author: Andrews, J.

text:
    In the Matter of the Application of The Board of Street Opening and Improvement Relative to Acquiring Title to Certain Lands for a Public Park.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Eminent domain—Cemeteries—Laws 1887, chap. 320.
    The authority conferred by chapter 320, Laws 1887, upon the board _ of' street opening to enter upon “ any and all lands, tenements and hereditaments,” south of 155th street, which-it shall deem necessary for the laying-out of a park, includes the right to select and take cemetery land for that-purpose.
    2. Same—Damages.
    In such case if the removal and reinterment of the bodies are taken charge of by relatives or the church, the expense thereof will be one of' the items of damage to be considered in making an award; if by the city, it must be provided for by an appropriation or out of the proceeds of the bonds to be issued pursuant to the act.
    Appeal from an order appointing commissioners of estimate and assessment in proceedings to condemn St. John’s cemetery for the purpose of a public park.

      William .H. Ciarle, counsel of the corporation, and John P. Bunn, for the Board of Street Opening and Improvement, resp’t;, Stephen P. Nash, for Trinity Church, app’lt.
   Andrews, J.

Chapter 320 of the Laws of 1887 authorizes the-board of street opening and improvement of the city of New York: to select, locate, and lay out such and so many public parks in the city of ¡New York, south of 155th street, as said board shall from time to timé determine. • Said act also authorizes the said board and all persons acting under its authority, and by its direction, to enter upon any and all lands, tenements and hereditaments which the board shall deem necessary to be used and converted, for the laying out of any park so selected. The said statute also authorized the board of street opening and improvement, through the counsel to the corporation, to institute proceedings in this court to condemn the lands, tenements, hereditaments and premises required for the purpose of the parks so located.

Pursuant to the authority so conferred said board selected, located and laid out for a public park certain lands in the ¡Ninth ward of said city, known as St. John’s cemetery, and thereafter, through the counsel of the corporation, having given due notice of the application, presented a petition to a special term of this court praying for the appointment of commissioners of estimate. Upon the hearing of such application the corporation of Trinity church appeared through its counsel and filed a written answer containing objections to the granting of such application, based principally upon the ground that the said statute did not confer the power to condemn a cemetery for a public park. The court took the matter under advisement, and subsequently an order was made granting the application and appointing three commissioners of estimate, and from that order this appeal is taken.

The statute under which it is sought to condemn the property authorizes a condemnation for public parks of “ any and all lands, tenements and hereditaments ” situated in the city of ¡New York, south of One Hundred and ¡Fifty-fifth street. It would have been impossible for the legislature to have conferred upon the city authorities any broader or more comprehensive authority with regard to the land which might be selected and taken for public parks; neither cemeteries, nor any other lands, being excepted by the statute. The learned counsel for the appellant concedes that the legislature has the power to authorize the city authorities to select and take the cemetery in question for a public park, but he claims that the power to do so ought not to bo deemed to have been conferred upon the board of street opening * by the general language of the act. In other words, it is desired to have the court, incorporate into the statute an exception in favor of cemeteries, which the statute itself does not contain. The rules applicable to cases of this character have been frequently laid down by the court of appeals, and are adverse to the claim made by the counsel for Trinity church.

In McCluskey v. Cromwell, 11 N. Y., 601, the court said, “It is beyond question the duty of courts in construing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction both of statutes and contracts the intent of the framers and parties is to besought first of all in the words of the language employed, and if the words are free from ambiguity and doubt and express plainly, clearly and distinctly the sense of the framers of the instrument there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction the contracts of parties. The office of interpretation is to bring sense out of the words used and not to bring a sense into them.” In The People v. Woodruff, 32 N. Y., 364, the court said, “It is a dangerous principle to imply power v'hen it is not conferred by a legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of a legislature in the emergency which may have arisen. It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus, than attempt to do it by judicial construction.” In Johnson v. H. R. R. R. Co., 49 N. Y., 462, the court said, “ Where the language is definite and has a precise meaning, it must be presumed to declare the intent of the legislature. And it is not allowable to go elsewhere in search of conjecture to restrict or extend the meaning. McCluskey v Cromwell, supra.

“The provision here is clear and precise and courts cannot go beyond or outside of it under pretext of interpretation to cure any supposed blunder of the legislature.” Again, in Benton v. Wickwire, 54 N. Y., 228, the court said : “We do not feel it necessary to go into any discussion of the distinction, in construction, between remedial, penal or other statutes, because1 we regard it as settled that all statutes must have a construction according to the language employed, and where no ambiguity exists courts cannot correct supposed defects.”

In the case at bar the language used is free from all ambiguity and there is no room for interpretation. The authority given is to select and take “ any and all lands, tenements, and hereditaments,” south of One Hundred and Fifty-fifth street. For the court to hold this language does not include land used for cemeteries would be to do precisely what the court of last resort has repeatedly decided cannot be dona

It is conceded by the learned counsel for the appellant, and it is a fact, that in this state there is no express statutory prohibition against the taking of cemeteries under the power of eminent domain, but he claims that the general legislation of the state has indicated a plain policy that such property shall not be taken unless specially authorized by legislative act; and he cites in support of this claim chap. 843 of the Laws of 1868; chap. 133, § 10 of the Laws of 1847; chap 203, § 34 of the Laws of 1878, and chap. 273 of the Laws of 1886. An examination of the provisions of- these statutes does not sustain the claim made by counsel as to what the policy of the state has • been, but seems rather to warrant the inference that, in the absence of an express prohibition against taking cemeteries, general statutes authorizing the taking of lands for public purposes will include the same. The said act of 1868 provides that no private or public road shall be laid out or constructed through any graveyard or burial ground in this state, unless the remains therein contained are first carefully removed and properly reinterred in some other burying ground, at the expense of the persons desiring such road. This statute certainly does not imply that graveyards and burying grounds cannot be taken for roads. On the contrary, it clearly implies that they can be taken for roads, but that the remains must first be removed and reinterred.

The act of 1847 to establish rural cemeteries provided that no> street, avenue or thoroughfare should be laid out through any such cemetery without the consent of the trustees of such association, except by special permission of the legislature. The act of 1866, incorporating soldiers’ monument associations, contains a similar provision ; and the act of 1878 incorporating pipe laying companies, provided that no pipe line should be constructed, through any cemetery or burying ground. The said acts of 1847 .and 1866 undoubtedly indicate that the legislature was of the opinion that when the trustees of rural cemeteries or of soldiers’1 monument associations do not consent to the laying out of streets- or roads through the lands held by such corporations, special permission of the legislature for such laying out must be first obtained ; but such statutes also indicate that the legislature was of the opinion that, in the absence of such prohibition, the general laws authorizing the laying out of streets and roads through private property would authorize the laying out of streets and roads through such lands. So in regard to the act of 1878, the provision above cited indicates that but for the prohibition the general power conferred by the statute to construct pipe lines would have authorized the construction of the same through cemeteries and burying grounds. The inference to be drawn from the prohibition contained in said statutes against the invasion of cemeteries and graveyards is, that if the legislature, when it passed the act of 1887, now under consideration, had intended that cemeteries in the city of Hew York should not be taken for public parks, it would have expressly so declared, and would have inserted in the statute a positive prohibition against taking the same.

It is suggested by the counsel for the appellant that if the act had provided that the board of street opening might lay out as many parks in the city of Hew York as it should from time to time determine, taking therefor any cemeteries and burying grounds that the board might consider it advisable to take, the law would never have met with the approval of the legislature. This may, or may not, be so. The power conferred upon the city authorities by said act, chapter 320, Laws of 1887, to condemn lands for • public parks is substantially the same as was given to the city by the general act of 1813.

Indeed, many- of the provisions of said act of 1887, and of similar statutes, are taken directly from said act of 1813, Now the reports and records of the courts show that in several proceedings instituted by the city under said act of 1813, and similar laws subsequently passed, parts of cemeteries have been condemned for streets and public parks. As far back as 1834 a portion of a cemetery belonging to Trinity church was taken for the extension of Albany street. Later, under the same laws, a portion of the cemetery belonging to the Brick Presbyterian church was taken for the extension of Beekman street, and in later years a boulevard, several hundred feet in width, was extended directly through a cemetery in the upper part of the city belonging to Trinity church, cutting the cemetery completely in two parts, and Tendering it necessary that the two parts should be connected by a bridge extending across the boulevard. It is stated by the counsel to the corporation, in his brief, that in the extension of Lexington avenue part of the burying ground of the Harlem Methodist Episcopal church was taken, and it appears by a statement contained in the brief of the counsel for the appellant that the board of education of this city, under the act, chap. 191 of the Laws of 1888, has recently acquired an old burying ground, situated between First and Second street and First and Second avenue, for school purposes; and in a number of other instances it is well known that portions of cemeteries in this city have been taken for public purposes under said statutes. Under these circumstances it may be fairly presumed that the legislature which passed the act of 1887 was aware that, under similar statutes, portions of cemeteries and grave-yards had been repeatedly condemned. It is by no means certain, therefore, that if said act of 1887 had in terms authorized the taking of cemeteries for public parks, that it would never have met the approval of the legislature.

On the contrary, in view of the proceedings which have been taken under similar statutes and which are matters of notoriety, it is to be presumed that the legislature thought that in some cases it might be necessary and proper that old and disused cemeteries should be condemned for public parks, and that it might be safely left to the discretion of the board of street opening to determine in what cases this should be done; and it is to be presumed that if the legislature had intended that no cemetery should in any case be taken for a public park, the statute would have contained a prohibition against such taking, similar to those found in the other statutes above referred to. At all events, whether the legislature would, or would not, have passed the statute if it had in terms authorized the condemnation of cemeteries, as matter of fact it did pass the statute containing a power to condemn lands for public parks as broad as that given by former statutes, under which portions of cemeteries have been condemned for streets, parks and other purposes; and if the failure to insert in the statute a prohibition against the taking of cemeteries for public parks was the result of an oversight on the part of the legislature, or of a misunderstanding by it as to the extent of the powers conferred upon the city authorities, the defect in the statute must be remedied by the legislature itself and not by the courts.

Again, the counsel for the appellant says that the constitutional provision which allows private property to be taken for public use embraces such property only as can be used for the public; that there is no possible way in which the human remains contained in the cemetery can be so used, and therefore they cannot be taken ; that decency as well as the existing law requires not that they should be used, but that they should be removed and re-interred in some suitable place; but that the power to do this is not given by the act, nor is it within the power of eminent domain.

It is quite true that such remains cannot be used for the purposes of a public park, and also that they cannot be taken by the city authorities under'the power of eminent domain delegated to them by the legislature. The city authorities can, however, take the fee of the land which is in the corporation of Trinity church, and they can extinguish the right of burial in such land however acquired, and in whomsoever vested. It would seem that as the land has been duly selected as a site for a public park, and proceedings for the condemnation thereof have been instituted, the relatives of persons who have been buried in the cemetery, or the church itself, which still owns the fee in the land, would feel called upon to cause such remains to be removed and properly re-interred. In case this shall not be done, common decency will doubtless require that the city authorities should cause such removal and reinterment. The relatives of the persons buried in the cemetery undoubtedly have authority to cause such removal and reinterment, and the corporation of Trinity Church can easily acquire the same authority. See chap. 215 of the Laws of 1842 ; chap. 349 of the Laws of 1878, and chap. 600 of the Laws of 1887. The provisions of the two last named acts are clear and explicit, and by proceeding in accordance therewith the church can exercise such power of removal and reinterment without the consent of the relatives of the deceased, and without any notice to the relatives beyond that required by the statute. In case neither the relatives nor the church shall cause such removal and reinterment, it will undoubtedly be the duty of the city authorities to cause such removal and reinterment, and there is no doubt but what the city authorities will have ample power in the premises. Such power is to be found in the general provisions of law which place all parks in the city under the control of the park department, and which authorize the board of estimate and apportionment to make annual appropriations for the construction and maintenance of public parks.

It is also to be found in said chapter 320 of the Laws of 1887, which authorizes said department to construct the parks acquired under that act, and which authorizes the issue of bonds to an amount not exceeding $1,000,000 each year for the payment of all expenses to be incurred under the authority of the act, including the construction of such parks. The expense of the removal, and of such a re-interment, must of course be borne directly or indirectly by the city. If the removal and re-interment are taken charge of by relatives, or by the church, the expense incurred," or to be incurred therefor, will be one of the items of damages to be considered by the commissioners of estimate in making their awards. • If the duty of causing such removal and re-interment is devolved on the city authorities, the expense thereof must be provided for, either by an appropriation through the board of estimate and apportionment, or out of the proceeds of bonds provided for in § 10 of chapter 820, of the Laws of 1887.

The counsel for the appellant also claims that there is no authority to sustain the decision appealed from, and that it must rest upon the language of the statute conferring the power upon the board of street opening.

As above stated, portions of cemeteries have in quite a number of instances been condemned for public purposes under statutes whose provisions, so far as the question of the power to condemn is concerned, were substantially the same as those of said act of 1887. While it is true that there is no reported case in which it has been expressly held that a statute giving power to condemn any and all lands located in certain portions of the city includes the power to condemn cemeteries, it is equally true that there is no decision holding that such statute does not include that power. So far as the reported cases go, it does not appear that the objection has ever before been taken that the statutes under which condemnation proceedings have been instituted did not confer the power to condemn cemeteries.

In the Matter of Albany Street, 11 Wend., 149, it does not appear that any objection.was made to the appointment of commissioners of estimate. In that proceeding a portion of a cemetery belonging to Trinity Church was condemned, and when the report "was presented to the court, counsel for Trinity Church appeared and objected, not that the statute did not authorize the condemnation of the cemetery, but that such condemnation was not necessary. The opinion of Chief Justice Savage indicates that the court entertained great doubt whether the decision of the corporation as to the necessity of the improvement could be reviewed, but it was held that if it could be reviewed at all, such review could not be had at that late stage of the proceedings. It is to be presumed that if the learned counsel who appeared for Trinity Church in that proceeding had supposed that the statute did not confer upon the corporation the power to condemn a part of the cemetery, he would have made that objection, for as that objection would have gone to the jurisdiction of the court to entertain the proceedings at all, it would probably have been available at any stage of the proceedings.

In the Brick Church case, 3 Edw., 155, the chancellor declined to give his consent too sale of the cemetery owned by that church to the city, because some of the vault owners objected to such sale. It appears, however, that a portion of the cemetery was subsequently taken for the extension of Beekman street, and the report of the referee as to the disposition of the award allowed to the property, as between the church and the owners of vaults and burial plots, is to be found in 4 Bradf,, 503. The most that can be said upon this branch of the case is, that various proceedings have been taken, at different times, under different statutes, similar to the statute of 1887, for the condemnation of cemeteries or parts of cemeteries for public purposes. There is no reported case in which it appears that the objection of the want of power to condemn cemeteries, as well as other property, was raised, and there is consequently no decision to be found, either holding that the statutes gave, or did not give, such power. If, therefore, we are to indulge in presumptions at all, it would seem that the fair and natural presumption is, that, if a proper respect for the remains of the dead, and the feelings of the living, require that cemeteries should never be taken for public purposes, every possible objection to such proceedings would heretofore have been raised, and the fact that no decision can be found holding that the objection of want of power was a valid one affords strong grounds for the presumption that such objection was never taken, and the further presumption that it was never taken because it was not considered available.

The fact that the board of aldermen urged upon the board of street opening the importance of taking this particular cemetery for a public park is not a valid ground of objection to the order appointing commissioners. The legislature saw fit to vest in the board of street opening an absolute discretion as to what land should be taken under the act, and it appears that such discretion has been exercised. Whether the board of street openings was influenced in its action by the representations of the board of aldermen, or by representations made by any other board, or by any person not connected with the board of street opening, is wholly immaterial. The order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Daniels, J. Barrett, J.

license: Public Domain

text:
    Josephine L. Peyton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Railroad—Elevated—Evidence.
    In an action against an elevated railroad a real estate broker was allowed to testify that the decrease in rents and change in the class of tenants on the avenue was, in his opinion, due to the elevated road, and to give a ° comparison of the rental values on this avenue with those on others where there was no elevated road. Held, error; that the facts instead of the opinions and inferences of the witness should alone have been taken; that the question whether the elevated road depreciated the value of the property was one of the most important to be determined, and could n--t be established by opinion or inference on the part of witnesses.
    (Barrett, J., d'.ssents.)
    Appeal from a judgment recovered on the report of a referee.

      Davies & Sapallo, for ápp’lts; Chas. A. B. Pratt, Jr., for resp’t.
   Daniels, J.

Thé plaintiff was the owner of premises consisting of a lot of land and the building thereon situated on the corner of One Hundred and Nineteenth street and Third avenue, in the city of New York. The lot and building were bounded twenty eight feet on the avenue and eighty feet on the street The building was five stories in height above the first floor. This floor was used as a store and the upper stories as flats or tenements. The plaintiff became the owner of the property in January,. 1886, when the store and the basement under it were in the occupancy of tenants, andtheaction was brought for the damages sustained by the plaintiff by the erection and operation of the elevated railway, and to secure an injunction restraining such use of the street by the defendants. Upon the trial, evidence was given from which it could be inferred by the referee that the damages found to have been sustained by the plaintiff in consequence of the maintenance of the structure and the operation of railway trains upon it was the sum allowed by him for that purpose. The amount of damages which was considered to have been sustained by the plaintiff from these causes was the sum of $740.80. There was also in the case evidence indicating the value of the easements taken and appropriated by the railway companies in the maintenance of the structure and the operation of the trains upon it, and that value was determined by the referee to be the sum of $1,800, and, upon the payment of that amount, the defendants were permitted by the judgment entered upon the report to acquire the title to these easements. The evidence as to both these subjects was close and conflicting, and all of it appears to have been important, so far as it was given, in the consideration of the question of damages as well as of the value of the easements.

In the course of the examination of the witness Thomas T. McLaughlin, who was a real estate broker having his place of business on Third avenue, and not far from the premises in question, he testified that the rents were less on Third avenue at the time of the trial than they were before the building of the railroad, and that a better class of people could be obtained as tenants on the street referred to by him than were obtainable for the use of property upon the avenue. The witness was then asked “ To what do you ascribe this change in the character of the tenants or dwelling portion of the premises on Third avenue which you have stated took place.” To this question the defendants’ counsel objected on the ground that it was incompetent, irrelevant and immaterial, and as calling for the opinion of the witness. The referee overruled the objection and the counsel for the defendants excepted, and the witness answered “To the elevated road.” He was then asked “What are the effects produced by the elevated road on Third avenue,” and this was objected to as incompetent, irrelevant and immaterial, but the objection was overruled and the counsel for the defendants excepted. The witness then answered that he knew that “ the noises, dust and cinders had kept people away from there. They have to keep their windows closed in summer time, and if they open them the cinders blow in and sometimes it darkens up the apartments, and you can’t see across the street. In my opinion that has an effect upon the rental value of the premises. The rents of property on Third avenue which I had charge of before the road have decreased since the coming of the road. I ascribe that to the cause I just named, the construction and maintenance of the elevated railway. I don’t know any other cause which would have had during these past years any detrimental effect upon the rental value of Third avenue properties for dwelling purposes.” These answers, especially the one first given, was no more than the expression of the opinion of the witness, and it bore upon a vital part of the controversy between these parties, and, as an opinion, it does not appear to have been legally received by the referee, McGean v. Manhattan R’way Co., 117 N. Y., 219; 27 St. Rep., 337; Avery v. N. Y. Central, etc., Co., 121 N. Y., 31-43; 30 St. Rep., 471; Wyman v. Lexington, etc., Co., 13 Met., 316, and it was not authorized by anything which has been said in the case recently decided of Roberts v. N. Y. Elevated Ry. Co., 40 St. Rep., 454.

The witness was also asked: “How does the rental of property on First avenue compare with property on Second avenue and Third avenue in this locality? ” This was objected to as calling for incompetent evidence, and as irrelevant and immaterial, but the question was allowed to be answered by the referee, and the defendants’ counsel excepted. His answer was that “It rents very much better on First avenue; there is no elevated road on First avenue. It rents better on First avenue than it does on Second and Third. First avenue has been far superior to Second and Third; better prices, and you can keep it rented. There is no elevated railroad on First avenue.” This evidence seems to have been received in the same view as the answers to the preceding questions were allowed to be given, and the ruling permitting the answers allowed the witness to declare his inferences from the facts instead of proving the facts themselves, and permitting that to be done, as the law regularly required it should be, by the referee. That seems to have been improper within the authorities already referred to, as well as the case of Drucker v. Manhattan Ry. Co., 106 N. Y., 157; 8 St. Rep., 599. The facts, as they appear to have been in the mind of the witness, were all capable of being described and expressed in language enabling the referee to receive as clear a comprehension of them as that which was possessed by the witness, and, for that reason, these facts instead of the opinions or deductions of the witness should alone have been taken, leaving the referee, as it was his peculiar province, to draw such inferences from them as he considered to be justifiable.

The case upon the evidence was not so far proved as to allow the conclusion to be drawn that the referee’s mind was not affected by this objectionable testimony. It is, on the contrary, wholly probable that it entered into his determination and contributed to the support of the conclusions reached by him not only as to the damages, but as to the value of these easements, and for that reason the error of the referee in permitting this evidence to be given cannot be disregarded. Baird v. Daly, 68 N. Y., 547. It was said in that case, under analogous circumstances, “ that we cannot say that the exclusion or admission of any of the evidence to which objection was taken upon the trial, however slight, or of little weight it may seem, may not have influenced the result, and if error was committed either in admitting or rejecting evidence . against the objection and exception of the defendant, a new trial should be had." Id., 549. And this rule was followed and applied in Matter of Eysaman, 113 N. Y., 62; 22 St. Rep., 136. And it was also held in Murray v. Great Western Ins. Co., 4 St. • Rep., 624, that it should clearly appear that the party against whom inadmissible evidence has been received has not been injured by the evidence, before the court on appeal will be at liberty to disregard it.

The point whether the elevated railroad and the trains used upon it had depreciated the value of the property was one of the most important, if not the most important, involved in the trial of the action. It was not a fact which could be established by opinion or inference on the part of witnesses. This seems to be the result now of all the authorities, which require that the facts alone should employ the attention of the witnesses whose evidence may be relied upon as supporting the conclusions intended to be maintained in the case. And as that was not the course taken upon the trial, the judgment should be reversed and a new trial ordered, with costs to the defendants to abide the result.

Yan Brunt* P. J., concurs.

Barrett, J.

(dissenting.)—I am unable to concur with Mr. Justice Daniels in this case. The judgment is plainly a righteous one, and it is amply supported by the evidence. Even if the rulings of the learned referee in the admission of evidence are properly the subject of criticism, the defendants were not prejudiced, and the objections on that head are too slight to warrant the reversal of so just and moderate a judgment. But I think the rulings of the learned referee were correct and that the evidence objected to was properly admitted. No case has gone so far as to exclude the opinions of experts with regard to changes in the . character of tenants and tenements, and the causes thereof. The great question which has agitated the courts, and which has been finally settled by the court of appeals, was whether an opinion could properly be given as to the value of property on the line of the elevated railway,in case the structure were not there. This has finally been solved against the admission of such evidence. Roberts v. The New York Elevated Railway Company, 40 St. Rep., 454; Gray v. The Same, id., 478.

The question objected to in the case at bar is covered neither by the point decided in these cases, nor by the reasoning of the opinions, whereas, in the- Doyle case (same volume, page 474), almost identical questions were held to" be proper, and a judgment was reversed because of their exclusion. It is, indeed, difficult to perceive why an expert may not give his judgment upon a matter so entirely within the domain of experience as changes in the character of a street, or in the occupation thereof. Upon what principle is his expert knowledge as to the cause of such changes to be excluded ? He is not speculating as to what would be the value of the property if the changes had not taken place. He merely says that where well-to-do people formerly occupied an entire floor, it is now necessary to divide the floor into two apartments, and to rent each apartment to an inferior tenant. And, in ■his opinion, this change is due to the elevated railway. Now what is this but a statement of his observation and experience ? The very next answer illustrates the point. For there he tells us just what he founded his previous opinion upon. People objected to noises, dust and cinders. They objected to keeping their windows compulsorily closed in summer and to the darkening of their rooms. This is what he saw. These complaints are what he heard. He observed well-to-do tenants leaving on account of these annoyances, and a cheaper class taking their places.. He .also observed that the flats had to be altered to suit the new condition of things and to accommodate the building to lower rents. An opinion as to the cause of these changes does not substitute the judgment of the expert for that of the court upon any question of value or of damages. It is merely an opinion as to a change of condition. It is-purely an observation not only of the fact of the change, but of the causes thereof. For surely personal knowledge of the reasons given by a multitude of tenants for their coming and going is necessarily observation, and experience.

I have said that such questions were explicitly sustained in the Doyle case. A brief extract from the opinion will demonstrate this:

“ The defendants,” said Earl, J., “put the following questions to several witnesses who had done business for several years on Sixth avenue, in the vicinity, of the plaintiff’s premises, and who appeared to be familiar with the avenue and its business, and competent to speak in reference thereto: ‘ What have you observed in respect of the effect of the -elevated railroad upon property in this avenue? What has been the effect of the elevated railroad upon Sixth avenue as a business street? ’ ”

The court held that these questions were competent, Earl, J., observing that they “ called not so much for the opinions of the witnesses as for facts open for their observation.” Eeference was there made to the Druclcer casé, 106 N. Y., 157; 8 St. Eep., 599, where similar evidence was held to be competent, the particular question being: “ What effect, if any, had it (the railroad) had upon the business of that store ? ” The answer to this question was almost precisely the same as that objected to in the case at bar. It was as follows:

“ Customers don’t come there any more as they used to, on account of the smoke, dirt, noise and cinders what is there; and it is very dark in the stores.”

The other question discussed by Mr. Justice Daniels was, in my judgment, equally unobjectionable. A general comparison between the rental of property on the line of the railway and of property on neighboring streets and avenues has always been permitted. The question is said to call for inferences from facts rather than the facts themselves. But with great respect, I think the question did call for facts, none the less because such facts were general rather than particular. If particular instances had been asked for, they might have been objected to as calling for special bargains. The proper course was to inquire as to the general character of rental values on the avenue in question, and to-compare such values with those on neighboring streets and avenues. This was precisely what was authorized in the Druclcer case when Judge Finch observed that “ a survey of the general facts ” was required' to ascertain how much the plaintiff was injured by the impairment of his easements. It was also within the character of evidence authorized in the Roberts case, where Judge Peckham remarked that “proof might be made of the filling up of the side streets along the lines of this railroad and of the incoming of a large population, the erection of buildings-somewhat similar to plaintiff’s and their rental and fee value, and finally a general statement of the condition and value of property in the neighborhood of that in question could be proved.”

When we consider, also, that the answer to this question amounted to nothing more than this * * * that property, rents very much better on First avenue, where there is no elevated road, than it does on Second and Third avenues, where there is-one, the appellants’ point on this head seems trivial and wholly insufficient to warrant the disturbance of the report.

In my judgment, there should be an affirmance, with costs.

Judgment reversed and new trial ordered, with costs to defendants to abide result.


author: Van Brunt, P. J.

text:
    Ellen Cavanagh, Ex’rx, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)
    Appeal—Affirmance pro forma.
    Every point raised having been decided adversely to appellants in other cases which are now pending in the court of appeals, the judgment must be affirmed.
    Appeal from judgment of the special term.

      Davies & Rapallo, for app’lts ; D. W. Tyler, for resp’t.
   Van Brunt, P. J.

It is conceded by the appellant’s points that every point raised upon this record has been disposed of adversely to the'appellants by this court; but that appeals are pending in the court of appeals in these cases.

Under these circumstances it follows as a matter of course that, the judgment appealed from should be affirmed, with costs. Daniels and Barrett, JJ., concur.


author: Brown, J.

text:
    Granger A. Hollister et al., Resp’ts, v. Philander Mott, App’lt.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    Mechanics’ lien—Building contract—Performance by contractor.
    One H. agreed to erect three dwelling houses for defendant M., and connect the same by lateral sewers with a sewer which M. had constructed. The latter was to pay $450 each when the houses were enclosed, and the balance, $540 each, when completed “ according to the terms of the contract.” Plaintiff furnished materials to H. for the buildings. The existing sewer was found to be too'shallo w, M. had it deepened, and H. allowed, the amount paid therefor, but neglepted after completion of the houses to put in the lateral sewers, and M completed them at a cost of $180. H. completed the houses except in the particular stated, and in a few minor-matters. The first payments had been made prior to plaintiffs filing their lien. Held, that there was an abandonment of the contract by the contractor, and there was nothing due to him upon which plaintiffs’ lien could attach.
    Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered upon the report of a referee.

      M. M. Waters, for app’lt; J. B. Durand, for resp’ts.

       Reversing 32 St. Rep., 743.

   Brown, J.

This action was brought to foreclose a mechanics’’ lien. April 22, 1887, the appellant entered into a contract with John H. Huls, by which Huls agreed to erect for him three-dwelling-houses on land on the north side of Clifford street, in the-city of Bochester, according to plans and and specifications set forth in the contract. Among other things Huls was “ to put in a sewer,” and was to connect.the houses “ with the sewer said Mott-had built on the south side of Clifford street last season, of the same size of sewer as used by said Mott last season, so as to drain all the cellars of said houses, with all the laterals for said sewers for each house. Also to put in the water works for all of said houses.”

The houses were to be completed by August, 1887, and when fully enclosed appellant was to pay Huls $450 on each house and when all the houses were built and completed according to the terms and conditions of the contract he was to pay “ money enough to be equivalent to nine hundred and ninety dollars for each house.”

The respondents’ lien was filed October 10, 1887, and prior to that date they had furnished to said Huls lumber used in the construction of said houses of the value of more than $800, and. prior to that date payments had been made to Huls by the appellant on account of the houses amounting to $2,020.

It appeared that after the work was commenced it was discovered that the sewer referred to in the contract as the one with, which the sewer to be built by Huls was to connect was not deep' enough to drain the cellars of the houses, and thereupon with Huls’ consent the appellant contracted with one Tripp to deepen said sewer and carry it over the course specified in the contract with Huls, so as to drain the appellant’s houses, and also for the right to connect the water for said houses with water pipes to be laid by Tripp to premises adjacent to the appellant’s property, and the putting in of the drain from the houses to-said sewer, and the water connection was by consent delayed until Tripp should complete the work undertaken by him. After Tripp’s work was completed Mott notified Huls to go on and. complete his contract, and thereupon a disagreement arose between the parties in reference to extra expense which Huls claimed he would be put to in doing the work by reason of the deepening of the street sewer.

The evidence as to what occurred is conflicting, but the referee made no finding thereon further than “ that after the completion of said houses in other respects, said Huls neglected to put in the lateral sewers to said main sewer, and to put in the water connections for said houses, and said Mott, after notice to .said Huls, completed the same in these respects at an expense to himself of $180, which the same was worth.” And he further found that Huls fully performed the contract on his part except in the particular stated, and one or two other minor and unimportant matters, and that said houses were fully completed December 6, 1887, and he awarded the plaintiffs a lien upon the ■difference between the contract price and the amount expended by Mott to complete the work specified in the contract

' There was no provision in the contract for the completion of the work by the owner in the event of the failure of the contractor, nor was there any understanding between them that the owner should proceed with the work, nor was there any failure on the part of the appellant to perform his obligations under the ^contract, and in view of the finding quoted that Huls neglected to put in the lateral sewers and the water connection, there was an abandonment of the contract on his part, and the case cannot be distinguished from Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902.

There was nothing due under the contract when the lien was filed, and it could attach only to the payments that should be ■earned under the contract subsequent to October 10th ; and plaintiffs’ right to recover depended, therefore, upon the performance ■of the contract by Huls.

Neither can it be said that the contract was substantially performed so as to bring it within the rule applied by the referee. Van Clief v. Van Vechten, Ct. App., 2nd Div., 42 St. Rep. 736.

The respondent seeks to sustain the judgment on the ground that the contractor was justified in refusing to complete the work until the amount of the extra expense that he would have been put to from the deepening of the sewer was agreed upon. The referee, however, made no finding on that question, and was not requested to make any, and there was no determination as to what that extra expense, if any, would have been, nor whether bad faith was attributable to either party in the disagreement existing as "to the amount to be allowed for that work. The evidence upon the subject was conflicting.

While in some cases this court may assume the existence of a fact in order to affirm a judgment, we are not permitted to do :so where the evidence is conflicting and the trial court has not been requested to determine the fact either way. It follows that there was not nothing due to the contractor upon which plaintiffs’ lien could attach, and upon the authority of Larkin v. McMullin and Van Clief v. VanVechten, supra, the judgment must be reversed and a new trial granted.

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

All concur.


author: Vann, J.

text:
    Eliza Leggett, Resp’t, v. Christopher C. Firth, App’lt.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    Will—Construction—Expectant estates.
    A testator, by his will, gave each child a dollar, and all the rest of his-personal property to his wife “ after paying from the same legacies already named, to her forever.” The remainder of the will was as follows: “I also give, devise and bequeath to my wife E. all the rest and residue of my real estate, but, on her decease, the remainder thereof, if any, I give- and devise to my said children or their heirs, respectively, to be divided in equal shares between them.” Held, that the widow took a life estate-with a power of sale to be exercised during her life for her own benefit,, and that the children took- a remainder in fee subject to the exercise of the power.
    Appeal from a judgment of the general term of the supreme-court in the second judicial department, reversing a judgment in favor of the defendant entered upon the decision of the court at-special term, and also awarding to the plaintiff the relief demanded, in the complaint.
    Action by the vendor of lands to compel the vendee to perform, his agreement to purchase and pay for the same.
    December 21, 1888, the parties entered into a contract, in writing and- under seal, whereby the plaintiff agreed to sell and the defendant to purchase certain premises in the city of Brooklyn for the consideration of $3,550, payable $100 down, $2,250 on the delivery of the deed, and the balance of $1,200 by assuming a. mortgage on the land for that amount. On the day agreed upon for performance the plaintiff tendered a deed, pursuant to the contract, but the defendant refused to accept it or pay the balance of the purchase money. The defendant, by his answer, denied that, the plaintiff owned or was possessed of said premises, and also that she was able to convey and let him into possession of the-same. The trial court found that the plaintiff never owned the premises and dismissed the complaint. The general term reversed the judgment and made a decree for specific performance.

      Frank H. Parsons, for app’lt; James C. Church, for resp’t.

       Affirming 25 St. Rep., 332.

   Vann, J.

The plaintiff claims title to the premises in question through Ellisheba Flazzelard, the widow and devisee of John F. Flazzelard, who died in 1857, leaving said widow and three minor children. By his will, written by his own hand and executed August 1, 1856, he bequeathed to each of his children the sum of one dollar, and to his wife the household furniture and all the-rest of his personal property, “after paying from the same legacies already named, to her forever,” and directed that if the personal property should not be sufficient to pay said legacies, enough real estate should be sold to raise money to pay them. The remainder of the disposing part of the will was in these words, viz.; “ E also give, devise and bequeath to my wife Ellisheba all the rest. and. residue of my real estate, but on her decease, the remainder thereof, if any, I give and devise to my said children or their heirs, respectively, to be divided in equal shares between them.” He appointed his wife sole executrix.

At the date both of his will and of his death, he owned the premises in question, which, on the 20th of August, 1859, were mortgaged by Ellisheba Elazzelard to one Pernot. The mortgage was afterwards foreclosed and the premises conveyed by the sheriff to the grantor of the plaintiff.

The question presented by this appeal is whether Mrs. Flazzelard took the premises either in fee or a life estate with power to sell, as claimed by the plaintiff, or a life estate only, as claimed by the defendant In ascertaining the intention of the testator, which is the primary guide to the construction of his will, regard should be had to the apparent distinction between the gift of the personalty and that of the realty, as by attaching the word “ forever ” to the former, and withholding it from the latter, a difference in the nature of the gifts is indicated. This would be of slight importance were it not for the gift over to his children of the remainder, “ if any,” of his real estate already devised to his wife upon her decease, by which the intention to discriminate between the two gifts to her is emphasized. When the gift of the real ■estate is considered by itself without contrasting its form with that of the personal property, we see that in a single sentence he devised it to his wife, “ but on her decease ” he also devised “ the remainder thereof, if any,” to his children.

Here the significant words are “ but ” and “ if any.” “ But,” as thus used, is a word of limitation and shows that the testator intended that the previous gift, which was apparently absolute, should not remain absolute, but should be limited by that which followed. It indicates a proviso, condition or qualification, and, in connection with the rest of the sentence, reduces the previous ■gift by carrying out, not an absolute, but a possible, remainder for the children. The nature of the widow’s estate is pointed out by the event upon the happening of which the devise of the remainder is to take effect. That event is her death, and as she was to hold until that event happened she took a life estate. Crozier v. Bray, 120 N. Y., 866; 31 St. Rep., 506; Van Horne v. Campbell, 100 N. Y., 287; Wager v. Wager, 96 id., 164; Terry v. Wiggins, 47 id., 512; Norris v. Beyea, 13 id., 280; Smith v. Bell, 6 Pet., 68; 1 R. S., 748, § 1. But the remainder itself was in turn limited by the words “if any,” which show that the testator did not intend that necessarily there would be anything left upon the death of his wife. “The remainder, if any,” means the same as “if there shall be any remainder,” and the gift over is of what may be left. As it would all be left unless there was a right to •dispose of it, it follows by necessary implication that he intended his wife should have that power. Otherwise the words “ if any ” must be rejected as. having no meaning whatever. As was said by the learned general term, the words under consideration “ confer a beneficial power of disposition of all the property upon the wife during her life-time, with a limitation over in the event of her death without an exercise of the power. Whether the children took anything under the devise over of all the remainder depended upon a contingency, not indeed expressed, but plainly implied from the words ‘if any,’ and the power of the primary •devisee to dispose of the entire estate is implied from the same words of limitation.’’ At common law the gift over would have been void as repugnant to the prior estate, upon the ground that a, valid executory devise cannot be defeated at the will of the first taker. Jackson v. Bull, 10 Johns., 19; Van Horne v. Campbell, 100 N. Y., 287. Under the Revised Statutes, however, an expectant estate may be defeated by any means which the party •creating the estate *‘ shall, in the creation thereof, have provided ior or authorized,’’ and such an estate cannot be adjudged void in its creation because it is thus liable to be defeated. 4 R. S., 8th •ed., 2434, §§ 32, 33; Terry v. Wiggins, 47 N. Y., 512, 518; Thomas v. Wolford, 49 Hun, 145; 16 St. Rep., 764: Colt v. Heard, 10 Hun, 189.

In Thomas v. Wolford, there was a devise to the first taker, apparently absolute, followed by a devise over to the second taker of the same property, ‘‘ should there be any left; ” and in Colt v. Heard, there was a similar devise to the first taker and a •devise over of “ such part thereof as he may have at the time of his decease,” and in both cases it was held that the first devisee rtook a life estate with a beneficial power of sale and that the second •devisee took what was left upon the death of the first.

We think that the widow took a life estate with a power of ■sale to be exercised during her life for her own benefit and that the children took a remainder in fee, subject to the exercise of the power. This construction gives adequate force to every word used by the testator and avoids the defeat of any part of his intention. The subject has been so fully considered by the learned justice who prepared the opinion of the general term that we do not feel called upon to elaborate our views.

The judgment should be affirmed, with costs.

All concur.


text:
    Lucien Barnes, Resp’t, v. James R. Keene, App’lt.

      (Court of Appeals, Second Division,

      Filed February 12, 1892.)

    "Negligence—Damages.
    While a father is entitled.to recover the value of his services as a nurse to his child injured through the negligence of another, he is not entitled to recover what he might have made if he had not abandoned a business engagement.
    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 and also affirming an order denying a motion for a new ■trial.
    Action by a father to recover the expenses incurred in nursing •■and treating his infant daughter who had been injured by the negligence of the defendant, and also to recover damages for the loss of her services.
    November 30, 1882, the plaintiff’s daughter, Mary, then aged eight years, was seriously injured by the negligence and inefficiency of a servant of the defendant. In an action brought by her through her guardian ad litem, she recovered a judgment against the defendant for the sum of $3,500, being the damages thus sustained by her, which was affirmed by this court. 115 N. Y., 638 ; 23 St. Rep., 995.
    The complaint of the father was set in the usual form, except that the recovery of said judgment was set forth in a paragraph by itself. The defendant denied the most of the allegations contained in the complaint and alleged that the accident resulting in said injuries was caused by the negligence of the said Mary. The jury rendered a verdict in favor of the plaintiff for $1,500.

      S. Hanford, for app’lt; Samuel H. Randall, for resp’t.

       Reversing 32 St. Rep., 1138.

   Vann, J.

Upon .the trial of this action the plaintiff read in evidence a stipulation of the attorneys for the defendant, admitting “ that through the negligence and carelessness of the person operating the defendant’s elevator, the plaintiff’s child, Mary T. Barnes, was injured and that the defendant is in law liable for such negligence of the operator.” The only issue left undisposed of by this stipulation related to the amount of damages that the plaintiff was entitled to recover. Those damages were in the nature of compensation for pecuniary loss and included the value of his daughter’s services as well as the reasonable expenses necessarily incurred by him in the effort to restore her to health. Cuming v. Brooklyn City R. R. Co., 109 N. Y., 95; 14 St. Rep., 788; Drew v. Sixth Ave. R. R. Co., 26 N.Y., 49; Whitney v. Hitchcock, 4 Den., 461; 3 Sutherland on Damages, 723.

The plaintiff, who was the only witness sworn upon the trial, testified that at the time of the accident his occupation was that of a theatrical manager; that he had had experience as a nurse and took the entire charge of his injured daughter in that capacity. After stating the value of his services thus rendered he was asked by his counsel if by reason of the severe injury to his child he was obliged to giv up a business engagement; and, although the defendant objected to the question as incompetent, irrelevant and immaterial, he was permitted to answer, and did so in these words, viz.: “Yes, I was under an engagement at this time, in the eve of. this injury, as theatrical manager. My compensation was fixed.” He was then asked to state the rate of compensation and the term of the engagement, when the defendant objected upon the same grounds as before,' and for the further reason that the plaintiff could not “ recover for that and also recover for his services during the same period in another capacity.” The court overruled the objection and the witness answered r “ Fifty dollars a week and a percentage; that contract was for the term of about twenty-five weeks; I gave it up as I said and attended to my child.” The court refused to charge, upon the request of the defendant, that the jury was not at liberty on the evidence to allow more for nursing than would have been paid to a competent, trained or professional nurse. Exceptions were duly taken by the defendant to each of these rulings.

Although it was not so stated upon the trial, the plaintiff now insists that this evidence was not offered for the purpose of effecting a double recovery, but as a circumstance to show his pecuniary situation and his dependence on his profession for support at the time he undertook to become the nurse of his child. But what bearing did the resources of the plaintiff have upon the actual worth of his daughter’s services, or the amount that it cost him to cure her? How could dependence upon his avocation for support increase the pecuniary value of her services, or the amount necessarily incurred in caring for her ? The rule governing the assessment of damages in such a case as this is compensation for pecuniary loss and the amount of that loss is not affected by the financial condition of the person sustaining it.

The accidental circumstance that the loss may at the time bear more heavily upon a poor man than a rich man cannot swell the amount that the person causing that loss is legally responsible for. "While the plaintiff was entitled to recover the value of his services as a nurse, he was not entitled to recover, in addition thereto, what he might have made if he had not abandoned his business engagement. He could not recover for services rendered during a specified period and for loss of time during the same period. He was entitled to have his pecuniary loss necessarily caused by the accident made good to him. This included the services of a nurse as long as a nurse was needed, and if the plaintiff saw fit to act in that capacity, he was entitled to the value of his services in that capacity. But if he abandoned a more lucrative occupation in order to act as nurse, the value of his services while engaged in that occupation could not properly be considered by the jury in estimating the value of his services while acting as a nurse. His services as a nurse were worth no more because he was able in some other calling to earn a large amount. If his time had been worth fifty dollars a day as the manager of a theatrical company, he would have been worth no more as a nurse than if he had had no other.occupation except that of nursing. Although the trial judge charged that the fact that the plaintiff “ abandoned a contract * * * by which he would have received fifty dollars and a percentage ” was no proof that his services were worth as much as he could have earned under the contract, still the jury were at liberty to believe that the services of the plaintiff were worth more on that account than they otherwise would have been. They may also have taken into account the loss sustained by the plaintiff in giving up a contract for twenty-five weeks with the certainty of fifty dollars a week and the possibility of much more under the percentage. The evidence was not stricken out, and the ¡jury were not instructed to disregard it. It was, therefore, in the case, and, subject to the limitation of the charge, was for the consideration of the jury, the same as any other evidence given on the trial The amount of the verdict indicates that they did consider it It was not simply immaterial, but tended to mislead the jury to the prejudice of the defendant. It was presumptively injurious, and the presumption is not rebutted by the record. It bears upon the result because it presented to the minds of the jury an improper element of damages, and, in connection with the refusal to charge, an erroneous measure of damages. Worrall v. Parmelee, 1 N. Y., 519; Baird v. Gillett, 47 id., 186, 188.

We cannot, therefore, disregard the error committed in admitting this evidence, but must give effect to the exceptions by reversing the judgment and ordering a new trial.

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

All concur.


author: O’Brien, J.

text:
    Robert B. Poole, App’lt, v. Beriah B. Belcha, Resp’t.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Attoeneys—Lien oeSettlement—Code Civ. Peo., § 66.
    In order to warrant the court in disregarding a- settlement and release made in an action it must be shown that to .give full effect to them will operate as a fraud upon the attorney or at least to his prejudice by depriving him of his costs or turning him over to an irresponsible client.
    2. Same.
    ■Where it appears that plaintiff has paid the judgment and defendant has released him, in the absence of some showing that the attorney would be prejudiced by allowing the settlement to stand, the court should not permit any further proceedings in the cause, such as an appeal to the general term.
    Appeal from order of supreme court, general term, third department, striking an appeal to that court from the calendar and affirming judgment for defendant entered upon a verdict of a. jury.

      James Coupe, for app’lt; Eugene E. Sheldon, for resp’t.
   O’Brien, J.

This is an appeal from an order of the general term striking an appeal to that court from the calendar and affirming, with costs, a judgment for the defendant entered upon a verdict. The action was brought to recover certain specific personal property, which was delivered to the plaintiff at the commencement of the action. On the trial the plaintiff failed, and a verdict was rendered for the defendant. A motion was made by the plaintiff for a new trial on the minutes, which was denied June 24, 1887. The plaintiff appealed to the general term from this-order July 23, 1887. Judgment was entered on the verdict December 1, 1887, but no appeal was taken from this judgment. October 25, 1887, the plaintiff served a proposed case containing-exceptions, and subsequently amendments thereto were served by the defendant, but the case was not filed or certified, and no copy was served on the defendant’s attorney. On an affidavit showing these facts the defendant’s attorney gave notice of a motion to be made at the general term September 8, 1891, for an order striking the appeal from the calendar and for an affirmance of the judgment. The verdict upon which the. judgment was entered was for $286.28, the value of the property as found by the jury. The motion to strike the cause from the calendar and affirm the judgment was met by an affidavit on the part of the plaintiff showing that on September 2, 1891, the plaintiff paid to the defendant $800 and settled the case; that upon such settlement it was agreed that each party should pay his own attorney and thereupon the defendant executed and delivered to the plaintiff a general release under seal, a copy of which was attached to the affidavit. It is as broad and comprehensive in its terms as words could make it. It releases and discharges all actions, causes of action, suits, debts, bonds, judgments, executions, controversies and demands whatsoever, in law or in equity, which the defendant then or ever had against the plaintiff or might have thereafter. This instrument was duly acknowledged, and the question is whether the general term under such circumstances could properly have made the order appealed from. The payment of the $300 by the plaintiff to the defendant and the execution and delivery of - the release operated as between the parties at least to satisfy and discharge the judgment and to discontinue the appeal, unless the judgment and appeal notwithstanding the release is kept on foot by the provisions of § 66 of the Code. This section provides that “ the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches too verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come,” and this lien cannot be affected by any settlement between the parties before or after judgment. This provision does not prevent parties from settling and releasing judgments, suits and controversies. If the release has the effect of defrauding the defendant’s attorney of his costs the court has the power to and should set it aside and protect the attorney’s lien. But there was nothing shown on the motion to lead the court to believe that the attorney needed any protection. For aught that appears his client is able and willing to pay all his reasonable and proper charges, and if this is so why should the parties be prevented from settling the litigation in their own way. Neither the judgment nor the appeal should under the circumstances be kept alive after the release between the parties unless necessary for the protection of the attorney, and this is not claimed nor suggested.

In order to warrant the court in disregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney, or at least to his prejudice, by depriving him of his costs, or turning him over to an irresponsible client. The record does not present any such question. The order appealed from was not made upon the theory of protecting any lien that the defendant’s attorney had. It was made, upon a motion to strike the cause from the calendar, and affirm the judgment, an ordinary proceeding in a cause in which the attorney represented only his client, and not any interest in the costs that he had himself. For the purposes of this question the order must be treated as if it was obtained upon the-" application of the defendant in person after he had been paid the judgment, and had delivered the release. No one would then claim, that he was entitled to proceed any further with the case. The lien secured to an attorney by § 66 of the Code does not prevent the party who owns the judgment from receiving payment thereof and executing a discharge. When it is. is shown that such payment or discharge will operate to deprive the attorney of his costs,, the court has power to protect him, but it cannot be assumed that, a settlement is in fraud of his rights. Until the lien of the attorney is asserted in some way the judgment remains the property of the client. Wehle v. Conner, 83 N. Y., 237. We have had occasion recently to pass upon this question in another case. Lee v. V. O. Co., 126 N. Y., 579; 38 St. Rep., 662. There the attorney not. only had the statutory lien for costs, but by agreement was entitled to a part of the recovery. On the point now under consideration, Euger, Ch. J., said: “We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement, deprives a party of the right to control the management of his own cause, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful ofrner of the cause of action, and is not bound to continue the-litigation for the benefit of his attorney when he judges it prudent to stop, providing he is willing and able to satisfy his attorney’s, just claims.”

When it appeared that the plaintiff had paid the judgment, and the defendant had released him, in the absence of some showing that the attorney would be prejudiced by allowing the settlement, to stand, the court should not have permitted any further proceedings in the cause. It follows that that part of the order which affirmed the judgment after payment and discharge of the same-was erroneous, and should be reversed.

So ordered, with costs.

All concur.


text:
    John J. Berrigan, Adm’r, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Court of Appeals,

      Filed February 12, 1892.)

    Negligence—Railroads—Signals.
    In an action for negligence it was shown that deceased, before daylight, was engaged in coupling a caboose to some cars of a freight train which had no engine; that other freight cars stood east of those in question upon the same switch; that an engine backed down to get these cars, drove them back to the cars where deceased was at work, and the latter-was caught between the caboose and the car he was coupling. No signal was displayed to warn the men of the engine that a train was being made up west of them on the same switch, and there was no rule of defendant requiring a signal or warning in such an event. Held, that in the absence of some proof on the part of plaintiff that such rule was in operation on. other roads, or of skilled and experienced persons that such rule was necessary or practicable, and where it is not so obvious as to make the question one of common experience, the court is not warranted in submitting such a question to the jury, and there was not sufficient evidence in this case of neglect of duty to warrant such submission.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon the verdict of a jury at circuit.

      James II. Stevens, Jr., for app’lt; N. A. Nash, for resp’t.

       Reversing 37 St. Rep., 414.

   O’Brien, J.

On the 16th of October, 1886, the plaintiff’s intestate, Edward Berrigan, while coupling cars in the defendant's yard, received an injury from which he subsequently died. He received the injury while making up a train in the defendant’s yai’d at Corning which was known as the Rochester way freight, which ran from Corning to Rochester. He was the caboose brakeman, and that part of the train which consisted of the way cars was made up upon what was called siding number two, one of several on the right of the main track going east, and had been so made up for twelve or fifteen years prior to the accident. The train at this time of the year was made up in the night. He was engaged in coupling the caboose to the wáy car ahead of it. There were three loaded freight cars standing on siding number two east of the caboose, and the brakes upon two of them were set. A freight train came in from the west on the main track and stopped at the station. The engineer of that train took his locomotive on to the east end of the siding and with the assistance of a brakeman backed down the siding for the purpose of taking out these loaded cars. In making the coupling the tender of his locomotive struck these loaded cars with such force as to drive them back against the caboose and throw that against the cars ahead, between ¡which and the caboose the deceased was engaged putting in the link for the purpose of making the coupling. It is not claimed by the plaintiff that there was any neglect on the part of the defendant to furnish the deceased with suitable and safe machinery and appliances or competent and skillful co-workers. The only neglect which the learned counsel for the plaintiff imputes to the defendant is that it failed to make and promulgate suitable and sufficient rules and regulations for the government of its employees while coupling the cars of this train upon the siding in question. The only suggestion made by him as to further precaution in this respect by the defendant is that the rule of the company which prescribes a red flag by day and a red light by night upon a crippled or disabled car, to indicate that it is not to be moved or collided with for the reason that men engaged in repairing such a car may be under or about it in such a position as to be unable to save themselves if the car was moved, should have been extended to the cars on this siding when being coupled. In other words, the contention of the plaintiff’s counsel is that the defendant should have formulated and put in operation a rule which would require a red light by night and a red flag by day to be exhibited from the east end of the caboose or from the end of cars which are being coupled. Judging from the locality where this injury occured it would seem that danger of collision from engines- and moving cars on the siding was as much to be apprehended, from the west as from the east, so that the requirements suggested would not be satisfied without exhibiting the danger signal from both ends of cars which were being coupled on this siding. It is easy enough after an accident has occurred to suggest how it-might have been prevented. It does not appear that any accident, occurred on this siding during the fifteen years before that it was used for the purpose of making up trains.

The defendant was only bound to use ordinary care in formulating rules, and it is not reasonable to proceed upon the assumption that every injury to an employee can be guarded against and prevented by making such rules. It was the duty of the defendant to anticipate and guard against, by rules or otherwise, only such accidents and casualties as might reasonably be foreseen by the managers of the corporation exercising ordinary prudence and. care. The question here is whether by the exercise of such prudence and foresight they could have adopted any precautions against injury to the employees than such as they did, or whether there were still others that would suggest themselves to men of ordinary intelligence and vigilance. They had a body of rules embracing every case that was supposed to need regulation. One of these rules provided that when a locomotive was moving backward its signals must be displayed upon the bumpers. It was-made the duty of the yardmaster to see that cars were brought-together with as slight a -jar as possible and coupled with coupling sticks. The engineers were required to use the utmost care in pushing cars into turnouts so as to avoid injuring them or other property. Brakemen were required to exercise great care in coupling cars “ and as for various causes it is dangerous to expose-the hands, arms or person between the same ” they were required^ before coupling to examine the situation so as to act prudently. The deceased made the coupling alone, though he was not required to do so, but could have waited for the engine and could have had the assistance of some of his co-workers to help him. He-could have used a lamp, but did not though he had a full supply. There were coupling sticks in the caboose for the use of the deceased, which when used had the effect, as the court below said,, of lengthening the arms. He slept in the caboose and knew and understood the situation and the dangers of the business. Considering the precautions and aids which the deceased might have used to avoid the accident and did not, it would be quite as easy to show that the accident resulted from an omission to use these precautions on his part, as that it was caused by the defendant’s neglect to make a rule for the display upon cars that were being coupled of a red light or a red flag. There is no proof in the case that rules for such a case had ever been promulgated by anyr other railroad company or that it was reasonable or practicable to provide against the occurrence of such an accident by a rule.

The learned trial judge submitted to the jury the question whether the defendant was at fault in omitting to make and publish such a rule. This opened to the jury a wide field for speculotion and conjecture. In the absence of some proof on the part of the plaintiff that such a rule was in operation by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless-the necessity and propriety of making and promulgating such a. rule was so obvious as to make the question one of common experience and knowledge the court is not Warranted in submitting-such a question to the jury. Besides, it affirmatively appeared that, the rules in use by the defendant provided in a reasonable way against the occurrence of such an accident so far as such casualties can be prevented by rules. There was not, we think, sufficient evidence of any neglect of duty on the pai’t of the defendant in this or in any other respect to warrant the submission of the case to the jury. Corcoran v. D., L. & W. R. R. Co., 126 N. Y, 673; 38 St. Rep., 251.

The injury which the plaintiff’s intestate received must be regarded under settled rules as one of the incidents of an employment of such a hazardous nature. A co-employee who had charge-of an engine backed it up against the loaded cars standing on the siding with such force as to drive them back upon the caboose and by this means the arm of the deceased was crushed. The engineer may not have used proper care in moving his engine but injury from such a cause is one of the risks which the brakeman took when he entered the defendant’s service. Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y., 403; 26 St. Rep., 767; Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y., 251; 22 St. Rep., 936; Appel v. B., N. Y. & P. R. R. Co., 111 N. Y., 550; 20 St. Rep., 90; Harvey v. N. Y. C. & H. R. R. R. Co., 88 N. Y., 481.

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

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


author: Earl, Ch. J.

text:
    The People ex rel. Caroline E. Bliel, v. James F. Martin et al., Police Commissioners of the City of New York.

      (Court of Appeals,

      Filed February 12, 1892.)

    Mandamus—Police pension pdnd.
    A mandamus cannot be granted requiring the board of police commissioners to place the name of fthe widow of a deceased officer upon the pension fund roll; the statutes do not give the widow an absolute right to a. pension, but simply vest in the board a discretion to grant or withhold a. pension in such a case, and such discretion is not reviewable by any judicial tribunal.
    Appeal from judgment of the supreme court, general term, first department, affirming order denying motion for mandamus directing defendants to place the name of relator upon the police pension fund roll.. -

      Geo. F. Langbein, for relatrix; David J. Dean and Jno. J. De~ lany, for resp’ts.

       Affirming 32 St. Rep., 440.

   Earl, Ch. J.

The relator applied for a writ of mandamus to compel the hoard of police of the city of New York to pay her a pension of $300 per year as the widow of Philip 0. Bliel, who for thirteen years previous to his death had continuously been a member of the police force of that city. Her application was denied in the courts below on the ground that the statutes did not give her the absolute right to a pension, but simply vested in the board a discretion to grant or withhold a pension in such a case.

A careful reading of the statutes leaves .no doubt in our minds that it lias always, since the first act upon the subject, rested in the discretion of the police board to grant or withhold pensions to the widows of deceased policemen. The first act was chapter 126 of the Laws of 1871, which in terms provided in § 4 that the board should have power in “ its discretion ” to grant pensions of not exceeding $300 per annum, to be paid from the police life insurance fund to the widow of any member of the police force who had served continuously for a term of not less than ten years, and in § 5 it was provided that the board might “ in its discretion at any time order any pension granted for any cause ” to cease.

By the act, chapter 389 of the Laws of 1878, the act of 1871, so far as it regulated and provided for pensions, was repealed, and it was provided in § 4 of that act that the board of trustees of the police pension fund, created by the act, should “have power to grant pensions,” as provided in the act, among other persons, to the widow of any member of the police force who should have died after ten years of continuous service. This section did not command the board, in any of the cases specified in § 4, to grant pensions, but simply provided that they should have power to grant them; and that language clearly vested them with the discretion, in any particular case, to grant or withhold a pension. This construction of § 4 is strengthened by reading § 6, which provided that the board “may, in its discretion, order' any pension granted, or any part thereof, to cease.” It cannot be supposed that the legislature meant to confer upon the board a discretion to withhold pensions after they had once been granted, and yet make it obligatory upon them, in the first instance, to grant them. This act was again, so far as it authorized the granting of pensions to the widows and children of deceased policemen, repealed by the act, chapter 574 of the Laws of 1887, and in that act it was plainly provided that the board of police “ shall have power, in its discretion,” by the majority vote of the full board, to grant a pension to the widow of any member of the police force who had served the requisite time. Here again, in very plain language, the discretion to grant or withhold a pension was conferred upon the board, and that is the last act passed upon the subject. All these acts, when read together, show a consistent policy, on the part of the legislature, to make the granting or withholding of the pension in such a case as this a matter of discretion with the board of police, to be exercised in view of all the circumstances surrounding the claimaiit and the exigencies of the fund out of which the pension could be paid. These acts are in pari materia, and may all be read with the view of ascertaining the legislative intention and the public policy; and when thus-read, it is clear that the police board could,'in this case, deny the pension to the relator in the exercise of their discretion: That discretion is not reviewable by any judicial tribunal. It may be wisely or unwisely, justly or unjustly exercised. It is vested in the board, and they must exercise it, and there is no authority elsewhere to review their determination.

In the numerous cases cited in the elaborate brief submitted on behalf of the relator, the courts reviewed the discretion of officers, magistrates and inferior courts in the exercise of their appellate or supervisory jurisdiction conferred upon them by statutes. Here the supreme court possessed no appellate or supervisory jurisdiction to review the determination of the board of police. It does not even appear here that the board abused their discretion, as the ground upon which they exercised it and the reasons for their refusal to grant the pension do not appear in this record. They may have found sufficient reason for their refusal in the fact that the relator had not lived with her husband for more than three years before his death, and during that time had lived in a distant state supporting herself “ by keeping a gentleman’s lodging and boarding house.”

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

All concur.


author: Finch, J.

text:
    In the Matter of the Application of Mary E. Field.

      (Court of Appeals,

      Filed February 12, 1892.)

    1. Vendor and purchaser—Title—Sale made under Laws 1890, chap. 276.
    The act of 1890, chap. 276, authorizing the sale of certain real property in the city of New York, with the assent of the adult owners, and the extinguishment thereby of the contingent interests of all persons not m being at the time of sales provides a full and complete protection to a purchaser, as the proceeds of the sale are directed by the act to be paid into court and retain the character of real estate.
    2. Service—Publication—Code Civ. Pro., § 440.
    Under § 440 of the Code, providing for service of an' order upon nonresidents, both modes of service are not directed in every event, but while that is always proper, the order may direct the service by due publication m' personal delivery without the state; and. an order directing either mode alone, followed by due service in that manner, will be equally good with one which directs both with an option to choose either.
    (Overruling Bitten v. Griffith, 16 Hun, 454.)
    Appeal from judgment of the supreme court, general term, first department, affirming order directing a purchaser to complete a purchase of real estate.

      Joseph B. Reilly, for app’lts; Henry H. Man, for resp’ts.
   Finch, J.

The title tendered by the vendors was rejected by the vendee for two alleged defects : one founded upon the special act of 1890 which authorized the sale of the interests involved, and the other upon the provisions of the Code regulating the service of a summons upon non-residents.

The premises in question were owned in his lifetime by John M. Bradhurst, who conveyed the same to his daughter', Mary Elizabeth Field, and her husband, Hickson W. Field, Jr., for their natural lives and. the life of the survivor, with remainder in fee upon the death of such survivor to their lawful issue then living, and to the children of any of such issue as shall have died, with a reversion to the right heirs of the grantor in case of his death and to himself if living. The grantor is dead and also Hickson W. Field, Jr., one of the grantees, leaving the life estate running in the sole ownership of the latter’s widow. There is but one surviving child of the grantees, who is Elizabeth, wife of Prince Brancaccio, and who have three children now surviving, all of whom are under the age of twenty-one years. If their mother should die before the termination of Mrs. Field’s life estate such of them as should be living at the latter date, together with any other children of the princess who may be born before that period, would be entitled in remainder, so that infants and persons not in being have possible and contingent interests essential to be cut off in the transfer of a perfect title. The act of 1890, chap. 276, specially authorized the sale of the property with the assent of the adult owners and the extinguishment thereby of the contingent interests referred to. The purchaser does not deny the power of the legislature to authorize an effective sale, but insists that it cannot do so without provision for the safety of persons not in esse, and that the order should have directed an investment of an adequate portion of the proceeds of the sale, as was suggested by one member of the general term.

We think the act itself provides a full and complete protection. The sale was required to be made at public auction so as to real- ' ize the full and fair market value of the property, and no doubt is suggested as to the sufficiency of the consideration ascertained by the sale. The proceeds, which thus take the place of the land, are still to be treated as land for the purpose of measuring all rights therein, and their preservation is secured by requiring them to be paid into court and invested under its direction and directing it to provide that such proceeds shall not be withdrawn from its custody, so far as the principal is concerned, until all life estates therein are determined, and then only upon the order of the court upon notice to all persons entitled to the capital or income thereof. I see no necessity for the suggested modification of the order. At the termination of Mrs. Field’s life estate, when the rights of all parties will become fixed and cease to be contingent, the fund representing the land and to be treated as land, will remain in the hands of the court, and to it will attach every possible right to its full extent and measure. Assuming, as we must, that the sale at public auction under the care and direction of the court has produced the full value of the land, the proceeds are preserved under the control of the court until final distribution to the parties who may then be entitled, and in exact accordance with their legal rights.

But it is further objected that the order directing service of the order to show cause upon the non-resident defendants by a proper personal service without the state was void and ineffectual because it did not also direct the due publication as provided by § 440 of the Code, as that section has been hitherto interpreted. It was held in Ritten v. Griffith, 16 Hun, 454, that such an order was nugatory unless its direction embodied the two alternative modes of service specified, although, by the terms of the section itself, either may be adopted at the option of the party serving, and the "actual publication is needless where the proper personal .service is made. So far as this construction has been followed the submission has been under protest and accompanied by more or less of evident discontent. Weil v. Martin, 24 Hun, 645; O'Neil v. Bender, 30 Hun, 204; Berford v. N. Y. Iron Mine, 55 N. Y. Supr., 516; 18 St. Rep., 400.

We do not agree with the construction which has been thus as.serted. It may be granted that it is a possible and perhaps even -a grammatical reading of the section, but the natural and sensible ■construction is not that the order' must direct both modes of service in every event, but while that is always proper, the order may direct the service by due publication, or may direct the service by personal delivery without the state in the manner prescribed ; and an order directing either mode alone, followed by due service in that manner, will be equally good with one which •directs both with an option to choose either. We deem it proper to overrule Ritten v. Griffith, and relieve the courts which have doubted its construction from the embarrassment of its authority. There is no reason why the choice conceded to exist should not be exercised at the granting of the order, and appear by its terms, as well as be made thereafter under an order in the alternative. It follows that the order in the present case which directed only the proper personal service without the state was regular, and not void.

The assent of the adult parties to the sale is sufficiently shown by their appearance by attorney, their acquiescence in the order ■of sale, and their failure at any point of the proceedings to make •objection or resistance.

The order should be affirmed, with costs.

All concur.

       Affirming 42 St. Rep., 815.