text:
    LAURA W. SAVAGE, Respondent, v. ELIZA ANN CRILL, Appellant, Impleaded with others.

      After an absolute divorce procured by a wife, she may release her dower rights to her husband.

    The appellant procured an absolute divorce from her late husband on account of his adultery, the decree providing that the provision he was required to make for her support should not be in lieu of her right of dower in his real estate. Thereafter the appellant executed and delivered to her husband si%-instrument whereby, for the expressed consideration of one dollar, she released her claim and right of dower in all his lands.

      Held, that as regarded the rights of one who, with knowledge of the release, took a mortgage executed by the husband on land theretofore subject to her right of dower, the release was valid.
    That she could not claim dower jn her former husband’s lands after his death.
    Appeal from an order of the Oneida Special Term, directing that a certain sum of money, held by stipulation subject to the order of the court, be paid to the plaintiff, and adjudging that the appellant is not entitled to the same.
    The action was brought to foreclose a mortgage executed by Daniel Crill, the late husband of the appellant, on lands conveyed to him after his marriage with the appellant. Before the execution of the mortgage, the appellant had obtained a judgment of absolute divorce against her husband, on the ground of his adultery. The judgment required Crill to give security for the appellant’s support, in the form of a mortgage W land other than that covered' by the mortgage in suit, which he did. It also provided that such security, and the payments to be made thereon, should not be in lieu of the appellant’s right of dower in Crill’s real estate, or her interest in his personal property, in case of his death, intestate. Eight days after the judgment of divorce was entered, the appellant executed and delivered to Crill a release of her claim and right of dower in all his lands. The consideration expressed therein was one dollar. Subsequently, Crill executed the mortgage in suit, to the plaintiff in this action, for a full consideration. "The release was not recorded until after the mortgage was executed, but the plaintiff knew of the execution of the release, and believed it to be binding, when she paid the consideration for the mortgage. The appellant, in her answer, claimed dower notwithstanding the release. By stipulation, the decree of foreclosure in this action provided that the land should be sold free and clear of the claim of dower, and that the appellant’s right, if any, should attach to the proceeds of the sale. The land was sold for the sum of $3,220, which was not sufficient to satisfy the plaintiff's mortgage. The sum representing the gross value of the appellant’s dower, if she is entitled to dower, is $503.42, which is now held under a stipulation to be paid to her, if she is entitled to it; otherwise, to be paid to the plaintiff on account of her mortgage debt.

      W. H. Scripture and Spencer Clinton, for the appellant.
    A divorce, dissolving the marriage contract, on the ground of the .adultery of the husband, does not deprive the wife of her right of dower in his real estate. (Waitv. Wait, 4Comst., 95.) The release was invalid. (Graham v. Van Wyck et al., 14 Barb., 531; Carson v. Murry et al, 3 Paige’s Ch. R., 483; Marvin etal. v. Smith et al., 46 N. Y., 571; Malloney v. Horan, 49 N. Y., 117.) The disability of a husband, to take land by conveyance from his wife, is not removed by the statute enabling her to devise and convey as if she were unmarried. (White v. Wager, 25 N. Y., 328.)

      Ward Hunt, jr., for the respondent.
   Smith, J.:

The judgment of absolute divorce in favor of the wife, and the provision therein for her maintenance, did not deprive her of her dower right in the lands of. her husband. (Wait v. Wait, 4 Comst., 95.) The case turns, therefore, on the validity of the release executed by her to Crill after the divorce, the fee then being in him. That it was valid, seems clear. Although dower may not be conveyed before admeasurement, it may be released to the holder of the title. We think there can be no doubt but that if the title had been held by a person other than the appellant’s husband, a release to such person would have been valid, even if executed by her alone, before she obtained a divorce. The Court of Appeals held in the case of Albany Insurance Company v. Bay (4 Comst., 9), that in this State a married woman may convey her .lands, or any interest she may have in lands, by deed duly acknowledged, although her husband do not join therein. The rule would seem to be the same in respect to a release of dower. See Merchants’ Bank v. Thomson (55 N. Y., 7, opinion of Folger, J., top of p. 12). Why, then, was not the release valid and effectual, which she executed to Crill, after the divorce, he being then the holder of the title ? It is said by the appellant’s counsel that as she could not have released him while they were husband and wife, the disability which thus attached to her dower right during marriage continued after the marriage was-dissolved. We think not. The reason of the rule that a married woman cannot convey to her husband is, that the law regards, husband and wjfo -as one person ; and furthermore, it considers th& wife as under the husband’s control. But those reasons cease to exist when the marriage is absolutely dissolved. The true view of the matter,we think, is that by the dissolution of the marriage, by reason -of the husband’s adultery, the disability above referred to is done away, although the dower right remains, and that, thereafter, the wife may convey to the man from whom she was. divorced, as effectually as if he had never been her husband.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    LUCRETIA VAN DOREN, Appellant, v. WALTER C. HORTON and others, Respondents.

      Motion for a new trial on the minutes — can only be made where a verdict has been rendered — Power of one partner to transfer firm pn-operty after the dissolution, of the partnership.

    A motion for a new trial, on the minutes of the justice before whom the action, was tried, can only be made where a verdict has been rendered; it cannot be made where the plaintiff has been nonsuited.
    On January 1, 1875, a firm consisting of four members, two of the name of McPherson, and two of the name of Horton, was dissolved, and all the property divided, except certain accounts and an ice house, which house it was agreed should be separated into two parts by a pai-tition, and one-half be occupied by the McPhersons and the other by the Hortons, for the term of one year. ■ The Hortons were to collect the outstanding credits and apply them to the payment of the firm debfs. On July 30, 1875, while the parties were in the occupation of the ice house under this agreement, one of the McPhersons, without the knowledge of the Hortons, and without special authority from either of the members of the firm, transferred the house to the plaintiff.
    In an action by the plaintiff against the defendants, the Hortons, to recover the. house, with damages for its detention, held, that the authority of McPherson to transfer the firm property was not terminated by the dissolution of the firm, and that the plaintiff was entitled to recover.
    Appeal from a judgment of nonsuit in favor of the defendants,. entered after a verdict assessing the value of the property in an action of replevin, directed by the court at the Jefferson Circuit, and from an order denying a motion for a new trial on the minutes.
    The action was in replevin to recover certain personal property, to wit, an ice house, an ice plow, etc., with damages for their detention. The property was owned, originally, by the firm of McPherson & Horton, the members of which were George W. McPherson, Alonzo McPherson and the defendants,' Walter C. Horton and Waldron O. Horton. On the 1st day of January, 1875, th'e firm was dissolved by mutual consent, and an agreement in writing was entered into by all the partners, by which all the property of the firm was divided, except certain accounts and the property in suit, to wit, a building on the railroad wharf at Cape Vincent, known as the large ice house,. together with a few articles of personal property used in c-onnection with the ice house. The agreement provided that the ice house should remain co-partnership property ; that it should be divided into two parts by a partition put up at joint expense, and that for one year the McPhersons should have the use of one-half of the building and the Hortons of the other half. It was also agreed that the Hortons should collect the outstanding credits belonging to the firm.and apply them to the payment of the liabilities of the firm, and that the accounts of the members of the firm, as between themselves, should be adjusted and settled by one Lee. The McPhersons and the Hortons took possession of their respective portions of the ice house, and occupied them according to the agreement. On 30th July, 1875, George W. McPherson, without the knowledge of the Hortons, and without any special authority from either of the other members of the late firm, signed the firm name to a paper pm-porting to transfer to the plaintiff the large ice house and the other property belonging to the firm, which was then undivided, for the consideration of $500. After the expiration of the year, during which the ice house was to be jointly occupied- by the late co-partners, the defendants took possession of the same and refused to deliver it to the plaintiff on demand. The court ordered a nonsuit, on the ground that after the dissolution of the partnership, George W. McPherson had no authority to sell the partnership property, in the name of the firm or otherwise, and that, consequently, the plaintiff had no title.

      Porter & Walts, and 2). O'Brien, for the appellant.

      StarbucJc & Sawyer, for the respondents.
   Smith, J.:

The appeal from the order refusing a new trial raises no question for review. As there was no verdict rendered, the case Was not one in which a motion for a new trial could be made on the minutes. The right to make such motion is given by section 999 of the Code of Civil Procedure. That section provides that “the judge presiding at a trial by jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict and grant a new trial, upon exceptions; or, because the verdict is excessive, or for insufficient damages', or otherwise contrary to the evidence, or contrary to law.” It is not enough that a jury was impanneled ; unless a verdict was rendered, the party seeking a new trial cannot move for it on the judge’s minutes. Wo held, last term, in the case of Sizer v. Ray, that a nonsuit is a trial by the court, within the meaning of section 1346 of the present Code, and that ruling confirms the view' above expressed. We have referred to the point, rather for the purpose of indicating the correct practice, than because of its bearing on the present case. The order should be reversed as irregular.

The only question properly before us is raised by the appeal from the judgment. Had McPherson authority to sell the partnership property after the dissolution?' There can be no doubt but that, if the sale had been made during the existence of the co-partnership, it would have been valid. The case of Robbins v. Fuller (24 N. Y., 570), cited by the appellant’s counsel, seems to bo an authority for holding that the power existed. In that case, one of the partners, six years after the dissolution, without the knowledge of the other partner, gave a power of attorney in the name of the firm to his son, to sell the unpaid demands of the firm. The son sold a judgment which the firm had recovered against one Fuller for $1,767.13 to one Wells, who settled and discharged it for $100 paid by Fuller. The other partner had no knowledge of these facts at the time, and newr received any pay on the judgment, nor did he dispose of his interest in it, and at the time of the giving of the power of attorney, the co-partners, as such, owed no debts. On these facts, the other partner, suing in the name of himself and his co-partner, sought to recover one-half of the judgment, less the $100 paid to Wells. A recovery was had below, but the Court of Appeals reversed the judgment, holding that each partner, after a dissolution, possesses the same authority to adjust the affairs of the concern, by collecting its debts and disposing of its property, as before the dissolution, where there is na agreement to the contrary ; that such right is not lost by the fact that the partnership debts are paid ; nor, it seems, docs it depend upon the state of the accounts between the paztners, at all events not as against persons having no notice of the fact. Here, the evidence is that at the time of the transfer there were partnership debts unpaid, and the state of the accounts, as between the partners, does not appear. Judgc Dbnio, who delivered the prevailing opinion, said, that although the dissolution of a firm, annuls the powers of the respective partners for many purposes, and particularly as to the contracting of debts against the co-partnership, it does not terminate their authority to administer the assets in accordance with the rights and interests of the parties interested in them, and with the intention of the partnership enterprise. And he laid stress upon the consideration that there must be some one to adjust the affairs of the concern, by collecting its debts and disposing of its property, and dividing the proceeds among the parties entitled, and he concluded, that where, as in that case, none of the parties are specially empowered for that purpose, to the exclusion of the others, the individual partners retain the same authority which they possessed before the dissolution, so far as it may bo necessary for such purposes.

The counsel for the respondents suggest that, in the present case, exclusive power to dispose of the partnership property -was given to the Hortons by the agreement of dissolution. We do not so understand it. The power given to the Hortons was limited to the collection of the outstanding credits and applying them to the payment of the outstanding liabilities of the firm,. and their action was to be completed within six months after the .dissolution. It is very evident that the power did not extend to a sale of the chattels owned by the firm, and especially to a sale of the property in question, the possession of which the respective members of the firm had a right, by the terms of the agreement, to retain for one year.

The authority which the agreement gave to Lee was expressly confined to the adjustment and settlement of the accounts of the members of the firm, as between themselves.

We have dealt with the naked question of power, as that appears to have been the only point decided at the circuit. The question whether the transfer by McPherson was fraudulent as against the other members of the firm, or as against creditors, was not entered upon at the trial, and is not presented by the appeal.

The judgment, as well as the order, should be reversed, and a. new trial ordered, costs to abide event.

Talcott, P. J., concurred : Hardin. J., not sitting.

' Judgment and order appealed from reversed, and a new trial ordered, costs* to abide event.


author: Smith, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY McKENZIE, Appellant, v. THE BOARD OF SUPERVISORS OF CATTARAUGUS COUNTY, Respondent.

      Appointment of papers in which, to publish the session laws — chap. 280 of 1845,, as amended by chap. 215 of 1870- — Board of supervisors act judicially.

    'When appointing newspapers in which to publish the session la.ws, under chapter-280 of 1845, as amended by chapter 215 of 1870, the board of supervisors acts judicially in determining whether the two papers receiving the highest and the next highest number of votes are of opposite politics, and fairly represent the two principal political parties into which the people of the county are-divided ; and the fact that at the general election preceding the appointment,, some of the candidates of a third party received more votes than the candidates of the party represented by the paper having next to the highest number-of votes is not necessarily controlling, and does, not authorize a mandamus-compelling the board of supervisors to designate, as one of such papers, the one which -represents such third party,
    Appeal from an order made at Special Term, denying a, motion for a mandamus directing the respondents to reassemble and designate the newspapers to publish the session laws as required by law.

      M. A. Dodge, for the relator.
    When the facts are undisputed, the board of supervisors has no discretion, and if their acts are illegal, and not in conformity to the law, the courts will by mandamus compel them to act legally. (People ex rel. v. The Board of Supervisors of Qoriland Co., 58 Barb., 139; People ex rel. v. Supervisors Delaware Co., 9 Abb. [N. S.], 408; People ex rel. v. Supervisors Herkimer Co., 56 Barb., 452; People ex rel. Supervisors Otsego Co., 53 id., 564; S. G., 51 N. Y., 401, 404; People

      ex rel. v. The Board of Supervisor's of Herkimer Co., 56 id., 455; People ex rel. Sinnot v. Shea, 7 Hun, 304; People ex rel. v. Supervisors of Sullivan Co., 56 N. Y., 254.)

      Allen & Thrasher, for the respondent.
    Where there is a discretion vested in a board of public officers, and such discretion has been reasonably exercised, the court will not interfere by mandamus. .{People v. Sexton, 37 Cal., 532; People v. Dowling, 55 Barb., 197; State v. Judge, 2 La. Ann., 116; State v. Judge, 24 Mich.,. 408; Mayor v. Rainwater, 47 Miss., 547; Weeden v. Town Council, 9 E. S., 128; People v. Contracting Board, 46 Barb., 254; Press Association v. Nichols, 45 Vt., 7; People v. Contracting Board, 33 N. Y., 382; State v. Board of Education, 24 Wis., •583; People v. Croton Aqueduct Board, 49 Barb., 259; People v. Contracting Board, 27 N. Y., 378; People v. Fay, 3 Lank, 398; People v. Supervisors, 45 N. Y., 196; Tuolumne v. Stanislaus Co., •6 Cal., 440; People v. Supervisors, 11 id., 42; People v. Supervisors, 18 How., 461.)
   Smith, J. :

Section 3 of chapter 280 of the Laws of 1845, as amended by chapter 215 of the Laws of 1870, makes it the duty of each board of supervisors in the several counties of this State, at their annual meeting, to appoint the printers for publishing the laws in their respective counties, in the following manner: “ Each member of the board shall designate by ballot one newspaper printed in the county to publish the laws, 'and the paper having the highest number of votes, and the paper having the next highest number of votes, shall be the papers designated for printing the laws, provided such papers are of opposite politics, and fairly represent the two principal political parties into which the people of the county are divided.”

At their annual meeting in November, 1878; the board of supervisors of Cattaraugus county, designated by the highest number of votes, the “ Randolph Register,” and by the next highest number, the “ Cattaraugus Union,” as newspapers to publish the session laws. The first named newspaper represented the Republican party, and the last named the Democratic party. It is not claimed by the relator but that the designation of the Republican newspaper was regular, but it is claimed that instead of designating a Democratic paper, the board should have designated one of the three newspapers in said county which represented the “ National Greenback party, as one of the newspapers to publish the session laws.

This claim is based mainly upon the fact that at the general election, held in said county shortly before the action of the board was had, more votes were given for the greenback candidates, in some instances, than were received by the Democratic candidates for the same offices, and that in respect to some of the local offices the Democrats made no separate nominations, but indorsed the greenback candidates and generally voted for them.

Even if the evidence derived from the canvass were to govern, it is by no means of a decisive character, inasmuch as the majorities were not largo as between the greenback and Democratic candidates, and in one instance the majority was on the side of the Democrats. Still, the results of the. canvass were undoubtedly proper to be considered by the board in deciding which were the two principal parties in the county, but they were not necessarily controlling. The statute has not made the canvass a test by which the question is to be determined. The Legislature has committed the question to the decision of the board, and in deciding it the members of the board act judicially, and they may consider not only the number of votes cast at the next preceding election, but also all other facts within their knowledge bearing upon the question. The board having acted in the matter and determined the question, a mandamus will not lie to compel a reversal of their judgment. (The People ex rel. Opdyke, Mayor, etc., v. Brennan, Comptroller, etc., 39 Barb., 651; Francis v. Common Council of Troy, 20 Alb. L. J., 269.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: -'Smith, J.:

text:
    EPHRAIM M. LUCAS, Respondent, v. PETER McENERNA, Appellant.

      State tax sale — when six months’ notice to redeem must he given — when, a failure to move for the direction of a verdict does not estop defendant from insisting that it is against the weight of evidence.

    'The six months’ notice (p redeem, which the stattue requires to "be given to the occupant of any lot, sold by the comptroller for non-payment of taxes, must be given when any portion of the entire lot is occupied at the time of the giving of the deed by the comptroller; the notice must be given notwithstanding the fact that the land was not occupied when the two years allowed by the statute for redemption had expired, and the purchaser became entitled to a deed.
    In an action to recover land claimed by the plaintiff under a tax deed from the comptroller, it was not shown that the six months’ notice to redeem, required to be given to any occupant of the lot, at the expiration of two years from the sale, had been given. The uncontradicted evidence showed that the. west half of the lot was occupied at that time, and the evidence tended strongly to show that the east half was then also occupied. The verdict was in favor of the plaintiff, thereby establishing that the lot was unoccupied.

      Held, that the failure of the defendant to ask the court to direct a verdict in his favor did not estop him from moving to set aside the verdict as against the weight of evidence.
    Appeal from an order made at the Chautauqua Circuit, denying -defendant’s motion for a new trial made on the judge’s minutes.
    The action was ejectment to recover possession of a village lot in Dunkirk. The plaintiff obtained a verdict.

      Walter W. Holt and Wm. BooJcstaver, for the appellant.

      Julius A. Parsons, for the respondent.
   -'Smith, J.:

The plaintiff claims title under a deed from the comptroller on a tax sale. Upon the sale of land for taxes the owner or occupant, or any other person, may redeem the same at any time within two years after the sale. (Laws 1855, chap. 427, § 50.) Whenever the land, at the expiration of the two years given for redeeming, or any part thereof, shall be in the actual occupancy of any person, the purchaser to whom it shall have been conveyed by the comptroller, or the person claiming under him, shall serve a written notice on the occupant, within two years from the expiration of said time to redeem, requiring him to redeem within six months. (Id., § 68.) The deed of the comptroller is not to be recorded till the expiration of the six months (Id.), and it becomes absolute upon the comptroller giving his certificate that the occupant failed to pay according to notice. (Id., § 73.) Under like provisions of the Revised Statutes (1 R. S., 409, § 66; 411, § 80; 412, § 83), it was held that where the land is occupied when the deed is executed by the comptroller, the occupant is entitled to notice, notwithstanding the land -was unoccupied when the two years allowed by the statute to redeem had expired and the purchaser became entitled to a deed. (Hand v. Ballou, 2 Kern., 541.) It bas also been held that, if any portion of an entire lot is occupied notice must bo given or the purchaser gets title to none. (Cornstock v. Beardsley, 15 Wend., 348; Bush v. Davison, 16 id., 550; Leland v. Bennett, 5 Hill, 286.) And the production of the comptroller's certificate is necessary to prove failure of the occupant to redeem. (Jackson v. Esty, 7 Wend., 148; Bush v. Davison, supra.)

As the plaintiff did not produce the comptroller’s certificate at the trial, or account for its non-production, it follows, that if the land was occupied when he received his deed he was not entitled to recover. The jury must have found that the land was not occupied, but we arc satisfied upon reading the case that the finding is clearly against the evidence. That the east half of the lot was occupied by one Lynch was testified to by the plaintiff .himself. And there was a decided preponderance of evidence in support of the defendant’s position that the west half of the lot was occupied by a person who was his tenant. It makes no difference whether the land is occupied by the defendant or any other person. (Comstock v. Beardsley; Leland v. Bennett, supra.) And it is not necessary that the occupancy shall be under a claim of right. (Jackson v. Esty ; Bush v. Davison, supra; Bank of Utica v. Mersereau, 3 Barb. Ch. R., 581.) Possession, with an intention on the part of the possessor to enjoy the property, is enough. (Smith v. Sanger, 4 Comst., 577.)

The respondent’s counsel takes the position that as the defendant did not ask the court to direct a verdict in his favor, and did not object to the submitting of the case to the jury, he is estopped from insisting that the verdict is against evidence. To sustain that position would be to hold that the court can in no case sot aside a verdict as against the weight of evidence, when there is any evidence, however slight, requiring a submission of the case to the jury. It is probable that if the defendant had asked the court to direct a verdict in his favor, on the ground that it was proved, without' dispute, that the east half of the lot was occupied by Lynch when defendant received his deed, the defendant would have been entitled to such direction. But the parties litigated also the question whether the west half of the lot was occupied, and the testimony left that question somewhat in doubt, although largely preponderating in the defendant’s favor. That being the state of the evidence we do not think the defendant is estopped from insisting that the evidence was insufficient to sustain the verdict. The cases cited by the plaintiff’s counsel rest upon Barrett v. The Third Avenue R. R. Co. (45 N. Y., 628). That case went upon the ground, as we understand it, that as there was no motion for a nonsuit, or request to direct a verdict, there was nothing for the Court of Appeals to review, the decision of the court below on the motion to set aside the verdict as contrary to evidence being addressed to the discretion of the court and not reviewable. The court in this department held contrary to the position of the plaintiff’s counsel in Shearman v. Henderson (12 Hun, 170) on a review of all the cases. The circumstances of the case require us to decide it in accordance with the views there expressed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Order denying new trial reversed and new trial ordered, costs to abide event.


text:
    WILLIAM H. BURK, Appellant, v. AUGUSTUS D. AYERS, DANIEL D. JOHNSON AND WARREN H. GAMBER, Drainage Commissioners, Respondents.

      Drainage acts — chap. 888 of 1869 and chap. 303 of 1871 — appeal lies to General Term from decision of County Court —notice of, need only be served on respondents in county cohort — it need not specify errors — any party affected by the proceedings may appeal — what is a final judgment — a drain cannot be ordered’ miless necessary for public health — what is essential to give the cou/rt jwrisdiction.

    An appeal lies to the General Term of the Supreme Court from a decision of the county court in proceedings for draining lands, instituted under chapter 888 of 1869, as amended by chapter 303 of 1871.
    A notice of appeal from the decision of the county court, affirming a decision of the drainage commissioners, need only be served upon the commissioners the respondents in the county coiu’t.
    The notice of appeal to the county court from the determination of the drainage commissioners need not specify the errors complained of.
    To authorize a party to appeal from the determination of the drainage commissioners, it is not necessary that any of his land should have been actually. ■ taken; it is sufficient if he be the owner or possessor of land in any way affected by the proceedings.
    A decision of the county court affirming a judgment of the drainage commissioners, with a modification to the effect that on request of the appellant they should ■ open a drain through his land, is a final judgment, so as to be appealable.
    An objection to the jurisdiction of the court below may be raised for the first time on appeal?
    "Where in proceedings instituted for the drainage of lands, under chapter 888 of 1869, as amended by chapter 303 of 1871, neither the commissioners nor the county court determine that the proposed drainage is necessary for the publie health, the court does not acquire jurisdiction and the proceedings are void. Such objection may be taken by any person owning or possessing lands affected by the proceedings, though none of it is actually taken thereby.

      Semble, that the doctrine that to entitle the owner of property to protection under-' the constitutional provision that private property shall not be taken for publie use without compensation, the property must actually be taken, and that the owner is not entitled to remuneration for indirect or consequential damages, does not apply to a casein which the attempted exercise of the right of eminent domain, from which the consequential damage results, is not authorized by law.

      Semble, that a determination by the commissioners that the proposed drainage is necessary “to carry off surface water from farm lands and the highways” will not authorize an order directing the construction of a drain; there must exist a necessity for draining the lands of the petitioners, or the lands described in the petition.
    Appeal from an order of the County Court of Seneca county, modifying and affirming the determination of the drainage commissioners above named, by which they adjudged it to be necessary to construct a drain across lands owned by others than the appellant, in a proceeding • taken under the statutes known as the drainage acts. The appellant, under the name of Henry Burk, was named in the petition as one of the owners or possessors of land to be affected by the proceedings — he was served with notice of the determination of the commissioners, and appealed therefrom.; the appeal was heard by the county court, the decision of which directly affected his interests. This appeal was first heard in October, 1878, thereafter a re-argument was ordered by the court.
    The following petition, which was verified by the petitioners, was filed in this matter :

      To the Gounty Court of the County of Seneca:

    “We, the undersigned, owners and occupants of wot and low lands on lot 80 in the town of Romulus, in the county of Seneca, State of New York, are desirous of draining the same, and we deem it necessary, in order thereto, that a ditch or channel for the free passage of water should be opened through lands belonging to other persons, and lands in the possession of, and as your petitioners are informed and believe, are owned by the following named persons : Margaret McDermott and Leander Osborn:
    “ And your petitioners would say that the said wet lands cannot well be drained in any other way than by a ditch or channel for the free passage of water through the said lands of the said other persons. And your petitioners would further say that James O. Waugh, Thomas Marsh, James H. Gilmore, John Carl, Garrett Doremus, Margaret McDermott, Leander Osborn, Albert McMillan and Henry Burk, all of whom reside in the said town of Romulus, are the only owners or possessors of land to be in any way affected by any proceedings under and by virtue of this application.
    “ And your petitioners would pray for the appointment of three commissioners under and by virtue of chapter 888 of Laws of 1869, an act entitled an' act' relative to proceedings for the drainage of ■swamps, marshes, and other low or wet lands, and for draining farm lands ; and all acts amendatory thereof.”
    “ Dated July 7, 1874.
    “THOMAS MARSH,
    “ JAMES O. WAUGH,
    “ J. H. GILMORE.”
    Upon this petition certain commissioners were appointed by the Seneca county judge, who executed the following notice :
    “Notice is hereby given to all whom it may concern, that we, the undersigned drain commissioners appointed on the petition of 'Thomas Marsh, James O. Waugh and others, by the Hon. Gilbert Wilcoxen, county judge of Seneca county, on the 7th day of •July, 1874, would report that after being duly organized, that we met on the 15th day of July, 1874, and examined the grounds and did decide that it was necessary to cut one or more drains 'or ditches through lands.of the petitioners, and lands thereto adjoining, to carry off the surface waters from farm lands and the highways, and adjourned to the twenty-ninth day of August, at which time, all being present, did lay out the following ditches, viz. : (Here followed a description of the land.) Said ditch is to be cut two and one-quarter feet deep below the natural surface, three feet wide on the bottom, with an even grade to the same, and a slope to the sides of an angle of 45 degrees, through the lands of said Dermont; and the balance of the ditch is to be cut two and one-half feet deep, three feet wide on the bottom, with an even grade to the same, and a slope to the sides of an angle of 45 degrees.
    ‘ ‘ Also, one other ditch, beginning at a stake standing east 1 chain, 10 links from the south-east corner of Leander Osborn’s farm, • * # # and from thence south one-half degree, west 5 chains, 40 links through lands of H. Bumpus to a stake standing in what is known as the Sutton creek on lot No. 80, in said town of Romulus. Said ditch is to be cut 2 feet deep, 3 feet wide on the bottom, with an even grade to the same, and a slope to the sides of an angle of 45 degrees.”
    “Dated at Romulus this 14th day of September, 1874.
    “A. D. AYRES,
    “D. D. JOHNSON,
    “ Commissioners

      From this determination William H. Burk appealed to the County Court of Seneca county.
    On the hearing of the appeal the county court ordered:
    First, that the said determination of the said commissioners be, and the same is hereby in all respects, affirmed, without costs to either party against the other.
    And it is further ordered that the said determination of the said commissioners he modified or amended in this respect:
    That on the request of the said Burk, made in writing within fifteen days after the filing of this determination, the said commissioners shall, within sixty days thereafter, make and ojien across the cultivated lands of said Burk in the line as near as may be practicable of the jiresent drains or water ways, a drain or ditch of sufficient capacity to receive and carry the water from the ditch 01 drain already constructed by the said commissioners across the said cultivated lands of the said Burk westward to such jioint as will relievo the said cultivated lands of said Burk from overflow or damage from the water jjassing through said ditch or drain, or tasóme suitable outlet for the same. That the said commissioners shall so construct said ditch or drain that the same may be easily driven into and across for farm jiurposes.
    And it is further ordered that in case the apjiellant shall not request the construction of said drain or ditch across his said cultivated lands by the said commissioners, as herein directed within the said fifteen days from the filing of this adjudication and determination, then the said determination of the said commissioners, filed on the 7th day of October, 1874, shall stand affirmed without alteration or amendment.
    The following errors were set forth in the notice of ajajieal to this court:
    “First, it appears upon the face of said decision, judgment, order or determination of said county court, and said determination of said commissioners, that neither the said commissioners nor the said county court, on ajDpeal, adjudged and determined, that for the benefit of public health, ditches, drains or channels should be opened upon the lands described in the petition, or that such lands should be drained ; and there being no such finding or determination, the said county court should have absolutely annulled, vacated and set aside the determination of said commissioners, and declared the same to be null and void.
    “ Second, there were errors of law shown to said county court to have been committed by said commissioners in making their determination.
    “Third, the said determination of said commissioners was without jurisdiction and void, and the county court erred in not setting the same aside and reversing the same, and erred also in modifying or amending the same, and in affirming the same or any part thereof.
    “ Fourth, the said determination of said commissioners was, and is, unsupported by any finding or determination that for the benefit of the public health, the ditches, drains or channels mentioned .and described in their determination should be opened or the lands in question should be drained, and therefore the county court should have declared the same to be null and void, and should have reversed the same.
    “ Fifth, the said comity court, on said appeal from the said determination of said commissioners, not having determined or found that for the benefit of the public health such ditches or drains or channels mentioned in said determination of said commissioners, the order, judgment or decision made by said county ■court in this matter is void and should be reversed and set aside.
    “ Sixth, the said decision, judgment or order of said county court affirming the determination of said commissioners and ordering a modification thereof, appears 'upon its face to be without jurisdiction, and void.
    “ Seventh, the said judgment, order or decision of said comity court, and the determination of said commissioners, are without .authority of law, and both should be reversed.”

      FranJclin & Hazleton, for the appellant.

      Josiah T. Miller, for the respondents.
   Smith, J.:

It is insisted by the respondents’ counsel that this appeal should Be dismissed on several grounds, which will be briefly considered.

First. It is said that' an appeal from the county court to this-court, in proceedings for draining lands, is not authorized by law. The act of 1869, chapter 888, authorized proceedings for draining lands to be had before the comity judge (§ 1), or before that officer and the justices of sessions, if heshould choose to associate.them with him (§12), and it give an appeal from the decision of the county judge, or that of the county judge and the justices of sessions to this court. (§ 12.) That act made no provision for proceedings, in the county court, and consequently not for an appeal from the county court. But in 1871 (Laws 1871, chap. 303, § 4), the act of 1869 was amended by adding to it a section which provided that “all the powers and jurisdiction vested by this act, in the county judge, or in the county judge and justices of the sessions-when associated with such officer, are hereby vested in the county court,” etc. We think it apparent, from the whole section, that it was the design to substitute the county court for the county judge, in all respects, in proceedings under the act. It is true there are no words expressly giving a right of appeal from the decisions of the county court, but the reasonable construction is, that in that respect also, the decisions of the county court were-intended to be put upon the same footing as were the decisions. of the county judge under the original acts. It certainly was not intended to abrogate the right of appeal, inasmuch as the provisions giving it were retained ; but those provisions are wholly nugatory, if they do not apply to decisions of the county court,, since the county judge no longer has jurisdiction to entertain proceedings under the act.

Next, it is urged that the notice of appeal should have been served upon the petitioners and the owners of the land. The; decision of the county court, from which this appeal is taken, was rendered upon an appeal to that court from the determination of the commissioners. In accordance with the act, that appeal was taken by serving notice on the commissioners. It was not necessary to notify any other person. (Act of 1869, § 5.) And it does not appear that any other was notified. As. the commissioners were the only respondents before the county-court, they are the only persons to be notified of the present, .appeal.

It is insisted that the appeal should be dismissed, because no error was assigned in the notice of appeal from the determination of the commissioners, and because certain questions, submitted by this court for re-argument, were not before the county court. The notice of appeal need not contain a specification of errors. (§ 5.) Upon this point the respondents’ counsel refers to section 10 of the act of 1869, as amended in 1871. That section relates to appeals from assessments, and the specification of errors required by it, need not be contained in the notice of appeal. Whether the questions submitted for re-argument properly arise on this appeal will be considered when the questions are reached.

Another position taken in support of the claim that the appeal should be dismissed, is, that no lands of the appellant were taken by the respondents, and he has, therefore, no standing in court and no right to prosecute the appeal. It is a sufficient answer to this position, to call attention to the facts that the appellant is named in the petition as one of the owners or possessors of land to be affected by the proceeding; that the case shows that he was served with notice of the determination of the commissioners; that his appeal from such determination was entertained by the county court, and it does not appear that the objection under consideration was taken there ; and, finally, that the decision of the county court appears on its face to directly affect his interests. It is not necessary that his land should be actually taken and condemned; if he is the owner or possessor of land in any way affected by the proceeding, the act requires that he be made a party, and to whatever extent his interests are involved, he has a right to be heard. If, as is suggested by the respondents’ counsel, all the other parties have voluntarily surrendered their lands for the purposes of the drainage, the proceeding will not be disturbed as to them, even should he succeed in his appeal. And, on the other hand, he is not to be affected by their acquiescence.

It is contended that the appellant is not in fact a party, his name being William II. Burk, and the name in the petition being Henry Burk. It is plain, from the papers before us, that he is the person intended. The case states that notice of the determination of the commissioners was served upon “the appellant.”

Finally, it is urged that the appeal should be dismissed because the judgment from which it is taken is not a final judgment. The decision appealed from affirmed the order of the commissioners, with a modification which provided that, on request of Burk, the commissioners should open a drain on his lands. The order was final, so far as the action of the court was concerned. The fact that it gave Burk an election made it none the less final.

On the merits, the only questions open to the appellant relate to the jurisdiction of the county court over the subject-matter. Questions of that nature can be considered at any stage of the proceeding, and may be raised, even for the first time, in the appellate court. Objections to the jurisdiction are not waived by not being taken in the court below. (People v. N. Y. Marine Court, 3 Abb. Pr. R., 309; S. C., 13 How. Pr., 260.) Nor can the court acquire jurisdiction by the laches of the party proceeded against. (Titus v. Relyea, 8 Abb. Pr., 177.) Nor by his express consent. (Dudley v. Mayhew, 3 Comst., 9.)

The chief ground of objection to the jurisdiction is, that it nowhere appears in the proceedings that the proposed drainage is necessary for the public health. Neither the commissioners nor the court have determined such necessity to exist, nor have the petitioners alleged it. In the Matter of Draining Swamp Lands in the Town of Chili (5 Hun, 116) it was said by the court in this department that “ the provision, in respect to the public health, was doubtless inserted in the act of 1869, as an amendment of the general drainage act of the Revised Statutes, because the constitutionality of that act had been questioned, and to obviate that objection which was clearly sound.” And in The Matter of Ryers, etc. (72 N. Y., 1) the Court of Appeals held that the object for which drainage may be had and lands taken, under the acts referred to, is solely for public health. As it does not appear that the drainage proposed in this proceeding was necessary for that purpose, it follows, from the authorities cited, that the proceeding was not authorized by the statute, and that the court had no jurisdiction.

■ But it is contended by the respondent’s counsel that although the appellant may have been a proper, and even a necessary party to the proceeding, inasmuch as he had an interest in land to be affected by the proposed drainage, yet his land was not actually taken, it was merely subjected to consequential injury, by reason of the discharge upon it of the water conducted along the ditch constructed on the lands of other owners for the purpose of the drainage in question, and, therefore, he cannot challenge the validity of the proceeding. The appeal papers do not expressly describe the appellant’s interest, or state how it is affected, but it is probable, from the terms of the order appealed from, that the claim of the respondents’ counsel, in that regard, is substantially correct. But assuming that the appellant’s damages, so far as the work of drainage has progressed, are consequential merely, it by no means follows that he may not challenge the jurisdiction of the court. The respondents’ counsel relies upon the doctrine that to entitle the owner of property to protection under the constitu-. tional provision that private property shall not be taken for public use without compensation, the property must actually be taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damage. But that doctrine applies only to cases where the injury results from the lawful exercise of the right of eminent domain. It rests on the ground that such indirect loss must be borne by the individual for the common benefit. If, therefore, this case is not one in which the right of eminent domain can be invoked, as we have seen is the case, the appellant has a clear right to take the objection that the proceeding is void for the want of jurisdiction.

But the order appealed from, as modified, has the effect to take the appellant’s land, in the strictest sense of the word, and that too, without compensation. The drain already constructed by the commissioners is to be extended across his cultivated lands, for the purpose of carrying off the water which such drain brings to his boundary line. True, that is to be done only on his request, but if he withholds his request he will be subjected to the alternative of having the water of the ditch discharged upon his land, without any channel to carry it off. If he is confined, to these two alternatives, he may be compelled to ask the commissioners to take his land for the ditch without compensation, in order to escape a worse fate.

We are also inclined to the opinion that the detérmination of the commissioners is void, for the reason that it does not determine that the construction of the ditches was necessary in order to drain the lands of the petitioners, or either of' them, or the lands described in the petition. They determine merely that it was necessary “ to carry off surface water from farm lands and the highways.” The statute confines the proceedings to the lands of the petitioners, or the lands described in the petition, and unless there is a necessity for draining them, no valid order for drainage can be made.

Neither do the statutes authorize the construction of ditches to drain highways. The care of the public highways is confided to the commissioners of highways, and it is not to be presumed that the Legislature intended to interfere with their duties, by the statutes in question, in the absence of language indicating such intention.

For these reasons we think the determination of the commissioners and the order of the county court appealed from, should be reversed, so far as they affect the appellant, with costs to the appellant.

Talcott. P. J., and Hardin, J.,- concurred.

The determination of the commissioners and the order of the county court appealed from, reversed, so far as they affect the appellant, with costs to the appellant.


author: ¡Smith, J.:

text:
    GEORGE BENEDICT, Late Sheriff of Oneida County, Plaintiff, v. HENRIETTA H. WRIGHT, Defendant.
    Sheriff— when entitled to pov/ndage on the value of property levied on, though no money be realized therefrom,

    One Huntington, after the recovery of a judgment against him by the defendant,,, and shortly before the issuing of an execution thereon to the sheriff, executed, and delivered to an assignee an assignment for the benefit of creditors, but at. the time the execution was received the assignment had not been recorded, nor-had the assignee given a bond or taken possession of the property. The sheriff,, under the direction of the attorney for the judgment-creditor, levied on certain; of the property assigned by Huntington, but, in accordance with further directions from the attorney, took no further proceedings. Subsequently the-property was sold by the assignee and a portion of the proceeds applied to the-payment of defendant’s judgment.
    In an action by the sheriff to recover poundage on the value of the property so-levied on, not exceeding, however, the amount collectable under the execution,, • held, that he was entitled thereto.
    Motion by plaintiff for a new trial, on exceptions taken at tne. Oneida Circuit, and ordered to be heard at the General Term, in. the first instance, after a nonsuit directed at the circuit.
    The action was brought to recover sheriff’s fees or poundage upon, an execution against property, issued to the plaintiff, as sheriff, upon a judgment recovered by the defendant herein against one Benjamin. N. Huntington.

      G. W. Benedict, for the plaintiff.
    A sheriff can maintain an-, action against the attorney who issues an execution to him, or against the party in whose favor it is issued, at his election, to-recover such fees and poundage as he is legally entitled to, and not made by him out of the property of the debtor. (Adams v. Hopkins, 5 Johns., 252; Osterhout v. Bay, 9 id., 114; Jackson-v. Anderson, 4 Wend., 474; Bolton v. Lawrence, 9 id., 435.) The sheriff having levied upon the property of the judgment-debtor by the express direction of the attorney who issued the execution, and upon specific property pointed out to him, is-entitled to his full fees. (Crocker on Sheriffs, §§ 865, 1162 ; Wintringhamv. Lafoy, 7 Cowen, 735; Phillips v. Hall, 8 Wend., 6.10; Stewart v. Wells, 6 Barb., 79; Crocker on Sheriffs, § 1162;,
      Alehin v. Wells, 5 Term Reports, 470; Boot v. Wager, 30 N. Y., £); Campbell v. Cothran, 56 id., 279; Hoyt v. Philips, 1 Sweeney, 76; Adams v. Hopkins, 5'Johns., 252; Scott v. Shaw, 13 id., 378; People v. Adams, 1 C. R. [N. S.J, 226; Hoge v. Page, 11 How., 207.)

      F. G. Frieke, for the defendant.
   ¡Smith, J.:

It appears in the case that shortly before the sheriff received the execution, Huntington, the execution defendant, had made an assignment of all his property, in trust, for his creditors, and had delivered the assignment to the assignee, but it had not been recorded, and the assignee had not given a bond nor taken possession of the property. Of these facts, the attorney of the execution creditor, and the sheriff, had notice. Under these circumstances, the attorney directed the sheriff to levy on the property, .saying he did not think the assignment good for anything, and the .sheriff accordingly levied on personal property which, concededly, belonged to Huntington, unless it passed by the assignment. Subsequently, the attorney directed the sheriff not to take further proceedings, but to await the action of the assignee, and accordingly nothing further was done by the sheriff. About a year after the levy, the assignee sold the property levied on and paid a part of the proceeds to the plaintiff in the execution. When the attorney directed the sheriff to levy, the sheriff said he should want a bond of indemnity, and the attorney promised him one, but it was never executed.

Upon this state of facts, we think the plaintiff is entitled to recover poundage upon the value of the personal property levied on by him. The value, as the case states, was conceded by the defendant’s counsel at the trial, “ for the purposes of an appeal,” to be about $14,149. It is true that, in general, a sheriff is not entitled to poundage on a money execution, until the money is collected. (Campbell v. Cothran, 56 N. Y., 279.) If, however, he is prevented from fully executing the writ, by the act and interference of the party in whose favor it is issued, he is equally entitled to fees, as if he had collected the money. (Alchin v. Wells, 5 T. R., 470; Hildreth v. Ellice, 1 Caines R., 192; Adams v. Hopkins, 5 Johns., 252; Parsons v. Bowdoin, 17 Wend., 14; Campbell v. Cothran, supra.) It seems, from the cases above cited, that when the sheriff is prevented by the act of the party, his commissions are to be measured by the amount which he is directed to collect, unless it appears that the property levied on is of insufficient value to make such amount, in which case the value of the property is the measure. And the case of Parsons v. Bowdoin (supra) seems to warrant the position that in estimating the value of the property for such purposes, incumbrances upon it are not to be deducted.

The defendant’s counsel insists that as the sheriff had reasonable ground to doubt Huntington’s title to the property, he was not only not bound to levy, in the absence of indemnity, but it was his duty not to levy, but to call a sheriff’s jury to try the title. Probably such would have been the duty of the sheriff, if the attorney had not interfered and expressly directed him to levy notwithstanding the claim of the assignee. And although, even then, the sheriff was under no obligation to levy, unless indemnified, yet, having done so, relying upon the promise of the attorney to furnish indemnity, the party in whose favor the execution issued cannot now be heard to object that the levy was unauthorized, for the purpose of depriving the sheriff of his fees.

The sheriff claims also poundage for levying on real estate, but we do not think that part of his claim is supjiorted by the evidence as it now stands. It does not appear that he in fact levied on the real estate or did any act whatever in respect to it, or that he was directed to levy on it by the attorney.

The result is that the nonsuit should be set aside and a new trial ordered, costs "to abide event.

Talcott, P. J., concurred; Hardin, J., not sitting.

Nonsuit set aside and new trial ordered, costs to abide event.


text:
    PASCAL P. PRATT, Appellant, v. THE BUFFALO CITY RAILWAY COMPANY and others, Respondents.

      Land sold with reference to a map having a public square thereon — right of purehasei's.

    Where an owner of land makes and files a map thereof, on which streets and public squares are designated, and thereafter sells lots with reference thereto, the purchasers of such lots, where the public squares have subsequently been ■used as highways, acquire such an easement therein as to authorize the issuing 'Of an injunction, on their application, restraining a railroad from laying its track therein, without compensation made to them therefor.
    Appeal from an order of the Erie Special Term, vacating a temporary injunction order, restraining the defendants from constructing a-railway in a public square or thoroughfare in the city of Buffalo, known as “ Cazenovia terrace.”

      Sherman S. Rogers, for. the appellant.

      George W. Cothran, for the respondents.
   Smith, J.:

If the plaintiff had no property in the “ terrace,” or in the soil covered by it, except the right to use it as a public highway in common with every other citizen, he would present no case for the equitable interposition of the court to prevent the defendants from constructing their railroad, pursuant to the authority vested in them by the common council, although the construction and use of the road would result in special damage to him as the owner of land adjoining the “ terrace.” This position, his counsel concedes. But he claims an easement in the “terrace,” as private property, by purchase and grant. It appears that he is the owner of an undivided half of a lot of land fronting on the “ terrace,” his title to which is derived by several intermediate conveyances from the Holland Land Company, which company, in the year 1814, being the owner of a large tract of land, a portion of which is now included in the city of Buffalo, made and filed a map of said portion of the tract, in which the same was laid out into lots, and certain streets and open squares were designated, and among other open grounds was “ Cazenovia terrace,” and it has substantially ever since been used as a public highway. The plaintiff's deed bounded his land by the exterior line of the “ terrace.” These facts are not denied, and it seems to result from them that the plaintiff is entitled as a purchaser to have the space of ground, designated on the map of the original proprietors as the “ terrace,” left open forever as a street, and as was said by Allen, J., in White's Bank of Buffalo v. Nichols (64 N. Y., 65), “ to. the right of using the way for every purpose that may be usual and reasonable for the accommodation of the ¿granted premises.” Although the use to which he is thus entitled may be in no wise different from that possessed by the public ; yet his right to it, thus acquired, is independent of the public right, and it caimot be taken away or impaired by the public authorities of the city, or State, without his consent, except by the constitutional exercise of the right of eminent domain. 'That his legal right would be as above stated, if he owned the fee of the terrace,” subject to the public easement, is settled by abundant authorities. Why should not the easement in the terrace,” which he holds in his own right, be equally protected?

That this private right of way will be impaired by the construction of the proposed railway can hardly be denied. In the language of Judge Daniels at Special Term, it will be “ subordinated” to the railway. We are not prepared to hold that it can be subjected to the purposes of the railway company without the consent of the owner, except upon making him compensation.

The order of the Special Term should be reversed, with ten dollars costs and disbursements to the appellant.

Talcott, P. J., and Hardin, J., concurred.

Order of Special Term reversed, with ten dollars costs and disbursements to the appellant.


author: Hardin, J.:

text:
    JOHN MAHAR, Plaintiff, v. THE GRAND TRUNK RAILWAY COMPANY, Defendant.

      Contributory negligence— when a question for the jwy.

    When a railroad company stops a. long freight train lipón a street, where there • are several tracks, and breaks it in two, leaving an interval of but a few feet between its cars, for the passage of travelers on the highway, and a traveler, picking his way along, as best he can, and using his eyesight steadily to apprehend the approach of cars, on the tracks, from either direction, receives an injury from a car suddenly “ kicked ” back and along one of the tracks, in such a manner as to escajie his attention, the question of his contributory negligence should be submitted to the jury.
    Motion for a now trial, on exceptions ordered to be heard, in the first instance at the General Term, after a verdict in favor of the plaintiff.
    The action was brought to recover damages for injuries sustained by the plaintiff, while crossing Tonawanda street, in.the city of Buffalo.
    Evidence was given tending to establish that defendant, by negligently “kicking” cars across that street, near Amhurst street, injured the plaintiff; and also tending to establish the amount of damages occasioned to him thereby. The only question presented by the appeal was, whether there was sufficient evidence to justify submitting to the jury the question, whether the plaintiff, at the time of receiving the injuries, was free from contributory negligence. The plaintiff was passing northerly along Tonawanda street, and found that a train of freight cars had been stopped across the street, and broken in two, a space having been left between the cars for teams and persons to pass, about the middle of the street. The plaintiff was struck by a car “kicked ” from the Amhurst street side, and approaching his left, from the city or southerly side of Tonawanda street. He says : “I looked to the right and left and saw nothing coming, and heard no bell or whistle, except the one in my rear, and went along till the car coming from the left — from Amhurst street — struck me ; it was a freight car ; I did not notice the car at all until I was struck, except I felt a sort of shadow of a car just the instant I was struck ; I was knocked down and my hand got upon the track and was run over ; there was no bell rung-, and there was no man' on the car that I saw ; there was no locomotive attached to it; I am familiar with the locality; I was struck on the third track from the river side ; there were buildings to the left which hid the view of the track towards Buffalo ; there was the flag-house, the water-tank and the switch-house-.” On his cross-examination he said: “ The engine that I watched as I was crossing over came from towards Tonawanda ; I was struck on the left shoulder, and saw a shadow of it the instant it struck me; I jumped after I saw the engine and had passed before it; 1 looked both ways, tó the left and then to the right, and saw nothing in either direction; I was hurt on the third track from the river; there were six tracks there in a bunch ; after I passed through the space on the first track, there was nothing in my way to prevent my looking up and down the other tracks, no more than the train on the right side that would take my attention; after I got over the first track and over on to this track, I could look up the track, may be ten or twelve rods ; I saw the cars way off, down to the left of me ; I guess I was within a track or two of the Canada Southern track when I looked to the left; I looked twice to the left; the last time I looked to the left I was two tracks away, I guess ; I was about two tracks "away from the third track from the river; that was the track I got hurt on.” He said : “When I passed the cars on the first track, I looked to my left and looked to my right; on. the railroad lands there were buildings ; there was a water-tan!?:, a flag-house and a watch-house, and as you looked towards the south and looked up the railroad track, to see if anything was coming, those buildings would shade the sight a good deal and I could not see.” It appeared the Grand Trunk engine was making up a train from its track and the Canada Southern track. The distance from Amhurst street crossing to Tonawanda street is about 100 feet. “It would take a couple of minutes to 1 kick ’ a car back from the switch.”
    • John O. Strang, for the plaintiff.

      JE. O. Sprague, for the defendant.
   Hardin, J.:

The defendant presents for our consideration, in this case, a single point, to the effect that the plaintiff did not show that he was free from contributory negligence at the time the injuries were received. Our attention is directed to Reynolds v. The N. Y. Central and H. R. R. R. Co. (58 N. Y., 248). In that case the school boy' was killed while crossing a highway by a train of cai’s, and there was no evidence that he looked in the direction from which the train was coming, which struck and killed him. Ten feet from the crossing the engine might have been seen 750 feet.

It was held in that case that “ the proof did not warrant the jury in finding that there was no negligence on the part of the deceased.” This case before us is clearly distinguishable from that one, for the plaintiff has sworn that he did look to the “left” to apprehend, if possible, any approaching train. Besides, there is much better opportunity to ascertain the approach of a train in motion, than the approach of a car suddenly “kicked” along a switch, as in the case before us. So, too, Cordell v. N. Y. C. and H. R. R. R. Co. (6 Hun, 467), differs from the one before us, in-respect to many of the facts attending the crossing. There was no positive evidence as to the acts of the deceased, up to the instant of the accident as in this case, yet it was held upon the evidence in respect to obstructions, and in respect to what the deceased was seen to do just before he was struck, in respect to ascertaining the approach of a train, that it was properly submitted to a jury to find whether, or not, the deceased was free from contributory negligence.

When a railroad company stops its long freight train upon a-street and breaks it in two, so as to leave but a few feet for a traveler along the highway to pass between its standing cars, and he picks his way along as best he can, using his eyesight steadily to apprehend the approach of any other cars from either direction, and receives an injury from a car suddenly “kicked” out and along a track in such a manner as to escape his attention, the court cannot say, as a matter of law, that ho was guilty of contributory negligence. (Massoth v. Del. and Hud. C. Co., 64 N. Y., 530; Haycroft v. Lake Shore and M. S. R. R. Co., id., 636).

The direct proof given by the plaintiff, as a witness, and 'the facts and circumstances attending the location of the cars, the situation of the tracks, the extent of the obstructions, were such as to call for inferences which would support the conclusion that the party injured was free from negligence, or establish the Comtrary. (Carr v. N. Y. C. and H. R. R. R. Co., 60 N. Y., 633; Wood v. Village of Andes, 11 Hun, 544.) The case was properly submitted to the jury. The motion for a new trial must be denied and judgment ordered for the plaintiff upon the verdict.

Talcott, P. J. and Smith, J., concurred.

New trial denied and judgment ordered for plaintiff on the verdict.


author: Talcott, P. J.:

text:
    ALBINA ELY, as Executrix, etc., of LORENZO ELY, Deceased, Respondent, v. THOMAS W. CLUTE AND JOSEPH B. CLUTE, Appellants.

      JTote — when joint and several — when the testimony of one defendant in behalf of his co-defendant not excluded by section 829 of the Code of Civil Procedure.

    This action was brought upon a promissory note, made by the defendants to one Ely, the plaintiff’s testator. The note read: “ One day after date I promise to j?ay,” and was signed by both defendants. Upon the trial, the defendant, J. B. Clute, to establish the- defence of usury, called his co-defendant, and. offered to prove by him the usurious agreement made with the deceased, the offer expressly stating that the evidence was to be used solely for the benefit of the defendant, J. B. Clute, and not in behalf of the witness. Under the plaintiff’s objection, the evidence was excluded as inadmissible under section. 829 of the Code of Civil Procedure.

      Meld, that the note was, in law, a joint and several one, and that separate judgments might be rendered against the two makers.
    That as the testimony of the witness was to be used solely in behalf of his co-defendant, and-not in his own behalf or interest, it was not excluded by section 829 of the Code of Civil Procedure, but should have been received.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, .after a verdict in favor of the plaintiff.

      Morriss é Bussell and Lambert, for the appellants.

      G. jD. Murray, for the respondent.
   Talcott, P. J.:

This is an appeal from an order made at the Chautauqua Circuit, denying a motion for a new trial, made upon the minutes of the court. The action was upon a promissory note, in the words and figures following, to wit:

“ $270. Stockton, March 14, 1875.

“ One day after date I promise to pay Lorenzo Ely, or bearer, two hundred and seventy dollars at the post-office in Stockton. Value received with use.

“THOMAS W. CLUTE.

“J. B. CLUTE.”

Thé defendants, Thomas W. Clute and Joseph B. Clute, had answered, each for himself, setting up the defence of usury to the note in suit, founded upon a certain alleged agreement, made by and between the defendants and Lorenzo Ely, the payee named in the note.

Lorenzo Ely was dead at the time when the trial came on, and the plaintiff, Albina Ely, his executrix, was substituted in the action as plaintiff, in her character as the executrix of the estate of Lorenzo Ely, the payee named in the note.

On the trial, the defendants’ counsel called as a witness Thomas W. Clute, one of the defendants, as a witness on the part and behalf of Joseph B. Clute, his co-defendant, for the purpose of establishing, in behalf of said Joseph B., the alleged usury, as set up in the answer, and offered to prove by him the corrupt and usurious agreement set forth in the answer. The offer was expressly stated to be in behalf of said Joseph B., and not in the behalf or interest of the said Thomas W., or to prove in his behalf the said defence, or in any way to establish any defence for, or in behalf of the said witness or in his interest.

The plaintiff objected to the witness giving evidence of any of the allegations contained in the answer, tending to show a corrupt and usurious agreement between Lorenzo Ely, the deceased, and the witness, on the ground that the witness was incompetent to prove a personal transaction with the deceased. The objection .was sustained by the court under section 829 of the Code of Civil Procedure, and the defendant, Joseph B. Clute, in whose behalf the testimony was offered, excepted to the ruling. A similar offer was made in behalf of the defendant, Thomas W. Clute, to prove the same facts, in his behalf and interest, by his co-defendant, Joseph B. Clute, which offer was also objected to ; the evidence was rejected by the court on the same grounds, and the defendant, Thomas W. Clute, excepted to the ruling.

A note, “I promise to pay,” etc., and signed by two- persons, is, in law, a joint and several note. (Edwards on Bills and Notes, 682; Hemmenway v. Stone, 7 Mass., 58; Marsh v. Ward, Peake’s Rep., 130.)

Separate judgments may be rendered against the different makers, in such a case. (Code of Civil Procedure, §§ 1204, 1205.) Suing the defendants jointly does not affect the right of either to any order or other relief to which he would have been entitled if separately sued. (Code of Civil Procedure, § 455.) Under section 399 of the Old Code, the witnesses offered in this case would probably have been incompetent, from the fact that each was a party to the action. Under section 829 of the Code of Civil Procedure, a witness is not excluded merely because he is a party to the suit.

In order to be incompetent to testify concerning a- personal transaction against the executor, etc., of a deceased person, in regard to a personal transaction or communication between the .witness and the deceased, he must be called to testify, or his testimony must enure to the benefit of his own behalf or interest. In the case at bar, the testimony of either witness could not enure to his own interest or behalf, as he was expressly offered only in behalf of the other defendant.

Eor example: If Thomas W. Clute had been examined, as offered, and his testimony had established the usury, in behalf of Joseph B. Clute, and there had been no competent witness who •could prove the facts in behalf and interest of Thomas W. Clute, the plaintiff, notwithstanding the testimony of Thomas W. Clute would have been entitled to a verdict against him; for his evidence was not offered, nor was it receivable in his own behalf or interest.

The effect of the change made in the Code was recognized by this department in the case of Allis v. Stafford (14 Hun; 418) ; see, also, Richardson v. Warner (13 Hun, 17), and Alexander v. Dutcher (70 N. Y., 385).

We think the ruling excluding the witnesses, as offered, was •erroneous.

The order denying a new trial is reversed, and a new trial is. ordered, costs to abide the event.

Smith and Hardin, JJ., concurred.

Ordered accordingly.


text:
    In the Matter of the Petition of the LOCKPORT AND BUFFALO RAILWAY COMPANY for the Appointment of Commissioners to settle the points and the manner of crossing the track of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, etc. THE SAME, as to the points and manner of crossing the tracks of the NEW YORK. CENTRAL AND HUDSON RIVER RAILROAD COMPANY, and the BUFFALO AND NIAGARA FALLS RAILROAD COMPANY. THE SAME, as to the points and manner of crossing the tracks OF THE NIAGARA BRIDGE AND CANANDAIGUA RAILROAD COMPANY.

      Right of one company to eross the tracks of anotho' — power of commissioners to control the manner of so doing — compensation for — how determined — chap. 140 of 1850, sec. 28, sub. 6.
    Subdivision 6 of section 28 of chapter 140 of 1850, authorizes one railroad td cross the tracks of another, and provides that if the two corporations “ cannot agree upon the amount of compensation to be made therefor, or the points and. manner of such crossing and connections, the same shall be ascertained and. determined by commissioners to be appointed by the court.”

      Meld, that the commissioners, in determining “ the points and manner of such crossing and connections,” were not to confine themselves solely to the question of the points at which, and the mechanical means and appliances by which the crossing was to be accomplished, but should determine all such particulars respecting the manner of crossing as would ordinarily be provided for by the contract between the companies, if they had been able to agree; and not only such as pertain to the interests of the companies, but also such as related to the public safety, e. g., whether one or the other train should come to a full stop before entering on the crossing, whether a flagman should be employed, etc.
    In determining the amount of compensation to be awarded to the company, the track of which is crossed, the commissioners should not confine themselves to determining the value of the real estate actually taken and the damage occasioned by cutting the rails, but should allow all actual and direct damages occasioned to the contestant by the taking of the land for the purposes of, and resulting from its being used in the manner mentioned by the petitioner..
    Appeal by the several respondents above named, i. e., by all the above named corporations other than the petitioner from an order made at Special Term, confirming the report of the commissioners in the above entitled matters.

      A. P. Leming, for the appellant.

      George Powen, for the respondents.
   Talcott, P. J.:

This is an appeal from the order of the Special Term in Niagara county, confirming the report of the commissioners, appointed at a Special Term of this court, sitting in the county of Erie, to ascertain and determine the points and manner of crossing the tracks of the several railroads named in the titles above, and the compensation to be made therefor, under subdivision 6 of the 28th section of the general railroad act. (Chap. 140, Laws of 1850.) The act provides that every corporation formed under the act shall, in addition to the powers conferred upon corporations in the 3d title of chap. 18 of the 1st part of the Revised Statutes, have power. * * * (Section 28, subdivision 6.)

“To cross, intersect, join and unite its railroad with any other railroad before constructed, at any point on its route, and upon the grounds of such other railroad company, with the necessary turn outs, sidings and switches, and other conveniences in furtheranee of the objects of its connections, and every company whose railroad is, or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensar tiem to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined by commissioners, to be appointed by the court as is provided in this act in respect to acquiring title to real estate.”

It is understood that the various tracks of railroads indicated -in the title of the proceedings are all in the use and occupation of The New York Central and Hudson River Railroad, under various titles, and used indiscriminately in the business of the latter road, and the three cases above entitled were, by the consent of the respective parties, heard together as one case.

The commissioners assembled, pursuant to the order appointing them, heard testimony pro and coú, and having viewed the premises made their tnree several reports, which were substantially transcripts, mutatis mutandis.

The petitioner, The Lockport and Buffalo Railway Company, moved for an order confirming the report of the commissioners, and from the order made at the Special Term confirming the said report, the respondents in said petitions severally named, in fact The New York Central and Hudson River Railroad Company appeal, claiming the right of appeal under section 18 of the said act of 1850.

The evidence is printed only in the case of The New York Central and Hudson River Railroad Company, and the report of the commissioners in that case will be taken and considered as the report of the commissioners in the matter, though we are not advised whether there were three separate trades, nominally appertaining to the three separate railroads, but in fact, used and operated by The New York Central and Hudson River Railroad Company, or only one track, the crossing of which entered into the consideration of the commissioners, and the compensation for crossing which was determined by them.

The commissioners report that they have ascertained and do determine that the points of such crossing shall be “ as fixed, determined and located by the surveyed and located route of the petitioners’ road, as set forth in said petition, and at the angle therein indicated and specified, and that such crossing be at the grade or level of the said New York Central and Hudson River Railroad Company, at that point, as now used and operated, and that the same be effected by the use and means of crossing plates or “frogs,” in general use upon railroads in this country, to be put in and laid by and at the expense of the petitioners in this matter, the road bed of the petitioners’ track to be graded from the outer limits of the land of, or used by, the said New York Central and Hudson River Railroad Company, to its road bed, in the usual manner so as nearly as may be to permit the free passage of water in the present ditches on either side of said last named company’s track, the said petitioner to have the right so to construct, within the limits of its road, one track, and when, in its judgment,, the business upon its road shall require it, one additional track. That the compensation to be paid by the petitioner for such crossing, and the facilities and conveniences in furtherance thereof be the sum of $300.”

The said report contains the further additional statement:

“ For the purpose of saving the legal rights of the parties, we do further report, that in arriving at the above compensation, and after hearing all the testimony in the case, we have determined that the term “ compensation,” as employed by the statute under which this proceeding is had, does not include the additional expenses of operating the contestant’s road by reason of the crossing, or the damages by reason of delays, or to the rolling stock, which the contestant sought to prove in this proceeding, and -we have allowed nothing therefor. The evidence upon these points was fully received, without objection, and considered by the commissioners, and will be found in the testimony annexed to this report.”

It will be-seen^that the only points which the commissioners have determined as to the manner of crossing are, that the crossing shall be at grade and by the use of plates or “frogs” to •be put in and laid at the expense of the petitioner. The commissioners seem to have based their determination upon the theory, that all which they were required to determine was the mere mechanical means and appliances to be made use of in effecting the crossing.

This, we think, is too narrow a construction of the statute. There are other considerations which, we think, should enter into a determination of the manner of crossing between intersecting railroads which have an important bearing, not only upon the interests of the intersecting roads, but upon the question of the safety of persons and property to be transported across the intersection. Such, for instance, as which road has the right of way in the supposable case of two trains, one upon each of the intersecting roads meeting at the point of intersection. The determination of which train, in such circumstances, should have the precedence, could not with safety be left to the, perhaps, reckless zeal of the employes of the two railroads or to those of either, or to their discretion, which experience shows is not to be at all times wholly relied on. Some provision is required to guard against accidents, likely to result from an incautious exercise of such discretion. Such provisions would doubtless be made in any contract between the owners of two intersecting roads, if the two roads had been able to agree and settle by contract between the parties, and it is only in case the parties arc unable to agree upon the terms and manner of crossing that the court is authorized to appoint commissioners to determine the matter. In the absence of any provisions of law upon the subject, save-only the general rules relating to negligence, we think the commissioners, who are to determine the manner of crossing, are authorized to determine and award in regard to all such particulars respecting the manner of crossing, as would be ordinarily provided for by the contract between the railroad companies directly affected by the crossing, and such as appertain not only to the interests of those companies, but such as relate to the public safety, and that all such particulars should be considered and provided for by the commissioners appointed under the act of 1850 to determine the manner of crossing. For example, that one or the other train, on arriving at the point of intersection, or' each, should come to a full stop before entering upon the crossing. At all events, such a rule should be applied to trains running out of schedule time. A flagman should be stationed at every such intersection to give notice of danger to an approaching train, and. various other provisions insuring, so far as possible, safety to the ..trains of the respective roads, and to the public might well, we think, be the'subject of the determination of the commissioners as to the manner of crossing; and in confining their determination solely to the question of the mechanical means and appliances by which the crossing is to be accomplished, we think the commissioners have erred in the construction of the statute. Of course, we cannot undertake to determine in detail what particular provision should be made in regard to the manner of crossing which will tend to insure the greatest safety ; but the means by which that is to be secured, in as great a measure as possible, must be left-to the commissioners in view of all the circumstances of the case.

We also think the commissioners erred in the principle adopted by them as the basis of their determination as to the amount of compensation to be awarded to the contestants as for the damages-to be sustained by them by such crossing. We do not mean that-the remote or consequential damages which, it may be conjectured, will result from a depreciation of the traffic of the contestants’ road from the construction and operation of the road of the petitioner, or even the damages from the conjectural delays to' which the contestants’ road may be subjected. For these are-matters which may well be supposed to have been considered by the Legislature when it enacted the statute conferring the right-to make such crossings and connections, independent of the consent of the company whose track it is proposed to cross. But-the right to have and operate the defendant’s road is a right of property, axxd so far as that is ixxterfered with and directly rendered less valuable by the crossing of the petitioners’ road iix the manner determined upon, we do xxot see why the coxxtestaxxt is-not entitled to such daixxages as will necessarily and directly result from the crossing. (Sixth Ave. R. R. v. Kerr, 72 N. Y., 330.) For instance, if any additional expenses, in operating the appellant’s road, should be rendered necessary by the fact of the> crossing.

We cannot tell how far the commissioners carried the rule of exclusion adopted by them, or whether they determined that any direct, damages would be occasioned to the contestaixt by the crossing other-than by the occupation of so much of the contestant’s real estate as was used for the crossing. But if it was apparent that, in consequence of the crossing, the contestant would necessarily be put to an increased expense in operating its road at the crossing, although we cannot see how it would be so, if nothing is required to be done except as reported, yet if the commissioners could determine that it would necessarily be so, we think the contestant was «entitled to have the matter considered as a part of the compensation to which it was entitled, as much as though the contestant "had been the owner of property on which was situated a mill or other manufactory, a part of which property had been taken under the right of eminent domain, and the taking, of the part so taken, would in some way have rendered necessary the substitution of other machinery, which could be operated only at a greater «expense than that for which it was substituted.

We. think, therefore, that the principle adopted by the commissioners, announced by them, was erroneous, because, as we understand it, it confined the compensation to be awarded to the contestant to the value of the real estate actually taken, and the cutting of its iron rails, without reference to the actual and direct damages to the contestant by the taking thereof for the purpose and to be used in the manner mentioned, and without being able to say that any such damages would bo sustained by the contestant from the crossing in the manner specified in the report of the commissioners, we must reverse the order confirming the report of the commissioners, for the reason that, in our opinion, they adopted a wrong principle as the basis of their award of compensation, by which they were excluded from any consideration of the damages which might be occasioned to the contestant from the additional expense to which it might be necessarily subjected at the crossing, and by reason thereof We were referred by the respondent on this subject to the case of the Lake Shore and Mich. Southern Railway Co. v. The Cincinnati, etc., Railway Co. (30 Ohio State Rep., 604, also reported in vol. 16 Am. Railway Rep.). That was a case which was decided upon the construction and effect of a statute of the State of Ohio, passed in 1860, entitled .an “ act to prevent collision on railroads,” which statute, recognizing the right of one railroad to cross another at a common grade, provides, amongst other things, that “ the crossing shall be made and kept up, and watchmen maintained, at the joint expense of the companies owning the said tracks.” It further requires all trains and engines passing over said tracks to come to a full stop not nearer than 200, nor more than 800, feet from the crossing, and not to attempt to cross until the signal is given, and it prescribes the order and precedence of trains and engines in making the crossings. It was hold, in that case, upon the express provisions and general intent of the statute of 1860, that in a proceeding under that statute by one corporation to appropriate a strip of land across the track of another, to be used in common by each as a railroad crossing, at a common grade, the owner of such track has no right to recover, as consequential damages,, the additional expense of operating its road, caused by complying with the conditions of the act of 1860, which provided that the crossing should be made and kept up, and watchmen maintained, at the joint expense of the companies owning the tracks. But it was also held, in that case, that in a proceeding under the statute to appropriate such right of way, the owner of the track proposed to be crossed is entitled to compensation for the property or interest therein actually appropriated, arid for such consequential damages, not provided for by the act of 1860, as are the direct and approximate consequence of such appropriation.

We have no such or similar statute in this State. The Ohio statute indicates proper precautions to prevent collisions, which experience has shown to be necessary to the public safety and to the interests of the intersecting roads. And we think, in the absence of any legislative provisions relating to the subject,'and in case of a failure of the companies whose roads intersect, to agree upon the manner of crossing and the compensation to be paid therefor, that it was .considered that the power and duty to fix the terms upon which and the manner in which the crossing should be made would devolve upon the commissioners to be appointed by the court, and that the said commissioners have the power, and it is their duty, in such a case, to prescribe the use of all necessary precautions to prevent collisions at such railroad crossings.

Had the commissioners reported that a flagman or watchman should, at all times, be maintained at the crossing to signalize any -approaching train, and to indicate whether the crossing might be safely made, then, of course, if any part of the expense of maintaining such flagman or watchman, was to be paid by the contestant, the expense of operating its road would be so much enhanced by the crossing, and we think such an item would necesssarily enter into any estimate of the compensation to be made to the contestant for damages which it sustained by reason of the •crossing.

We do not undertake to intimate what precautions against collision should be provided for, nor to specify precisely what should be compensated for. Those matters are left by the Legislature to another and a different tribunal, but we think it is evident that the commissioners, in this case, have proceeded upon a misconception of their powers and duties under the statute; and have, therefore, adopted erroneous principles as the basis of their report.

The order of the Special Term of Niagara county, confirming the report of the commissioners in this matter is reversed, and the said report is set aside, and it is referred to any Special Term to be holden in the eighth judicial district, to appoint the same, or any other three persons; one of whom shall be a practical civil engineer, to ascertain and determine the points and manner of crossing, specified in the petition, and the amount of compensation to be made therefor, with ten dollars, costs in one case, and the disbursements.

Smith and Hardin, JJ„- concurred.

Ordered accordingly.