text:
    Luther L. Dean et al., App'lts, v. William J. Benn et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Estoppel—Flowing land.
    In an action to abate defendants’ dam, it appeared that for many years, there had been a dam on defendants’ land; that, in 1887, a new dam was constructed of such a height that it would and did raise water upon plaintiffs’land; while it was in process of construction plaintiffs passed the dam, one inspecting it and talking with the workmen about it, but making no objection, although familiar with the action of the old dam. In 1888, defendants’ grantor and plaintiffs settled a dispute as to the boundary line between their premises, dividing the disputed territory, and plaintiff paying $500, no claim being made that the dam set back on their premises. Held, that plaintiffs were estopped from claiming that the dam caused the water to flow on their lands to a greater extent than might be lawfully done.
    Appeal from judgment dismissing the complaint.
    Action to restrain defendants from maintaining a dam and flowing water back on plaintiffs’ lauds.
    The following is the opinion below:
    Tappan, J.—Plaintiffs are the owners and in possession of the premises on Chuctanunda creek, in the town of Amsterdam, N. T., on which are situated the Park Knitting Mills. Such mills are propelled by water drawn from the pond above them.
    The defendants are the owners of lands upon said creek next below the lands and mills of plaintiffs, such mills being propelled by water drawn from a pond created by a dam extending across said creek.
    The complaint claims that the defendants wrongfully, by said dam, raised the water in said creek, and flowed the same back from their said lands, and to the wheel pit of the wheel propelled by the water of the plaintiffs’ pond, by which their machinery is driven, thereby impeding such wheel and injuring its power and efficiency, and that they have been occasioned damage thereby; that such flooding existed when the action was commenced, and had existed for some time before.
    The complaint prays that the plaintiffs recover for the damages already sustained by them, and prays that the defendants be perpetually enjoined and restrained against the continuance of such unlawful flooding of plaintiffs’ said mill.
    The answer makes an issue as to all the material facts necessary to constitute plaintiffs’ cause of action.
    The cause came on for trial at the Montgomery circuit court, held in September, 1890, before the court, with a jury.
    No issues had been framed and stated for trial by a jury, as provided by § 970 of the Code of Civil Procedure; and when the cause came on to be tried, the defendants’ counsel insisted that under § 968 of said Code the defendants were entitled to have the action tried by a jury: plaintiffs’ counsel insisted that the case was an equity case to be tried by the court, without a jury, or by the court, with a jury, to which jury the court might, in its discretion, submit questions of fact arising upon the issues, to be tried by the jury, as provided by § 971 of said Code.
    After the evidence had been taken and certain questions had been submitted to the jury for trial, under said last mentioned section, and the jury had been charged by the court, the counsel for the defendants requested the court to instruct the jury that they might render a general verdict if they found for the defendants in this case, and if the jury so found the questions submitted to them need not be answered.
    The court refused to so instruct the jury, and the defendants excepted.

      This brings up the preliminary question as to whether there has been a mistrial of the action.
    Section 968, subdivision 2 of the Code, provides that- unless a jury trial is waived, an issue of fact in an action for a nuisance must be tried by a jury. And different authorities have held that in an action to recover damages occasioned by a nuisance and to abate the nuisance and to restrain and enjoin against its continuance, that a jury trial is a matter of right. The following are some of the cases to that effect. Hudson v. Caryl, 44 N. Y., 553; Colman v. Dixon, 50 id., 572 ; Dorr v. Dansville G. L. Co., 18 Hun, 274; Libmann v. M. E. By. Co., 36 St. Rep., 637; Cornell v. N. Y. E. B. B. Co., 87 id., 624.
    If no objection is taken at the trial by either party the right is waived. Barlow v. Scott, 24 N. Y., 40.
    And by bringing such an action the plaintiff waives the right to trial by jury, and the case may be tried by the court against his objection, with the aid of a jury, as the court, in its discretion, may determine, according to the practice in equity cases. Davison v. Associates of the Jersey Co., 71 N Y, 333. N. Y. & N. H. R. B. Co. v. Schuyler, 34 id., 30-46 ; Ward v. PLato, 23 Hun, 402 ; Baird v. Mayor, 74 N. Y., 382 , Cogswell v. N. Y. N. H. & H. R. B. Co., 105 N. Y., 319-321: 7 St. Rep., 203.
    And in such cases it has been held that it is the proper practice to submit the issues at law to a jury, and then to dispose of the remaining issues without the intervention of a jury. Davis v. Morris, 36 N. Y., 572 ; Brady v. Cochran, 23 Hun, 274; Cornell v. N. Y. E. B.B. Co., 37 St. Rep., 624; Hooker v. City of Rochester, 35 id., 408 ; S. C.. affirmed on appeal, 36 id., 458: People v.M. T & T. Co., 11 Abb. N. C., 304. ' _
    _ And that for irregularity in such procedure in not making proper findings appropriate for the equity relief, the remedy is by motion to correct the proceedings, and not by appeal from a judgment. Hammond v. Morgan, 101 N. Y., 179 ; Acker v. Leland, 109 id., 5, 14 St. Rep., 23.
    In Parker v. Laney, 1 T. & C., 590, this court, at general term, reversed the judgment based on a general judgment for damages where the court, upon the same evidence, had made findings to support, and had granted an injunction.
    In the same case on appeal, 58 N. Y.; 469, the court of appeals reversed the general term on the ground that the finding of a general verdict for damages established the commission of the acts charged, and that such acts occasioned the injury complained of, and authorized a judgment restraining such act.
    The supreme court maintained that there was no right of trial by jury in the case; the court of appeals did not refer to, or determine the point. But the court of appeals decided this question in the case of Cogswell v. N. Y.. N. H. & H. R. B. Co., 105 N. Y., 319-321; 7 St. Rep., 203. In that case the complaint demanded both legal and equitable relief; it prayed j udgment for damages for an abatement of the nuisance complained of; and also for an injunction enjoining defendant against continuing the nuisance ; and from permitting its lands to be used for . the purpose of carrying on any operation thereon which would injure the plaintiff in the enjoyment of her property.
    The plaintiff had moved, in the special term, for an order settling issues to be tried by a jury: and the court had denied the motion and stated in the order, on the ground that “a trial by jury is a matter of right in this action.”
    The court held that the plaintiff, by bringing an action for both legal and equitable relief, waived the right to trial by jury, and submits to have the issues tried by the court, or by the court with the aid of a jury, as the court, in its discretion, may determine, according to the practice in equity cases.
    But in that case it was the defendant who objected to having the issues tried by the court, and insisted that he had a right to have them tried by a jury; and the determination was that the defendant in such an action so brought has no right, under the section of the Code referred to and the constitution of the state, to have the issues in such a case tried by a jury.
    At page 821, the court says: “ This is not a case which, as a whole, and in both aspects, was triable by a jury at the adoption of the constitution, nor is it one where, under the present system, the plaintiff is compelled to unite her claim for both equitable and legal relief in the same action. This is not, we think, an action for nuisance within § 968 of the Code of Civil Procedure. The action of nuisance is mentioned in the section, together with other common law actions, all of which must, the section declares, be tried by a jury, unless a jury is waived, or a reference is directed. Beading the section in connection with § 1660, it is clear, we think, that an equitable action to restrain the continuance of a nuisance is not an action for nuisance, within § 968.”
    This determines that this action is an equity action, governed as to the trial of the issues therein by the law applicable to equity cases; and that the defendant had no absolute right to the trial of such issues by a jury.
    This being an equity case, the court has power to reverse, disregard, or modify the findings of the jury. Vermilyea v. Palmer, 52 N. Y, 471-474; Learned v. Tillottson, 97 id., 1; Hammond v. Morgan, 101 id., 179; Acker v. Leland, 109 id., 5; 14 St. Bep., 23.
    On the trial questions were submitted to the jury and answered as follows:

      First. Did the dam built on defendants’ premises in 1871 raise the water above such dam to a higher level than the dam on said premises next before said dam of 1871 was constructed ? If higher, how much higher? A. Yes, two feet

      Second. Did said dam of 1871 raise the water on plaintiff’s land? If so, to what depth did it raise the water at the line between the lands of the plaintiffs and defendants ? A. No.

      Third. Did the dam built on the defendants’ premises in 1881 raise the water above such dam to a higher level than the dam built on said premises in 1871 ? If higher, how much higher? A. Yes, one foot

      Fourth. Did said dam of 1881 raise the water on plaintiffs’ land? If so, to what depth did it raise the water at the line between the lands of the plaintiffs and defendants ? A. Yes, one foot

      Fifth. Did the dam built on defendants’ premises in 1887 raise the water above such dam to a higher level than the dam built on 3aid premises in 1881? If higher, how much higher? A. No.

      Sixth. Did said dam of 1887 raise the water on plaintiffs’ land ? If so, to what depth did it raise the water at the line between.plaintiffs' and defendants’ land ? A. No.

      Seventh. Does the dam of the defendants, as maintained by them at the time of the commencement of this action, September 10, 1889, and since that time, cause the water to flow back above the boundary line between the plaintiffs’ and defendants’ land ? If so, what is the depth of the water at said line, which is so caused to flow back? A. Yes, one foot.

      Eighth. Did plaintiffs sustain damage by loss of the efficiency of their mill between February 21, 1889, and September, 1889, by reason of the water being raised by defendants’ dam upon the water wheel in plaintiffs’ mill to a higher level than the water was raised at the site of said wheel before the building of said dam of 1871 ?
    If plaintiffs sustained damage from such cause, what is the amount of such damage during such period? Answer. Damage $161.
    What is the amount of such damage for the period from September 10, 1889, to September 27, 1890 ?
    We estimate damage $300.
    Plaintiffs asked that such findings may be confirmed and adopted by the court as its findings, except the fifth, which finds that the dam of 1887 did not raise the water to a higher level than the dam of 1881; and the sixth finding, that the dam of 1887 does not raise the water on plaintiffs’ land; and plaintiffs insist that the seventh finding, that the dam maintained at the time of the commencement of the action raises the water one foot on the boundary line, should be modified by a finding that such dam at that point raises the water two feet. Defendants insist that the second, fifth and sixth findings are correct, and all the others should be set aside.
    It is evident that the sixth finding should have been answered by the jury, “ yes, one foot,” to have been consistent with the other findings.
    In the view that I have taken it will not be necessary to examine the charge to the jury upon the questions submitted to it.
    The matter of the excavation in the westerly channel of the river above and below the boundary line was brought to the attention of the court at the time of the trial and upon the argument in the brief of the defendants’ counsel. He there maintains: “ Excavation, it is true, does not affect the actual height of the water, but it does affect something of more consequence; that is, the primary issuable fact, the natural level of the stream at the boundary lina When that level is cut away the very standard upon which the whole case depends has been tampered with, and it can only be restored by due allowance for the amount of excavation.”

      This is entirely true if the height of the land at the' "boundary line and depth of the water upon the land at some period before the building of a given dam, compared with some time afterward, were the only means of ascertaining whether the level of the water had been increased at that point. When we consider that this is one of various other standards to be used in ascertaining the fact as to whether the water has been raised, what the court said to the jury will appear to be correct, that the excavation had nothing to do with the level of the water; that they were to consider and make allowance for the changes of appearance when they attempted to make use of the height of the river bottom at that point, or the depth of water resting thereon, as a means of finding out whether the level of the water had been raised.
    Upon examining the evidence on the question as to whether the level of the water has been raised by the dam built on the defendants’ lands, I see nothing inconsistent with the idea that the dam built in 1871 was two feet higher than the old Deal dam, and that the main structure of the dam of 1871 was built with the intention of utilizing all the water power there was on the defendants’ lot. That that dam, by the use of two or three flush boards in low water, was made to set the water back on plaintiffs’ land from twelve to eighteen inches; that when the dam of 1881 was built the main structure raised the water a foot or more higher than the main structure of the dam of 1871, and that by the use of three sticks of timber on this last named dam from about 1884 until near the time when that dam went out in 1887, the water was raised some two feet higher than the main structure of the dam would have raised it. That the main structure of the dam of 1887 was of the same height as the main structure of the dam of 1881, and two feet lower than the latter dam was when the three eight inch sticks of timber were on it.
    I have no doubt that by these dams the water was raised at least one foot, and probably nearly two feet, by the dam of 1887, which was standing at the time this action was commenced,
    Washburn’s Basements & Servitudes, chap. 3, § 13, state that it seems to be well settled that a mill owner has a right, by means of his dam, to swell or set back the water of the stream in its natural state to the line of the adjoining riparian proprietor, and to maintain his dam at that height, although at times of freshet the water of his pond shall set back upon the land of such proprietor, and Gibson, Chief Justice, says, in McCalmont v. Whitaker, 8 Rawle, 84-90, “ the water power to which a riparian owner is entitled consists in the fall in the stream when in its natural state, as it passes through his land, or along the boundaries of it. Or, in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.”
    . This definition is adopted in terms by the supreme court of Illinois, in Plumleigh v. Dawson, 1 Gilm., 544.
    The counsel for both parties made no contention but that this is the correct rule, governing the case at bar, and this in mind, I have made the finding that the water was raised at the boundary line at least one foot.
    I am satisfied, after careful examination, that the evidence given by the plaintiffs upon the trial was not .sufficient to entitle them to recover any damages within the rules of law governing such cases. The true measure of damages in such a case is the difference in the rental value, free from the nuisance or subject to it. Francis v. Schoellkopf 53 N. Y„, 152; Colrick v. Sioinburne, 105 id., 503 ; 8 St. Rep., 172, and cases there cited; Michel v. Supervisors, 39 Hun, 47; Van Burén v. Fishkill Water Works Go., 50 id., 448; 21 St. Rep., 438; Murray v. Archer, 24 id., 817.
    Assuming that the evidence of plaintiffs given on the question of damages was competent, it was insufficient to form any reasonably just basis of computing the damages.
    The difficulty in furnishing sufficient evidence to estimate such damages shows that the plaintiffs are entitled to equitable relief, if they have a right of action against the defendant.
    Early in 1886, Chas. D. Austin purchased the premises which were, on February 22, 1889, conveyed by him to the defendants. For such premises, rights and privileges he paid $20,000. Thereafter he enlarged the buildings, put in a new water trunk and wheel, placed expensive machinery in the mill, and began the erection of a new mill on the opposite side of the creek, to be furnished with water-power from the dam of 1887, which he built with a bulk-head on each side. Plaintiffs were in possession of their property when the dam of 1881 was built. At that time the plaintiff Dean was informed by the Hewitts, who built that dam, that it was being wrongfully raised; this dam was allowed to be completed, and to remain for six years without objection. In the meantime, Austin, a bona fide purchaser for value, came into possession of the defendants’ premises under his-deed, which granted the right to retain the water of the creek upon the lands conveyed, “ or any other lands, as the same is used, owned or enjoyed by the said first party.” He enjoyed this right, undisputed and unquestioned, for a year or more, before the dam of 1881 was carried away. Then he began building a new dam of the same height of the old one, and the plaintiff Dean was so informed at the time and made no objection.
    Plaintiffs passed the dam of 1887 while it was being built. The plaintiff Dean inspected it; talked with the workmen about its height when they had reached the top on one side; was told that it was being built the same height as the dam of 1881, and remarked that it was a good substantial dam ; and that he was glad they were building such a good dam.
    The plaintiffs having utilized their water-power before 1881, knew to what height that dam, with the timber structure upon it, had flowed the water back 'upon them. This appears clearly from the evidence of the plaintiff Dean himself, who says that as early, at least, as the building of the dam of 1881, he believed that the water had been raised by the dam below upon the plaintiffs' land. If the plaintiffs were, ever to contend that the water had been raised upon their land as against Austin, or the defendants, who derived their title from him, they should have made claim upon the first opportunity, and at least before Austin was allowed to expend money in the building of the dam of 1887 ; or the structures to be supplied with water-power from such dam.
    In equity, when a man has been silent when in conscience he ought to have spoken, he will be debarred from speaking when conscience requires him to be silent. Niven v. Belknap, 2 Johns., 573, 589.
    As was said in that case, “ there is a negative fraud in imposing a false apprehension on another by silence, when silence is technically expressive.”
    Austin had the right to act upon the presumption that the plaintiffs would not suffer an injury to their rights by his grantors without resistance, and that if the building of the dam of 1887 would be an encroachment upon plaintiffs’ rights, that they would have knowledge of it, and make objection; that as they did not make any objection, and acquiesced in the building of the dam, and the expenditures on the structures to be used in connection with the water power, that there was no encroachment.
    Defendants succeeded to Austin’s rights. If there is an estoppel in his favor, it applies equally to them. Wood v. Seely, 32 1ST. Y., 105, 116; Willard's Equity Jur., 250, 609; Alexander v. Pendleton, 8 Granch, 462; Bigelow on Estoppel, 341, 607, 608, and cases cited.
    The principle of estoppel by silence has been applied repeatedly in this state, and by the courts of the United States. Nive?i v. Belknap, 2 Johns., 573, 589 ; L'Amoureux v. Vandenburgh, 7 Paige, 316; Erie County Sav. Bankv. Poop, 48 R. Y., 292, 298: McClare v. Lockard, 121 id., 308; 31 St. Bep., 69; Leather Mfg's Bk. y. Morgan, 1Í7 U. S., 96, 106, 112.
    It is not necessary to an equitable estoppel that the party should .intend wilfully to mislead; but whatever may be the intent, if he makes such a representation as a sensible man would take to be true, and believe that it was meant that he should act upon it and does so act, the party making the representation is precluded from contesting the truth. Continental Nat'l Bank v. N. Bk. of the Commonwealth, 50 R Y., 575, 580, 582 ; Blair v. Wait, 69 id., 113, 116.
    The case at bar comes within the principle that if one man knowingly permits another to purchase and expend money on land upon an erroneous opinion of title, without making known his claim, he will thereafter be estopped from asserting it Butler, 84 R Y, 31, 39, 40; Wendell v. Van Rensselaer, 1 Johns. Ch., 354; Town v. Needham, 3 Paige, 545; Storrs v. Barker, 6 Johns. Ch., 166; Brown v. Bowen, 30 R Y., 519, 541.
    The dam of 1887 was built upon defendants’ land, but of such height that it would raise water upon plaintiffs’ land to their injury, and, as they must have well known, they suffered it to be constructed without putting Austin in equal knowledge of the fact when he was incurring large expense in creating the water power and building the structures connected therewith. Such acquiescence was consistent only with relinquishing any claim that the darn was too high. The silence of plaintiffs under these circumstances when it was their duty to speak, if their rights were being invaded, is equivalent to a representation to Austin that they had no interests which were being adversety affected by his conduct, and estops them from taking any position inconsistent with such silence and apparent acquiescence. Bigelow on Estoppel (5th ed.), 583-4.
    The pond which produces the power is the material thing without which the dam and mills and machinery are worthless; if the plaintiffs are now allowed to assert title against the right upon which the defendants' grantor relied when he built the dam of 1887, the damage will be as direct as if a mill instead of a pond had been placed across the line. They should, therefore, be estopped in the same manner.
    A dispute as to the boundary line west of the creek had come down from the time of Maxwell & Brown. Starting from the bolt in the rock on the west bank of-the creek, Maxwell claimed that the line ran through the Brown mill, cutting off the tall chimney and all that part of the mill. Brown claimed that the line bore farther south, entirely clearing his buildings. Maxwell claimed that it was the same line that ran across the creek, but the plaintiff Dean on the trial seemed unwilling to admit this. He testified, however, that Mr. Yischer surveyed their premises at one time, “andfound all the lines but this line in dispute.”
    The plaintiff Lyon had a conversation with Austin about this controversy, in which Austin said he. would sell the plaintiffs sixty feet along the road; they to give him a quitclaim deed of the portion between said sixty feet and the highway leading to the bridge, and that should settle the transaction forever between them. After consultation with the other plaintiffs this agreement was closed, and in March, 1888, about a year before the commencement of this action, deeds were passed accordingly, Austin receiving $500 for the land conveyed by him to the plaintiffs.
    The disputed territory extended from the bolt in the rock near the plaintiffs’ tail-race down to the highway fronting plaintiffs’ premises. A division line was run about midway across this tract,, the upper portion was conveyed to plaintiffs and the lower portion to Austin ; the former was bounded on the south by the northerly boundary of the Chuctanunda creek, and the deed given recited that there was to be no claim for damage by reason of the premises being overflowed by water from said creek in times of freshet. This plainly excluded the idea of back water at , any other time.
    The other deed bounded the lands by the lands conveyed to plaintiffs by Austin, “southerly by said Austin’s mill pond or dam and the Chuctanunda creek, and westerly by the highway leading across the stone bridge, and past the knitting mill of said tifiarles D. Austin.” This was an express recognition of Austin’s mill pond or damas they then existed and as used in connection with his knitting mill. The latter deed expressly referred to the former, and they formed part of the same transaction. They must, therefore, be read together, and both must be construed with reference to the mill pond, dam. and creek as the water was then maintained therein. This transaction shows that Austin, down to this time, must have have acted in building his dam and making his expenditures in connection therewith upon the faith engendered by thesilenee and acquiescence of the plaintiffs. With a claim to the land on which the,plaintiffs’ mill was located of such apparent validity that the plaintiffs were willing to pay him $500 to relinquish it, he would not , have been likely to have given this deed if he had had knowledge that the plaintiffs made any claim that the dam was too high without having such claim adjusted and settled in the same arrangement which determined the boundary controversy. The premises must be taken as they were at the time of the conveyance. Lampman v. Millos, 21 R. Y., 505-509; Hamel v. Griffith, 49 How., 305.
    By these circumstances the plaintiffs are estopped from asserting that the dam of 1887 is higher than it could have been lawfully built, or that it flows the water back onto the lands of the plaintiffs, to the prejudice of the defendants, who succeed to the rights of Austin, to a greater extent than might be lawfully done.
    Plaintiffs’ complaint should be dismissed upon the merits, and costs should be awarded against them in favor of said defendants.
    Judgment is ordered accordingly.

      W. L. Van Denbergh (Matlheiu Hale, of counsel), for app’lts; Edward P. White, for resp’ts.
   Herrick, J.

It seems to me that plaitiffs acquieced in the erection of the dam to such a height as to cause the damage, and that such acquiescence together with their silence at the time of the exchange of the deeds mentioned in the eighteenth finding of fact should prevent a recovery by them. I see no occasion for another opinion; it was sufficiently discussed by Judge Tappan. See also §§ 816-18 of Pomeroy’s Equity Jurisprudence.

Judgment affirmed, with costs, on opinion of court below.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Osborne, J.

license: Public Domain

text:
    Isabella C. Plass App'lt, v. David F. Lucas, Resp't.

      (City Court of Brooklyn, General Term,

      Filed May 22, 1893.)

    Bills and notes—Fraud—Weight of evidence.
    Plaintiff claimed to have been induced to indorse a note of her husband by false representations. It appeared that she owned a controlling interest in a corporation, in which her husband and defendant were stockholders; that she owned patents which she desired to sell in Philadelphia, and that defendant agreed to loan her husband the money to go there with, and the husband was to give his note, indorsed by plaintiff, for the amount thereof and other indebtedness. Plaintiff and her husband testified that the latter told her to sign the paper (the note lying face down), that it was a memorandum that her husband was holding defendant’s stock. This was denied by defendant, who testified that she signed with full knowledge of the facts. It appeared that she was a business woman, fully conversant with business ways. Held, that plaintiff’s version of the transaction was incredible and that a judgment in favor of defendant was proper.
    Appeal from judgment in favor of defendant.

      Estes, Barnard & Tiffany, for app’lt; Thomas E. Pearsall, for resp't.
   Osborne, J.

Plaintiff brought this action to restrain the defendant from negotiating a promissory note for $1,500, made by the husband of the plaintiff and indorsed by her, and for the cancellation of her indorsement thereon, on the ground that she had been induced to indorse said note through false representations made by defendant, aided and abetted by her husband. Defendant denied all fraud and false representation. On conflicting testimony, the learned trial judge decided in favor of the defendant, and plaintiff appeals from the judgment entered against her, on the ground that the findings of fact were against the weight of evidence. It accordingly becomes our duty to carefully examine and weigh the evidence in the case, in order to determine if the contention of the plaintiff is sustained.

It appears from the evidence that the plaintiff held the controlling interest in a company known as the Standard Corporation, in which her husband and defendant were also stockholders, the latter having purchased his stock from plaintiff’s husband and paid him $1,000 therefor. Defendant also held the promissory note of plaintiff’s husband for $400. Plaintiff and her husband were the owners of sundry patents which they were negotiating to sell to certain parties in Philadelphia, and such sale, if consummated, was expected to prove very advantageous to plaintiff, and to promote .her interests as a stockholder in the Standard Corporation.

Defendant entered into an arrangement with plaintiff’s husband, by which he agreed to loan, and did loan, to plaintiff’s husband the further sum of $100, for his expenses to Philadelphia ■to carry out the proposed arrangement, on the agreement that he, defendant, was to surrender the note of Mr. Plass for $400, and also the stock for which he had paid $1,000,' and receive, in return therefor, the note of plaintiff’s husband for' $1,500, indorsed by her. When it was proposed that plaintiff should indorse this note, her husband testified that he told defendant that his wife would not indorse a note, but that he was persuaded to make the effort to procure her indorsement; that he accordingly drew up the note, turned' it over on its face on the desk, called his wife into the room where he and defendant were, and said to her: “Write your name on that piece of paper; ” that she inquired of defendant “ what it was about,” and that defendant replied “ that it was simply a piece of paper, a memorandum that I (Mr. Plass) was holding his (defendant’s) stock,” and, taking his word for it, she wrote her name on the piece of paper and passed up stairs. He further testified that he then, at defendant’s request, wrote over his wife’s signature the words Pay to the order of D. F. Lucas,” and delivered the note to defendant. Plaintiff tells substantially the same story as to 'how she came to indorse the note.

Defendant squarely denied the statement as to the way in which it was alleged that plaintiff’s indorsement was procured, and he testified that she was fully aware of the whole arrangement, and that she indorsed the note under the words “ Pay to the order of D. F. Lucas,” with full and complete knowledge that she was indorsing her husband’s note for $1,500.

In our opinion, plaintiff's story is too improbable to be entitled to any credence, in the face of the admitted circumstances surrounding the whole transaction. It appeared that plaintiff was a thorough business woman, having at one time conducted business on her own account, was familiar with the indorsing of checks and the transferring of stock certificates, the signing of proxies, talked glibly about “the Philadelphia deal, and of when it was to go through,” the sale of her patents, and of her controlling stock interest, and of the intention of her husband to take care of defendant and others in the company “ because they always pulled honest and square with him, while others pulled against him.” She showed herself plainly to be fully conversant with business ways, and yet we are asked to believe that she, with all her intelligence, was persuaded to write her natne on a piece of blank paper, on the assurance “ that it was a memorandum that Mr. Plass held his stock for him in trust I signed it because I thought it was a piece of paper he wanted to pin to the stock.”

The history of the whole transaction, as testified to by the defendant, is, in our opinion, the correct story of the indorsement of the note by plaintiff.

We do not regard the evidence of plaintiff’s husband as affording any corroborative weight to plaintiff’s story, for it plainly shows, taking it to be true, that he deliberately entered into a scheme to defraud his own wife; he appears as a self-confessed cheat, and his evidence, in our opinion, is utterly worthless.

We think that the learned trial judge properly decided this case, and the judgment should be affirmed, with costs.

Van Wyck, J., concurs.


author: Van Wyck, J.

text:
    William E. Sinn, App'lt, v. Cora S. Sinn, Resp't.

      (City Court of Brooklyn, General Term,

      Filed May 22, 1893.)

    Divorce—Alimony.
    The action is one for the annulment of a marriage, involving the validity of two divorces and the laws of four states. Plaintiff is in receipt of an income of $20,000 and defendant has only her theatrical wardrobe and savings amounting to $2,81)0. Held, that an allowance of $750 to defendant for legal services was proper.
    Appeal from order awarding defendant $750 counsel fee.

      Thomas H. Troy, for app’lt; Robert H. Griffin, for resp’t.
   Van Wyck, J.

This is an appeal from an order awarding defendant $750 to defray her expenses for legal services in the defense of her wifehood against the assault of plaintiff. This action is brought to have the marriage in Ohio between the parties hereto adjudged null and void, on the ground that at that time she was the lawful wife of one Farlin, to whom she was wedded previously in Michigan. This plaintiff assails the validity of the divorce secured by her from Farlin in Illinois, for the reason that the summons was served by publication on him while he was a resident of some other state.

The defendant, in turn, attacks the validity of the diVbrce of Farlin’s first wife, to whom he was married in Michigan, secured by her in Wisconsin, because the summons was served .upon him by publication while he was a resident of some other state. This controversy involves at least three marriages, and the laws of at least four states, a most tangled marital complication growing out of the conflict in the law of marriage and divorce of the several states. The plaintiff is in receipt of an annual income of about $20,000 and has $21,000 cash in bank. Notwithstanding this great plenty of wordly goods, he insists that she must forego the defense of her right to be called his wile, denied by him, or sell her jewelry and stage wardrobe, the necessary paraphernalia.of an actress of her admitted standing, or the furniture in her hired home, which he bids for in his affidavit, or use" her capital of $2,800 in bank, the net savings of a long professional career commencing at the age of fifteen, and from which she derives the munificent annual income of $120, which is totally inadequate for her support, and her principal must rapidly dwindle away. For several reasons, including the disturbing effects of this litigation, she has been unable for the last year to obtain employment at her usual work. We think the allowance of $750 was proper, both in law and amount, to enable her to procure the services of those learned in the law, so much required for the unraveling of this complexity of connubial rights. O'Dea v. O'Dea, 31 Hun, 441; affirmed 95 N. Y., 667; Hoffman v. Hoffman, 7 Robertson, 474; Douglas v. Douglas, 13 Abb., N. S., 291; Merritt v. Merritt, 99 N. Y., 643.

Order must be affirmed, with costs.

Clement, Ch. J., concurs.


text:
    Henry W. Stevens et al., Resp'ts, v. George H. Huber et al. App'lts.

      (City Court of Brooklyn, General Term,

      Filed May 22, 1893.)

    1. Sale—Rescission—Fraud—Evidence.
    In an action to rescind an executed contract of purchase of a saloon, store fixtures and good will of the business, on the ground that plaintiffs were induced to purchase by false representations as to the cost to the vendors of the saloon, store fixtures and repairs, it is error to exclude evidence of the value of the good will, as it is necessary, in order to maintain the action, to show that plaintiffs were damaged, and, therefore, the value of all the property sold should he shown.
    8. Same—Agreement to repurchase.
    It is not sufficient to sustain, such action that the vendors agreed to take the property hack and refund the purchase price within a year if the vendees were not satisfied.
    Appeal from judgment in favor of plaintiffs.

      Charles E. Burke, for resp'ts; Hirsh & Rasquin, for app'lts.
   Van Wyck, J.

This action was brought to rescind an ex ecu tea contract of purchase by plaintiffs from the defendants of a certain saloon, store fixtures, furniture, and the good will of the business for $6,000, of which $2,500 was paid in cash and $3,500 in a chattel mortgage art the property. The plaintiff had judgment, and therefrom this appeal is taken. Such rescission is claimed on the ground that plaintiffs were induced to their “great damage and injury ” to make the purchase by the false and fraudulent representation of the defendants that the saloon, store fixtures and repairs had cost them $11,000, and the court found that this portion of the property only cost them $6,800. Was it necessary to sustain this action that plaintiffs should have been damaged; in other words, that they were induced by false and fraudulent representations to purchase property not fully worth $6,000, the sum they paid for it? “ The party must suffer some pecuniary loss or injury as the natural consequence of the conduct induced by the representation. ,* * * Fraud without resulting pecuniary damage is not a ground for the exercise of remedial jurisdiction, equitable or legal; courts of justice do not act as mere tribunals to enforce duties which are purely moral.” Pomeroy’s Eq. Jur. (2d ed.), § 898. This seems to be a correct statement of the rule in such cases. We have been unable to find, and our attention has not been called to any authority in this state which is in conflict therewith. This being so, then the value of the property sold was material, and the court erred in excluding the offer of evidence to show the value of the good will of the business, and the exception of the, defendants thereto was well taken. This renders the consideration of the other questions or exceptions unnecessary, unless the judgment can be sustained solely on the ground that the defendants agreed to take the property back and refund the purchase price within a year if the plaintiffs were not satisfied. We do not think an action to rescind such a contract of purchase, founded upon fraudulent representations, can be converted into an action to enforce a contract to buy back at the same price within a certain time. This objection was raised and overruled, to which the defendants duly excepted.

Judgment must be reversed and new trial ordered, with costs to appellants to abide the event.

Clement, Oh. J., concurs.


author: Clement, Ch. J.

text:
    Henry Knoth, App'lt, v. Elizabeth Meltzer et al., Resp'ts.

      (City Court of Brooklyn, General Term,

      Filed May 22, 1893.)

    Negligence—Icy sidewalk.
    Plaintiff was injured by falling on ice upon the sidewalk in front of defendants’ brewery at a point where there was a driveway. There was no ice upon other parts of the sidewalk, and it could be inferred that water flowed off defendants’ land on the sidewalk and there became ice. The case did not show whether such water came from melting snow and ran down the natural grade, or whether it flowed from pipes and the natural grade had been changed. Held, that the complaint was properly dismissed.
    Appeal from judgment dismissing complaint.

      M. L. Towns, for app'lt; Jerry A. Wernberg, for resp'ts.
   Clement, Ch. J.

The plaintiff brought this action and sought to recover damages for personal injuries from a fall upon ice on the sidewalk in front of a brewery of the defendants. Testimony was admitted on the trial tending to show that the plaintiff fell where there was a driveway, and it was also proven that the remaining portion of the sidewalk was free from ice. At the close ,of the case for plaintiff, a motion was granted to dismiss the complaint.

After a careful examination of the record, we are unable to distinguish this case from Moore v. Gadsden, 93 N. Y., 12, and are of ■opinion that the nonsuit was properly granted. The ' learned counsel for the appellant contends that the defendants interfered with the sidewalk in violation of certain ordinances of the city which are not printed in the case, and, therefore, are not before us for review. It may be fairly inferred that water flowed off the land of defendants on the sidewalk and there became icd. Whether such water resulted from melting snow and ran down the natural grade of the land, or whether the water flowed from pipes, and the natural grade of defendants’ premises had been disturbed, does not appear in the case. The defendants had the right to drive over the sidewalk, as it was necessary in the use of their premises.

Judgment affirmed, with costs.

Yan Wyck, J., concurs.


text:
    Henry C. Wintringham, Resp't, v. J. Noble Hayes, App'lt.

      (City Court of Brooklyn, General Term,

      Filed May 22, 1893.)

    1. Bailment—Evidence.
    Where articles when placed in the custody of a bailee were in good condition, and are afterward found to be injured, the owner has a right to prove by an expert that the injuries were not the result of wear and tear.
    2. Same—Neuliuence—Burden op proof.
    In such case the burden is upon the custodian to show how the injury occurred, and that he was not guilty of negligence.
    Appeal from judgment in favor of plaintiff.
    Action to recover for materials and labor alleged to have been supplied and rendered to defendant upon his yacht in the year .1890. The answer was a1 denial of the value of the services and two counterclaims, one for injuries to the yacht while in plaintiff’s custody, and the other’for the loss of • a yacht’s boat.

      R. Burnham Moffatt, for resp't; R. W. G. Welling, for app'lt.
   Clement, Ch. J.

The questions involved as to the second ■counterclaim seem to have been purely of fact, and found that the boat in question was never delivered to the plaintiff. There was no dispute jfchat it was left on his premises, and there was a question of fact whether it was so left with him as "bailee, or at the owner’s risk. We know of no reason why the finding of the referee on this question should be disturbed.

We are of opinion that the referee erred in dismissing the first counterclaim. There was testimony to show that the j'acht was in “ apparently good condition " in the fall of 1890, and was left with the plaintiff, who agreed to care for same for the sum of twenty dollars per month. In the spring the defendant found the starboard bow of the boat in a damaged condition. The following is from the testimony of John McDonald :

“ Q. Did any of the inj uries, which you have described, exist at the time you delivered the boat to Mr. Wiutringham in the fall of 1890 ? A. They did not.
“ Q. Were the injuries which you have testified which the boat sustained, ordinary injuries of wear and tear?
“ Objected to, as calling for a conclusion ; sustained. Exception by defendant’s counsel.
“ Q. What did the general appearance of the boat indicate as to the care which she had received ?
“ Same objection, ruling and exception.”

We think that defendant had the right to prove by an expert that the injuries were not the result of wear and tear.

In the case of Collins v. Bennett, 46 N. Y., 490, Judge Peckham said : “ Here, it will be observed, this horse was in the exclusive possession of the defendant He had charge and care of him for hire. During that charge he is injured in a way that ordinarily does not occur without negligecce, usually not without the horse has been used and then been neglected. This may be safely said on the evidence and upon human experience. In such ease the burden rests with the custodian to show how the injury occurred, and that he was not guilty of the negligence that caused it” In this case, the yacht was in the exclusive possession of the plaintiff. He had charge and care of it for hire. During that charge it is injured in a way that ordinarily does not occur without negligence. We can assume that yachts in the winter are put in a place where injury will not occur without negligence. The yacht was not injured as the result of ordinary wear and tear, for an offer of such testimony was erroneously excluded. A presumptive case of negligence was made out against the plaintiff, and the mo-, tion to dismiss the first counterclaim should have been denied. The amount in dispute was thirty-six dollars, and the judgment .should be reduced by that amount and interest from May 1,1890, making a total of $41.65.

We have examined the other exceptions in the case and found no error.

Judgment reversed and new trial granted, costs to abide the event, unless, witiiin ten days, the respondent file with the cleric a stipulation inducing the principal of the judgment by the sum of $41.65, in which case the judgment appealed from is affirmed, without costs.

Van Wyck, J., concurs.


author: Earl, J.

text:
    John Foley, Jr., et al., Resp'ts, v. The Mutual Life Insurance Co. of New York, App'lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Insurance (life)—Surrender—Infants—Guardian in socage.
    One F. assigned an endowment policy on his life to.his wife and children. The wife died leaving children and a will, by which she - gave her property to the children and made her husband executor and guardian of the children. He received letters testamentary and afterwards surrendered the policy to the company on receiving the then value, which he retained. In an action brought by the children against the company for the amount of the policy, it having matured, Held, that F. had no power under the'will to act as guardian of the children, nor as guardian in socage to surrender the policy for cancellation.
    2. Same—Waiver.
    Upon the trial F. was allowed to testify that he. applied the money to the benefit of the plaintiffs. Held, that as F. was bound to support his own children, and as it did not appear that he was not abundantly able to do so, if he took the money and used it for the support of his children, instead of using his own means, the children did not become responsible for the money so used, so as to entitle the defendant to a credit for the amount used.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment for plaintiffs on a decision after a trial at special term.
    On the 30th day of January, 1876, the defendant issued to John Foley an endowment policy, whereby, in consideration of certain annual payments to be made, it promised to pay him the sum of $10,000 on the 3d day of January, 1891, or if he should die before that time, then to make payment of that sum to his executors, administrators or assigns within sixty days after notice and proof of his death. On the 25th day of July, 1879, he assigned the policy to his wife and eight children. In November, 1879, his wife died, and afterward one of the children also died. TTis wife left a will in which she gave all her property, real and persona], to her children, and nominated her husband executor of the will, and appointed him guardian of the children during their minority. On the 16th day of April, 1888, the premiums on the policy having been regularly paid, and the policy then being in force, Foley, assuming to act as executor of his wife’s will and guardian of the children, surrendered the policy to the defendant in consideration of the sum of $7,229 paid by it to him, and thereupon it canceled the policy, and that has ever since remained in its possession. At the time of such surrender the seven children interested in the policy were all minors. Thereafter the plaintiffs, John Foley, Jr., and Madeleine Foley, became of age, and John Foley, Jr., was appointed guardian of his infant brothers and sisters, and in January, 1890, the plaintiffs tendered to the defendant all the premiums on the policy which became due after its surrender and demanded that it should be reinstated.
    The defendant refused to accept the money so tendered, and to reinstate the policy, and then this action was commenced by the plaintiffs, and they prayed judgment that the surrender of the plaintiffs’ interest in the policy be set aside and adjudged void, and that the policy be declared to be in full force, and a subsisting policy of insurance in their favor. The defendant answered the complaint, and the action was brought to trial at a special term of the supreme court, and the court adj udged that the surrender of the policy was illegal and void, and the policy having then by its terms matured, it ordered judgment in favor of the plaintiffs for seven-ninths of the $10,000, less seven-ninths of the premiums remaining unpaid thereon. From the judgment entered at the special term the defendant appealed to the general term, and from affirmance there to this court.

      Edward Lyman Short, for app’lt; Herbert Green, for resp’ts.

       Affirming 45 St. Rep., 918.

   Earl, J.

Mrs. Foley had no power by her will to constitute her husband guardian of her minor children, and while he assumed to act as such, it is now conceded that he was not their testamentary guardian, and that he derived no power under the will of his wife to act as such. But they took under the will of their mother real estate, and hence it is claimed on behalf of the defendant that he became the guardian in socage for his minor children under the provisions of the Revised Statutes, where it is provided in § 5, 4 R. S., 8th ed„, 2418, as follows: “ Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong (1) To the father of the infant. (2) If there be no.father, to the mother. (3) If there be no father or mother, to the nearest and eldest relative of full age, not being under any legal incapacity, and as between relatives of the same degree of consanguinity male shall .be preferred.” Section 6 provides that: “To every such guardian, all statutory provisions that are, or shall be in force, relative to guardians in socage, shall be deemed to apply.” As a guardian constituted by this statute is clothed with the rights, powers and duties of a guardian in socage, it becomes important to know what were the powers, duties and authority of a guardian in socage at common law prior to the Revised Statutes.

Guardianship in socage was an incident of the feudal tenures existing under the English common law of real estate, and existed only where an infant under fourteen years of age was seized of real estate. No person could be a guardian in socage who could inherit from the infant, but the right of guardianship was in such of the infant’s next of kin as could not take by inheritance from him the socage estate in respect of which the guardianship arose; and if there was one or more in common degree of relationship, he who first obtained possession of the infant generally had the custody of him. The guardian in socage was recognized as having an estate in the land of his ward, and he could maintain in his own name any appropriate action to recover the rents and profits and to recover damages for trespass or waste upon the land, and to recover possession of the land itself. As the common law socage tenure was swept away by the Revised Statutes, the statutory guardianship was constituted by those statutes to take the place of the common law guardianship in socage, and it may for convenience be called by the same name. The guardianship there, constituted was like the guardianship in socage at common law, except that it continued until the infant reached the age of twenty-one years, and relatives who could inherit from the infant were not excluded. It is claimed by the plaintiffs that Foley, as guardian in socage under these provisions of the Revised Statutes, had no power to surrender the insurance policy. The defendant, on the contrary, claims that he did have such power, and the counsel on both sides have, with great diligence and industry, examined and brought to our attention numerous authorities which are claimed to bear upon this controverted question. We have carefully examined them all and are satisfied that as such guardian Foley had no power to surrender the policy. ■

It is claimed on the part of the plaintiffs that guardians in socage at common law had' to do only with the real estate of their wards, and, we think, that is substantially true. Such a guardian could have no being whatever, except when the infant was seized of real estate in socage tenure, and as that was essential it may be inferred that his powers and duties related to the real estate on account of which his guardianship was constituted. In the early history of the common law there was very little personal property, and the guardianship of the infants and of their real estate was very naturally the main object of the law. It is probable that as the guardian in socage was entitled to the possession of the real estate, he also took possession of the animals, implements and other personal property connected with the real estate, and having possession, he could probably maintain an action for any interference with such personal property without right or authority by a mere stranger, and that he thus had the control of such personal property as well as all the real estate. Our own researches, aided by the industry of counsel, have not brought to our attention a single case in England or in this country where the question has directly arisen as to the power of a guardian in socage over the personal property of _ his ward, and it has never been decided or intimated in any judicial opinion that such a guardian could reduce to possession the choses in action of his ward, or release, discharge or dispose of them. In Coke upon Littleton, 1 Aimed., Butler & Hargraves’ Notes, "88 B, the learned editors say: “ But whether the guardian in socage is entitled to take into his custody the infant’s personal estate we have not yet been able to ascertain by any express authority.”

But they also say that they are inclined to think that the personalty was under the control of the guardian in socage, except where by the custom of the particular place it happened to be liable to a different custom ; and they claim that their views are strongly confirmed by the manner in which the Act 12 Charles II., chap. 24, regulated the powers of a guardian which it enabled the father to appoint.

That act authorized the father, by will or deed, to appoint a guardian for his minor children, and the guardian thus appointed was authorized to take the custody of the infant’s personal estate as well as his real estate, tenements and hereditaments, and bring such actions in relation thereto “ as a guardian in common socage might do.” And the reasoning of the learned editors is that these words necessarily import that the personal estate of infants was equally with their real estate subject to the custody and control of the guardian in socage. The provisions of that statute were substantially enacted in this state by chapter 47 of the Laws of 1787, and they have continued ever since and are now found in the Revised Statutes, Yol. 4, 4 R. S., 2612, and the provision now is in § 3, that the guardian thus appointed by the father shall “ take the custody and management of the personal estate of such minor, and the profits of his real estate during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law.” We think the inference to be drawn from this statute, that a guardian in so-cage had the control and possession of all the personal estate of his ward and could bring any action in reference thereto as he could in reference to any of the real estate, is very uncertain and unsatisfactory. As before stated, it is probably true that a guardian in socage, having the possession of the personal property of his ward used on and connected with his land, could bring actions in reference to the same. But we do not think it is a legitimate inference from these statutes that a guardian in socage had the control at common law of all the personal property of his ward, and that he could use, manage and dispose of it like a general owner passing the title to the same. There was no reason for giving such a power to the guardian in socage growing out of the feudal tenure or the policy of the common law. An infant even below the age of fourteen possessed of personal property could select his own guardian, and a guardian of such an infant could also be appointed by the ecclesiastical courts and by the chancellor. If the infant possessed dioses in action which he desired to reduce to possession, he could bring an action in his name and have a guardian ad litem, appointed for that purpose.

There was, therefore, no occasion, to vest a guardian in socage, usually a distant relative, with the power and control over the infant’s personal estate. Soon after the passage of the statutes of Charles the Second, Chief Justice Yaughan, in Bedell v. Constable, Yaughan, 186, expressed the opinion that a guardian in socage did not have the custody of the goods and chattels of the ward. That was merely an expression of opinion of the learned chief justice, as it was not necessary to the decision of the case then under consideration. Our attention is called to text-writers, and to the opinions of judges, some of which affirm and some of ■which deny that guardians in socage had the custody and control of the personal estate of their wards. There is more said upon the subject in Thomas v. Bennett, 56 Barb., 197, than in any other case that has come to our attention. In that case the action was brought by the general guardian in his own name, to recover a debt due to the infant, and the question was whether the action was maintainable, and the learned judge went into a discussion of the power of statutory guardians and guardians in socage. Among other things he said: “ The guardian in socage may sue for claims covering the real estate of his ward, but cannot sue to recover his personal property,” and “ it is true that the guardian in socage can bring no suit except in regard to the real estate, and for the rents and profits of it; but this is so because he has no control whatever over the other personal estate of his ward, and, therefore, I think, although the language of the section is somewhat loose (§ 3, of the Revised Statutes, above cited) the legislature intended to confer the same right upon the general .guardian to sue in relation to any of the property under his control that the guardian in socage possessed in reference to the property of which he had charge.”

When the law makers came to deal with the subject of guardians in socage in the Revised Statutes, personal estate had come to be a very large share of the property of the country, and if they had intended that the guardian in socage should have control of" the personal property of his ward they would have said so in plain and unmistakable terms. If the contention of the defendants is well founded, then the personal estate of an infant, who possesses a real estate, however small, will be at the absolute disposal of the near relative who may assume to act as guardian in socage under the statute, without any of the guards, or the security which the law with great care and particularity surrounds 'the estates of infants, to protect them against the misconduct or maladministration of guardians. Such a guardianship of the infant’s personal property is against the entire policy of our laws, and is sanctioned by no precedent and no practice in this state, and is, we believe, against the general understanding of lawyers and judges. Therefore, without a fuller discussion and without a criticism of the authorities to be found in the briefs submitted to us, we have reached the conclusion that Foley had no power or right to surrender the policy to the defendant for cancellation.

It is, however, claimed by the defendant that the plaintiffs so far acquiesced in and ratified the surrender of the policy that they cannot now repudiate it and reclaim the policy. It was surrendered without their knowledge when they wrere minors. There is no satisfactory proof that they ever intentionally or consciously acquiesced in the surrender, or ratified it, or that they ever took the fruits of it. They did nothing to mislead or to prejudice the defendant. They have in no way deprived it of its remedy against their father for wrongfully obtaining the money for 'the policy, and before infants thus situated can be held estopped from enforcing their claim to the policy, their acts of ratification and acquiescence should be very clear and explicit. Mere acquiescence alone would not be sufficient to estop them from asserting their rights. We need to add nothing to what has been said in the opinions of the special and general terms upon this point.

The defendant alleged in its answer that some of the money . received by Foley upon the surrender of the policy was applied to the use and benefit of the plaintiffs; and upon the trial, having Foley under examination as a witness, defendant’s counsel, after proving that he received $7,229 from the defendant upon the surrender of the policy, asked him, “ Did you apply that money to the benefit of these plaintiffs ?” This question was objected to generally by the plaintiffs, and the court replied: “ I will allow him to state that generally, simply for the purpose of a reference if it should be necessary.” The witness then answered: “I did.” He was asked no further questions, and gave no further evidence of the use made by him of the money. It is now claimed by the defendant that the court at special term should have ordered a reference to ascertain whether any of the money had been used for the benefit of the plaintiffs in such a way that they could be charged with the same, or that the defendant would be entitled to a credit for the sum that would otherwise be recoverable from it. There was no proof that Foley was not perfectly able to respond to the defendant for the amount of money received by him from it upon the surrender of the policy. He was bound to support his own children out of his own means, and it does not appear that he was not abundantly able to do so, and if he took this money and used it for the support of his children, instead of using his own means for that purpose, the children did not become responsible for the money so used. The defendant was permitted to give all the evidence it offered upon the subject, and upon all the evidence in the case it was impossible for the court to find that the money received by Foley from the defendant was so applied for the benefit or use of the plaintiffs as to make them accountable for it to the defendant. It was bound to make a case showing that there was something to be accounted for to apply upon the demand against it, and then, and not till then, would a reference have been proper to ascertain the amount

Therefore, after a full consideration of the very able argument submitted to us on behalf of the defendant, we are not convinced thereby, but have reached the conclusion that the judgment should be affirmed, with costs.

All concur, except Beckham, J., taking no part.


author: Peckham, J.

text:
    John E. Blackman, App'lt, v. Charles Riley, Resp't.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Deed—Desckiptioh.
    In. a certain deed made in 1809, the land on the west side of the Bloomingdale road was first described, and then “ the other of the said two lots, pieces or parcels of land, begins at a point on the east side of the Bloomingdale road aforesaid, * * * and runs from thence north * ® * along the east side of said road ” a certain number of feet, and so to the place of beginning. Held, that the grantors failed to convey any portion of the land forming the bed of said road.
    3. Same—Highway—Pkesumftion as to width.
    The road in question was laid out in 1703 by an act providing for laying it out four rods wide, but such width being unnecessary, in 1761 an act was passed that a surveyor should be appointed to “ lay out the same of the breadth of two rods as it now runs." Held, that it would be presumed that the surveyor, who was a public officer, performed his official duty, and that the provisions of the act were in fact carried out, and the road actually laid out of the width of two rods only, and so the remaining two rods were abandoned to the abutting owner.
    3. Same.
    In 1793, the common council passed a resolution for the opening of the road to “its proper and legal width of four rods,” and in 1799 another resolution to- the same effect. Held, that these resolutions do not show that proceedings had been taken for a widening of the road at the time, but at most only a claim on the part of the city that the road had a width of four rods.
    4. Same.
    The presumption that he has done his duty, which properly attaches to a public officer appointed by virtue of the provisions of a statute by which it is made his official duty, and he is directed to perform a certain act, cannot be carried to the extent of presuming (without any evidence whatever) that a committee appointed by the common council to see that the abutting owners moved their fences back from a road, proceeded to at-' tend to its business, and that such owners did remove their fences.
    6. Same.
    In 1809 there was no evidence that the road in question was then over two rods in width and the deed to defendant’s grantor included the locus in quo because it lay east of the two rods forming the road. ■
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon the report of a referee.

      George Hoadly, for app’lt; Henry H. Anderson, for resp’t

       Affirming 45 St. Rep., 359.

   Peckham, J.

In 1759, Cornelius Cosine, the elder, was the owner of a farm of about two hundred acres, the northern and southern boundaries of which were nearly, but not quite, coincident with the lines of what are now Fifty-seventh and Fifty-third streets, in the city of New York. The North river formed the western boundary, while the eastern was formed by what was termed, in the descriptions of the day, the “ common lands ” of New York. The Bloomingdale road, running about north and south, cut through the farm, leaving land on each side of it. It ran a little distance west of and parallel with the line now forming Seventh avenue.

If a full recital were given of all the facts relating to the disposal of the farm thus mentioned, and out of which has grown the present controversy, we should be taken back to colonial times when, in the year above mentioned (1759), the elder Cosine is alleged to have deeded this farm to his two sons, Cornelius, Jr., and Balm Johnson Cosine, and thereby excluded three other living children from any benefit arising from his ownership of such farm. We do not intend to enter upon either a recital of the facts surrounding and following the claim made under this alleged deed, or to make a statement of the many legal questions which, in one aspect, abound in this case. We refrain from so doing because, in our opinion, the case can and should be decided for the defendant upon a question of fact, and, therefore, a discussion of the interesting legal propositions becomes unnecessary.

This question of fact is based upon a deed to one Jacob Harsen and wife from the widow and heirs of the above mentioned Balm Johnson Cosine, one of the two grantees in the alleged deed from the elder Cosine, made in 1759. This deed to the Harsens was executed in 1809, and it may be assumed all questions arising prior to that date should be decided in favor of the plaintiff. The deed of 1809 conveyed to the Harsens the southern portion of the old Cosine farm, extending from the common lands of New York on the east to the North river on the west, and through it ran the Bloomingdale road. The portion thus conveyed consisted of all the land lying on both sides of the road, between the northern and southern boundaries of such portion. The deed describes, by two separate descriptions, the lands conveyed, one description being used for the land on the west and the other for the land on the east side of the road, The land on the west was first described, and then the deed continues, “ and the other of the said two lots, pieces or parcels of land, begins at a point on the east side of the Bloomingdale road aforesaid, * * * and runs from thence north * * * along the east side of said road,” a certain number of feet, and the description is continued until the line is brought to the place of beginning.

It is argued by the defendant that the deed in fact conveys the fee in the road. He claims that the parties to it were then engaged in carrying out a compromise in regard to the title to this ' farm, and that it was clearly the intention of the grantors to convey to the grantees all the interest which the former had in any portion of the farm contained within the limits of the description, and that there could have been and was no intention to reserve from such conveyance any interest in the land forming the bed of the road which ran through this portion of the farm.

It is difficult to conceive of any reason for consciously reserving or failing to convey the roadbed of this road, subject to the public easement. We cannot think it was ever really intended, yet, nevertheless, we are disposed to hold that, by the language actually used, the grantors in fact failed to convey any portion of the land forming the bed of the road in question.

The plaintiff alleges that the premises in question formed a part of the southern portion of the Cosine farm and also a part of the bed of the Bloomingdale road at the date of the deed in 1809, and that the premises did not pass to Jacob Harsen and wife by virtue of that deed.

The plaintiff claims, by various mesne conveyances, a certain portion of the title which he alleges was in the widow and heirs of Balm Johnson Cosine at the time of the execution of the deed by them to the Harsens. The respondent, on the other hand, claims title under several conveyances which passed to him all the title which the Harsens took from the widow and heirs, as stated. It is further alleged, on the part of the defendant, that the premises in question did pass by the deed of 1809, and that such premises formed at that time no part of the old Bloomingdale road.

The defendant sets up many other defenses to the claim of the plaintiff, but if the plaintiff has failed to prove that the land in controversy formed a part of the Bloomingdale road, and that, therefore, it did not pass to Jacob Harsen and wife by virtue of the deed to them in 1809, he has, in that event, failed to prove title to the bcus in quo. He maintains that he has made such proof, while it is claimed on the part of the defendant' that he has not

This is the question of fact arising out of the -execution and delivery of the deed of 1809. We think the plaintiff has failed to show that the premises did form a part of the road-bed at the time when the deed was executed.

As the action is one in ejectment, the burden is upon the plaintiff to show that he has title to the premises, and he must recover, if at all, upon the strength of that title and not by reason of any weakness in that of his adversary.

The question whether the premises formed part of the roadbed in 1809 depends upon the width of the road at that time. The western boundary thereof is not disputed, and it always remained fixed and unaltered.

If, in 1809, the road was actually of the width of four rods, then these premises formed part thereof; and if the road, at that time, were only of the width of two rods,they did" not form part of such -road and they passed to the Harsens under the deed to them.

The referee finds as a fact that the road, at the time of the death of the elder Cosine, -was only two rods wide at the point in question. We think there is evidence upon -which to base this finding. He also finds that, upon maps -made in 1820, the road appeared to be of the width of four rods at this point, and that the widening of the road prior to 1820 was exclusively from the eastern side of the road. He does not find when the widening actually took place, nor does he, in 'terms, find what was the width in 1809, and -the evidence is not of such a nature-as to compel a finding that a widening took place prior to 1809. Indeed, the plaintiff claims that the whole matter of any widening of the road is a myth, and that the width was never less than four rods in law, whatever may have been the fact as to the width which was kept in repair and actually used. But if the space really occupied by and uáed as a road in 1809 were but two rods in width, we think that a description in a deed conveying land bounded by the road should, in the absence of some words indicating the contrary, be construed as referring to the actual road as worked, kept in repair and used, and not to an abstract legal line, invisible, unused and practically unknown.

The road was laid out in 1708 (or possibly re-established under the act of that year), a very early period in the history of the laying out of roads under statutory authority in this state. Bradford’s Ed. New York Colony Laws, 1691-1724, page 52. The act provided for laying out the road four rods wide, and commissioners to carry the act into effect were therein appointed. There was not, however, any provision made for the payment of the owners for the land to be "taken-for the highway, -nor was there any provision for a compulsory taking of the land for highway purposes. The land taken for the laying out of the road must, therefore, have been taken by the permission or acquiescence of the owners. While the land was in actual use as a part of the highway it was under the control of the commissioners, but if any part ceased to be used, worked or kept in repair as a road, such non-user in that case might very likely amount to an abandonment of the land not used, and in that event a deed bounding lands by the road would, as has been said, probably be construed to mean the road as actually worked and used.

Although the act of 1703 provided for the laying out of roads four rods wide, such width was unnecessary, and accordingly, in 1751, by chapter 910, an act was passed for keeping in repair the public road through Bloomingdale division,- which included the point in controversy. Laws of New York, 1691 to 1773, Yan Schaack’s edition, page 303.

This act recited that, in pursuance of the act of 1703, a road had been laid out of the breadth of four rods through Bloomingdale district or division, and the inhabitants of the district, who were bur few in number, had been under great hardships, not only by keeping the said road in repair (“ which was double the breadth necessary”) but also by being obliged to work on repairing the post-road between New York and Kings Bridge; therefore, in order to remedy these hardships, it was enacted that a surveyor should be appointed, and such surveyor was then required to view and survey this road or highway, “ and, lay out the same of the breadth of two rods as the same now runs,” and, thereafter, the surveyor was to call out the inhabitants upon due notice and work the road, repairing,, cleaning, amending and making good the same.

This act is not of the limited effect spoken of by plaintiff’s counsel. It gave the right to and made it the duty of the surveyor to lay out the road “ of the breadth of two rods," and under the act the surveyor was bound to so lay it out. It was not a mere permission to thereafter keep the road in repair for a width of two rods only, and under the act the laying out of the road by the surveyor of the width of two rods “as the same now runs” would seemingly operate as an abandonment of the user of the two rods not included in such laying out, and upon such abandonment the right to occupy the land would revert to the abutting owner.

It is true the case contains no evidence of any legal proceedings on the part of the surveyor appointed under the act of 1751, laying out the road of the width of two rods only “ as the same now runs.” The act did not provide any particular procedure for so laying out the road nor for the filing in any public office of the description of the road so to be laid out under the decision of the surveyor. The absence of such evidence is not to be wondered at.

The proceedings taken and the decisions arrived at in those days regarding such matters as these, particularly when no statute commanded it, were not often made matters of record, and, as we are inquiring regarding things which may have happened more than a century and a quarter ago, we need not be surprised at the scantiness of the evidence we are enabled to procure. That it was a hardship to keep this road in repair for a width of four rods is reasonably certain, and is so stated in the act of 1751. It is also there provided that the road shall be laid out by a surveyor, of the breadth of two rods only. It was the official duty of the surveyor to do it. It would have been a criminal neglect on the part of such officer to fail to lay out the road of the width of two rods, as directed in terms by the statute. In such case it will be intended that he performed his duty, unless the contrary be shown. Broom’s Legal Maxims (8th ed.), 949. There is here no evidence which shows non-performance.

I think it entirely justifiable, under such circumstances, to presume that the surveyor, who was a public officer, performed his official duty, and that the provisions of the act were, in fact, carried out, and the road was actually thereafter laid out of the width of two rods only. There would seem to be no dispute as to the western boundary of the road, and if the road were only two rods wide, there is no dispute .that the deed to the Harsens passed the title to this property, because it was in that event no part of the old road. We have no evidence as to the changing of fences at this point subsequent to the act of 1751. But we have no evidence of the existence of any fences before, that time along the road, assuming its width of four rods. There is enough in the evidence to permit the inference which the referee has drawn, that in 1765, at the time of the death of the elder Cosine, the road was only two rods wide.

There is evidence drawn from the, map of the Hopper farm, made in 1782 by Evert Bancker, Jr., city surveyor, that the road at that time and at that point was only two rods in width. The Hopper farm was situated on the south of the Cosine farm. Although the map was for private parties, and was in no wise conclusive against the plaintiff, yet it was evidence of the fact that in 1782 a map was made by the official city surveyor, which included this road, and it was laid down on that map as but two rods wide. This is some evidence of a cotemporary nature as to how the fact appeared to one who was the city surveyor and engaged in making a survey of a farm near the locus m quo, and at a point where the width of the road would probably be the same.

This may be, perhaps, regarded as slight and unsatisfactory evi-" deuce as to the actual width of the road, and we may admit it would be if it were applied to matters of recent occurrence. We must continually bear in mind that we are inquiring as to matters which happened more than a century ago, and we must be content to rest upon such slight evidence as survives those times.

By chapter 61 of the Laws of 1787, the common council of New York were declared commissioners of highways, and, as such, they were authorized to widen or alter, to not exceeding four rods wide, roads or highways laid out in that city or county, and they were authorized in widening or altering a highway to take the necessary land, and to provide payment therefor, but no compensation was to be made to anyone who had encroached on any such highway. The plaintiff’s counsel says there is no evidence, that any compensation was paid the Cosines for land taken for’ widening the Bloomingdale road under this act, and that there never was any such widening. His idea is.that the road had always been four rods in width, and that the act of 1751 simply permitted the inhabitants to keep two instead of four rods in repair. As has been said, we think he erroneously limits the force of the act of 1751, and that, under that act, we may regard the road, in the absence of any evidence to the contrary, as reduced to two rods in width. And it is true that it does not appear at what time any widening was effected of this Bloomingdale road prior to 1820. At that date it does appear that there were maps made by officials of the city in which the road is laid down at this point as of the width of four rods. We think there is no evidence which compels a finding that such alteration had been made prior to 1809, when the deed to the Harsens was executed.

There are certain resolutions of the common council of New York which were put in evidence. In 1793 there was passed a resolution providing for the opening of this road to “its proper and legal width"of four rods." Counsel for plaintiff, however, himself admits that this resolution seems to have been allowed to sleep. In 1799 another resolution was adopted, appointing a committee to see that the abutting owners (without naming them or describing their lands) moved their fences back. The resolution is stated to have been taken upon “ a petition for the opening of the Bloomingdale road to its proper width of four rods.” These resolutions do not show a widening of the road at that time, nor do they prove that in point of fact there had never been any other width than that of four rods and that anything less than that width had been accomplished by encroachment. At most it is proof of a claim advanced on the part of the city that the Bloomingdale road had a width of four rods. The act of 1787 gave the city the right to widen or alter roads in the county of New York to a width of four rods and to take the necessary land and to pay for it. There are no proceedings shown to have been taken under that act for the purpose of widening the road in question. If we may presume the road was laid out of the width of two rods, under the act of 1751, then the burden is on the plaintiff to show some change in its width so that in 1809 it was four instead of two rods wide. This burden is not sustained by him.

The case contains no evidence of any further legislative or municipal action in any way affecting this part of the road until 1847, when certain proceedings were instituted in regard to Broadway.

Thus, as late as in 1799, it would appear that the road was not, in fact and actually, opened and worked to the width of four rods.

The mere resolutions of the common council do not prove the fact that proceedings had been taken to acquire the title to lands which might be necessary for the purpose of widening a road. And if such proof had been given, we do not think it can be assumed, in the absence of evidence, that the committee appointed by the common council to see that the abutting owners moved their fences back performed that duty or exercised that power.

There is a distinction between presuming as to the action of a public officer appointed bv virtue of the provisions of a statute by which it is made his official duty, and he is directed to himself perform a certain act, and a presumption as to the result of a presumed action of a committee oí a common council in carrying out the terms of a resolution empowering them to see that private persons do certain acts. The presumption that he has done his duty, which properly attaches to a public officer in such circumstances, cannot and ought not to be carried to the extent of presuming (without any evidence whatever) that the committee proceeded to attend to the business intrusted' to it by the common council, and that the abutting owners, pursuant to the presumed action of the committee, actually removed' their fences which had, up to that time, encroached upon the public highway.

We cannot, in such case, presume action of which there is not the slightest- evidence. We come, then, to the proposition that there is an utter lack of evidence that this road was, in, 1809, more than two rods wide, in,fact.

If, however, the legal width may have been four rods, if the road was only used, worked and repaired to the width of tw.o rods, and thé other two rods, so far as visible boundaries are concerned, were a portion of the abutting land, we think a description of the land as bounded by the east side of the road should be construed to mean the visiblé road as in actual use, and not the ideal road' of a width of four instead of two rods.

Counsel for plaintiff says that the defendant admitted at the general term that between the death of the elder Cosine in 1765, arid the execution of the deed to the Harsens in 1809, the road had been widened from two to four rods. It would seem the concession was made in the course of an argument to prove that the division of the farm, in 1809, was made with reference to its condition at the time of the death of the owner in 1765. The defendant makes the same statement here. We do not put our decision on that ground. We are more inclined to the view that, in 1809, there is no evidence or finding that the road was then over two rods, in width, and the deed to the Harsens included tlie! locus in quo, because it lay east of the two rods forming the road.

Upon the facts the plaintiff failed to make out a title to the premises, and the judgment for the defendant should, therefore, be affirmed, with costs.

All concur.