author: Haight, J.

text:
    Henry G. Volkmar, App’lt, v. The Manhattan Railway Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Negligence—Elevated railroad—Evidence.
    Proof that a bolt in defendant’s elevated railroad was broken and that in consequence an iron plate or clip fell upon plaintiff, raises a presumption of negligence on the part of the railroad.
    3. Same.
    This presumption is not overthrown by evidence by defendant’s track-walker that it was his duty to examine carefully the structure through the day and that on the day of the injury he was engaged in following out his. instructions and performed them to the best of his ability, so as to take the case from the jury. The credibility of the witness was a question for the jury.
    (Follett, Ch. J., Brown and Parker, JJ., dissent.)
    Appeal from a judgment of the general term of the superior court of the city of Hew York, affirming a judgment entered, upon a verdict directed by the court

      E. R. Leavitt, for app’lt; Brainard Tolles, for resp’t.

       Reversing 31 St. Rep., 172.

   Haight, J.

—This action was brought to recover damages for a personal injury.

On the 24th of June, 1885, the plaintiff was driving along-Sixth avenue in the city of Hew York in a wagon, going uptown, under the defendant’s elevated railroad structure. When near Thirty-ninth street an iron plate or clip with a 'part of a broken" bolt fell from the structure striking him upon the shoulder, causing the injury for which this action was brought

It appears that the bolt was about fourteen inches long; that it passed through the guard rail of the defendant’s road, the stringer upon which it rested and an iron plate or clip underneath, which was held in place by a nut upon the end of the bolt that the bolt was broken about two inches from the nut

These facts having been shown the plaintiff rested. Thereupon the defendant introduced evidence showing a proper construction of its elevated railway, and then called Samuel S.. Boach as a witness, who testified that he was the defendant’s track walker and inspector at the place where the injury was received by the plaintiff; that it was his duty to move carefully over the track during the day time to examine carefully all the rails, switches, signals, bolts and fastenings of all kinds and to ¡keep them tight; that in June, 1885, he was engaged in following out his instructions, and that he performed them to the best of his ability.

The defendant’s counsel then moved the court to direct a verdict for the defendant, which motion was granted.

The plaintiff asked permission to go to the jury upon the question of the defendant’s negligence upon the ground that the evidence showed that the presumption arose that the defendant was negligent in view of the fact that the iron plate fell from its structure upon the plaintiff. This request was denied and an exception was taken by the,plaintiff to such denial and to the direction of a verdict in favor of the defendant

No question is made but that the defendant’s elevated railroad was properly constructed. It is claimed, however, that it was negligently suffered to get out of repair, and that because of such negligence the plaintiff suffered the injury complained of.

It was the duty of the defendant to exercise ordinary care for the purpose of keeping its structure in proper repair so as to prevent injury to persons passing over or underneath it.

The evidence showed that the bolt was broken and that in consequence the iron plate or clip fell upon the plaintiff. The structure was consequently out of repair, and under the circumstances I think the presumption of negligence follows.

It has been held that where a building adjoining a street falls nto the street, in the absence of explanatory circumstances, negligence will be presumed, and the burden is placed upon the owner of showing the use óf ordinary care; that where a plaintiff was passing on a highway under a railroad bridge when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder causing injury, negligence would be presumed; that where a barrel rolled out of the window of a warehouse onto a street injuring a person passing, negligence would be presumed; that where a person while walking along the street in front of a building was struck by a falling chisel the presumption of negligence is sufficient to call íor an explanation; that where plaintiff was injured while walking on the sidewalk of the street immediately under the defendant’s railroad by being struck with a heavy piece of metal which fell from one of defendant’s cars passing above, that from the nature of the accident negligence might be inferred, etc. Mullen v. St. John, 57 N.Y., 567; Kearney v. London R. R. Co., L. R., 5 Q. B., 411; S. C., 6 id., 759; Byrne v. Boadle, 2 Hurl. & Colt., 722; Cahalin v. Cochran, 1 St. Rep., 583; Goll v. Manhattan Ry. Co., 24 id., 24; affirmed, 125 N.Y., 714; 35 St. Rep., 993; Payne v. Troy & Boston R. R. Co., 83 N.Y., 572.

The learned general term in its opinion admits this proposition and concedes that the fall of the plate or clip in the absence of an explanation raises a presumption of negligence. That court however reached the conclusion that the presumption was overthrown by the evidence produced on behalf of the defendant. As we have seen, that evidence was given by the witness Roach. It was his duty as he testified to examine carefully all rails, switches, signals, bolts and fastenings of all kinds and to keep them tight. He further states that in June, 1885, he was engaged in following out his instructions and performed them to the best of his ability. In no place does he testify that he ever examined the bolt and clip which fell upon the plaintiff. He does not tell us how often he passed over the track or to what extent he examined the bolts and fastenings. He only give's us his own conclusion that he performed his duty to the best of his ability. It does not appear to us that this was sufficient to remove the presumption which necessarily follows from the established fact that the bolt was broken, and in that particular the structure was out of repair and dangerous.

But even if this evidence was sufficient to remove the presumption, as held by the general term, the credibility of the witness would still be involved and be a question for the jury. This witness was the defendant's track walker. It was his duty to examine the bolt which was broken. If there was any negligence for which the defendant was chargeable, it was that of this witness. He was therefore a person interested, and possibly actuated by a motive to shield himself from blame. Dean v. Van Nostrand, 23 W. Dig., 97; Elwood v. The W. U. Tel. Co., 45 N. Y., 549-554.

It is claimed that the plaintiff neglected to produce upon the trial the broken bolt. His counsel said it was lost He had established aprima facie case when he rested. The burden wasl then on the defendant. The upper portion of the broken bolt* was left in the structure in the possession of the defendant, which could have produced it had it so desired.

The plaintiff should have been permitted to submit to the jury the question of the defendant’s negligence.

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

All concur, except Follett, Ch: J., Brown and Parker, JJ., dissenting.


source: Caselaw Access Project

author: Landon, J. Haight, J.

license: Public Domain

text:
    Theodorus B. Woolsey et al., Ex’rs, Resp’ts, v. The New York Elevated Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Railroad—Elevated—Findings.
    In an action to restrain the operation of an elevated railroad it is not error for the trial court to refuse to find how plaintiff used his premises. It is immaterial whether he rented them or used them himself.
    (Haight, J., dissents.)
    Reargument of an appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff entered after trial at special term.

      Brainard Tolles, for app’lt; Wm Mitchell, for resp'ts.

       Affirming 31 St. Rep., 91.

   Landon, J.

—The trial court refused, to find that the plaintiff during the time in question occupied and used his building as a dealer in flour, and for its storage and manipulation. The evidence required such finding if it was material to the question of -damages. There was evidence tending to show a substantial impairment of the actual crental value of the plaintiff’s premises caused by the acts of' the defendants, but there was none tending to show any special injury to the plaintiff’s flour business. The defendants thence contend that there was no evidence to support the finding that'plaintiff’s past damages were $350 per year; and that if the finding requested had been made, it must thence have been inferred that the plaintiff suffered no loss.

The defendants’ position in effect is, we did, it is true, impair the actual or marketable value of the plaintiff’s premises for six years, but he can recover" nothing, because he did not offer his

Eremises for rent, but used them himself in his own business, and as not proved in respect of that business that our acts occasioned him any loss or damage.

We do not think the defendants’ position tenable.

The past damages which the plaintiff was entitled to recover were measurable by the amount which the rental or usable value of the plaintiff’s premises had been diminished by the construction, maintenance and operation of the defendants’ railway. Tallman’s case, 121 N. Y., 119; 30 St. Rep., 491; Lawrence's case, 126 N. Y., 483; 37 St. Rep., 834.

The Tallman case is supposed by the defendants to support their contention, but it states the rule as above. In that case the plaintiff was seeking to recover damages in excess of the impairment of the actual rental value of his premises by recourse to the possible or imaginary rental value in case he had built houses upon them at a supposable cost, and had rented them at a supposable rent The court held that he must rely upon the actual rental or usable value. He could take his choice between the rental or usable value as his premises actually were, whichever was most profitable to him. The defendants in the present case seem to think that for the purpose of diminishing the damages, they can take their choice between the actual rental or usable value of the prertiises as they were actually used. The case affords no warrant for such a position. The'defendants were wrong doers and must pay full compensation for the wrong done by them. Suppose the plaintiff’s lot was vacant, neither used nor rented, but was rent-able If defendants seized and held it for six years without the plaintiff’s consent, they would clearly be liable for its rental value. Suppose they wrongfully seized and appropriated, for six years before making compensation, its easements of light, air and access, and thus impaired its rental value; the difference in the cases would be in degree but not in kind, and the defendants would still be liable, irrespective of the fact that the plaintiff had not ■sought to put the lot to any use.

The Lawrence case, above cited, is authority to the effect that -extra rent derived by the plaintiff from tenants who put his building to improper uses, though practically compensating him for the impairment by the 'wrongful acts of the defendants of the rental value of his premises, did not enure to their relief. That case touches the principle involved in this. It is none of the defendants’ concern whether plaintiff realizes from his premises the rent the market affords him, or foregoes it for the sake of a special business which he may choose to manage, however small or unprofitable. Seventh Ward Nat. Bank v. N. Y. El. R. R. Co., 21 J. & S., 412-418, seems to be an authority for plaintiff’s contention, but the rule there stated was held inapplicable to a case like the present in Kearney's case, 14 St. Rep., 854; aff’d 129 N. Y., 76; 41 St. Rep., 119, without discussing the point. We do not regard it as applicable to the case before us. Greene v. N. Y. Central & H. R. R. R. Co., 12 Abb. N. C., 124, is cited with approval in Tollman's case. It is there held that the impairment of the rental value may be determined with reference to the uses to which the premises could have been put in the condition they were in. These premises could have been put to rent.

As the plaintiff elected to rely upon the rental instead of the usable value of his premises, it was not error to refuse to find how he used them.

I advise an affirmance of the judgment

Haight, J.

(dissenting).—This action was brought to recover the damages sustained by reason of the construction, maintenance and operation of the defendants’ elevated railroad in front of premises known as No. 26 Front street, in the city of New York.l

The judgment awards to the plaintiff Woolsey $1,900 past* damages, together with interest and costs, and an injunction restraining the defendants from the further maintenance and operation of their railroad in front of the premises unless, within thirty days from the entry of the judgment, they pay the plaintiff Woolsey the sum of $5,500 as the fee damage.

The premises to which this action relates consists of a lot of land with a building thereon, situated on the northerly side of Front street, between Broad street and Ooenties Slip. The lot is twenty-three feet and five inches wide, and sixty-five feet deep. The building is a brick warehouse, five stories high. The plaintiff Woolsey's business is the storage, manipulation and sale of flour, and he has occupied the premises for that purpose since the year 1866.

One of the questions urged.by the appellants upon this appeal was that the trial court had adopted an erroneous rule in awarding judgment for past damages. Upon our first examination of the-case, we reached the conclusion that this question was not raised for review by any exception taken upon the trial, but upon a -reexamination of the case we have become satisfied that the question was raised, and should be considered.

The court has found as facts: “ Twenty-seventh. The value of the property so taken, from the time of the original taking to the date hereof, is of the value of three hundred and fifty dollars for and during each year, and amounts to the date hereof to $1,900 in the aggregate.”

The property taken is defined and described in the twenty - fourth finding in the following language: “ The said unlawful taking consists, among other things, in the erection and maintenance of said structure itself, including a column embedded in the sidewalk, and of the height above the street of about 17 10-12ths feet in front of plaintiff’s premises, and in drawing trains of cars on said structure by steam engines generating gas, steam and. smoke, and distributing in the air cinders, dust and ashes and other noxious and deleterious substances, and interrupting the free passage of light and air to and from plaintiff’s premises, and to and from adjoining premises.”

Exceptions were taken to these findings.

We are at a loss to understand why the trial court should have incorporated a finding that the free passage of light and air was interrupted “ to and from adjoining premises.”

If the damages awarded for the value of the property taken consisted of the interruption of light and air to and from adjoining premises, an improper measure of damages was adopted. But we cannot believe that such was the intention of the trial court. Ho such claim was made by either party, and the concluding clause of the finding must have been inserted inadvertently.

It is also claimed that under the findings the money judgment is based on the annual value to the defendants of the use of the plaintiff’s easements; that the finding of such annual value is the sole basis of the judgment, and that there is no finding that the plaintiff has suffered any loss or damage whatever by reason of the defendant’s acts.

The language used in the findings may be properly subject to criticism, but we hardly believe it was intended to be understood as claimed.

The easements of light, air and access are incorporeal hereditaments. They have no existence apart from the dominant tenement. They may in their relation to it be destroyed, or their enjoyment impaired, but can not be otherwise taken. The defendants therefore took none of the plaintiff’s property otherwise than in the sense that they interfered with the enjoyment of these easements by the plaintiff, or destroyed their beneficial use to the extent of the injury sustained by him.

Upon the trial evidence was given as to what effect the construction and operation of the defendants’ road had upon the rental value of the premises. Objection was taken to this, upon the ground that “ it is not a proper measure of damages.”

In the case of Bank v. N. Y. El. R. R. Co., 21 J. & S., 412-418, it was said by Judge Ingraham that: “ The fact that its rental value in the market had been depreciated was no pecuniary loss to the plaintiff so long as it continued to use the property for its own purposes.” This rule, however, was not held applicable in case of an occupant of premises rendered disagreeable and uncomfortable. Kearney v. M. E. R. Co., 14 St. Rep., 854.

In the case under consideration, the plaintiff Woolsey, as we have seen, suffered Rom the loss or impairment of his easements of light and air. This would render his premises disagreeable ,ancl uncomfortable and although he continued in the possession thereof using them for his own business he is still entitled to compensation for the damages -he has sustained; and in order to determine the amount thereof we think that evidence showing depreciation in the rental value was competent.

In the case of Francis v. Schoellkopf, 53 N. Y., 152, the plaintiff had two houses; one was rented, and she resided in the other. They were rendered disagreeable and uncomfortable by reason of .a nuisance maintained by the defendant. In an action to recover damages it was held that she was entitled to recover the depreciation of the rental value occasioned by the nuisance.

In Kernochan v. The N. Y. El. R. Co., 128 N. Y., 559-566; 41 St. Rep., 110, Andrews, J., says that: “ The principle that diminished rental is a basis of awarding damages has been frequently recognized in these and similar cases.” See, also, Hussner v. The Brooklyn City Railroad Company, 114 N. Y., 433; 23 St. Rep., 856; Tallman v. M. E. R. Co., 121 N. Y., 119; 30 St. Rep., 491.

The damages which the plaintiff was entitled to recover were those which he had sustained in the use of his premises by reason of the construction and operation of the defendants’ road. How much has the rental or usable value of the premises been diminished ? As a basis for estimating the damages the premises must be taken as they are used during the time embraced in the action, and the recovery must be confined to the diminished rental or usable value as they were. Tallman v. M. E. R. Co, supra; Rumsey v. N. Y. & N. E. R. Co., 133 N. Y., 79; 44 St. Rep., 248.

Was this measure of damages adopted? As we have seen, the question is not satisfactorily answered from the findings referred to.

Upon reference to the defendants’ seventeenth request it appears that the court was asked to find that “ Since the time the ¡said elevated railroad was constructed and for many years prior thereto, said building has - been occupied by the plaintiff, Theodoras B. Woolsey, for the purposes of his business, ■ as a dealer-in flour, and for the storage and manipulation of flour.” The court refused to find as requested otherwise than as he had determined in the findings signed by him in the action. The defendants excepted to such refusal. The findings signed by the •court contain no reference to the subject embraced in the request. The request is in accordance with the undisputed evidence and the conceded facts as disclosed by the plaintiff Woolsey’s testimony, and should have been found. The fact was material in its relation to the basis for the estimate of the damages which he was entitled to recover. Having occupied the premises himself in his business as a dealer in flour and for the storage and manipulation thereof he was entitled to recover such damages as he had suffered by reason of the maintenance and operation of the defendants’ railway in the use which he had made of the premises.

The ruling of the court upon the request to find was in effect -that it was irrelevant. In other words, that it had no bearing upon the question of the measure of damages, thus indicating that the rule adopted was other than that of the use made of the premises by the plaintiffs.

But it is said that the attention of the court was not called to this rule. The finding, as we have shown, was material and necessary in order to determine the true measure of damages. Were it not for the request, we possibly might assume in aid of the judgment that the court had found these facts, but the request to so find was refused.

In the case of Meyer v. Amidon, 45 N. Y., 169, it was held that where a fact necessary to sustain the conclusion of law does not appear in the findings of' fact, and the case shows that upon a request to find as to such fact there was a refusal to find otherwise than as already found, and the conclusion of law is based upon the I acts found, this court will not presume or infer in aid of the judgment a finding of the fact.

But again, the defendant requested the court'to find :

Nineteenth. That there is no evidence from which the court can determine how much the value of the said building to the plaintiff, Theodorus B. Woolsey, for the purposes for which it has been used, has been diminished, if at all, by reason of the construction, maintenance and operation of the elevated railroad of the defendants in Front street”

This finding was refused, and properly; because, we think, there was some evidence upon which the court might determine the value. But the request pointedly calls the attention of the court to the true rule of damage as being that of the diminished value of the building of the plaintiff “ for the purposes for which it has been used.” It consequently appears to me that the attention of the court was sufficiently called to the true rule of damages, and that the exception to the refusal to find the defendants’ seventeenth request was well taken.

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

Judgment affirmed, with costs.

■ All concur; except Haight, J., dissenting, and Bradley, J., not voting.


author: Per Curiam.

text:
    Jane M. Bower, Adm’rx, App’lt, v. The State of New York, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. State—Canals—Raising oe state dam.
    In a proceeding before the board of claims for damages through the raising of the state dam in the Seneca river at Waterloo, the board treated the natural water level of the lake as the standard from which to determine the question of liability of the state, without reference to the fact whether the water would have been lower if the dam were not maintained as it was, unless it- had the effect to raise the water of the lake above its natural level. Held, the correct basis within the contemplation of chap. 345, Laws 1885.
    3. Same.
    If the improvements made by the state in giving greater capacity in depth and width to the outlet would, without the dam, have lowered the waters of the lake, this is not available to the claimant to charge 'the state with the effect of the maintenance of the dam, unless it appeared to raise the water of the lake above its natural level, or that which it would have had without the improvements.
    Appeal from decision of the board of claims, made in April, 1889, awarding to the claimant nothing. •
    The claim was filed by Oliver P. Bower, the claimant’s intestate, in June, 1886, for damages sustained by him by the flooding of his lands, situate in the county of Schuyler, alleged to have been occasioned by the state dam in the Seneca river (the outlet of Seneca lake), at Waterloo, in raising the water of Seneca lake. A dam has been maintained in the river by the state at that place, for the purposes of the Cayuga and Seneca canal, since it was opened to navigation as such in 1828. Prior to that time, the Seneca Navigation Company, incorporated in 1813, had constructed a dam there. Its rights were purchased by the state pursuant to Laws of 1825, chap. 271. The dam was reconstructed in 1841. And the present dam was built in 1884 The damages claimed were for the six years ending in 1886.
    The original claimant died during the pendency of the proceedings, and his personal representative was substituted as the claimant. The board of claims found that the evidence failed to establish that the damages to the land had been aggravated by the height at which the flush boards upon the dam had been maintained by the state during those six years, or that the dam or flush boards, as maintained for that period, had raised the water of the lake above its natural level; also, that the land had been rendered unfit for cultivation by reason of natural causes, to which the state had not perceptibly contributed by the maintenance of the dam and flush boards during that time, and determined that no claim, legal or equitable, against the state was established.

      M. M. Case, Jr., for app’lt; S. W. Rosendale, atty.-gen’l, for resp’t.
   Per Curiam.

—The case comes here for review by virtue of the statute which provides that the party feeling aggrieved by the final award or final order of the board may appeal to the court of appeals upon questions of law only arising upon the hearing of the claim or upon the excess or insufficiency of such award or order. The court of appeals shall hear such appeal, and affirm, reverse or modify such award or order, or dismiss such appeal, or award a new hearing before the board of claims as justice may require.” Laws 1883, chap. 205, § 10, as amended by Laws 1887, chap. 507, § 1. And that the practice upon the hearing of appeals in the court of appeals from the filial order or award of the board shall conform, as near as may be, to the practice prevailing upon appeals from the courts of record of "the state.” Laws 1883, chap. 205, § 11, as amended by Laws 1884, chap. 60, § 7.

The restriction by the statute of the review to questions of law is in accordance with the practice of this court on appeals from judgments in civil actions, and consequently when there is a conflict of evidence or any evidence to support the determination of the board, the question of fact thus presented is not the subject of review.

It is urged by the learned counsel for the claimant that the evidence required the board to find a state of facts which entitled him. to an award of damages; and, therefore, the exceptions to its findings and .to its refusal to find as requested were well taken. The fact, is established that by the flooding of Bower’s land situated near the head of Seneca Lake in the village of Watkins, it was to quite an extent unfitted for profitable cultivation during the period in question. And to enable persons owning lands there to seek relief for such injuries as were occasioned by the state dam at, Waterloo, it was provided by chap. 345, Laws 1885, that the board of claims was authorized “ to hear, audit and .determine the claims for damages of persons owning real property adjacent, to or bordering upon Seneca lake, or its inlets in said state, by reason of the overflow of water caused by the state-dam at Waterloo and the flush boards kept thereon, within six years immediately preceding the filing of such claims with said board o£ claims.”

It is apparent that the purpose of this statute was to permit the-persons coming within its provisions to obtain from the state relief for the damages so far as they were attributable to the maintenance of the dam and flush boards. And the question presented for determination by the board of claims was whether or not the claimant had suffered any and what' damages from that cause, and that was dependent upon the fact whether the dam had the effect to raise the water in the lake essentially above its natural level. The finding of the board that it did not is challenged by the claimant. A dam had been in the Seneca outlet at or about the same place for upwards of seventy years at the time-the claim was filed, and had been maintained by the state about sixty years.

It does not appear by the evidence what was the condition of the land at and near the head of the lake at the time the dam was, first constructed by the Seneca Navigation Company. But it does, appear that quite a large tract including that of the claimant has been known as marsh lands, through which passes the inlet of the lake. Since the state succeeded to the rights of the navigation, company its purpose, as indicated by the course of legislation in providing for the maintenance of the dam and the use of the outlet for the canal, has been not to raise the water in the lake above its natural level. The authority given to the canal commissioners, was to so construct the works as to reduce the water in the canal two feet below its natural level by deepening it at Waterloo and in the outlet of the lalce^Laws 1828, ch. 290, and to reduce the waters of the lake to thedevel of the water in the outlet at a point half a mile below the foot of the lake. Laws 1829, ch. 360.

Later the canal commissioners were authorized to lower the lake level of the canal one foot and secure four feet depth of water in it by removing obstructions at the head of the outlet and enlarging the channel so as to extend the lake level to Waterloo. Laws-1844, ch. 313. It appears by the public canal records that pursuant to this act of 1844 improvements were made, which it is-claimed had the effect to reduce the low water stage of the lake about one foot. This seems to be matter of deduction not otherwise very clearly appearing by the record here. In 1854 provision was made for the enlargement of this and the Erie and Oswego canals. Chap. 16. Before this enlargement was completed the canal commissioners were authorized in doing it to excavate the Seneca river and the canal from near Waterloo into the lake to the depth of -nine feet and of the width not exceeding that required by law for the enlargement of the canal. Laws 1857, ch. 479. And by that act it was further provided that nothing in it should “ be so construed as to authorize or permit ” the dam to be raised above its then height. The enlargement seems to have been completed in 1861.

The canal commissioners were afterwards authorized to raise and maintain the dam not exceeding its original height, but so as-not to raise the waters of the lake above their natural height; and it was provided that no claim should be entertained for any damages to land or property by reason of restoring the dam to its-original height. Laws 1867, ch. 752.

The channel was deepened nine feet a portion and seven feet the rest of the way from the lake to Waterloo, and it was widened. But nothing was done by way of raising the dam pursuant to the act of 1867, until the fall of 1884, when it was rebuilt. In the meantime in an act making appropriation for its reconstruction it was provided that the dam should be sufficient to restore and maintain the waters of the lake, but not above their original height. Laws 1872, ch. 343.

Thus appears the legislative purpose to not raise the natural level of the lake. And how well that policy was observed in practical effect as the dam was maintained was a question before the board of claims. It is represented by the public records relating to the canal that the dam of 1828 was two feet lower than that of the Seneca Navigation Company, and no evidence appears to the contrary in the record here. And it may be inferred that subject to the limitation in respect to the natural level of the lake, the provision for raising it was in reference to the height of the original dam which the state found there when it took the rights of the Navigation Company. The dam, which was constructed in 1841, was made four feet and eight inches in height, notwithstanding the plan and direction of the engineer that it be made four feet high. This it seems was thereafter the only dam there until the new one was constructed in 1884. The comparative height of those two dams was the subject of conflict in the evidence. While that on the part of the claimant was that the new dam was a foot higher than the old one, there is evidence that it was only one-half an inch higher, and that there was only one-fourth of an inch difference in the height of the flush boards upon them. These flush boards were fourteen inches wide on the new dam, and there is evidence to the effect that the flush boards were almost continuously upon the old dam about thesame width from a time back as early as 1840. This dam is five miles from the lake, from which to it there appears by evidence to be a fall in the outlet of one foot and ten inches.

There is much evidence relating to the effect of the dam upon the waters of the lake; and while that on the part of the claimant tends to prove it has caused' the water of the lake to rise higher than it otherwise would, or than it would if the outlet had been in its natural condition, and by that means flooded his premises, rendering them unfit for cultivation each of the six years preceding the time of filing his claim, there is other evidence tending to prove the contrary, and is to the effect that the lake level is lower than it would be if the natural channel were restored with no dam in it, and that since the construction of the canal the lake level has subsided about one foot This is attributed to the ■enlarging and deepening the channel by which the hydraulic ■capacity of it has been greatly increased.

The weight of the evidence of the respective parties arising ■out of this conflict is -not the subject for consideration here, but for the purposes of this review the determination of the board of ” claims must be deemed conclusive. In view of the evidence it may be assumed that the board treated the natural water level ■of the lake as the standard from which to determine the question of liability of the state without reference to the fact whether the water would have been 'lower if the dam were not maintained as ■ it was, unless it had the effect to raise the water of the lake above its natural level. This, we think, was the correct basis upon which to proceed, and was that within the contemplation of the act of 1885. ' If the improvements made by the state in giving ■greater capacity in depth and width to the outlet would, without the dam, have lowered the waters of the lake, this is not available to the claimant to charge the state with the effect of the maintenance of the dam, unless it appeared to raise the water of the lake above its natural level or that which it would have had without the improvements.

. The finding of the board that so far as the claimant’s premises were during the period in question rendered unfit for cultivation they were so affected by reason of natural causes to which the state did not perceptibly contribute, was founded upon evidence tending to prove that the water in the lake was subject to become increased in height, and especially so in the spring of the year, to greater or less extent. The lake is forty miles in length and •about two miles in width. It drains a large area of uplands sloping towards it And as far'back as attention is called by"the evidence it appears that these marsh lands were commonly overflowed with water in the spring of the year, although some years more than others.

It appears that in 1872 and 1880 the land in question was in condition for cultivation, while in the years since it has generally been otherwise; yet so far as appears the canal was in use those two as it was in the other years. ■ The last mentioned finding of the board was consistent with the other one before referred to, ■and the necessary consequence of it. u

There is some evidence to support the conclusion of the board of claims, and, therefore, its decision and award must be affirmed.

All concur.


author: Landon, J.

text:
    The Capital City Bank, App’lt, v. Adolphus Parent, Impl’d, Resp't.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Attachment—Levy upon funds in hands of bank subject to draft-
    One N. obtained from plaintiff and other banks in Atlanta, Ga., large-sums of money by fraud amounting to larceny under the laws of this* state, and then absconded. Subsequently he bought for cash of defendant, a ha-nk in Syracuse, its draft for $5,000, drawn on another defendant, a bank in New York, made payable to a fictitious name which N. assumed N fled to Canada, and there transferred it for value to defendant Parent. In an action to recover a judgment for money only against. N., who was served by publication, the sheriff attempted to attach the. $5,000 paid by N. for the draft to the Syracuse bank by service of notice. Held, that the bank was not indebted to N.,_ the attachment was not levied, and there was no jurisdiction to enter the judgment against N.
    2. Same—Creditor’s action.
    As the judgment against N. would affect only the attached property,, plaintiff was in no position to bring a creditor’s action.
    3. Same.
    Plaintiff procured the arrest of N. in Canada, and then, as the offense-was not an extraditable one, made a settlement with him, and acknowledged full satisfaction of all demands upon the payment of $6,000; part of the money was raised by the sale of the draft to defendant. Held, that if plaintiff was not bound by its acquittance made upon part payment, it was bound by its representations to defendant upon which he parted with his money.
    Appeal from a judgment of the general term, fourth department, affirming a judgment- for defendant entered upon the decision of the court upon the trial at the Onondaga special term.

      W. Nottingham, for app’lt; Frank H. Hiscock, for resp’t.

       Affirming 34 St. Rep., 826.

   Landon, J.

—This is an action in the nature of a creditor’s bill. It is based upon an execution returned unsatisfied upon a judgment for money only, entered in an action in the supreme court in favor of this plaintiff against Charles C. Nelson, who-was a non-resident, was served by publication, did not appear, but in which a warrant of. attachment was issued and proof by affidavit produced and filed upon the motion for judgment that the-attachment had been levied upon property of the" defendant, which levy it was shown upon this trial was never made.

We think the complaint was properly dismissed.

The only attempt to levy under the attachment was as follows: Nelson, who had been a resident of Atlanta in the state of Georgia, on June 30, 1888, by fraudulent practices, which under our laws would amount to larceny, obtained $6,500 of the plaintiff, a banking corporation in Atlanta, and also $4,600 of two other banks of the same place, and then absconded. July 6, 1888, he bought of the defendant, the First National Bank of Syracuse, its draft for $5,000, upon another defendant, The First National Bank of New York, and paid $5,000 in cash for the •draft. The draft was payable to the order of W. G. Lee, a fictitious name which Nelson assumed. Nelson then fled to Canada, taking the draft with him, and there July 2, 1888, transferred it "•for value to the appellant, who then became the owner of it in good faith and still is its owner and holder.'

July 26,1888, the sheriff of Onondaga county, holding the warrant of attachment, assumed to levy upon the $5,000 paid by Nelson to the First National Bank of Syracuse, by serving a notice upon the bank that he thereby levied the warrant of attachment upon the moneys in its hands belonging to the defendant, and all deposits and moneys deposited by him with the bank and debts owing by the bank to him. The bank thereupon gave the .sheriff a certificate stating the facts respecting the purchase of the draft. The draft being outstanding and no default having been made upon it, the Syracuse bank was not indebted to Nelson or to the holder of the draft. It was not the. depositary or bailee of the money paid for the draft. It sold the draft for cash in the usual course of business, and that ended the transaction, unless the draft should be dishonored upon presentation, or unless plaintiff’s moneys could be identified, payment of the draft stopped, and the moneys reclaimed before the rights of third parties intervened, which would be a very different proceeding from a judgment for money only as upon contract, and an action in the nature of a creditor’s bill to secure its payment. The draft itself was not attached. Thus the attachment was not levied, and hence no jurisdiction to enter a judgment against Nelson existed.

The Code, §§ 1216, 1217, requires that in case where the defendant is a non-resident and the summons has not been personally served upon him within the state, and he has not appeared, and a warrant of attachment has been issued, proof by affidavit that the warrant of attachment has been levied upon property of the defendant must be produced and filed upon the application for judgment. Like the proof of the personal service of a summons in other cases this is jurisdictional. True, the proof by affidavit was produced and filed, but this is not conclusive, and is overcome, where as in this case proof of the actual facts shows the contrary. Ferguson v. Crawford, 70 N.Y., 253.

Besides, a judgment for money only, rendered against a nonresident who has not appeared, and upon whom service of the summons is'made by publication, and an attachment issued and levied, “ can only be enforced against the property which has been levied upon by virtue of the warrant of attachment at the time when judgment is entered.” Code, § 707.

The execution is limited to the property attached. Section 1370. Jurisdiction of the person is not obtained out of the property'attached. McKinney v. Collins, 88 N. Y., 216; Schwinger v. Hickok, 53 id., 280; Bartlett v. McNeil, 60 id., 53; Bartlett v. Spicer, 75 id., 528; Cromwell v. Gallup, 17 Hun, 49.

If, therefore, anything was levied upon under the attachment, the plaintiff’s remedy was limited to it, and whatever action in aid -of the attachment was proper, should have been brought by the sheriff, under § 655 of the Code. See Backus v. Kimball, 62 Hun, 122; 41 St. Rep., 446.

As the judgment against Nelson would affect only the attached property, it follows that the plaintiff was in no position to bring the present action. Plaintiff could in the first action only exhaust its legal remedies against the property attached, and not its legal remedies generally. It could issue no execution against Nelson’s other property.

If, indeed, a valid levy was made under the attachment, it seems to have been abandoned; if it was not made, the plaintiff’s case rests upon its failure to take any legal remedy.

The findings of the trial court which have been approved by the general term, show that with respect to this defendant the case was properly disposed of upon the merits. The plaintiff procured the arrest of Nelson in Canada, and then before the action in which the attachment was issued was commenced, upon being advised that he was not extraditable, made a settlement with him, and acknowledged full satisfaction of all demands, in consideration of $6,000, which Nelson then paid, less $320 to be paid afterward by the defendant; this was by him tendered when due, but its acceptance was refused. The defendant was present at such settlement, and for the purpose of furnishing Nelson part of the money with which to effect the same, and at the procurement and solicitation of the plaintiff, and upon its representation that it was perfectly proper and safe for him to do so, purchased the draft of Nelson for its face value, less $50, and paid $3,825.85 upon the purchase price, besides the $320 tendered to and refused by the plaintiff.

The evidence amply sustains the findings of the trial judge. If we assume that the plaintiff settled with a thief and was not bound by its acquittance of its whole demand made upon only part payment of it, yet it was bound by its representations .to the defendant upon the faith of which he parted with his money, and it cannot dispute the title which it induced him for its benefit to accept.

There may be a small surplus in the appellant’s hands as between him and Nelson, but if so, it cannot be reached in this action.

Judgment affirmed, with costs.

All concur, except Vann, J., not sitting.


author: Parker, J.

text:
    The City of Rochester, App’lt, v. Benjamin Simpson, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Municipal corporations—Nuisance—Ordinance.
    The city of Rochester by its charter, § 276, had power “to pass and enact such by-laws and ordinances as they shall from time to time deem necessary and proper for the filling; up, draining, cleansing, cleaning and regulating any grounds, yards, slips or cellars within the said city that shall be sunken, damp, foul, encumbered with filth and rubbish or unwholesome,” and passed an ordinance by which the owner, etc., of any. quarry or premises heretofore used for quarrying was compelled to cause the same to he “ filled with earth even with the surface of the ground, * * * or shall cause the water therein to he drained therefrom, and said quarries or excavations kept dry and the water prevented from accumulating or standing therein, under a penalty, etc.” Held, that this ordinance applied to defendant’s premises, consisting of an old quarry in which the water had collected which was covered with a green slime and from which arose disgusting odors.
    (Bradley, Brown and Landon, JJ., dissent.)
    Appeal from a judgment of the general term, reversing a judgment of the county court of Monroe county, entered on an order affirming a judgment of the municipal court of the city of Rochester in favor of the plaintiff.

      C. D. Kiehel, for app’lt; R. E. White, for resp’t.

       Reversing 32 St. Rep., 732.

   Parker, J.

—This action was brought to recover a penalty of fifty dollars for the alleged violation of an ordinance which it is claimed enjoined upon the defendant the duty of either filling, with earth certain premises owned by him from which stone was formerly quarried, or draining therefrom the water with which it was nearly filled.

With respect to its condition one witness testified: “ In the summer months, during July and August, I have smelled very offensive odors, such as usually arise from stagnant waters, and have noticed the green scum on the top of the water; it is so every summer; I have seen a dead dog in there at different times; or dead dogs in there at different times; I have observed the odor as I have been-passing, but not so far away as my house ; but, when passing, so much odor as to cause me to put my hand to my mouth.”

Another witness who had known the place for thirty years said : “ In the spring of the year, as soon as the ice is off and it becomes warm it is full of toads and bull-frogs, and a nasty greenish substance floating on top. Then in the bottom of it, it grows up with eel grass, and in the summer months, when it is very offensive the odors arising from it, * * * I have seen dead animals in there at different times, and dead fish floating in the water.”

A witness who had lived within two or three hundred feet of the pond testified: “This odor I have observed is a strong, sickening odor; I passed by on the east side of the pond, but in warm weather have gone around on the west side on account of the odor.”

The witness Slattery said: “ I have noticed a green scum on the pond and eel grass growing from the bottom; have the pleasure of bearing the bull-frogs nights. * * * The water in that pond I should think was stagnant; during the summer months it lowers in quantity; I have noticed that at times it is higher than at others ; it is higher after rains.”

A witness who had known the premises twenty years, and lived within 120 feet of them, testified: “ I have often observed odors from it; it was a strong, offensive odor; I can smell it all the time where I live when the wind is in the south; I could smell it where I lived; I have observed dead bodies there; I have seen dead, bodies in there upon more than one occasion; I saw a dead baby pulled out of there ; I have seen dead dogs and dead cats there a couple of times, that is all; the edges of the pond has a green scum on and grass grows all around them as far as I could see; if you don’t call that stagnant water I do not know what you would call it; I have only seen dead fish at the edges.”

Evidence was adduced on the part of the defense tending to show that the water was not stagnant; that it came largely from a spring in one corner of the quarry; and that the pond was useful to the defendant, as he gathered large quantities of ice from it in the winter. But in other respects the testimony quoted was not disputed. Indeed, some of defendant’s witnesses acknowledged the existence of the odors described by plaintiff’s witnesses, and the defendant conceded the presence of the green scum, which he attributed to the frogs. t

There must be invoked in support of the judgment originally rendered, if need requires it, a view of the evidence most favorable to the plaintiff, for the judgment has not been reversed on the facts. The county court affirmed the judgment, and the reversal by the general term was for alleged errors of law.

As there are no exceptions to the admission or rejection of testimony which justify a reversal of the j udgment, the sole inquiry is, does the evidence support the judgment reached by the trial court.

That the legislature, in the interest of the public health, may vest in the - common council of cities power to pass ordinances requiring either the filling up or draining of such ponds as the one in question must here be deemed to have been, does not admit of debate, and it would be a work of supererogation to attempt a review of the authorities in view of the careful and exhaustive consideration which they have received by this court in Cronin v. People, 82 N. Y., 318, and Village of Carthage v. Frederick, 122 id., 268; 33 St. Rep., 383.

This leads us to examine the plaintiff’s charter with the view of ascertaining whether the powers conferred by it are broad enough to authorize the passage of ordinances requiring either the filling up or draining of ponds like the one in question.

It reads: “ The common council shall have power to pass and enact such/by-laws and ordinances as they shall from time to time deem necessary and proper for the filling up, draining, cleansing cleaning and regulating any grounds, yards, slips or cellars, within the said city, that shall be sunken, damp, foul, encumbered with filth and rubbish or unwholesome.”

These premises are certainly within the class which the legislature declared the common council might provide by ordinance for either filling up or draining, for as appears by the evidence we have quoted they are sunken, damp, foul and unwholesome.

The settled law is that a municipal corporation possesses not only the powers specifically conferred upon it by its charter, but also such as are necessarily incident to or may fairly be implied from those powers. But resort to implication is not required here, for the charter confers upon the common council in terms the authority to further legislate so as to provide for the filling up or draining of premises in the situation of defendant’s. An ordinance passed pursuant to such authority has the same force within the corporate limits as an act passed by the legislature itself. Village of Gloversville v. Howell, 70 N. Y., 287; City of Brooklyn v. Breslin, 57 id., 591-596.

So, having express authority to provide by ordinance for the filling up or draining of such premises, if the common council did in fact do it, and" in so doing did not transcend the powers conferred, their action is legal and the ordinance enforceable.

The ordinance reads as follows: “ Every owner, occupant or lessee of any stone quarry, or premises heretofore used for quarrying stone therefrom, within the city of Rochester, shall cause the same to be filled with earth even with the surface of the ground before any excavation was made, or shall cause the water therein to be drained therefrom, and said quarries or excavations kept dry and the water prevented from accumulating or standing therein under a penalty of fifty dollars for each offense to be sued for and recovered from the owner, occupant or lessee thereof severally and respectively."

As we have already observed, the specific authority given the common council for further legislation by way of ordinance em- . braces premises in the situation of those in question. The ordinance quoted refers to premises of a certain class or kind to which defendant’s belong, and it provides for their filling with earth or that they be drained and water prevented from accumulating.

The ordinance is therefore within, and in accordance with, the terms of plaintiff’s charter and the courts have no authority to refuse enforcement of it

The judgment should be reversed and the j'udgment of the county court affirmed, with costs.

All concur, except Bradley, Brown and Landon, JJ., dissenting.


author: Bradley, J.

text:
    The People, Resp’ts, v. The Long Island Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Railboads—Gates at stbeet cbossings—Laws 1884, chap. 439, § 3.
    Section 3, chap. 439, Laws 1884, is not unconstitutional as giving legislative power to the court. It merely makes the erection and operation of the gates dependent upon the necessity of them for safety of travel upon the streets, to be ascertained in the manner provided.
    2. Same.
    As there is no special provision for the punishment of a willful omission of defendant to operate the gates, it falls under the provisions of Penal Code, § 145.
    Appeal from judgment entered on order of the general term of the supreme court in the second judicial department, affirming a judgment of the court of sessions in the county of Suffolk.

      The defendant, charged by indictment with willful omission to • operate gates erected at certain street crossings of its railroad in the village of Sag Harbor, was tried, convicted and thereupon subjected to a fine of $500. The gates were erected by virtue of an order of the county court of that county, which directed their erection and operation pursuant to the statute.

      E. B. Hinsdale, for app’lt; Benjamin H. Reeve, district-attorney, for resp’ts.

       Affirming 34 St. Rep., 715.

   Bradley, J.

—The main proposition urged by the defendant is that the statute providing for the direction by order of the court • that railroad companies erect and operate gates at street crossings, etc., is unconstitutional for the alleged reason that it seeks to vest legislative powers in the court. If that is the effect of the statute the defendant’s contention would be supported, since such power is vested only in the senate and assembly, Const., art. 3, § 1, with the single exception that powers of local legislation may by statute be conferred upon boards of supervisors. Id., § 23. And municipal corporations may be given power to pass ordinances.

The statute in question is entitled “ An act for the better protection of life and property upon the railroads of the state, to promote the safe and better management of steam railroads.” And it among other things provides that “ At any point where á street * * * or travelled way is crossed at the same level by a railroad * * * the supreme court or county court may, upon ■ the application of the local authorities and upon ten days notice to the railroad corporation whose road so crosses, order * * * that gates shall be erected across such street * * * and that a person be stationed to open and close such gates when an engine or train passes. * * * Such order shall only be made after the refusal or neglect of such corporation to * * * erect such gates after having been requested so to do by such local authorities.” Laws 1884, chap. 439, § 3.

Mo legislative power was given to the court. But the statute made the erection and operation of gates by railroad companies at places coming within those mentioned dependent upon the necessity •of them for the safety of travel upon the streets, to be ascertained •and determined in the manner provided; and when the order. is so made by the court, the statute is effectual to enforce the duty of compliance with it. This is a condition not upon which the taking effect of the statute is dependent, but upon which its application becomes effectual for the purpose and at the places within its contemplation.

In Barto v. Himrod, 8 N.Y., 483, the difficulty with the statute there under consideration, Laws 1849, chap. 140, was that it provided for the submission to the electors to determine whether the act should or not become a law. That was a legislative function; and it was held that it could not be delegated to or made dependent upon the popular vote. The proposition in that case has no necessary application to the present one. The act in question has the import of a perfected statute. And the fact that its operation in the application of it to the cases which might arise is dependent-upon prescribed contingencies, furnishes no constitutional objection to it. Bank of Rome v. Village of Rome, 18 N.Y., 38; Clarke v. City of Rochester, 28 id., 605; Matter of Gilbert El. Ry. Co., 70 id., 361; People v. Fire Assn., 92 id., 311; Matter 34th St. R. R. Co., 102 id., 343; 2 St. Rep., 33. And although the statute does-not in express terms declare that it shall be the duty of a railroad company to observe the direction of the order so made by the court, such is the implicative effect of the provision in its meaning and purpose.

7 The creation of the power to determine the necessity of such safeguards at intersection of railroads with streets was legislative, find the exercise of the power so given is judicial. The result of the latter in the manner prescribed is the condition upon which the application of the statute is made effectual, and whether or not there may be any better or more reasonable method of accomplishing it is solely a legislative question. In this case the requisite order was duly made by the county court. The gates-were erected. The evidence warranted the charge of willful" omission of the defendant to operate the gates on the passage of its trains, and as there is no special provision for its punishment, as the consequence, reference is made to the statute which provides that: “ Where any duty is or shall be enjoined by law upon any public officer, or upon any person holding a public trust or employment, every willful omission to perform such duty, where no special provision shall have been made for punishment of such delinquency, is punishable as a misdemeanor.” Penal Code, § 154. The term “person ” includes a corporation as well as a natural person. Id., § 718, subd. 13. And as the defendant is a corporation of this state, and as such holds the public employment of a. common carrier, the case against it seems to be within those provisions of the Penal Code. All the facts essential to the offense were alleged in the indictment, and the verdict of the jury was-supported by the evidence.

The judgment should be affirmed.

All concur.


text:
    Frank B. Chapman, App’lt, v. George F. Comstock, Resp’t.

      (Court of Appeals, Second Division

      Filed October 1, 1892.)

    Appeal—New trial.
    An order of the general term granting a new trial, in an action tried before a jury, where -there was a conflict of evidence, and the order may have been made upon the facts, is not reviewable in this court unless it appears from the record that the order was affirmed as to the facts, or the appeal therefrom dismissed.
    Appeal from an order of the general term, fourth department, reversing a judgment entered upon a verdict and an order denying a motion for a new trial made upon the minutes, and granting a new trial.

      Edwin Nottingham, for app’lt; Andrew H. Green, for resp’t

       See 34 St. Rep., 517.

   Haight, J.

—This action was brought to recover the sum of $8,973.37, being the amount due and owing the plaintiff by the American Dairy Salt Company, Limited, a business corporation organized under chapter 611 of the Laws of 1875. It was sought to maintain the action against the defendant upon the ground that he was the president and director of the corporation, and that the corporation had failed to file the annual report required by the statute during the years 1881 to 1888 inclusive.

On and prior to February 11, 1882, the plaintiff held a promissory note for $10,880.90 of the Onondaga Coarse Salt Association, of which Thomas Molloy was treasurer. That company was winding up its business, and desired to pay the note. The plaintiff asked Molloy if he had any place he could use it for him, saying that he had no place for it, and did not want to use it at that time. Molloy said he could take it for the American Dairy Salt Company, Limited, of which he was also treasurer. Further conversation took place in reference, to the responsibility of the company and its directors, resulting in the plaintiff’s leaving the money with that company, and it issued to him a pass-book in which was entered “ Frank B. Chapman, in special account with the American Dairy Salt Company, Limited.” Under the credit column was entered, February 11, 1882, cash $10,880.90, and semi-annually thereafter interest was credited upon that amount at the rate of six per cent. The plaintiff was subsequently paid $4,300, April 30, 1885 ; $1,000, June 1, 1888 ; $1,000, July 11, 1888, for which receipts were given. Shortly after the last payment the company failed, refused to pay the balance, and in October following a receiver was appointed. The complaint alleged that the money was deposited with the company by the plaintiff. This was controverted by the answer, which alleged that it was loaned; that the corporation was not organized or authorized to do a banking businesss, or to receive deposits of money, but, on the contrary, was forbidden by law from so doing, and that more than three years had elapsed after the cause of action accrued before the commencement of this action.

The trial court submitted to the jury the question as to whether the leaving of the money with the company was a loan or a deposit, instructing them that if it was a loan, it was not necessary for the plaintiff to make a demand, and that his right of action accrued eo instanti, and that, consequently, the statute of limitation had run as to his claim against the defendant; but if they found that the money was left with the company as a deposit, no right of action would accrue until there was a demand for the payment of the money, and the same was refused. That such demand was not made until the summer of 1888, and consequently the statute of limitation would not interfere with the plaintiff’s right to recover. The verdict was for the plaintiff. A motion for a new trial was then made upon the minutes upon various grounds, among which was that the verdict was contrary to the evidence. The motion was denied, and an appeal was taken to the general term from the judgment and from the order denying a new trial. The general term reversed the judgment and order, and granted a new trial, with costs to abide the event. In the order of reversal, the general term certified that it was held and decided by that, court: “ 1. That the verdict ought to have been directed in favor of the defendant, or a nonsuit granted; 2. That the verdict is-against the evidence; 3. That the several exceptions taken to the-refusal to charge present error.”

The appellant gave the usual stipulation for judgment absolute,, and appealed. Is the order appealable to this court? The appellant insists that it is. The respondent does not dispute this, . but. claims that the new trial is to be regarded as granted on questions of fact. If so, we are unable to understand how it isappealable. As we have seen, one of the grounds upon which the court certifies that the reversal was based is “ that the verdict-is against the evidence.” If from this we are to understand that the new trial was granted for the reason that the verdict was-against the weight of evidence, then we cannot review the order. Code of Civ. Pro., § 1338; In the Matter of Ross, 87 N. Y., 514, 516.

But if as is claimed, it was held by the general term that there-was no evidence to sustain the verdict, and if we should reach the conclusion that the court erred in this regard, then the question as to whether the verdict was against the weight of evidence-is left open undetermined. That question was distinctly raised by the motion for a new trial, and the order entered thereon was-brought up for review in the general term, and if we should now reverse the general term and affirm the judgment of the trial court, the defendant would have a judgment against him, entered upon a verdict and affirmed in the court of last resort, without having his question considered as to whether the verdict was against the weight of evidence. The rule is now well settled that an order of the general term granting a new trial, in an action tried before a jury, when there was a conflict of evidence, and the order may have been made upon the facts, is not reviewable in this-court unless it appears from the record that the order was affirmed as to the facts, or the appeal therefrom dismissed. Wright v. Hunter, 46 N. Y., 409: Harris v. Burdett, 73 id., 336; Snebley v. Conner, 78 id., 218; Kennicutt v. Parmalee, 109 id., 650; 15 St. Rep., 515; Voisin v. Commercial Mutual Ins Co., 123 N. Y., 120-131; 33 St. Rep., 160; Peil v. Reinhart, 127 N. Y., 381-385; 38 St. Rep., 913; Williams v. D., L. & W. R. R. Co., 127 N. Y., 643; 37 St. Rep., 143.

It may be claimed that there was no substantial conflict in the-evidence. It is true that there is no material conflict in the statement of the witnesses, but the parties widely differ as to the inferences that should be drawn from their statements. It was necessary to determine what the intention and understanding of the parties were as to whether the money was left on loan or deposit. In determining this question it became necessary for the jury to take into consideration all of the circumstances surrounding the-parties at the time, and under our view, presented such a conflict as would bring it within the rule referred to.

Upon the trial the defendant asked for the direction of a verdiet in his favor, which was refused. By so doing and remaining silent, he waived the right to have any particular question of fact submitted to the jury. He, however, did not waive the right to ask for a new trial in case the verdict was against the weight of evidence.

We have not omitted a careful examination of the evidence- and the conclusion we have reached therefrom gives additional force to the position taken.

The evidence shows that the plaintiff left his money with the company and took a pass-book upon which the amount was credited. Semi-annual interest was subsequently credited in the same-form and manner as in the banks. From these facts standing alone, the inference might properly be drawn that it was intended that the money should be left on deposit This was some evidence to sustain the verdict. But the other facts and the inferences permissible therefrom tend to show that a loan was intended. The plaintiff had the money to loan. He had it with the Onondaga Coarse Salt Association on loan; that company-wanted to pay it. He applied to Molloy to find a place for it. Molloy agreed to take it for the American Dairy Salt Company,, and issued the pass-book therefor. The pass-book does not necessarily conflict with the theory of a loan. Molloy testified that the-indebtedness to the plaintiff was in the form of an account; that, the word “ Special ” in the pass-book was used to designate it from the merchandise account, or that which related to the ordinary business of the company; that there were accounts so marked, the consideration of which was for money loaned to the company; that in all cases of special accounts the money was used by the-company in the making and selling of salt, etc. Molloy called it. a loan, but did not know the distinction between a loan and a de posit so as to define one as distinguished from the other. The company had the power to borrow money for the legitimate purposes of the corporation, Laws of 1875, chap. 611, § 13, but was prohibited from being in any way interested in any fund that shall be employed for the purpose of receiving deposits, making discount, or issuing notes or other evidences of debt, to be loaned or put into circulation as money. 3 R. S., 7th ed., 2124, § 3.

The question before the general term was therefore as to the weight of evidence, and its determination thereon is not reviewable here.

The appeal should be dismissed, with costs.

All concur, except Vann, J., not voting.


author: Brown, J.

text:
    Henry Welsh, App’lt, v. John Taylor, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Basement—Abandonment by non user oe alley way.
    The question, of abandonment of easement by non user is one of intention, but time is not a necessary element therein. A cesser to use accompanied by an act clearly indicating an intention to abandon the right would have the-same effect as a release without reference to time.

      3. Same—Use oe easement.
    A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land.
    ■3. Same—Estoppel.
    The court upon the trial of this action found that the owners or some of them of adjoining property to an alley, to which tney had an easement by deed of ingress and egress, knew that a building was being erected over the alley and made no objection to the erection of the same. Held, that the plaintiff, who succeeded to the title of all the owners, was not estopped unless all his grantors were estopped, and no knowledge was shown except in one who was a life tenant.
    4. Same—Abandonment.
    So long as there was no occasion on the part of one of the adjoining owners to use the alley, the mere existence of a gate was not notice of any adverse claim on the part of their co-tenants.
    5. Same.
    Nor did the erection of a house and fence without an opening on the side of the alley, indicate an intent to abandon the easement.
    6. Same—Payment oe taxes.
    The children of a life tenant who was bound to pay the taxes had a right to assume that she would pay the taxes, and in the absence of any evidence that they knew she had refused to do so, the mere fact of nonpayment was no evidence that they intended to abandon the use of the alley.
    Appeal from a judgment of the general term of the first judicial department, which affirmed a judgment of the special term.
    The plaintiff is the owner of property in Hew York known as Hos. 143 and 145 Franklin street, bounded easterly by an alleyway. Defendant is the owner of property known as Hos. 189 and 141 Franklin street, bounded westerly by said alley.
    The common source of title was Alexander L. Stewart. He conveyed Hos. 143 and 145 to plaintiff’s grantors, with the “ right and privilege of passing and repassing through said alley without hindering, obstructing or annoying such other persons as may be legally privileged to pass through the same; and subject at all times hereafter to the bearing and paying of a just proportion of the expenses of regulating and repairing the said alley and of such taxes and assessments as may be laid thereon.”
    Hos. 139 and 141 were conveyed to defendant’s grantors with a similar right expressed in similar language, and the further right to extend any building erected or to be erected on the front, part of the lot under or over said alley, bpt so as to leave the same seven feet nine inches wide and not less than one story high in the clear.
    The alley was eighty-three feet deep, and at a distance of sixty-two feet from Franklin street broadened out so that at its rear end and for a distance of nineteen feet therefrom it was about twenty-one feet wide. The evidence showed that in 1836 Smith Harriott acquired title to Ho. 143, which abutted upon the alley on the west, with the easement in the alley. He died in 1844, leaving a will whereby he devised the property to his wife Mary Ann for life, and upon her death to his three children, Frederick P., Smith and Estelle. Mrs. Harriott subsequently acquired title to Ho. 145. She died in 1877, and in 1879 plaintiff purchased both pieces o£ property. All deeds in plaintiff’s chain of title conveyed the same rights in the alley subject to the same duties. The defendant and one James Wilson acquired title to a part of 189 and 1841 in 1859 and the balance in 1872. Wilson conveyed bis interest to defendant in 1877.
    Defendant’s property was of an average depth exceeding one hundred feet, and included a lot about 28 feet by 28 directly in the rear of the alley. The right to build over and under the alley was appurtenant to a lot fronting on Franklin street and sixty-two feet deep.
    In 1873, defendant and Wilson erected a four-story brick building across the full width of the alley and covering twenty feet of the rear thereof. They also maintained a gate at the entrance. This action was brought to compel the removal of the building and the gate, and to enjoin defendant from interfering with plaintiff’s easement.
    The defense was (1) that during the ownership of the Harriotts the easement had been abandoned ; and (2) that the building had been erected with the knowledge of the owners of 143 and 145, and without objection on their part, and that plaintiff had purchased with knowledge of such facts, and was therefore estopped from asserting any right to use the alley.
    The trial court found that the owners of 143 and 145, or 'some of them, knew that the building was being erected over the alley, and made no objection thereto, and that Mary Ann Harriott, Smith Harriott, and the other owners of 143 and 145, by their acts, manifested an intention to abandon, and did abandon, the right to use the alley, and as a conclusion of law, that plaintiff had failed to establish any right to the easement, and dismissed the complaint.
    Further material facts appear in the opinion.

      James C. Carter, for app’lt; John E. Parsons, for resp’t.

       Reversing 27 St. Rep., 301.

   Brown, J.

—The judgment in this action was first reversed by the general term, but upon a re-argument it was affirmed. The final decision of the court rested upon the authority of Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611; and it appears from the general term opinion that the proposition assumed to have been there decided, which was made applicable to this case, was that an easement acquired by grant may be extinguished by actual abandonment or non-user for a period less than twenty years. That question was not involved in the facts of the case cited, and its consideration was not necessary to its decision. There was in evidence a release in writing of the easement executed by the grantee thereof, who was the plaintiff’s grantor, made in consideration of seventy-five dollars and the grant of a new easement. There was non-user of the easement in question for upwards of twenty years, and use of the substituted easement during a large-part of the same period. The question, therefore, whether nonuser alone for a greater or less period than twenty years would have extinguished the easement was not before the court. Nor is there anything in the opinion to the effect that such question should be answered in the affirmative.

On the contrary it was said by Judge Bari in stating the law .applicable to the extinguishment of such an easement that it could not be lost by non-user for any length of time. All that the court there decided was that the release of the right claimed by plaintiff, followed by non-user for upwards of twenty years and use for a long period of a substituted easement, constituted conclusive evidence of its extinguishment and that the trial court should have so ruled as a question of law. The main reliance of the plaintiff in that case was upon the fact that the release was not recorded and was therefore void as to him, he being a purchaser without notice. But that claim was not sustained on the ground that the agreement to give up the easement and the unequivocal intention thereby expressed to abandon it was the effectual and material thing to be considered and not the fact that such an agreement was expressed in writing and executed under seal. It was this element in the case that led the learned judge writing the opinion of the court to say that: Non-user for a perlon of twenty years under such circumstances as show an intention to abandon and give up the easement is sufficient to extinguish it And even an abandonment for a shorter period under such circumstances as show an intention to give up and release an easement which is acted upon by the owner of the servient tenement, so that it should work harm to him if the easement was thereafter asserted, would operate to extinguish it”

The learned general term evidently overlooked the qualifying • language of the last sentence quoted. It was applicable to the case then before the court There was the release and the use of the substituted easement showing an unequivocal intention to abandon and in reliance on that act use of the waters of the spring in question by the grantor of the easement and those who subsequent to the release had acquired his title. There was, therefore, a clear case of estoppel, and that an easement created by grant could be extinguished by estoppel was the effect of the language used in reference to an abandonment for a less period than twenty years which I have quoted from the opinion.

In Washburn on Easements, (4th ed., p. 707), it is said that the question of abandonment is one of intention, but that time is not a necessary element therein. A cesser to use accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release without reference to time.” And this proposition is fully sustained by authority. Pope v. Devereux, 5 Gray, 409; The Queen v. Chorley, 12 Q. B., 519; Moore v. Rawson, 3 B. & C., 332; Dyer v. Sanford, 9 Met, 395; Veghte v. Raritan Water Power Co., 4 C. E. Green, 143; Crain v. Fox, 16 Barb., 184; Cartwright v. Maplesden, 53 N. Y., 622. Snell v. Levitt, is not therefore an authority for the proposition that an easement created by grant can be extinguished by non-user. Under the rule of that case an intention to abandon must exist in connection with and as a cause of non-user. The case is distinguished from the one before us in that there was evidence of an unequivocal act releasing the easement. The learned counsel for the respondent, while not claiming that that case goes further than 1 ■have indicated, contends that the evidence of the intention to abandon, which is necessary to sustain the conclusion reached at the trial, exists in the facts found by the court. Giving him the full benefit of that decision, we may examine this case in the light of its authority.

The judgment in this case rests upon two grounds: (1.) An estoppel based upon knowledge of the erection of the building, and omission to object to it by the owners of Nos. 143 and 145 Franklin street. (2.) Abandonment of the easement.

The trial court found (1) “ that the owners of Nos. 143 and 145 Franklin street, or some of - them, knew that the building was being erected over the alley, and made no objection to the erection of the same.”

This finding, if supported by the evidence, is insufficient to create an estoppel. The owners of 143 and 145 at the time of the erection of the building, were the widow and three children of Smith Harriott. The plaintiff has succeeded to the title of all of them. And if any of the children who were owners of the fee were ignorant of the erection, the act, was a wrong to them, and in violation of their rights. The plaintiff, therefore, is not estopped from asserting his rights in the alley unless all his grantors are estopped. The evidence does not show more than that Mrs. Harriott knew that the building was being erected. She was a life tenant, and was in the legal possession of the properly. But knowledge on her part did not affect the rights of her children:

There is no pretence that her daughter, Mrs. Schilling, ever received any information concerning the building or had any knowledge of it. Frederick P. Harriott testified that he was first informed of it in the summer of 1885 and Smith Harriott testified that he was informed by his mother that Taylor & Wilson were putting up a building in the rear of the lot, but there is no evidence that he knew at the time of its erection that it was upon any part of the alley, and this might very well have been the effect of the statement on his mind, as the defendant and Wilson owned a lot twenty-eight feet deep directly in the rear of the alley. Smith Harriott and his brother resided at Cherry Valley in this state and were rarely in the city of New York. It does not appear that the fact that Mrs. Harriott informed her son that a building was in process of erection was known to Taylor & Wilson and nothing that any of the owners of No. 143 did induced them to build on the alley.

Taylor & Wilson were not the owners of the fee of the alley. They possessed the right to use the easement in common with the owner of the adjoining property. Their deeds conceded the right of -equal enjoyment in the owners of such property and limited them to the enjoyment of the privilege of ingress andv- egress upon the terms set forth in the instrument In contemplation of law the rights in themselves and others with their limitations were known to them at the time of the erection of the building.

To have shown an estoppel it was essential for them to have proven that they were induced to erect the building by the conduct or language of their co-tenants in the easement in the alley. Here there was no inducement They were not misled. They acted with the full understanding of the rights of the other owners and of the limitations upon themselves. No defense, therefore, can be based on an estoppel. The judgment, if it can be sustained, must rest upon the fact of abandonment

The appellant challenges this finding on .the ground that it has no support in the evidence, and we are of that opinion.

The facts on which it rests are (1) that from 1846 to 1879, when it was torn down by the plaintiff, a gate was maintained .by the defendant and his grantors at the entrance to' the alley on Franklin street, (2) that as early as 1842 a brick building was erected on the lot No. 143, extending along the alley thirty-six feet deep, the easterly wall of which had no opening through which access could be had to the alley, and a high board fence without opening was maintained from the rear of the house to the end of the lot, thus shutting out the owners and occupants of that lot from the alley until 1879, when plaintiff opened a door through the fence. (3) That for forty years no taxes or assessments on the alley and no part of the expenses of paving or repairing had been paid by the owners of 143 and 145, but the same had been paid by the owners of defendant’s property. (4) That since 1842 the owners of 143 and 145 had made no use of the alley, but it had been exclusively used by defendant and his grantors. The last fact is of itself of no importance. Abandonment necessarily implies non-user, but non-user does not create abandonment no matter how long it continues. There must be found in the facts and circumstances connected with the non-user an intention on the part of the owner of the easement to give it up, but intention existing coupled with non-user will uphold a finding of abandonment. The evidence in this case is' substantially undisputed, and the question is do the facts I have referred to show an intention on the part of the plaintiff’s grantors to give up and abandon the easement. It is unnecessary to consider these facts in connection with Mrs. Harriott. Although she was the owner of No. 145, and may have intended to and did abandon any right she had in the alley as the owner of that lot, yet as to No. 143, she was but a life tenant, and no act of hers could prejudice or destroy the rights of the owners of the fee of that property unless done with their knowledge and approval.

The erection and maintenance of a gate at the entrance to the alley on Franklin street is not a fact indicating an intention with reference to the easement on the part of the owners of No. 143. It was not their act. It would appear to be important only in connection with an adverse claim or possession on the part of those who erected and maintained it. Abandonment of the easement is not inconsistent with entire and full recognition by the owners of defendant’s property of the rights and privileges of the owners of No. 143. But their exclusion from the alley would be a denial of their rights and could exist only in connection with a claim adverse to such owners. It does not appear that any of the owners of 143 were ever excluded from the alley or that any claim to the exclusive use by defendant or his grantors was ever made to or brought to their knowledge. But adverse possession, although alluded to in the special term opinion, needs no consideration, as it was not pleaded as a defense and no finding was made upon it and none was requested.

The fact of the existence of the gate is of no importance in the case as evidence of abandonment in the absence of evidence that it was used to exclude the owner of the adjoining property. It is not denied that no use was made of the alley by the owners of 143, and as long as there was no occasion on their part to use it, the mere existence of a gate was not notice of any adverse claim on the part of their co-tenants. Nor would acquiescence in its existence be prejudicial to their rights unless an adverse claim was brought to their knowledge. So long as it did not “hinder, obstruct or annoy others legally privileged to pass through the same,” it was not in violation of the terms upon which the easement was granted.

The erection of the house and fence without an opening on the east gives no indication of an intent to abandon the easement. It indicates no more than that the owner of 143 did not use the alley. Jt is evidence of non-user and nothing more. But the non-payment of taxes and repairs is an act of significance. Voluntary payment by defendant of course amounts to nothing, but if the failure to pay by plaintiff’s grantors was coupled with a refusal to pay on the ground that the easement was not desired, I think it would be sufficient to support a finding of an intent to abandon and give up the right

The owners of No. 143 must be deemed to have known that the privilege in the alley was subject to these payments; and if for a long term of years they refused to contribute, it would, in connection with the other facts, be strong evidence that the privilege was not desired and was given up. It would be no answer to this fact to say that they were liable under their deed, and could have been sued for half of the taxes and repairs. Perhaps such a suit could have been maintained against them, but certainly the other owners of the easement were not bound to sue them, and defendant has lost none of his rights by a failure to sue. If non-payment on the part of the owners of No. 143 is evidence of a surrender by them of the easement, the defendant may avail himself in this action of that defense. But the situation was somewhat peculiar. Mrs. Harriott, the widow, was the life tenant of No. 143. Her children had no right to the possession of the property until her death, and therefore no occasion to make use of the alley. She was bound to pay the taxes and repairs, and her children had a right to assume that she would do so. Her failure or refusal to pay the taxes could not, therefore, be regarded as a fact indicating any intention as to the easement on the part of her children, unless they knew of it and approved of it.

While it may be that the children were liable for a part of the expenses and taxes between themselves and the owner of the defendant’s property, between them and their mother, the life tenant, she was primarily bound to pay them, and they might assume that she would do so. Mrs. Harriott, as the owner of 145 and life tenant of 143, was bound to pay one-half, while her children were liable only for such proportion as was properly chargeable to Ho. 143.

How, it does not appear that any demand was ever made upon Mrs. Harriott’s children to pay their share of the expenses and taxes in the alley, nor does it appear that Mrs. Schilling or Frederick Harriott ever knew that their mother refused to pay them. The only evidence is that Smith Harriott was informed by his mother that she had been advised not to pay them, and that she did not pay them. But he was not charged with any duty in reference to the property by his brother and sister, and his knowledge then acquired cannot be imputed to them.

In the absence of any refusal on the part of the children to pay, the payment by defendant was voluntary and of course gives him no rights to the property. I think, therefore, that the children of Mrs. Harriott had a right to assume that their mother would pay these taxes and expenses, and in the absence of any evidence that they knew she had refused so to do, the mere fact of non-payment is no evidence that they intended to give up and abandon the use of the alley. j

Mrs. Harriott did not die until 1877, and-two years later her children conveyed Ho. 143 to plaintiff with the easement. As to Mrs. Schilling and Frederick Harriott there is no evidence to support the finding of the court

This conclusion leaves the case to rest entirely upon the fact of non-user. And the easement having been created- by deed, that is not, sufficient to sustain the finding that it had been given úp and was extinguished. A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land. Hence his title is not affected by hon-user, and unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law, he may rely on the existence of his property with full assurance that when the occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired.

We do not deem it necessary to consider the question whether the plaintiff made out a case which would justify a court in adjudging that the building should be removed, or whether complete indemnity could be obtained by an award for the damages sustained. As a new trial must be had the evidence thereon may not be the same as is contained on the record before us, and should occasion arise for the consideration of that question the trial court is the proper tribunal to determine it in the first instance.

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

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