author: Barnard, P. J.: Cullen, J.

text:
    LOUISA J. HOLLIS, Individually and as Executrix, etc., of WILLIAM H. HOLLIS, Deceased, Appellant and Respondent, v. GEORGE HOLLIS and Others, Appellants and Respondents.
    Witt— bequests to charitable and religious corporations, in or out of this State — ame not valid unless made two months prior to the death of the testator — how the amount of a legacy, limited upon a life estate, is tobe determined —1848, chap. 819, sec. 6; 1870, chap. 51; 1860, chap. 360.
    The plaintiff’s testator, a resident of the State of New York, died on February 7, 1881, leaving a last will and testament executed on December 13, 1880. He left a widow, but no descendants. By his will he bequeathed more than one-half of his estate to the following corporations, viz.: The Wesleyan University, incorporated in Connecticut, for scientific and educational purposes; the Drew Theological Seminary, incorporated in the State of New Jersey, and the Methodist Episcopal Church of Orient, N. Y.

      Eeld, that as the will was not made two months before the time of the testator’s death the bequests to the said incorporations were void under the provisions of section 6 of chapter 319 of 1848, as modified by chapter 51 of 1870, and chapter 360,of 1860. (Cullen, J., dissenting.)

      It seems, that when the bequests to such corporations are not to be paid until after the termination of a preceding life estate, the value of such preceding life estate should be deducted from the amount of the legacies in determining whether or not they exceed in extent one-half of the testator’s estate remaining after the payment of his debts.
    Appeal from a judgment, entered lipón the trial of this action by the court without a jury. This action was brought to have the will of William H. Hollis declared wholly or partly invalid as to the bequests therein contained to the Drew Theological Seminary and the Wesleyan University.
    The testator left him surviving a wife, the plaintiff, but no children, or descendants of deceased children.

      N. IL. Clement, for the plaintiff.

      Joseph Aspindll, for George Hollis, defendant.

      J. T. Marean, for Drew Theological Seminary, defendant.

      Frank Reynolds, for Wesleyan University, defendant.
   Barnard, P. J.:

William H. Hollis, of the city of Brooklyn, Kings county, N. Y., on the 13th of December, 188U, made his last will and testament, and died on the 7th of February, 1881.

The testator was a resident of Kings county when the will was executed and when he died. By the will he bequeathed more than half of his estate to the Wesleyan University, a Connecticut corporation formed for scientific and educational purposes ; to the Drew Theological Seminary, a New Jersey corporation, and to the Methodist Episcopal Church of Orient, Suffolk county, N. Y. Is the will valid notwithstanding it was not executed at least two months before the death of the testator ? The legislature, by chapter 319 of the Laws of 1848, passed “An act fbr the incorporation of • benevolent, charitable, scientific and missionary societies.” Section 6 of- this act provides as follows:

■ “Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars ; provided no person leaving a wife or child or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall, be valid in any will which shall not have been made and executed at least two months before the death of the testator.”

By chapter 51, Laws of 1870, the legislature enlarged the power to form corporations under the general laws of 1848, so as to include educational and other institutions, and by the third section thereof empowered the corporations “ under said act or under this act,” to take and hold by devise and bequest, subject to the restriction upon devises and bequests contained in an act entitled “An act relating to wills, passed April 13, 1860.” The act relating to wills (chap. 360, Laws of 1860) is in these words :

“ Section 1. No persons having husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts (and such devise or bequest shall be valid to the extent of onelialf and no more).

“ Seo. 2. All laws and parts of laws inconsistent with this act are hereby repealed.”

The first case presenting facts calling for the construction of these two acts, was that of Chamberlain v. Chamberlain (43 N. Y., 425). The testator domiciled in New York, made his will December 16, 1867, and died February 10, 1868. The will gave over half of the estate to two corporations, one for the support of a college in Pennsylvania, incorporated in that State, and the' other to an academy in this State. The case was argued by able men, but the point is not presented by counsel or discussed by the court' as to the effect of the will being executed less than two months before testator’s death upon the validity of the bequest itself. The court upheld the will to the extent of one-half of the estate.

The very silence of the Court of Appeals would be a conclusive argument in favor of the will standing for one-half of this estate, but in the case of Lefevre v. Lefevre (59 N. Y., 434) these sections were again considered. The will in this case was executed but a day or two before testator’s death. The will gave one-third of the estate of testator to the Home of the Friendless in New York. The corporation designed was the American Female Guardian Society, a New York corporation, incorporated by special act in 1849; its power to take by will was subject to the same restrictions as are provided ■in the general laws for the incorporation of benevolent societies.

The same judge (Judge Allen) wrote an opinion in this case who wrote the opinion in the Chamberlain case. The coiirt disagreed with Judge Allen in his conclusions. He thought the two months restriction in section 6 of act of 1848, only applied to corporations formed under that act and that the acts of 1860, relating to wills, repealed “the last clause of that section.”

The Court of Appeals decided that the act of 1860 was not a repeal of the restriction as to two months in the act of 1848, but was in entire harmony with it. That the law of 1860 was not repugnant to the provisions that there shall be no valid devise or bequest, unless the will be made more than two months before death.

The question again was presented to the Court of Appeals in Kerr v. Dougherty (79 N. Y., 327).

The testator in this case died about three weeks after the will was executed. He made a bequest to a New York religious educational institution, “ The Union Theological Seminary.” This corporation was created by special act in 1839. The charter was amended in 1870, making it subject “ to all the provisions of law relating to devises and bequests by last will and testament.”

The provisions of section 6 of Law of 1848 was applied to this bequest, and it was decreed void, the court holding that the charter containing the clause subjecting it to the laws as to wills, brought it within the section in question requiring two months to elapse between the execution of a will and the testator’s death. There was another legacy to the blew York City Missionary and Tract Society, a New York corporation, and a bequest to a Pennsylvania corporation for religious uses, upon the ground that by the law of Pennsylvania there must elapse at.least one month between the execution of the will and the death of testator. A bequest is equally void when it is invalid in the State where the will is made, or in the State where it is to be administered.

The precise question presented in this case, it will be seen, has never been decided by the Court of Appeals. It is decided that the last clause of section 6 of the Laws of 1848 is not repealed. That corporations like this in question, if they were State corporations, would be included in the class of corporations described in the law of 1848. That a New York corporation is subject to this clause by being made “subject to existing laws,” and “subject to all the provisions of law relating to devises and bequests by last will and testament.” That this section in the law of 1848 is a part of existing laws relating to wills. There is no apparent reason why the rule should not be the same in all cases. If the Court of Appeals had not arrived at the conclusion that section 6 of Laws of 1848 was intended to be a general one, it could not have subjected corporations to its provisions who were simply subject to laws in reference to wills. A law referring to corporations created under the act of 1848 would in no such sense be laws relating to wills.

Judge Miller says: “ It may be added that as devises and bequests pertain to wills, it is not apparent why the , provision in question does not relate to them.” lie also says, that “the various acts of the legislature which have been cited would seem to indicate a general policy of the State in reference to restricting devises and bequests made to corporations of a particular class.”

The language of Judge Folgek in the opinion of the court in Lefevre v. Lefevre is not less suggestive. In speaking of this section 6 of the Laws of 1848, he uses this language: “ One restriction limits the quantity that may be taken. One the quantity that can be given. One the persons who may give.”

If the restriction reaches testator it reaches all testators.

My conclusion therefore is, that a testator cannot give more than one-half of his estate, if he leaves wife and father, and then only by will executed at least two months before his death. This conclusion renders unnecessary the points presented by the corporation appellant upon this appeal.

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

Dykman, J., concurred.

Cullen, J.

(dissenting):

In Chamberlain v. Chamberlain (43 N. Y., 425) a legacy to a foreign religious and charitable society was upheld, though the will was ■ executed less than two months before the testator’s death. The point that the bequest was void because of the time of the execution of the will, as prescribed by the act of 1848, was not discussed either by counsel or court. But the eminence of the counsel engaged and their failure to present the point is evidence that they did not regard the point as tenable. In Lefevre v. Lefevre (59 N. Y., 434) the corporation to which a ..bequest was. adjudged invalid was by express enactment subjected as to the receipt of devises and gifts to the restrictions of the general act of 1848. The only point there decided was that the act of 1860 as to wills did not repeal the restrictions in the act of 1848. In Kerr v. Dougherty (79 N. Y., 327) it was held, as to certain domestic charitable corporations, .that provisions in their charters that they might take and hold by gift, grant, devise or otherwise, subject to all provisions of law relating to last wills and testaments, subjected such corporations to the restrictions of the act of 1848, and it was further held that legacies to certain foreign corporations were void on account of statutory regulations, as to such corporations, of the State which chartered them. It is on the last case that the contention of the plaintiff is principally based. To maintain it, it must be established that the provision in the act of 1848 is in effect a general law acting upon the power of testators to give bequests or make wills in favor of charitable societies, and not simply limitations upon the powers of such societies to take bequests. I think the prevailing opinion in Kerr v. Dougherty does not support the claim. The main argument of that opinion is to show that by the terms of their charters the domestic societies were made subject to the provisions of the act of 1848. If the plaintiff’s interpretation of the law is correct this was wholly unnecessary. It being shown that they were charitable institutions, of course the general law would apply and it would be incumbent upon the societies to show that they were exempted from it. In the dissenting opinion of Judge Earl it said that there was no claim made that the twp months’ limitation of the act of 1848 applied to the Pennslyvania corporation. As a matter of fact in that case, by the judgment* of the Special Term (which was acquiesced in by all parties), the legacy of $5,000 and five twenty-sixths of the residue to the Presbyterian Board of Foreign Missions was ad judged valid. Yet this legatee was a religious and charitable society incorporated by this State by special act and with no exemption in terms from the operation of the act of 1848. Upon the theory here contended for I cannot see why such legacy was not void. I admit that in none of the cases cited (except the Special Term decision referred to) 'was the question here under review actually decided. But the general tenor of the authorities to my mind tends not to support but to oppose the construction of the act of 1848 contended for. Certainly as a mere question of language or terms, the provision of that act is a limitation upon the power of certain corporations to take, and not a general limitation upon the power of testators to give. Unless authority compels us, which I do not think the case, we are not justified in extending the effect of that provision beyond the natural import of the language used. The judgment below that the bequests to the defendant corporations was not void because the will was executed within two months prior to the testator’s death was therefore correct.

The act of 1860 eoneededly applied to those legacies, and so the trial court held. They were void as to the excess beyond one-half of the testators estate. I think the court erred in computing the value of such legacies. They were all gitts in remainder after the expiration of life estates. It was held that in determining their amount, the value of the antecedent life estates should not be considered. This was erroneous. The estate is to be valued as of the time of the testator’s death. (Harris v. American Bible Society, 2 Abb. Ct. of App., 316.) A legacy of $20,000 payable after the death of a person or after ten years is a very different thing in value from $20,000 outright. In Chamberlain v. Chamberlain (supra) it was held that, for the purpose of estimating the value of an estate under this act, the value of tne wife’s dower was to be deducted, upon the ground that such dower or life estate was no part of the testator’s estate.

If the testator gives a remainder after a life estate, I cannot see why the same principle does not apply, and why the value of the gift should not be determined in the same manner as the testator’s estate, to wit, by deducting the value of the life estate. If instead of these life estates and remainders being created by the testator’s will, the testator himself, at his death, had been entitled to a fund of $20,000 after the decease of his father, it would have been undoubted in valuing his estate that this remainder would have been taken not at $20,000, but at such sum less the value of the life interest.

Had he given such remainder to a legatee would its value have been any greater in the hands of the legatee than as part of the estate of the deceased ?

Now it is palpable that the value of this gift is just the same, whether the division into life estate and remainder was made by the will of the testator or anterior thereto.

The thing itself is not changed by the consideration of how it was created.

The legacy to the Orient church I think did not abate.

The judgment appealed from should be modified in conformity with this opinion.

. Judgment reversed and new trial granted, costs to abide event, and .order to be settled by Justice Barnard.


source: Caselaw Access Project

author: Cullen, J.: Barnard, P. J.

license: Public Domain

text:
    JOHN TURNER, Respondent, v. WILLIAM W. KOUWENHOVEN, Appellant.

      Contract for personal services — when the right of the servant to recover his wages is not destroyed by his conversion of the master’s property.

    This actioa was brought by the plaintiff to recover his wages for services rendered to the defendant under a contract by which he agreed to work for one year upon the defendant’s farm as a laborer and sell the farm produce for him. The defendant set up in his answer, both as a bar to the action and as a counter-claim, the failure of the plaintiff to account for all the moneys received upon the sale of the produce, and his conversion of such moneys to his own use. The plaintiff had served during the full term required by the contract. Upon the trial the defendant requested the court to charge that if the plaintiff failed to pay over, or retained any of the proceeds arising from the sale of tiie farm produce, he was not entitled to recover anything for his services. The court refused so to charge, but instructed the jury to deduct from the amount due to the plaintiff for wages any sums they might find that he had so retained.

      Reld, that as the request did not present the point of actual dishonesty, or of continuous fraud upon the servant’s part, but was based upon the claim that a single failure to pay over the master’s money deprived him of all right to recover his wages, the charge and refusal to charge were correct. (Barnard, P. J., dissenting.)
    Appeal from a -judgment of the County Court of Kings county in favor of the plaintiff,' entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried.
    The action was brought by the plaintiff, a servant, against the defendant, his master, to recover a year’s wages under an express contract of hiring.
    The complaint set forth the contract of hiring, whereby the plaintiff agreed to serve defendant for the year 1881, by working as a farm laborer on the defendant’s farm, and also in the capacity of marketman in selling farm produce for the defendant, his year’s wages to be at the rate of twenty dollars per month and one dollar for every load of produce sold by him. The complaint alleged performance by the plaintiff, and that he had sold, under the contract, 398 loads.
    The defense set up by the answer was a denial of full perforinanee by tbe plaintiff of tbe contract in this particular, to wit: That he failed to pay over to the defendant the full proceeds which he collected for the farm produce sold by him for the defendant during the year, and that he kept back and retained for himself, in violation of the said contract, portions of the moneys which came into his (plaintiff’s) hands as the pi-oceeds of such sales. It was also denied that plaintiff had sold the number of loads which he alleged, viz., 398.
    The above defense was pleaded separately as a complete bar to any recovery by plaintiff of wages under the said contract.
    The answer also set up a separate and independent counterclaim in favor of the defendant and against the plaintiff, for moneys alleged to have been so kept back and retained by the plaintiff, not only during the year 1881, but also during the previous years of 1880 and 1879, and demanded an affirmative judgment against the plaintiff for the amount of moneys so retained.

      John Reynolds, for the appellant.

      William- J. Gaynor, for the respondent.
   Cullen, J.:

Before the cause was finally submitted to the jury, the defendant voluntarily put in as evidence the testimony of the plaintiff given on a previous trial of this action. This evidence tended to show the complete and faithful performance by plaintiff of his contract of service. The cause was therefore properly submitted to the jury,. and it is unnecessary to consider whether the trial court erred in refusing to dismiss the complaint at the end of the plaintiff’s ease. The subsequent evidence cured the error if error there was. The application to withdraw this evidence rested solely in the discretion of the trial court, and there is nothing to show that the discretion was improperly exercised.

The principal question litigated upon the trial, was whether the plaintiff, a farm servant, under an employment to extend for a year and intrusted with the sale of his master’s produce, had retained and converted the moneys of his master. The plaintiff served out his full term, and no complaint is made as to his proper service, except in the respect above mentioned. The defendant asked the court to charge that if the plaintiff failed to pay over, or retained any of the proceeds of the defendant’s goods, he was not entitled to recover anything for his services. The court declined so to charge, but instructed the jury to deduct from the amount due plaintiff for wages, any sums they might find the plaintiff had retained. The jury found for the plaintiff.

The principal exception urged on this appeal is to this refusal of the court to charge defendant’s request. It is contended that the contract was an entirety, that it implied a covenant for fidelity and honesty on the plaintiff’s part, and that full performance in those respects, as well as in point of time, was a condition precedent to any right of recovery against the defendant, and that hence any delinquency on the part of the plaintiff was a complete bar to the action. I do not think this position well taken. The plaintiff had served out his full term. The defendant had accepted his services for that period. While performance is a condition precedent to a recovery, it is also well settled that the substantial performance of á contract is sufficient. (Glacius v. Black, 50 N. Y., 145; Phillip v. Galliant, 62 id., 256.) I do not see why a more stringent rule should be applied to contracts of service than to others. True, it is established by authority that where a servant' is discharged for cause during his term of service, he can recover nothing, no matter how long he has served. The cases cited by defendant go to this extent and are based upon the theory that the contract of service is an entirety as to the term. But none go further. There are some contracts which are unities in all their essential elements. Such a one is a physician’s attendance upon a patient during a single attack of illness. A recovery for services is a bar to an action for malpractice or vice versa. But the employment of an ordinaiy servant is an entirety in no sense except as to its term. The day’s duties well done, are not affected by the performance of the duties of the next. The rule as to term is sufficiently stringent and should not be extended. The servant contracts for attention and diligence as well as honesty. He might have been discharged for injuring the harness by his carelessness, but it certainly' should not be that, having served his whole time, he should forfeit his whole wages when the master can be indemnified by recouping his loss. Nor do any of the requests do charge present the point of actual dishonesty or of continuous fraud upon the servant’s part. The burden of the requests, though prat in many forms, is that a retention of the defendant’s money was a bar to a recovery. This was not qualified by the condition that the retention of the money should be with the intent to cheat the master, nor that the servant’s course of conduct was persistent. It was claimed that a single failure to pay over to the master was sufficient. It may well be that a continuous or habitual course of dishonesty should bar wholly a servant’s claim, though the proceeds of his fraud are less than the amount of his wages. But none of the defendant’s requests present this question, nor indeed do they ■ present the question 'of any actual dishonesty.

The judgment appealed from should be affirmed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

I think the court erred in refusing to charge that if the jury ¡ should find from the evidence the misappropriation of defendant’s property received under the employment, he could not recover.

The plaintiff was a farm servant. He was intrusted with the' sales of the produce, and it was a part of. his employment. The servant contracts as well for honesty and fidelity as for the personal service. The proof is very strong that the plaintiff did lack fidelity. The amount proven is not large, but it warrants a belief in a larger sum. It is-true that the plaintiff worked out the term, but that fact has no materiality in view of the fact that the defendant knew nothing of the servant’s unfaithfulness.

If he retained the servant after knowledge, it is well settled that the objection, even if a sufficient one upon which to discharge the servant, it becomes waived.

The master cannot set it up, because to receive service knowing that it was dishonestly rendered, and without an intention to pay for it, is also bad in principle and morals. If this was claimed and there was any evidence upon which to support a request, the right of the plaintiff could have been preserved by directing the jury to find a waiver if the evidence warranted it, and in such case to find for the plaintiff, although there was a lack of fidelity.

I cannot agree to the principle that a servant may continue peculations from his master during his whole term, and then only be compelled to pay bach such small amount as it may be in the power of the master to prove.

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

Judgment and order denying new trial affirmed, with costs.


text:
    PETER DE BAUN, Appellant, v. FRANK E. BEAN and CATHARINE A. HEDGES, Respondents.

      Biparian owner — may dam up water in order to cut ice from the pond so formed — may drain the pond and hold lack the water until it is filled again, when it is necessary in order that the ice may le clear.

    A riparian owner may construct and maintain a dam across a stream for the purpose of cutting and removing ice from the pond formed thereby.
    In order to obtain good, clear ice, he may also, when necessary, drain the water from the pond, and clean and refill the same, although by so doing persons owning mills below him are deprived of the use of the water during the time required for the refilling of the pond. (Cullen, J., dissenting.)
    Appeal from a judgment, entered upon the trial of this action by the court without a jury, dismissing the complaint herein, without costs.
    The action was brought to procure an injunction and to recover damages.

      George W. Weiant, for the appellant.

      J. A. Hyland, for Bean, respondent.

      Seaman c& Conger, for Hedges, respondent.
   Barnard, P. J.:

The plaintiff has a mill upon a stream running out of Rockland lake and a dam by which he provides the water for the purposes of his mill. Nearly or quite forty years ago there was a pond above the plaintiff’s pond. After being disused for many years the defendant Hedges rebuilt the old dam and leased the pond as an ice pond. It has- become necessary once since the lease for the lessee to repair the dam and for that purpose the water was let off and reponded again after the dam was repaired. It then became necessary to clean out the pond so as to have good ice. The pond was drawn off and cleaned out and then refilled. In repairing the dam and cleaning the pond, water escaped faster than plaintiff could use it, and in refilling the pond the plaintiff had no water to use.

The plaintiff seems to be without any remedy. The rule is well settled that a dam may be constructed by a riparian owner and the water ponded so as to propel machinery for which the stream is adequate. The proprietor below suffers damage - while the water is filling up in the pond, but he has no remedy. (Bullard v. Saratoga Victory Mfg. Co., 77 N. Y., 525.) The same rule prevails in reference to a repair of the dam. If a dam may be built it may be repaired. The use in this case is not to propel machinery but for ice. The use is not prescribed by law except that it must be lawful.

It is generally a question of fact. The riparian owner may have a fish pond or one for ornament only. He may divert the waters to domestic purposes. There is no case holding that ice may be removed, but it cannot be doubted. The ice belongs to the riparian owner. (Dodge v. Berry, 26 Hun, 246.) The withdrawing ice from the streams is an insignificant consideration in respect to the water which will be restored to the stream when it melts.' It is so found by the judge as a question of fact in this case.

The right to erect a dam for ice must rest upon the same principle as the right to erect one for purposes of pleasure or for a manufactory.

The repair of the dam and the cleaning out the pond were both acts necessary for a proper use of the stream by the defendant and the judgment should be affirmed, with costs.

Dykman, J., concurred.

Cullen, J.

(dissenting):

It is said that every proprietor of lands on the banks of a stream has an equal right to the use of the water flowing through the stream without diminution or alteration. But this rule is qualified by another, that each riparian owner has a right to a reasonable use ■of the water, and this, though such use inay work some detriment to other riparian owners. (Bullard v. Saratoga Victory Mfg. Co., 11 N. Y., 525.) From a literal adherence to the former rule, it would result that instead of every owner having an equal use, practically no owner would have any use. Some diminution of quantity is caused by using the water for watering . cattle and other faim purposes. Much loss must also be occasioned by ponding the water and exposing it to evaporation. Yet such uses are held to be reasonable.

The diminution in the size of the stream by cutting ice must be slight. We think the cutting and gathering ice, if not carried to the extent of interfering with the beneficial enjoyment of the stream by other riparian owners, a reasonable use, and in this respect' concur in the opinion delivered by Westbrook, J., in Myer v. Whitaker (55 How., 376). Here though the quantity of ice gathered is large, the trial judge has found that its removal worked the plaintiff no injury, as the water resulting from its thawing would have passed over the plaintiff’s dam in the spring freshets, when the plaintiff’s mill was not large enough to use the water furnished by the stream.

As the defendant Hedges, had a right to construct a dam and pond on her premises for mill purposes, suitable to the size of the stream, we do not see why she could not have made a pond for any other purpose, provided she did not exceed the limits prescribed.

The trial court has found that the construction of the pond and •dam has not intefered with the supply of water for the plaintiff’s mill. We think therefore the plaintiff was not entitled to a removal ■of the dam, nor to have the cutting of ice enjoined.

But it seems that for the purpose of getting clear ice the defendant Bean, the lessee, drained the pond entirely off at times, and then held the water back long enough to refill it. That thus during some considerable period the plaintiff’s mill was entirely deprived ■of water and compelled to stop. Now, while we think that the defendants could pond the stream for the purposes of ice, to the same extent they would be entitled to for mill purposes, it is clear then they can have no greater right to interfere with the flow of the stream for the former purposes, than for the latter.

One having erected a dam may detain the water long enough to fill the pond behind it, permitting .then the stream to resume its natural flow.

But he cannot use the pond to store water and at his option to let it flow away. (Clinton v. Myers, 46 N. Y., 511.) This use of the pond was unlawful. The trial court found that by it the plaintiff’s mill was for a period made idle.

For this the plaintiff was entitled to recover damages, and he was entitled to an injunction restraining further use of the pond in that manner.

It follows that the complaint was improperly dismissed against the defendant Bean. As for the defendant Hedges, she had leased the property, and is not shown to have been connected with its improper use.

The judgment to her was therefore right and should be affirmed, with costs.

The judgment as to defendant Bean should be reversed and' a new trial granted, costs to abide event.

Judgment dismissing complaint without costs, affirmed with costs.


author: Dykman, J.:

text:
    CLARENCE I. ANTHONY, Appellant, v. FRANCES L. WOOD and Others, Respondents.

      Attachment — refusal to deliver pi'operiy to the sheriff — the title of the sheriff, when the property is acquired, relates hack to the time when he demanded the property.

    A person having, under his control property, belonging to one against whom an attachment had been issued, refused to deliver the same to the sheriff or to give him the certificate required by section 650 of the Code of Civil Procedure. Thereafter he was compelled by an order made upon the application of the sheriff to deliver the property to the latter.

      Held, that the sheriff’s title thereto related back to the time when he made the demand for the property and certificate, and that such title had priority over the title of one claiming under an ssignment made by the debtor between the time of such refusal to deliver and the time of the actual delivery of the property to the sheriff. »
    Appeal from a judgment in favor of the defendants, entered upon tbe trial of this action by the court without a jury, and from an order made therein making Peter Bowe, sheriff of New York, a party defendant thereto.

      James L. Bishop, for the appellant.

      Malcolm Graham and Henry G. Atwater, for the respondents.
   Dykman, J.:

This action is for the foreclosure of a mortgage executed to John P. Brooks, to secure a note, and by him assigned to the plaintiff. Two of the makers of the mortgage interposed an answer setting up for defense that the note and mortgage had been attached on the 2d day of June, 1881, by the sheriff of New York county, by virtue of a warrant of attachment issued to him in an action in the Supreme Court, by one Helen L. Hall against John P. Brooks. That the action was pending and the note and .mortgage were in the possession of the-sheriff.-

Thereupon the sheriff was made a party defendant on his own application, and permitted to answer, which he did setting up the warrant of attachment and alleging that under it he had attached the note and mortgage and had taken them into his manual possession and claimed to hold them under the attachment. That the assignment by Brooks to the plaintiff was fraudulent, and made to delay and defraud his creditors and defeat the execution of the warrant of attachment, and asking for affirmative relief that the premises be sold and the proceeds paid to him to be held under the attachment.

On the trial the court found that J ohn P. Brooks was the owner of the note and mortgage on the 2d day of June, 1881, and that on that day the sheriff levied on and attached the note and mortgage under the warrant of attachment. That on the 6th day of June, 1881, John P. Brooks assigned the note and mortgage to the plaintiff in this action, and that the assignment was made with the fraudulent intent to defeat the execution of the warrant of attachment, and to hinder the plaintiff in that suit in the collection of her debt, and that the plaintiff had notice of such fraudulent intent.

Tt was also decided that the sheriff was the legal owner of the note and mortgage, and entitled to collect them and that the defendants Wood were authorized to pay the same to the sheriff. That on such payment the mortgage be canceled; and on failure to pay, the sheriff might enter the usual judgment of foreclosure.

We have now an appeal from the order making the sheriff a party defendant and from the judgment.

Whether'the sheriff was properly allowed to come in as defendant depends on the effect of his action under the attachment warrant. If he made no levy, and acquired no rights under the attachment, then he has no interest, and is not a proper party to the action. On the 2d day of June, 1881, the note and mortgage belonged to John P. Brooks, the defendant in the attachment suit, but they were under the control of his attorney, Clark Brooks, who had placed them in the safe of a third person. On.that day the deputy of the sheriff found Clark Brooks in his office and served him there with a copy of the warrant of attachment and the affidavit, and showed him the original. He also demanded the note and mortgage, and handed him a paper containing a general description of them, and made a demand for them, and asked him for a certificate. Clark Brooks told him he had nothing for him, and refused the certificate.

A levy under a warrant of attachment must be made on personal property, capable of manual delivery, including a promissory note or other instrument for the payment of money, by taking the same into the actual custody of the sheriff. (Code of Civil Procedure, § 649, sub. 2.)

On the application of the sheriff, holding a warrant of attachment, a person holding property, including a promissory note or other instrument for the payment of money belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the nature and description of the property held for the benefit of the defendant. (Sec. 650.)

If the ’person to whom application is made refuses to give the certificate, the court or judge may make an order directing him to submit to an examination, on oath, concerning the same. (Sec. 651.) After the refusal of Clark Brooks to deliver the note and mortgage, or give the certificate, the examination here contemplated was had. The Special Term refused to order the delivery of the papers, and that order was reversed by the General Term, and the papers were surrendered to the sheriff, in pursuance of the decision of the General Term, about the 14th day of December, 1881.

The sheriff must collect and receive all debts and things in actions attached by him, and may maintain any action or special proceeding in his own name, or in the name of the defendant, which is necessary for that purpose, or to reduce to his actual possession an article of personal property capable of manual delivery, but of which he had been unable to. obtain possession. (Sec. 655.)

From these provisions, taken together, it is evident that although a levy under an attachment warrant is to be made on property capable of manual delivery, including notes, bonds and mortgages, by taking the same into actual custody, yet where such property cannot be so reduced to possession, by reason of the refusal of the person in whose custody the property is to deliver the same, a method is provided by which such possession may be acquired. The special proceedings so to be instituted by the sheriff are in aid of the original process, and when the actual possession is obtained, it relates back to the time of attempted seizure; and the rights of the sheriff are the same as if he had obtained the actual possession at the time of his demand. (Hall v. Brooks, 25 Hun, 578.) In this view of the case, the sheriff acquired a special property in this note and mortgage, and became authorized to ■ enforce their collection under the provisions of section 655 of the Code of Civil Procedure. The provisions to enable the sheriff to reduce to actual possession the property of a defendant in an attachment suit, where it is under control of another, are in aid of the' process, and when it comes to the sheriff, he holds it under the original process. He can hold it by no other tenure, and can justify under nothing else. His duty is, then, to proceed in the collection of the debts and the disposition of the property seized. He makes title under the attachment warrant, and under that he must justify his action.

The true construction of these Code provisions for levying an attachment, and enabling the sheriff to obtain actual possession of the property, are all parts of the attachment proceedings. They constitute a complete system. If the sheriff finds the property, it is seized at once; if it is in the possession of another who refuses to yield it up, then proceedings are instituted to secure it; and in all cases, when obtained, it is held under the process, and the title of tbe sheriff bas relation to tbe time wlien he commenced to make tbe levy and seizure. His right to institute proceedings for tbe possession of tbe property depends on tbe lien he acquires by tbe service of the attachment. Tbe title to tbe note and mortgage, therefore, passed to tbe sheriff on the;2d day of June, 1881, and tbe subsequent assignment to tbe plaintiff was subject to bis rights under tbe attachment.

This examination shows that tbe order introducing tbe sheriff into the action was proper, and that tbe adjudication of bis right to to collect tbe note and mortgage is justified.

It is unnecessary to determine the right of tbe sheriff to set up fraud in tbe transfer to tbe plaintiff. It is claimed that the sheriff may have tbe assignment of this bond and mortgage set aside as fraudulent, and so subject them to tbe operation of the attachment. The court below so held, but we place our decision on tbe first point examined.

Tbe judgment should be affirmed, with costs. •

Cullen, J., concurred in tbe result; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    WILLIAM M. TEBO, Appellant, v. WILLIAM ROBINSON, Respondent.

      Evidence — burden of proof — statute of limitations.

    This action was brought upon a promise made by the defendant in 1873, to pay to the plaintiff a sum then due to the latter, as soon as the defendant was able. The complaint alleged that the defendant had became able to pay such sum, but did not allege when he had first acquired such ability. The defendant denied none of the facts set forth in the complaint,but pleaded the statute of limitations.

      Held, that the statute began to run in favor of the defendant as soon as he became able to make the payment, and that it rested upon the plaintiff to show that such ability had been first acquired within the six years immediately preceding the bringing of the action. '
    Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed at tbe circuit.

      J. T. Marean, for the appellant.

      Mirabeau L. Towns, for the respondent.
   Dykman, J.:

The defendant being indebted to the plaintiff in the sum of $1,000, wrote him a letter on the 19th day of October, 1872, in which he inserted a promise to pay him when he was able so to do. This action is on the new promise and there is an allegation that the defendant became able to pay the money before the commencement of this action, but no time is specified when he had such ability. The answer makes no denial of the facts set up, but simply interposes the six years’ statute of limitations as a defense. The plaintiff was nonsuited on the trial, and has appealed from the judgment.

The action is on the contract to pay when able, and the original. indebtedness was a good consideration for the new promise, and the action is properly brought thereon. (Wait v. Morris, 6 Wend., 396.) Yet the promise was conditional, and the cause of action accrued with the defendant’s ability to pay; The two were coincident, and the statute of limitations commenced to run from the same time. This was not an absolute promise to pay, and to make it effective it was necessary to show the ability of the defendant to pay. (Cocks v. Weeks, 7 Hill, 46.)

As the conditional promise of the defendant was the basis of the action, it was incumbent on the plaintiff to show that the condition was fulfilled. If the defendant became able to pay more than six years before the commencement of this action, then the claim is barred and the nonsuit is proper.

It is thus seen how this case differs from ordinary actions on conditional contracts. Generally, it is the interest of the defendant to disprove the fulfillment of the condition, because his liability is dependent on that event. Here, however, it is the aim and interest of the defendant to prove the early arrival of the stipulated event, because that sets in motion the statute which he invokes for his protection. Hence his admission of the allegation of his ability in the complaint, and his own testimony in his own behalf that he was able to pay the money before the year 1875. The action was commenced in November, 1881, and the bank account of the defendant tended to show that he was able to pay in the year 1874.

As tbe pleading fell, tbe burden of proof was on tbe plaintiff to' sbow that the defendant became able to pay within six years before tbe commencement of tbe action, not for tbe purpose of establishing a cause of action, for that was admitted, but to show that bis cause of action accrued within six years, and so avoid tbe statute of limitations. This be failed to do. All the testimony offered by him was bis own in which be said the defendant told him in October, 1875, that he bad seen no time since be borrowed tbe money that be could pay it. This was more than six years • before tbe action was begun, and did not avoid tbe statute. Tbe abibty of tbe defendant may have come to him soon after and it rested on tbe plaintiff to show that it came within six years. 'The trial judge gave the affirmative to the defendant, but tbe plaintiff made no objection or exception, and it seems to have made no difference-in tbe result as both parties introduced testimony on tbe point involved. ■

Tbe testimony was insufficient to sustain a verdict for tbe plaintiff, bad one been obtained, and therefore a nonsuit was proper.

Tbe judgment should be affirmed, with costs,

Barnard, P. J., and Cullen, J., concurred.

Judgment affirmed, with costs.


text:
    FRANK CROOKE v. THE FLATBUSH WATER-WORKS COMPANY and BENJAMIN F. STEVENS.

      Mminent domain — uses to which land taken for a street in a city may he applied— water pipes may he laid therein.

    29h 245" 49ad443,
    In pursuance of the authority conferred by chapter 376 of 1870, Washington avenue, in the city of Brooklyn, was enlarged and extended into the adjoining town of Flatbush, and thereafter it was opened, graded and improved by the park commissioners of the said city.

      Held, that the laying of water pipes, in the portion thereof lying in the town of Flatbush, by a company organized under chapter 737 of 1873, for the purpose of providing the authorities and inhabitants with pure and wholesome water, did not impose an additional burden upon the land so as to entitle the owner of the fee to receive an additional compensation therefor.

      Bloomfield Gas-Light Company v. Calkins (62 N. Y., 386), distinguished.

      Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a judgment had been ordered for the plaintiff by the court. The action was brought to recover damages from the defendant The Flatbush Water-Works Company, and its contractor Stevens, for laying water pipes in respondent’s lands in Washington avenue, Flatbush, and to enjoin them from proceeding with the work.

      John II. Bergen, for the plaintiff.

      John II. Kemble, for the defendants.
   Dykman, J.:

Washington avenue was widened in the city of Brooklyn and as so enlarged extended into the town of Flatbush, under legislative authority. (Laws of 1870, chap. 376.) Under this law the park commissioners of the city of Brooklyn were directed to open, grade and improve the avenue so widened, and the extension thereof into the adjoining town, and they did so.

The Flatbush Water-works Company was organized under the act relating to the creation and formation of such companies in towns and villages of this State. (Laws of 1873, .chap. 737.) By •that law this company was authorized and empowered to lay its water pipes in any street or avenue of that town and supply the authorities and inhabitants with pure and wholesome water. (See §§ 4, 5.)

In the town of Flatbush this avenue was laid out and opened over the land of the plaintiff, and the defendant company has laid down water pipes for the purposes of its organization in the avenue over the plaintiff’s land, the defendant Stevens being its servant in that regard. The plaintiff commenced two actions for an injunction and damages, which were consolidated and tried as one, a verdict was' recovered in his favor and this is an appeal from the judgment.

The land of the plaintiff under this avenue must bear the burden of an urban servitude; and may be used for all purposes necessary and usual to a public street in a populous place; and all acts may. be done in it which are appropriate to its beneficial use by the public. (Dillon Mun. Cor., §-[551].) A portion of the avenue is in the city of Brooklyn and it extends into the town of Flatbush which must be assumed to be a thickly populated town from its close proximity to- a large city.

The requirements of the public in such a place are more numerous than in a rural locality, and streets and avenues are to supply such demands, a mere right of passage over the surface is quite insufficient. Grading,and paving are essential, and so are culverts, sewers, gas pipes and water pipes, and the land is condemned and set apart for all these necessary purposes, and compensation is made to the owner therefor. It is too late in the history of this State to recede from • this doctrine for it has received judicial sanction many a time and oft, and the prevalent rule is that a public street in a populous place may be used for any purpose conducive to the enjoyment of the easement, and not incompatible with the purposes for which the land was acquired. (Kelsey v. King, 32 Barb., 417; Chapman v. Albany, etc., R. R. Co., 10 id., 360; Drake v. Hudson R. R. R. Co., 7 id., 508; Williams v. New York Central R. R. Co., 18 id., 222.) The size and extent of the easement in a sti’eet must be measured by the wants and necessities of the public.

The spirit of the age is onward, and the law must expand with the requirements of the times. Illumination, drainage and pure water are all required in'populous places. A plentiful supply of the latter is a prime necessity and pipes are laid for its flow and distribution, the same as gas pipes, without additional compensation to the fee owner because they are incidental to the use of the street.

The case of the Bloomfield Gas Company v. Calkins (62 N. Y., 386) related to a rural highway and is distinguished from an urban street. We cannot assent to the proposition that all the gas pipes, water pipes and sewers laid down in the streets and avenues of the cities and villages, of this State by municipal or legislative authority are additional burdens on the land for which the owner of the ultimate fee is entitled to new and further compensation.

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

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

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. HUBERT GIROUX, President, etc., and THE LAFAYETTE FIRE INSURANCE COMPANY, Respondents.

      Additional allowance — ca/nnot he granted in an action to remove an officer of a corporation for misconduct — Code of Civil Procedure, sec. 3358.
    No additional allowances can be granted under section 3353 of the Code of Civil Procedure in an action brought to procure the suspension and removal from office of the president of a fire insurance company, upon the ground of his misconduct, as the subject-matter involved therein has no pecuniary value.
    Appeal from an order made at a Special Term granting an additional allowance.

      William G. Cooke, for the appellants.

      Cha/wncey Schaffer, for the respondents.
   Dykman, J.:

This action is for the suspension and removal of the defendant from the office of president of a fire insurance company on allegations of misconduct. The cause was tried at Special Term, and decided in favor of the defendant, who was awarded an additional allowance of $500. From this order granting the allowance we have this appeal. This order must stand under the provisions of section 3253 of the Code of Civil Procedure, or it must fall. Under that section an allowance can be made in certain specified kinds of actions, or in a difficult and extraordinary case where a defense has been interposed in any actions, of a sum not exceeding five per centum on the sum recovered or claimed, or the value of the subject-matter involved. In this action nothing was recovered or claimed, and no subject-matter was involved having any pecuniary value. The subject involved was the conduct of the defendant. There is, therefore, no basis for an additional allowance. It is true there was an allegation that certain amounts of money had been lost by the mismanagement of the defendant, but the plaintiff claimed no interest in it, and the action was not for its recovery.

The order should be reversed, with costs and disbursements.

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

Order granting allowance reversed, with costs and disbursements.


text:
    THOMAS F. COOK and JOHN BOWNE, as Executors, etc., of RICHARD H. BOWNE, Deceased, Plaintiffs, v. CORNELIUS RYAN, Defendant.

      JUxecutors — power of, to sell real estate conveyed to them as such— a judgment recovered against them, as executors, is not a lien upon land conveyed to them as such.

    The plaintiffs, as executors of one Bowne, who died insolvent, brought an action to foreclose a mortgage, owned by him, upon certain real estate in Brooklyn. Pending the action, the property was conveyed to them as executors, whereupon the action was discontinued. Subsequently a ¡money judgment was recovered against the plaintiffs, as executors, and duly docketed in Kings county. No power of sale was conferred upon the executors by the will.

      Held, that they had power to sell the real estate; and that a purchaser from them would acquire a good title, free from the lien of the judgment.
    Controversy submitted upon an agreed statement of facts, in pursuance of section 1269 of the Code of Civil Procedure.
   Dykman, J.:

This is a controversy submitted without action. The plaintiffs are executors of the last will and testament of Richard H. Bowne, who died insolvent, leaving a will without power of sale to the executors. They commenced an action for the foreclosure of a mortgage on certain real property in the city of Brooklyn, and pending the suit the premises were conveyed to them as executors, and the action was thereupon discontinued. After that a judgment was obtained against them as such executors in the Supreme Court, in an action at law, and regularly docketed in Kings county.

After this judgment had been so obtained and docketed the plaintiffs sold the premises at public auction to a purchaser who has paid ten per cent of the price and assigned his bid to the defendant. The plaintiffs are willing to satisfy or assign the mortgage, and the question submitted is, would a conveyance of the premises by the plaintiffs, as executors, give the defendant a perfect title? "We think it would.

The plaintiffs are vested with the mere naked legal title which they hold in trust. They must convert the property into money by a sale, and dispose of the proceeds in the usual course of administration. The judgment obtained against the plaintiffs, as executors, amounts to little more than a liquidation of the demand. It does not establish a lien. (2 R. S., 449, § 12 ; Sharp v. Freeman, 2 Lans., 112; S. C., 45 N. Y., 802.) It is true this statute has especial reference to real estate belonging to a deceased person, and the land in question never did belong to the plaintiff’s testator; yet . the executors have this title as such, and their rights and interests are the same as though it came from their testator impressed with a trust. They not only have power, but it is their duty to sell and dispose of the property, and to convert it into cash for. the payment and discharge of the liabilities of the estate of their testator, and their conveyance will constitute a perfect title. The lien of a judgment does not attach upon a mere legal title to land held in trust. (Averill v. Loucks, 6 Barb., 26; Lounsbury v. Purdy, 11 Barb., 490; S. C., 18 N. Y., 515.)

Our statute providing for the sale of land of deceased persons, for payment of their debts, excludes the idea that judgments against the personal representatives are liens on the land, and provides for the allowance of the claims to be established as if no judgment had been obtained. (2 R. S., 102, § 13; Sharp v. Freeman, 45 N. Y., 806.)

No execution can issue without leave of the surrogate from whose court the letters were issued (Code Civ. Pro., § 1825), and such execution can be of little avail. No preference is given to the judgment-creditor, and execution, if one is permitted, is to be paid only in the proportion paid to other creditors. (Schmitz v. Langhaar, 88 N. Y., 503.) If it appears on the application therefor that the assets after-payment. of all sums chargeable against them for expenses and for claims entitled to priority, as against the plaintiff, are not or will not be sufficient to pay all the claims of the class to which the plaintiff’s claim belongs, the sum directed to be collected by the execution shall not exceed the plaintiff’s just proportion of the assets. (Code of Civ. Pro., § 1826.) Such judgments are not liens and have no operation to embarrass executors or administrators in the sale and disposition of property, and converting the same into assets for the discharge of the liabilities of the estate.

The plaintiffs should have judgment, but for greater safety they ■ should be directed to assign the bond and mortgage of their testar tor on the premises to the defendant. No costs.

Barnard, P. J., and Cullen, J., concurred.

Judgment for the plaintiffs on the case submitted, without costs.


author: Dykman, J.: Cullen, J.:

text:
    REESE CARPENTER, Respondent, v. WASHINGTON J. BUTLER, Appellant.

      Judgment — an assignee of it may me thereon without frst obtaining leave from the court— Code of Oivil Procedure, secs. 1909, 1912, 1913.
    'One who has acquired title to a judgment of'a-court of this State by virtue of an assignment from a foreign administrator of the judgment creditor, may ■. maintain an action thereon in his own narhe, without first procuring leave from the court so to do.
    Appeal from a judgment in favor .of the plaintiff, entered upon an order overruling a demurrer interposed to the complaint.

      August Beymert, for the appellant.

      W. 8. Logon, for the respondent'.- ■
   Dykman, J.:

The questions in this case come up on a demurrer to a complaint which was overruled below.^ The facts stated and admitted are that Simon H. Mitchell-recovered a judgment in the city court of Brooklyn against the defendant for $163.10, on the 21st day of December, 1871. That Mitchell died in January, 1875, in the State of Connecticut, and that letters of,administration were issued tó his widow, who, as such, assigned this judgment to the plaintiff who now owns the same.

The argument in favor of the demurrer is that'because the judgment was not rendered by default, and no leave has been granted to bring this action, it cannot be maintained. Eor this position reliance is made on section"l913 of the Code, which is as follows: Except ' in a case where it is otherwise specially prescribed in this act, an ■action apon a judgment for a sum of money rendered in a court of record of the State, cannot be maintained between the original parties to the judgment unless either: 1st. It was rendered against the defendant by default for want of an appearance or pleading, .and the summons was served upon him otherwise than personally ; •or, 2d. The court in which the action is brought has previously made an order granting leave to bring it.”

The aim of this statute is to prohibit vexatious actions on judgments, but the inhibition extends only to the parties. There is no indication of intention to extend the prohibition to other parties, •and there is no reason for - an implication of it. The mischief intended to be obviated by this statute is prevented by this construction, and no reason exists for extending the interdiction to honest assignees. There are many reasons why such new owners •of judgments should renew the same by action. The record will thus be made to stand in their own name free from the interference of the original plaintiff, and execution may be issued to enforce the judgment at the pleasure of the actual party in interest, and remain under his control. The cases of Wheeler v. Dakin (12 How., 537); Smith v. Britton (45 id., 428); and Tufts v. Braisted (4 Duer, 607) furnish support for these views.

This disposes of the only question before us that rises to any dignity, for if the action can be maintained by the plaintiff as assignee, then he has legal capacity to sue and the court has jurisdiction of the action.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concurred.

Cullen, J.:

Concededly prior to the present Code, this action could have been maintained, for the action not being between the original parties leave to sue on the judgment was unnecessary (Smith v. Britton, 45 How., 428; Wheeler v. Dakin, 12 id., 537), and the assignee of a foreign administrator could sue in his own name on the assigned claim. (Petersen v. Chemical Bank, 32 N. Y., 21.)

But it is claimed that by section 1909 (Code) an action can now be brought by an assignee only under the same circumstances which would have entitled the assignor to sue.

This is not so. The section cited provides that the assigned! claim shall be subject to any défense existing against the assignor. The rule that a foreign executor cannot sue in our courts is a mere personal disability. It is not a defense to'the claim. If the leave of court constitutes a part of the cause of action in a suit on a judgment, as held in Farish v. Austin (25 Hun, 430), then section 1909' must be considered as limited by sections 1912 and 1913, which, prescribe such leave only in actions between the original parties.

The judgment appealed from should be affirmed, with costs.

Judgment and order overruling defendant’s demurrer affirmed, with costs.


author: Cullen, J.:

text:
    GEORGE W. MEAD, Appellant, v. MARY E. JENKINS and Others, Respondents.

      Statute of limitations — when proceedings by a simple contract creditor, to procure the sale of the real estate of a deceased debtor, are not barred by it.

    The right of a simple contract creditor of an intestate to institute proceedings to compel the sale of real estate which has descended to and is owned by his heirs, is not barred by the statute of limitations until the expiration of nine years from the time of the maturity of the debt.
    Motion for a reargument. - • . ■
    The case came before the General Term upon an appeal from an order made by the surrogate of Westchester county denying an application to compel a sale of the real estate of one John P. Jenkins, deceased. ,:
    The .facts and the opinion of the-.General Term will be found in 27 Hun, at page 570.

      George W. Mead, for the appellant.

      M. L. Cobb and Stephen S. Ma/rshall, for the respondents.
   Cullen, J.:

In arriving at our former decision of this case we did not wholly overlook the authorities presented to us on this motion by the counsel for-the respondents. Some of the cases cited arose on sales made prior to the Eevised Statutes. Before that time no period was prescribed by law in which application to the surrogate to sell decedent’s real estate must be made, nor was there express provision for parties in interest interposing the statute of-limitations to the claims. Then the courts held that the application must be made within a reasonable time, otherwise that the debts of the deceased would constitute a perpetual lien on his real estate. Some-of the cases declared what a reasonable time was. In Gilchrist v. Rea (9 Paige, 66) over nine years had elapsed between the issue of the letters and the application to sell. It was held that there was no power to sell where by lapse of time the debts were barred both as against the personal representatives and the heirs-at-law. But by the Revised Statutes three years was fixed as the term in which the .executor or administrator might make application, and a creditor was given the right to compel such proceedings. "With the'change of the law the authority of the previous cases as to a reasonable time ceased. The provision t as to the creditors was afterwards modified, but as it finally stood at the time of this proceeding the creditor, when on an accounting a. deficiency of personal assets appeared, could institute the proceeding to sell real estate, and the personal representatives could not answer that the time -within which they were allowed to sell had expired.

This necessarily did away with all limit of time for initiating such proceedings by a creditor, except such as the bar of the statute of limitation would make to the claim. The opinion of the surrogate in this respect, in Ferguson v. Broome (1 Bradf., 10), that the time within which a creditor might pursue this remedy was still discretionary, was obiter, and we think' it opposed to the statute.

Indeed, the whole argument in both Gilchrist v. Rea and Ferguson v. Broome was to show that the land of deceased was not to remain subject to his debts by means of this special proceeding for any longer period than it was at law in the hands of his heirs; not that this proceeding would be barred sooner than an action against the heirs. It is true that both cases speak of a claim against the heir being barred in six years. In the first case this statement was coi-rect, because the land descended to the heir prior to the provision of the Revised Statutes that the heir eould not be sued for three years after the decease of his ancestor. In the second case the statement was erroneous. The learned surrogate omitted to notice the effect of the statutory inhibition as to. suits within three years against the heirs, which extended the time for maintaining actions on contract debts from six years to nine.

That such was the effect of this statnto3'y provision had been decided both by Chancery and the Supreme Court prior to the time of Surrogate Bradford’s decision in the case cited.

It is urged that there is no prohibition against bringing these proceedings immediately after the issue of letters, and, therefore, the additional time allowed to institute suits against the heirs should not be allowed here. But the foundation of the right of the creditor to compel the executor to sell is the account of the éxecutor showing the deficiency of personal assets. (Sanford v. Granger, 12 Barb., 392.) He cannot call an executor to account till eighteen months after the issue of- letters, and then much time may necessarily elapse before- the account is made and settled. Therefore, practically, he cannot institute these proceedings on the issue of lettei’s.

The respondent’s counsel cites Dunham v. Minard (4 Paige, 441) to show that the lien of the ci’editor was cut off- by the partition suit. It is not an authority to that effect. In that case the judgments which it was held were cut off by the reference and advertisements were liens upon an undivided share, Nor can we find any authority that general liens upon the whole property, paramount to the title of the tenants in common, are cut off by a pai-tition suit to which the holders of such' liens are not parties. It appears that part of the real estate sought to be sold in this proceeding was an undivided third of a tract. This was not called to our notice. The partition síút pf that tract cut off the. plaintiff’s claim, and as to that tract the'surrogate’s order should have been affirmed. - . .

It ig also urged that Hyde v. Tanner (1 Barb., 75) holds that the lien of the creditors upon the lands of the deceased expires in three years after the issue of letters: This is, doubtless, the case where the lands are in the hands of Iona fide purchasers without notice of the existence of debts. _And the case cited is an authority to that extent alone. Here express notice of appellant’s claim to the purchaser was shown. The amendments of 1869 and 1873 provide that lands passed out of the hands of the heirs, to purchasers in good faith and for value, shall not be sold after the expiration of three years. This would be unnecessary if the lien absolutely expired at that time.

The order hitherto made should be modified so as to affirm the decree of the surrogate as to the tract in which deceased held an undivided interest, and to reverse the remainder of such decree, otherwise the motion for reargument should be denied, without costs.

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

Motion to correct order granted so as to affirm decree heretofore made in respect to the tract of land in which deceased held an undivided interest, otherwise the decree of surrogate is reversed, without costs. Reargument denied, without costs. Order to be settled by Cullen, J.


text:
    JAMES A. THOMPSON and CHARLES C. FOWLER, Respondents, v. JACOB STRAUSS, Appellant.

      Complaint — when the prayer for relief may be considered in determining whether the action is in replevin or for breach of contract — power of the court to allow amendments to be made to the complaint.

    It was alleged in the complaint in this action that the plaintiffs had been induced, by the false and fraudulent representations of the defendant, to sell and deliver to him certain specified parcels and quantities of tobacco; that the defendant after obtaining possession of such tobacco claimed that he was unable, and refused, to pay, the plaintiff therefor; and alleged that such inability was-occasioned by his having transferred all his property to his wife, in payment of an alleged prior indebtedness; the complaint also alleged that a return of the tobacco had been demanded. It prayed for a return of the tobacco, or if that could not be had, for its value. It was not alleged that the plaintiffs owned the tobacco.
    Upon a motion to set aside a requisition issued to the sheriff requiring him toreplevy the tobacco and to vacate an order for the arrest of the defendant, granted on the ground that he had fraudulently disposed of the said tobacco-so that it could not be seized by the sheriff;

      jB'eld, that in determining whether or not the action was one of replevin, or to-recover damages for a breach of contract, the prayer for relief might be-considered.
    That although the complaint was defective in not alleging that the plaintiffs were-the owners of the tobacco, the action was to be regarded as one of replevin.

      That the court had power to allow the plaintifEs to amend the complaint and the affidavits which were defective, and to deny both of the motions, without requiring the payment of any costs.
    Appeal from an order made at a Special Term denying two motions, one to set aside proceedings to replevy certain property instituted by tbe plaintiffs, and tbe other to vacate an order of ■ arrest granted herein.
    fliis action was commenced on the- 1st of August, 1882, by the service of a summons and complaint upon the defendants. Upon the same day an affidavit, an undertaking in replevin and a requisition were placed in the hands of the sheriff of Onondaga county, ' in pursuance of which he took into- his possession a quantity of tobacco described in the complaint and affidavit. On August nineteenth the defendant was arrested in pursuance of an order granted upon the ground that a portion of the property had’ been disposed of by the defendant so that it could not be found or taken by the sheriff, with the intention that it should not be-so found or taken, or to deprive the plaintiffs of the benefit thereof.
    The complaint alleged that the plaintiffs had beén induced to deliver and sell to the defendant a quantity of tobacco by reason of false and fraudulent representations as to his financial standing. That subsequent thereto he transferred all his property to his wife in payment of an alleged prior indebtedness, and claimed that he was unable and refused to pay the plaintiffs for the said tobacco, by reason of such transfer of his property .to his wife. The complaint further alleged that a return of the property had been demanded, but did not allege that the plaintiffs owned the property. It prayed for a return of the property, or [if that could not be had, for its value. The court allowed the complaint and affidavits to be amended* and denied both of the motions.

      Louis Marshall, for the appellant.

      O. D. M. Baker, for the respondent.
   Cullen, J.:

We think the court below properly held the action was for replevin. The complaint was defective in omitting to allege property in the plaintiff, but it did contain sufficient to authorize a recovery on contract. The demand for relief was, for a return of the property, or in case a return could not be, for the value of' the property. The general rule is, as contended by appellant’s counsel, that the demand for relief does not necessarily determine the character of the action, but the plaintiff may obtain the relief the facts alleged in his complaint warrant. But I think this rule is subject to qualification. There are some actions whose character is necessarily determined by the demand for relief. I think an action in replevin is one. The general rule, I think, .is often stated too broadly, unless it be considered only as applicable where the defendant has answered. It is entirely possible that a complaint may state no good cause of. action of any kind, and yet if the defendant fails to answer or demur, judgment will be entered in the same manner as upon the best of pleadings. Here it is apparent that the pleader intended to set forth a cause of action in replevin, and demanded the appropriate relief. The defendant has made default. ■Had the plaintiffs’ facts failed to state any cause of action they would have been entitled to judgment on the defendant’s default. I do not see why their position should be worse, because by going through the details of the complaint facts can be gathered which would 'support an action on contract.

The action being ‘thus on replevin, the order of arrest was authorized if the defendant had disposed of the goods, even though without the intent to defeat this particular remedy. (Barnett v. Selling, 70 N. Y., 492.) The question of fact as to the defendant’s fraudulent representations was properly decided by the Special Term.

The only remaining point is the leave given the plaintiffs to amend this complaint and defective affidavit and requisition. If the action was in replevin the court had power to allow the amendments, and the question was one of discretion, both as to the amendment and as to the impositions of terms. The plaintiffs might well have been mulcted in costs for their defects in procedure. But we do not feel disposed to interfere with the decision of the court below on that point.

Orders appealed from should be affirmed, without costs.

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

Order affirmed, with costs and disbursements.


author: Cullen, J.: Pkatt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. ONAFRIO MANGANO, Appellant

      Criminal action — a new trial may be granted became the verdict is not supported by the evidence— Code of Criminal Procedure, secs. 465-485 — what evidence is insufficient to show that a murder was committed with “ deliberation.”

    Since the adoption of the Code of Criminal Procedure, a motion for a new trial ■ may he made in a criminal action upon the ground that the verdict is against the evidence; and an appeal from the judgment brings before the General Term, for review, the decision of such motion, as well as the proceedings upon the trial.
    Upon the trial of the defendant for murder, it appeared that he, together with one Cornettia and the deceased, were all working together, in a room in the State’s prison, peeling potatoes. Cornettia called the deceased by an insulting name, whereupon the latter struck Cornettia with a stick. Cornettia then seized a stick or stool and attacked the deceased. The defendant then picked up a-broom and joined in the attack. The parties were then separated, a convict taking the broom from the defendant and thrusting him aside a distance of two or three barrels. The defendant immediately took the knife which he had been using in his work, rushed towards the deceased and struck him with it, inflicting a fatal blow, from which he died. The whole affray lasted from two to five minutes. There was no dispute or ill-feeling between the parties prior • to the fight.

      Held, that the evidence was insufficient to authorize the jury to find that the act . was done with a “ deliberate ” and premeditated design; and that a verdict finding him guilty of murder in the first degree should be set aside.
    Appeal from a judgment, entered in this action upon the verdict of a jury, and from an order denying a motion for a new trial, made under section 465 of the Code of Criminal Procedure.

      Fronds Larkin, Michael J. Keogh and Isaac N. Mills, for the appellant.

      G. Frost, for The People.
   Cullen, J.:

The prisoner, a life convict, was convicted of murder in the first degree for killing a fellow convict, Williams, at the Sing Sing State prison.

Two exceptions were taken to the charge of the court. It is urged that it was error to charge “ that no length of time is required,” previous to striking the blow, in which to premeditate and deliberate. If it were conceded that such a statement, standing by itself, were erroneous, I do not think the exception here well taken. The expression was not a single isolated proposition submitted to the jury, but must be construed in connection with the whole contents of the charge on that point. The district attorney asked the court to charge in the language above given :

“ By the Court — I will charge that no particular length of time is required; but that no time is required, I will not charge. (Defendant excepts.)

“ Mr. Baker — I mean no appreciable length of time.

“ The Court — I will charge that no length of time is required, but there must be deliberation and premeditation. (Defendant excepts.) ”

Taking all of this together, the charge was unobjectionable, in my opinion. In effect it was that no particular time was necessary, provided there was deliberation and premeditation. Upon being requested to charge that the word deliberate ” has a different meaning and significance from the word premeditated, the court •said: “ I suppose there is a slight shade of difference. I will so charge.” To the first statement the prisoner excepted. We think there is substantial difference between those two terms as used in the statute. But we think no question was raised by the exception. The court charged as requested. It had already defined the meaning of these terms accurately. If the prisoner wished such definition made with greater minuteness, there should have been a direct request to that effect. We think, therefore, neither exception tenable.

But the question is presented to us, a motion for a new trial having been made, that the verdict is against the evidence, that is, that there was no sufficient evidence of deliberation to justify the conviction in the first degree. Formerly in criminal cases courts could not grant new trials on such grounds. Now, by the express terms of the law, a motion for that purpose can be made, and an appeal from the judgment brings before us for review the decision of such motion as well as the proceedings upon the trial. The power of interfering with the verdict in a criminal case is doubtless to be exercised with caution, especially where the question of fact to be determined is one incapable of direct proof and only to be established by inference from other facts. The old decisions denied not only the power but the propriety of vesting such power in the courts. But the legislature having cast npon the courts such duty we are bound to exercise it. The history of this case is brief. There is little or no conflict between the witnesses or dispute as to the fact. Its salient features are beyond dispute. The deceased, one Cornettia (an Italian), and the prisoner were all at work in the prison peeling potatoes. Cornettia applied some opprobrious epithet to the deceased, upon which the deceased struck Cornettia with a stick. Cornettia then seized a stick or stool and attacked the deceased. While this altercation was transpiring, the prisoner picked up a broom and also attacked the deceased. One Coburn, a convict, but a sort of overseer over the others, slipped between the parties to stop the conflict and seized the defendant. A convict named Cush took the broom from the prisoner and thrust him aside the distance- of two or three barrels, when the prisoner immediately took the knife which he had used in his work, rushed towards the deceased and struck him, inflicting the fatal blow. It was proved there was no dispute or ill-feeling between the parties prior to this' occurrence. The whole affray lasted, according to one witness, five minutes, the others place it at from two to three minutes.' The time that elapsed between the disarming of the prisoner by Cush and the striking of the blow with the knife was, according to one witness, “ half a second ; ” according to another it was “ instantly.” This is substantially the whole occurrence. Now, is there sufficient evidence in it to warrant the finding of the jury of deliberation on the part of the prisoner.. It is true that such deliberation is incapable of proof save as an inference from other facts. But that does not authorize the jury to arbitrarily draw such inference as they see fit. The facts must point to and warrant the inference, otherwise a verdict cannot stand. This undoubtedly is the rule in civil eases. It should hardly be less potent where life is involved.

The inference is generally proved by the nature of the occurrence, the manner in which the crime is committed, the weapon, threats or expression of hostile feeling toward the deceased, preparation on the part of the prisoner. But this case seems barren of all such features. There is not ground even for suspicion that prior to the altercation the prisoner meditated an. injury to the deceased. When the fight between the deceased and Oornettia occurred, the prisoner attacked deceased but with a weapon not calculated to inflict fatal or even serious injuries. For while many blows were struck by Oornettia and the deceased, who were similarly armed, no serious results followed to either party. When disarmed by Oush the prisoner took from his person the knife not possessed by him for any unlawful purpose, but used in the work in which he had been engaged, and immediately stabs the deceased. The use of the deadly weapon, and the thrust at the vital part would warrant the conclusion that the prisoner intended to take life, and therefore that the act was • premeditated. But there is nothing to show deliberation, but on the contrary, the facts of the transaction negative that conclusion. As we have said, there is a substantial difference between premeditation and deliberation, a difference more readily appreciated than to be accurately defined. An apt statement is to be found in the opinion of Judge Daniels in The People v. Leighton ; speaking of the elements necessary to constitute murder in the first degree, he says: “ The execution of the guilty purpose is required to be settled and determined upon reflection, before the crime of murder in the first degree can be committed. A full and determined purpose is rendered necessary as distinguished from a mere impulsive fatal act.” No particular period of time is requisite for the deliberation, but still deliberation must take place. We do not say that in no snpposable case could deliberation be consummated in so brief a period as that occupied by the broil in which this crime was com 'mitted, but we do say that in this case there is nothing to show deliberation, but rather a passionate, vicious impulse.

The result of these views is that the prisoner obtains practical immunity for his crime, for being a prisoner for life nothing save a capital execution can increase his punishment. We cannot but think that this consideration affected the verdict. But the law recognizes no distinction between one in the condition of this prisoner and a free person. If it be necessary for the purposes of prison discipline or to protect the lives, whether of keepers or convicts, that offenses committed by prisoners shall be punished more severely than those committed by others, the remedy is with the legislature. The courts must carry out the law as they find it, and not strain it to punish even the greatest of offenders.

The conviction and judgment should be reversed, and a new trial ordered

Pkatt, J.:

I concur in the opinion of Justice Cullen, but as the point is made that the Oyer and Terminer is the only court that can grant a new trial in this case, on the ground that the evidence is insufficient to sustain a conviction of murder in the first degree, it is proper to make a few suggestions upon that subject.

Prior to the adoption of the new Code of Criminal Procedure it may be conceded that there was no power either in the Oyer and Terminer or the General Term of the Supreme Court to grant a new trial upon the merits.

By section 465 of the Code of Criminal Procedure (par. 6) the court in which the trial is had has power to grant a new trial “ when the verdict is contrary to law or clearly against evidence.”

It is claimed from this that the court only in which the trial was had has power to grant a new trial upon the grounds stated.

■ The answer to this proposition- is made plain by referring to the other provisions of the -Code • relating to the review of criminal trials.

Section 485 provides for the form and contents of the judgment-roll. Part 6 states that the roll shall contain, among other matters, “ a copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of judgment.” >

By section 517 “ an appeal to the Supreme Court may be taken by the defendant from the judgment' on a conviction after indictment, and upon the appeal any actual decision of the court, in an intermediate order or proceeding forming apart of the jiidgmentroll as prescribed by section 485 may be reviewed.”

It thus seems clear that inasmuch as a motion may be made for a new trial in the court in which the trial is had upon the ground that the verdict is contrary to law or against the weight of evidence, and such motion and decision therein being an intermediate order or proceeding forming a part of the judgment-roll, it may be reviewed by the General Term in like manner as a bill of exceptions.

If these views satisfactorily answer the question of power the only remaining point to be considered is whether the'Verdict was contrary to law and against the weight of evidence.

It seems to me that the opinion of Mr Justice Cullen fairly disposes of that question.

Judgment reversed and new trial ordered.

Barnard, P. J., dissented.

Conviction and judgment reversed and new trial granted.


author: Barnard, P. J.;

text:
    WILLIAM HAMILTON, Respondent, v. GEORGE M. PENNEY, Impleaded, etc., Appellant.
    Attachment— what statement of the amount due is sufficient — an action upon a note and to foreclose securities held as collateral thereto, is an action for money only— Code of Civil Procedure, sec, 635. ,
    Appeal from an order made at a Special Term, denying a motion made on behalf of the above-named defendant to vacate an attachment issued in this action.
    The plaintiff commenced an action against this defendant and another person, in which he sought to recover the sum of $750 alleged to be'due on a certain promissory note for $1,000, made by this defendant, and also to foreclose the outstanding interests in certain collateral security in said complaint described.
    The affidavit upon which the attachment issued stated, among other things, “ that the above-named defendant Pinney is indebted to the above-named plaintiff in the sum of $1,000, with interest from February 6,1882, which amount plaintiff is entitled to recover from defendant, over and above all counter-claims known to plaintiff.”
    The court at General Term said: “ The affidavit upon which the attachment was issued is sufficient. The Code simply requires that the plaintiff shall make oath that he is entitled to recover a sum therein stated over and above all counter-claims known to him. This averment is fully made and the complaint states that the claim is upon a note made and indorsed by the defendants for the sum to which plaintiff is entitled, and which note is wholly unpaid. The demand for a less judgment than that to which plaintiff is entitled by the averments in his complaint is of no importance. A complaint is not to be judged by the demand for relief except in cases where no answer is put in._ The action is one for the recovery ’ of money only. The complaint sets out a note for $1,000; that defendant Penney is maker and defendant Mureau is indorser; that the note is due and wholly unpaid; that the defendants transferred with the note to the plaintiff certain mining stocks as collateral to the payment thereof; that the stock has no place upon the stock exchanges, and has therefore no quotation of its value. In addition to the demand for judgment the plaintiff asks that this stock be sold and the proceeds applied upon the judgment. This averment is no part of the cause of action. It is just and fair that the defendants have the benefit of the collaterial security. The rule of law in such cases gives the right to have the collaterial applied upon the claim without the plaintiff’s offer. It is not material whether the application of the collateral be made before judgment for the money amount due Of afterwards. If made before it reduces the judgment; if after it pays the judgment so far as it goes. The acknowledgment that the plaintiff holds collateral which he wishes to have sold to apply upon the judgment does not therefore make the claim other than a claim for money only.”

      J. Thaim, Easton, for the appellant.

      jB. E. Yalentwie, for the respondent.
   Opinion by

Barnard, P. J.;

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

Order refusing to vacate attachment affirmed, with costs anddisbursements.


author: Cullen, J.

text:
    LEVI P. MORTON, Respondent, v. THE MANHATTAN BEACH IMPROVEMENT COMPANY (Limited) and Another, Appellants.

      JSjectment — separation of a portion of an island from the rest of it, by the action of the sea— when the new island so formed will pass by a convey anee purporting to convey the island by its old name.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was in ejectment for the recovery of an undivided fifth part of a tract of land at Coney Island, in the possession of the defendants. The case states that the plaintiffs remote grantor, with others, was in possession of Barren Island prior to the year 1835. At that time, it is shown by the evidence, that the tract in dispute was a part of that island. The plaintiff traces his title by a regular chain of conveyances from such owner. About the year 1845 the sea broke through Barren Island, separating the tract in question from that island by an inlet. ' About 1861 the old inlet that separated Barren Island from Coney Island closed, and thus the tract formerly part of Barred Island became attached to Coney Island.
    The deed to the plaintiff was in 1865, by the sheriff, on a foreclosure of a mortgage executed in 1852, and conveyed the mortgaged premises. The mortgage and the two deeds anterior thereto, by which the mortgagor acquired title, described! the premises conveyed as being Barren Island.
    The court at General Term, said: “ The only question presented on this appeal is whether this tract, after it had been detached by the sea from, the main island, passed under the description of Barren Island. We think it did. It. was originally part of that island. After it was cut off by the sea it remained a separate island for twenty-five years, until it was connected with Coney Island. It was during this period that the conveyances in question were made.

      “ Though as a matter of geography the tract became an independent island, still in the absence of any proof that during this time it had acquired a separate designation, we think it should be held that the name Barren Island still included it. The burden of proof was on the defendant to show, if such was the fact, that the tract, after its separation, was known by some other name, otherwise it should be presumed that it was still called by the former title.”

      Alfred G. Chcvptn, for the appellants.

      Henry G. Atwater, for the respondent.
   Opinion by

Cullen, J.

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

Judgment affirmed, with costs.


text:
    HIRAM FINCH, Respondent, v. JONATHAN P. CARPENTER, Appellant.

      Practice — no appeal lies from a judgment entered by consent.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought upon a promissory note given on account of the purchase-price of certain cattle sold to the defendant by the • plaintiff. The defense was a breach of warranty. A judgment recovered by the plaintiff upon a former trial had been set aside by the General Term and a new trial ordered.
    The court at General Term said: “ The record shows that when the action was brought on for trial, it was agreed that the evidence should be read from the printed case on a former appeal, and that the plaintiff should take judgment for an amount specified.
    “ A verdict was accordingly rendered for such amount and judgment thereon entered. It thus appears that the judgment was entered upon consent of the defendant. From a judgment so taken no appeal lies. (Flake v. Van Wagenen, 54 N. Y., 25; Innes v. Purcell, 58 id., 388.) ”
    The appeal should be dismissed, with costs.

      E. T. Lovatt, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Opinion by

Cullen, J.

Present — Rabnard, P. J., and Culpen, J.; Dtkman, J., not sitting.

Appeal dismissed, with costs.


text:
    In the Matter of the Application of THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, to Acquire Land of EDWARD A. SWAIN and Others.

      Land under water — may be taken by a railroad company under section 25 of ehap. 140 of 1850 — no notice need be served upon the owner of the adjoining upland,— 1 B. S., 208, sea. 67.
    Appeal from an order made at a Special Term, confirming an award of commissioners appointed to appraise ,the damages to be paid to tbe appellant for tbe taking of a portion of his land by a railroad company.
    Tbe court at General Term said: “ Tbe appellant Swain is the owner of lands lying upon tbe west side of the Hudson river. Tbe railroad company seek to take about three-fourths of an acre, being substantially all tbe water front of Swain’s premises. In 1881, Swain bad taken initiatory steps to procure a grant of land under water in front of tbe premises from- tbe commissioners of tbe land office. He bad not obtained such grant at tbe time of tbe filing and service of tbe petition in this case by tbe railroad company. After tbe petition was served and before tbe appraisal now appealed from was made, tbe railroad company procured a title to tbe lands-under water in front of tbe Swain premises, by appraisal, under section 25 of chapter 140, Laws of 1850. Tbe service of tbe petition to acquire tbe lands under water .was not served upon Mr. Swain. Service was made only upon tbe proper State officers and tbe award was paid into tbe State treasury. Upon the bearing before tbe commissioners to appraise tbe upland, this appraisal of tbe lands under water was given in evidence and it is objected that Swain should have bad notice as a party interested in the lands-under water. We think tbe objection not a good one. Tbe argument is based upon tbe Revised Statute, which gives power to tbe commissioners of tbe land office to grant lands to owners of upland only and declaring that all other grants be void. (1R. S., 208, § 67.)
    “ Tbe section of tbe general railroad act above cited gives authority to railroad companies to acquire any lands belonging to tbe people-necessary for tbe purposes to their road “ by appraisal as in ease of lands owned by individuals.” The owner of tbe upland has no-interest in the land under water. (Gould v. H. If. M. Co., 6 N. Y., 522.) The power given by statute to the land office commissioner must be deemed to be modified by the act of 1850. ( Watson v. N. Y. Central, if N. Y., 157.) No notice, therefore, was required to be served on Swain to condemn the State lands because he had no interest in them and the law permitting their condemnation was legal.”

      Calvin Frost, for the railway company.

      Charles A. Jackson, for property owners.
   Opinion . by

Barnard, P. J.;

Dykman and Cullen, JJ., concurred.

Order- confirming report of commissioners affirmed, with' costs and disbursements.