text:
    Julius Robertson, Resp’t, v. The National Steamship Co., App’lt.

      (Court of Appeals,

      Filed October 10, 1893.)

    1. Contract&emdash;Breach&emdash;Deviation&emdash;Usage.
    Defendant undertook to transport certain goods from Havre to London and from there to New York by certain named vessels, the bill of lading exempting defendant from perils of “ land transit of whatsoever nature or kind.” The vessel named'from Havre was owned by the London & Southwestern Railroad Co., whose vessels only ran to Southampton, and the goods were taken thence by rail to London. No vessels of said railroad or defendant ran direct to London, and this mode of doing the business was well known and had continued for years. The goods in question were taken by that route, and on arrival at New York were found to be damaged. Held, that the contract of carriage must be deemed to have been made with reference to this custom,, and that there was no deviation which would make defendant liable as an insurer for the damage to the goods.
    2. SAME.
    The persons from whom defendant received the goods did not contract as agents or disclose any agency. Held, that defendant had the right to treat them as principals, but if they were in fact only agents for the person from whom plaintiff subsequently purchased the goods, he was affected by the same knowledge which they possessed as to such custom, and was bound thereby.
    (Gray, J., dissents.)
    Appeal from judgment of the New York superior court, general term, reversing judgment in favor of plaintiff, entered upon decision of a judge at special term.

      John Chetwood, for app’lt; Lewis Sanders, for resp’t.

       Reversing 40 St. Rep., 694.

   Earl, J.

In June, 1889, the defendant had a line of steamers running between London and New York. It received goods at Havre in France for transportation to New York by way of London. It transported such goods from Havre to Southampton on board of steamers, and from that place to London by railroad, where they were transshipped to its steamships, to be carried to New York. The steamships running between Havre and Southampton and the railroad from Southampton to London were owned and operated by the London k Southwestern Railroad Company. The agents representing the defendant at Havre, on the 8th of June, 1889, received from Isabella k Munster forty-five packages of merchandise and issued to them a bill of lading in which they acknowledged the receipt of the merchandise to be forwarded “ by the steamer Wolf to London, and to be there transshipped in and upon the steamship called Canada * * * lying in the port of London and bound for New York, with liberty to sail with or without pilots, to call at Havre, Queenstown, Southampton, Plymouth, or any other port or ports, and to tow and assist vessels in all situations and to all ports, and failing shipment by said steamer, then by following steamer of this line, for which the goods shall arrive in time.” The bill of lading contained stipulations exempting the defendant from various perils, and among them from perils of “land transit of whatsoever nature or kind.” Isabella & Munster appeared in the bill of lading as principals, not as agents. The merchandise, having been shipped on board the steamer Wolf was carried to Southampton and from thence by rail to London, where it was transshipped to the steamer Ganada, and upon its arrival in New York it was found to be damaged. The plaintiff, who was the consignee, and who had become the owner of the merchandise, brought this action to recover against the defendant for the damage done to it, and he recovered on the sole ground that the defendant became an insurer of the merchandise, because it did not transport it from Havre to London on the steamer Wolf and that thus there was a deviation from the route stipulated by the transportation by rail from Southampton.

It cannot be disputed that if there was such a deviation as is claimed the defendant became an insurer, and thus responsible for all loss and damage to the merchandise, even from unavoidable casualty. Maghee v. Camden & Amboy R. R. Co., 45 N. Y., 514.

But we do not think there was any deviation from the mode of transportation prescribed by the contract made between the parties. If we read the shipping bill alone it is not entirely certain that the merchandise was to be transported from Havre to London all the way by water on board the steamer. The language in the bill of lading is, “ to be forwarded by the steamer Wolf to London,” and in a real sense goods received on board the Wolf may be said to have been forwarded by that steamer to London by carrying them to Southampton, and then sending them by rail to London. The bill seems to provide for a carriage upon land, as it exempted the defendant from loss or injury from perils by land transportation of any kind, and the only land transportation upon this route was from Southampton to London. Thus it appears that the shippers and the defendant, when they made the contract, contemplated not only a carriage upon water, but upon land also.

But when the circumstances surrounding the making of the contract for the carriage are considered, it becomes entirely plain that the parties contemplated a contract for a carrriage by the Wolf to Southampton, and thence by rail to London. The London & Southwestern Railroad Company had a regular line of transportation from Havre to London, by steamer to Southampton and thence by rail to London, and for that purpose they had three vessels, making three trips weekly between those points, of which the Wolf was one. Those vessels never went further than Southampton, and the London & Southwestern Railroad Co. never carried any goods by water to London, and neither did the defendant, and the business had been carried on this way for many years, and the mode of doing it was notorious and well known. It was advertised in the newspapers at Havre, and was specified in way bills used in Havre by the agents of the London & Southwestern Railroad Company in the transaction of its business. The mode of doing the business was such, and so open and notorious,, that it must have been known generally at Havre, and particularly by persons there dealing with the agents of the defendant and of the London & Southwestern Railroad Company. It must be assumed that the contract between the parties was made with reference to this well-known usage, and it is binding upon the shippers just as if written in the bill of lading. In this particular case the proof of the usage does not contradict the bill of lading, but is simply explanatory of it. Hostetter v. Gray, 11 Fed. Rep., 181; Lowry v. Russell, 8 Pick., 360; Phillips on Ins. (5th ed.), § 980. ■ In Lowry v. Russell, it was held that a “ bill of lading, like other contracts, is to be construed according to the intention of the parties. Usage of trade is always presumed to be within the knowledge of the parties, and their contracts are supposed to be made with reference to it.”

But it is said that the owner of this merchandise was J. Kalmes, Jr., living at Hamburgh; that it does not appear that he made the contract at Havre; that he cannot be supposed to have known the usage, and that he cannot, therefore, be bound thereby, and that as to him it cannot be read into the contract of transportation. There are four complete answers to this position: (1) If Kalmes was the owner and shipper of this merchandise it was incumbent upon him to show that he was ignorant of this notorious and uniform usage. Johnson v. DePeyster, 50 N. Y., 666. (2) It does not appear that he owned this merchandise at the time the contract for transportation was made. In the bill of lading Isabella, & Munster are described as the shippers from whom the merchandise was received, and with whom the contract for its transportation was made. They did not contract as agents, or, so far as the record shows, disclose any agency. After the bill of lading was issued to them they indorsed it to another party, and that party indorsed it to Kalmes, and it appears by the invoice of the, goods obtained from the custom house and proved upon the trial., that the plaintiff bought the merchandise of Kalmes at Hamburgh,, on the 12th of June, four days after the bill of lading was issued to Isabella & Munster. It appears, therefore, prima facie that Isabella & Munster were the owners of the goods, and that Kalmes became the purchaser from them by indorsement and assignment of the bill of lading. (3) But if Isabella & Munster were not the owners they made the contract as principals, disclosing to the defendant no agency, and giving up no principal. Therefore, the defendant has the right to treat them as principals, and the contract, as to its force and effect, must be construed precisely as if they were principals and not agents. (4) But if we assume (which is the only other alternative) that they were the agents of Kalmes and made the contract really for his benefit, he being the owner of the merchandise, then he is affected by the same knowledge which they possessed, and if the law attributes knowledge of this usage to them, at the time they made the contract for their principal, then the same knowledge must be attributed to him, and binds him.

Therefore, in any view that can be taken of this case, if the parties when they entered into this contract of carriage did it with knowledge of this uniform and notorious usage, then the owner or owners of the merchandise, and the plaintiff, who claims under him or them, are bound by it, and there was no deviation from the contract which makes the defendant liable as insurer for the damage to the goods.

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

All concur, except Gray, J., dissenting.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    In the Matter of the Application of The City of Buffalo to Acquire Lands, etc., for Park Purposes.

      (Court of Appeals,

      Filed October 10, 1893.)

    1. Eminent domain—Jurisdiction of superior court of Buffalo.
    Chapter 567, Laws 1887, conferring jurisdiction upon the superior court of Buffalo to entertain proceedings for the ascertainment of damages for lands taken for public parks, is inoperative and void as to owners of lands situated outside of the city of Buffalo; the court being one of limited jurisdiction.
    2. Same—Constitutional law.
    The words “ such further civil and criminal jurisdiction as may he conferred hy law,” in the amendment of 1869 to the judiciary article of the constitution, have reference to the nature and form of the remedy and the cause of action, and do not authorize the legislature to extend the territory of a court of local jurisdiction.
    3. Same.
    If the legislature requires the resort to the agency of a court of record to determine the compensation to be made in the case of the taking of lands, it must designate a court which, with respect to the subject-matter and persons, is competent as possessing lawful jurisdiction over them.
    Appeal from order of the superior court of Buffalo, general term, reversing order of special term of that court confirming reports of commissioners in proceedings to ascertain the compensation to be paid to owners of lands in that city and the town of West Seneca, appropriated for park purposes, pursuant to chapter 557, Laws 1887.

      W. F. Mackey, for app’lt; John Cunneen, for resp’t.

       Affirming 46 St. Rep., 81.

   Gray, J.

This is an appeal from an order of the general term of the superior court of Buffalo, which reversed an order of the special term confirming the reports of commissioners in proceedings by the city of Buffalo to ascertain the compensation to be paid to the owners of lands within that city and the town of West Seneca, appropriated for park purposes, pursuant to chapter 557 of the Laws of 1887.

This respondent, Wasson, was a resident of the town of West Seneca, and when the motion for the confirmation came on to "be heard, he objected that the court was without jurisdiction. He says that the act of the legislature could not confer jurisdiction upon the superior court to determine the compensation to be made for taking land situate without the limits of the city of Buffalo.

In deciding the question thus raised, we must consider what were the provisions of the act, and whether, in attempting to vest in the superior court the power or jurisdiction to entertain the proceedings for the ascertainment of the compensation to be made to owners of lands outside of the city, the legislature was without authority, under the constitution, to do so. By the first section of chapter 557 of the Laws of 1887, the park commissioners of the city of Buffalo were authorized to select and locate such grounds in the thirteenth ward of the city, and in the town of West Seneca, adjoining that city, as might be, in their opinion, proper and desirable to be reserved for one or more public parks,, and to locate and lay approaches thereto and streets connecting with the existing system of public parks. The second section provided that, before the lands shall be taken, the common council of the city shall, by resolution, declare that the city has determined to appropriate the said lands for the purposes aforesaid. The same section provides for a notice to be published by the city of an application to the superior court of Buffalo for the appointment of three commissioners to ascertain and report the just compensation to be paid to any person owning or having an interest in the property. Subsequent provisions of the act prescribe the proceedings to be taken by the commissioners and such as should be had in the court named, upon the filing of their report, with respect to its confirmation, to the persons to whom the compensation is to be paid, and to cases where, there being adverse claimants to the money, a determination of their rights is to be made by the court.

The superior court of the city, upon which the act thus attempted to confer the jurisdiction to entertain these proceedings and to hear and determine the various questions which might arise, either upon the coming in of the commissioners’ report, or because of what had been done in the matter, was originally created as a local court of record, the jurisdiction of which was confined to the determination of “ local actions arising in said city and not elsewhere.” When first created by the legislature in 1889, it was as a court of civil jurisdiction, to be called the “Recorder’s Court of the city of Buffalo.”

The constitution of 1846 defined the powers and jurisdiction of the several courts, and confirmed and continued all local courts established in any city and village in the powers and jurisdictions then possessed by them. In 1854 the legislature changed the name of this court to the “ Superior Court of Buffalo,” and enlarged its jurisdiction so as to include, among others, actions or proceedings for the recovery of real property, or which affected, any rights or interest therein, provided the cause of action arose, or the subject thereof was situate in the city of Buffalo.

In 1869, by an amendment of the judiciary article of the Constitution, the superior court of Buffalo and the local courts in the state were continued “ with the powers and jurisdiction they then severally had and such further civil and criminal jurisdiction as may be conferred by law.” There was subsequent legislation respecting this court, but none which it becomes necessary to notice here. What has been described is sufficient for the questions to be discussed. It is certain that, outside of the act in question, under which the lands were appropriated, there can be found no law warranting the superior court of Buffalo in entertaining jurisdiction over the owner of lands situate outside of the limits of the city of Buffalo. Its jurisdiction was local and confined to the territorial limits of the city. If jurisdiction has been conferred upon it by the act of 1887 to entertain these proceedings and to determine all questions which may arise in their progress, then the exercise by the legislature of such a power must find its warrant either in the proposition that the appropriation and condemnation of lands for this public use were purely and continuously a legislative proceeding, for the conduct of which power was delegated to the court named, acting therein not judicially, but exercising, in a supervisory way, control over the legislative proceeding, or, otherwise, the proposition must be established that the power of the legislature to vest this extraterritorial jurisdiction in the court named, so as to extend it to and over the owners of lands outside of the city limits, was one which the constitutional amendment of 1869 authorized, when it continued local courts in the jurisdiction then possessed and “ such further civil and criminal jurisdiction as may be conferred by law."

The latter proposition may first be dismissed as untenable. It was really involved and decided in the decision of the case of Landers v. Staten Island R. R. Co., 53 N. Y., 450. It had been argued there that the legislature was authorized to enlarge the jurisdiction of the city court of Brooklyn, one of the local courts mentioned in the Constitution, so as to permit its process to extend beyond the city limits, or throughout the state, but this court held that the terms in which the authority for enlarging the jurisdiction of the court was given did not imply an authority to confer jurisdiction either of subjects, or causes of action, or persons, outside of the boundary lines of the city of Brooklyn, or in any respect to make it aught else than a local court as it was originally organized and as it was continued upon the adoption of the amended judiciary article. It was said that “the terms ‘civil’ and ‘ criminal,’ when used in reference to jurisdiction, or. judicial proceedings generally, had respect to the nature and form of the remedy and the cause of action, or occasion for instituting legal proceedings,” and, again, that “ when the constitution speaks of further civil and criminal jurisdiction, it has respect to the object of the jurisdiction and not to the territory' or persons of suitors.” The opinion, delivered by Judge Allen, very elaborately discussed the question of the power of the legislature to confer jurisdiction upon the constitutional local courts over causes of action originating outside of the territorial limits of the tribunal, and decided it adversely to that contention. Its reasoning is sufficient to dispose of the proposition here.

It is rather upon the first proposition that, as I understand his opinion, the learned judge at special term has rested his decision. It was his opinion that tire power exercised by the pourt was not judicial, but administrative; that there was no cause of action to adjudicate upon and no judicial proceeding was involved. He held that the court takes no property by force of the exercise of judicial power, and determines no right with respect to such taking, but exercises a “ supervisory control of a proceeding instituted by the sovereign power,” and performs such duties as are incidental to the taking. He holds that the court is not required to act judicially with respect to the proceedings called for by the act; and he also suggests that, if the judicial power be invoked, nevertheless, as the power was to be exercised in the process of a resumption of the possession of lands for public uses by the People, through its representatives in the legislature, it might be competently exercised pro tanto. The learned judge, apparently not looking beyond the aspect of the whole matter as one for the taking of lands for public purposes by the right of eminent domain, considers the successive steps, following upon the selection by the city and required to consummate the taking, as but parts of the legislative action, and the court, designated in the act, as acting incidentally in the matter as the mere hand, or administrator of the sovereign power. We are unable to agree with him in his view. The difficulty with it is that it incorrectly defines the legislative action. What the legislative bodj' has done is to delegate power to take lands to certain municipal officers, and to direct them to bring the proceedings for condemnation in a court where, as between the city and the landowners, the latter may have their day for the hearing of their objections. The lands may be regarded as appropriated to the public use described when the officers, vested with the power to select them, have performed that duty; but it is readily conceivable that questions other than such as relate to the regularity of procedure may arise touching the validity and the mode of the exercise of the power, or the rights of individuals, which the tribunal must pass upon with judicial force. The power of the tribunal, in such respects, must necessarily be independent and exercised judicially. The exercise of the undoubted right to appropriate private property to public uses, under that power of eminent domain which resides in the legislature, as representing the people of the state, is subject to certain ' limitations, imposed by the constitution and restricting the powers of the legislative body, and which operate to secure to the property owner the right to have all questions which are referred to a tribunal determined by a" tribunal which is competent, as possessing the vested jurisdiction over him and his estate. The power to select, or to locate the lands to be used, may be delegated ; but the proceedings which, are instituted thereupon in a court for the purpose of determining the question of just compensation, and for carrying into effect the legislative provisions, must, be conducted in a court the jurisdiction of which extends over the subject matter. The requirements of the constitution that no-person shall be deprived of property without due process of law, and that no private property shall be taken for public use without just compensation, mean and exact, that the proceedings to determine the just compensation to be paid to landowners shall be in a court of competent jurisdiction, whose process, reaching to the person, brings him into a forum where the question of compensation shall be duly adjudged. To delegate that determination to a local court possessing no extra-territorial jurisdiction in the case of non-residents was an unauthorized act It devolved upon it duties which were plainly judicial in their nature, and of a scope involving more than mere ministerial or administrative action. The constitution provides that the just compensation for the talcing of private property is to be made “by a jury, or by not less than three commissioners appointed by a court of record.”' It as obviously intended that the court of record shall be one of competent jurisdiction, as that, if the act had provided the determination should be by a jury, the jury should be a body composed as such bodies usually are by law.

If the legislature requires the resort to the agency of a court of record to determine the compensation to be made in the case of the taking of lands, it must designate a court which, with respect to the subject-matter and persons, is competent, as possessing lawful jurisdiction over them. That is the natural and proper sense-in which, the constitutional requirement as to a court of record should be read.

The difference of views in this case has arisen in the failure to-, observe the distinction between the exercise of the legislative power in the appropriation of the lands to a public use, and the proceedings which are taken subsequently, for the purpose of making compensation. There is no question about the power of the legislature to authorize such an appropriation, and to prescribe the manner in which the selection or location of lands may be-made; but for the determination of all questions as to which the owners have a right to be heard, it is a constitutional and, therefore, a fundamental requirement that they shall be remitted to a court within the jurisdiction of which they and their properties are. That the proceedings in question are judicial in their nature is a question about which we entertain no doubt. The questions which might be raised for determination, whether relating to the constitutionality of the act itself, or to the procedure prescribed, or to the value of the land and the award of compensation, its amount, and to whom due, are such, as are of judicial cognizance.

In the brief of the respondent’s counsel cases are cited to establish that proposition, which need not be particularly referred to here. In Monongahela Navigation Co. v. United States, 148 U. S., at p. 327, it was very recently held by the United States supreme court, with respect to certain legislation determining the measure of the compensation, that “ the legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.”

In Dillon on Municipal Corporations, §619, the same view is taken. It is the correct and sound view. When the legislature has authorized an appropriation of private property for, public purposes and remits the matter of compensation to the court, it intends that a proceeding judicial in its nature shall be set on foot, in which every question may be raised by the landowner, and there and then determined, which affects his rights.

What is the reason for requiring a notice to be given of the application to the court for a confirmation of the commissioners’ report, except that thereby an opportunity is afforded for parties interested in the matter to appear and to be heard in objection before a- tribunal which has been vested with authority to determine and to adjudge upon the questions and issues raised by their objections ? Any other view tends to a subversion of the constitutional rights of the landowner and deserves no encouragement from the courts. The conclusion we have reached is that, for the reasons stated, as to this respondent, chapter 557 of the Laws, of 1887 was inoperative and'void.

We have not overlooked the cases of the Matter of Church, 92 N. Y., 1, and of the Matter of Mayor of New York, 99 id., 569, referred to by the learned judge at special term. In the first case the present question was not decided and the second case is-not in point, inasmuch as the tribunal there appointing the commissioners was a court of general jurisdiction, possessing power and authority competent for the purpose.

The order of the general term should be affirmed, with costs-

All concur.


author: Maynard, J.

text:
    Abraham S. Friedland, Resp’t, v. Lewis Myers, App’lt.

      (Court of Appeals,

      Filed October 10, 1893.)

    1. Lease—Covenant of quiet enjoyment—Failure to give Possession-Damages.
    If property is leased for a special purpose, which is known to the lessor, and possession is refused because of a prior lease to another party, or of other fault of the lessor, the lessee may recover as damages for breach of the covenant for quiet enjoyment his actual and necessary expenses incurred in preparing for the occupation of the property in the manner contemplated by the parties, such as the construction of fixtures to render the premises tenantable for the purposes for which they were leased.
    2. Same—Loss on sale of perishable articles.
    But the lessor is not liable for a loss on a sale at auction of a quantity of perishable goods purchased by the lessee in anticipation of commencing business, where such prior purchase was not necessary, but could have-readily been made at the time of entering into occupation.
    Appeal from judgment of the supreme court, general term, first-department, affirming judgment in favor of plaintiff, entered on verdict

      Lewis Sanders, for app’lt; Benjamin N. Cardoza, for resp’t.

       Reversing 47 St. Rep., 52.

   Maynard, J.

By a written instrument, dated August 26, 1889, the defendant leased to the plaintiff the ground floor of Ho. 26 Canal street, Hew York city, for five years, commencing May 1, 1890.

The plaintiff was a druggist, then doing business in the vicinity, which he intended to dispose of and to re-establish himself in the same business upon the premises leased of the defendant. It was expressly stated that the building was-to be occupied by the plaintiff as a drug store, and there was the usual covenant for quiet enjoyment. When the plaintiff sought to take possession on May 1st, he was kept out by the tenant in possession, who claimed that his term had not expired, and that he was entitled to remain another year under an agreement with defendant which antedated the lease to plaintiff. The defendant immediately began summary proceedings in the district court to dispossess the occupant, and the plaintiff awaited their result. They were unsuccessful, and on May 27th it was adjudged that the occupant was rightfully in possession, because of the former lease to him. The plaintiff then rented another building for a store, into which he removed on June 10th. He has recovered in this action, as damages for a broach of the covenant of quiet enjoyment, a judgment for $1,328. The material facts are not disputed, and the only error assigned, upon this appeal, relates to the rule of damages applied by the trial court. Measured by the difference between the rent reserved and the actual value of the lease, no damages were proven, and there could have been but a nominal recovery on that account. But the plaintiff was permitted to prove, and the jury to consider, the expenditures and losses incurred in preparing to occupy the property and conduct his business there. A short time before the commencement of the stipulated term the plaintiff began preparations to fit the premises for use as a drug store. With the knowledge and assent of the defendant he employed an architect to make the drawings for the cases, counters and other necessary fixtures required in that business, and a cabinetmaker to construct them. The store which he subsequently rented was already furnished,.and the only use which he could make of the fixtures was to sell them at public auction at a net loss of $831. He purchased a stock of drugs to put in the store and was, as be claims, compelled to sell such as were perishable at a depreciation from the cost of $397, not including the proportional part of the auctioneer’s fees and commissions upon the sale, which may be fairly estimated at the sum of ten dollars. He had advanced $100 on account of rent, and these three matters make up the damages allowed.

Anciently, the rule was that, where the lessor was sued for a breach of a contract to give possession, the lessee could, ordinarily, recover only nominal damages and incidental expenses, but nothing for the value of the lease; but this rule was not made applicable to a case like the present, where he had covenanted to give possession when he must be deemed to have known that he had no authority to do so; and the lessor would then be held liable to the lessee for the loss of the bargain under rules analogous to those .applied in the sale of personal property, Mack v. Patchin, 42 N. Y., 171, and the damages in such cases are now usually measured by the difference between the rent reserved and the actual rental -value of the premises for the stipulated term. Dodds v. Hakes, 114 N. Y., 260; 23 St. Rep., 192. But other damages may also be recovered, provided they are proximate in effect, and are not .speculative or uncertain in character and were fairly within the contemplation of the parties when the lease was made, or might, have been foreseen as a consequence of a breach of its covenants. If the property is leased for a special purpose, which is know.n to the lessor, and possession is refused because of a prior lease to another party, or of other fault of the lessor, the lessee may recover .as damages his actual and necessary expenses incurred in preparing for the occupation of the property in the manner contemplated by the parties. Driggs v. Dwight, 17 Wend., 71; Giles v. O'Toole, 4 Barb., 261; Lawrence v. Wardwell, 6 id., 428 ; N. Y. Academy v. Hackett, 2 Hilt, 217; Adair v. Bogle, 20 Ia., 238; Hall v. Horton, 44 N. W. Rep., 569; Poyoskey v. Munkwitz, 68 Wis., 322; Jaques v. Millar, L. R., 6 Ch. D., 153; Hexter v. Knox, 63 N. Y., 563; Bernstein v. Meech, 130 id., 354; 41 St. Rep., 700.

Under this rule, we think the actual expenses paid or incurred by the plaintiff in the construction of the necessary fixtures to render the premises tenantable for the purposes for which they had been leased were'properly proven and submitted to the jury for their consideration in estimating the quantum of damages recoverable. The loss of these expenditures may fairly be considered as naturally arising from the default of the defendant according to the usual course of things. The plaintiff was restricted by the lease in the use of the premises, and he could not underlet without the written consent of the defendant. If the plaintiff had deferred the work of preparation for the occupancy of the property until possession had been obtained, some portion of the term would have been practically lost before the necessary equipment for his business could have been furnished and made available. The lessor must have known that a prudent business man would, so far as practicable, cause the necessary fixtures to be constructed and in readiness for use at the commencement of .the term, so that he might then promptly enter upon the successful prosecution of the business which it was the object of the lease to secure to him. But the evidence discloses that the defendant had actual knowledge that these expenditures were contemplated and encouraged the plaintiff to make them. An architect was employed by plaintiff to furnish the drawings and .specifications of .the fixtures, and the occupant of the store refused to allow him to make the required measurements for that purpose. The plaintiff informed the defendant of the situation and requested to know what he should do, saying that he did not wish to lose time after May 1st in procuring this work to be done, and stating the amount which he intended in this way to expend. The defendant then went with the plaintiff t» his own architect, who had the plans of the store, and directed, him to furnish plaintiff’s architect with these plans in order that he might make the plans for the fixtures, which was done. If the-plaintiff had then been notified by his lessor that possession of the demised premises could not be given as covenanted in the-lease, or that it was even doubtful whether it might be, it is not probable that these expenditures would have been incurred, or, if they had been, the loss could not have been imputed to the lessor’s broken covenant. The defendant must then have known-that if he failed to give possession, as agreed, the plaintiff might, suffer damage to the extent of the cost of the fixtures. As late-as April 14th the defendant made another written lease with the-plaintiff to rent him for the same term the second floor of the; building, to be used in connection with the drug store, and agreed to construct an iron stairway between the floors in the-rear of the store. The conduct of the defendant throughout was such as to invite these expenditures, and was equivalent to-an assurance to the plaintiff that they might be incurred with, safety.

' It need not be questioned that the defendant acted in good faith. He evidently misjudged as to the legal effect of the transaction with the occupant, and did not understand that it. created a tenancy for another year; but it was so adjudged in the proceedings brought to dispossess him, and the consequence of the defendant’s mistake must be borne by him, and cannot justly be visited upon the plaintiff.

But we fail to discover any sound principle upon which the defendant can be made responsible for the plaintiff’s loss upon the sale of his stock of drugs. The defendant could not have anticipated the purchase of a large invoice of perishable drugs by the plaintiff before the commencement of the term of the lease. This purchase in advance was not necessary in order that plaintiff might have the benefit of the full term in his business. The market, or place of purchase, was in the same city, and the plaintiff would have sustained no special loss if he had deferred their purchase until he had acquired possession. They could have been delivered on the same day when ordered, or the following day, in the usual course of the trade, and no material delay would have resulted. It would seem to have been the part of ordinary business prudence to have waited until he bad obtained control of a place where they could be stored and offered for sale. The plaintiff, unquestionably, had the right to purchase-his stock of goods before he was entitled to the occupation of the-store. But if he did, we think he assumed the risk of their depreciation in value, in case the defendant failed to give him possession. The rule might be different if he had been compelled to send to a distant market to make his purchases, and a long time-must intervene before they could be delivered.

The defendant’s exceptions are sufficient to present this question upon appeal. The evidence showing the purchase and depreciation in value-of the drugs was duly objected to when offered, and an exception taken. The court was requested to charge the-jury that the difference between the purchase price and that realized upon the sale was not the measure of plaintiff’s damages. This was refused, except as already charged, and the defendant excepted. The court had previously charged upon this point that if they found there was a breach of the covenant in the lease .it was their duty to consider the item of loss upon the sale of the drugs, and if they considered that the loss was really sustained by the plaintiff they might award him that amount as compensation. Both by the exception to the evidence and by the exception to the charge, we think the question is fairly presented for review.

The judgment and order must be reversed and a new trial granted, costs to abide the event, unless plaintiff stipulates, within thirty days after the filing .of the remittitur in the court below, to deduct from the judgment entered the sum of $407.-48, and interest from December 18, 1891, and five per cent extra allowance thereon ; and if the plaintiff so stipulates, then the judgment, as so modified, is affirmed, without costs to either party in this court.

All concur.


author: Earl, J.

text:
    The Northport Real Estate & Improvement Co., App’lt, v. Jeremiah Hendrickson, Resp’t.

      (Court of Appeals,

      Filed October 10, 1893.)

    Trespass—Adverse possession.
    The common source of title conveyed the premises in dispute and afterward conveyed the entire farm, of which they were a part, and this latter deed was first recorded. The premises in dispute were several times conveyed and became united with another lot, no fence being between them. Upon such other lot was a house occupied by the owner of the whole tract. Upon the premises in dispute is an orchard and a portion had been cultivated as a garden by defendant's predecessors, and wood had been taken therefrom for many years, and the owners of the farm had not entered upon or taken wood from it for twenty years. There was also a fence separating the piece from the remainder of the farm. Held, that the actual possession of that portion of the tract upon which the house stood and of the grounds about it, with the improvement of the orchard and the use of the woodland, gave defendant and those under whom he claimed the constructive possession of the remainder of the tract, and that adverse possession was made out.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of defendant.

      John L. Hill, for app’lt; Thomas Young, for resp’t.

       Affirming 47 St. Rep., 359.

   Earl, J.

This is an action of trespass commenced in April, 1891, to recover damages against the defendant for entering upon land claimed by the plaintiff, and cutting down and removing therefrom certain trees. Both parties claim title to the land on which the alleged trespass was committed. In 1839 Jesse Bunce owned a farm of about eighty acres of land, and he executed to Fannie and Amelia Bryan a deed of a piece from the southerly end of the farm, consisting of about one acre and a quarter, which deed was dated May 25, 1839, acknowledged November 7, 1839, and recorded January 31, 1853. The defendant has a chain of title to this piece, by written conveyances under the Bryans, the deed to him having been executed and recorded in June, 1872. Subsequently to the deed to the Bryans, Bunce gave a deed of the whole farm, including the parcel above mentioned, to Samuel P. Hart, which deed was dated November 2d and acknowledged and recorded December 27, 1839, and the plaintiff claims the land described in that deed under Hart by sundry mesne conveyances,, the deed to it having been executed and recorded in March, 1890. It thus appears that while the deed to the Bryans was dated before the deed to Hart, it was not acknowledged until four days after the deed to Hart was dated, and was not recorded until many years after Hart’s deed was recorded. It is, therefore, conceded that the plaintiff has a perfect record title to the piece of land in dispute, which must prevail over the claim of the defendant, but for the title of adverse possession which he claims to have established.

The sections of the Code applicable to this claim of adverse possession are as follows: Section 369. “ Where the occupant, or those under whom he claims, entered into the possession of the premises under claim of title exclusive of any other right, founding the.claim upon a written instrument, as being a conveyance of the premises in question * * *; and there has been a continued occupation and possession of the premises included in the instrument * * * or of some part thereof, for twenty years under the same claim, the premises so included are deemed to have been held adversely; except that where they consist of a tract divided into lots, the possession of one lot is not deemed the possession of any other lot.”

Section 370. “ For the purpose of constituting an adverse possession by a person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases:

“ 1. Where it has been usually cultivated or improved.
“ 2.- Where it has been protected by a substantial inclosure.
“ 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry or for the ordinary use of the occupant.
“ Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared, or not inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of time as the part improved and cultivated.”

The facts about the adverse possession are as follows: Before any of the dates above given the farm of eighty acres extended southerly to Main street, and the owner of the farm had sold off lots bounded southerly on that street, which lots were one hundred and fifty feet deep and fifty feet wide on the street, and those lots commencing on the westerly line of the farm were numbered 10, 11, 12 and 13. The first three lots and half of lot No. 13 are southerly of and adjoining to the piece in dispute. In 1854 the owners of lot 10 and the disputed piece conveyed both lots to the same person, and that person owned the two lots as one parcel of land until January 8, 1862, when lot No. 10 was conveyed by the owner of both lots to one Shadbolt, and the lots were thereafter owned separately until July 15, 1862, when both lots had been conveyed to John Seaton. After that both lots were continuously owned together, and were from time to time conveyed as a single tract of land until the conveyance to the defendant in 1872, and were always occupied and managed as a single tract. . During all the time there was a dwelling house upon lot No. 10, which was occupied by the owner of the whole tract, and there was no fence separating lot No. 10 from the disputed piece. At least forty years ago an orchard of about twelve apple trees was set out upon the southerly end of the disputed piece, which the owners of lot 10 have improved and cared for, and they have had the fruit thereof. They also had a chicken coop and hog pen on the southerly end of the piece, and for a short time a small garden in the northeasterly corner thereof. A fence was maintained on the northerly side of the piece, separating it from the balance of the eighty acres, and there was a fence at one time running the whole distance on the easterly line of the piece, and a fence for a small distance at the southerly end of the westerly line, and about one hundred feet of fence remained at the southerly end of the easterly line, the residue having rotted down and disappeared. The northerly part of the piece—that part northerly of the orchard—was woodland, generally covered with small forest trees. The owners of lot 10 annually cut wood from the woodland for use at the house, and also cut some trees for sale. The owners of the farm never entered upon or cut any wood or timber from the disputed piece during more than twenty years prior to the deed to the defendant, and never exercised any dominion over the same during that time. Upon these facts, which are not substantially disputed in the evidence, the defendant bases his claim to adverse possession of the disputed piece.

We think the whole tract covered by the deed to the defendant must, in considering the adverse possession, be taken as one single lot. It had, for nearly thirty years prior to the commencement of the action, been conveyed, held and treated as one lot. There was no division of the tract into lots, and it was described as a single tract or lot in the deeds of conveyance. The disputed piece and lot ten were originally part of the farm, and were separated therefrom by different conveyances. Must they forever, within the provisions of §§ 869 and 870, above set out, be treated as separate lots, or may they again become united ? Suppose a farmer buys a lot of one hundred acres for a farm and subsequently adds to his farm one hundred acres by purchases from adjoining lots, and then for long years holds, occupies and uses the two hundred acres as one farm; and suppose' further that it is conveyed from time to time as one farm, describing it as such, can it be doubted that, within the meaning of those sections, it is to be treated as a known farm and single lot, so that the actual possession of a part under a deed of the whole will give the claimant the constructive possession of the whole ? In the case supposed, the farm has ceased to be divided into lots, and lot divisions no longer exist. Suppose the owner of a large tract divides it into lots and sells the lots and subsequently repurchases all the lots, and then manages and controls it as one lot and conveys it as one lot, is it’ one lot or many lots within the meaning of those sections? We do not undertake to define the precise scope and meaning of the words “a known farm or a single lot,” found in § 370, but we are satisfied that the whole tract described in the deeds constituting the defendant’s chain of title is a single lot. This construction of the statute is different from that given in the court below, where it was held that the disputed piece must be recognized as a separate lot. But the case was submitted to the jury and disposed of in the court below upon a construction of the statute less favorable to the defendant than he was entitled to have adopted, and nothing stands in the way of now giving the statute its proper meaning and effect.

Therefore, the actual possession of that portion of the tract upon which the house stood, and of the grounds about it, with the improvement of the orchard and the use of the woodland, gave the defendant and those under whom he claimed the constructive possession of the remainder of the tract. The part not actually possessed was used with and was subservient to that so possessed, and thus the terms of the statute and the rules of law on the subject were satisfied. Miller v. Long Island R. R. Co., 71 N. Y., 380; Thompson v. Burhans, 79 id., 93.

But the plaintiff contends that it and its predecessors in the title of the farm were also in the constructive possession of the woodland when the alleged trespass was committed, and as it and they at the same time had the true title this constructive possession must prevail over that of the defendant and his predecessors who had no valid paper title; and his counsel cites to uphold this contention, Jackson v. Vermilyea, 6 Cow., 678; Simpson v. Downing, 23 Wend., 319; Finlay v. Cook, 54 Barb., 9; Hall v. Powell, 4 Serg. & R., 465, and other cases. But we think the principles laid down in these cases are not fully applicable to this case. Here for nearly thirty years before the plaintiff took its title to the farm the tract claimed by the defendant had been held, occupied and managed, as above stated, as a separate tract During all that time the owners of the farm never exercised any dominion over, or any acts of ownership upon the tract It was separated from the farm by a fence on the northerly side thereof, and also to some extent on the easterly and westerly sides thereof. The rights of the defendant and his predecessors in the title seem to have been acquiesced in, and they alone exercised dominion and acts of ownership over the tract Under such circumstances we cannot say that the constructive possession of the owners of the farm overlapped and destroyed the constructive possession by the defendant and his predecessors of the piece in fact separated from the farm; and we, therefore, think that the latter must be held to have been in the constructive possession of the whole of that piece, and that the former were disseized thereof.

This case is not free from doubt, but we think the best reasons can be assigned for the affirmance of the judgment, and it should, therefore, be affirmed.

All concur.


author: Peckham, J.

text:
    Tom L. Johnson et al., App’lts, v. The Atlantic Avenue Railroad Co., Resp’t.

      (Court of Appeals,

      Filed October 10, 1893.)

    Reference—Lone account—Breach of,contract.
    An action to recover unliquidated damages for a breach of a contract for the lease of a railroad franchise, by which the lessor was to procure the necessary consents to the building of the road, by reason of which the expenditures made by the lessees towards the construction of said road were rendered useless and the enterprise became abortive, is not one in which a reference can be compelled. Such expenditures, though represented by numerous vouchers, are nothing more than different items of alleged damage to be recovered of defendant by reason of its violation of the contract, and do not make the action one involving the examination of a long account, within the meaning of the statute as to references.
    Appeal from order of the supreme court, general term, second department, reversing order of special term denying defendant’s motion for an order of reference.
    Action to recover for breach of contract. Defendant leased to plaintiffs certain of its franchises, and the latter covenanted to construct thereunder and operate certain lines of railroad and pay a certain portion of the earnings to defendant. Defendant under the contract was to obtain the necessary consents to the construction and operation of said roads, which it failed to do.

      James C. Church, for app’lts; B. F. Tracy, for resp’t.

       Reversing 51 St. Rep., 188.

   Peckham, J.

The order of the general term in this case is, as we think, clearly wrong. The complaint shows that the action is one where a reference cannot be compelled. It is an action to recover from defendant unliquidated damages for its violation of the contract entered into by the parties thereto.

The complaint alleges that in order to enable plaintiffs to fulfill their contract it was necessary for them to expend large sums of money in the purchase of real estate, machinery, cars, horses, hiring employes and other expenses of construction for said railroad, and that by reason of defendant’s breach of the agreement and its failure to obtain the consents spoken of in the contract, the enterprise contemplated by the agreement became abortive, to the plaintiffs’ damage in the sum of $300,000. There is no statement in the complaint that these expenditures were made by them as the .agents of the defendant, nor is there anything therein from which it can be inferred that they were so made, or that the claim for damages is based upon the difference between the expenditures made by plaintiffs as agents of the defendant, and the amounts received by them as such agents upon the sale of any of the property thus purchased.

The complaint states, in substance, that these expenditures were made by the plaintiffs in preparation and as a means for the fulfillment of their obligations to build the road, and that such expenditures became useless by the violation of the contract by the defendant. Whether these various amounts so expended are valid claims and furnish the true rule of damages to be applied in this case against the defendant on account of its violation of the contract, need not now be decided or discussed. In no event are they anything more than different items of alleged damage, to be recovered from defendant by reason of its violation of the contract, and they do not make the action one involving the examination of a long account, as that expression is used in the statute as to references. Within that statute no case for a reference is made out. Camp v. Ingersoll, 86 N. Y., 433; Untermeyer v. Beinhauer, 105 id., 521; 8 St Rep., 1.

The order of the general term must be reversed and that of the special term affirmed, with costs to the plaintiffs in all courts.

All concur.


author: O’Brien, J.

text:
    In the Matter of the Application for a Peremptory Mandamus Against James H. Manning, Mayor of Albany.

      (Court of Appeals,

      Filed October 10, 1893.)

    Appeal—Will not be entertained by court oe appeals where nothin® CAN BE ACCOMPLISHED BY DECISION.
    An appeal from an order of general term, reversing order granting a mandamus to compel publication of list of inspectors and poll clerks, will not be entertained by the court of appeals where the election for which such officers were appointed has been held. That court will not entertain an appeal where it is plain that nothing can be accomplished by the decision.
    Appeal from order of the supreme court, general term, third department, reversing order of special term granting a peremptory mandamus to compel the mayor of Albany to publish the list of democratic inspectors and poll clerks appointed by the board of election commissioners of said city.

      Andrew Hamilton, for app’lt; John A. Delehanty, for resp’t.

       See 54 St. Rep., 562.

   O’Brien, J.

In this proceeding the special term made an order on the 6th of March, 1893, granting a peremptory writ of mandamus commanding James H. Manning, mayor of Albany, forthwith to cause to be published, as required by § 15 of chap. 171 of the Laws of 1892, in the official city papers, the lists of democratic inspectors of election and poll clerks appointed by the board of election commissioners of the city upon the resolution of Charles H. Armatage, the petitioner, and chairman of the board, to be held at a local election to be held in said city April 11, 1893, and for which registration of voters was to be made March 11, 1893. The mayor appealed from the order granting the writ, and the general term reversed it in September, 1893, and the petitioner has appealed to this court.

The statute requires that inspectors and poll clerks shall be appointed at each election. Their power to perform any official duties expires after the election for which the appointment is made has been held. Any decision, therefore, which we can make on this appeal can have no practical effect. If, for instance, we should reverse the order of the general term and affirm that of the special term, as we are asked -to do by the appellant, the latter order could not be enforced, as the election has been held and the time a'nd occasion for the inspectors to act has long since passed.

The appeal does not now present an actual litigation, but an abstract question. The practice of this court has been to refuse-to entertain appeals when it is plain that nothing can be accomplished by the decision. The inspectors and clerks selected for the election of April last cannot be appointed. There is no office to fill, and there are no duties for them to perform. To require now that their names be published would be to do a vain thing, and this court has uniformly dismissed the appeal when, from lapse of time, no decision could be made that would have any practical effect upon the controversy or the parties. It is said that the same question must arise in the appointment of inspectors and clerks to serve at the general election to be held in the state in November next. We have no judicial knowledge that the peculiar conditions which produced this controversy still exist,and even if we had it would scarcely be proper to construe the statute for the appointment of those officers in advance of any action of the appointing power. If the spirit of the statute was not carried out, either in the selection of the inspectors or the publication of their names in the present case, we cannot assume that the same cause will be pursued by both parties again. The demands of actual practical litigation are too pressing to permit the examination or discussion of academic questions, such as this case in its present situation presents. People ex rel., etc., v. Phillips, 67 N. Y., 582; People ex rel., etc., v. Walter, 68 id., 408; People ex rel., etc., v. Common Council of Troy, 82 id., 575; Bryant v. Thompson, 128 id., 426; 40 St. Rep, 439; Merrill on Mandamus, §§ 75, 77, 78.

The appeal should, therefore, be dismissed.

All concur.


author: O’Brien, J

text:
    Phoebe J. Hogan, App’lt, v. Daniel Kavanaugh et al., Resp'ts.

      (Court of Appeals,

      Filed October 10, 1893.)

    Appeal—Re-argument.
    Motion for reargument.

      Wm. H. Henderson, for app’lt; D. E. Powell and J. G. Record, for resp’ts.

       See 52 St. Rep., 884

   O’Brien, J

The motion for a re-argument is 'denied. The learned counsel for the appellant was understood at the argument of the cause to suggest a modification of the judgment. He now insists that the modification made is in conflict with the statutes authorizing sales of real estate for the payment of the debts of deceased persons in the surrogates’ courts. The decision is that the creditors before becoming entitled to any part of the proceeds of the sale must comply with these statutes. It may be difficult to carry the judgment, as modified, into effect, but we cannot see how it conflicts with any statutory requirement for the sale of real estate in such cases. If it is not complied with within the time embraced in the stay contemplated, then the power to sell in .virtue of the legacy becomes operative. The court intended to call attention to certain rules and principles which it was thought were ignored by both sides in this case, leaving it to the parties themselves or the courts below to apply them to the situation, and thus correct the error by stipulation, order or, otherwise as was deemed jnost convenient. When the case is remitted to the supreme court to carry the judgment into effect., it is assumed that power exists to adjust the rights of all the parties in accordance with the principles indicated. No other method has been suggésted tó obviate the difficulties that the parties have placed in their own way.

In regard to the question of costs we did not intend to interfere with the discretion exercised on that subject by the courts below. It may be that none of the parties should be awarded costs in the light of the decision of this court. But that question should be presented to the court in which the costs were allowed, and after hearing all parties it has the power to modify the decision on that subject in such manner as justice may require. The court has the power to strike out all allowances for costs included in the judgments rendered, but as disbursements to a considerable amount have been paid by someone, we think the question of modifying the award of costs should be disposed of by the courts below upon an application for that purpose.

Motion denied.

All concur.


author: Finch, J.

text:
    Henry G. Newhall, Resp’t, v. Christopher A. Wyatt, Def't. In the Matter of the Claim of James R. Clark, App’lt, v. C. A. Wyatt & Co.

      (Court of Appeals,

      Filed October 17, 1893.)

    Paktneeship—Use oe funds of new firm to pat debt of old—Set off.
    Appellant, wlio was a creditor of the firm of 0. A. Wyatt & Co., drew drafts upon it, which were accepted hy it, and discounted by certain bankers. Thereafter a new firm was formed under the same name, by taking in respondent as special partner. The drafts were paid out of funds of the new firm, but neither the bankers nor appellant knew of the existence of the new firm at that time. Held, that such payment did not make the appellant a debtor to the new firm so as to authorize a set oil of the amount so paid against a debt due him from the new firm.
    Appeal from order of the supreme court, general term, first department, affirming order overruling exceptions taken by James E. Clark, claimant, to the report of a referee appointed to hear certain disputed claims in proceedings for dissolution of a partnership and confirming said report.

      James Byrne, for app’lt; L. Laflin Kellogg, for resp’t.

       Reversing 52 St. Rep., 456.

   Finch, J.

In an action brought by the plaintiff for a dissolution of the partnership of C. A. Wyatt & Co. a receiver was appointed who advertised for the presentation of claims against the firm, as preliminary to the winding up of its affairs. James E. Clark appeared as one of the creditors, and presented a claim for something over $33,000. Upon the application of the receiver, .a referee was appointed to take evidence and pass upon this claim, and his report, awarding the creditor only about $3,000, has been confirmed by the court and approved by the general term on appeal. The creditor comes to this court complaining of the result, and insisting that his claim has been improperly reduced.

Most of the conclusions reached by the referee seem to us justified by the facts, but one of them, involving a serious amount, we deem erroneous and an injustice to the creditor. That error consists in charging Clark with the amount of five drafts drawn by him, amounting to nearly sevén thousand dollars, on the theory that he was debtor in that amount to the firm, and should allow it by way of set-off against his own demand. The facts underlying the question raised are, in substance, the following:

There were two firms bearing the same name of 0. A. Wyatt & Co. The first consisted of Wyatt alone, no one else having an interest with him. The second, formed later, was composed of Wyatt and the plaintiff, iNewuull, as special partner. Clark was a creditor of each firm, which we may distinguish as the old and the new. Before the formation of the latter, he drew five drafts upon the old firm for sums which were concededly due to him, payable to the order of Conway, Gordon & Garnett, bankers, which were accepted by C. A. Wyatt & Co., and discounted by the bankers, Clark remaining contingently liable as drawer, and receiving the proceeds. All this occurred before the formation of the new firm, and was, in every respect, a regular, usual and proper business transaction. These acceptances, the referee finds,, were paid by Wyatt out of the funds of the new firm. The appellant criticizes the finding, mainly because the bank account, of the new firm was a continuation of that of the old, without-break or change; but the proof so far warrants the finding as to make it conclusive upon this appeal. The payees of the draft had no reason to suspect the real source from which the money came. They had no knowledge of the existence of the second firm, and necessarily believed, as they had a right to believe, that the payment was made by the real debtors out of their own funds. They accepted the payment, surrendered up the drafts, and of course canceled and extinguished the contingent liability of the drawer. And yet upon this payment the referee grounds his conclusion that Clark thus became a debtor to the new firm, and that the amount of the drafts which, through the discount, went to his benefit should be applied as a set-off against an equal portion of the debt due him from the new firm.

It is undoubtedly the rule that one partner may not appropriate the property or money of the firm to the payment of his own debt without the consent of his copartners, and that if he does so the property misapplied may be followed and recovered until it reaches the hands of a bona fide purchaser for value. But I think it is equally -well settled that the payment of money to a creditor, who receives it in discharge of an existing debt innocently and without knowledge or means of knowledge that the debtor paying had no rightful ownership of the fund, is good and effectual, and does not subject the recipient to a recovery by the true owner. That doctrine was very explicitly asserted in Stephens v. Board of Education, 79 N. Y., 187. In that case one Gill, who was a member of the board of education of the city of Brooklyn, had converted to his own use the money of the board, and so became indebted to it for the amount abstracted. In order to procure the means of payment, Gill forged a mortgage upon the land of another and sold it to the plaintiff, receiving from him the proceeds and depositing them to his own credit. He then drew a check for the amount of his debt to the board, and with it paid that debt in full, the board receiving the money and expending it in its own business. When the plaintiff discovered tne forgery and fraud he sought to follow his own money into the hands of the board and recover it back, as in this case the new firm seeks to regain its money misappropriated by Wyatt from the hands of Clark as the beneficial recipient. This court held that there could be no such recovery. In the case cited the plaintiff contended that his money had been virtually stolen and could be followed and regained until it reached the hands of an innocent party giving at the time a valuable consideration therefor, and that the discharge of a precedent debt was insufficient to afford protection against the true owner. This court refused to accede to that doctrine, arguing that money has no ear-mark; that while the purchaser of a chattel or chose in action may generally ascertain the title of his vendor, that is not so as to money, the title to which in the possessor cannot usually be traced to its source; and that no case had been referred to in which the doctrine that an antecedent debt is not a sufficient consideration to cut off certain equities had been applied to money received in good faith and the ordinary course of business in payment of a debt, and that such a rule would obviously introduce confusion and danger, into all commercial dealings. This general doctrine was further illustrated and approved upon another condition of the facts in Southwick v. First National Bank of Memphis, 84 N. Y., 434, 435, and seems to me well founded both in justice and the necessities of business.

We may treat the case, therefore, irrespective of the fact that the money could not have been collected back from the bankers, who gave up their drafts, and never fixed the liability of the drawer on the faith of the payment made, and treat the case as if the money had been paid directly to Clark, upon the debt due him from the old firm. "His good faith cannot be questioned. He did not even know that a new firm bad bren formed, or that there could be any possible question as to the ownership of the moneys paid, and he may hold the payment made. A contrary rule would do him great injustice, and without the excuse of fault or negligence on his part. If his drafts had been unpaid, and his debt against the old firm had remained as desperate and valueless, he would not have extended further credit, and suffered an added debt of a large amount to have accumulated. He cannot be restored to his original position. There is no proof that the new firm was insolvent when the drafts were paid, and we fail to discover any ground on which the set-off can be properly allowed.

The order of the general term should be reversed, and the report of the referee and its confirmation by the special term be set aside, and the account restated, with costs of this appeal in this court and the general term.

All concur.


author: Per Curiam.

text:
    Albert E. Ogley, Resp’t, v. William E. Miles et al., App’lts.

      (Court of Appeals,

      Filed October 17, 1893.)

    Master and servant—Negligence.
    Where it appears in an action for injuries received while working at a machine, at which plaintiff claims that he was placed without information of the dangers to he apprehended therefrom, that the plaintiff has worked at similar machines long enough to know its nature and the dangers attending its use, and, therefore, was in the same position as to knowledge that he would have heen if defendant had iniormed him of its dangerous character, a motion for nonsuit should be granted.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

      Theodore Bacon, for app’lts; Thomas Raines, for resp’t.
   Per Curiam.

In this case we think the motion of the defendants for a non-suit should have been granted. At the time of the accident the plaintiff was nearly sixteen years of age. He was injured by a buzz saw which came in contact with his hand and cut off several of his fingers. He was engaged in sawing certain pieces of wood at defendants’ sash and blind factory, by means of that saw, and had been at that particular work at that place for a couple of days only. The claim is that he was placed at this work by defendants without any information having been given him, and while he was ignorant of the dangers to be apprehended from the machine, if not carefully and properly used.

It is unnecessary and would not be profitable to here recite the evidence in the case, but after a careful perusal of it we think it appears without contradiction and from the plaintiff’s own evidence that he knew the operations «of the machine; that he had had sufficient experience at other factories to enable him to, and that he did fully understand its "practical working, and he knew that he had to be careful in .regard to his hands coming in contact with the saw, for if they did, he knew they would be badly out. He had operated buzz «aws before he did this one; not for any length of time, but obviously and from his own testimony long enough to know the nature of the machine and the dangers attending its use. He was thus in the same position as to knowledge that he. would have been in had the defendants imparted to him oral information of the dangerous character of a buzz saw. Within the cases decided in this court, the plaintiff should have been non-suited. Hickey v. Taafe, 105 N. Y., 26; 6 St. Rep., 426; Buckley v. The Gutta Percha & Rubber Manufacturing Co., 113 N. Y., 540; 23 St. Rep., 618, and cases cited.

There is nothing in the evidence as to the size of the plaintiff at the time of the accident which we regard as material to the case.

We think he failed to make out a causé of action against defendants, and the judgment in his favor must, therefore, be reversed and a new trial-granted, with costs to abide the event.

All concur.


text:
    The Central National Bank of the City of New York, App’lt, v. Leonard D. White et al., Resp’ts.

      (Court of Appeals,

      Filed October 17, 1893.)

    Stocks—Dealings of cashier of bank.
    Plaintiff made purchases and sales of stocks and securities through de-° fendants as brokers,payments being made in cashier’s checks. The cashier subsequently absconded with all the securities of plaintiff’s customers," and it was obliged to make them good. It was then discovered that the cashier had been speculating on his own account. Defendants testified positively that they never knew or suspected that llie cashier was dealing for himself. A letter was put in evidence directed to the cashier personally,showing that defendants believed the customers of the bank to be speculating. Defendant’s accounts were first headed “W. H. S., Cashier,” then the word “Cashier” was omitted; then “W. H. S. stock account,” “W. H. S., gold account,” and “Central National Bank. Held, that the finding by the referee that the defendants had not dealt with the cashier as an individual was one of fact which this court was not at liberty to review.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered upon report of referee dismissing the complaint.

      George A. Strong, for app’lt; Walter Edwards, for resp’ts.

       Affirming- 47 St. Rep., 301.

   Finch, J.

The learned counsel for the appellant states the question of fact involved in this case, and which he claims has become a question of law, in these words, viz.: “ Did defendants know that Sandford was using cashier’s checks in his private transactions, or had they a right to believe that the transactions were for the bank?” Of course this inquiry is primarily a question of fact, upon which the finding of the referee against the plaintiff is beyond our review, unless it proves to have been made without any evidence tending to its support. The appellant, therefore, has undertaken the difficult task of demonstrating that there is no such evidence, so that the finding of the referee is an error of law for which we may reverse the judgment rendered. The learned counsel who took upon themselves this difficult duty do not at all disguise their consciousness of its character, but have made the effort with great care and ability, with a close analysis of the facts, and with a confidence that we on our part will examine the whole testimony and patiently consider the argument founded upon it before coming to a final conclusion. We have endeavored to do so, and have, carefully studied the confused and somewhat singular accounts of the defendants, upon the form of which the plaintiff mainly relies.

The defendants testify positively that they never knew or suspected that Sandford was dealing for himself, but always supposed and believed that the whole current of the account was with the plaintiff bank, through Sandford as its agent and representative. This evidence tends to raise an issue of fact, but is met by a reference to the admissions of the defendants that they personally conducted some of' the dealings; that they had never examined the accounts until after Sandford absconded, and did not-know the form in which they appeared upon their own books, and, therefore, that their clerks who conducted the dealings may have known that Sandford was acting for himself, in which event the defendants would be chargeable with their knowledge. But it is admitted that in the beginning of the transactions Sandford was acting for the bank, and it is not at all certain that the change which gradually marked the character of the account was such as to involve a necessary knowledge, either on the part of defendants or their subordinates, of a change in the principal with whom they were dealing. While it is true that the bank could not lawfully speculate for itself and risk capital and deposits in that sort of stock gambling which ruins so many both in character and fortune, yet it is equally true that its customers could do so if they pleased, and it was possible to believe that they bought upon margins through the agency of the bank, without a disclosure of their names ; and that the defendants assumed and believed such to be the fact is an inference more or less supported "by two considerations. If they believed or suspected that Sandford was using the money of the bank upon his own personal ventures, they knew him to be morally if not legally a thief, and consciously aided and abetted him in his deliberate and persistent robbery of those who trusted him, and we should not charge upon the defendants so grave a wrong unless upon evidence not capable of any other reasonable explanation. And, again, there is an item of proof which quite plainly indicates what the understanding of the brokers was. It is the letter of June 26, 1869, addressed to Sandford without adding his official title, a circumstance in other instances used to strengthen an inference that defendants were consciously dealing with Sand-ford personally. That letter tends to rebut such an inference, ft reads: “ Please send us a check for $10,000. We should like to keep a margin of two per cent, at least on your sales, as this seems to be the figure which your customers calculate to lose on their operations. We hope they will do better on this lot.” The letter assumes as a fact well understood that the bank, through Sandford, was acting for its customers, and that the losses, if any, would fall upon them, and is all the more significant, because addressed in form to Sandford personally.

But the appellant contends that any such explanation is precluded by the form of the accounts as they appear upon defendants’ books, and that these show conclusively the guilty knowledge charged. They certainly tend in that direction, but the natural inference to which they point is made more or less doubtful and uncertain by an examination of their items. The first account was headed “ W. H. Sandford, Cashier,” but, after one or more pages had been filled, the heading changed by the omission of the word “ cashier.” Then there came accounts headed “W. H. Sandford, stock account,” “W. H. Sandford, gold1 account,” and “ Central National Bank.” Why these separate accounts were kept, if all the dealings were with the bank, we cannot accurately know, since Austin, the book-keeper, who made the separation, for some reason influencing him, is dead, and we are left to inference and supposition. It is very forcibly argued on behalf of the plaintiff that the necessary and inevitable inference must be that, while some of the dealings were with the bank, and substantially those which represented cash purchases and sales, and so respected investments made or ended, yet those which were of a speculative character and were dealings on margins are significantly posted to Sandford personally, or in the stock or gold account. If that was invariably true, the inference asserted would be quite difficult to avoid, but the details of the account so unsettle and weaken the inference as to leave it doubtful whether it should be drawn at all.

The facts are, and the referee has so found, that purchases and sales which appear upon the book of original entry, and were ■entered at the moment of the transaction, as for and on account of Sandford, cashier, are quite commonly posted in the seemingly personal account of W. H. Sandford. .The referee says in his tenth requested finding: “In these various accounts were entered and posted items which, on the books of original entry, ■stood to the credit of or charged against W. H. Sandford, or W. H. Sandford, Cashier, or the Central National Bank, such names being used interchangeably and as of identical meaning and representing one and the same account.” Perhaps a better view of the situation will follow a few actual instances taken from the books. Thus, in the account headed “ Central National Bank,” very many of the debits and credits appear on the purchase and sales book as being the purchases and sales by W. H. Sandford. In the account headed “W. H. Sandford, Cashier,” appear credits which stood on the purchase and sales book, and even on the cash book, in the name of W. H. Sandford. And in the account of W. H. Sandford items which, on the purchase and sales book, and sometimes on the cash book, appeared as transactions ■of Sandford, cashier, are quite numerous; many specific examples of this sort of confusion are given in the testimony of one of the ■defendants. A single one will suffice. On the cash book, under date of April 17, 1868, is a debit to William H. Sandford of over $27,000, made up of several specific items, and there appears on the purchase and sales book an entry corresponding and identical, both in description and amount, showing the transaction to have been with William H. Sandford, cashier. While these things are true of the accounts to which I have referred, they do not seem to characterize the W. H. Sandford stock account. An abstract of that was put in evidence, and all the original as well as posted entries appear in the name of Sandford, without an official title. That fact weighs heavily -in favor of the plaintiff, but is to some extent weakened and rendered ambiguous by the further fact that the first item in it is the exact footing of the preceding account, which was at first Sandford, cashier, and then ■simply Sandford. Mo certain and necessary inference, sufficient to support a conclusion of law, can be based upon such ambiguous and indecisive facts.

Mow, I do not say what my own judgment would have been •as a referee on these facts; but I am convinced that we are not at all justified in reversing the finding made and its affirmance by the general term.

There is very much more .about the case, any adequate discussion of which would unduly prolong an opinion busy with facts only—such as the rendition of accounts to Sandford in his personal name, which might happen without special intention, and the suit for a balance against Sandford personally, which, however, was after he had absconded and the bank officers had notified the defendants of the real nature of Sandford’s action—but enough ■has been said to indicate in a general way the reasons why we deem the question debated essentially one of fact which we are not at liberty to review.

The judgment should be affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    The People, Resp’ts, v. John Delfino, App’lt.

      (Court of Appeals,

      Filed October 17, 1893.)

    Homicide—Evidence sufficient to show premeditation.
    Defendant while calling upon a married woman with a friend, after drinking a number of times, m the temporary absence of her husband made advances to her and on her repulsing him the friend heard two or three shots fired and got up and struggled with defendant, when the latter left the house, leaving his jfistol, hat and overcoat in the room, and did not go home, but was found in bed with his clothes on two or three miles distant. When arrested, he said his friend shot the woman. The woman died from blood poisoning occasioned by the wounds inflicted. Defendant testified that the shooting was accidental. Sold, that his story was incredible and the evidence justified the jury in convicting defendant- of murder in the first degree.
    Appeal from judgment of the Kings county oyer and terminer, ■convicting defendant of the crime of murder in the first degree.

      M. L. Towns and Edward Moran, for app’lt; James W. Ridgway, for resp’ts.
   Andrews, Ch. J.

This is an appeal from a conviction of murder in the first degree at the oyer and terminer of Kings county, April 25, 1893, Hon. Edgar hi. Cullen presiding.

The defendant was indicted and tried for the killing of Caroline Gessell by shooting, on the 27th day of December, 1892, at her residence in DeGraw street, Brooklyn, which resulted in her death on the 12th of January, 1893. The record is voluminous, but no claim, is made that any legal error was committed on the trial, or in any of the prior or subsequent proceedings. The only claim here made is that upon the evidence presented justice requires anew trial. It is conceded that the deceased died from a pistol shot discharged from a pistol owned by defendant, while in his hands, on .the evening of December 27, 1892. It was and is-claimed by the defendant that the shooting was accidental and not. deliberate and intentional, and this was the sole issue tried. The-only evidence tending to establish the defense of accidental shooting was that given by the defendant in his own behalf.

A brief reference to the evidence given in behalf of the People will show whether the verdict is justified. The defendant is an. Italian, about twenty-seven years of age, living, at the time of the homicide, with his wife and children in rooms in Brooklyn, a few blocks distant from 467 DeGraw street, where the deceased, Caroline Gessell, a young German woman about twenty-two years-old, resided with her husband and child. The two families had known each other for some time prior to the homicide, and seem to have visited together. The defendant immediately prior to-the homicide called frequently in the evening at the Gessell house. He was something of a musician and owned an accordeon. Hn took this with him to Gessell’s and played on it there, and occasionally there was dancing. The wife of the defendant was confined about ten days before the homicide. The defendant had been in the country about twelve years. At first he was a shoe-black, afterwards a barber, and finally he dealt in birds, which he-bought from Italian vessels arriving in New York. He had a friend in New York named Pegar, also an Italian, who with his wife resided in Elizabeth street. Mrs. Pegar had stood as godmother to one of the defendant’s children. The families of Pegar and the defendant visited together, and thrpugh the defendant the Pegars became acquainted also with the Gessells.

About two o’clock on the afternoon of December 27, 1892; the defendant went to the house of Pegar and invited Pegar and his wife to go to his house in Brooklyn to see the defendant’s wife' and baby. Mrs. Pegar could not go, and the defendant was invited to sit down to dinner, which he did, and he remained at Pegar’s house till about five o’clock, during which time he-drank wine several times. While at the table he exhibited a pistol.

It was claimed by the defendant on the trial, and in this his wife corroborated him, that he had owned the pistol several years and carried it for protection while on the docks engaged in his business. The pistol was examined by Pegar and other persons at the time it was exhibited at Pegar’s house, and Pegar thought it was not then loaded. The defendant urged Pegar to go with him to his house in Brooklyn, although Pegar’s wife could not go. He consented, and when the car reached a point near De Graw street the defendant wanted Pegar to go with him first to the Gessell house. Pegar told him he did not want to go there, but upon being urged by the defendant he consented, the defendant saying “Well, we go there. We go right away there: Then we go to my house.” When they came to the house the testimony ■of Pegar as to what occurred before entering it and immediately thereafter is as follows:

“ Q. He said ‘Maybe she is all alone,’ is that right? A. Yes, •sir. Q. Who said that to you ? A. Delfino, She has the door ■locked ; maybe she had the door locked.’ Q. Gro slowly, because we want to understand ; Maybe she has the door locked ?’ A. The door locked; yes, sir. Q. Well, what else, what next was -said? A. Well, I told him, ‘What is the matter with you, because she has got the door locked; ’ and he says, ‘Well, we had a little trouble last night, or the night before,’ something like that, he said, ‘ and they don’t want me to go in the house no more; ’ that is what he said. So, when I heard that, I didn’t want to go up at all. He said, ‘ Well, it don’t take long; maybe the husband is home.’ So I went up with him, and I was in the front of the ■door, and he knocked on the door behind my back. Q. Describe that to the jury; bow was that done ? A. When we went up and I was in front, he was behind me, and he knocked on the door behind my back Q. What did he say to you before you did that? A. Well, he says, ‘You give your name, and say who you are; then she open the door for you.’ So, I didn’t knock on the door; he knocked on the door behind my back Q. Over your shoulder ? A. Over my shoulder, knocked on the door, and she said, ‘ Who is there? ’ T said ‘ Mr. Pegar.’ She said, ‘You are Mr. Pegar? ’ I said, ‘Yes, sir.’ Then she opened the door; she had the door locked. Q. Was the door locked inside ? A. Yes, sir. Q. Bolted or locked ? A. Bolted, I heard the --. ■Q. When the door was opened what occurred ? A. And when the door was opened, she said, ‘ Hello, Mr. Pegar; where is Mrs. Pegar? ’ she looked for my wife; she thought my wife was along; and when she seen him in the door she began to scold. Q. Did she see Delfino behind you? A. Yes, sir. Q. When she see him-what did she say? A. Well, she began to scold. She says, 1 don’t want you to come in my house any more,’ she says, and he began to laugh. Q. He began to laugh? A. Yes, sir. Q. What did she next say? A. Well, so she says, Well, come on in.’ ‘Well, I think I will go home,’ I said. She says, ‘Come on in, Mr. Pegar; my husband will be in in about five minutes; he will be back because he went to get his pay; he didn’t work to-day.’ So I stepped in there for five minutes. So the husband come in after that. Q. During the time he was in there, was there any talk between Mrs. Gressell and Delfino ? A. Ho, she didn’t say a word any more. By the Court: Q. Did Delfino go in with you ? A. Delfino go in with me; yes, sir.”

It was between six and seven o’clock that the defendant and Pegar arrived at Gressell’s. The shooting occurred between eight and nine o’clock. Meanwhile beer was sent for several times, and all the parties drank, there being present during the evening only Gressell and his wife, Pegar and the defendant, and a small child of the Gressells. After a time Mrs. Gressell prepared supper, and Pegar and the defendant were invited to partake. The defendant declined, and the evidence discloses that the hospitality extended by the Gessells that evening to the defendant was not cordial, and that the defendant assumed a somewhat unfriendly attitude towards the family. During the evening, according to Pegar’s testimony, the defendant took the pistol from his overcoat pocket and laid it on the table. Mr. Gessell said to him: “You think because you have got a pistol in your pocket that you could do something, but I could catch you by the neck and throw you out of the window before you could use that pistol.” On one occasion Mrs. Gessell went for beer, and on another Pegar went for it. The defendant went out with Pegar, saying he wanted to get a pipe. Thej- both returned in a short time. After supper was through Pegar wanted to go, but proposed to treat, and Gessell, the husband of the deceased, went for the beer, Pegar insisting upon paying for it, which he did. While Gessel was gone for the beer the homicide occurred. Pegar was the only witness as to what occurred. He states that he was sitting on one side of the table, and the defendant on the other, and the deceased was sitting in a rocking chair near the door; that the defendant got up, having his overcoat under his arm, and advanced till he came in front of Mrs. Gessell and said to her: “ Mrs. Gessell, what do you think, what are you going to do; are you going to do what I told you ? ” She replied: “ No; ” and further said: “ Don’t bother me; go to your wife and children; I ain’t that kind; I am not the one you are- looking for.” Tbereüpon Pegar beard two or three shots fired, and he got up and had a struggle with the defendant.

The defendant soon left the house, leaving his pistol, hat and overcoat in the room. The pistol was a five-barrelled, 38-caliber “ American Bulldog,” and the shells therein were found to have been discharged. The defendant did not go to his home that night, but the next morning was found in a bed with his clothes on in a room two or three miles distant from his home, which had no furniture except a bed. He pretended to the officer who arrested him that he could not understand English, but afterwards, on being asked if he was the man who shot the woman on De-Graw street, he said: “ No, it was Pegar who shot the woman.” When arrested, his mustache, which he wore the day before, had been shaved off. The woman Gessell was found to be wounded in three places ; a ball had entered the left side near the tenth rib, one had penetrated the left thigh and the back of her left hand had been furrowed by a bullet.- None of the wounds were necessarily fatal, but blood poisoning supervened, of which she died. The evidence given on the part of the People justified the jury in convicting the° defendant of murder' in the first degree. The shots were discharged while the pistol was in his hands. His advances towards Mrs. Gessell had been repulsed. He entered the house after he had been requested not to go there again. Even if no murderous intent was then in his mind, the inference is very strong from Pegar’s evidence that it was formed at least when he approached the deceased, and she for a second time, as may be inferred, declined to entertain his proposals. He doubtless was, to some extent, influenced by drink, but not so as to deprive him of responsibility for his actions. The defendant, as before stated, testified that the shooting was accidental. His story was incredible and was disbelieved by the jury, and they accepted the testimony of Pegar, which was corroborated in many respects by other facts and by the conduct of the defendant

We perceive no reasons for interfering with the verdict of the jury.

The judgment should, therefore, be affirmed.

All concur.