text:
    JACOB L. VAN WYCKLEN, Respondent, v. THE CITY OF BROOKLYN, Appellant.

      Boidenee — upon what questions the opinion of an expert is admissible.

    Tois action was brought to recover damages for the diversion of water from the plaintiff’s mill stream, the plaintiff claiming that the defendant, the city of Brooklyn, by sinking a series of driven wells for its water supply near the stream, abstracted the water from the mill stream, and caused it to dry up. Upon the trial one^Lndrews, whose occupation was the making and drilling of wells, and who had constructed the wells in question, was called by the defendant and asked whether it was possible that the wells could take any water out of Spring creek. An objection that the question called for the opinion of the witness was sustained and the question excluded.

      Meld, error; that the question whether the wells diverted water from the stream was one as to which expert testimony was admissible.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered at the Kings County Circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Almet F. Jenhs, for the appellant.

      William O. De Witt, for the respondent,
   Cullen, J.:

This action is brought to recover damages for the diversion of water from the plaintiff’s mill stream, Spring creek. The plaintiff’s claim is that the defendant, by sinking a series of driven wells for its water supply near the stream, abstracted the water from the brook, and caused it to dry up. The law applicable to the case was properly held by the trial justice, and is well settled by authority, that is, if the defendant by its wells diverted the water after it had become part of the stream or water-course, it was liable, but that if the wells merely intercepted the percolating or underground water, then it was not liable. (Village of Delhi v. Youmans, 45 N. Y., 362; Chasemore v. Richards, 1 H. of L., 349.) We think there was evidence tending to show that there was a diversion of water from the running stream. This, if credited, would establish the plaintiff’s cause of action, for the means by which the diversion was made would not affect the question of liability. The motion for a nonsuit was properly denied, and the cause was submitted to the jury under a charge entirely correct, and to which no exception was taken.

But the serious question litigated was whether the wells did abstract water from the living stream. One Andrews, whose occupation was making and drilling wells, and who constructed the wells in question for the defendant, was examined as a witness. He was asked whether it was possible that the wells should take any water out of Spring creek. This was objected to by the plaintiff as opinionative. The objection was sustained, and the defendant excepted. We think this ruling was erroneous. The question whether the wells diverted water from the stream was one as to which expert testimony was admissible. (Moyer v. The N. Y. Central R. R. Co., 98 N. Y., 645; Commonwealth v. Choate, 105 Mass., 456; Buffum v. Harris, 5 R. I., 243.)

The abstraction of the water by the wells was not a fact patent to the senses, though the drying up of the stream was. This may have occurred from several causes. The question, to some degree, involved professional or scientific knowledge. As to such matters the opinions of experts are competent.

The plaintiff, to sustain the objection, insists that the witness was not shown to be competent as an expert. But the objection was not placed on that ground. If it had been, the defendant might have gone further and shown that the witness was qualified, and we are further of opinion that the witness had-already shown sufficient experience to qualify him to give an opinion.

Judgment and order denying new trial should bé reversed, costs to abide event.

Present — Barnard, P. J., and Dykman, J.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    WILLIAM S. JOHNSTON and Others, Respondents, v. HAMILTON WALLIS and Others, as Executors, etc., of ALEXANDER H. WALLIS, Deceased, Appellants.

      Foreign executors — when an action will lie against them, in this Slate to compel the specific performance of a contract.

    The defendants, who had been appointed the executors of one Wallis, in the State of New Jersey, entered into an agreement with the plaintiffs’ assignor to sell to him a judgment recovered in the Supreme Court, county of Dutchess, against the Hudson River Iron Company, and subsequently assigned to the defendants’ testator. The price to he paid for such judgment having, pursuant to the agreement of the parties, been fixed by arbitrators, the plaintiffs upon the refusal of the defendants to assign the judgment, brought this action to compel a specific performance of the contract. The defendants defended the action upon the ground that they were foreign executors and could not he sued as such in this State.

      field, that the contract having been made by themselves and not by their testator, the fact that they were foreign executors constituted no defense to the action.
    Appeal from a judgment in favor of the plaintiffs, entered upon tlie trial of this action at the Dutchess County Special Term.

      Ilomer A. Nelson, for the appellants.
    Thompson, WeeTcs cfi Lown, for the respondents.
   Cullen, J.:

The defendants entered into an agreement with the plaintiffs’ assignor to sell him a judgment recovered in the Supreme Court, county of Dutchess, against the Hudson River Iron Company, and -subsequently assigned to the defendants’ testator. The price to he paid for snch judgment was to be fixed by the award of arbitrators. An award was so made, and the defendants having refused to assign at the price awarded, this action was brought to compel the specific performance of the contract for sale. The court at Special Term decreed a specific performance of the contract, and from such decree this appeal is taken.

The appellants resist the decree on two grounds, first, that they aie foreign executors, and, therefore, cannot be sued as such in tlie cou'rts of this State; second, that the award of the arbitrators did not ’decide the question submitted to them.

The first question is involved in much difficulty. It may be assumed that as a general proposition foreign executors can neither sue nor be sued outside of the jurisdiction to which they were appointed. Eut this case is peculiar in -its facts. The defendants are not sued on account of any liability incurred by their testator, nor for die distribution of any assets that have come in their hands by virtue of their foreign appointment (though in the latter case, under certain circumstances, they might be sued in the courts of a State other than that in which their letters were issued). They are sued on a contract made by themselves as to property, the title to which is vested in them as executors. That the absolute title to the judgment vested in the defendants, even though they were foreign executors is undoubted. (Petersen v. Chemical Bank, 32 N. Y., 21.) Their inability to sue is simply a personal disability. So completely is the title vested in them that an assignee may maintain a suit on a chose in action transferred by foreign executors to him, although the executors may not. So a voluntary payment to foreign executors is a valid discharge of the debt. (Parsons v. Lyman, 20 N. Y., 103.) The liability on which the defendants are sued does not, in any proper sense, arise out of their appointment as executors. Their title to the property arises out of such appointment, but their liability arises out of the contract which .they voluntarily made as to property of which they were the owners. This contract was made in this State, and related to property within this State. I cannot see why, in relation to such contracts, they do not stand, so far as relates to their liability to be sued here, in the same condition as other persons. The question is not raised that the executory contracts of executors will not be specifically enforced, and if raised would seem untenable. The contracts of trustees may be specifically enforced against the trust estate when the contract is fair and its execution would involve no breach of trust. (Hill on Trust., 477 ; Waterman on Specific Perf., par. 164; Mortlock v. Buller, 10 Vesey, 315.) In this case there is nothing -to show that the sale is unfair or disadvantageous to the estate. That an executor iu some cases may bind the trust is settled. (Wood v. Tunnicliff, 74 N. Y., 38; Chouteau v. Suydam, 21 id., 179.) As the executor is the legal owner of the property, and his duty is to sell and convert it, I think his executory contract, if not improvident, will bind the estate.

As to the second objection,,! cannot see any sufficient proof to show that the arbitrators valued any land other than that submitted to them. And if it be assumed to be proved that they valued the land under water, then construing the whole agreement, I think it was the land under water that the parties agreed should be valued.

The judgment appealed from should be affirmed, with costs.

Dykman, J., concurred; Barnard, B. J., not sitting.

Judgment affirmed, with costs.


text:
    JOSEPH KENNEDY, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.
    Libel— when the complaint must allege facts showing special damages.

    The complaint in this action alleged that the plaintiff was the proprietor of a concert hall at Coney Island, and that the defendant had published, of and concerning him, a libelous article, which was set forth in the complaint. The article purported to be a description of various saloons at Coney Island, and ^ their frequenters. There was no mention made of the plaintiff, save that there appeared in the article a cut or picture of the interior of a saloon, with the words beneath “ In Kennedy’s.” Taking the article in the strongest sense it would bear, with the aid of proper innuendoes, it was a charge that the saloons of which it speaks are the resorts of improper characters, and that the influence of the associations there had are bad. It does not charge that the plaintiff conducted his saloon improperly, or that he was responsible for the character of the guests.

      Held, that the article was a libel on the place and not on the plaintiff, and that in the absence of any averment of special damages, the facts stated did not constitute a cause of action.
    Appeal from an interlocutory judgment, entered in Kings county upon an order overruling a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Bosooe Qonlcling, for the appellant.

      David T. Dynch, for the respondent.
   Cullen, J.:

It is settled by authority that a libel on a thing is not actionable unless the owner of the thing alleges and proves that he has sustained pecuniary loss as a necessary or natural consequence of the publication. (Townsend on Libel, par. 204; Tobias v. Harland, 4 Wend., 537.) Though some of the cases seem in conflict with this principle, the conflict is more apparent than real. A libel on a thing may constitute a libel on a person. Thus to say of a brewer that he adulterates his beer, would be a libel upon him in his trade, not because of the allegation that the beer was bad, but because the language would import deceit and malpractice on the part of the brewer. It is, therefore, at times difficult to determine, whether the publication attacks the person or merely the thing, and any apparent conflict in the authorities arises out of this difficulty. There is no dispute as to the principle, the difference is only as to the application of the rule.

In this case there is no allegation of pecuniary loss. The complaint merely alleges that the defendant published of the plaintiff the libelous article set forth. The demurrer admits only the publication and falsity of the charge. Whether' the publication is a libel on the plaintiff must be determined by its examination, and not by the averment of the complaint.

The article complained of purports to be a description of various saloons at Coney Island, and of their frequenters. There is no mention of the plaintiff, save that there appears in the article a cut or picture of the interior of a saloon with the words beneath “ In Kennedy’s.” The complaint is entirely wanting in innuendoes, and its only allegations are that the plaintiff was the proprietor of a concert hall, and that the publication, the whole of which is set forth, was of and concerning him. There is nothing in the cut or picture itself reflecting on any person. Taking the article in the strongest sense which it would bear, with the aid of proper innuendoes, it is a charge that the saloons of which it speaks are the resorts of improper characters, and that the influence of associations had there are bad. It may be also assumed that it charges that the plaintiff’s saloou is one of this character. Granting all this, we think the libel is on the. place and not on the person. There is nothing in the article charging that the plaintiff conducts his saloon improperly, or that he is responsible for the character of the guests. All that is alleged in the article may be true and without fault on the part of plaintiff.

As the complaint avers no special damage, we think that it fails to set forth a good cause of action. The order appealed from should be reversed, and judgment rendered for defendant on demurrer, with costs, with leave to plaintiff to amend on payment of costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order overruling demurrer and judgment thereon reversed and judgment for defendant rendered on demurrer, with leave to plaintiff to amend in twenty days on payment of costs.


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    HOWARD N. BAILEY, Respondent, v. SARAH A. BAILEY, Appellant.

      Evidence — a husband may testify for, but not against, his wife in an action for divorce — Gode of Gtvil Procedure, sec. 8'19.
    In this action, brought by a husband to procure a divorce from his wife on account of her adultery, it appeared that the defendant was and had been for some time a lunatic, her guardian ad litem, interposing the usual general answer. Upon the trial the defendant’s counsel sought, after the plaintiff had testified to the marriage, to prove by him adultery on his part, and also the insanity of the defendant at the time of the commission of the offense alleged on her part. The court excluded the evidence, holding that the plaintiff was not competent to testify to any fact save the marriage.

      Held, error; that section 831 of the Code of Civil Procedure prevented the husband from testifying against the wife, but not from testifying in her favor.
    Appeal from a judgment dissolving the marriage between the parties to this action, entered in Kings county upon the trial of the action by the court without a jury.

      John H. Clayton, for the appellant.

      T. C. Campbell, for the respondent.
   Cullen, J.:

This action is for a divorce on account of the defendant’s adultery. The defendant is and has been for some time a lunatic, and her guardian ad litem interposed the usual general answer. Upon the trial the plaintiff testified to the marriage. The defendant’s counsel then sought to prove by him adultery on his part, and also the insanity of defendant, presumably at the time of the commission of the offense alleged on her part. The court excluded the evidence, holding that the plaintiff was not competent to testify to any fact save the marriage.

In this we think the court erred. Section 831 of the Code of Civil Procedure provides that a husband or wife is not competent to testify against the other upon the trial of an action founded on adultery. This rendered the plaintiff incompetent as a witness against the wife, save as to the marriage, but he still remained a competent witness in her favor.

The witness might have availed himself of his personal privilege and refused to answer the question. as to his adultery, but this he did not do. The court made the broad ruling that the defendant could prove no fact by the testimony of the plaintiff, thus precluding evidence of condonation, or the wife’s insanity, as to which the personal privilege of the witness would not apply.

The judgment should be reversed and a new trial ordered.

Present — Barnard, P. J., and Dyicman, J.

Judgment reversed and new trial granted.


author: Dykman, J.:

text:
    In the Matter of the KINGS COUNTY ELEVATED RAILWAY COMPANY, Appellant, to Acquire Property of MARY DUANE and JOHN O’BRIEN, Respondents.

      Construction and operation of elevated roads in cities —1875, chap. 606 — all corporate rights and franchises are lost by a failure to- construct the road within the time fixed— what delays are unavoidable within the meaning of the statute— 18S1, chapter 518 is unconstitutional.

    In this proceeding, instituted by the Kings county Elevated Railway to acquire tbe right to construct and operate an elevated road over Eulton street in the city of Brooklyn, it appeared that, upon the application of the company, which was organized under chapter 606 of 1875, the mayor of the city of Brooklyn had appointed commissioners to determine upon the necessity of the proposed railroad, and that the said commissioners had made their report and had therein prescribed and located the routes for the railway to be erected by this company, and required that that portion thereof to be constructed from Fulton Ferry along and through Fulton street to Nostrand avenue, with connection with the East river bridge, at or near its terminus, be completed within one year from August 1, 1878. They also provided therein that, “in case the several portions of such railway or railways shall not he completed, each within the time and upon the conditions hereinbefore, and as to such portion provided for, the rights and franchises acquired by such corporation shall be released and forfeited to the supervisors of the county of Kings.”
    An application to the court for the appointment of commissioners of appraisal, was resisted by the property owners upon the ground, among others, that the corporation had lost all its corporate rights and franchises by failing to construct its road within the time prescribed by the report of the commissioners.

      Held, that the loss or forfeiture of the corporate rights and franchises of the corporation might be asserted by the property owners to defeat the application.

      Matter of Brooklyn, W. and N. JRaüway'Company (73 N. Y., 245) followed.
    That as the corporation had omitted to perform its duty and had defaulted in the execution of the condition imposed upon it by the statute and the articles of association, all its rights and franchises were, at the termination of the period of time limited, released, forfeited, surrendered and lost.
    That at the end of the limited time all corporate powers ceased without any action being required on the part of the board of supervisors, or the entry of any judgment of a court.
    The company claimed that the delay had been unavoidable, and that by a saving clause, in the resolution of the mayor’s commission, time unavoidably consumed did not run against it. The saving clause provided that “ the time, if any, unavoidably consumed by the pendency of legal proceedings or by the delay or interference of the public authorities in refusing to give their consent to the use of the streets and avenues, as required in section 4 of chapter 606 of the Laws of 1875, or otherwise, shall not be deemed a part^of any period of time within which the construction and completion of the railway or railways is to be made. ”
    Held, that the saving clause saved and reserved to the company only the time consumed by the delay or interference of the public authorities in any way, either by refusing consent to the use of the streets or otherwise, and also the time unavoidably consumed by the pendency of legal proceedings.
    That the claim of the petitioner that the clause should be construed as though it read “time unavoidably consumed by the pendency of legal proceedings * * * or otherwise,” could not be sustained.
    That the word “ otherwise ” was introduced in a proviso and was intended to attach a condition to the operation of the resolution, and not to render it inoperative or nugatory, as would result from the construction contended for by the petitioner.
    That the company had sustained a loss of its corporate powers which destroyed its right to institute proceedings for the condemnation of private property for public use.

      Chapter 518 of 1881, providing that whenever the consent of the local authorities of any city having the control of any street or highway is required or necessary to the construction or operation of any railroad, in whole or in part, such consent in the city of Brooklyn may, in case the owners of one-lialf in value of the property hounded on the portions of the 'street upon or through which it is proposed to construct a railroad have consented to its construction and operation, be given by the mayor and commissioner of public works, is unconstitutional and void, as attempting to confer upon officers other than those prescribed by the Constitution, the power to give such consent.
    Appeal from an order made at the Kings County Special Term, denying a motion to appoint commissioners to ascertain and appraise the compensation to be made by the Kings County Elevated Railway Company, for the acquisition of the right to construct and operate its road through a portion of Fulton street, in the city of Brooklyn.
    On April 26, 1886, application was - made before Mr. Justice Cullen for the appointment of commissioners to ascertain and appraise the compensation to be made to Mrs. Duane. It was resisted by Mrs. Duane on the following grounds:

      First That the petitioner lacked the consent of the local authorities having charge of the streets of. Brooklyn.

      Second. That the corporate powers and existence of the petitioner had ceased, because of its failure to construct and operate its road within the period limited by the. mayor’s commission which originally appointed it.

      Third. That its original incorporation was defective.
    In the opinion delivered by Mr. Justice Cdllen he says, with reference to the validity of chapter 518 of 1881, which purports to empower the mayor and commissioner of city works to give the consent of the local authorities to' the construction and operation of the road:

      “Ninth. I think the act of 1881 (chap. 518), authorizing the consent of the local authorities to be made by the mayor and commissioner of city works, is unconstitutional and void. The Constitution prescribes what local authorities must consent. They are the local authorities having control of the street or highway. The legislature may, I assume, determine what officers shall control the streets or highways for general purposes, and by changing such general control from one officer or set of. officers to another, effect a change of officers whose consent is necessary. But only in this manner can the legislature act upon the subject. The designation is made by the Constitution and the legislature cannot alter it. In People ex rel. Smith v. Schiellein (95 N. Y., 124) it was held that an act that justices of the peace should be elected at general elections was void, the Constitution having provided that the election should be held at town meeting. It was claimed that, as the legislature could fix any day for town meeting, it also could prescribe any day for the election of the justices. But the court held, even if the legislature could direct town meetings to be held on general election day, it could not authorize the election of justices at such a time unless it changed the time of town meeting to that day. In the act under discussion the legislature has not attempted to confer any new or greater power upon the officers named over the streets, except in respect to giving the constitutional assent. This, without .the authority cited, is unconstitutional, unless these officers have the qualifications required by the Constitution. I think they have not. By the charter (sub. 4, § 13, title 11) the common council is given power to regulate all matters connected with the public streets and all business there.
    “By section 1, title 18, the common council may open, close, extend, widen, regulate, grade and pave streets. In title 14, section 1, is found an enumeration of the powers of the commissioner of city works. It is provided that the commissioner shall have charge and control of the subjects specified, subject to the direction of the common council. By section 2 it is provided that the department thereby created shall have the powers of the old department superseded by it. Except that the exercise of such powers shall be under the direction and control of the common council. The whole effect of the charter of 1873 was to establish the supremacy of the common council over local affairs. The commissioner, save in certain cases of emergency, is only the ministerial officer to carry out its directions. The control of the commissioner is subject to the higher control of the common council. In fact, it is not a control at all; it is the mere exercise as agent of the control of another. Bearing in mind the common council could close the very street upon which the road is to be constructed, I think it cannot be doubted it is the local authority the Constitution contemplates.

      “ There is possibly this further criticism to be made on the act-under discussion, that it is local legislation within the prohibition of the eighteenth section, article 3 of the Constitution. But if I am right in the views expressed, it is unnecessary to discuss this,”

      Jesse Johnson, for the railway company, appellant.

      George W. Wingate, for the respondents.
   Dykman, J.:

This proceeding was inaugurated by the petitioner for the invasion of the easement of Mary Duane and John O’Brien, in Fulton street, in the city of Brooklyn, and for the acquisition of the right to construct and operate an elevated railroad over that street, by the exercise of the right of eminent domain under the Constitution and laws of the State of New York.

The application to the court was for the appointment of commissioners of appraisal and the property owners in their resistance to the petition, among other things, interposed a denial of the vitality of the corporation, and claimed that it. had lost its life by the expiration of its corporate powers and the termination of its corporate rights. The solution of the question thus presented will depend upon the construction to be received by 'certain statutory provisions and the proceedings conducted in pursuance of the same. This corporation was organized under .the. rapid transit act of 1875, chapter 606, Laws of 1875. In- its application to the city of Brooklyn, that law required the mayor of that city to appoint five commissioners, whose duty was to- determine upon the necessity of the proposed railway, and if their decision was favorable, then to fix and determine and locate the route of-the same. They were also to fix and determine the time within which such railway should be constructed and ready for operation, and prepare appropriate articles of association for the company, in which should be embodied the several conditions and requirements determined by them, and which should “ provide for the release and forfeiture to the supervisors of the county of all rights and franchises acquired by such corporation in case such railway or railways shall not be completed within the time and upon the conditions therein provided.” Such commissioners were appointed, and in the legal and appropriate discharge of their duties they prescribed and located the routes for the railways to be erected by this company, and required the portion thereof to be constructed from Fulton Ferry along and through Fulton street to Nosrtand avenue, with connections with the East river bridge, at or near its terminus, to be completed within one year from the 1st day of August, 1878. They also made this article: “ Article IX. In ease the several portions of such railway or railways shall not be completed each within the time and upon the conditions hereinbefore, and as to such portion provided for, the rights and franchises acquired by such corporation shall be released and forfeited to the supervisors of the county o.f Kings.” So that the final result and effect of all these preliminary measures was to provide, at the organization and creation of the corporation, that the road it contemplated and proposed on Fulton street, should be in operation to Nostrand avenue by the 1st day of August, 1879, under the penalty of forfeiture of its franchise, and it is conceded that the road is not even yet completed.

The prevalent rule of law is that the legal existence of a railroad corporation, armed with full power and authority to construct a railroad, lies at the foundation of the right to condemn property for its use under the right of eminent domain. (Matter of Brooklyn, W. and N. R. Co., 72 N. Y., 245.) That requirement necessarily implies the continued existence of such corporation in the full possession of all its corporate powers and franchises without limitation or restriction, and if by non-performance of the conditions of its charter any of its corporate rights are forfeited or lost, the fact may be asserted to defeat an application for the acquisition of property by the exercise of the right of eminent domain. (72 N. Y., supra.)

In the last cited case the language of the statute was, if the road was not placed in operation in ten years “ its corporate existence and powers shall cease,” and the court held that by a failure to comply with that condition the corporation became extinct by the express limitation upon the original grant of corporate power, and that no judicial proceeding or action was necessary to declare a forfeiture of the charter and loss of corporate power.

In the subsequent case of the Brooklyn Steam Transit Company v. The City of Brooklyn (78 N. Y., 524), the language under construction was “all the powers, rights and franchises herein and hereby granted, shall be deemed forfeited and terminated,” and it was held in that case that the intention of the statute was to make the continued existence of the corporation depend upon a compliance with the conditions in its charter, and that in case of failure so to do all the powers and rights granted were to be deemed forfeited. That such non-compliance was not merely a cause of forfeiture to be enforced by judicial proceeding, but was itself to be taken as a forfeiture. Here the language employed is “ the rights and franchises acquired by it shall be released and forfeited to the supervisors of the county of Kings,” and it differs from the phraseology of the condition in the statutes under consideration in the two cases last mentioned, yet it imports a limitation and indicates the legislative intention that a non-compliance with the condition shall absolutely terminate the corporate powers of the company. Even if its corporate existence be not at an end, its powers are so restricted as to create a disability to exercise its functions. All its powers were forfeited tp the supervisors. It had alienated its rights and franchises by a failure to perform the condition upon which the continuance of its existence depended. They had passed from it, and with them departed all its powers of aggressive action. So that if the language employed imports a forfeiture to the supervisors it is equally fatal, for it is a forfeiture still, and entails the same consequences upon the company. It is unnecessary to determine the rights or the extent of the power bestowed on the supervisors, or whether the franchise was released and reverted to them, and they owned the same, for even then the company is resting under disability and cannot wage an aggressive war upon private property or private rights.

Let it he borne in mind steadily that these statutes all execute themselves, as it was distinctly held in the two cases referred to above. When the period of limitation is reached, and the condition remains unperformed, the forfeiture is wrought eo instcmti by operation of the law. Unless the language here was intended to operate as a limitation of power, it has no scope or effect, and if it wns so intended', and is to be allowed such operation, then it falls easily within the doctrine of the two cases cited, and circumscribes the corporate powers of this company. The corporation has omitted its duty and defaulted in the execution of the condition imposed upon it by the statute and the articles of association, and the legislative intention to make the continuation of its existence depend upon the performance of such condition is plainly manifested. At the termination of the period of time limited, its rights and franchises were released and forfeited, surrendered and lost to the supervisors, if you will have it so, but still departed and gone from the company with no trace of power remaining.

To escape the consequences of such conclusion the company advances two arguments: First. That the delay has been unavoidable, and that by a saving clause in the resolution of the mayor’s commission the time unavoidably consumed does not run against it; and, second, that its failure to perform the condition of itself does not terminate its rights, but merely creates a cause of forfeiture which the supervisors alone can enforce, and that until they move the company remains in full possession of all its powers.

This second argument is founded on the well-recognized principle that corporations do not lose their existence ordinarily by a failure to perform any of the duties imposed by their charters, but simply incur the liability of deprivation of their franchises by the judgment of a court in proceedings instituted for that purpose; but we have seen that the legislature here intended an absolute limitation, and not merely a cause of forfeiture, at the end of the limited time all corporate powers are ended, as if that were the time limited in its charter for its corporate existence. (78 N. Y., 530; 72 id., 245.) The same contention was made in both of those cases and was not allowed prevalence, and it can be permitted no force in this case.

The saving clause in the resolution of the commissioners relied upon in the first argument is as follows: “ The time, if any, unavoidably consumed by the pendency of legal proceedings, or by the delay or interference of the public authorities in refusing to give their consent to the use of the streets and avenues as required in section 4 of chapter 606 of the Laws of 1875, or otherwise, shall not be deemed a part of any period of time within which the construction and completion of the railway or railways is to be made. But the time, if any, during which such unavoidable delay shall continue shall be added to each of the periods hereby otherwise limited for the construction and completion of the railway or railways.”

That saving clause saves and reserves to the company the time consumed by the delay or interference of the public authorities in any way, either by refusing consent to the use of the streets or otherwise, and also the time unavoidably consumed by the pend-ency of legal proceedings.

The appeal book contains a stipulation that prior to January, 18S6, no legal proceeding had been instituted against the company in which any order had been procured restraining it from building or operating its road, unless such effect was to be allowed to the proceedings taken by the company to obtain consent from the court instead of the property owners; and that only extended down to September, 1880, and there was no restraint after October, 1879, and no delay was experienced from hostile legal proceedings after that time, and it was not the intention of the legislature to permit the company to extend its time by delays in legal proceedings instituted by itself beyond a reasonable time. The common council gave the requisite consent to the company in June, 1879, and after that date no time was consumed by the delay or interference of that body.

But the counsel for the petition claims a more enlarged signification and operation for the word otherwise, and would have the clause in which it occurs construed as though it read “ time unavoidably consumed by the pendency of legal proceedings * * * or otherwise.” This word otherwise was introduced in a proviso, and was intended to attach a condition to the operation of the resolution, and not to render it inoperative or nugatory; but the construction contended for would introduce so many elements of uncertainty that it woidd excuse all delays from unavoidable failures, and would extend the time for the construction of the road to an indefinite period. It would neutralize the effect of the statute, which requires the commissioners to fix and determine the time within which the road shall be constructed and ready for operation.

Our conclusion is that the petitioner has sustained a loss of its corporate powers, and is resting under a disability and incapacity which destroys its right to institute proceedings for the condemnation of private property for public use.

This result leads to the affirmance of the order appealed from without an examination of the numerous other questions involved in the appeal, but it is proper, and perhaps better, to say that we have examined the act of 1881, chapter 518, which authorizes the consent of the local authorities required by the Constitution to be made and given by the mayor and commissioner of city works, and that we concur in the opinion delivered by the Special Term, that the law contravenes the Constitution, and is void and ineffectual for that reason.

The order should be affirmed, with costs and disbursements.

Barnard, P. J., concurred.

Order affirmed, with costs and disbursements.


author: Barnard, P. J.:

text:
    HORACE T. CASWELL, Appellant, v. ALFRED A. KEMP and Others, Respondents, and THE BIGELOW BLUE STONE COMPANY, Appellant.

      Judgment — . when it may be enforced, as against the heirs-at-law of the debtor, after more than ten yea/rs haw elapsed from the date of its entry.

    In an action brought for the partition of rehl estate belonging to one Alfred Kemp, deceased, a creditor who had recovered judgments against the deceased, which had been docketed within ten years prior to the filing and service of the summons and complaint, was made a party defendant. At the time of the hearing before the referee, appointed by the order usually made in actions of partition, more than ten years had elapsed from the time of the entry of the judgments. The referee refused to find that the judgments were liens upon the premises, as against the heirs-at-law of the deceased, and refused to find that they should be paid out of the proceeds of the sale of the premises.

      Held, error; that as the judgments were liens at the time the action was commenced, and the judgment creditors were made parties, the interests of all must be determined with reference to their rights as they existed at the time of the commencement of the action.
    Appeal by the plaintiff and one defendant from an interlocutory judgment, entered in this action brought to procure a partition of the real estate of Alfred Kemp, deceased.
    The plaintiff in his complaint, under section 1537 of the Code of Civil Procedure, joined as a defendant herein the Bigelow Blue Stone Company, the judgment creditor under certain unsatisfied judgments, recovered against the deceased intestate within ten years prior to the filing and service of the complaint, and docketed in Kings county, and recited that such judgments were liens of this defendant company against the premises in suit. The oldest of these judgments was recovered on the 6th October, 1874. The complaint and lis pendens were filed on the 3d March, 1884. On the 30th October, 1884, the order of reference usual in partition cases was entered by which it was referred to Jackson A. Burr, Jr., Esq., “ to take proof of the rights, shares and interests of the several parties in the real property in suit, and of the several matters set forth in the complaint, and to ascertain and report the rights and interests of the several parties in the premises.”
    The first hearing before the referee was had on the 12th November, 1884, and the plaintiff put in evidence the county clerk’s search and the judgment-rolls under which these judgments were obtained. The counsel for the infant defendant objected to these judgments as immaterial on the sole ground that ten years had elapsed since the recovery of these judgments, and that they were no longer liens against the property. The referee found that all of these judgments are unsatisfied judgments against the ancestor of these co-tenants, appearing of record in Kings county, and that the-defendant, the Bigelow Company, is the owner and judgment creditor of record as to all of them; that up to and after the time of the joinder of issue in this action the period of ten years after the entering of any of said judgments had not expired. He refused to find that the premises were subject to the claims of the defendants, who were judgment creditors under the said judgments, or that they were valid and subsisting claims against the premises, or that, as between the said judgment creditors and the defendants, who were heirs-at-law of the judgment debtor and co-tenants, tljey were valid and subsisting liens against the premises.
    The referee further refused to find that these judgments should be paid out of the proceeds of a sale of the premises. In the report the referee decides “ that these defendant judgment creditors have no interest in or lien upon the premises,” and, as a conclusion of law, “ that said judgments have by lapse of time ceased to be a lien upon the premises.” The appellants having excepted tq the findings and refusals of the referee to find in respect to this allegation of the complaint in reference to these judgments, the matter was submitted to Mr. Justice Cullen at Special Term, where the referee was sustained and the report confirmed.

      Robert Sewell, for the plaintiff, appellant.

      'William A. Wolff for the defendant, appellant.

      William B. Hurd, Jr., for the respondents.
   Barnard, P. J.:

By section 282 of the old Code judgments ceased to be a lien upon lands of the debtor at the expiration of ten years from the date of docketing in the county where the lands were situated. The Revised Statutes (part 3, chap. 6, tit. 4, art. 1, §§ 4, 5) were superseded by this section of the old Code. (Evans v. Hill, 18 Hun, 464.)

> These provisions of the Revised Statutes determined that a judgment should bind and be a charge upon the lands of the debtor, and that “from and after ten years from the time of the docketing * * * it shall cease to bind or be a charge * * * as against purchasers in good faith,” etc.

Section 282 of the Code determined the same thing and is clearly intended as a substitute for the former, and the language of the Code making the judgment a lien for ten years and omitting the provisions of the Revised Statutes above mentioned, which limited the lien to ten years in respect to purchasers in good faith and subsequent incumbrancers, discloses an intention to make a judgment a lien upon lands for ten years and no longer. But although the lien ceases it does not follow that the creditor is deprived of the right to sell his debtors’ real estate at any time while it is in his legal possession. (Beard v. Sinnott, 35 N. Y. Supr., 51.) And in this action the judgments were liens at the time the suit was commenced, and the judgment creditors were made parties and the interests of all must be determined with reference to their rights as they existed at the commencement of the action. All the parties interested in the property were before the- court and the action was for the purpose of setting apart to each party his share or interest, and it was proper that the judgment creditors should enforce their claims in this action and not resort to other remedies, and it was not •necessary that they should in order to save their rights. Their liens were preserved although the action was continued beyond the ten-year limit. Any proceedings taken upon their judgments after the commencement of the action would have been taken subject to whatever judgment was rendered herein.

Interlocutory judgment modified so as to declare the judgments claims and entitled to payment according to their priority out of the proceeds of sale after the payment of the expenses of suit and the dower interest.

Dykman, J., concurred; Cullen, J., not sitting.

Part of decree appealed from reversed, and decree modified in accordance with opinion. Order to be settled by Justice Barnard.


text:
    THOMAS P. GOURLAY and WILLIAM J. KAY, as Executors, etc., of THOMAS C. GOURLAY, Deceased, Appellants, v. ELIZA HAMILTON and Others, Respondents.

      Evidence — when a party is not interested in the event of the action within the meaning of section 829 of the Code of Civil Procedure.
    This action was brought to foreclose a mortgage, given by the defendant Hamilton to the plaintiffs’ testator, against the said Hamilton who held the fee of the land, and one Cook who was in possession of a portion of the premises as her tenant. Upon the trial Cook was called by the defendant Hamilton, and allowed, against the plaintiffs’ objection and exception, to testify as to personal transactions and communications occurring between himself and the plaintiffs’ testator. The objection was based upon the claim that Cook was interested in the event of the action, proof having been given tending to show that he had caused the title to be taken in the name of the defendant Hamilton to prevent his wife from acquiring any rights in the land. Cook had left the premises before the trial.

      Held, that the testimony was properly admitted as he had, at the time of the trial, no such direct legal interest in the event of the action as is required by section 829 of the Code of Civil Procedure to render his testimony incompetent.
    Appeal from a judgment in favor of the defendant, entered in Westchester county upon the trial of this action by the court without a jury.
    The action was brought by the plaintiffs, as executors of Thomas O. Gourlay, deceased, to foreclose a mortgage given by the defendant Eliza Hamilton to the plaintiff’s testator.

      William EL. Blain, for the appellants.

      William. McKean Marline, for the respondents.
   Barnard, P. J.:

The witness Cook, although a defendant, had no interest in the event of the action, and he did not testify in favor of a co-defendant who derived a title through him. The action was brought to foreclose a mortgage given by the defendant Hamilton to the plaintiff’s testator, and Mrs. Hamilton held the fee of the land. Cook was her tenant in possession of a portion of the premises, and proof was given tending to show that Cook had said that he had caused the title to be taken in the name of Mrs. Hamilton, but that it was done to escape the rights of his wife, which would have been created therein if the deed were taken to himself. The defendant Cook had left the occupation of the premises before the trial. Cook’s interest must be made out either because he was a tenant defending his own premises or that he was the equitable owner of the property.

I do not deem either position sound. Cook had left the premises at the time he was offered as a witness, and interest, in the sense conveyed by section 829 of the Code, means a direct legal interest in the judgment at the time he is sworn. This he had not at the time of the trial. When a person takes a title to evade responsibility in any way in the name of another, that other owns the title absolutely by statute if his interest is not evidenced by writing. No such writing is proved, and the presumption is in favor of the competency without proof of that fact. As the evidence stands, if credited, Cook has taken a title in Mrs. Hamilton in the expectation, without the power of enforcement, legally or equitably, that Mrs. Hamilton will hold the title for him and give it up to him when required. Such a condition of the situation would affect Cook’s credibility, but would not amount to a legal interest. The judgment in favor of or against Mrs. Hamilton would not strengthen his right as against Mrs. Hamilton. A judgment against Mrs. Hamilton would render it impossible for her to give up the title to Cook if she wished to do so.

With the objection to the testimony of Cook sustained, the case is fully made out without his testimony. The witness Cohn and his clerk, Howes, both testify to the usury by the admission of tlie deceased testator, and while this testimony is affected by the fact that Cohn lias a similar defense to a foreclosure action, as against the plaintiffs, they both seem to be truthful witnesses. The most conclusive evidence is that of the witness Gildersleeve. He testifies that he went with the deceased to get Mrs. Hamilton to sign an affidavit that the mortgage was for $1,500 with a view of a sale of the mortgage. Mrs. Hamilton refused because she had received less than $1,300 for the $1,500. Gourlay then told this broker that her claim was true, he had received a certain amount of money, what she claimed, two hundred dollars and some odd dollars.”

The judgment should, therefore, be affirmed, with costs.

Cullen, J., concurred ; Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANTHONIUS C. SLUITER, Appellant, v. HOLSTEINFRIESIAN ASSOCIATION OF AMERICA, Respondent. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANTHONIUS C. SLUITER and NICOLAAS F. SLUITER, Appellant, v. SAME, Respondent.

      Right to become a member of a jyrmate corporation — the right so to do may be left to the incorporation to decide — 1885, chap. 333.
    Chapter 333 of 1885 incorporated certain persons therein named, “ and all other persons at any time hereafter duly associated, as provided by the by-laws, with or succeeding them, for the purpose of improving the breed of Holstein-Friesian cattle, ascertaining, preserving and disseminating, as provided by its by-laws, all useful information and facts as to their pedigrees and desirable qualities and the distinguishing characteristics of the best specimens, and preparing, publishing and supplying all necessary volumes of the Holstein-Friesian Herd Book; and generally for promoting and securing the best interests of the importers, breeders and owners of said cattle, and thereby the public generally.’’
    The relator, an importer of Holstein-Friesian cattle, resided in Brooklyn and had declared his intention to become a citizen of the United States. Upon an affidavit alleging that the respondent corporation kept a herd book in which Holstein-Friesian cattle were registered, and that it had refused to admit the relator to membership, or to register Ms cattle, he applied for a writ of mandamus to compel the respondent to admit the relator to membership and to inspect and register his cattle.

      Held, that his application was properly denied; that no public obligation was imposed upon the corporation by the act; that the right to share in the advantages of the corporation was limited to the persons therein named, and those who might become associated with them according to the by-laws of the company, the choice of associates being left to the incorporators.
    Appeals from orders made at Special Term, denying applications for writs of mandamus

      jB. F. Tracy, for the appellant.

      Framh Hiscoclc, for the respondent.
   Cullen, J.:

These are appeals from orders of the Special Term denying two several applications for writs of mandamus. The relator is a resident of Brooklyn, and has declared his intention to become a citizen of the United States. He is an importer of Holstein-Friesian cattle. The respondent is a corporation, incorporated by chapter 333, Laws of 1885 of this State. The first application is to admit the relator to membership in the corporation; the second, to compel the corporation to inspect and register the relator’s cattle.

By the act referred to, certain named persons and all other persons hereafter duly associated, as provided by the by-laws, with or succeeding them ” are constituted a corporation, “ for the purpose of improving the breed of Holstein-Friesian cattle; ascertaining, preserving and disseminating, as provided by its by-laws, all useful information and facts as to their pedigrees, desirable qualities, and the distinguishing characteristics of the best specimens, and preparing, publishing, and supplying all necessary volumes of the HolsteinFriesian Herd Book, and generally for promoting and securing the best interests of the importers, breeders and owners of said cattle, and thereby the public generally.”

The affidavits of the relator show that respondent keeps a herd book in which Holstein-Friesian cattle are registered ; that it has refused to admit the relator to membership or register his cattle; that by not being registered by respondent, the value of his cattle will be diminished one-half.

The right of the relator to relief depends on the question whether the respondent is a private corporation or a quasi public one. The mere fact that the respondent is a corporation organized for certain business purposes, gives no right to the public or any member of it, to share in the advantage or convenience of the business. In Weismer v. Village of Douglas (64 N. Y., 91), the corporation was organized to improve a water privilege on the Delaware river, and to manufacture lumber, and the defendant was authorized to issue bonds in its aid. It was held that the business of the corporation was wholly private, that it might refuse to manufacture lumber for any person, and that hence the authority of the town to issue bonds in its aid, was invalid. In the Matter of the Deansville Cemetery Association (66 N. Y., 569), it was held that an incorporated rural cemetery could not be empowered to condemn land, that the use was wholly a private one, and that the whole effect of the incorporation of these associations was to unite private individuals in securing their private interests. In the Matter of the New York, Lackawana and Western Railroad Company (99 N. Y., 12), the Court of Appeals say of a steamboat company organized under the general law that, under it, it might remain a private corporation, and that if it assumed any obligations to the public, it was because of its own act it became a common carrier, not by any duty imposed on it by its incorporation. Therefore, unless the respondent is a quasi public corporation, like a railroad or telegraph company, these appeals must fail. .

I find nothing in the language of the act incorporating the respondent, nor in the powers granted it, tending to show an intention to impose upon it public obligations. The right to share in the advantages of the corporation is limited to the named persons, and those who might become associated with them according to the by-laws of the company. Thus the choice of associates is left to the incorporators.

At the end of the enumeration of the objects of the association is found the expression “ thereby to promote the interests of the public generally.” This does not tend to show an intention to admit the public at large to the corporation. The intention was to benefit the public by the success of the private corporation. It could not have been intended that membership of the association should have been open to the public as a matter of right. There is no qualification of membership prescribed by the statute, no machinery for admission to membership provided. Mere numbers might render the corporation so unwieldy as to prevent its successful operation.

The respondent obtained from the act of the legislature not a single power or franchise, save the franchise to be a corporation. Everything the corporation is empowered to do, the corporators, as individuals, might have done without the act of the legislature. If there be value in registry in the respondents’ herd book, it comes not from the law, but from the intrinsic merits of the book. Keeping a registry of cattle is purely a private undertaking. The statute provides for no general registration of cattle, nor does it give advantages to registered cattle. The respondent has no monopoly of registration. We cannot see that it stands in any different position from a bank or insurance company. It may do business with whom it will.

The orders appealed from should be affirmed, with costs.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Orders affirmed, with costs and disbursements.


author: Barnard, P. J.;

text:
    MARIE A. THIEME, Appellant, v. JAMES F. GILLEN, Respondent.
    vNegligence— liability of a contractor few digging a trench in a street in which to lay water pipes — he is not required to malee a crossing where the city has not made one.

    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court at the Kings County Circuit.
    The action was brought to recover damages for injuries sustained by the plaintiff in falling into a trench dug in one of the streets of the city of Brooklyn.
    The court at General Term said: “The defendant was a contractor, under the city of Brooklyn, to dig a trench in Bedford avenue and to set water pipes therein. The city was to furnish the pipes. Under this contract the defendant had opened a trench in the avenue about four feet deep, and from one to two feet in width in front of Newton street. This street did not cross the avenue but terminated in it. There was no crossing there. The mode of doing the work was to tunnel under the crossings and leave them free for passage by persons traveling on foot across the avenue. There being no crossing at the junction of Newton street with the avenue, the trench was continued without this tunneling. There were crossings within one or two hundred feet of this junction of Newton street and the avenue. On the 11th of May, 1884, in the forenoon, the plaintiff, being on the avenue opposite the mouth of Newton street, attempted to cross this trench, and although there is some confusion as to the manner of the injury, she did step into the excavation and was hurt.
    “ The clause in the contract which required the defendant to put the earth from the excavation all on one side of the trench was not a measure of safety. It was only called for for convenience of delivering the pipes into the excavation. The clause requiring the excavation to be shored when it became necessary for the public safety has no relevancy. The trench was firm and did not occasion the injury. There was dirt on each side of the excavation about two feet on one side and one on the other. The plaintiff says, on her examination before trial, that she stepp ed on the large pile of dirt and it slipped with her into the ditch. Upon the trial she says that she stepped from the large pile to the smaller one (over the trench), and that the small pile crumbled and let her into the trench.
    “ In neither view was the accident occasioned by the defendant’s negligence. lie was not required to make a crossing where the city made none, and while the plaintiff had the right to use the street anywhere, her right was subject to the right of the city to lay water pipes in the streets. There is no question made that the obstruction was continued beyond the time needed to do the work, and crossings were made so near the place where the plaintiff attempted to pass, without one, that the absence of a place to cross at the point in question would not be sufficient to support a verdict.”
    The judgment should, therefore, be affirmed, with costs.

      Stephen B. Jacobs, for the appellant.

      J. Stewart Boss, for the respondent.
   Opinion by

Barnard, P. J.;

Dtkman, J., concurred; Cullen, J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    FRANCIS B. WALLACE and JOHN F. PHILLIPS, Respondents, v. ROBERT H. BERDELL, Appellant. MARGARET C. WALLACE, as Executrix, etc., Respondent, v. ROBERT H. BERDELL, CHARLES P. BERDELL and LIZZIE A. BERDELL, Appellants, Impleaded, etc.

      Restitution of property sold under a judgment rem’sed on appeal — Code of Civil Procedure, sec. 1292 — what relief a court of equity will afford to a party required to malee such restitution.

    Appeal from an order of this court, made at the Dutchess Special Term and entered in Orange county, directing the county clerk of Orange county to cancel the satisfaction of the judgment against the defendant in the action number one first above entitled, and to remove from the files and deliver to James W. Hoyt, late sheriff of Orange county, an attachment against the property of the defendant issued in the same action, and an execution issued on the same judgment, and also directing Hoyt to cancel certain portions of his returns upon these papers and to proceed to their enforcement.
    The plaintiff in action number one brought a suit against the defendant Berdell, to recover a money demand on contract, and in that action an attachment to James W. Hoyt, then sheriff of Orange county, was issued against the property of Berdell as an absconding and fraudulent debtor. The sheriff seized certain property, real and personal, under the attachment, and subsequently the plaintiff, having recovered a judgment in the action, issued an execution thereon and delivered the same to the sheriff holding the attachment. Under the execution so issued and delivered he sold all the property he had seized under the attachment.
    Subsequently the plaintiff commenced action, number two, in aid of the attachment, judgment and execution to set aside certain conveyances and a judgment in favor of one of the defendants. The trial of that action eventuated in a judgment in favor of the plaintiff, directing a sale of so much of the property seized by the sheriff as would satisfy the amount remaining due on the judgment in action number one, the costs in action number two and the sheriff’s fees. Such a sale was made, and at it the plaintiff in the action number one and another creditor of Berdell, for the benefit of themselves and others similarly situated, bought lands at a price sufficient to satisfy the requirements of the judgment in action number two, and the execution in action number one, and the attorneys executed receipts to the sheriff for the amount so bid. A deed was executed and delivered for the lands so purchased, and they passed into the possession of the grantees. The judgment in action number two was subsequently reversed by the Court of Appeals, and restitution of the property sold was ordered and made, and a new trial was also directed. After the sale the sheriff filed the attachment and execution issued in action number one, with the receipts of the attorneys, and made a return of full satisfaction of the judgment.

      The court at General Term said: “ The facts recited furnish an entire justification of the order granted, which restores the parties to the position they occupied at the commencement of action number two, in aid of the attachment, and simply vacates and nullifies the papers made on the erroneous assumption of the validity of the judgment in action number two, and the effectual character of the sale of the real property under the judgment in that action. The plaintiff was forced to yield up and restore the pi-operty, which produced the nominal satisfaction of the records; and now equity and justice require that his judgment and execution should be restored also. (Adams v. Smith, 5 Cow., 280; Pyper v. Elwood, 4 Denio, 165; Harris v. Palmer, 5 Barb., 105.)
    “ It was the object of this order to relieve the purchaser from an improvident bargain, and no court would undertake to administer such relief. There is no warranty of title at any judicial sale, and • purchasers buy and pay their money at them at their own peril. But in this case the property received was handed back and restored; and if now the courts ref.use to restore the judgment and execution also, then the defendant Berdell will be permitted, in effect, to pay the judgment against him with the property, and then receive it back and retain it also.”
    The order should be affirmed, with ten dollars costs and disbursements.

      Taylor <& Parker, for the appellants.

      Paeon <& Merritt, for the respondents.
   Opinion by

Dykman, J.;

Cullen, J., concurred; Barnard, P. J., not sitting.

Orders in these cases affirmed, with costs and disbursements.


author: Dtkman, J.;

text:
    EDWIN PLATT, Executor, etc., of MARY U. WORRALL, Deceased, Respondent, v. JOHN GRUBB and BENJAMIN J. HALL, as Executors, etc., of ISAAC WORRALL, Deceased, Appellants.

      Deposit m a savings bank of money of a husband, in the name of the husband and wife — right of the survivor to the fund.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the Dutchess Special Term by the court without a jury.
    Isaac Worrall was the husband of Mary U. Worrall, and both are now dead. The plaintiff is the executor of the wife, and the defendants are the executors of the husband. During the lifetime of both, on the 5th day of July, 1882, the husband made a deposit of $1,500 of his own money in the Mechanics’ Savings Bank, at Eishkill Landing, in the joint names of himself and his wife. It is found as a fact, by the judge before whom the cause was tried without a jmy, that the money was so deposited because it was desired and intended that either might draw the whole or any part thereof during their joint lives, and on the death of either the survivor should be the owner, and have the whole amount then remaining on deposit, with whatever interest might have accumulated thereon. After the death of the husband the defendants, as his executors, obtained possession of the bank-book and drew a small portion of the money, and refuse now to deliver either to the plaintiff. The bank-book and the money were included in the inventory of the husband’s estate, with the assent of the wife, who survived him. The trial judge decided that the money belonged to the husband; that it was deposited in the names of both and went to the survivor; that, in ignorance of her rights, she said it was the money of her husband, and that she had no interest in it, but as the parties had not acted upon this assertion it did not amount to an estoppel.
    The court at General Term said: “ By reason of the unity of husband and wife in the view of the law, an obligation taken in the name of both enures to the benefit of both, and the whole goes to the survivor. This old rule of law is still prevalent in this State (Bertles v. Nunan, 92 N. Y., 151), and is in favor of the plaintiff here.
    “ In the case of Mulcahey v. The Emigrant Industrial Savings Bank (89 N. Y., 135), the plaintiff and her nephew opened a deposit account with the defendant, and the book was issued to the plaintiff or O’Keef, and it was held that the bank was authorized to pay on the separate order of each, and that such right was not terminated by the death of either. This case falls easily under the control of the principles enumerated in the case of Sanford v. Sanford (15 N. Y., 726, and 58 id., 72). That case, as last reported, is conclusive both on the question of the right of the wife and her waiver thereof.”
    We conclude, also, that the discretion of the court was properly exercised on the question of costs, and that the judgment should be affirmed, with costs.

      Edward Grummey, for the appellants.

      Haokett <& Williams, for the respondent.
   Opinion by

Dtkman, J.;

Cullen, J., concurred; Barnard, P. J. not sitting.

Judgment affirmed, with costs.


author: Cullen, .1.

text:
    MARY P. GRIFFIN, Appellant, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Respondent.

      Liability of a railroad company selling a ticket oner roads extending beyond its terminus— when liable for the failure of the connecting carrier to transport the passenger.

    Appeal from a judgment dismissing the complaint, entered upon the trial of this action at the Kings County Circuit.
    The plaintiff, at Redwood, on the defendant’s railroad, purchased from the ticket agent a through ticket to New York. The defendant’s roacj ran to Utica. From that place to New York the route of plaintiff’s journey wás over the New York Central Railroad. By the neglect of the ticket agent, the Central Railroad coupon omitted to name the place to which the passenger was to be carried from Utica. The plaintiff was carried to Utica, where the depot was used in common by both railroads. At that place the plaintiff sought exit from the depot to the tracks where was the train of the Central Railroad. The doorman refused her exit, and after some altercation she was compelled to buy a new ticket from Utica to New York. This suit was brought for damages for failure to transport the plaintiff to the Central Railroad cars. At the close of the plaintiff’s case, the defendant moved for a nonsuit on two grounds: First. That the ticket agent at Redwood was the agent of the Central Railroad, as far as regards the sale of the ticket. Second. That the evidence showed that plaintiff was excluded from the train by the agents of the Central Railroad, not those of the defendant. The motion was granted.
    The court at General Term said: ccWe think this disposition of the case erroneous. The ticket agent was the agent of the defendant. The ticket he sold purports on its face to be issued by the defendant on account of the New York Central Railroad Company. The conductor on the train passed the plaintiff on this ticket to Utica. This was recognition of authority in the ticket agent to sell such a ticket. The plaintiff’s evidence tended to show that the station officers, who prevented her access to the Central train were the officials of the defendant. This may not have been the case, and further evidence for defendant might have proved beyond question that they were the agents of the Central company. But this fact did not so appear at this stage of the case. Further, the plaintiff’s difficulty, it appeared, was caused by the neglect of defendant’s ticket agent to properly stamp the ticket. For the result of this negligence the defendant was liable. Whether defendant is liable for more than the cost of the new ticket to New York, it is not necessary to determine. It was liable at least for that damage.
    “ The judgment should be reversed, and a new trial ordered, costs to abide event.”

      Sidney J. Covjen, for the appellant.
    • Arthur M. Beardsley, for the respondent.
   Opinion by

Cullen, .1.

Present — Barnard, P. J., Dykman and Cullen, JJ.

Judgment reversed and new trial granted, costs to abide event.


text:
    DENNIS BUCKLEY, Jr., by DENNIS BUCKLEY, his Guardian Ad Litem, Respondent, v. THE GUTTA PERCHA AND RUBBER MANUFACTURING COMPANY, Appellant.

      Master and servant — liability of a master employing a child to work at a dangerous machine, without fully instructing him. as to the dangers of the employment.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The court at General Term said: tc The rule which governs this case is, that a master is bound to advise the servant of any risks to which he is subject by the working of a dangerous machine. In respect to inexperienced children, the duty would go so far as to warn the servant of risks which the intelligence of the child would prevent his comprehending or fully understanding. A person of mature years who accepts an employment in and about the management of a dangerous machine assumes the risks of the employment, and so does a minor who is fully instructed or fully understands the dangers of the employment.
    “ It is a wrongful act of the master, when an employee of the master, who is entrusted with the management of a machine, puts a boy without experience at work at a business and upon a machine which a man of ordinary sagacity would know to be perilous. (Union Pacific Railway Go. v. Fort, 17 Wall. U. S., 553; 21 U. S. R. [William’s Reprint], 739.)
    “ Under this rule the action is fully made out. The plaintiff was, at the time of the injury, between twelve and thirteen years of age. He was employed by the defendant on the 8th of July, 1882, and set to work carrying rubber to be used in the manufacture of rubber cloth. A piece of linen cloth is the basis. This is run through a machine of great power, and rubber is compressed upon it, which, by repeated operation through the machine, is made of the required thickness. The roll from the machine is wound upon a shell, and when this shell is loaded it is removed from the front to the rear of the machine and the empty shell is put in its place in front, and the process repeated. The plaintiff worked Saturday, July eighth, at carrying rubber — an entirely safe occupation. He continued at this during Monday and up to Tuesday at 11 a. m. O’Rourke, the defendant’s manager of the machine, then told him to “ stand at the calendar and to load on the shell.” “ When I go around on the back of the calendar I will throw the empty shell underneath; you pick it up and put it in its place underneath the calendar.”
    “ The empty shell was heavy for a boy, but he did get it in its place, but as he tried to fasten the seam, covered with oil, his £ hand slipped and got in the cog-wheels.’
    “ This was the first experiment of the boy at putting on this empty shell alone. He had never seen it done over two or three times before, and the accident happened within twenty minutes after he was set at work at loading the shell. Under this proof the jury could find that the occupation was dangerous; that the boy was not employed to follow it; that he was ignorant of the dangers, and was not instructed in respect thereto, and that he was injured by the neglect of the master, and that he was free from fault.

      “ The judgment should, therefore, be affirmed, with costs.”

      Jesse Johnson, for the appellant.

      James Troy, for the respondent.
   Opinion by

Barnard, P. J.;

Cullen, J., concurred; Dykman, J., dissented.

Judgment and order denying new trial affirmed, with costs.


author: Landon, J.: Parker, J.:

text:
    In the Matter of the Estate of ROGER D. WING, Deceased. WILLIAM H. WING, as Administrator, etc., Appellant, v. CHARLES H. BULL, Respondent.

      Practice — proceedings to recover the possession of property belonging to a deceased person — Uode of Oivil Procedure, see. 2703 — when the surrogate may dismiss the proceedings, although the answer is not in the form prescribed by section 2710 of the said Code.

    In obedience to a citation issued by a surrogate upon the petition of an administrator, alleging that tbe respondent had in his possession property, bonds and notes which belonged to the deceased, and which he ought but refused to deliver to the administrator, the respondent appeared and answered. His answer recited that the property in question was placed in his hands by the deceased under an agreement between the deceased and the respondent, that the latter should hold the same as security for such advances as respondent should make to the deceased; that the respondent at the same time agreed to make and did make such advances; that the deceased never repaid him, and that the respondent, as by the agreement it was provided he might, disposed of the property in the lifetime of the deceased, and applied the whole of the proceeds to his reimbursement, and that he had none of the property in his possession.

      Reid, that it was proper for the surrogate to dismiss the proceedings. (Parker, J., dissenting.)
    Appeal from an order made by the .surrogate of Washington county, dismissing proceedings requiring the respondent Charles H. Bull to be examined as to certain assets of Roger D. Wing, deceased.

      Theo. N. Melvin, for the petitioner, appellant.

      Hughes <& Northu/p, for the respondent.
   Landon, J.:

The administrator presented his petition to the surrogate under section 2706, Code Civil Procedure. The petition recited that the respondent had in his possession certain bonds and notes, which were of the property of the deceased, which he ought to deliver to the administrator but refused to do. The respondent appeared in obedience to the citation issued by the surrogate and answered. Section 2710 provides that if the person cited shall answer “that he is the owner.of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed.” The respondent did not answer in this form, but his answer recited that the property in question was placed in his hands by the said Roger D. Wing, deceased, under an agreement between said Wing and himself; that deponent should hold the same as security for such advances as deponent should make to him ; that the deponent at the same time agreed to make such advances; that he did make them, that Wing never repaid him; that deponent, as by the agreement it was provided he might, disposed of the property in the lifetime of Wing, and applied’the whole of the proceeds to his reimbursement, and that he has none of the property in his possession. The surrogate thereupon dismissed the proceeding. If the respondent’s right to such dismissal rested solely upon the statute, the appellant’s objection that he did not, by his answer, conform to its requirements, would have great force. But the amendment to section 2710, Code Civil Procedure, made in 1881, is obviously an attempt to codify, so far as they could be foreseen, the conditions under which a party, who denies or avoids the claim of right and title in the administrator, may assert his constitutional right to a trial by jury. This court, In the Matter of Beebe (20 Hun 462), affirmed that right in a proceeding similar to this, instituted under chapter 394, Laws of 1870, the provisions of which act are embodied with some modifications in the Code Civil Procedure.

Mr. Throop, in his note to section 2712, remarks that “ care has been taken to confine the decree to a determination of the possession.”

In Matter of Curry (25 Hun, 321), the party proceeded against by the administrator did not answer at all, but objected to the jurisdiction of the surrogate. The General Term held that the surrogate had the right to determine the mere question of possession, and that the statute went no further. The court said that it did not mean to suggest any doubt of the soundness of the case in 20 Hun. The adjudications, therefore, are to the effect that the surrogate has jurisdiction to determine the question of possession, but not the question of title. If the respondent had the possession, and claimed no right to withhold it from the administrator, a mere depositary without lien, the surrogate ought to have jurisdiction to compel its surrender. But here he asserts that he had possession with the right of disposition, which right he exercised. If the surrogate can only determine the respondent’s possession, and thereupon may make a decree for the surrender of the property to the administrator, in case no sufficient right to withhold the possession is asserted by the respondent, it is manifest that under the answer here interposed the surrogate has not jurisdiction of the issues necessary to be decided in order to decide whether the respondent should surrender the property. Possibly it might be shown that the respondent had present possession, but there would remain to be ascertained whether he had the lien; if so, then the amount of his advances, and then upon what terms he should surrender the property.

The order should be affirmed, with costs and disbursements.

Bocees, P. J., concurred in result.

Parker, J.:

I dissent. It is conceded that the respondent did not answer in the form provided by section 2710 of the Code of Civil Procedure. Therefore, the surrogate was not ousted of jurisdiction by virtue of the provisions of that section. There is no other section of the Code or statutory provision applicable to the answer in question. The surrogate, therefore, was bound to permit the examination to go on.

If the testimony elicited should have demonstrated that the title of the property was involved, he would not have had jurisdiction to make a decree affecting it, but until that fact was shown by evidence he had jurisdiction to proceed with the examination. The error of the surrogate consisted in treating the answer as true, or as if it was proof of those matters which were therein alleged to be facts. líe liad no power to treat it as true, and for tlie purposes of that proceeding it furnished no proof, nor was it evidence for any purpose.

The order should be reversed, with ten dollars costs and printing disbursements.

Order affirmed, with ten dollars costs and printing disbursements.


author: Bocees, P. «I.:

text:
    WILLIAM H. DICK, Appellant, v. HENRY W. LIVINGSTON, Respondent.

      Interlocutory judgment on demurrer — the intention to review it must be stated in the notice of appeal from the final judgment — Code of Civil Procedure, secs. 1301,1316.
    The Special Term decided that the defendant in this action was entitled to judgment upon a demurrer interposed by him to the complaint, with costs, with liberty to the plaintiff to amend on payment of costs, and directed that au interlocutory judgment should be entered in accordance with such decision. The defendant taxed his costs and entered the interlocutory judgment, and thereafter, upon the failure of the plaintiff to amend within the time prescribed in the interlocutory judgment, he entered a final judgment.
    The plaintiff appealed to the General Term from the final judgment, without stating his intention to review the interlocutory judgment:

      Held, that by failing to state in his notice of appeal his intention to review the interlocutory judgment the appellant was, by sections 1301 and 1316 of the Code of Civil Procedure, precluded from reviewing the same.

      Patterson v. McCann (38 Hun, 531); Beese v. Bmyth (95 N. Y., 645) followed.

      It seems, that a motion to amend the notice of appeal by inserting therein an intention to bring up the interlocutory judgment for review could not fee granted.
    Appeal from a final judgment sustaining a demurrer to tlie complaint, entered upon an interlocutory judgment theretofore entered upon a decision made at the Ulster Special Term and entered in Columbia county.

      Beale & Beale, for the appellant.

      R. E. Andrews, for the respondent.
   Bocees, P. «I.:

Appeal from a final judgment in favor of the defendant on demurrer to the complaint.

The point is taken that the appellant cannot be heard on the merits, for the reason that the notice of appeal does not state an intention to review the interlocutory judgment in pursuance of which the final judgment appealed from was entered. (See Code of Civil Pro., § 1301.) This point of objection necessitates a recital of the several steps taken in the case'to final judgment and to the appeal therefrom.

The issue of law raised by the demurrer was disposed of at Special Term by a decision declaring the defendant entitled to judgment on the demurrer, with costs, with liberty, however, to the plaintiff to amend the complaint on payment of costs, and directing the entry of an interlocutoy judgment in accordance with such decision. The defendant thereupon procured his costs to be adjusted and entered an interlocutory judgment as authorized by such decision, and the terms, upon which an amendment was permitted, not having been complied with in due time and manner, as provided in the interlocutory judgment, he then entered final judgment dismissing the complaint, with costs. Thereupon the plaintiff appealed to the General Term from such final judgment, but made no mention in the notice of appeal of an intention to review the interlocutory judgment on the appeal.

Now, it seems that the defendant was strictly regular in his practice. The decision disposing of the issue of law was strictly in accordance with section 1021 of the Code of Civil Procedure, as will be seen on reference to it in the appeal book.

It declared the rights of the parties on the demurrer, directed the entry of an interlocutory judgment, with the provision as to the right to amend the complaint, andalso directed final judgment in case of failure to comply with its provisions, giving the right to amend.

The decision was not appealable, but stood as does a decision by a referee or a judge on a trial without jury, which declares the rights of the parties and directs judgment. (Sec. 1021.) So here it gave direction for the entry of an interlocutory judgment, from which an appeal might be taken pursuant to section 1349 of the Code. But here no appeal was taken from, the interlocutory judgment, and its provisions permitting an amendment of the complaint not being complied with, final judgment was in due time and form entered, as theretofore in and by the interlocutory judgment was authorized and directed. From this final judgment the present appeal was taken, but without stating in the notice of appeal an intention to review the interlocutory judgment, and consequently by sections 1301 and 1316 of the Code, the appellant is precluded from reviewing such judgment.

Thus the interlocutory judgment stands as the settled law of the case, untouched by the appeal. (Patterson v. MeCunn, 38 Hun, 531, on page 534; see, also, other cases there cited; also Reese v. Smyth, 95 N. Y., 645.) The decisions in these cases are full to the point, and render further discussion of it out of place, and they also go to the length of holding that the notice of appeal in this case is not even open to amendment by inserting therein an intention to bring up the interlocutory judgment for review, were a motion made for that purpose. (Piper v. Van Buren, 27 Hun, 384, remarks of Hardin, P. J., on pages 388, 389; Fry v. Bennett, 16 How., 385, and other cases above cited.)

There are two modes provided for reviewing an interlocutory judgment like the present. One on direct appeal therefrom, the other on an appeal from the final judgment, with a specification in the notice of appeal of an intention to bring up the interlocutory judgment for review. This, however, permits but one examination of the merits by the General Term, as will be seen on reference to section 1316 of the Code. We deem it entirely plain that the merits of this case, on the issue of law,- are not before the court on this appeal. The interlocutory judgment stands on the record as the law of the case. The appeal does not bring it up for examination, inasmuch as an intention to review it is not specified in the notice of appeal. The interlocutory judgment remaining untouched by the appeal, the final judgment in pursuance of it is right and must be affirmed.

It may not be out of place to observe that we are of the opinion, after an examination of the case on the merits, that it was correctly disposed of by the Special Term, and for the reasons given in the opinion then written.

Judgment appealed from affirmed, with costs.

Present — Bookes, P. J., Landon and Parker, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    THE KNICKERBOCKER ICE COMPANY, Respondent, v. GEORGE S. SHULTZ and CHARLES A. SHULTZ, Appellants.

      Easements over lands under water — when they cannot he acquired as against the State — violation of a limitation imposed, as to the use to he made of land granted hy the State — it cannot he restrained hy one whose legal rights ave not injured hy it.

    In 1873 the 'Washington Ice Company obtained from the State the usual grant of lands under the waters of the Hudson river, upon which the c'ompany had, in 1860, built a wharf and ice-house, which they subsequently used and occupied until they conveyed the same to the plaintiff, who thereafter used it for the same purposes. In 1877 one Shultz obtained a similar grant of the lands under water adjoining on the south those granted to the plaintiff’s grantor. This action was brought by the plaintiff to restrain the grantees of Shultz from constructing a dyke or pier along the northerly boundary of their lands, upon the ground that if constructed it would be distant but one foot from the end of the apron of the elevator used by the plaintiff, and would prevent its further use.

      Held, that the action could not be sustained upon the ground that the plaintiff, or its grantor, had for more than twenty years been accustomed to cut ice in the river and tow it through a canal in the ice across the lands included in the grant to Shultz, to the apron of the elevator, without protest from the defendants or their predecessors, as the plaintiff could not acquire, as against the State, any right to the waters of the Hudson river, or to the lands thereunder by cutting ice and towing it along in the water; and that the land, when conveyed by the State, was free from any claim arising from such custom.
    The plaintiff claimed that under the terms of the conveyance Shultz was not authorized to erect a dyke or pier upon or over the land.

      Held, that the claim was not well founded, as there was nothing in the grant which limited the use of the lands by the grantee in the manner claimed.

      It seems, that even if such a limitation were imposed upon the grantee the plaintiff could not maintain an action to restrain him from violating it, unless it could be shown that his acts would interfere with some legal right of the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the Ulster Circuit by the court without a jury.
    The action was brought to obtain an injunction perpetually restraining the defendants from constructing a dyke or pier on ' certain lands lying under the waters of the Hudson river.

      E. 8. Wood, for the appellants.

      J. B. OT/ney, for the respondent.
   Learned, P. J.:

The Washington lee Company, in 1873, were owners of land on the bank of the Hudson river. In that year they obtained from the State, pursuant to a resolution of the commissioners of the land office, the usual grant of lands under water pursuant to the Revised Statutes and the amendments thereto. The plaintiff is the grantee of the Washington Ice Company. That company had previously, about 1860, built a wharf and ice-house on this land under water, which they and their grantees have since used and occupied.

In 1877 Charles Shultz, who held the land next south of that of the plaintiff, obtained a similar grant of lands under water; the northern boundary of the Shultz grant being the southern boundary of plaintiff’s, as is stated by counsel. This does not distinctly appear in the case, but it is immaterial.

The defendants, who are the grantees of Charles Shultz, have commenced to construct a dyke or pier, about eight feet wide, on their own land, granted as aforesaid by the State, and along the northerly boundary thereof, about 206 feet out into the river. The plaintiff claims that this is wrongful and that it will in jure the plaintiff in two respects : ■ First, it shows that the end of the apron, which extends from the south end of their elevator, is but one foot from the line where the proposed pier is to be built, and hence the use of that elevator will be prevented. Second, it show's that for some twenty years it (or its predecessors) have been accustomed to cut ice in the river and tow it through a canal in the ice across the fiats (now included in the grant aforesaid owned by defendants), and that so they have brought it to the apron of the elevator without protest from defendants or their predecessors. It asks, therefore, and has obtained an injunction.

R ow, it is evident that the plaintiff could not acquire, as against the State, any right to the waters of the Hudson river, or to the lands under the same by cutting ice thereon and towing it along in the water. One who tows a piece of ice through the water acquires no right to the water any more than he would if he towed a boat. The State owned the land under water, notwithstanding the plaintiff and its predecessors had dipped up water from the river or had gathered water solidified into ice. The State, therefore, had the right to convey to Charles Shultz this land, and such conveyance would be free from any pretended claim arising from the custom of towing pieces of ice in the water which lay above it.

But the plaintiff claims that, though the State conveyed to Shultz, the conveyance did not authorize him to erect a dyke or pier on the land. Even if this were so it would be doubtful whether the plaintiff could interfere, unless the act of the defendants affected its legal rights. But there is nothing in the grant which limits it in the manner claimed.

Chapter 283 of the Laws of 1850 amends the Revised Statutes, and authorizes the commissioners of the land office to grant so much of the lands under the water of navigable rivers or lakes as they shall deem necessary to prosecute the commerce of the State, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner. This does not prescribe the use to which the grantee is to put the land. The section of Revised Statutes thereby amended did not contain the provisions “ or proper for the beneficial enjoyment of the same by the adjacent owner.” And if chapter 232 cff the Laws of 1835 limited the power of the commissioners to the authorizing the erection of a dock, their powers are clearly enlarged by the later act. But if there were nothing authorized but the erection of a dock, there are no provisions as to the width or length of a dock. It can hardly be supposed that the word, “dock,” in the statute means only a place where vessels are to float and be repaired. “Dock” is often used for “wharf” or “ pier.” And the plaintiffs are not in a position to say how wide the defendants shall build their “ pier,” or “ dock,” or “ dyke.”

The plaintiff itself, it appears, has constructed on its grant of land under water an ice-house and wharf. Certainly an ice-house is not a dock. But whatever the structure may be which the defendants are erecting, it is on their own land; on land over which the plaintiff has no rights whatever. The plaintiff, then, has no right to complain even if the defendants are erecting something to which the State might object. Unless rights of the plaintiff are interfered with, it has no wrong to redress.

But the plaintiff further complains that this structure of the defendants will be so near to the apron of its elevator that the elevator cannot be used. That is to say, the plaintiff has constructed its elevator and the apron so near to the boundary between itself and the adjoining owner, that if the adjoining owner puts up a structure on his own land the plaintiff cannot use its elevator. That is the plaintiff’s fault. The plaintiff cannot, by building very, close to its own boundary, prevent its neighbor from using his land. If plaintiff’s claim were valid it would have acquired rights over the land of the State by using the water over it.

It may be that the defendants’ erection will cause the plaintiff loss. But they do the plaintiff no wrong. They interfere with no rights of the plaintiff. The plaintiff acquired no right to tow ice over the land of the State, or to bring its ice over such land to the apron of the elevator; that is to say, no right which would prevent the State from erecting any proper structures on its own land. Hence the grantees of the State may do the same; and they may erect on what is now their own land the dock or dyke which they were about to construct when enjoined.

The judgment is reversed, and judgment rendered for defendants denying the relief asked for, with costs of action and of appeal.

Bookes and Landon, JJ., concurred.

Judgment reversed, and judgment for the defendants, with costs.