Plaintiff’s intestate was familiar with the crossing, knew that there were two tracks upon which trains passed in opposite directions, and in spite of the passage of the down train obstructing his vision in the direction from which the other came, proceeded to cross immediately after the passing of the down train without looking up the road. Held, that he was guilty of contributory negligence, or at least that the accident was not attributable to any negligence on the part of the railroad,
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Alfred B. Boardman, for app’lt; Sidney F. Rawson, for resp’t.
   Per Curiam.

We think the plaintiff failed to maintain her action both in respect of the negligence of the defendant and the freedom of the intestate from contributory negligence. Ho negligence can be imputed to the defendant by reason of the speed of the train, nor from its omission to maintain gates at the crossing, nor from the fact that there were not two flagmen instead of one, .nor by reason of any negligence of the flagman in failing to warn the deceased of the impending danger. It was not shown that the train was running- at excessive speed.

There was no duty resting on the defendant to have gates at the Maple avenue crossing in the village. It had been requested by the village authorities to erect them, but this imposed no duty until an order of the supreme court had been obtained upon their application requiring gates to be maintained. Upon such application it is discretionary with the court to “ order that a flagman be stationed at such point, or that gates shall be erected.” Chap. 439, Laws 1884, § 3. The defendant did keep a flagman at the crossing and when he observed the deceased approaching the track from the south he shouted to him that another train was approaching on the north track, but unfortunately the deceased was deaf and probably did not hear the warning. The flagman apparently did his whole duty.

The only omission which can be charged to the defendant in the management of the train was the failure to have the head light on the engine of the west bound train, which struck the plaintiff’s intestate, lighted, or rather in having the light turned so low as practically to make the condition the same as if unlighted.

The accident occurred November 3, 1888, at about thirty-eight minutes after five o’clock in the afternoon. The jury would have been authorized to find that the omission of the defendant to have .a headlight fully lighted at this time was the omission of due and reasonable care. The time was between “ dark and light,” as one witness says, and “ it was pretty dark ” is the language of another witness. The headlight on the down-bound train, which passed the crossing on the south track a few seconds before the up-bound train which struck the deceased, was lighted, and this was evidence that the time had arrived for lighting the headlight.

But the evidence discloses no relation between the omission to light the headlight and the happening of the accident. The evidence affirmatively shows that the engine and cars of the up train were perfectly visible to one on or at the side of the track where the deceased was, and several witnesses who stood much further away, but on the same line of vision, saw the engine and cars with perfect distinctness and also the reflection of the light from the car windows.

Upon the question of the ability of persons standing at- the Maple street crossing to see the approaching engine without difficulty, except as the view of the track was obstructed- by the train which passed the crossing in the opposite direction, there is no conflict whatever. It was not shown by, nor can any inference be drawn from, the evidence that absence of a light on the engine in any way way contributed to the accident.'

The court, in its charge, substantially confined the jury in passing upon the question of the defendant’s negligence to the one question whether the absence of the headlight was the cause of the accident. We think the court erred in submitting this question to the jury, and that the defendant was entitled upon the undisputed evidence to an instruction that the .question of the headlight was not a material element in the case.

We are also of opinion that the plaintiff failed to maintain the burden put upon her to show that there was no contributory negligence on the part of the intestate. The circumstances seem to point, not to an absence of negligence on his part, but rather to its existence. 'He was familiar with the crossing. He knew that there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction from which the other train came until it had passed the crossing and proceeded some distance beyond. The deceased apparently must have proceeded to cross the track immediately after the down train passed the crossing without looking up the road, because if he had looked after crossing the south track before stepping on the north track it is upon the evidence indisputable that he could have seen the approaching train.

It is impossible to escape the conclusion on the evidence that the accident happened in consequence of his thoughtlessness or at least that it was not attributable to any negligence on the part of tlio dofcndtint

The cases of Cordell v. R. R. Co., 75 N. Y., 330; Woodard v. R. R. Co., 106 id., 369; 11 N. Y. State Rep., 169; and Young v. R. R. Co., 107 N. Y., 500; 12 N. Y. State Rep., 285, cover all the questions in this and seem to require a reversal of the judgment Judgment reversed, new trial granted, costs to abide event All concur.

       Reversing 23 N. Y. State Rep., 87.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The Mayor, etc., of New York, Resp’t, v. George Law, Jr. et al., Ex’rs, et al., App’lts.

      (Court of Appeals,

      Filed January 27, 1891.)

    1. New York City—Land grant—Wharfage.
    The defendants’ grantors received a grant from the city of New York of land under water, by the terms of which they were to build and make the streets and wharfs through the premises granted, but not until requested to do so by the city, and the city covenanted that upon the construction of the exterior street, called Tompkins, they should have the wharfage, etc., accruing from the wharf on said street opposite the premises granted. No request was ever made for the construction of Tompkins street. Held, that the grantees did not become entitled to wharfage at or upon any of the streets passing through the premises, that by virtue of the grant they had no right to build or maintain a pier on an interior street and there take wharfage and that defendants, as their successors, could never become entitled to any wharfage until upon the request of the city they have constructed Tompkins street.
    2, Same—Prescription—Estoppel.
    Defendants did not acquire the right to maintain their pier and buildings and to take wharfage from the wharfs upon the interior street by possession, prescription or by estoppel.
    8. Same—Ejectment.
    Where grantors have entered upon the land of the city, have put structures thereon, are using the same mainly for their private purposes and have erected a wharf and pier and are taking wharfage thereon, ejectment is the proper form of remedy.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs entered upon report of referee.

      John F. Dillon and F. Randolph Robinson, for app’lts; D. J. Dean and James Sillhouse, for resp’t

       Affirming 25 N. Y. State Rep., 1084.

   Earl, J.

This is an action of ejectment to recover land situate in the city of New York bounded as follows: “Northerly by the northerly line of Tenth street extended easterly to the bulkhead line. Southerly by the centre line of Tenth street extending easterly to the bulkhead line, easterly by the said bulkhead line in the East river, and westerly by the westerly line of the Tenth street ferry house and a line in continuation thereof southerly to the centre line of Tenth street, together with the pier, or part of a pier and other structures thereon erected and the wharf-age and other emoluments thereof.” The cause was referred and the referee gave judgment to the plaintiff.

The title of the defendants to the premises in question, whatever it is, originated in a grant of land under water from the city to Charles Henry Hall, dated February 28, 1829, and the rights of the parties depend upon that grant and the proper construction thereof. The premises granted are described as follows: All that certain water lot, vacant ground and soil under water to be made land and gained out of the East river situate, lying and being in the Ninth Ward of the said city and bounded as follows, to wit: Westerly by high water mark, East river, northerly by the continuation of a line drawn through the middle of Thirteenth street; easterly by the westerly side of a certain new street hereinafter mentioned to be made, called Tompkins street, and southwardly by a certain other water lot granted or to be granted by the said parties of the first part to Nicholas William Stuyvesant, containing in breadth on the easterly side 864 feet, and in length on the southerly side 682 feet and five inches, be the same more or less, as by a map or survey thereof made by D. Ewen, city surveyor, dated March, 1825, a copy of which is hereunto annexed, reference being thereunto had will more fully and at large appear (excepting, however, so much of the said above described premises as is required for the streets hereinafter mentioned to be made), together with all and singular the privileges, advantages, hereditaments and appurtenances, to the same belonging or in any wise appertaining.”

Hall was the owner of the adjacent upland. The grant bound him, his heirs and assigns to pay an annual rental forever. It also bound them with three months next after request by the city, but not until so requested, at their own expense, to build and make the streets or wharves through the premises laid down upon the map annexed to the grant. Among such streets are Eleventh, Twelfth, the northly half of Tenth street, the southerly half of Thirteenth street, Tompkins street along the easterly side of the premises seventy feet wide, and other streets ; and it bound them to keep such streets or wharves thus to be built forever in repair at their own expense, and provided that the same should forever thereafter continue to be and remain public streets for the use of the public, and that in case default should be made by the grantee, his heirs or assigns, “ in building, erecting, making and finishing the said wharves and streets as aforesaid, or any part thereof when they shall be so required as above mentioned, then, in that case, it shall and may be lawful for the said parties of the first part and their successors to grant the right of making the same, and the right of receiving the profits thereof, to such person or persons in fee or otherwise, and upon such terms as they, the said parties of the first part, or their successors, shall deem meet, or at the election of the said parties of the first part, or their successors, to make the same themselves, and retain the use thereof for public purposes.” And the city covenanted that upon the payment of the annual rent and performance of all the covenants by the grantee, his heirs and assigns, he and they “ shall and lawfully may from time to time, and at all times forever hereafter fully have, enjoy, take and hold to his and their only proper use, all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from that part of the said wharf or street called Tompkins street, fronting on the East river, which is opposite the said premises hereby granted.”

Now under this grant who had the fee of the land in the streets to be constructed through the premises ? Clearly the city. That was excepted from the premises granted. As the city then owned in fee the land upon which all, or nearly all, its streets were constructed, and as it was the settled policy of the city to condemn or purchase land in fee for its streets, it cannot be supposed that it meant to depart from the usual course in this grant and actually convey away the fee of the land needed for streets and to reserve to itself only street easements therein. The city owned the fee of the land in Tenth, Eleventh, Twelfth and Thirteenth streets where they passed through the adjacent upland, and it cannot be supposed that it intended to part with the fee of the land needed for the extension of the streets through the land to be reclaimed from the water, so that it would have the fee of the land in portions of the 'streets and only easements in the lands of other portions. This construction of the exception contained in this grant has the sanction of ample authority, and it is not needful to say more about it. Langdon v. The Mayor, etc., 93 N. Y., 149; Duryea v. The Mayor, etc., 62 id., 592; S. C., 96 id., 477; Coffin v. Scott, 102 id., 730.

The land, therefore, within the exterior lines of the projected streets belongs to the city, and the defendants had no right to fill it up or occupy it for any purpose without the permission of the city. They were not to make or build the streets or wharves until requested by the city to do so, and any unauthorized entry thereon would be a trespass. The city could, however, acquiesce in the filling up and construction of one of those streets under such circumstances and for such a length of time that such acquiescence and its recognition of the street would be equivalent to a request to build the street under the grant.

The grantee became the absolute owner of the land between the streets, the land granted, and that he could fill up whenever he chose, suiting his own pleasure as to the time and manner of doing it, but there was nothing in the grant binding him to fill it up. Duryea v. The Mayor, supra.

Tompkins street is on the easterly side of the land granted, and it is not claimed that any part of the land in that street was granted. When filled up and constructed as a wharf it will lie between the East river and the land granted. It will not be intersected by Tenth, Eleventh, Twelfth and Thirteenth streets, and this cut up into sections. It is a continuous street along the easterly side of the granted premises extending beyond them, and it is that street and the whole of it which the grantee was bound, when required by the city, to build and forever maintain along “the easterly side” and the whole of the easterly side of the “ granted premises.” It is quite unreasonable to suppose that the parties to the grant meant by the words “ granted premises” only the several blocks of land between the streets; they evidently had in view the entire block of land bounded and described as the granted premises, although the streets through the same were excepted. The land from the middle of Tenth street to the middle of Thirteenth street was contemplated and bounded as a whole tract.

The grantee was to have the wharfage of the whole of the wharf which he was thus bound to build and maintain. Although the wharfage was in form secured to him by a covenant, it was, as was held in Langdon v. The Mayor, in effect granted to him. It was the wharfage growing or accruing by or from that part of the Tompkins street wharf fronting on the East river and “ opposite ” to the premises granted. The word “ opposite ” was used so as to exclude from the operation of the grant the right to wharfage northerly or southerly of the premises bounded and described, and so as to confine the wharfage to that portion of the wharf which the grantee was bound to construct and maintain. This right of wharfage was granted to the grantee, “ his heirs and assigns,” and it was not a mere easement appurtenant to the land conveyed to the grantee. It is quite true that easements must generally be appurtenant to some land or estate, and that there must be a dominant estate to which the easement appertains and a servient estate upon which it is imposed. But that is not true of all easements. There may be easements in gross which are not appurtenant to any land, and which the owner may enjoy, although he does not own or possess a dominant estate or any land whatever. Here the intention was to create an interest in this wharf by this grant which the grantee could enjoy himself or convey to any other person. Goodrich v. Burbank, 12 Allen, 459; Washburn on Easements, 10, 11, 36, 217.

It is very clear that by this grant the only wharfage granted was the wharfage upon the wharf called Tompkins street There is no covenant that the grantee should have any other wharfage, and the express mention of the whafage at this wharf would, by fair implication, exclude wharfage at' any other place. Our attention is called by the learned counsel for the defendants, with considerable emphasis, to that portion of the grant which provides that in case default shall be made by the grantee in building any of the wharves and streets which by the grant he was bound to build when required by the city, that then and in that case it should be lawful for the city to grant the right to build the same, and the right of “receiving the profits thereof,” to other persons, in fee or otherwise, as the city might determine. The argument, in substance, is that the word “ profits ” there used means the profits from any or all the streets passing through the granted premises, as well as those from Tompkins street, and that the necessary implication is that, but for the default, the grantee would be entitled to such profits. There is just enough to form some basis for such an argument, and yet we do not think the argument well founded. The express grant of the wharfage on Tompkins street would seem by implication to exclude a grant of wharfage anywhere else, and the word “ profits,” as used there, can be satisfied by referring it to the profits from Tompkins street alone, and that those profits were in mind at the time the word was used in that connection. But whatever meaning should be given to the word profits as here used, it is nevertheless true that the city could grant the profits, so far as they could be made upon any of these streets, to any other person, in case the plaintiff did not build the streets when required, and any implication which can be derived from the use of the word profits in that portion of the grant is fully overcome By the implication to be drawn from the express' grant of wharfage at Tompkins street wharf alone. Indeed, it is difficult to see how wharfage at any other place could have been contemplated, for after the construction of the Tompkins street wharf there would be no access by vessels to any portion of the granted premises, and no place where wharfage could be taken except at that wharf. It is not probable that the parties had in mind a period of time before the construction of Tompkins street, during which wharfage could be taken further inland at some other point.

It is not a just inference that the grantee was to have wharfage at the intersecting streets, which he was bound to construct and maintain, as a compensation for his labor and expenditures. There was ample consideration for all the covenants binding him in that he was to have all the wharfage in front of the granted premises, and was to have all the land reclaimed from the water between the streets.

We have, therefore, come to the conclusion that the grantee did not become entitled to wharfage at or upon any of the streets passing through these premises, that by virtue of his grant he had no right to build or maintain a pier in Tenth street and there take wharfage, and that the defendants, as the successors of the grantee, ■can never become entitled to any wharfage until, upon the request of the city, they have constructed Tompkins street. When they have constructed that,,or any portion of it, upon the request of the city, then and not until then can they commence to take wharfage.

Therefore, if the defendants are bound to stand upon the grant alone, they had no right to occupy any portion of Tenth street, and to maintain thereon their and structures connected with their ferry, and they.had no right to take any wharfage there, and this judgment is clearly correct.

But they claim that they have acquired the right to maintain their pier and buildings and to take wharfage from this street by adverse possession, by prescription and by estoppel. We have considered the learned and able arguments submitted to us upon these claims on behalf of the defendants, and we are satisfied that they are unsound, and as to them we will leave the case to stand upon the able opinion of the referee before whom the case was tried.

It is said that ejectment is not the proper form of remedy in this case and that the judgment is too broad. The defendants have entered upon the land of the city, have put structures thereon, are using the same mainly for their private purposes, and have erected a wharf and pier and are taking wharfage thereon. Thus they are so in possession that under all the authorities the city can maintain this action and the judgment is not too broad. Wager v. The Troy Union Railroad Co., 25 N. Y., 526; Reformed Church v. Schoolcraft, 65 id., 135, 151; Strong v. Cily of Brooklyn, 68 id., 1, 11; Uline v. N. Y. C. & H. R. R. R. Co., 101 id., 98, 123; 2 Dillon on Municipal Corporations, 3 Ed., § 662.

If Tenth street has become a street of the city, and is so filled up and constructed that it can be used as a street, the city, having recovered it, is bound still to appropriate the land recovered to street purposes. This recovery from these defendants does not absolve the city from the discharge of its public duty to keep and maintain the street and it does not destroy the street. It simply puts an end to the private occupation and use thereof for any purpose of these defendants.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur; Huger, Ch. J., in result.


text:
    Walter H. Hinkley, Ex’r, Resp’t, v. Jacob Crouse, Impl’d. App’lt.

      (Court of Appeals,

      Filed February 3, 1891.)

    Ejectment—Estoppel.
    Down to 1876 plaintiffs were in possession of a strip of land which was covered hy the description in their deed and also hy that in defendant's deed of the ^adjoining lot. In that year defendant placed upon the strip the wall of a building which he then erected, claiming the right to do sounder his deed. Plaintiffs disputed such right, but misled by his assertion and some advice made no further objection for ten years. Seld, that as they did not mislead him and he did nothing in reliance upon their silence plaintiffs cannot be deprived of their land by the mere acquiesenee in the possession of the defendant for less than twenty years.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiffs.

      M. M. Waters, for app’lt; Stone, Gannon & Petit, for resp’t

       Affirming 52 Hun, 613, mem.

   Earl, J.

This is an action of ejectment to recover the possession of a strip of land one and one-half feet wide by thirty feet long, situate in the city of Syracuse. The parties own adjoining lots, and the controversy is over a boundary line. The disputed strip of land was covered by the description contained in the deeds held by both parties, but it is undisputed that the older and better title was in the plaintiffs who commenced this action, and that their title was good unless the defendants could stand upon some one of the defenses which will now be very briefly noticed.

Down to 1876 the plaintiffs were in possession of this disputed strip, and in that year the defendant Grouse took possession of it, ■and placed upon it the wall of a building which he then erected. He did this relying upon his deed and claiming that he had a right to do it The plaintiffs at that time claimed the strip and disputed the right of Crouse to enter thereon. As Crouse has been in possession of this land for less than twenty years, he cannot claim to hold it against the plaintiffs unless they, in some way, became estopped from asserting their title. They made no agreement with Crouse fixing the line, and they never assented to his taking possession of the land, and there was, therefore, no 'practical location of the line. Baldwin v. Brown, 16 N. Y., 359; Reed v. Farr, 35 id., 113; Reed v. McCourt, 41 id., 435; Duffy v. Masterson, 44 id., 557; Britannia Co. v. Hoyt, 51 id., 656.

They did nothing and said nothing which induced Grouse to take possession of the land, ór upon which he had a right to rely in taking possession thereof. He did not act upon anything they said or did, or omitted to say or do. He claimed the right under Ms deed to take possession of the land, and took possession relying upon it, and there is nothing whatever in the case to estop the plaintiffs from asserting their title. After they had disputed the right of Crouse to this land, and they had asserted their title, he persisted in his claim and took «possession thereof and erected the wall of Ms bmlding thereon. Then misled by his assertion of title and by some advice they had obtained in reference thereto, they made no further protest or objection to the occupancy by Crouse for more than ten years, until about the time of the commencement of this action in 1887. During all that time they ap parently acquiesced in the claim of Crouse. But they did not mislead him, and he did nothing in reliance upon their silence, and they cannot be deprived of their land by their mere acquiescence in the possession of Crouse for less than twenty years.

There was no disputed facts or inferences, and there was, therefore, nothing for submission to the jury, and the learned trial judge did not err in directing a verdict for the plaintiff.

The judgment should be affirmed, with costs.

All concur.


text:
    Joseph B. Rose, App’lt, v. Asa L. Hatch et al., Resp’ts.

      (Court of Appeals,

      Filed February 3, 1891.)

    .1. Will—Life estate with power of disposition.
    Defendant’s first wife, by her will, gave all her estate to him for life for his support, the sum remaining at his death to he devoted to the support and education of orphan children in such way as in his judgment might be best; and gave .him power of sale, “provided, that if any portion thereof or its avails in money or valuables be used by my said husband, such use shall be restricted to his personal wants and necessities in providing for his support and livelihood.” Held, that defendant took a life estate, with the right to use the whole of the income and so much of the principal as might be required for his personal wants and necessities, with power of disposition during life, which did not carry an absolute fee, and that a purchaser under an execution sale against him took no title to the property.
    3. Same—Indefinite bequest.
    The direction in the will that after the death of the testatrix ■ the property shall be devoted to the support and education of orphan children in such way and manner as in his judgment may best conserve this object,” was clearly invalid.
    3. Same.
    The direction that her husband should make certain gifts and memen' toes in her name to her surviving relatives and friends as she verbally named and requested of him, was also invalid, being at the most discretionary.
    Appeal from judgment of the supreme court,general term, second department, affirming judgment in favor of defendants dismissing the complaint

      Wm. J. Gaynor, for app’lt; James D. Bell, for resp’ts.

       Affirming 29 N. Y. State Rep., 539.

   Earl, J.

This is an action of ejectment to recover certain land described in the complaint situate in Queens county, and the material facts are as follows: On the 6th day of February, 1883, Eugene C. Eiggs recovered a judgment for upward of $2,800 against the defendant, Asa L. Hatch, which judgment was duly docketed in the office of the clerk of Queens county on the 7th. day of August, 1884. On the 23d day of January, 1886, the land was sold under an execution issued upon that judgment as the property of the defendant, Asa L. Hatch, and on the 28th day of April, 1887, a deed of the same was given to the plaintiff as the purchaser at such sale.

The claim of the plaintiff is that the judgment debtor derived title to the land under the will of his wife, who died April 30, 1884. By the second, third and fourth clauses of her will she provides as follows:

“Second. I give, devise and.bequeath all my estate and property, whether real, personal or mixed, of which I may die possessed, to my beloved husband, Asa Lyon Hatch, in trust to be by him held, enjoyed and disposed of as follows, that is to say:

1st. To his own proper use, benefit and advantage during his natural life, meaning and intending that out of the said estate, its. income, substance, profits and avails, my said husband may and shall derive his support in whole or in part accordingly as said estate may be made available and my said husband may determine; but it is my desire that so much of said estate or its profits and avails as my said husband shall die seized or possessed of shall be by him so left, secured and disposed of as to be devoted to the support and education of orphaned children in such way and manner as in his judgment may best conserve this object

2d. I furthermore desire my said husband to make such gifts or mementoes in my name to such of my surviving relatives and friends as I have heretofore verbally named and requested of him; in this, as in all matters, having the fullest confidence and belief that he will faithfully observe and carry out my wishes by him clearly understood.”

Third. I nominate and appoint my beloved husband, Asa L. Hatch, my sole executor of this my last will and testament, and I request that no bond in this behalf shall be required of him. I furthermore give to, and confer upon, my before mentioned executor and trustee full power and authority by public or private sale, or in any such way or manner, and at such price, or prices, and terms of credit as he shall deem expedient, to bargain, sell and convey any and all the real, personal and mixed estate of which I may died seized, and the trust hereby created is intended to confer such right and authority unqualifiedly, as well as to authorize and empower my said executor and trustee to make, execute and deliver any such deed or conveyance as shall be needful and proper to fully carry out and complete any sale, transfer or incumbrance of the whole or any part of said estate, and to use or invest the proceeds arising from such sale, or sales, in other real or personal property and estate, with like powers of disposition over the same as are hereby given in respect to the identical estate and property by me possessed at the time of my decease, provided that if any portion thereof or its avails, in money or valuables be used by my said husband, such use shall be restricted to his personal wants and necessities in providing for his support and livelihood,”

Fourth. It is my will that my said executor and trustee shall not be held answerable in any way or manner for any losses or damages that may arise from any sales, transfer, or other disposition by him made of the whole or any part of the estate or property which may and shall come to his hands under the provisions of this my last will and testament.”

The will was admitted to probate, and the defendant Asa L, Hatch qualified as executor. After the- death of Elizabeth Hatch her husband married the defendant Almira F. Hatch, who had some property and estate in her own right. On the 31st of December, 1886, Asa L. Hatch, claiming to act as executor under the will and under the power of sale given him thereby, sold the land and conveyed the same by deed to Helen A. Richards for the nominal consideration of one dollar, and at the same time she by deed conveyed the land to the defendant Almira F. Hatch for the sum of $6,500, subject to a mortgage on the land of $7,000. The executor sold the land for the purpose of paying; debts existing against his wife at the time of her death.

The courts below held that the will of Elizabeth Hatch conferred upon Asa L. Hatch a valid power of sale, and that by the execution of that power title to the premises in fee was vested in the defendant Almira F. Hatch, and the complaint was therefore dismissed

By the second clause of the will there was an attempt to make Asa L. Hatch trustee for his own benefit during his life. Such a trust cannot be created. To constitute a valid trust three things are necessary, viz.: a trustee, another person, the beneficiary, and property, and without each of the three a trust cannot exist. Woodward v. James, 115 N. Y., 346, 357, 26 N. Y. State Rep., 147. Asa L. Hatch was, however, entitled to the possession of the land and also to the rents and profits thereof, and hence under § 47,1 R. S., 727, it is clear that he took a legal estate in the land for life. That section provides that “ every person who by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration and subject to the same conditions as his beneficial interest.”

He did not take an absolute fee in the land by implication. The whole tenor of the will shows that he was to have only a life estate. He was entitled to the whole income of the property for his support and maintenance, and he was also authorized to use so much of the corpus of the estate as might be needed for that purpose. But his use of the corpus was absolutely restricted to his 11 personal wants and necessities in providing for his support and livelihood,” and then the will attempts to dispose of the remainder of the estate after his death. It is thus entirely clear that the testatrix did not mean to give him an absolute title to the property for his own use and benefit But the plaintiff invokes § 81, 1 R. S., 732, which provides as follows: “ Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be exercised or the land should not be sold for the satisfaction of debts.” And also § 85, which is as follows: “ Every power of disposition shall be deemed absolute by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit.”

Here there was not an absolute power of disposition, as Asa L. Hatch could not dispose of the entire fee for his own benefit. He could dispose only of the income of the property during his life. His right to use the corpus for his own benefit was limited to his personal wants and necessities. It is, therefore, quite clear that he neither by the intention of the testratrix or the policy of the statute, took an absolute fee in this land. Terry v. Wiggins, 47 N. Y., 512; Smith v. Van Ostrand, 64 id., 278; Ackerman v. Gorton, 67 id., 63; Campbell v. Beaumont, 91 id., 464.

The direction in the will that after the death of the testatrix “ the property shall be devoted to the support and education of orphan children, in such way and manner as in his judgment may best conserve this object ” is clearly invalid. It is too indefinite and no one has contended that that portion of the will can have effect.

The direction that her husband should make certain gifts or mementoes in her name to her surviving relatives and friends as she had verbally named and requested of him, is also invalid. It was at most discretionary with the husband to make those gilts and mementoes out of his own property.

The result of this examination of the will, if .there were no power of sale contained in it, brings us to the conclusion that under it the husband would take a life estate in the property, with the right to use the whole of the income and so much of the principal as might be required for his personal wants and necessities, and as to the residue there was no valid disposition thereof. As to that Mrs. Elizabeth Hatch died intestate, and the real estate upon the death of her husband would go to her heirs and the personal property then remaining, if any, would go to her next of kin. But the important inquiry remains. Was there a valid power of sale ? That was given in the broadest and most general language. It was absolutely unrestricted. He could sell the real estate at private or public sale, at such times and in such manner, and upon such terms as he chose. It cannot be said that the purpose of the power failed, because the will gave him, upon our construction, a life estate, with the power to use the income of the property, and a portion of the principal, if needed, and for the purpose of making the property more valuable to him, or its management easier, or of promoting in any way his interest as a life tenant, he could execute the power of sale. Therefore, when he conveyed this real estate he destroyed any interest in the land, as such, which he had as a life tenant, and he subverted the lien of the judgment debtor and the title acquired-by virtue of the sale under that judgment.

The executor sold the land to pay the debts of the testatrix, and used the proceeds of the sale for that purpose Even if he had no right to so use the proceeds, that is a matter with which this plaintiff has no concern. The power of sale was nevertheless executed, and a good title to the land thereby given. A wrong motive of the executor in making the sale and the misappropriation of the proceeds would not defeat the sale, the purchaser not being a party to the wrong-doing.

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

All concur.


author: Gray, J.

text:
    Margaret Kenney, Admr’x, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed February 3, 1891.)

    1. Negligence—Carriers—Special contract releasing from liability.
    A common carrier may contract for immunity from its negligence, or that of its agents, but to accomplish that object the contract must be so expressed, and it must not be left to a presumption from the language.
    2. Same.
    In such a contract between the National Express Co. and the defendant the latter was “ expressly released from and guaranteed against any liability for any damage done to the agents of the party of the second part (the express company) whether in their employ as messengers or otherwise.” Held, that the clause need not necessarily be read as releasing or preventing an action by the employes of the express company against the railroad company for injuries received while on the road, but might also be construed as an agreement to indemnify the railroad company in the event of such an action, and so did not relieve the railroad from liability to such employes.
    Appeal from judgment of the supreme court, general term, fifth department, affirming interlocutory judgment overruling demurrer to complaint.

      John G. Milburn, for app’lt; Moses Shire, for resp’t. ' «.

       Affirming 18 N. Y. State Rep., 441.

   Gray, J.

It was admitted by the defendant that the death of plaintiff’s intestate was caused by the negligence of its employes; but it claims to have been relieved of any liability in such an event by reason of a contract between it and the express company, in whose service the intestate was employed as a railroad messenger. Whether such was the effect with respect to the claim of the plaintiff is the main and controlling question in the case. This contract was between the National Express Company and the defendant, and concerned the business of the express company over the latter’s'railroad It contained a clause in the following words, viz: And the said party of the first part (the railroad company) is hereby expressly released from, and guaranteed against any liability for any damage done to the agents of the party of the second part, whether in their employ as messengers or otherwise.”

The appellant’s argument, in support of its exemption from liability for its negligent acts, relies upon the distinction between those cases where the carrier contracts for immunity from negligence in the carriage of goods, and those cases where the contract is in relation to passengers. In the one case it is an insurer against accidents and perils of the journey, while in the latter case the duty of the carrier is only to exercise a certain amount of care, and is liable in a .proportionate degree for negligence. The proposition, for which the appellant contends, is, that however sound the reasoning by which contract provisions for exemption from any liability, when expressed in general terms, where the subject is the carriage of goods, are held not to extend to damages occasioned by the negligence of the carrier, in the case of a passenger the only basis of the carrier’s liability is the negligence, and such a provision in the contract would be deprived of all operation unless it would cover that negligence.

It is then further argued that the relations of the plaintiff's intestate to the defendant were governed by the terms of the contract of the express company in such wise as to preclude him, and, therefore, his administratrix from maintaining any action for damages for injuries caused by negligence. Our attention is called to the recent decision of this court, in its second division, in the rase of Brewer v. The New York, Lake Erie & Western R. Co. (decided January, 1891), 35 N. Y. State Rep., 60, the opinion in which discusses the latter proposition of the appellant, and holds adversely, namely, that the express messenger was not chargeable with notice of provisions in a contract somewhat similar to those before us. Our decision, however, is placed upon the ground that this contract does not in unmistakable language provide for an exemption from liability for the negligence of the defendant’s employes. The rule is firmly established in this state that a common carrier may contract for immunity from its negligence, or that of its agents, but that to accomplish that object the contract must be so expressed, and it must not be left to a presumption from the language. Considerations based upon public policy and the nature of the carrier’s undertaking influence the application of the rule, and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis. The doctrine of such contracts was stated by this court in the case of Perkins v. Railroad, 24 N. Y, 196, 206. It was reiterated in the opinion of Judge Allen in Blair v. Railroad Co., 66 N. Y., 313, 318; and in Mynard v. Railroad Co., 71 id., 180, Church, Ch. J., reviewing the question at some length, considered the prior decisions of this court, and referred to certain decisions in the United States supreme court, holding a different doctrine as to such agreements. In recognizing the right of the carrier to contract for its immunity from the results of negligence, he stated the general rule to be that such contracts must be expressed in unequivocal terms. This decision was followed as being decisive of the question in the later decisions in Holsapple v. R. R. Co., 86 N. Y., 275; Nicholas v. R. R. Co., 89 id., 370, and Canfield v. R. R. Co., 93 id., 532.

The cases cited related to the carriage both of goods and of persons, but no reason exists for making a distinction in the application of the rule that general words and language, capable of other operation, will not be construed to limit the responsibility of the carrier for negligence. The rule is a salutary and a reasonable one. It offers no difficulties in its reduction to practice in the making of contracts, and its reiteration by us, in this case, is profitable, if it serves to establish it more firmly as a rule for the governance of agreements designed to effect such immunity as is claimed to exist here.

In this case the clause in question is capable of another meaning. It may be read, not necessarily as releasing or preventing an action by employes of the express company against the railroad company for damages for injuries received while on the road, but as an agreement to indemnify the railroad company in the event of such an action. That would be a perfectly proper agreement for the parties to make as a part of the consideration for the contract, and while we need not say that such is the construction, we point it out as a possible one.

The appellant’s counsel suggested that the significance of releasing and guaranteeing the railroad company was in the operation of the release upon future causes of action for damages by its employes. The distinction is too refined and we cannot agree with him. The insertion of such an agreement entered into the consideration for the whole contract, and, as a continuing agreement, we think the release and guaranty, whatever their operation as between the companies, would have their effect in each particular case as it arose.

The judgment should be affirmed, with costs.

All concur.


text:
    George W. Carpenter, Ex’r, Resp’t, v. Carrie M. Mosher et al., App’lts.

      (Court of Appeals,

      Filed February 6, 1891.)

    Appeal—Parties.
    Where there is no proof warranting the joining of a person as a party defendant in an action to set aside deeds for fraud, and the finding of the-trial court was, in fact, that he had no interest in the premises described in the complaint, it is error to deny motions made in-his behalf for dismissal of the complaint and for nonsuit.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term vacating and setting aside certain deeds of real estate and restoring the-plaintiff Anna Theall to full ownership and possession.

      John H. Scott, for resp’t; C. O. & L. S. Hulse, for app’lts.

       See 32 R. Y. State Rep., 82.

   Per Curiam.

As to the appellant Carrie M. Mosher there was-evidence. upon which the trial court could find for the plaintiff, and as 'to her the judgment should be affirmed, with costs.

As to the appellant William A. Mosher there is no proof warranting his joinder as a party defendant in such an action, and the finding of the trial court was, in fact, that he had no interest in the premises described in the complaint. It was' error, therefore, to deny the motions made in his'behalf for a dismissal of the-complaint, and for a nonsuit, and the judgments entered against, him should be reversed and judgment entered, dismissing the complaint as to him, with costs in all the Courts.

All concur, except Ruger, Ch. J., not voting.


text:
    In the Matter of the judicial settlement, etc., of Gilbert R. Sprague et al., Adm’rs.

      (Court of Appeals,

      Filed February 6, 1891.)

    Appeal—Fnromes op-pact—Code Civ. Pro., § 2545.
    Where the surrogate, in disallowing a claim upon an accounting, makes, no findings as required by § 2545 of the Code of Civil Procedure and the record does not contain any exceptions to the findings or to the decision of the surrogate, the general term has no jurisdiction on the appeal to it to review the surrogate’s decision upon the facts; neither has this court.
    Appeal .from judgment of the supreme court, general term, second department, affirming decree of surrogate rejecting and disallowing claim made by Gilbert R. Sprague for compensation for services alleged to have been performed for decedent in his lifetime.

      Geo. A. Anderson, for app’lt; Abram, J. Miller and Hackett & Williams, for resp’ts.

       Affirming 8 N. Y. State Rep., 902.

   Earl, J.

Gilbert B. Sprague and Ferris J. Sprague were administrators of their father’s estate and they presented their ac■counts to the surrogate of Putnam county for final settlement. Upon such accounting Gilbert B. Sprague presented for settlement and allowance an account in his own favor against the intestate for about $10,000. This account was contested and after hearing the evidence it was disallowed by the surrogate. A decree was then entered settling the accounts of the administrators but disallowing the claim of Gilbert B. Sprague. Upon appeal by Gilbert B. Sprague to the general term the decision of the surrogate as to this claim was affirmed and then he appealed here.

The surrogate did not make any findings as required by § 2545 of the Code and the record does not contain any exceptions to the findings or to the decision of the surrogate. Therefore the general term did not have j urisdiction on the appeal to it to review the surrogate’s decision upon the facts, and neither has this court. If the appellant desired to bring to the general term or to this court questions of fact or of law involved in the accounting, and to review the decisions of the surrogate in reference thereto, he should have procured findings of fact and of law and should have made proper exceptions thereto. Hewlett v. Elmer, 103 N. Y., 156, 164; 3 N. Y. State Rep., 1; Matter of the judicial settlement of Kellogg, 104 N. Y, 648; 5 N. Y. State Rep., 668; Angevine v. Jackson, 103 N. Y., 470; 3 N. Y. State Rep., 643.

Our attention is called to but a single ruling upon evidence upon the hearing before the surrogate to which objection was made, and that ruling is so clearly right that it is not deserving of particular notice here.

Therefore, as we have no jurisdiction to inquire into the merits of this controversy over the claim presented by Gilbert B. Sprague, the j udgment below should be affirmed, with costs against the appellant personally.

All concur.


text:
    In the Matter of the Application of The Brooklyn Elevated Railroad Company to Acquire Possession of Real Estate of Charles U. Wing.

      (Court of Appeals,

      Filed February 6, 1891.)

    1. Railroads—Forfeiture of charter,
    By 112, of chap. 585, Laws 1874, the company to whose rights the petitioner succeeded was required 1o commence the construction of its road within two years and complete it in three years thereafter, and “ failing therein shall forfeit the rights acquired by them under this act.” The time to complete was extended until 1883, hut the road was not completed until l'85. Held, that the default would not of itself divest the company of its franchise, but that a judicial determination was necessary for that purpose.
    2. Same.
    Said act provided that iron columns should be placed on each side of the street “ in a line with the curbstones,” and iron girders “ placed across the streets and avenues and tobe properly attached to the tops of such columns.” In 1875 it was amended so as to require the columns to be placed on each side of the street “ as near as practicable on a line parallel. with the curbstones,” the girders to be placed “above” the streets. Held, that the columns should be placed as near as practicable on the sides of the street, but parallel with the curbs.
    AppÍíal from a judgment of the supreme court, general term, second department, affirming an order appointing commissioners-of appraisal.

      Edward M. Shepard, for app’lt; George Hoadley, for resp’t.
   Earl, J.

This is a proceeding under the provisions of the-general railroad 'act to acquire real estate interests in Grand avenue in the city of Brooklyn froni Qharles U. Wing for the purposes of the Brobklyri Elevated Railroad. Issue was' taken upon, the allegations of the petition, and the matter was brought to a. hearing before a justice of the supreme court, who, after hearing the evidence, made findings of fact and of law, holding that the-petitioner had made a case for the appointment of Commissioners to ascertain and appraise the compensation to be paid to Wing-for his real estate interests taken, and an order was made and. entered appointing such commissioners. From that order Wing-appealed to the general term and then to this court.

The Brooklyn Elevated Railroad Company derives its corporate-life from the following acts of the legislature, Chap. 585 of the-Laws of 1874, chap. 422 of the Laws of 1875, chap. 350 of the-Laws of 1879, chap. 459 of the Laws of 1880, chap. 338 of the-Laws of 1881, and chap. 539 of the Laws of 1885, and its road was built through Grand avenue and in operation there at the time when this proceeding was instituted. The acts required that the road should be commenced and completed within times specifiéd, and in default thereof that it should “ forfeit the rights-acquired by ” it under the acts. We will assume that it did not-commence or complete its road within the time specified, and yet we reach the conclusion that the .claim of Wing that it had lost, its corporate existence and its “ rights acquired ” under the acts, is unfounded. What is,meant by “rights acquired” under the acts? We answer, all its rights, including its right to be a corporation. It could not, Within the meaning of the act, forfeit all. its rights and still be a corporation. A corporation without, rights, without legal capacity to do anything, not even to acquire rights, is inconceivable.

What was plainly meant is that the corporation should, m the event mentioned, forfeit its charter, and that included. all the rights acquired by it under the acts from which it derived corporate existence; and thus the legislative meaning is the same as if the language used had been “ forfeit its charter,” or its “ chartered rights.” For the non-performance of conditions specified, such language has never been held ex proprio vigore to put an end to corporate life. By such non-performance a corporation is not ipso factodissolved or deprived of its corporate existence or corporate rights, but it is simply exposed to proceedings on behalf of the state to establish and^enforcej^hAlforfeiture. The, state which gave the corporate Jife^may'^ake^lit^áwáy^ TmVstate which ^imposed the conditiolis'may;.waive'thenv*pei’iormance,’and: the corporate life may run on until the state by proper proceeding intervenes and enforces the forfeiture. Until the state does thus intervene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality. The authorities for these views are numerous and uniform both in this country and England. State of Louisiana ex rel. Atty. General v. Fagan, 22 La. Ann., 545; Bank of Niagara v. Johnson, 8 Wend., 645; People v. The Pres. & Directors of the Manhattan Co., 9 id., 351; In the Matter of the New York Elevated R. R. Co., 70 N. Y, 327; In the Matter of the Kings Co. Elevated R. R. Co., 105 id., 97; 7 N. Y. State Rep., 186; Day v. Ogdensburgh & Lake Champlain R. R. Co., 107 N. Y., 129; 11 N. Y. State Rep., 335; Moore v. Brooklyn City R. R. Co., 108 N. Y., 98; 13 N. Y. State Rep., 97; Farnsworth v. The Minnesota & Pacific R. R. Co., 92 U. S., 49; Van Wyck v. Knevals, 106 id., 360.

Our attention has been called to many cases arising under the revenue laws of our country which provide for forfeiture of goods on account of offenses against such laws, wherein, as claimed, it was held that the forfeiture of title in such cases takes effect from the commission of the offense without legal proceedings. Those cases and others involving violations of the police laws stand upon a peculiar policy, and in any event they are not authority in the case now here. The learned counsel for the appellant with all his industry has not been able to find a single case involving the forfeiture of corporate rights and franchises wherein such language as we have here has been held sufficient to work out a self executing forfeiture without the intervention of the courts or the legislative power.

The general rule established by the authorities above cited was fully recognized in Matter of Brooklyn, W. & N. R. R. Co., 72 N. Y., 245; S. C., 75 id., 335, and in Brooklyn Steam Transit Co. v. City of Brooklyn, 78 id, 524. For the non-performance of conditions specified in the former case, it was provided that “ the corporate existence and powers shall cease,” and in the latter case that “ this act and all the powers, rights and franchises herein and hereby granted shall be deemed forfeited and terminated” We held that this clear and emphatic language indicated a legislative intent that the corporate life should for the defaults mentioned come to an end, and not merely be exposed to forfeiture by proceedings on behalf of the state. These decisions we think stand well upon reason. But they are border cases, and the doctrine laid down in them should not be applied to cases where the legislative intent of a self-executing forfeiture is not equally plain. An undue extension of the doctrine would imperil the vested rights of individuals and in many cases might prejudice the interest of the public.

We have found but one similar decision, that made in Oakland Railroad Co. v. Oakland, Brooklyn & Fruit Vale Railroad Co., 45 Cal., 365, where the language to be construed was, “ shall utterly cease and be forfeited.” Similar language was held not to provide for ipso facto forfeiture in Chesapeake & Ohio Canal Co. v. Baltimore & Ohio R. R. Co., 4 Gill & Johnson, 1; Briggs v. Cape Cod Ship Canal Co., 137 Mass., 71, and Wallamet Fall Co. v. Kittridge, 5 Sawyer, 44.

It was provided in § 10 of the act of 1874, in which the life of the Brooklyn Elevated R. R. Co. originated, that the corporation thereby created should possess all the rights, powers and privileges, and be subject to all the provisions of the general railroad act of 1850, and the several acts amendatory thereof, “ except as far as the provisions of said acts and amendments are modified by or are inconsistent with the.provisions of this act." Among such amendatory acts is the act, chap. 775 of the Laws of 1867, in which it is provided that, “ if any such corporation formed under the general act shall not within five years after its articles of association are filed and- recorded begin the construction of its road and expend thereon ten per cent, of the amount of its capital, or shall not finish its road and put it in ojjeration in ten years from the time of filing its articles of association as aforesaid, its corporate existence andpowers shall cease."

In the Matter of the Brooklyn, Winfield & Newtown Railway Co., we held that the language of this act, which we have italicised, provides for a self-executing forfeiture, and, if, therefore, as claimed by the learned counsel for Wing, the provision quoted is made applicable to this corporation, his contention that it has lost its corporate existence and its right to institute this proceeding is well founded. But the provision of the general railroad act is inconsistent with that contained in the act of 1874, and as to this corporation is modified by that act, which provides a particular time for the commencement and completion of the road authorized thereby, and the consequence of a failure to perform the conditions. The whole subject is provided for by that act and the other acts relating to this corporation, and hence there is no room for the operation of the provisions of the act of 1867, above quoted, and it can have no application to this road.

We have, therefore, reached the conclusion that this corporation has not lost its corporate existence or its right to institute this proceeding. We have assumed as sufficient for the present purpose that the corporation did not commence or complete its road within the times required, and have not, therefore, deemed it important to consider the able argument submitted on behalf of the corporation to show that it did comply with the conditions specified, and also to show ratification of its corporate rights by the recognition on the part of the legislature of its full corporate existence.

This railroad was constructed in Grand avenue upon two rows of iron columns, placed upon foundations which are eight feet and four inches apart, and eight feet and eight inches from the curb on each sideband which -thus divide the avenue into three spaces substantially equal. It is for a road thus constructed that the corporation in this proceeding seeks to condemn the real estate interests of Wing. He claims that the road is illegally and improperly constructed, and that the corporation cannot take his interests in the avenue for such a structure.

Section 5 of the act of 1874 provides that “ the said elevated railway shall be constructed as follows, namely, iron columns shall be placed on each side of the street, avenue or roadway in a line with the curb stones; said columns to be firmly bolted to concrete foundations of suitable size and shape to insure perfect firmness in all cases; said foundations and the location of them to be subject to the approval of the chief engineer of the board of city works of the city of Brooklyn. * * * Iron girders not more than thirty-six feet in length shall be placed across the streets and avenues and to be properly attached to the tops of such columns.” What kind of a structure did this authorize ? It did not require that the columns should be placed in or on the curbs, because the girders could not be more than thirty-six feet long and some of the streets were wider than that between the curbs. They were required to be placed on the sides of the streets, not necessarily in the curbs but on a line with them and thus necessarily parallel with them; and that they might be placed so as to do the least injury and cause the least inconvenience and obstruction, their location was subject to the approval of the engineer. This section was amended by chap. 422 of the Laws of 1875, so as to read as follows : “ The said elevated railway shall be constructed as follows : Iron columns shall be placed on each side of the streets, auenues and roadways, as near as practicable on a line parallel with the curb stones, said columns to be firmly bolted to concrete foundations of suitable size and shape to secure perfect firmness in all cases, subject to the approval of the chief engineer. * * Iron girders shall be placed above the streets and avenues and be properly attached to the tops of such column^.”

This amended section did not restrict the powers of this corporation, for thereafter it could build precisely such a structure as it was before authorized to build, but its powers were enlarged. Instead of using transverse girders it could, at its option, use longitudinal girders. Where were the columns to be placed? The claim of the learned counsel for Wing is that they were still required to be placed on the sides of the street, but as near as practicable on a line parallel with the curbs. We have no light for the construction of the amended section except that furnished by the language thereof as well as by the language of the section prior to its amendment. We think the comma after the word “roadways” should be placed after the word “practicable,” and thus the requirement is that the columns should be placed as near as practicable on the sides of the streets, but parallel with the curbs. If the amendment was simply for the purpose of requiring the columns to be placed as near as practicable parallel with the curbs it was unnecessary as the unamended section required that. Before, the columns were required absolutely to be placed on the sides of the streets, and we think the plain, purpose of the amendment was to alter this rigid requirement and to authorize the columns to be placed as near as practicable to the sides of the streets. The person who drafted the amended section evidently intended to provide for a case where the rows of columns might be placed near to each other and at some distance from the curbs, as the section was so amended as to allow longitudinal girders. We may suppose, in the absence of any'proof on the subject, that if the columns were placed near the curbs, transverse girders spanning the streets would be needed to uphold the structure. But if the columns were placed near to each other, transverse girders would not be needed, or even as appropriate as longitudinal girders. Under the amended section, as before, the location of the columns and the foundations thereof were to be subject to the approval of the, engineer, and in this the public as well as the abutting owners were expected to have all reasonable and practical protection. In thus construing this section we are obliged to transpose a comma, but in so doing we violate no canon of construction as we think the legislative sense requires it, and such liberty with punctuation is frequently taken by the courts.

In Gyger’s Estate, 65 Penn., 311, Sharswood, J., said: “There is no punctuation in a statute which ought to rule; ” and in Cushing v. Worrick, 9 Gray, 382, the court said: “ The general rule is that punctuation is no part of a statute.” See, also Hamilton v. Steamboat Hamilton, 16 Ohio St., 428.

There was evidence tending to show that these columns were placed, as nearly as practicable, on the sides of the streets, and we see no occasion to interfere with the finding of the court below upon such evidence. The corporation, subject to the approval of the engineer, was clothed with some discretion as to the location of the columns, and with the reasonable exercise of that discretion no court should interfere. Railroad Co. v. Stoddard, 6 Minn., 150; Fall River Iron Works Co. v. Railroad Co., 5 Allen, 221; Boston & Providence R. R. Cor. v. Midland R. R. Co., 1 Gray, 341; Parke’s Appeal, 64 Penn. St., 137.

It does not. appear that the public authorities object to the loca- • tion of those columns, or that Wing made any objection until after they were located and the road was in operation. The only interests he appears to have in the street which are peculiar to him, and for which he can have any protection or' compensation, are his easements of. light, air and access; and it is very clear that these easements are less interfered with than they would be if the columns on his side of the street had been placed nearer to the curb. Under all the circumstances, therefore, we think it is but fair and just that both the law and the facts should, as to the location of the columns, be liberally construed in favor of the corporation, and we must hold that their location is not unlawful.

Other points are argued in the briefs submitted on behalf of Wing. They are of a technical nature, not relating to the merits of the controversy between these parties, and we leave them upon the findings of the court below, believing that they do not point out any error, and that they require no further notice.

The order should be affirmed, with costs.

All concur.

       Affirming 32 N. Y. State Rep., 1065.


author: Freedman, J.

text:
    William Palm, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    1. Railroads—Limitation as to fare.
    The limitation contained in chap. 195, Laws 1846, as to the amount of fare which the defendant road might charge and collect from passengers, was expressly limited to that portion of its own road within this state, and does not apply to a road run by defendant under lease.
    2. Same—Laws 1886, chap. 763.
    The road leased by defendant was organized under chap. 763, Laws 1866, as amended by chap. 722, Laws 1869, neither of which limits the rate of transportation. Said acts provide for the construction and operation of the road, and for a lea«e thereof “when duly formed into a corporation under and pursuant to ” the general railroad act. Held, that before the defendant could be held liable for the penalty prescribed by the general railroad act for extorting more fare than the amount specified therein, it was necessary for plaintiff to show that the special acts authorizing the formation of the railroad in question were followed up by an actual and due formation of a corporation under the general railroad act.
    Appeal from judgment entered upon the decision of a judge after trial before him without a jury.

      Page & Taft (John E. Parsons, of counsel), for app’lt; R. J. Shadbolt (E. M. Wight, of counsel), for resp’t
   Freedman, J.

This action was brought for the recovery of a penalty given by statute. The claim of the plaintiff is that on a certain day on which he took passage on a passenger train of the defendant to be carried on the defendant’s road from One Hundred and Thirty-fourth street, in the city of Rew York, to Morris Park, in the state of Rew York, and thence back to said One Hundred and Thirty-fourth street, he was charged and compelled to pay, contrary to the laws of the state of Rew York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff, under and by virtue of the statutes of the state of Rew York to prevent extortion by railroad companies, the sum of fifty dollars, together with the sum of fourteen cents so asked and received as aforesaid in excess of the legal fare.

The defendant is a foreign corporation, having been originally chartered by the state of. Connecticut in the year 1844 under the name of the Rew York & Rew Haven Railroad Company. In the year 1846 it applied to the legislature of the state of Rew York for permission to extend its road from the Connecticut state line to the line of the Rew York & Harlem Railroad, and to unite or connect with the last-mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of:the Laws of 1846 upon certain conditions, and one of said conditions was that the charge for the transportation of any passenger and his ordinary baggage shall not exceed in the aggregate the sum of three cents per mile on that part of said road within this state.

This condition is not applicable to the case at bar, because it is expressly limited to the part of the road specified, and because the plaintiff was not a passenger over that part of the road.

The occurrences.out of which plaintiff’s claim, arose took place on a railroad known as the Harlem Eiver & Port Chester Eailroad, and operated by the defendant under a lease, and the liability of the defendant for the penalty was held by the trial judge to rest upon subdivision 9 of § 28 of chapter 140 of the Laws of 1850, and the amendment of said chapter by chapter 185 of the Laws of 1857, and chapter 415 of the Laws of 1886. These provisions constitute parts of what is commonly known as the general rail-. road act, and they confer upon railroad corporations formed under the said act the power to regulate the compensation to be paid to them for the transportation of passengers, but at the same time they provide that such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile.

It, therefore, becomes necessary to consider the legal status of the Harlem Eiver & Port Chester Eailroad Company, and to determine what rate of fare it had a right to charge. This company was shown to have been organized under chapter 763 of the Laws of 1866, as amended by chapter 722 of the Laws of 1869. Neither of these acts fixes or limits the rate of transportation over the road, and taken together they only authorize the construction, maintenance and operation of the road in a certain manner prescribed, which includes a lease, by certain persons specifically named and their associates, “ when duly formed into a corporation under and pursuant to an act to authorize the formation of railroad corporations and to regulate the same, passed April 2, 1850.’’ Under the peculiar provisions of these acts it is, therefore, essential that the actual and due formation of a corporation under the general railroad act should be shown before the prohibition contained in the general railroad act can be enforced by the infliction of a penalty under the acts amendatory thereof, for the general railroad act in terms applies only to corporations formed under it.

■ Even upon the assumption, therefore, the validity of which need not be discussed at present, that the defendant, as a foreign corporation, under its lease, had no right to charge a higher rate of fare than the Harlem River & Port Chester R. R. Co., when legally organized, could have charged under the general railroad act, and that the defendant, as lessee, is liable for the penalty in every case in which its lessor would have been liable, it still remained incumbent upon the plaintiff to establish at the trial, and as ¡oart of his case, that the special acts authorizing the formation of the Harlem River & Port Chester R. R. Co. were followed up by an actual and due formation of a corporation under and pursuant to the general railroad act.

The case contains no finding nor any evidence upon this point, and consequently there is a fatal defect.

This is a penal action. It rests upon the provisions of apenal statute. The claim is that the defendant has been guilty of extortion. In such a case the rule is well settled that all doubtful points are to be construed in favor of the defendant; that the plaintiff must show a clear right to the penalty, and that he must bring himself strictly and literally within the operation of the statute. This the plaintiff failed to do.

The j udgment should be reversed' and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Ingbaham, J., concur.


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    Oceana. A. Bancroft, App’lt, v. The Home Benefit Association of New York, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Insurance (Life)—Application—Breach of warranty.
    In an application for a policy or certificate of insurance, the assured stated that he had never been afflicted since childhood with catarrh, spitting of blood, or any disease not enumerated, and that no material fact regarding his past health and condition had been omitted. In an action on said certificate it was found on sufficient evidence that in the preceding year he was afflicted with spitting of blood; that for several years prior thereto he had been afflicted with catarrh of the nose and larynx, and for many years _ had suffered from disease of the throat; that they were not slight functional derangements or temporary complaints from which he recovered, but were sufficiently serious to have an important bearing on his general health. Held, that a breach of warranty was shown sufficient to avoid the contract of insurance.
    Appeal from judgment dismissing the complaint, with costs, entered upon the decision of a judge after trial of the issues at a special term.

      Wilson & Wallis, for app’lt; Francis Lawton, for resp’t.
   Freedman, J.

This action was brought upon two certificates, constituting in effect policies of insurance, for $5,000 each, issued in April, 1885, to John S. Bancroft upon his life, and payable upon his death to the .plaintiff. It was found by the trial judge that the certificates were so issued, and that John S. Bancroft kept and performed all the conditions appended to or contained in said certificates, except the making of true answers to the questions put to him upon his application in certain particulars specified in the findings. In that application John S. Bancroft had declared and agreed that any untrue statement or any concealment of facts should forfeit and cancel any benefit under the contract, and the certificates provided that any misrepresentation or concealment should render them absolutely void. Bach certificate further expressly declared that the application is a part of the contract, and the statements therein the assured “ adopts as his own, admits to be material and warrants to be full and true.”

The opinion of the court of appeals (second division) in the present case, 120 N. Y, 14; 80 N. Y. State Rep., 175, fully recognizes the validity of these provisions, and consequently it is only necessary to see whether there was a substantial breach of any of the warranties.

In his , application for insurance, the assured stated that he had never been afflicted since childhood with catarrh, spitting blood, or any disease not enumerated, and that no material fact regarding his past health and condition had been omitted.

The trial judge found that these statements were untrue in the following particulars, viz:

1. That in the months of January and February, 1884, the said Bancroft was afflicted with the complaint of spitting of blood.

2. That for several years prior to March 2, 1884, the said Bancroft had been afflicted with the complaint of catarrh of the nose and larynx, and

3. That for many years prior to March 2,1884, the said Bancroft had suffered from disease of the throat.

There can be no doubt that, if sustained by the evidence, these findings establish a breach of warranty sufficient to avoid the contract of insurance within the authorities. Foot v. Ætna Life Ins. Co., 61 N. Y, 571; Cushman v. U. S. Life Ins. Co., 63 id., 404; Dwight v. Germania Life Ins. Co., 103 id., 341; 3 N. Y. State Rep., 115; Bancroft v. Home Benefit Assoc., 120 N. Y., 14; 30 N. Y. State Rep., 175.

A careful examination of the evidence has satisfied me that these findings rest upon sufficient evidence, and that the ailments specified did not exist as slight functional derangements or temporary complaints from which Bancroft recovered, but were sufficiently serious to have an important bearing upon his general health, and the cause of his death within a short time after the procurement of the insurance. The evidence is quite lengthy and complicated, and a detailed statement of it here can serve no useful purpose. It is enough, therefore, to say that it sufficiently supports the findings referred to. The case as now presented is entirely different from what it was on the former appeal, and it is no longer subject to the criticism made upon it by the second division of the court of appeals.

The points submitted by the appellant do not call upon us to Teview any exception taken to the admission of evidence.

The printed record does not disclose sufficient facts for disturbing the award of the additional allowance which was made. If appellant’s counsel was surprised, .as claimed, he should have moved upon affidavits to vacate the award and for a hearing, and, upon a denial of the motion, appealed from the order of denial.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and Ingraham, J., concur.


author: Ingraham, J.

text:
    Reuben B. Ayres, App’lt, v. The Quigly Furniture Co., Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    1. Services—Commissions.
    Plaintiff agreed with defendant’s president to introduce one S. to him in consideration of an agreement that defendant would pay him a commúsionion all goods sold through such introduction. Held, that if the introduction was made the plaintiff was entitled to the commissions on all sales made through such introduction, and that it was not necessary that S. should be ready and willing to buy.
    0. Same.
    It appears that S. went to defendant’s factory, examined its goods, ascertained their price, and delivered the list to a hotel company and that subsequently the goods were purchased by another company and sold to the hotel company. Held, that whether tile sale of these goods was through this introduction was a question for the jury,' and not one of law for the court, and. that a" dismissal of the complaint was error.
    Appeal from judgment on the dismissal of the complaint

      J. M. Ferguson, for app’lt; Wm. P. Quinn, for resp’t
   Ingraham, J.

The complaint alleged a special contract whereby the defendant agreed to pay to the plaintiff a commission of five per cent upon any sales which the said defendant should make by reason of the introduction by the plaintiff of one Seghers to the defendant.

The plaintiff to prove this allegation testified as follows: “ I then asked him (the president of the defendant), if he would give me a commission of five per cent, if I would introduce him to this man, on all goods that he might sell through this introduction; he said that he would.”

The evidence is denied, but it was sufficient to sustain a finding of the jury that the contract, as alleged in the complaint, was made.

The contract thus sued on is a special contract for the payment ■of a certain specified amount for the performance of a certain specified service, and it thus differs from an employment of a broker to sell goods. In such a case the law implies an obligation upon the part of a broker to procure a purchaser ready and willing to enter into the contract upon his employer’s terms, and he is not entitled to commissions until he has performed this obligation. Wylie v. Marine Nat'l Bank, 61 N. Y., 415; Sibbald v. Bethlehem Iron Co., 83 id., 378.

In this case, however, the contract as alleged specified the service that the plaintiff was to perform; he was not to procure a purchaser ready to purchase the defendant’s goods, but he was to introduce the defendant to a person named, and for that service he was to have a commission of five per cent, upon all goods that the ■defendant should sell “through this introduction.”

The cases cited by the respondent as to the implied obligation which a broker assumes and which he must perform before he is •entitled to commissions, do not apply .to such a contract.

The plaintiff testified that he did introduce the person named to the defendant, and if the jury believed his statement they would, I think, have been justified in finding a verdict for the plaintiff for the percentage named upon the sales through the introduction.

I think, also, that the evidence would have, sustained a finding of the jury that the sale that was afterward made to the Ohadbourne Furniture Company was made through the introduction of Seghers to tffe president of the defendant Seghers, after the introduction, went to defendant’s factory, examined the goods, ascertained the price of certain goods, of which a list was made, and delivered this list to the officers of the Hotel Company; subsequently the same goods were purchased from the defendants by the Ohadbourne Furniture Company, and resold to the Hotel Company.

Whether or not the sale of this furniture was through thiá intraduction depended upon inferences to be drawn from, these facts, and in such a case, although the evidence be uncontradicted, the question is one of fact and not of law, for the determination of the jury.

. I think, therefore, that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the .event.

Sedgwick, COh. J., and Freedmam, J., concur.


text:
    Paul W. Latham, Resp’t, v. Patrick B. Delany, App’lt.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    1. Judgment—Of foreign court—Recitals of jurisdiction mat be contradicted.
    In the instance of a foreign judgment, rendered by a court of general jurisdic.ion, the recitals or statements in the record purporting to show jurisdiction may be contradicted and the presumption of jurisdiction may be overthrown by testimony.
    2. Same—Service—Virginia.
    The return of the sheriff in an action in Virginia stated that the summons was served by leaving with the wife of each defendant a copy thereof, also certified copy of account, they both being white persons over the age of sixteeen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode. Held, that such return did not show service, because it did not declare that the service made upon the wife was made at the usual place of abode of the defendant.
    Appeal by defendant from judgment against him and from order denying motion for a new trial made upon the judge's minutes.

      F. Louis Lowe, for app’lt; William C. Davis, for resp’t.
   Per Curiam.

The action was against the appellant individually, upon a judgment entered in a circuit court of the state of Virginia against one R. N. Pool and the appellant, jointly.

The chief question litigated on the trial was whether the court of Virginia had obtained, before rendering judgment, jurisdiction of the person of the present defendant.

In the instance of a foreign judgment, rendered by a court of general jurisdiction, the recitals or statements in the record of it purporting to show jurisdiction may be contradicted and the presumption of jurisdiction may be overthrown by testimony. Ferguson v. Crawford, 70 N.Y., 257, and the cases there cited. The return by the sheriff, as to service of summons, on the record, stated that it was executed upon “R. N. Pool and P. B. Delany by leaving with the wife of each a copy of the within summons, also certified copy of account, they both being white persons over the age of sixteen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode.”

The legal method of service of summons appeared in § 1, chap. 163, title 51 of the Code of Virginia of 1873, which was given in evidence. Service is “"by delivering a copy thereof in writing to the party in person, or if he be not found at his usual place of abode by delivering such copy and giving information of its purport to his wife or any person found there who is a member of his family and above the age of sixteen years, or if neither he nor his wife nor any such person be found, then by leaving such copy posted at the front door of said place of abode.”

The return therefore did not show service, because it did not declare that the service made upon the wife was made at the usual place of abode of the defendant.

To meet the presumption of jurisdiction in fact that might be created by the judgment being made by a court of general jurisdiction, the defendant upon the trial gave proof tending to show that the service upon the wife was made at a place not the usual .abode of the defendant and also that the defendant himself was not within the state of Virginia at the time of the service upon his wife.

To maintain the jurisdiction, the plaintiff relied upon certain recitals in the'judgment that the defendant in it ha'd personally appeared before the court, as perhaps it might be argued was the recital of the judgment, or had appeared by the attorney.

The defendant on -the trial offered evidence tending to show that the plaintiff had not appeared in person in the court of Virginia and had not authorized any attorney to appear for him. Kerr v. Kerr, 41 N. Y., 275. The court excluded incorrectly I think the testimony offered.

At the close of the testimony, the court ordered a verdict for plaintiff under the exception by defendant.

In the condition of the testimony as to the service of original process, I think the question was one for the jury. They might have found that no sufficient service had been made. In that case and so far as that affected jurisdiction, the court of Virginia was without jurisdiction.

In connection with this, the testimony that was excluded, if given, might have persuaded the jury that the recitals of appearance were incorrect in fact and that so far as that was concerned there was no jurisdiction.

There was no right lost by the defendant in not asking leave to go to the jury, for he had not neglected any direction in his own behalf upon a construction of the evidence submitted by him to the court.

It is to be noticed, that the present action is against the defendant individually upon a joint judgment.

No question was made upon the trial or on the argument as to the power of the joint debtor, the two being partners, to cause an appearance for the present defendant.

The judgment and order appealed from are reversed and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.


author: Per Curiam. Ingraham, J.

text:
    Benjamin Weeks, App’lt, v. James O’Brien, Ex’r, Resp’t.

      (New York Superior Court, General Term,

      Filed January 5, 1891.)

    Contract—Performance.
    In an action to recover the last payment on a building contract it appeared that the cellar bott om had not been laid in accordance with the contract, which required that it should he made water-tight; that it had been laid, but that water had come in and broken up the bottom, and that the architect had refused to give a cartificate. Held, that the omission to comply with the contract was not unimportant or unintentional; that plaintiff did not show a substantial performance or unreasonable withholding of the certificate, and was not entitled to recover.
    Appeal by plaintiff from judgment entered upon order dismissing complaint at trial term.

      Albert Mathews and George W. Me Adam, for app’lt; AbramKling, for resp’t
   Per Curiam.

The action was to recover the amount of the-last payment upon a building contract provided to be paid upon the architect’s certificate. In the plaintiff’s case it appeared that, the contract had not been performed in. several particulars. The most important of these was that the cellar bottom had not been laid in accordance with the contract, which required that it should be made water-tight Its situation was such that it was subject to the flowing of water. It had once been laid by a sub-contractor of the plaintiff, but about the time for the completion of the contract water had come in and broken up the bottom. It was in this state when the plaintiff left the work. The architect refused to give a certificate.

On the trial it was argued by the plaintiff that the architect’s refusal was unreasonable, as the work not done was a minor and comparatively unimportant part of the work to be done under the. contract, and the contract had been substantially performed.

A cellar has an important relation to the building above it in respect of' health, comfort, and the state of the building itself. The omission to comply with the contract could not be called unintentional in the sense of those cases which have allowed the certificate to be dispensed with. Phillip v. Gallant, 62 N. Y., 264; Woodward v. Fuller, 80 id., 312. There was not an omission to notice it because the other details of the contract were numerous. Attention had been given to the cellar, and everything done or omitted'had purpose and ifitention The plaintiff failed to prove that the contract had been substantially performed or that the certificate had been unreasonably withheld. This called for the dismissal of the complaint The jury could not have used the testimony in a way that would have justified them in finding for the plaintiff on these matters.

There was a second cause of action, and the counsel for appellant argues that it should have gone to the jury. There 'was no request that this should be presented to the jury, and the manner in which this action was treated led to the second cause of action not being noticed.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.

Ingraham, J.

By the contract sued on, the certificate of the architect as to the work was a condition precedent to the right of the plaintiff to receive the payment, to recover which this’ action is brought'' The complaint does not allege that such a certificate was given, nor is it alleged that the architect unreasonably refused to give such a certificate. It was conceded on the trial that no such certificate was given by the architect The complaint was dismissed upon the express ground that it was not alleged either that the certificate was given or that the architect unreasonably refused to give the certificate. There was no application to amend the complaint «

The evidence of the plaintiff showed that the plaintiff had failed to complete his contract, and it was upon this ground that the architect refused to give the certificate.

The evidence did not justify a finding of the jury that the contract had been substantially complied with or that the refusal of the architect to give a certificate was unreasonable.

The only request for a certificate was the letter of September 8, 1882; to that the architect replied, stating the grounds of his refusal. They were that the contract was not completed and that sub-contractors had filed liens.

These reasons fully justified the refusal, and there was no evidence that the reasons given by the architect were not founded on fact. In fact, the evidence did show that the plaintiff had not completed his contract. That the cellar was not water tight, and it would appear from the plan introduced in evidence that a foundation for the cellar floor of the thickness of two feet was required. This, plaintiff conceded, he had failed to furnish. It would thus appear that the plaintiff failed to either allege or prove the condition upon which his right to recover depended, viz.: that the certificate of the architect had been given or refused

The right to recover was not by the complaint based upon the fact that the defendant’s testatrix had accepted the alternative provision of the contract and completed the work herself; but upon the right of the plaintiff to recover the amount due on the contract because of its substantial completion. The objection was taken that no such cause of action was alleged and the court so-held If plaintiff had desired to present such a question an application should have been made to amend the complaint.

I agree, therefore, that the complaint was properly dismissed and that the judgment should be affirmed, with costs.


text:
    John Townshend, Resp’t, v. The Mayor, etc., of New York, Impl’d, App’lt.

      (New York Superior Court, General Term,

      Filed January 5, 1891.

    Appeal—Interlocutory judgment.
    Where the notice of appeal from, an interlocutory judgment- does not ask a-review of the order directing its entry, such order is not before' the appellate court for review, and as long as it stands the judgment entered in conformity to it cannot be reversed.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Edward H. Hawke, for app’lt; John Townshend, for resp’t.
   Per Curiam.

The notice of appeal to the court does not ask to review the order of the court below which overruled the demurrer and directed the interlocutory judgment appealed from. That order is not therefore before us for review, and as the interlocutory judgment was entered in conformity with the order the judgment was rightly entered and cannot be reversed while the order directing the-entry of such judgment stands. Campbell v. New York Cotton Exchange, 47 Superior Ct., 560.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Ingraham, J., concur.