text:
    LYMAN SOULE, Respondent, v. WILLIAM D. LUDLOW AND OTHERS, APPELLANTS.

      Mortgage—Worecloswre by advertisement—mortgagee regarded as trustee—bound to act in good faith—Sale—when opened— whore subsequent mortgage is collateral to another secu/Hty.

    A mortgagee in the execution, by advertisement, of the power of sale contained in his mortgage, is regarded as a trustee executing a power in trust, and is bound to conduct the proceedings in a fair and just manner and in good faith. Relief will be granted setting aside such proceedings upon the same grounds upon which a court would set aside a sale had under foreclosure by action.
    Where a subsequent mortgage is merely collateral to another security, the mortgagee must first exhaust the security he holds from the principal debtor before he will be allowed, upon equitable grounds, to set aside a sale of the mortgaged premises had under a prior mortgage.
    Appeal by defendants from a judgment in favor of plaintiff, ordering a resale of premises sold under a mortgage foreclosure, and an appeal by plaintiff from an extra allowance of costs, granted on the ground that the case was difficult and extraordinary.
    There were two mortgages upon the same land in Wilna, Jefferson county? The first was for $3,500; the plaintiff’s, a subsequent mortgage, was for $5,000. The prior mortgage was held by the Theological Seminary at Auburn, and the second mortgage by plaintiff, who held it by assignment from Mr. Goss, the mortgagee, which assignment was not recorded.
    In the fall of 1871, Ludlow took an assignment of the prior mortgage to himself and went to Carthage, in Jefferson county, and conimenced and completed a statute foreclosure by advertisement. He swears he mailed a notice to Mr. Goss from New York (which Goss never received), but sent none to plaintiff, though he knew of the unrecorded assignment to plaintiff. Neither plaintiff nor Mr. Goss heard anything of the foreclosure until January, 1872.
    Plaintiff commenced this action as soon as he learned the facts, asking for a resale, offering to protect defendants, and to bid enough, if the sale should be opened, to pay both mortgages.
    The referee sustained the complaint and ordered a resale, holding that Ludlow’s conduct was inequitable. The defendants moved after this for an extra allowance of costs. The Special Term granted the motion and gave an extra allowance.

      J. F. Sta/rbuok, for the appellants.

      James JR. Gox, for the respondent.
    The principles on which a sale is opened, are digested in 2 Hill, on Mort., 200; etc.; Brown v. Frost (10 Paige, 246 and cases cited); May v. May (11 id., 201); Jencks v. Alexander (id., 620); Howell v. Mills (53 N. Y., 322); Thompson v. Mount (1 Barb. Ch., 607); Goldsmith v. Osborne (1 Edw. Ch., 561); Hoppock v. Conklin (4 Sand. Ch., 585); Lansing v. McPherson (3 John. Ch., 424); Cole v. Moffitt (20 Barb., 19); Brown v. Frost (10 Paige, 248); Billington v. Forbes & Marsh (10 id., 487). As assignee of the prior mortgage of $3,600, and proceeding to foreclose and sell the property, with knowledge of the existence of subsequent liens, Ludlow was a trustee for the plaintiff. (Jencks v. Alexander, 11 Paige, 624, and cases cited; 1 Powell on Mort., 9 note; 1 Hill., 92, 97.) As such trustee he was bound in good faith to sell the property for the highest price he could procure. (Pr. Ld. Eldoh, Hill on Trustees, 479.) It is the duty of the trustee to act impartially for the benefit of all the parties interested. (54 N. Y., 328; Hill on Trustees, 479, 480; Ord v. Noel, 5 Madd., 440;. 6 id., 10; Pechel v. Fowler, 2 Anstr., 550.) It follows that this trustee Ludlow, deliberately violated his duty as such. First. In overstating his debt; and second, in omitting notice to plaintiff. (Tuttle v. Jackson, 6 Wend., 226; Jackson v. Post, 15 id., 588.)
   E. Darwin Smith, J.:

Upon the facts found by the referee, the plaintiff, as the assignee of a junior mortgage, is clearly entitled to relief in equity in respect to the foreclosure of the mortgage executed by Edwards, and assigned to the defendant Ludlow by the Auburn Theological Seminary, and by him foreclosed as stated in the pleadings and case. The decision of the referee that the plaintiff was entitled to redeem said premises, is, I think, correct, and in accordance “with equitable principles. The courts of equity regard a mortgagee in the execution by advertisement of the power of sale contained in his mortgage, as a trustee, executing a power in trust, and bound to conduct the proceedings relating to the foreclosure and sale of the mortgaged premises, in a fair and just manner, and in good faith. Relief will be given by suit to set aside foreclosure proceedings by advertisement, whenever by any fraud, mistake, deceit, or unfair contrivance or practice or bad faith, in conducting the proceedings of the foreclosure or sale, the rights of the mortgagor or of subsequent incumbrances have been injuriously affected upon pretty much the same grounds as the court would recognize as sufficient for opening the sale if the foreclosure had been by action.

Upon the facts disclosed in the evidence in the case, the plaintiff was entitled in equity, I think, as the referee has substantially found, to the right to redeem or open the sale, to the same effect as if the foreclosure had been by action, and he had not been made a party to the suit. It is true that the assignment of the mortgage to him by Goss was not recorded, and perhaps in strictness at law, it was sufficient to serve notice upon Goss, the mortgagor; but it is quite apparent that such service in this case, with the omission to serve any notice upon the plaintiff, was a practical fraud upon him. Goss had no interest to protect, in respect to such foreclosure, and if he received said notice, which he denied on the trial, he probably paid, or would be likely to pay, no attention to it, presuming that a like notice would also be served upon the plaintiff. The defendant, Ludlow, who instituted and conducted said foreclosure proceedings, as the referee finds, well knew that the plaintiff was the assignee and owner of said mortgage, for he had paid to him, or to his attorney, several installments of interest thereon, and knew that Goss had no interest in said foreclosure.

It is true that Ludlow complied in form with the provisions of the statute, in serving, as he testified he did, the notice of sale upon Goss the mortgagor, the plaintiff’s assignment from Goss not being on record; but that was a mere compliance with the letter, and not with the spirit of the statute. The registry acts were not designed to facilitate or cover frauds, but to protect grantees or mortgagees of real estate who were subsequent purchasers in good faith and for a valuable consideration, of the same real estate. The defendant Ludlow, is not within the equity of the statute. He was bound in good faith to have served notice of the foreclosure upon the plaintiff, and his omission to do so, under the circumstances of this case, as held by the referee, was a sufficient ground in equity to allow the plaintiff to come in and redeem said mortgaged premises from a sale thus inequitably had, procured and conducted. So far, therefore, as the decision of the referee asserts and allows the right of the plaintiff to redeem said premises, and to set aside said foreclosure and sale, it is right and should be affirmed. But as the application of the plaintiff is to the equitable power of the court, and relief can only be given upon equitable grounds, it is the right of the defendants also to have equity done them in the disposition of the cause. It is quite clear, from the facts found by the referee and the evidence in the cause, that the plaintiff’s mortgage was in fact nothing more than collateral to a mortgage given to Goss, by Tuttle and his wife, who were the principal debtors, and was given further to indemnify said Goss against his liability in the suit by Kennedy against said Goss, then pending to enforce a debt or liability of said Tuttle as against said Goss. The mortgage which Tuttle gave to Goss for his indemnity against said suit, was the primary fund for the payment of the amount of such recovery, and the defendants have a clear right to have the security given .by the principal debtors exhausted, before resort is had to the mortgaged property held by them.

The plaintiff testified on the trial that he held a bond and mortgage, assigned to him by said Goss, made by Harriet F. Tuttle to Goss, January 18, 1869, for $5,250, and that this mortgage was assigned to him at the same time when said Goss assigned the Edwards mortgage, and that the property covered by said mortgage he ascertained at the time to have been worth $8,000 or $10,000. It appears by Exhibit Ho. 2, in the case, being an agreement signed by C. H. Tuttle and H. F. Tuttle, by O. H. Tuttle, attorney, and by A. Sherman, that the said mortgage of Edwards to Goss was given for the sole benefit of said H. F. and C. H. Tuttle, and was to be paid by one of said parties without any claim or demand upon said Sherman. It is clearly equitable, therefore, that the plaintiff should first exhaust the security he holds from the principal debtors, before the court, for his benefit, should set aside or open the sale upon the foreclosure of the Edwards mortgage, or that he transfer such security to the defendants, in case they elect to discharge the amount of his claim under said mortgage upon the premises covered thereby. The referee declined to pass upon these equities, because said Tuttle and his wife were not parties to the action, and said bond and mortgage given by them to said Goss was not given in evidence. But the facts above stated appear in evidence, and I presume cannot be changed or disputed. In this view, I think the judgment may be modified and made interlocutory, affirming the views of the referee in respect to the plaintiff’s right to redeem said mortgage, and charge said mortgaged premises in the defendant’s hands with whatever sum shall remain or be justly chargeable thereon, to satisfy the plaintiff’s claim upon the said mortgage so held as collateral to Tuttle’s mortgage to said Goss, and as an indemnity against the said Kennedy suit and judgment, after the plaintiff shall have exhausted his security upon the said Tuttle mortgage, or accounted for the value thereof, and that it be referred back to the same referee, or to a new referee, to take proof in respect to the said Tuttle bond and mortgage, and to ascertain the value thereof, over and above all liens, claims or incumbrances on said property, either upon a foreclosure of the same, suspending said reference for that purpose, or by proof of its value, and to report what amount the plaintiff is entitled to receive from the Edwards mortgage in discharge of his debt, upon the principles herein stated, treating said Tuttles as the principal debtors, and bound to pay said debt before resort is had to the said Edwards mortgage, and that the said referee report to the court at Special Term; and that all other questions and equities, including the question of costs, be reserved till the coming in and confirmation of such report.

Present — Hullin', P. J., Smith and Dwight, JJ.

Ordered accordingly.

       Jencks v. Alexander, 11 Paige, 624; Ellsworth v. Lockwood, 42 N. Y., 89.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    FREDERICK P. WILSON, Appellant, v. THE CITY OF WATERTOWN, Respondent.

      Municipal corporation—streets of—dangerous condition of—streets include sidewalks —Laws of 1850, chap. 140, § 28, sub. 5 — 3 Edm. St., 627 — Neglect of duty of B. B. Go — when city liable for — when B. B. Go. liable over to city.

    It is the duty of a municipal corporation to keep the streets under its control at all times in a safe condition, and it is liable to a person who has sustained an injury in consequence of Its neglect of that duty.
    Sidewalks are comprehended in the term streets.
    The fact that the dangerous condition of a street resulted from acts of a railroad company, for which the railroad was liable to the city, does not exonerate the city from liability for injuries resulting to a person by reason of the condition of the street. All wrong-doers are severally liable to the party injured. The general railroad act, which gives a company authority to occupy a street of a municipal corporation with its tracks, does not release the corporation from liability for injuries sustained by a person arising from the dangerous condition of such street. In case such condition of the street results from the neglect of duty of the railroad, it will be liable over to the city for the damages recovered against it by reason of such neglect.
    Appeal from an order made at the Jefferson Circuit granting a nonsuit, from an order made at Special Term denying a motion to set aside the nonsuit, and from a judgment entered in favor of the defendant on such orders.
    The Carthage, Watertown and Sacketts Harbor Railroad Company is a corporation authorized to build a railroad from the village of Carthage, in Jefferson county, through the city of Watertown, in said county, to the village of Sacketts Harbor, in said county. In August, 1873, said railroad company being about to construct their railroad through the city of Watertown, the common council of said city passed a resolution whereby permission was granted to said railroad company to build a railroad track across and along certain streets in said city, naming them (among which was Mill street), upon complying with the general statutes of the State in regard to crossing streets by railroad companies. In pursuance of said resolution of the common council, the said railroad company, on the 4th day of January, 1874, commenced to construct their track across said Mill street, and in doing so raised an embankment some three feet above the surface of the street. Where the embankment was made, the stone of the sidewalk had been taken up and piled on each side of the walk.
    On the morning of the 15th of January, 1874, a little before daylight, the appellant going north on the west side of Mill street, slipped, fell and was injured; and he brought this action against the defendant to recover damages for the injuries he had sustained. On the trial the appellant was nonsuited. A motion made at Special Term to set aside the nonsuit was denied; and from the order directing a nonsuit, the order denying a new trial, and the judgment entered in the case, the plaintiff appealed.

      I). O’Brien, for the appellant.
    When, by the charter of a city, the common council has the powers of commissioners of highways, the city is liable for their acts. (Conrad v. Trustees of Ithaca, 16 N. Y., 158 and note; Clark v. City of Lockport, 49 Barb., 580; Hines v. City of Lockport, 60 id., 378.) They must keep the sidewalks in repair. (Graves v. Otis, 2 Hill, 466; Hines v. City of Lockport, 60 Barb., 378; Walker v. City of Lockport, 43 How., 366.) The sidewalk is a part of the public street. (Wallace v. The Mayor, 2 Hilt., 440; 9 N. Y., 163, 168-169; 4 id., 630; 1 Denio, 601; Thompson on Highways, 329.) Both the city and the individual whose duty it is to repair or build the walk, are liable to a party injured by a defective walk. (Davenport v. Ruchman, 37 N. Y., 568; 50 id., 236; 2 Hill, 466.) And the word “ streets ” includes “ sidewalks.” (Sherman & R. on Neg., § 385.) When a public body has power to do an act which the public interest requires to. be done, the execution of the power may be insisted upon though the statute is merely permissive. (Hines v. City of Lockport, 50 N. Y., 236, and cases there cited; S. C., 60 Barb., 378; 16 N. Y., 158 and note.) The city is liable for any omission or neglect of the common council to repair and keep both streets and sidewalks in a safe condition. (Mosey v. The City of Troy, 61 Barb., 580; Ellis v. The Village of Lowville, 7 Lans., 434; 27 Barb., 218; 32 id., 634, is disproved in 44 id., 385.) The absence of funds, or power to raise funds, to repair a street or sidewalk, is a matter that must be pleaded and proved as a defense. (50 N. Y., 238.) A rule of the common law will not be regarded as changed or repealed unless the legislature has manifested an intention to do so by the words of the act. (Renwick v. Morris, 7 Hill, 575; Dwarris on Stat., 678; Renwick v. Morris, 3 Hill, 621; Clark v. Brown, 18 Wend., 220; Colden v. Eldred, 15 John., 220; Platt v. Sherry, 7 Wend., 238; Burnham v. Onderdock, 41 N. Y., 425.) If a party has a right of action at common law, and a statute gives an affirmative or additional duty or remedy, without any negative, express or implied, he may elect as to which remedy he shall pursue, or may have both. (Almy v. Harris, 5 John., 175; Swarthout v. N. J. Co., 46 Barb., 226; Hardmann v. Bowen, 39 N. Y., 198; Small v. Herk. Manufacturing Co., 2 id., 349.) The duty of the railroad to restore the street, that it had rendered dangerous, was a matter between itself and the city. (Dillon on Munich Corp. [2d ed.], § 796, note 2; Laws 1855, chap. 255; Sherman & R. on Neg., § 393; Currier v. Lowell, 16 Pick., 170; Clark v. City of Lowell, 1 Allen, 180; Davis v. Town of Leominster, 1 id., 182; Johnson v. Salem Turnpike, 109 Mass., 522; Pollard v. Woburn, 104 id., 84; Woburn v. Boston & L. R. R., 109 id., 283. See, also, 109 id., 197, 204, 446; Dillon on Munic. Corp., § 796, and case in note; Hutson v. The Mayor, etc., 5 Sandf., 289; 9 N. Y., 163; Wendell v. The City of Troy, 39 Barb., 329; 4 Keyes, 261. See, also, Walker v. Caywood, 31 N. Y., 51; Ploedteril v. The Mayor, Law Journal, No. 12, Sept. 19, 1874, page 186 [Ct. of Appeals].) The railroad is liable over to the city for any judgment recovered against it in this action. (Lowell v. B. & L. R. R. Co., 23 Pick., 24; Woburn v. B. & L. R. R. Co., 109 Mass., 283; Dillon on Munic. Corp., § 796.) When the obstruction is caused by the order or authority of the city, as in this case, no notice is necessary. (Dillon on Munic. Corp., § 790; 39 Barb., 329.) Notice is presumed from the existence of the defect for such a reasonable time as would enable the defendant’s officers to discover the same. (Requa v. City of Rochester, 45 N. Y., 129; McCarthy v. City of Syracuse, 46 id., 194; Davenport v. Ruckman, 16 Abb., 341.) They are chargeable with all the knowledge that could have been obtained by watchfulness and inquiry. (Am. Law Reg., vol. 13, p. 334.) But whether the street was dangerous or the plaintiff negligent was for the jury. (108 Mass., 580; 107 id., 339; 105 id., 82; 27 Barb., 228; 50 id., 115; 32 id., 144; 39 How., 414; 49 N. Y., 521; 4 Robt., 344; 24 How., 176; 35 N. Y., 38 ; 57 Barb., 651, 652; 3 Kern., 533; 51 Barb., 644; 32 id., 568 ; 51 id., 105-114.)

      John Bansing, for the respondent.
    The railroad company was bound to restore the street to such state as not unnecessarily to have impaired its usefulness, and to maintain and keep the street in such state. (The People v. The Troy & Boston R. R. Co. [S. T.], Miller, J., 37 How., 427; affirmed, October 25, 1870.) The same doctrine is held in Moshier v. Utica & Schenectady R. R. Co. (8 Bar., 427, G. T.). The city was not bound to repair the same, and therefore was not liable to the plaintiff for any damage sustained by him by reason of _any defect or want of repair thereof. (Sawyer v. Inhabitants of Northfield, 7 Cush., 490-498; Young v. Yarmouth, 9 Gray, 386.) No duty being imposed on the city to repair or build sidewalks, if the owners of lots fail so to do, the city may do so at the expense of the owner; the city is not responsible for damages happening by reason of such neglect. (Cole v. Village of Medina, 27 Bar., 218; Peck v. Village of Batavia, 32 id., 634; Hart v. City of Brooklyn, 36 id., 226; Harrington v. Village of Corning, 51 id., 396; Diveny v. City of Elmira, 51 N. Y., 506; Ellis v. Village of Lowville, 7 Lans., 434; Hyatt v. Rondout, 44 Bar., 385; Requa v. City of Rochester, 45 N. Y., 129.) The appellant was himself guilty of negligence and cannot recover. (Wilds v. H. R. R. Co., 23 How., 492.) If negligence on the part of the plaintiff is shown, it is the duty of the judge to nonsuit. (Bernhardt v. R. & S. R. R. co., 23 How., 167.) The appellant was bound to show affirmatively that he was not guilty of any negligence contributing to the injury. (Button v. H. R. R. Co., 18 N. Y., 248.) If the nonsuit was proper on any grounds taken at the trial, the judgment should be affirmed. (Day v. Crossman, 1 Hun., 570-573.)
   Gilbert, J.:

The duty of municipal corporations like the defendants, to keep the streets under their control at all times in a safe condition, and their liability to a person who has. sustained an injury in consequence of their neglect or breach of that duty, have been conclusively established in this State, and it is now pretty well settled, that sidewalks are comprehended in the term streets. It cannot be necessary to go over the decisions upon this subject. A reference to some of the cases in which the salutary rule of law stated, has been asserted and approved, will suffice. The plaintiff was injured while passing along Mill street, in the city of Watertown. He brought this action to recover compensation for that injury, and was nonsuited. The only reason assigned for the nonsuit, was, that the liability of the defendants had been shifted to, and imposed on, the Carthage, Watertown and Sacketts Harbor Railroad Company, and that the defendants had been relieved therefroin. This anomalous result seems to have been drawn from the following facts. The railroad corporation was organized pursuant to the general railroad act. That statute authorized them to construct their railroad upon and across the street mentioned, with the assent of the defendants, but not without such assent; and it required the railroad company to restore the street to its former state, or to such state as not unnecessarily to have impaired its usefulness. The defendants formally consented to the construction of the railroad across the street, subject to the charter, by-laws and ordinances of the defendants, and to the maps and profiles then on file, upon the railroad company’s complying with the general statutes in regard to crossing streets, and under that consent the railroad was constructed across the street. The immediate cause of the plaintiff’s injury, appears to have been a pile of curb or gutter stones, against which he was precipitated; and it may be inferred that the railroad company made the pile, although that fact was not distinctly proved. Nor does it appear whether the railroad company failed to comply with the restrictions imposed by the defendants as a condition of permitting them to cross the street. Assuming, however, as was done by the court below, that the dangerous condition of the street was attributable to the railroad company, and that such fact made it liable to the plaintiff, it does not follow that the defendants were exonerated from liability to the plaintiff. On the contrary, the rule is, that all wrong-doers are severally liable to the party injured. A municipal corporation may not be liable for an injury caused by a nuisance in a street, created without its authority or sanction, of the existence of which it had no notice. But the nonsuit in this case was not put upon that ground, nor does that question arise here, for the reason that there was, at least, some evidence from which the jury might have been warranted in finding that the defendants had notice of the nuisance which caused the injury to the plaintiff. The only ground on which the nonsuit could be sustained, would be that on which it was placed by the court below,, namely, that the railroad company being authorized by the legislature to do what they did, and being charged with the duty of restoring the street, the control of the defendants over the street was suspended, and their duty in respect thereto was superseded to a corresponding degree. But this position is untenable. The acts which the railroad company were authorized to do, were not necessarily incompatible with the duty of the defendants to keep the streets in a safe condition. The effect of the legislative authority was merely to render acts legal, which, without it, might have been illegal. It contains no language which expressly, or by reasonable implication, modifies or abrogates the duty which the law had cast upon the defendants, or the liability consequent upon a neglect of that duty. The duty and liability therefore remained. It is the common case of the doing of a lawful act which renders a street unsafe, such as making excavations in it for water-pipes, drains, gas-pipes, areas, etc. These privileges, if not incident to ■ ownership, require only the authority of the municipality to make the exercise of them lawful. Bnt it is, nevertheless, the duty of the municipality ' to protect the citizens against danger arising from the negligent exercise of them. In case injury ensues from such cause, he who makes the excavation and the municipality are each liable. So in this case, if the acts of the railroad company constituted a nuisance, they and the defendants are each liable for their own breach of duty; the former for placing a nuisance in the street, and the latter for not removing it thereform, or affording the necessary protection against danger, by means of lights and barriers. We cannot, on this appeal, determine the liability of the railroad company; but if the injury of which the plaintiff complains, was caused by their neglect of duty, they are primarily liable, and, in case of a recovery against the defendants, they will have a right of action against the railroad company. But the fact that the railroad company is liable to the plaintiff, and may be liable ultimately to the defendants, does not absolve the latter from their liability to the plaintiff, No reason is perceived why it should have that effect. The defendants were adequately protected in the first instance, by the power which they possessed of imposing such reasonable conditions as they deemed proper, upon the railroad company. By this means, they were enabled to regulate and control the manner of doing the work,.and thus to insure the safety of the street, or to get an indemnity against all liability for injuries happening by reason of its having-been rendered unsafe. If they failed to exercise those powers, it was their own fault. Furthermore, the remedy over will, in most cases, be found an effectual shield against undue responsibility. We are of opinion, therefore, that nothing has been shown, which makes this case an exception to the general rule of law, governing municipal corporations, before stated.

Upon the other questions presented on the motion for a nonsuit, we agree with the court below, that there was enough in the evidence to require the submission of the case to the jury.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Present — Mullir, P. J., Smith and Gilbert, JJ.

Order and judgment reversed, and new trial granted, costs to . abide the event.

       Hutson v. Mayor, 5 Seld., 163; Conrad v. Trustees of Ithaca, 16 N. Y., 158; Weet v. Brockport, id., 161; Congreve v. Smith, 18 id., 79; Davenport v. Ruckman and The Mayor, etc., of New York, 37 id., 568.

       Laws 1850, 323, § 28, sub., 5; 3 Edm. Stat., 627.

       Robbins v. Chicago, 4 Wall., 657; S. C., 2 Black, 418; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 476.

       Dill. Mun. Cor., §§ 794, 795, 796 and cases cited; Wendell v. City of Troy, 39 Barb., 329; S. C., 4 Keyes, 261; cases last above cited.


text:
    ELIZABETH GOETZMAN, Administratrix, etc., of JACOB GOETZMAN, Deceased, Plaintiff, v. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Defendant.

      Policy of inmrance — defense that assured was hilled in act of adultery — when such hiding murder—jury to determine between intentional hilling and hiding in heat of passion.

    In an action on an insurance policy which provided that “ if the assured shall die by suicide or in consequence of his violation of any law,” it appeared that the assured was shot by one Hesler, immediately after he had had criminal intercourse with his (Hesler’s) wife; held, that as the killing was done not while the assured was in the act of adultery, nor in the defense of person or property, that it was a crime, and could not be treated as the natural and legitimate effect of the act of adultery.
    A charge to the jury, that if Hesler killed the assured because he had committed the act of adultery, it was not murder, was error. The judge should at least have submitted to the jury the question whether Hesler fired the pistol with intent to kill, or whether the killing was in the heat of passion caused by the act of adultery, and to instruct them that in the former case the defense failed.
    Exceptions ordered to be heard in first instance at General Term. The action was brought to recover $14.-2 upon a policy of insurance on the life of Jacob Goetzman. The policy contains a provision that “ if the assured shall die by suicide or in consequence of his violation of any law, ” the policy shall be null and void. The answer alleged that said Jacob came to his death while engaged in acts of adultery with one Catharina Hesler, wife of one John Hesler, the said Jacob having been discovered and caught by said John Hesler in the acts of illicit and unlawful intercourse with his wife, and that while so engaged in such unlawful intercourse, the said John shot the-said Jacob to death; and defendant alleged that the death of said Jacob was the natural and reasonable result and consequence of his unlawful acts with the wife of said John Hesler. The proof in the case tended to show that just after having committed adultery with Mrs. Hesler, the assured was shot and killed by her husband.
    The judge charged: “It is a violation of law for a man to interfere with the most sacred relations we have in social life. When he undertakes to commit adultery with the wife of his neighbor, he has violated the law, and if the death he suffers grows out of that fact, then the policy is forfeited, and he has no right to recover, or his representatives have not, the amount of the policy if the death be caused in that way. * * * He was shot by the person whose rights he had thus invaded. Whether Hesler saw him or not is not absolutely material in this case. If he saw him in the act of adultery, or under such circumstances as was satisfactory evidence to him that he had committed adultery, then he had a right tó shoot him, if he did it directly after the offense. Not exactly the right; but the law is careful of the feelings of individuals in that regard, and has so much respect for the natural impulses of a man who is placed under circumstances of that kind, that it says he does not commit murder, so that while the commission of that act is fresh, and he shoots a person under circumstances that satisfy him that the act has been committed; and it is entirely immaterial for this purpose, whether the husband saw the act or not. If he was actually doing the illegal act, and the death resulted as a consequence of that act, then the plaintiff is not entitled to recover in this case, and the whole question for you is, whether this death resulted from the fact—was the consequence — of the act and his being there and committing adultery with some person else’s wife. If it was, he is not entitled to recover. The condition referred to in the policy was not violated, if it was not the consequence of that act; and if that be so, plaintiff is entitled to recover; and if you can find from the' evidence in this case any other reason for the husband shooting, except from the fact that he was there having improper relations, or in an improper manner with his wife, then you may give a verdict for the plaintiff; if you can find no other fact, nothing to warrant you, no other reason for the husband shooting him under the circumstances, except from the understanding that he had been and committed this violation of his rights, then the defendant is entitled to your verdict.”
    The plaintiff excepted to that part of the charge, “ where it was stated that it was not necessary for him to see him in the act of adultery.
    “ Also, where it was stated that it was right for a husband to shoot a man if he was there in a position that inferred that he was committing adultery.
    “ Also, that the commission of adultery was a violation of the law.”
    The jury found for the defendant, and the court ordered a stay of proceedings for thirty days, in which to make a case and exceptions, and ordered the same to be heard in the first instance at the General Term.

      J. C. Cochrane and Wm. M. Bates, for the plaintiff.

      X). Pratt, for the defendant.
    The commission of adultery is not only a violation of the most sacred rights of a man, but justifies him, or at least excuses him, for taking the life of the adulterer, if caught, flagrante delicto. (2 Bish. Cr. L., § 708; State v. John, 8 Ire., 380; Same v. Samuel, 3 Jones [N. C.], 74; 2 Wharton, § 389.) Adultery, of all provocations, is recognized by the law as the highest and strongest. (State v. Will, 1 Dev. & Bat., 121, 169.)
   Gilbert, J.:

The learned justice at the circuit certainly gave to the jury an erroneous exposition of the law of homicide, as the same is administered in this State. But we need not stop to discuss that subject. The case comes before us upon exceptions taken by the plaintiff at the trial.

At the close of the testimony, the plaintiff moved, in effect, that the court direct a verdict in her favor. We think that motion should have been granted. The condition of the policy is, that “ if the assured shall die by suicide, or in consequence of his violation of any law,” the policy shall be void. Assuming that the act of adultery was a violation of law, within the meaning of the parties to the contract of insurance, we are of opinion that the assured did not die in consequence of it. The undisputed facts show that he was killed, not in the act of adultery, nor in defense of person or property. The offense had been completed, and the assured was about to go away. He was not, therefore, at the time he was killed, violating any law, or even committing a trespass, for he was in the house by the license of the wife, from whom the husband had separated.

Our law plainly denounces an act like that perpetrated by Hesler, as a crime, and we can conceive of no principle upon which it could properly be treated in a court of justice as a natural or legitimate effect of the cause stated. It wonld be more reasonable to conclude from the evidence, that Hesler assassinated the assured in cold blood, lying in wait for that purpose, and that he was actuated by jealousy or a wish for revenge. The fact that the interval between the injury and the killing was short, is not, in this instance, material. If the assured had been killed a week or a year after the injury, for the same cause, it would have been quite as direct a result thereof as when it was done. In short, the proposition' that a man, who has been thus wantonly killed by another, without necessity or lawful excuse, died in consequence of his own act, is logically contradictory, unless it be admitted that the killing of an adulterer follows his offense in the ordinary sequence of events. That admission, we are not prepared to make.

If, however, it was proper to submit the case to the jury, we are of opinion that the charge of the learned judge was erroneous, and that the exceptions, although not as precise or specific as they should have been, are sufficient to bring the subject before us.

The jury were told that, if Hesler killed the assured because he had committed the act of adultery, it was not murder ; and they might properly have inferred, and probably did infer, from the language of the judge, that such killing was excusable, if not justifiable. They were also instructed that if they could find no other reason for Hester’s shooting the assured, except his understanding that the assured had committed adultery with his wife, then the defendant was entitled to a verdict. This was equivalent to a positive direction to find a verdict for the defendant; .for there was not even a pretext, much less any evidence, of any other excuse for the killing. The motive and intent of Hesler in doing the act, were practically withdrawn from the consideration of the jury by the statement that the killing was not criminal, and they were permitted to find a verdict for the defendant, notwithstanding the killing was on account of a past injury. We must dissent from all this. The inference that Hesler killed the assured, not under an impulse produced by an adequate provocation, but merely to revenge himself for what the latter had done, is a reasonable, if not a necessary one, from the evidence; and unless the circumstances attending the transaction were such as to justify a reduction of the crime below the grade of murder, the case was not within the condition of the policy. It was, therefore, to say the least, the duty of the judge to submit to the jury the question, whether Hosier fired the pistol with intent to kill, or whether the killing was in the heat of passion, caused by the act of adultery committed by the assured, and to instruct them that if they should find the former to have been the case, the defense failed.

For the reasons stated, the exception must be allowed, and a new trial must be granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       Bradley v. Mut. Ben. Life Ins Co., 45 N. Y., 422, 429, et seq., and cases cited.


author: Gilbert, J. :

text:
    DANIEL B. BEACH, Respondent, v. CLARINDA HOLLISTER, Appellant.

      Effect of conveyance of real estate to husband and wife — Bight of purchase)' of husband’s interest at execution sale—effect on, of subsequent divorce procu/red by wife.

    Where land is conveyed to husband and wife, they are not properly joint tenants or tenants in common, but are both seized of the entirety. The statutes relating to the property of married women, do not destroy the legal unity of husband and wife, or change the rule of the common law governing the effect of conveyances to them jointly. Under such a conveyance the husband has a right of possession of the property during the joint lives of himself and wife.
    The interest of the husband therein is subject to sale on execution; and a purchaser at an execution sale, not made with reference to the contingency of a divorce, is not affected by a subsequent divorce a vinculo, but becomes invested with the right to occupy and enjoy the profits of the land as owner, during the joint lives of the husband and wife; subject to the contingency that if the wife so divorced, survives her husband, the purchaser’s estate will then terminate; but that if the husband survives, such purchaser will become the absolute owner of the whole estate.

      Ames v. Norman (4 Sneed, 683) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      This was an action of ejectment brought by. the plaintiff to recover a house and lot in the city of Rochester, purchased by him at a sale under an execution issued on a judgment recovered against one Orange Owen, to whom and his wife the premises in question had been previously conveyed. After this sale Owen and wife conveyed to one Calvin W. Owen, who subsequently conveyed to one Cox, from whom the defendant derived his title. After the sale of the property under the execution issued against Orange Owen, his wife procured an absolute divorce from him on the ground of adultery.

      J. O. Cochrcme, for the appellant.

      Daniel B. Beach, respondent in person.
   Gilbert, J. :

We see no reason to doubt the correctness of the judgment appealed from. The effect of the conveyance by Charles L. Pardee and wife, to Orange Owen and Julia Ann, his wife, and their heirs, is correctly stated by the appellant’s counsel. The statute making an estate granted to two or more persons a tenancy in common, unless declared to be a joint tenancy, does not apply to the conveyance of an estate to husband and wife. If an estate in land be given to a husband and wife, they are not properly joint tenants, nor tenants in common; for they are but one person in law, and cannot take by moieties, but are both seized of the entirety. This species of tenancy arises from the unity of husband and wife. Under such a conveyance, the husband has a right of possession of the property during the joint lives of himself and wife; and, in case of his surviving his wife, he becomes entitled to the fee.

We are of opinion that the interest of the husband in this case, was subject to sale on execution. What a man can sell himself, can, on execution, be legally sold for his debts; and it has been repeatedly held in this State, that the husband, in a case like this, has the absolute control of the estate of his wife during his life, and may mortgage, lease and convey his interest. It would appear, also, that his contingent interest, dependent upon his surviving his wife, may be sold. But if it should be held that the possibility of survivorship of the husband did not pass to the plaintiff by virtue of his purchase at the execution sale, it would not affect the validity of the sheriff’s conveyance, for that conveyance would still be operative to pass whatever interest the judgment debtor had. The sheriff’s deed, in contemplation of law, is that of the judgment debtor, In the present case, that interest was at least the possession and usufruct of the property during the life of the husband. The husband being still alive, the plaintiff is entitled to recover the possession of the property. If the wife survives the husband, she will take the estate discharged of his debts, and of any rights acquired by the plaintiff as purchaser at the execution sale, for the reason that she takes it by virtue of the grant in the original conveyance, and not under or through her husband. But the husband’s interest may be sold under execution during coverture.

It appears that after the purchase by the plaintiff, the wife of the judgment debtor obtained a decree for an absolute divorce against him, on the ground of adultery. Upon this, it is contended by the appellant’s counsel, that such divorce terminated the right of the husband; that so far as the property in question is concerned, it is the same as if he were dead; and that the rights of the plaintiff as purchaser at the execution sale cannot survive the rights of the judgment debtor himself. JNo authority for this proposition has been cited. We think that, inasmuch as an estate during the life of the husband was lawfully sold and conveyed to the plaintiff, such estate must continue until it has been terminated by the death of the husband, unless the statute regulating divorces operates to destroy it. The provision of that statute is as follows: “ If the wife be the complainant, and a decree dissolving the marriage be pronounced, and she shall, at the time of pronouncing such decree, be the owner of any real estate, or have in her possession any goods,” * * * «all such real estate * * shall be her sole and absolute property.” It may be added, that the decree of divorce provides that the wife may have and hold to her own separate use, all and singular the property and effects whatsoever, now in her possession, which may at any time heretofore have belonged to the husband.” The property in controversy is not embraced in the statute or in the decree, because, as already shown, the wife is not entitled to possession until after the death of the husband. Until that event has happened, the plaintiff is entitled to hold and enjoy the estate, and to take the whole estate in case the husband survives his former wife.

In the case of Ames v. Norman, the precise point under consideration was very ably discussed and decided. It was there held, that the purchaser at an execution sale, acquires the interest that was vested in the husband. If the husband survives the wife, the purchaser at the execution sale becomes the owner in fee of the entire estate; and a purchaser at an execution sale, not made with reference to the contingency of a divorce, is not affected by a subsequent divorce a vinculo, but becomes invested with the right to occupy and enjoy the profits of the land, as owner, during the joint lives of the husband and wife, subject to the contingency that if the wife so divorced survives her former husband, the purchaser’s estate will then terminate, but that if the husband survives, said purchaser will become the absolute owner of the whole estate.” This is in accordance with the decisions of our courts before cited, and in our opinion the rule of law upon this subject is there correctly stated. With respect to the point that the plaintiff’s title to the property has been waived, it is sufficient to say that no such defense is pleaded, and that the conveyance to the plaintiff was on record when the defendant purchased, and thus any equitable claim founded on lack of notice was destroyed.

It has been suggested on the part of the respondent, that the acts for the more effectual protection of the property of married women, have changed the nature of the estate created by a conveyance like the one in question, and that, by the operation thereof, Owen and his wife took each an equal undivided one-half in fee, as tenants in common. To this - we cannot assent. Those statutes operate only upon property which is exclusively the wife’s, and

were not intended to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly.

For these reasons we think the judgment appealed from should be affirmed.

Smith, J., concurred.

Mullin, P. J., dissented.

judgment affirmed.

      1 R S., 727, § 44.

       2 Kent’s Com., 182.

       Code, sections 282, 462.

       Barber v. Harris, 15 Wend., 615; Jackson v. McConnell, 19 id., 175; Torrey v. Torrey, 4 Ker., 430; Snyder v. Spenable, 1 Hill, 567.

       1 R. S., 725, § 35; Lawrence v. Bayard, 7 Paige, 70; Sheridan v. House, 4 Keyes, 589.

       1 Rev. Stat., 739, sec. 143.

         R. S., 373, § 62; Cooper’s Lessee v. Galbraith, 3 Wash. C. C., 550; Massey v. Thompson, 2 N. & McCord, 105; McKnight v. Gordon, 13 Rich. Eq., 222, 239.

      4 Sneed, 683.

       Goelet v. Gori, 31 Barb., 314; Farmers’ Bank v. Gregory, 49 id., 155; Freeman v. Barber, 3 N. Y. Sup. C., 575; Fisher v. Frooin, 35 Mich., 350; Diver v. Diver, 56 Penn., 106.


author: Talgotx, J.:

text:
    THE CONHOCTON STONE ROAD COMPANY, Respondent, v. THE BUFFALO, NEW YORK & ERIE RAILROAD COMPANY, Appellant.

      Ownership of land — recitals and covenants in lease—when sufficient evidence of—

      Va/riance — when disregarded — Obstruction of water-cow'se — what must be shown to maintain action for—Authority from State—effect of, on liability of one acting under.

    This action was brought to recover damages, sustained by the plaintiff, from injuries to its road-bed, caused by the water of a stream which was obstructed and thrown back at the time of a freshet, by a bridge and embankment upon the road of the defendant. Upon the trial plaintiff introduced in evidence a lease of the defendant’s road from the defendant to the Erie Railway Company, for 490 years, reserving rents and containing a covenant for quiet enjoyment. Held, that this was sufficient, in the absence of any dispute on the trial, to establish the ownership of the road by the defendant.
    The complaint charged the defendant with constructing the bridge and embankment, while, upon the trial, it appeared that they were created by a predecessor of the defendant, and that it was liable, if at all, for continuing the same. Held, that the discrepancy between the complaint and the evidence was a mere variance, and not a failure to prove the substantial cause of action set forth in the complaint, and that it was properly disregarded.
    Upon the trial the defendant offered to prove by an expert, that the abutments of the bridge were properly and skillfully placed, and sufficient to discharge the water in time of flood, which evidence was, against the objection and exception of the defendant, excluded. Held, that this was error. If the" bridge was built in a careful and skillful manner, with all necessary openings to discharge all the water flowing down the creek in any freshet which might reasonably be expected, the defendant was not liable.

      Bellinger v. JY. Y. O. B. B. Oo. (23 1ST. Y., 42) followed.
    Where one has the sanction of the State for what he does, unless he commits a fault in the manner of doing it, he is completely justified.
    Appeal by the defendant from an order of the Special Term, denying a motion made, on behalf of the defendant, for a new trial.
    The action is to recover damages, sustained by the plaintiff, from injuries to its road-bed, caused by a flood in Mead’s creek, in the town of Erwin, and county of Steuben, in the years 1864 and 1865. It is alleged in the complaint that the defendant built a bridge over Mead’s creek, and made an enbankment on each side of the creek, through the low lands adjoining the creek, so as, in times of floods, to obstruct the flow of the water and turn it upon the plaintiff’s road; it also averred that “ the embankment was wrongfully and unskillfully constructed, and that no passage way or culvert was left or provided for the water to pass through, where it had been wont to flow in times of high water.”
    On the trial it was proved that neither the bridge nor the embankment was built by the defendant. They were built in 1851 or 1852, by the Buffalo and Conhocton Valley Railroad Company. The defendant was not, at that time, in existence, and was not organized until the 20th day of October, 1857. The railroad had, previous to that time, been built by the Buffalo and Conhocton Valley Railroad Company, and was sold on the 28th day of October, 1857, under a judgment of foreclosure of a mortgage. On the 27th day of February, 1863, the defendant leased the railroad to the Erie Railway Company for the period of 490 years, from the 1st day of May, 1863, reserving rent, and covenanting for quiet enjoyment, etc. The Erie Railway Company, on the 1st day of May, 1863, took possession of, and thenceforth operated, the railway under that lease; Mr. Fiske was the assistant superintendent of the Erie Railway. Company, and had charge of the railroad as such assistant superintendent, under the lease, for the Erie Railway Company. The injuries complained of occurred in May, 1864, and in March, 1865, while the Erie Railway Company was in possession of the railway, operating it under the lease. Mr. Fiske had been superintendent of the railroad for the defendant from November, 1857, to the 1st of May, 1863. . The counsel for the defendant, at the close of the plaintiff’s case, moved for a nonsuit, on the ground that the plaintiff had failed to prove that the defendant erected the embankment or bridge, as averred in the complaint; that it had been proved the defendant was not in existence at that time, and did not come into existence for more than five years after the road was built, and that it was originally built in the locus vn quo precisely as it was when the alleged injuries occurred ; that under such circumstances, the plaintiff must allege and prove notice by it to the defendant of the existence and extent of the nuisance, and request an abatement of it. The defendant proposed to prove by an expert that the abutments of the bridge were properly and skillfully placed, and sufficient to discharge the water coming down the creek in times of flood. The jury found a verdict for the plaintiff for the sum of $1,550. A motion was made by the defendant, on a case contain* ing all of the evidence, and on exceptions, for a new trial, which was denied. The Commission of Appeals, at the March term in 1873, decided on an appeal from a judgment rendered in favor of the plaintiff on a former trial in this action, that the plaintiff, in order to recover, must show notice, or a knowledge on the part of the defendant of the existence of the nuisance, but that no request to abate it was necessary, and reversed the judgment. (Oonhocton Stone Road Co. v. The Buffalo, New York a/nd Erie Ra/ilroad Company, 51 N. Y., 573, 582.)

      E. R. Bacon, for the appellant.
    As the railroad and bridge, in question, were built in pursuance of legislative authority, for a public purpose, the party building them is liable, in such case, for damages arising therefrom, only when such damages result from the want of due skill and care in placing the road and bridge with reference to any damages to be reasonably anticipated from floods. (Bellinger v. The New York Cen. R. R. Co., 23 N. Y., 42; Radcliff v. The Mayor, etc., of Brooklyn, 4 Com., 195, 200; Attorney-General v. Hudson Rimer Railroad, 1' Stockton [N. J.], 526; Newark Plank-road Company v. Elmer, id., 754; Selden v. The Delaware and Hudson Canal Company, 29 N. Y., 634, 642.) The complaint contains the allegations requisite to maintain an action against the defendant if it had been the creator of the nuisance. • It does not contain fhe averments requisite and necessary to make out a right to recover against the defendant in the relation the evidence shows it stood to the railroad. (McDonough v. Gilman, 3 Allen, 264; Penruddock's Case, Coke, b. 100 [part 5]; Dodge v. Stacy, 39 Verm., 560, 577; Angell on Water Courses, § 403; 51 N. Y., 573, 576, and cases there cited; Pierson v. Glean, 2 Green. [N. J.], 36.) Evidence of the engineer as to the construction of the bridge was improperly excluded. (Bellinger v. N. Y. C. R. R. Co., 32 N. Y., 42.)

      Geo. B. Bradley, for the respondent.-
    The defendant, having demised the railroad by lease, reserving rent and containing covenants of warranty, is clearly liable for the injuries sustained by plaintiff. (Waggoner v. Jermaine, 3 Denio, 306; Brown v. Cayuga & S. R. R. Co., 2 Kern., 486; Brady v. Weeks, 3 Barb., 161; Moody v. Mayor, etc., of N. Y, 43 id., 282.) The demise affirms the continuance of the nuisance, and it is deemed a continuance by the lessor. (Brady v. Weeks, 3 Barb., 161.) And the continuance is, in law, a fresh nuisance on every occasion when injury is sustained. (Conhocton Stone Boad Co. v. B., N. Y. & E. R. R. Co., 52 Barb., 390; Vedder v. Vedder, 1 Denio, 261; Beckwith v. Griswold, 29 Barb., 291; Staple v. Spring, 10 Mass., 74, 75.)
   Talgotx, J.:

This case has once been .to the Court of A ppeals. On that occasion the Commission of Appeals held and decided that the defendant, not being the party which originally constructed the bridge and embankment (the effect of which in damming up, or setting back, the water of Head’s creek, upon the road of the plaintiff, is complained of), was not liable for the continuance of the nuisance, without notice to it (the defendant) of the existence of the nuisance. On the trial which is set forth in this case, we think the plaintiff did give evidence of such notice. It was conceded by the defendant, on the trial, that Henry C. Fiske was the defendant’s superintendent of this railroad, for the space of time between November 1, 1857, and the 1st of Hay, 1863, at which time the defendant surrendered the possession of the road to the Erie Railway Company, as the lessee of the defendant; and that said Eiske thereupon became assistant superintendent of the said Erie Railway Company, in charge of the road in question down to a period subsequent to the commencement of the action. And testimony was given, tending to show that Hr. Eiske was notified of the difficulty as early as 1861 and 1862, while he was, as before stated, the superintendent of the defendant; and that notice was given by a director of plaintiff’s company, which did not appear on the former trial. The counsel for the defendant objects that no evidence was given to show that the defendant was the owner of the fee of the road. This fact seems to have been assumed on the trial. And it was also proved that the defendant had assumed to lease the road and all its appurtenances to the Erie Railway Company for é90 years, reserving rent, and covenanting for quiet enjoyment, and, in the lease, claiming the road and appurtenances as “ its,” the defendant’s, road, etc. We think this was sufficient, in the absence of any dispute on the trial as to the ownership of the defendant. The complaint charges the defendant with having originally constructed the bridge and embankment, and thus created the nuisance ; whereas, in fact, the nuisance was created by a predecessor in the title, and the defendant is held liable as the owner for continuing the nuisance. These facts all plainly appeared on the first trial, and no objection to the recovery on this ground, appears to have been taken by the counsel or the court. We think the complaint was amendable in this particular, and that the discrepancy between the complaint and the evidence, was a mere variance, and not a failure to prove the substantial cause of action. But an exception was taken by the defendant to the ruling of the court, whereby the evidence of experts as to the care and skill with which the bridge and apertures were constructed, which, under the decision of the Court of Appeals, in the case of Bellinger v. The N. Y. General R. R. Co., we are constrained to regard as fatal to the verdict. In that ease, which, as we understand it, is entirely analogous to the present, the railroad company was sued to recover damages for “ negligently, wrongfully and improperly” constructing its railroad across the West Canada creek, and across the low lands forming the valley of the said creek, by means of which the plaintiff’s lands in the valley, on - the east side of said creek, were repeatedly overflowed, and the soil, fences and manures washed away,” etc. The judge at the trial in that case, had instructed the jury that the company was not bound to guard against every possible contingency, but they were bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur in the stream.” This, Judge Djenio, delivering the opinion of the court, held to be a statement of the rule with substantial accuracy. In that case, as in this, evidence was given, tending to show that the lands in the neighborhood had been at times of freshet overflowed prior to the erection of the structures of the defendant. And the principle laid down in the case, is, that where one has the sanction of the State for what he does, unless he commits a fault in the manner of doing it, he is completely justified.

It seems to be well settled that no action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water, or water collected by thaws and freshets, and which had formerly been accustomed to flow over the land upon which the structure has been erected. It is only for interfering with and obstructing a defined water-course, whereby injury is occasioned to another, that the defendant can be held liable.* If therefore, the water which did the damage in question, in the years 1864 and 1865, was not caused to be set back by the defendant’s interference with Mead creek, but was occasioned by the overflow of that stream from points above the defendant’s bridge; or if the defendant’s bridge over the stream was built in a careful and skillful manner, with all necessary openings to discharge all the watér flowing down the creek, in anyfreshet which might reasonably be expected, then, according to Bellinger's case, above referred to, the defendant was not liable. The gravamen of the complaint in this case, is, as in the case of Bellinger, the alleged unskillfulness with which the structures of the defendant were constructed. And the complaint seems to be based upon the theory that the defendant is bound, by means of culverts or otherwise, to afford a passage across its land for the escape of water which collected on the surface of the adjacent land, and which had been accustomed to flow over the surface of the defendant’s land, whether this collection of water was occasioned by any interference on the part of the defendant, with the defined or recognized stream or not. We think this is a mistake, upon the authorities before .cited, and that the real issue between the parties, was, whether sufficient openings had been left to discharge all the water which might have been reasonably expected to flow down Head’s creek, during any high water or freshet to which that creek was ordinarily subject. And we are unable to distinguish this case, upon any clear principle, from that of Bellinger’s, in which the Court of Appeals ordered a new trial upon the sole ground, that the opinion of an expert, as to the care and skill with which the structures across West Canada creek had been erected, was excluded.

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

Present—Hullin, P. J., and Talcott, J.

Ordered accordingly.

       23 N. Y., 42.

       See Parks v. The City of Newburyport, 10 Gray, 28; Dickinson v. Worcester 7 Allen, 19; Swett v. Cutts, 50 N. Y., 439; Goodale v. Tuttle, 29 N. Y., 466; Angell on Water-courses, § 4.


author: Taloott, J.:

text:
    THE VILLAGE OF FULTON, Appellant, v. JEANETTE P. TUCKER, Respondent.

      Sidewalk—duty of adjacent owner as to — liability of to persons injured, by failwi’e to. keep in repair.

    When a person is injured, in consequence of a sidewalk being out of repair, no action can be maintained against the owner of the adjacent premises, to recover damages therefor, unless the duty of keeping the sidewalk in repair has been imposed upon such owner by some statute or contract. Sidewalks are a part of the highway, and the owner of the adjoining land has no greater duty in regard to keeping them in repair, than he has in regard to any other part of the highway.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      This action was brought to recover the sum of money which the plaintiff had been compelled to pay to one Mary Carr, for injuries received by her, by reason of a defect in the sidewalk in front of the premises owned by the defendant. The plaintiff was incorporated by chapter 176 of the Laws of 1835, as amended by chapter 33 of the Laws of 1862. •
    The plaintiff and her husband resided in the premises in front of which the accident occurred, which were situated on the west side of Second street, in the said village of Fulton, and in front of which a plank sidewalk had, for many years, been built and maintained by the owners and occupants of the adjoining property, under the direction of the board of trustees of the village. During the year 1870, the sidewalk in front of and adjoining the defendant’s premises became out of repair, of which the defendant had knowledge. On the 14tli of October, 1870, the board of trustees passed an ordinance of which the following is a copy, and caused a notice of its passage to be' left at the residence of the defendant.

      “ Be it ordained, That the sidewalks on both sides of Second street, from Cayuga street to Broadway, be repaired and relaid with sound hemlock plank two inches thick or with pine plank one and one-quarter inches thick, said walk to be six feet in width, the whole to be well graded and completed under the direction of the street commissioner, within ten days from the passage of this ordinance.”
    The defendant did not repair or relay said sidewalk; and, on the 3d day of December, 1870, one Mary Carr, a resident of said village, while passing over the same, without any fault or negligence on her part, but owing entirely to the omission to keep in repair the sidewalk, was thrown down, her wrist was fractured, and she was otherwise greatly injured. Subsequently Mary Carr commenced an action against the plaintiff to recover damages for the injuries sustained by her; and recovered judgment thereon for $313.18 damages and costs, which judgment was subsequently paid by the plaintiff.

      E. 8. Pardee, for the appellant.

      8. W. Pader, for the respondent.
   Taloott, J.:

This action was commenced to charge the defendant with the amount of a recovery which had been had against the plaintiff, in an action against it for' negligence, in suffering a sidewalk to be out of repair, by means whereof a party had sustained an injury. The theory of the plaintiff’s claim for indemnity, is, that the defendant, as the owner and occupant of the premises adjoining the sidewalk in question, is primarily -liable. The referee has dismissed the plaintiff’s complaint,' upon the ground that the defendant is not liable to indemnify the plaintiff. We think the referee has decided correctly. We know of no principle upon which an action of this character can be maintained, unless the duty of keeping the sidewalk in repair has been imposed upon the adjoining owner by some statute or contract. Certainly no such duty is imposed by the common law. Whether the easement enjoyed by the public has been bestowed by the owner voluntarily, or has been taken from him by proceedings in invit/um, the extent of the right which the municipal power acquires, in the absence of express contract or legislation, imposing the duty of keeping a highway in repair, is simply to the enjoyment of the easement. It is true, the authority is usually conferred upon the municipality to assess the expense of the improvement upon adjoining lands. This does not impose the duty of making the repairs and improvements primarily on such owner. On the contrary, the village authorities in this case are the parties primarily liable to the duty of making the repairs. The provisions of the charter, under which the trustees of the village passed the ordinance to repair the sidewalks on Second street, whereby the owner of the adjoining premises is authorized, within a specified time, to make the repairs at his own expense, simply confer upon such owner the authority, which otherwise, it being a public highway, he would not have, to do the work and thereby save an assessment on his premises. But whether the owner will avail himself of this privilege, is optional with him.

It may be conceded that where a party is bound to make certain repairs by contract, or where he himself has created a nuisance in a public highway, there he is primarily liable. And in case the municipality has been compelled to pay damages in such a case, it would have a remedy over against the party primarily liable. Id such case, the party injured has his option to proceed by action against the town or the author of the nuisance. The cases cited by the plaintiff’s counsel may all be referred to the rule, that the party sued as liable to indemnify the municipal corporation, was either bound by contract to do the thing, the omission to do which occasioned the injury, or had himself created the nuisance by which such injury was occasioned. The case of Haskell v. The Village of Penn Yan, did not involve any such question, and the discussion of it was expressly waived, in that case, as wholly immaterial.

Sidewalks are, as has repeatedly been held, a part of the highway. The owner of adjoining territory has no greater duty in regard to keeping sidewalks in repair, than he has in regard to other parts of the highway. The village has a mode pointed out, by which it may be indemnified for the expense of repairs upon its highways; and the method pointed out is to be pursued for that purpose. If it suffers its highways to become out of repair, whereby any person has- sustained an injury, for which damages have been recovered against the village, its remedy is upon its contract; or, in case the injury has resulted from any act done by a third party, in the nature of creating a nuisance or obstruction, such party is liable to indemnify the village, upon the principle of the common law.

The judgment must be affirmed upon the opinion of the referee.

Present — Mullin’, P. J., Talcott and Smith, JJ.

Judgment affirmed.

       Angell on Highways, §§ 298, 300.

       5 Lans., 43.

       Wharton on Negligence, § 292.

       Angell on Highways, § 298.


author: Talcott, J.:

text:
    CHARLES PARTRIDGE, Appellant, v. ALBERT C. EATON, Respondent.

      Sunning stream—powen' of legislature lo declare it to le a highway— Chapter 273, Lems of 1872 — meaning of words, ‘1riparian owners ” in.

    The legislature has power to appropriate, by force of its own enactment, any flowing stream to the use of the public as a highway, provided suitable provisions are made to secure to private parties a just compensation for the individual rights which, by the appropriation, are divested, infringed upon, or impaired.
    In 1872 the legislature passed an act (chapter 273, Laws of 1872), declaring Otter creek to be a public highway for the purpose of floating logs therein, and providing that the damages sustained by the riparian owners should be assessed by commissioners. The plaintiff claimed the act to be void, on the ground that he possessed the exclusive right to use a portion of the said creek flowing through lands of the defendant, for the purpose of floating logs, such light having been acquired from the defendant’s grantors, and that no provision was contained in the act to compensate him for the loss of such right. Held,, that the parties under whom the plaintiff claimed, had no right in the stream other than such as vested in them as riparian owners, and that as plaintiff had no greater rights than they had, he was the mere representative of such owners, and was embraced within the description of riparian owners used in the said act.
    Appeal frota a j udgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    This action was brought for an injunction to restrain the defendant from driving logs in Otter creek, the plaintiff claiming that he had the exclusive right to use the creek for that purpose, such right having been acquired by him from the defendant’s grantors. In 1872 the legislature passed an act declaring Otter creek and its tributaries a public highway. (Chap. 273 of the Laws of 1872.) The defendant claimed that he was entitled to use the creek by virtue of the said act.

      George W. Smith, for the appellant.

      O. D. Adams, for the respondent.
   Talcott, J.:

This suit is instituted upon the claim of, and for the purpose of establishing in the plaintiff, an "exclusive right to use Otter creek for the purpose of transporting logs and lumber through a certain portion of said creek, including a portion'which runs through about 8,000 acres, lying on either side of the creek, and of which 8,000 acres the defendant is the owner. The plaintiff founds his claim upon the supposed grant from certain parties who formerly owned the land on both sides of the stream. The grant, however, upon which the plaintiff basis his claim, does not purport to convey any such exclusive right, or any right inconsistent with the rights of other owners of the lands bounding on the creek. The questions arising upon the construction of the plaintiff’s grant, and upon another paper which he claimed to be a license, we think, however, have ceased to be of any importance, as the legislature, by an act passed in April, 1812, have declared the said Otter creek and its tributaries in the counties of Léwis and Herkimer, to • be a public highway for the purpose of floating logs and lumber thereon, and made numerous and careful provisions for the regulation of the use of the stream as such public highway. That this act, if valid, vests the rights specified in the public, and supersedes any exclusive right in any one party, if any such had before existed, cannot be denied. There can be no doubt that the legislature has the power to appropriate, by force of its own enactment, any flowing stream to the use of the public as a highway, provided suitable provisions are contained in the act to secure to private parties a just compensation for the individual lights, which, by the appropriation, may have been divested, infringed upon, or impaired. The only objection suggested to the act in question, is, that the sole provision for compensation is for the payment of damages to riparian owners, and that the plaintiff claims rights, under his grant, more extensive than those that result to him from his riparian ownership of such portion of the lands owned by him, as border upon the creek. But the parties, under whose grant he claims, had no rights to the stream, other than such as vested in them under the rules of law as riparian owners. The right to the use of flowing water is “publioi juris,” and common to all riparian proprietors. It is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors. The grantors of the plaintiff, whatever they may have assumed to do, could not grant to him any rights, except those limited ones which vested in them as riparian owners, because they ■had no more extensive rights themselves. He is, therefore, in any point of view, the mere representative and grantee of the riparian owners, and as s.uch, we think, is embraced within the description of “riparian owners on said creek,” which is contained in the act, and it is to be liberally construed for the purpose of determining to whom the legislature designed compensation should be made. As to all rights to which the plaintiff at the time of the passage of the act of 1872, was lawfully entitled, beyond those which accrued to himself as a riparian owner, if any, we think he was entitled to receive a just compensation under the act, as the lawful representative in the premises of his grantors. The complaint of the plaintiff, that the commissioners appointed under the act, did not award him sufficient compensation, is not in any manner before us for consideration.

Judgment affirmed, with costs of appeal.

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

Judgment affirmed, with costs.

       Angell on Water Courses, § 95. .


author: Dwight, J.:

text:
    THE PEOPLE ex rel. WILLIAM W. WELCH, Appellant, v. EUGENE A. NASH, County Clerk of Cattaraugus County, Respondent.

      Becords in county clerk’s office—not county property — Supervisors—power of, over record!s in county clerk's office— County clerk not agent of county.

    The records of conveyances in the county clerk’s office are not corporate property of the county.
    The county clerk, in keeping such records, does not act as the agent of the county.
    The hoard of supervisors has no power, in hostility to the county clerk, to have indexes made of the records in the clerk’s office.
    Appeal from an order of the Special Term, denying the relator’s application for a mandamus to compel the respondent to give the relator access to, and possession of, the records of deeds, etc., in his office, for the purpose of making new indexes to the same, under a contract with the board of supervisors.

      N. Allen, for the appellant.

      K A. Nash, in person, for the respondent.
   Dwight, J.:

The only question presented by this appeal, is,, whether the board of supervisors had power to make the contract under which the relator claims. Boards of supervisors have no powers except such as are- expressly conferred by statute. The power in question is" claimed for them, under one or the other of the following provisions of law:

1. The general provision of the Revised Statutes, by which the board of supervisors of each county has power “ to make such orders concerning the corporate property of the county as they may deem expedient.”

2. The special provision of the act of 1869, by which boards of supervisors “have, subject to the legal rights.of the officer using the same, the general charge of the books and records of the county, and shall provide for their safe keeping.”

The general provision first cited, does not confer the power contended for, because, first: The records of conveyances in the clerk’s office are not corporate property of the county. The statute defines the corporate property which a county may acquire and hold. It is (aside from lands) only “ such personal property as may be necessary for the exercise of its corporate or administrative powers.”

The records of conveyances, required by law to be kept in the clerk’s office of each county, are not necessary for, and have no-relation to, the exercise of any corporate or administrative power of the county. The county is charged with no duty nor responsibility in respect to such records. The clerk, in keeping them, acts not as the agent of the county. His office is created by the Constitution and laws of the State, and his duty of making and keeping the records in question, is enjoined by law, not- for the benefit of the county or its inhabitants, but for that of the public at large: of all persons whatsoever, capable of holding lands within this State. It is the clerk, not as an administrative officer of the county, but as the agent of the recording act, who is required by that statute to provide the books in which such records shall be kept, and to make the records therein.

In no sense can the making and keeping of such records be said to be the exercise of a corporate or administrative power of the county ; ” and if not, then, by definition, the books of such records are not corporate property of the county.

But, second : Even if it could be conceded that such records were in any sense corporate property of the county, the power in question cannot be derived from the general provision of law. first cited above, because that provision evidently relates to existing corporate property, and does not give power to create or acquire new property. To apply the provision to the particular property in question here, viz., the general indexes of deeds and mortgages; — these volumes are required by law to be made and kept by the clerks of counties, and the same statute prescribes the particular manner in which the indexes shall be formed therein. Conceding, for the moment, that these volumes are corporate property of the county, the provision that the board of supervisors shall have power to make such order concerning them as they may deem expedient, cannot be construed to give them power to have new volumes of indexes made, by some person not authorized by law to make them, and in a manner different from that prescribed by law.

The special provision of the act of 1869, equally fails to confer the power contended for upon the boards of supervisors. It gives to them only the general charge, and requires them to provide for the safe keeping of the books and records of the county (subject to the legal rights of the officers using them). It by no means confers the power to contract for making new books and records. Further on in the section, it does authorize the boards of supervisors to cause copies to be made, when necessary for the preservation of the records, but strictly with the limitation that the officer having the custody and control of the record, shall be the person employed to make the copy, and that such copy shall not be ordered until the county judge, or a judge of the Supreme Court, shall certify that it is necessary.

This statute is very significant in several particulars. First, as a legislative construction of the existing statute defining the corporate property of counties. If the records in question had always been the corporate property of the counties, a special statute was quite unnecessary to give the boards of supervisors the general charge thereof. But, especially, if the boards of supervisors, though charged with the safe keeping of these records, may not even exercise their own judgment as to when an index should be copied for its preservation, and can order such a copy to be made only on the certificate of a judge that it is necessary, the implication is very strong that they may not order new indexes to be made, without such certificate, and without such necessity, whenever a new system of indexing is brought to their attention, which pleases their fancy.

But we are not left to an argument from implication. Both the statutes cited are entirely devoid of provisions, conferring any such power as that contended for, upon the boards of supervisors. We are referred to no other statute containing such provision; and, without such provision, the power does not exist. The order appealed from must be affirmed.

Smith, J., concurs in the result; and he is of the opinion that, whether the title to the records is in the people of the State or the people of the county, or in the board of supervisors, the possession and control of such records belong exclusively to the county clerk; and that the boards of supervisors have no power to interfere with such possession, and cannot authorize any person to use the said records, to make indexes or otherwise, in hostility to such clerk.

Mullís", P. J., dissented.

Order affirmed, with costs.

       1 R. S., 366, § 4, sub. 1.

       1 R. S., 367, § 1.

      Laws of 1843, ch. 199, § 1.


text:
    CHAUNCEY W. GIBSON, Respondent, v. MINNIE E. STETZER and another, appellants.

      Reference—Exceptions to finding— General conclusion — held to embrace what.

    An exception to a finding in the report of a referee, will not be sufficient to bring up the question of the admissibility, under the pleadings, of the evidence upon which such finding was based.
    A general conclusion that the defendant is entitled to judgment for the possession of certain premises, will be held to embrace whatever finding of fact is essential to it; the latter being clearly supported by the evidence and being itself the necessary result of the specific facts already found.
    Appeal from a judgment entered on the report of a referee, in an action of ejectment, in which damages were allowed for the detention of the premises, which, it is claimed by appellant, were not properly allowed under the pleadings. At folio 19 of the case, the question was asked : “ Do you know how that farm has rented for the past five years ? ” The question was objected to “ as incompetent and improper.” The objection was overruled, and an exception taken. Another question of a similar character was asked, objected to “ as incompetent and improper,” and received.

      John Van Voorhis, for the appellants.

      JS. L. Stevens, for the respondent.
   Dwight, J.:

The action was ejectment, and the judgment was for the possession of the premises, with $200 damages for the detention thereof.

It is objected now, that there were no appropriate allegations in the complaint to entitle the plaintiff to the latter branch of the relief adjudged. It is true that there were no sufficient allegations in the complaint to entitle the plaintiff to give evidence of the value of the use and occupation of the premises; and had the evidence upon that question been objected to on that ground, the admission would have been error ; but such objection was not taken.

The question put at folio 19 (to which we are referred) was objected to, only generally, as incompetent and improper, and was not answered. Substantially the same question was answered at folio 21, but the objection was of the same general character,’and did not point to the objection now made. At folio 64 (to which we are also referred) the question was taken without any objection, and at folio '71, the objection stated in the same general form was sustained, and the defendants excepted. In two or three instances, evidence, apparently offered with a view of showing special damage, as by removal of manure, and ploughing up of meadow land, was objected to as not admissible under the pleadings, but that objection was nowhere made to the evidence of value of the use and occupation of the premises.

An exception to a finding in the report of the referee, will not suffice to raise a question of this character. Such an objection must be made at the trial, either to the evidence as offered, or at the close of the plaintiff’s ease, or at the close of the evidence. After the evidence has been received without objection, and the question submitted without .objection, it is too late to make the objection in exceptions filed to the report of the referee. There is nothing in the case to show that the referee’s attention was ever called to the fact that there was not a sufficient allegation of the matter in question in the complaint. Had the specific objection been made in time, the plaintiff might have had leave to amend his complaint, by the insertion of appropriate allegations to cover the proof.

The second objection of the appellants is, that the referee does not find that the plaintiff is the owner of the premises, and entitled to the possession. It is true that this fact is not expressly found. The referee does find that the mortgage (under which the plaintiff claimed) was duly foreclosed, the premises duly sold, and that the plaintiff was the purchaser, and all the other facts necessary to the conclusion that the plaintiff was the owner and entitled to possession of the premises. He also finds, as conclusions of law, “ that the plaintiff is entitled to judgment against the defendants for the possession of said premises.”

It is the well settled rule, that such a general conclusion will be held to embrace whatever finding of fact is essential to it; the latter being clearly supported by the evidence in the case, and being itself the necessary result of the specific facts already found.

The only remaining objection is, that the affidavit of sale is not sufficient: 1st. Because it is sworn to before a notary public; 2d. Because it does not show a sale actually made, nor how much of the land was sold.

To the first branch of this objection, the act of 1863, in relation to notaries public, is a complete answer. In respect to the second branch of this objection, it must be said that the affidavit of sale is not as direct and explicit as it might have been, and yet there can be no question that, taken as a whole, it does contain a statement of all - the facts required to be stated in such an affidavit, viz., of the fact of sale of the premises described in the notice (annexed); of the time and place at which the same took .place; of the sum bid, and the name of the purchaser,

Hone of the appellants’ objections to the judgment being well founded, the judgment must be affirmed, with costs.

Present—Mullin, P. J., Smith and Dwight, JJ.

Judgment affirmed; plaintiff to have leave to amend his complaint by inserting a count for use and occupation.

       See Dewey v. Supervisors, 4 N. Y. S. C. R., 609, and the cases cited.

       Laws of 1863, chap. 508.

       2 R. S., 547, § 9.


text:
    THE PEOPLE ex rel. VAN SICKLE v. HENRY ELDREDGE, Justice of the Peace, etc.

      Highway—meamre of damages in laying out—jury in such proceedings judges of law a/nd fact — Justice of the peace not required to charge jury.

    In determining the damages sustained by the owner of gypsum upon, and of the right to raise and remove the same from, lands over which a highway is to be laid out, the difference between the value of the claimant’s estate or interest without the road, and its value with the road, is the true measure.
    In statutory proceedings for the reassessment of damages for laying out a highway, the jurors are judges of the law and fact.
    A justice of the peace is not required to charge the jury in an action tried before him.
    A common law certiorari issued on the petition of Win. H. Van Sickle, to review proceedings had upon assessment of damages by laying out a highway. One James Fitch was the owner of certain gypsum, and the right to remove it from the land over which the highway was laid out.

      James Ii. Cox, for the relator.
    By the appropriation of land for a highway, the public acquire only the easement, and no interest in the soil, or in the rock below it. (3 Kent’s Com., 432, 433, and in many eases cited under notes c and i; Dunham v. Williams, 36 Barb., 136.) Since Fitch is not the owner of the premises, and his damages, if any, are only incidental and consequential, it is quite doubtful whether he is entitled to recover any damages. (People v. Oneida, 19 Wend., 102.) FT o t withstanding the highway, Fitch would have the right to dig his plaster at pleasure, upon providing for and protecting the public easement. (Williams v. Kenney, 14 Barb., 629; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway, 15 Johns., 447; Galen v. Clyde, 27 Barb., 543; McCarthy v. Syracuse, 46 N. Y., 199.) The justice erred in refusing to instruct the jury as to the law, as requested by the counsel on the part of the town: that Fitch is not deprived of his plaster, nor does the town acquire it; that he will have the right to dig it; that all his damages are the expense he will be subjected to in preserving the highway while digging his plaster. This being the subject debated before the jury, and the justice refusing to instruct them as requested, was equivalent to informing them that the contrary was the law. Assuming, therefore, that Fitch has the right to dig out that particular plaster right away, the question is, not what the plaster is worth, but what damages he will sustain from the inconvenience, if any.

      K. Wood, for the defendant.
    It is well settled that there may be two separate freeholds in the same body of earth measured superficially and perpendicularly down toward the center of the earth, a freehold in the superficial soil, and a freehold in mines underneath this, with the right of access to work the same and extract the minerals there found. (Washburn’s Easements and Servitudes [2d ed.], pp. 7, 14, 558; Caldwell v. Fulton, 31 Penn., 475; Zinc Co. v. Franklinite Co., 13 N. J., 341, 342; Grubb v. Bayard, 2 Wallace, Jr., 81; Wilkinson v. Proud, 11 Mees. & W., 33; Robotham v. Wilkinson, 8 Ellis & B., 123, 142; 1 Penn., 726; 7 Cush. [Mass.], 361; 8 id., 21; 5 Mees. & W. Exch., 50.) The difference in the market value of the property before the road was laid out and the market value after it was laid out, was the correct rule. (Matter of Hamilton Avenue, 14 Barb., 415; Matter of Furman Street, 17 Wend., 649, Bronson, J.; Troy & Boston R. R. Co. v. Lee, 13 Barb., 169; Thompson on Highways, 194.) The justice properly refused to charge the jury as requested. It'is no part of the justice’s duty to charge the jury in such cases. The request to charge wras erroneous, as Fitch was the owner of a freehold estate in" the lands over which the new road was laid out.
   Dwight, J.:

The claimant was the "owner of the gypsum or plaster upon the lands over which the road was laid out, with the right to mine and remove the same. This was an estate or interest in the lands, distinct from that of the owner of the soil, which gave to its possessor an undoubted right to damages to the extent to which his estate or interest was injuriously affected by the laving’ out of a highway over such lands. The measure of damages apparently adopted by the jury, was the correct one, viz., the difference between the value of the claimant’s estate or interest without the road, and its value with the road, as laid out.

Counsel for the relator urged that the claimant should be allowed only what it would probably cost him to remove the road from its official location while excavating the plaster beneath it, and to restore it to such location after the excavation was complete. Of course this is out of the question. " Ho individual is at liberty to deal in this manner with the highways of a town, and, after making an excavation of from eighteen to twenty-seven feet deep, it would be difficult to restore the road to its former condition.

It was no error for the justice of the peace to refuse to charge the jury, even if it had been good law that he was requested to charge. Ho justice of the peace is required to charge a jury in an action tried before him. But in this statutory proceeding for the reassessment of damages, the jury are especially the judges both of the law and the fact. The duties of the justice are mainly, if not wholly, ministerial. He can hardly be said to act judicially in any part of the proceeding. He issues his summons for twelve persons, already selected without his intervention, as jurors; draws by lot six of the number to act in the • proceeding; administers the oath to them, and to the witnesses produced before them, and'certifies their verdict to the commissioners of highways. The jury view the premises, hear the parties and witnesses, and render their verdict under their hands, “ and the same shall be final.”

It is only in case of manifest irregularity in the proceedings, or of clear violation of principle in the assessment of damages, that such a verdict will be disturbed. No such error or irregularity seems to have occurred in this case. The writ of certiorari will be quashed, and the proceedings confirmed.

Present — Mullin, P. J., Smith and Dwight, JJ.

Writ quashed, and proceedings confirmed.

       Matter of Furman St., 17 Wend., 649; Troy & B. R. R. Co. v. Lee, 13 Barb., 169.

       Laws of 1847, chap. 455, §§ 4, 5, 6.


text:
    ISAIAH EMMONS and others, Plaintiffs, v. SYLVESTER A. WHEELER and others, Defendants.

      Chapter 483, Laws of 1863 — canal boat is a vessel within meaning of-—Exceptions ordered to be hea/rd at the General Term—what will not be considered upon hearing of

    A canal boat is a vessel within the meaning of chapter 483 of the Laws of 1863, providing for the collection of demands against ships and vessels.

      Crawford v. Collins (45 Barb., 369) followed.
    Upon the trial of this action, brought upon a bond given to release a canal boat from a warrant of attachment issued under the said act, the plaintiff was non-suited on the ground that a canal boat was not a vessel within the meaning of the act, and the exceptions were ordered to be heard in the first instance at the General Term. On the hearing at General Term, respondents insisted that the act was unconstitutional.
      Held, that, as the point was not taken in the answer or at the circuit, and as it was not presented by any of the exceptions, it must be deemed waived.
    Where a case comes before the General Term on exceptions taken at the circuit, no questions can be passed upon, except those arising upon exceptions duly taken to some decision made by the circuit judge at the trial, or in the final disposition of the case.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.

      CooTc (& Fitzgerald, for the plaintiffs.

      E. Thayer, for the defendants.

       Bird v. The Steamboat Josephine, 80 N. Y., 19; Vose v. Cockroft, 44 id., 415.

   Opinion by Smith, J.

Present — Mhllin, P. J., Smith and Gilbert, JJ.

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


text:
    JAMES P. ROSS, Appellant, v. EASTMAN COLBY, Respondent.

      Neglect to move for nonsuit—effect of—Appeal to County Court — question of fact on appeal for erroi' of law—Moidence as to efforts to produce witnesses.

    When a defendant does not move for a nonsuit, he admits that the evidence on the part of the plaintiff is sufficient prima facie to justify a-verdict in his favor. If a defendant, in an action brought before a justice, desires another determination upon the facts of the case, he must appeal to the County Court for a new trial; otherwise, the appellate court will not be justified in reversing a judgment for the insufficiency of the evidence.
    The admission or rejection of evidence to show fruitless efforts (by attachment or otherwise) on the part of the plaintiff to procure the attendance of a witness whom he might reasonably be expected to produce, is not a ground for reversal. It could not affect the determination of the issues.

    Appeal from a judgment of the Monroe County Court, reversing a judgment of the Justice’s Court on appeal for error of law. The notice of appeal stated as one of the grounds thereof, that the verdict and judgment were contrary to law and evidence. This was disregarded in the County Court and in this court, because the question of the sufficiency of the evidence to warrant a verdict was not raised in the Justice’s Court. The action was brought to recover damages for injuries to plaintiff’s property, sustained from a fire caused by defendant.

      A. J. Wilkin, for the appellant.

      Horace J. Thomas, for the respondent.

       People v. Coleman, 1 Hun, 596; S. C., 4 N. Y. Sup. Ct. R., 61. [See S. C., 55 N. Y., 81.—Rep.]

   Opinion by Gilbert, J.

Judgment of County Court reversed, and that of Justice’s Court affirmed.


text:
    HELEN A. VAN KUREN, Respondent, v. JOHN SAXTON, Appellant.

      Masten' and servant—when relation does not exist■— Contract to pay for services or hoa/rd — when not implied where parties a/re related.

    Where plaintiff’s sister-in-law became a member of his family on the invitation of his wife, and with his assent, to remain with her children until she could do better, she performing services in the household, and receiving board for herself and children, no intimation being given by either party that pecuniary compensation should be made by one to the other, held, that the sister-in-law did not occupy the position of a servant, and was not liable to pay for board. That transactions of this kind between relations stand on a different footing from those between persons who are not bound to each other by such ties. In the latter case the law may, in the absence of special circumstances, imply mutual promises to pay, while in the former it will not.

    Appeal from a judgment in favor of plaintiff", entered on the report of a referee.

      S. F. Filkms, for the appellant.

      Tucker c6 Bowen, for the respondent.

       Robinson v. Cushman, 2 Den., 152; Williams v. Hutchinson, 3 Coms., 312; S. C., 5 Barb., 122; Sharp v. Cropsey, 11 id., 224; Wilcox v. Wilcox, 48 id., 327-387.

   Opinion by Gilbert, J.

Judgment affirmed.


text:
    JOSEPHINE LADUE, Appellant, v. ALBERT S. WARNER, Respondent.

      Trover—Declarations of former owner of propeo'ty—when not admissible.

    This action was brought by the plaintiff to recover the value of certain articles of personal property, alleged to have been converted by the defendant, who claimed to own the same by virtue of a bill of sale from the former husband of the plaintiff. Upon the trial, in order to establish the title of the husband to the property, the referee allowed his declarations to be given in evidence, made, in the absence of his wife, at the time of the purchase of the property, and subsqeuent thereto. Held, that this was error.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      J. 8. Cctrlock, for the appellant.

      Thompson & Spencer, for the respondent.
   Opinion by Gilbert, J.

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