author: Daniels, J.: Brady, P. J.:

text:
    WALTER LANGDON, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, Respondents.

      Hew York city — grant of lots under the waters of the Hudson river— when, the city cannot thereafter change the permanent whaef line to the detriment of its grantee.

    In 1810, the city of New York, acting in pursuance of the power conferred upon it by acts of the legislature passed in 1798 and 1807, conveyed to John Jacob Astor, who then owned a tract of land fronting upon the Hudson river, a parcel of land adjoining the same on the west and lying under the waters of the Hudson river. The land conveyed was described as running to “ the permanent line of West street,” and thence northerly along the said permanent line, etc. The deed contained a clause “ saving and reserving out of the several water lots and soil under water above mentioned so much of the same as will be necessary to make Washington street sixty feet wide and West street seventy feet wide.” The streets were to be made and constructed by the grantee, his heirs and assigns, when required so to do by the city, and when so constructed they and the wharves were to be by them kept in repair ahd “ continue to be And remain public streets or highways for the free and common use and passage of the inhabitants of the said city and all others passing through the same, and in like manner as the other public streets or wharves of the said city now are or lawfully ought to be.” The deed conveyed “all and singular the profits, advantages, emoluments, hereditaments and appurtenances unt® the said water lots and soil under water and premises belonging or in any wise appertaining,” and declared that “ the said party of the second part, his heirs and assigns, paying and performing, keeping and observing the several covenants and agreements herein mentioned and contained, on his and their part to he paid, kept and performed, shall and may lawfully, at all times hereafter, fully and freely have, use and enjoy, to his and their use, all and all manner- of wharfage, benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises, being of the width of one hundred and fifty feet.”
    In an action to recover damages for the action of the city authorities in erecting a structure on the west of the lot, extending 175 feet further into the river, thereby destroying the value of the right to collect wharfage conferred by the deed:

      Held, that the deed, when considered in the light of the surrounding circumstances, was intended to confer upon the grantee, his heirs and assigns, so long as he and they complied with the covenants and conditions therein contained, the permanent right and easement of collecting wharfage, and all the benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises conveyed, and that the city had no right to thereafter change the permanent wharf line and extend the same further out into the river, even though the title to the land under water to be covered by the extension had been vested in the city by an act of the legislature passed prior to the time of the making of the conveyance. (Brady, J., dissenting.)
    It was also declared to be the true intent and meaning of the grant that it, " or any words' or anything herein contained, shall not be deemed, construed or taken to be a covenant or covenants on the part and behalf of the said parties of the first part or their successors.”

      Held, that the effect of this clause would probably be, to require a provision in the deed, which was expressed in the form of a covenant, to be construed as a grant.
    Appeal from a judgment dismissing the complaint, entered upon a trial at the Special Term.

      Charles F. Southma/yd and R. 8. Emmett, for the appellant.'

      James C. Carter, for the respondents.
   Daniels, J.:

The object of this action was somewhat diversified, as it was presented by the complaint, but as the facts now exist it is substantially to recover the value of a servitude or right to collect wharfage on so much of the westerly line of West street, as was included in a deed executed by the mayor, etc., of the city of New York, to John Jacob Astor, on the 1st of August, 1810. The plaintiff in the action has succeeded to Astor’s rights and title under the deed, ai:d was vested with them at the time when the acts were performed by the dock department of the- city, by which the right to collect wharfage upon this line has since been subverted and defeated. By these acts the westerly water line of the city, in the vicinity of this land, has been extended 175 feet further into the Hudson river, by a structure; builded upon the east, upon the west line of West street. This structure is fixed and permanent in its character, and it has rendered the westerly side of West street entirely useless for the purposes of the servitude, or right to récéive wharfage for its use by vessels navigating the river. The plaintiff, consequently, is entitled to maintain his action for the value of the right or privilege of which he has been so deprived, if the title created by the deed to Asbor is sufficient for that purpose. At the time when it was made, the grantee in it was the owner and proprietor of the lands above high-water mark, adjacent to the land since acquired by the plaintiff, and the deed itself was apparently executed to him conformably to the policy existing in the State, to give such proprietors the pre-emptive right to acquire the title to land under water, situated directly in front of and adjoining their property. This deed, by its terms, seems to have been intended as a permanent-disposition of the property described in it. It was, in fact, a perpetual lease, by which an annual rent was reserved on account of the conveyance made of the property, and upon the same consideration other burdens were imposed upon the grantee, his heirs and assigns. The property entering directly into the consideration and determination of this controversy is that 'which was secondly described in the deed. It commenced at a point in the northerly line of King street, ninety-eight feet westerly from the north-westerly corner of the intersection of King and Greenwich streets at high-water mark. The line then proceeded westerly along the northerly line of King street 428 feet, to what is designated in the deed as “the permanent litie of West street;” thence northerly along said permanent line about 150 feet to the line of land granted “ etc., to William Bruce.” This land was then entirely under the high water of the Hudson river, and the design of the conveyance was to vest the title to it in the grantee, so far as it should not be included within the bounds of projected streets called Washington street, sixty feet wide, and West street, seventy feet wide. As to the land required for the construction of these two streets, the conveyance was qualified by the following clause: “ Saving and reserving nevertheless, out of the several water lots and soil under water above mentioned, so much of the same as will be necessary to make Washington street sixty feet wide and West street seventy feet wide; the said streets to be extended and continued through the premises aforesaid as the same shall be directed by the said parties of the first part,” etc. These streets were to be made and constructed by “ the grantee, his heirs or assigns ” “ at his and their own proper cost and charges within three months next after he or they shall be thereunto required by the said party of the first part.” And' he and they, or- some or one of them ” (it was declared), shall and will from time to time and at all times forever hereafter, at his and their own proper cost and charges, pave, uphold and keep in good repair the said wharves and streets above mentioned, and that the said wharves or streets shall forever thereafter continue to be and remain public streets or highways for the free and common use and passage of the inhabitants of the said city, and all others passing through the same and in like manner as the other public streets or wharves of' the said city now are or lawfully ought to be.”

It has been claimed on behalf of the defendants, that the saving and reserving of the soil under water for these streets, so far created an exception in favor of the city, and that probably was the intention which prompted their use. For while the term “reserving” would not be attended with that result, the addition of the word “saving” requires a broader construction to be given to the phrase made use of, for that term, by its ordinary signification, is the equivalent of the word “ excepting.” But if this be not the true construction which should be- given to this clause, no substantial change will result from it in the right of the plaintiff in the case; for whether it operated as a simple reservation of the right to use the lands devoted to the streets only for the purpose of such streets, or an exception of the land itself was also made by means of it, it was still the' intention of the instrument to confer upon the grantee, his heirs and assigns, the right to an important privilege or servitude upon the westerly bounds of the land over which West street was designed to be constructed. For as to the land described “all and singular the profits, advantages, emoluments, hereditaments and appurtenances, unto the said water lots and soil under water and premises belonging, or in any wise appertaining,” were granted by means of the deed. And it was further declared that “ the said party of the second part, his heirs and assigns, paying and performing, keeping and observing the several covenants and agreements herein mentioned and contained, on his and their part to be paid, kept and performed, shall and may lawfully at all times hereafter, fully and freely have, use and enjoy, to his and their use, all and all manner of wharfage, benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises, being of the width of one hundred and fifty feet.” It was the clear and unequivocal design of the conveyance that these rights and privileges should pass by means of its terms, subject, of course, to the conditions expressed in or to be implied from the other portions of the instrument, and whether the land within the bounds of these streets was saved and excepted, or a reservation only of the privilege of using it for streets was what was secured by the deed, such rights and privileges were still completely and effectually provided for the grantee; his heirs and assigns. The effect of.the language used to accomplish that result will not be changed, even though it should be construed to rest in covenant on the part of the grantor. But that such a construction should be placed upon it appears to be in conflict with one of the concluding portions of the conveyance. For it was there declared to be its true intent and meaning “ that this present grant, or any words, or anything herein contained shall not be deeméd, construed or taken to be a covenant or covenants on the part and behalf of the said parties of the first part or their successors.” And the effect of this restriction would probably be to require the preceding clauses, which have already been mentioned, to be construed as grants, even though one of them may have been expressed in the form of a covenant. For it is the duty of the court to carry into effect the intention of the parties, as that may have been expressed upon this subject. It is not requisite that the term “grant” should be made use of for the purpose of creating- such a^onveyance, but it is sufficient that it shall appear to have been the intention of the parties in fact to grant the interest,' title or privilege claimed to have been conveyed. (4 Kent [7th ed.], 546; Shove v. Pinkle, 5 Term, 124; Mack v. Patchim, 42 N. Y., 167.) And such a grant was a proper form of conveyance to vest in the grantee incorporeal hereditaments, such as reversions, rents and services, not being of a. tangible nature and existing only in contemplation of law. (4 Kent, 544.) .

And this was regarded to be the nature of such an instrument in Boreel v. Mayor, etc. (2 Sandf., 559). This case it is true has, to a certain extent, been since overruled, but it was not upon this point, the soundness of which has never been questioned.

The terms by which this privilege or servitude was created and secured to the grantee of freely having for his own use, or that of his heirs or assigns, the wharfage, benefits and advantages growing, accruing or arising by or from the wharf or wharves to be erected on the west end of the premises, was declared to be one of a permanent and continuing character, for it was in terms stated that he or they, on the condition only of the performance of the covenants and agreements resting upon them, should at all times thereafter have such wharfage, benefits and advantages. No limitation in point of time as to the extent of this right was either expressed in, or is to be implied by construction from the terms by which it was created. And the other provisions and conditions contained in the deed contemplate the same unlimited duration, and that the right was intended to be granted in perpetuity. Indeed, the conveyance in all the arrangements provided for by it, and all the structures to be erected and maintained under it, discloses only the intention to create perpetual rights and secure the observance of like obligations. The title to the land not affected by the saving and reservation for the two streets was practically conveyed in fee. So were the privileges accompanying it, for both were in terms vested in the grantee, his heirs and assigns, for their proper use, benefit and behoof forever; and they were, for the same indefinite period of time, to uphold and keep such streets and wharves in good order and repair; and these wharves, as well as the streets, were to continue and remain public streets or highways of the city, the same as the other public wharves or streets then were or lawfully ought to be. That these rights, privileges and obligations were intended to be permanent in their nature is further evident from the provisions of the deed relating. to the construction of the pier on the continuation of the north line of King street, for this was the only practical qualification attached to the maintenance of the westerly line of West street as a perpetual wharf; the wharfage from which was secured to the grantee in the deed, his heirs and assigns. A further confirmation of the design to create perpetual rights and privileges by. this deed is found in the circumstance that the westerly line of the property described in it is mentioned as “ the permanent line of West street.” The southerly line of the land was projected in terms to this designated “ permanent line,” , and the northerly line is in similar terms carried along such permanent line, and the westerly wharf, of the width of thirty feet, to be constructed in King street, was to extend to the same permanent line. What could have been the object of designating this as a permanent line, if it was not intended to be the exterior water line of the city, it is not easy to perceive, for the westerly line of west street, as a line, could be no more permanent in its nature than the easterly line, or either of the lines of Washington street, and neither 'could be any more properly designated as permanent lines than the other, unless something more than the line itself, as that of a street, was intended to be understood. All lines of streets, when no other intention concerning them can be shown, are intended to be permanent, and it is not necessary that such an intention should be expressed in order to render them so. This phrase was clearly unnecessary for that purpose, and from the manner in which it has been used in the deed, it is not to be presumed that it was not employed without the design of securing to it some appropriate office in the instrument beyond that of a mere designation of the westerly line of West street. The more probable intention to be derived, not only from' the phrase itself, but from the other clauses in the deed indicating that the westerly line of the street was to be perpetually maintained as a wharf, is that it was intended to be understood as designating the exterior water line of this portion of the city. The land intended to be affected by the conveyance is also stated to be shown by the map or plan annexed to it, and on this map or plan this line is not only in terms again designated as the permanent line, but beyond that no possible structure is in any form shown to have been contemplated in the waters of the Hudson river beyond this line, except the pier extending from it on the continuation of the north line of King street. Besides that, the yearly rent required to be paid by the grantee or his heirs for these rights and privileges is in terms reserved forever.

It is clear from these clauses, grants, conditions, obligations and phrases, that what the parties designed by this instrument was that the rights, privileges and interests shall be as continuous as the conditions to which they were in terms subjected, and the obligations imposed upon the grantee, his heirs and assigns, which were declared to be extended forever, or for all time thereafter, and thereby precluding all expectation that the water front of the city at this point would ever afterwards be changed.

The obligation to construct a wharf on the westerly line of West street, and at all times forever afterwards to uphold and keep- it in good order and repair, and the right at all times to have, use and enjoy the wharfage from the wharf or wharves erected on the west end of the premises conveyed, was clearly and specifically provided for in direct terms, which cannot be subordinated to any condition or contingency not expressed or employed in the deed. It has, on the contrary, been framed in such language as preclude all reasonable grounds for supposing that it was contemplated by the parties that this westerly line would ever, under any circumstances, be afterwards in any manner changed in its location. The inference, on the other hand, is that the line designated was intended and understood to be the permanently fixed water line of this part of the city, for in no other manner could' these rights, privileges and obligations be attached to it as they have been provided for in the deed, and the line itself could not otherwise, with any propriety of language, be mentioned as the permanent line.

The circumstances attending the making and execution of this deed are consistent with no other just construction of its terms than that which has already been indicated. Before it was executed, a plan had apparently been devised for locating and designating the permanent water line of the city. To promote that object, an ordinance was passed by the common council in February, 1796. That is stated to have proceeded upon the report of the .street committee to the board, of “ a description from actual survey made of an outer street along the west side of the city, which is to be of the breadth of seventy feet, and beyond which no grants ought to be made and no buildings erected.” The report appears to have been read and approved, and the statement of its effect was followed by the courses and directions of the proposed street. A difficulty probably arose in the way of carrying this ordinance into effect, for in 1798 the common council presented a petition to the legislature for the passage of an act securing to the city authority to carry the same design into execution. In that petition, it was stated that your petitioners have lately directed a permanent street, of seventy feet wide, to be laid out' and completed at and on the extremity of their grants already made and hereafter to be made to individuals on the East river, called South street, and on the North or Hudson river, called West street, south and west of which streets no buildings of any description are to be erected, so that vessels lying at the wharves may be secure from fires.” It was further stated that the preceding grants extended to unequal distances into both rivers, occasioning difficulties in making the permanent streets mentioned regular, although the petitioners were willing, gratuitously, to give the soil under the water on which such streets were to be made. It was further represented by the petitioners “ that part of their plan was to extend piers at right angles from the said permanent streets-into the river, at proper distances from each other,” with suitable bridges for the accommodation of sea vessels, and so constructed as to admit the currents of both ebb and flood in both rivers; that doubts had arisen whether they would “ be authorized to sink and build those-piers at the expense of the chy and receive the wharfage, without incurring a breach of the conditions and covenants contained in their grants to individuals.”- This petition was followed by the passage of an act in 1798 (ch. 80), in which its substance was recited, which it is not necessary now to repeat, and autnority was, in terms, thereby conferred upon the mayor, etc., of, the city, “ to lay out, according to such plans as they shall or may agree upon or determine, such streets or wharves as hereinbefore are mentioned, in front of those parts of the said city which adjoin to the said rivers, and of such extent along those rivers respectively, as they may think proper,” and “ to lengthen and extend the said streets or wharves.” And beyond the construction of the streets or wharves, they were also authorized “ to direct piers to be sunk and completed at such distances and in such manner as they, in their discretion, shall think proper, in front of the said streets or wharves,” “to be connected with the same by bridges.”

This ordinance of the common council, together with their petition and the act in terms following it, clearly contemplated the streets which were provided for as permanent water lines of the city, which were to be no- otherwise interfered with or in any form defaced or obstructed than by the construction of the piers extending from them further into the rivers. If any doubt could possibly arise as to this being the intention from the general phraseology made use of, it would be removed by the statement in the report adopted by the common council that no grants ought to be made and ho buildings erected beyond the outer line of the streets to be created, and the enactment of similar import in the seventh section of the act of 1798, by which it was declared “ that no buildings of any kind or description whatsoever (other than the said pier and bridges) shall at any time hereafter be erected upon the said streets or wharves, or between them respectively and the rivers to which they shall front and adjoin.” The improvements which were so provided for were required either to be made by the persons owning the- lots lying adjacent to them, or if they failed to do that, then by the mayor, etc., of the city, at the expense of such owners.

The entire theory pervading this ordinance, petition and legislative act, is the same as.that which was incorporated in this deed. The latter was an execution and embodiment of the authority which the legislature had provided should be enjoyed and exercised by the grantors in the instrument, and they both, in all their parts, clearly confirm the construction already given to the deed that the permanent line mentioned in it was designed to be the exterior or outer water line of the city, and that whatever might be appropriately performed to carry this plan into effect, would be permanent and perpetual in its -nature.

The act of 1807 (chap. 115), transferring the title to 400 feet of the land under water to the city bears no further upon the effect of this conveyance than merely to supply, if that was necessary at all after the passage of the act of 1798, the title to the property upon which it would legally be made operative. For nothing was contained in this act of 1807, requiring the exterior water line of the city to be projected farther than it might be by complying with the terms and following the intentions of the act of 1798.

The structure placed in front of the westerly line of "West street was not one of-the piers which, by this act and the terms of the deed, could be extended from that line into the river, but it was compact in its character, rendering the bulkhead resting on that line entirely useless as a source of revenue or wharfage to the plaintiff in the action, for it extinguished all possibility of using it in any manner for securing emoluments of that nature. And if the deed was, as it has been held to be, a perpetual grant of the servitude or privileges so destroyed, it would follow, necessarily, that the plaintiff should be compensated for the loss sustained by him in consequence of its destruction.

This case differs very essentially both in the language employed in the deed and the circumstances attending its execution from those relied upon in support of the judgment. In that of Whitney v. Mayor, etc. (6 Abb. N. C., 337, note), the grant was made when it was held to have been “ apparent that at some future period it might be expedient, if not absolutely necessary, to use the property outside of the wharf. It was in reference to this state of things that the covenant was made,” and for that reason it was considered that the covenant securing the wharfage to 'the grantees, their heirs and assigns, was dependent upon the possible future action of the authorities of the city. The same view was followed in the case of Fv/rman v. Mayor, etc. (5 Sandf., 16); for while it was intimated in that case that the act of 1798 was designed to create an exterior water line the plaintiff still failed, because it was considered that his right to wharfage was dependent upon the future adoption and settlement of such a permanent water line for the city. Upon that subject it was said that “ the grant extended only to Front street. It was perfectly well known to all the parties at the time that the permanent line extended further into the river, and that the charter contemplated the building of South street at the extremity of the line whenever the wants of the public demanded it. Now, the covenant in the grant is not that the grantee shall always be entitled to wharfage, but merely to the wharfage to accrue from Front street. Of course when Front street was no longer an exterior street no wharfage will accrue from it, and the covenant would not be violated. It would only be rendered inoperative by reason of an event contemplated by both parties when the covenant was made.” (Id., 44.) And this decision was affirmed by the Court of Appeals, where it was held that Furman, by his grant, “took nothing but what was included within the described boundaries of his deed, and there is no covenant which prevents the corporation from using in such way as they please the residue of the land remaining in them and extending several hundred feet further into the river. With respect to such land they have the same rights as any other owners.” (Furman v. Mayor, 10 N. Y., 568, 569.)

In Marshall v. Guion (1 Kern., 461) this point was not presented. Its decision depended wholly upon the right to wharfage at 'the extreme water line of a wharf which had been constructed by the city in front of that to which alone the plaintiff had title; and because of that circumstance it was held that he had no right to the wharfage, and the court expressly disclaimed all intention of considering or determining the controlling point now in controversy in this case. The two preceding cases, in which the right of the city to extend its wharves, notwithstanding its grants, were disposed of entirely upon the circumstance that the grants were required, by the facts under which they were given, to be so construed as to be subordinated to the future right of the public authorities to extend the water lines of the city beyond the limits of the grants made. They were not designed, and were not stated, to be permanent or final in this respect, and the parties receiving them did so with that understanding. While, in the present case, both the conveyance itself and the act under whose authority it appears to have been given contemplated that the westerly line of the streets provided for should be permanent and final as the water lines of the city.

This deed was an entirely proper exercise of the authority which the municipal government of the city had received from the legislature, for the entire scope and purpose of the act of 1798 was that the improvements provided for by it should he made at the expense of and for the benefit of the adjacent proprietors, with the single exception of the piers extending from the permanent line into the river. If such owners failed to make the improvements as they should be directed by the city authorities to do so, then the latter were authorized to make them and charge the expense against, and collect it from the former, and it was accordingly provided that the streets and wharves to be so filled up should become the property of the owners of the intermediate spaces of ground, in fee simple. As to the piers themselves, extending from the permanent line into the river, and which would occupy but small divisions of that line, if such proprietors neglected or refused to make them, then that might be done by the mayor, etc., of the city, who were afterwards entitled on that account to wharfage for all vessels that might, at any time or times, lie at or be fastened to such piers. This was the only case in which the proprietors of the adjacent lots could be deprived of the benefits of any part of the improvement, and it is the only instance in which they were even contingently excluded from the right to wharfage. The presumption therefore arises, that, as to the other improvements which were to be made at their expense, their right to collect wharfage for the use of the wharf standing on the permanent or exterior line, was intended to-be conceded. The deed, as it was executed, was no broader in these respects than the law allowing it to be made. For that reason it was not obnoxious to anything contained in the restriction that its-true intent and meaning, as that was declared, was only to pass the estate, right, title and interest which the municipal authorities had, or lawfully might claim, by virtue of their several charters. For they did have, and lawfully had the right to claim all the proprietary interests, privileges and servitudes which were granted by the conveyance, and the grantee, his heirs and assigns were, in terms, protected against any obstruction to their enjoyment by the provision contained in the seventh section of the act of 1798, declaring that no building of any kind or description whatsoever, except the piers and their bridges should, at any time thereafter, be erected between the said streets, or wharves, and the rivers to which they respectively should front and adjoin. The extension of this wharf, made by the department of docks of the city, was within the declared restraint of this section of the statute, for it was a building other than the piers and bridges mentioned in the act, placed between the wharf itself and the river; It not only violated the terms of the grant, but in addition to that, exceeded the prescribed bounds'of this preceding act of the legislature. And within the law, as it was stated to be in Van Zandt v. Mayor, etc. (8 Bos., 375), that entitled the plaintiff to redress, because of the rights he was deprived of through the intervention of this structure.

The right granted to the grantee in the deed, and to his heirs and assigns, to collect wharfage for the use of the wharf standing on the westerly line of "West street, was of a proprietary nature (Smith v. Mayor, etc., 68 N. Y., 552), and the plaintiff, as the person succeeding to it, could only be deprived of it by a compliance with the provision of the Constitution, in effect declaring that private property should only be taken for public use, by making for it a just compensation. (Const. State N. Y., art. 1, § 6.) By virtue of that authority, and that alone, the legislature had the power to provide for divesting the plaintiff of this servitude or privilege, by which he had become entitled to the perpetual'right to wharfage, for the use of the exterior line of the wharf mentioned in the deed, whenever that might be deemed proper for the promotion of the public interests by the extension of the water front of the city. But his right to this wharfage under this deed, and the exercise of this authority over it, was contingent only upon the circumstance that he should be compensated for its value when he was deprived of it. Under that restriction it was entirely at the disposal of the power of the legislature. (Brooklyn Park Com'rs v. Armstrong, 15 N. Y., 231.) And this was evidently the view upon which the enactment of chapter 571, Laws 1871, proceeded, under which the department of dock determined to extend the exterior water line of the city at this point 175 feet farther into the river, and conformably to their determination upon this subject, the obstruction which is now complained of was placed by the department beyond the westerly line of West street. For this act did not empower the department or the city itself, in the exercise of its authority, to disregard, or without compensation supersede privileges or rights previously granted. On the contrary, it was provided that .the department vof docks might, in the name of the city, acquire for the benefit of the corporation any and all wharf property to which it had no right or title, and any rights, terms, easements and privileges pertaining to any wharf property in the city, not owned by the corporation. That was authorized to be done, either by agreement, or if it could not be accomplished in that manner, by means of such proceedings as would carry out the policy and observe the restriction of the Constitution to which reference has already been made. (Laws 1871 [vol. 2], 1237, sub. 1 of § 6.)

These provisions contemplated the existence of just such rights and privileges as had become vested in the plaintiff, and they indicate the policy of the act to have been that they should not be disregarded, but,' on the contrary, should be made the subject of compensation in case their extinguishment should become necessary for the purpose of exercising the authority and carrying out the policy newly provided for by this act. It may prove burdensome to the city to require it to submit to this restriction of what has been claimed tp be its rights, but under its own grant, and what has been done by the grantee, his heirs and assigns, according to its terms, to render it effectual, no other determination can properly be made. The plan prescribed and devised at the instance of the city by the act of 1798, was, at the time, designed to be fixed and permanent in its nature, and that design remained unchanged when the deed in question was executed and delivered, and also when the improvements were made by the grantee for the purpose” of complying with what had been required on his part. The rights of the parties from that time became fixed. The grantee had derived a property in the emoluments to be obtained by the use of the wharf which he had erected upon the west line of "West street. Under the plan of the act of 1798, and the terms of the deed, that right of property was intended to be perpetual, as long as the conditions in the deed should be performed, and neither the grantee, nor his heirs or assigns, could be divested of it while they made no default in the performance and observance of these conditions without compensating them for it, as so much property taken for the use of the public. No such compensation has ever been provided or tendered to the plaintiff jn this action. Neither has any proceeding been taken under the act of 1871, to divest the title to such emoluments accruing to hini through this deed, and it necessarily results, therefore, that he is entitled, under these circumstances, to maintain an action to secure redress for the loss sustained by him through the unauthorized acts which appear to have been performed, and by which this wharf front has been rendered useless to him.

It appears from .the case that the city has kept up, repaired, maintained and renewed the streets described in the terms of the grant, and that the grantee and his successors in title kept the bulkhead of the wharf in repair. Why the streets themselves were not kept up, paved • and maintained by the grantee, his heirs and assigns, in performance of the obligations for that purpose imposed upon them by the terms of the deed, has not been made to appear, neither is any advantage claimed in the case by the defendants because of that circumstance. But if the city took it out of their hands and did this work at its own option, and without any default on their part, no advantage whatever could accrue to it in this controversy, by reason of that circumstance.

No ground appears in the case upon which the. judgment dismissing the plaintiff’s complaint can be sustained. The deed was a legal exercise of the power of the municipal authorities as such instruments have been conceded to be in the cases where they have been brought before the courts for consideration. Under it a valuable right, privilege or servitude was acquired, the title to which it was clearly intended should continue in perpetuity. The dock department of the defendant has deprived the plaintiff of it in a manner not authorized or warranted by the laws of the State. This loss entitled him to be compensated for the value of the right, privilege or servitude of which he has been divested, and to recover his compensation the present action may properly be sustained.

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

Barker, J., concurred.

Brady, P. J.:

The corporation of New York is duplex in character, combining corporate and political or legislative capacities, the corporate power eo nomine, being always subservient to the legislative. The corporation, for example, may contract for the laying out of a public highway when authorized by the legislative power, but it cannot by covenant or deed impair the use of the street, or grant any franchise relating to it, nor can the use of it be limited, restricted, or in any way controlled by such an element.

In the exercise of its legislative power, therefore, the corporation can authorize an act which, if done without such sanction, would be ultra vires; and the consideration of this power is an all important one in reference to the result of this appeal. It comes to the front at once, for it seems to be very clear that the grant of 400 feet under water, from low-water mark along the eastern and western shores of the island, was one given, and must be so regarded, for purposes connected with its maritime advantages or commercial necessities; and more particularly the extreme eastern or western line of the grant, the use of it to be designated in the first instance by legislation, either State or municipal. It is, consequently, especially subject to the legislative 'control of the corporation. The grantee of any fee, therefore, the subject matter of which is connected with the .streets or highways, takes his title with knowledge of this duplex character of the corporation, and subject, therefore, to the superior power of legislation over it. It follows from this that when the municipality determined, by a map or plan, that West street should be a permanent street on the west side of the island, it did not, either by that circumstance or any other, including the grant under which the plaintiff claims, bind itself not to widen the street declared to be permanent, and if it attempted to do so in either capacity by covenant, the covenant would be invalid as a usurpation of legislative power over the highway, in the one instance, and in the other invalid as an attempt to restrict the legislative power.

The grantee, with this knowledge, takes a limited fee, if any, the life of which depends upon the legislative will, and assumes all the consequences of the contingency which may destroy it.

The original grantee, under whom the plaintiff claims, took it, 'therefore, subject to contingencies, but might well have undertaken to do all that the covenant' enjoined upon him for the franchises created, and in the expectation, realized in this case no doubt, that its enjoyment would be long enough to compensate him for the pecuniary outlay which he might be called upon to make. The grant, therefore, and the intention of the parties making it, must be construed with reference to our system of double powers resident in the corporation, to which reference has been made.

When the grant was givjen there was outside of the alleged permanent line of West street, nearly if not quite -200 fe¿t of land under water, the use of which might in time be imperatively demanded by the increasing commerce or the growth of the city, or some other incident of importance, the event depending upon circumstances which could not be anticipated. It certainly did not enter into the minds of the contracting parties when the grant was made, under which the plaintiff claims, that the grantee was to enjoy under it a grant extending to the exterior line of West street under .any and all circumstances, no matter how it might be changed, and if deprived of it that he was to be compensated by damages for the deprivation. This would in effect be a grant of the. whole 400 feet, and would extend a well defined area by implication far beyond the original boundary.

There is a marked distinction, as suggested by the learned counsel for the city, between property of a private nature held by a municipal corporation for its private advantages, and that held by it of a public nature. The latter cannot be aliened or encumbered so as to defeat the exercise of the public duty or trust for which the propdrty was bestowed. The 400 feet of which the grant under consideration embraced a part was clearly of a public nature, and was to be controlled by the corporate performance of the public duty or trust.

For these reasons I regard the opinion of Judge Yan Brunt as expressive of the rule which should govern the case. I am aware of the apparent violation of the covenants in the grant made by the city. But this ceases to be of import when the grantee is chargeable with notice of' the powers surrounding the grant, its character and its possible defeasance and destruction, owing to the exercise of such powers.

I am aware also that the question discussed is one of great importance, both to the plaintiff and to the defendants, and have not failed to appreciate the difficulties of the situation. But .my examination. of the questions, and my reflection upon them, compel me to the expression of the opinion thus briefly rendered.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    EDGAR WILLIAMS and Others, Executors, etc., of LORRAIN FREEMAN, Deceased, Appellants, v. JAMES W. GILLIES, Respondent, Impleaded, etc.

      Mortgage — one not a party to it cannot be made liable by evidence of an oral agreement that the title was to be taken in part for his benefit, for any deficiency arising upon a foreclosure sale.

    In an action to foreclose a mortgage given to secure a portion of the purchase-price of the property covered by it, the mortgagee offered to show that the mortgagor purchased the property for the benefit of two other persons, as well as for himself, and in pursuance of an oral agreement made with' them that each should furnish a proportionate part of the purchase-price. He sought to prove these facts in order to entitle himself to a judgment against one of these two parties for his share of any deficiency that might arise upon the sale.

      Held, that the court properly excluded the evidence.
    Appeal from a judgment, entered upon tbe trial of this action at a Special Term,

      Luden Birdseye, for the appellants.

      Jmnes M. Lisle,, for the respondent.
   Daniels, J.:

This action was brought to foreclose a mortgage upon property situated in One Hundred and Thirty-fifth street, in the city of New York. It had in form been conveyed by the testator to the defendant Dobbs, and he executed and delivered the bond and mortgage in suit to secure the unpaid purchase-price. For the purpose of charging a part of the deficiency which might be left after the sale of the property mortgaged upon the defendant Gillies, evidence was given tending to show that Dobbs delivered to him a deed in terms declaring that the grantee in it assumed to pay the equal one-fourth part of the principal and interest due upon the mortgage. This evidence was chiefly obtained from the defendant Dobbs, as a witness for the plaintiff, and as he gave it, it justified,the belief’that the deed had in fact been delivered to and accepted by the defendant Gillies. But the latter, as a witness in his own behalf, in the most positive terms, controverted and denied the accuracy of this statement, and the conflict presented by the proof in this manner was determined by the court against the plaintiffs, for it was held that the deed had not been legally delivered to or accepted by the defendant Gillies; and there was no such preponderance in the evidence sustaining its acceptance by him as would authorize an appellate tribunal to set aside that determination, particularly when it has been made, as it was in this case, chiefly upon the effect of evidence of interested parties. (Elwood v. Western Union Tel. Co., 45 N. Y., 549, 553, 554.)

Still further to maintain the liability of Gillies to be charged with this deficiency evidence was offered, and in part given, to establish the fact that the title to the property was taken by Dobbs for the benefit of Gillies and another person, as well as for himself, and that each of these parties was to furnish a proportionate part of the purchase-money for the payment of its purchase-price.

It was not proposed to make proof of these facts by written evidence, but simply to show an oral arrangement between the parties to that effect; and the court not deeming that-to be proper rejected the offered evidence. In Williams v. Gillies (13 Hun, 422) a recovery upon the basis of such evidence was sustained, but this was reversed when the case was afterwards taken to the Court of Appeals. ( Williams v. Gillies, 75 N. Y., 197.) And the authority of that decision would seem to be decisive against the right of the plaintiffs to a judgment imposing any part of the deficiency upon Gillies through the instrumentality of evidence of this nature. If it had been received it would have established no more than the fact that Gillies was a party interested in the purchase, and as between himself and the mortgagor was bound to pay his proportionate part of the purchase-price, which would in no sense make him a party to the bond and mortgage executed alone by Dobbs, and in terms wholly obligatory upon him. That was the obligation received by the testator, and it does not seem to have been competent for his executors to enlarge its terms so as to make it include another party in no way named or referred to in it and thereby subject him by means of such evidence as was offered to a personal liability for the mortgage debt. If the evidence had been received it would simply have shown that Gillies was interested in the purchase, and had undertaken through his arrangement with Dobbs and the other parties in interest to pay one quarter of the price. And as much as that was admitted in Briggs v. Partridge (64 N. Y., 357, 363), and yet it was held that the party sustaining that relation to the purchase could not be rendered liable upon an instrument executed by another person under seal for the payment of the price. That case, in its facts, was as broad as the present one would have been if the evidence offered had been received, and it is accordingly a decisive authority against the plaintiffs in this case.

The rule upon this subject has been declared to be that, “ when a contract is made by deed under seal, on technical grounds no one but a party to the deed is liable to be sued upon it; and therefore, if made by an agent or attorney, it must be made in the name of the principal, in order that he may be a party, because otherwise he is not bound by it.” (Huntington v. Knox, 7 Cush., 371, 374; Pease v. Pease, 35 Conn., 131.)

Possibly, after the payment of the purchase-price, the defendant Dobbs may, under the circumstances, if they shall be properly proved, be entitled to contribution from Gillies to the extent of the proportionate part of the purchase-price paid for his benefit. But whether he will be or mpt it is not proper to consider or to decide at this time. Under no legal theory was the right to charge any portion of the indebtedness under the mortgage on the defendant Gillies made to appear in the case, and the evidence rejected would not have changed it in that respect.

The judgment, for these reasons, should be affirmed, with costs.

Bbadt, P. J., and Barker, J., concurred.

Judgment affirmed, with costs.


author: Barker, J.: Brady, P. J.

text:
    ALICE J. CUNNINGHAM, an Infant, by WILLIAM J. CUNNINGHAM, her Guardian, Respondent, v. GREEN WRIGHT, Appellant.

      Negligence — injury occasioned by an obstruction of the street — when the defendant ■ may show that he obstructed the street by direction of the city authorities, while performing work for the city under a contract.

    The complaint alleged that the defendant, by himself and his servants, wrongfully removed and carried away a large number of stones from Third avenue in the city of blew York, and wrongfully and unlawfully placed and piled the same on the north side of One Hundred and Fortieth street, directly in front of the land and dwelling-house of the plaintiff’s father, and wrongfully, unlawfully, carelessly, recklessly 'and negligently placed one of them upon its side or end; that the plaintiff, an infant, of about the age of eleven years, while playing marbles upon the pile of stones, was injured by the falling upon her of the stone ¡50 placed upon its side.
    In this action, brought by her to recover the damages thereby occasioned, the defendant alleged in his answer and offered to prove upon the trial that he tore up and removed the stones from Third avenue in pursuance of a contract made with the city for the repaving and regrading of the avenue; that"he piled the stones in One Hundred and Fortieth street during the progress of the work in pursuance of a provision of the contract authorizing him so to do, and pursuant to directions of the department of public works and the engineer in charge of the .work. '

      Held., that the court erred in refusing to allow him to prove the facts so alleged. (Brady, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    • The plaintiff claimed damages for injuries to her person, arising from the alleged negligence of the defendant. The plaintiff is a minor child, eleven years of age. At the time of the injury she resided with her father, who lived in his own dwelling-house, situated on the north side of One Hundred and Fortieth street, West of Third avenue, in the city of New York.
    The defendant’s servants placed some stones in One Hundred and Fortieth street, directly in front of the house owned and occupied by the plaintiff’s father, leaving them piled up by the curbstone on that side of the street. The plaintiff, while in the street, engaged with her sister in playing a game of marbles on the pile of stones, was injured, having her thigh bone broken by the falling of one of the stones in the heap.
    The plaintiff recovered a verdict for the sum of $500. The defendant moved for a new trial, on the judge’s minutes, which was denied. Judgment being entered, the defendant appealed from the same, and from the order denying a new trial.

      Hall, Broum da Weslcott, for the appellant.

      A. J. Rogers, for the respondent.
   Barker, J.:

The evidence received on the trial fully sustains the verdict, and establishes wrongful acts on the part of the defendant, beyond all reasonable controversy. It also tende 1 to prove very strongly, if it did not fully establish, that the plaintiff herself was free from all negligence, which contributed to the injuries which she received.

The damages were assessed at a very moderate sum, in view of the painful and serious nature of the injury which the plaintiff received.

The defendant complains that material and important evidence, bearing directly on the question of his own negligence, was offered by him on the trial, and the samé was by the learned judge excluded, and for that reason he demands that the judgment be reversed and a new trial granted.

The complaint, in setting forth the negligent acts of the defendant, avers that on the 19th day of June, 1879, the defendant, by himself and his servants, wrongfully removed and carried away a large number of stones from Third avenue, and wrongfully and unlawfully placed and piled the sapie on the north side of One Hundred and Fortieth street, directly in front of the land and dwelling-house of William J. Cunningham, and against and close up to the sidewalk of the street on the land of -said William J. Cunningham, and wrongfully, unlawfully, carelessly, recklessly and negligently placed one of them upon the side or end, containing about three and one-half cubic feet, and -weighing about 600 pounds — in length about four feet and five inches, and in width about two feet, and in thickness about four inches — and that by reason of such wrongful, unlawful and negligent conduct of the defendant and his servants, said stone fell over and injured the plaintiff.

The complaint does not contain any other or further averment as to the business in which the defendant was engaged, nor the circumstances connected with the removal of the stones from Third avenue and placing them on One Hundred and Fortieth street, in front of the premises occupied by the plaintiff’s father.

The defendant, in his answer, admits that he was at the time mentioned and immediately preceding the accident, by himself and his servants, engaged in regrading and repaving Third avenue, and while so .engaged he removed and carried away from the avenue many large stones of heavy weight, which were used in said avenue for sidewalks and cross-walks, and laid them down at the place mentioned. But he expressly.denies that he unlawfully, wrongfully or carelessly did the same.

The defendant then sets up, in his answer, as a defense and justification for his action in removing the stones, a contract entered into between himself and the city for the grading of Third avenue, the particulars of which will be hereinafter mentioned.

The plaintiff rested her case without presenting any proof whatever as to the relation .which the defendant held to the public while engaged in removing the material in the road bed of Third avenue to One Hundred and Fortieth street, which intersects the same.

The defendant offered in evidence a contract between himself and the city by the terms of which he engaged to regrade and repave Third avenue.

Among the provisions of the contract were the following: The defendant was to do the regrading of Third avenue, and such work upon the cross and intersecting streets as should be ordered by the department of public works, and to furnish such new material as was necessary to do and complete the work according to specifications annexed to the contract, the paving stone, bridge or crossing stone, curb-stones and flag-stones of the sidewalks in the avenue to be taken up, in such section or sections as may be directed, and the materials piled on the opposite side of tlfe avenue and along the side of' the intersecting or cross streets, in the manner, and in such position and proportions, in the respective places, as should be directed by the department of public works; the contract also contained provisions permitting the placing and storing, temporarily, the material taken up in Third avenue, at such points and sections in the avenue and on the cross streets, including One Hundred and Fortieth street, at such points and places as should be designated by the' engineer on the works, representing the city, and there to remain until it was determined whether they were to be used or not in the work of regrading and repaving Third avenue, and if not so used, then to be -carried away out of the street.

In connection with this offer to prove the contract and read the same in evidence the defendant offered to prove that, in pursuance of this contract, the defendant took up the paving-stones, curb and gutter-stones, in accordance with the contract and under the directions of the engineer in charge of the work under the contract, and piled the same in the side streets under the directions of the engineer in charge, in the manner and in the position and proportions in the respective places as were directed by the department of public works. The plaintiff objected to these offers of proof on the ground that the same was incompetent evidence as against the plaintiff, and the objections were sustained and the defendant excepted.

It was a manifest error to reject the proofs proposed by the defendant. The facts which he offered to prove would have changed the nature and character of the defendant’s liability to the plaintiff, if they would not have constituted a complete bar to a recovery.

Upon a ease, as the defendant sought to establish it by this offer, it would then have been made to appear that he was engaged in a lawful act, that of grading and repaving a public street under a contract with the proper authorities, and that he had the consent and permission of the city to place the stone where they were for a temporary purpose, a permit which could be lawfully given by the city as against the rights of the plaintiff and her father to'use the street. If he was not guilty of any neglect in this respect, and exercised due care and skill in placing the stone in position as they were left, there to remain until they were replaced in Third avenue, or removed from the streets altogether, then he would not be liable to the plaintiff.

Having been denied this proof his liability was to be determined • by the court and jury upon the facts proved by the plaintiff. His conduct being judged and determined by the facts thus proved, it was made to appear that he was engaged in an unlawful act of the most dangerous character to travelers, and making a portion of the streets of a great city impassable.

It appears that the learned judge in his charge to the jury sought to test the defendant’s liability by making a statement to the jury of some of the general principles which are applicable to cases of negligence, but that did not cure the error. It was the right of the defendant, under the issue, to show the relation which he held to the public when he did the acts complained of, and the terms of the contract, and under whose directions he piled up the stones which tumbled down and injured the plaintiff. He was charged in the complaint with doing a wrongful, unlawful and negligent act, which caused injury to the plaintiff. This allegation was fully maintained by proving that he tore up the pavements, and placed the material where he did.

Such acts, if done without proper authority from the city, were illegal and unlawful acts, constituting a nuisance for which any individual, suffering damages special to himself, could maintain an action against the defendant.

An action for negligence, as distinguished Tom an action for trespass, consists in.doing a lawful act in an improper, heedless and careless manner. Therefore, that it might appear by proofs that the act of the defendant was not an illegal and unlawful act,- and that it was only a careless and negligent one, and that his liability to the plaintiff, if any, be tested by the rules of law applicable to such cases, he should have been permitted to prove that the act of removing the stones from Third avenue and placing them where he did, was done under and in pursuance of a valid contract with the proper authorities, and was not, in a strict sense, unlawful.

The error is made more manifest, and leads more readily to the conclusion that the trial was conducted on a misconception as to the true grounds of the defendant’s liability, by a perusal of the complaint. The allegation therein charges the defendant with unlawful acts in tearing up the public streets and avenues of the city, and placing obstructions therein in front of the premises of the plaintiff’s father, with whom she lived and resided.

The plaintiff did not, in her cause of action as set up in the complaint, or by her proofs given on the trial, seek to maintain a cause of action based upon negligence merely, but founded the same entirely upon the illegal and unlawful acts of the defendant.

The judgment ■ should be reversed, also the order denying the defendant’s motion for a new trial, and a new trial granted, with costs to abide the event.

Daniels, J., concurred.

Brady, P. J.

(dissenting):

Assuming that the defendant put the stones mentioned at the place indicated by the authorities, it did not relieve him from the obligation of doing the act in such a way as to secure the safety of persons who might lawfully approach them. The use of a public street for the deposit of materials or debris must always be in such a manner as to insure the wayfarer from danger not occasioned by his own negligence. I dissent therefore.

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


text:
    MARGARET J. WILMERDING, Respondent, v. JOHN McKESSON, Appellant, Impleaded with GEORGE G. WILMERDING.

      Mcecutors — liability of one, for the wrongful conversion of securities by his co-executor —for allowing moneys of the estate to be deposited by his co-exemtof with a firm of which the lattes’ is a member — for failing to divide the estate as directed by the testator — how far he is affected by knowledge acquwed by thet executory cles’k — how far, by joining in the execution of a satisfaction piece of a mortgage.

    An executor, who allows his co-executor to deposit the funds of the estate with a firm of which the latter is a member, is personally liable to those interested in the estate for any loss they may thereby sustain.
    An executor who allows his co-executor to receive and retain in his possession all the securities belonging to the estate is not liable for the wrongful acts of the latter in misappropriating the said securities and converting them to his oyn use, when he had no 'reason to suspect he contemplated so doing, and when it appears that the executor so betraying his trust was a son of the testator, and had, during his father’s lifetime, acquired a faultless reputation as a competent, intelligent, reliable and faithful business man, and had preserved that reputation in the community up to the time when his conversion of the said securities became known.
    The fact that the will required the executors to set apart from the estate the shares bequeathed and devised in trust for the testator’s daughters and infant sons, and that such separation was in fact never made, would not render an executor liable for such a conversion of the securities of the estate by his co-executor, when it appears that the loss did not follow from and cannot be attributed to the omission to comply with this direction of the testator.
    The fact that a clerk, jointly selected by the executors to keep the accounts of the estate, discovers that one of the executors is converting the securities to his own use, will not render his co-executor liable for the loss, when the knowledge so acquired by the clerk is not communicated to him.
    An executor, who joins with his co-executor in satisfying a mortgage, in order to render the discharge more formal, but who receives no portion of the moneys arising, therefrom, is not liable for the conversion of such moneys by his co-executor.
    Appeal from a judgment, recovered on trial at the Special Term, and from an order denying a motion for a new trial, made on the ground of newly discovered evidence.

      Wm. Allen Butler, for the appellant.

      S. P. Nash, for the respondent.
   Daniels, J.:

The plaintiff, who is a daughter of William E. Wilmerding, deceased, instituted this actiou to charge the defendants, as two of the executors of his estate, and also as trustees and guardians of his minor children, with certain losses sustained by the estate in the administration of its affairs. The testator died on the 11th of April, 1860, leaving a large estate, consisting of both real and personal property. He was three times married. The defendant, George G. Wilmerding, who was appointed one of the executors, trustees and guardians, was his son by the first marriage, and the plaintiff, his daughter by his second marriage. He' also had children by the third marriage, but they are not required to be noticed in the consideration of the points presented for decision by this appeal.

By his will he appointed other executors to act with this son in the management and administration of his estate, three of whom qualified as such, and to them and the defendant George G. Wilmerding, letters testamentary were issued on the 11th of May, 1860. One of these executors, who was another son of the testator, died about ten years preceding the time of the trial, which took place in April, 1880. Another of the executors, George D. Gillespie, took no part in the administration of the affairs of the estate, but that was confined solely to the two defendants, against whom this action has been prosecuted. Previous to the time of the testator’s decease, his sons George G., Charles Ii- and John 0. Wilmerding, were, with him, members of the mercantile firm of Wilmerdings & Mount, and they, together with Mount, continued the business after the decease of the testator. At the time of his decease a large amount of his estate was employed in this business as its capital, and on the 1st of January, 1861, it was entered upon the books of the estate as a debt against the firm, amounting to the sum of $170,011.72.

The new firm succeeding to and carrying on the business of that which had preceded it, with the testator as one of its members, liquidated and settled the affairs of the old firm, and carried on and transacted the same business. This business-continued until October, 1871, when the firm failed, and in consequence of its failure a very large loss, amounting to near the sum of $150,000, was sustained by the testator’s estate. In this loss the interest of the plaintiff in the estate was to a very great extent included, and it was to protect herself against that loss that this action was instituted and carried on by her. In support of it the evidence established the fact that the loss was caused solely by the conduct and mismanagement of the plaintiff’s half-brother George G. Wilmerding. From the time of his appointment as executor under the will he had sole control of the financial affairs of the estate down to the time of the failure of his firm, when the management was taken out of his hands by the defendant John McKesson, concerning whose conduct after that time no complaint whatever has been made. The executor George G. Wilmerding also had, during the time mentioned, the sole control and custody of the' securities of the estate, the other executor, McKesson, interfering no further than to select and approve of securities in which the financial capital of .the estate was chiefly invested. As these were selected or approved by McKesson they were taken by the executor George G. Wilmerding and a corresponding amount of the funds of the estate invested in them, and after the securities were so taken they remained in the sole custody and charge of himself.

In the course of the administration of the affairs of the estate moneys were realized from it which were paid to the firm of Wilmerdings & Mount, under the authority of the executor George G. Wilmerding, and it is reasonably certain frmn the evidence that these moneys were used from time to time as they remained in the possession of the firm in its business. This was clearly an unlawful and unauthorized use of the funds of the estate. (Hill on Trustees [3d Am. ed.], 550, note; 551, note, and the cases there cited; Perry on Trusts [2d ed.], § 464.) Funds of the estate were deposited and used in this manner in the business of Wilmerdings & Mount,down to and including .the time of its failure. In the year 1869 when the plaintiff, who was one of thé beneficiaries under the will, became of age, the books at that time showed a credit in favor of the estate against this firm of the sum of *$14,980. This was reduced during the succeeding ’ year to the extent of a little over $1,000, but by, the end of the following year the balance was increased to the sum of $17,315.12. That balance was not after-wards reduced, but apparently continued in the business and was included in the larger amounts afterwards added to it until the time of the failure of the firm. It consequently was a loss to this extent to the estate, arising out of the unlawful act of mingling its funds' with those of the business in which the executor George G. Wilmerding was engaged, and he, beyond question, was liable to indemnify the estate against the consequences of this loss.

To charge the executor McKesson also with this loss was one of the purposes of this action. It was not claimed that he had personally by any act on his part contributed to the production of this-result, but it was alleged that he had knowledge of. this misuse of these funds of the estate, and failed in any manner to interpose for the purpose of correcting it. The learned judge presiding at the trial found, as a fact, that this allegation had been proved by the evidence, and if that conclusion was properly sustained by the proof, it would appear to follow that McKesson, by his omission to interfere for the protection of the estate against this misuse of its funds, had made himself a party to it, and in that manner had become liable for the loss resulting from this source to the estate. To show the existence of this knowledge, it was proven that after the appointment of the executors, a bank account was opened with the Chemical Bank, in the city of New York, in the name of George G. "Wilmerding as executor. This was done under the direction of the executors, given by them at their first regular meeting, and under that authority an account was kept in this form with the estate, according to the testimony of the defendant McKesson, for a year or two; but by the testimony of Jones, the book-keeper, who was more likely to' be accurate upon the subject, it continued to the year 1866. Then it was terminated and the funds of the estate were wholly deposited from that time with the firm of Wilnierdings and Mount. That this bank account was discontinued with the knowledge of the defendant McKesson, appears from his own evidence, and, as a man experienced in the affairs of business, it is only reasonable to suppose that he understood that a certain amount of money would be constantly passing through the hands of George G. Wilmerding, as the more active executor in • the management of the affairs of the estate, and as there was no other depository provided for them, that he would probably deposit such moneys.in the business in which he was engaged, and the fact that lie did that is very clearly shown by the evidence given by Jones, the book-keeper. But the fact of the knowledge or understanding on the part of McKesson of this use of the funds, is not solely dependent upon these circumstances, for it was made to appear that an accounting concerning the affairs of this estate was had before the surrogate in the year 1869. The account presented and passed by the executors was verified by three of them, including tho defendant McKesson. That was done in the usual form, and the verification contained the statement that the charges in the account for its increase in value were correctly made, and among those -charges were allowances made by the firm of Wilmerdings & Mount, of interest in favor of the estate. This interest had, apparently, no other source for its allowance than the moneys of the estate ki the possession of and used by the firm, and from its allowance the inference is quite direct that McKesson must have known and understood that this firm were using the funds of this estate His testimony is that he had no knowledge or notice of such use, but the presumption of knowledge or notice arising out of these circumstances was so decided as to overcome the evidence given by him upon the subject. As it was contained in the case, there was sufficient to justify the finding already referred to, upon which the defendant McKesson has been held liable to the plaintiff, so far as she was injured by the loss of the balance of the moneys of the estate, appearing to be in the possession of' this firm at the close of the year 1871. To that extent, certainly, the judgment from which • the appeal has been taken appears to be right.

But the principal part of the recovery in the case has proceeded upon the misappropriation of its securities, which were .chiefly made in the years 1871, 1872, 1873 and 1874, and whether this portion of the judgment can be sustained as correctly, given, is the” more important subject of controversy upon this appeal. These securities, as.has been already observed, were solely in the possession and under the charge of the executor George G. Wilmerding. In that part of the administration of the estate the defendant McKesson in no manner participated, and the acts by which the securities were misappropriated are independent of and clearly distinguishable from the deposit of the funds of the estate with the firm, as they were received and disbursed in the course of its necessary administration, for those deposits included only the amounts necessarily realized from the proper and legal administration of the affairs of the estate, while this misappropriation of the securities was a willful, dishonest and wrongful abstraction and sale of them by the executor George G. Wilmerding. His acts in disposing of these securities were in direct conflict with all his obligations and duties as an executor, and were prompted by the evident intention of despoiling the estate. In their performance, he ceased to act as an executor and was a wrongdoer as completely and effectually as though the depositary of the securities had been feloniously broken open and the estate had been plundered by means of that act. The other defendant had -no knowledge of its commission and no reason to suspect that it was contemplated, but when it was discovered by him, he speedily .took measures to protect the estate against its further spoliation by the act of this faithless executor.

It appeared by the evidence that this executor, George G. Wilmerding, had, during the lifetime of his father, acquired a faultless reputation as a competent, intelligent, reliable and faithful business man, and this continued to be his standing in the community until his defalcation as one of the executors of this estate was brought to light. For that reason the defendant McKesson can be legally chargeable with no neglect, inattention or misconduct whatsoever in permitting the securities of this estate to remain in the possession and custody of this individual executor; and, as he was in no sense a party to this abstraction and misappropriation of the securities, and had no reason for suspecting that it was either intended or con-. templated by the person who was guilty of it, he was not liable for the loss sustained by reason of it by this estate, for that resulted wholly and exclusively from the misconduct of the other executor, for which, as the law upon this subject is settled, McKesson himself was not liable. This principle has been frequently considered by the courts of this country and those of England, and it has became firmly fixed as an important legal rule, prescribed and maintained to define the liabilities not only of executors, but also of trustees and guardians, in all of which capacities these defendants acted under the terms of the testator’s will. As this principle has been lucidly stated, it has come to be established that “ a devastavit by one of two executors or administrators shall not charge his companion, provided, lie lias not, intentionally or otherwise, contributed to it. For the testator’s having misplaced hjs confidence in one, shall not operate to the prejudice of the other.” (Williams oExecutors [6th Am. ed.], 1820.) It has been frequently quoted and applied and its accuracy is accepted with uniformity by the courts of this State, the United States and of other States. (Adair v. Brimmer, 74 N. Y., 541; Ormiston v. Olcott, 84 id., 339; Sutherland v. Brush, 7 Johns. Ch., 17; Peter v. Beverly, 10 Pet., 532; McKim v. Aulbach, 130 Mass., 481; Croft v. Williams, 88 N. Y., 384.)

The will of the testator required that the shares of his estate oequeathed and devised in trust, during the lifetime of his daughters, .and the minority of his infant sons, should be set apart arid separately appropriated by the executors for them, and declared by some proper instrument under seal, to be acknowledged as deeds of land were required to be; from which day that which was so appropriated for each trust should alone be liable therefor, and the rest of the estate freed from such charge, gift and legacy. This ■separation of the estate never was made by the executors, so far as these children were interested in it by the terms of the will. A gross amount was transferred in form by the executors to three •of the persons, including the defendant MhKesson, who were designated by the testator as the guardians of the persons and •estates of his minor children. The sum so set apart consisted in the aggregate of $148,932.75. Of this sum $108,932.75 was in •cash and the residue in stock of the corporation of the city of New York. A separate account was kept upon the books with each one ■of these children, in such a form as to distinguish and exhibit his •or her interest in the capital and proceeds of this fund, and the cash so received was invested in proper securities for the benefit •of the persons entitled to the proceeds of this part of the estate, but no separation of these securities was at any time in any other form made, either by the executors, trustees or guardians. The •excuse assigned for this omission was that it was not practicable, .as the securities had been taken, to apportion them properly between these several interests. The excuse, 'however, had no probable foundation to rest upon, for it was practicable to make the investment in such a manner as to allow this direction given by the testator to be observed and performed. But the fact that the statement cannot properly be accepted as a legal excuse for this omission, and that the omission itself occurred, will not, in any proper view which can be taken of their effect, render the defendant McKesson chargeable with the loss sustained by the plaintiff or the estate, in consequence of the receiving, taking and misappropriation of this part of the securities by the defendant George G. Wilmerding. For the loss itself did not follow from and cannot be attributed to the omission to comply with this direction of the testator. It is entirely manifest that the securities misappropriated were not taken and disposed of because of the omission to make this separation. That circumstances would not in the nature of things enter as a factor into the commission of such a wrong. But when the intent had been deliberately formed to take the securities, those which would be regarded as the most available would be the ones which would' ordinarily be subjected to the rapacity of the wrong-doer. And such was probably the inducement operating upon the mind of the defaulting executor in the selection of the securities disposed of by him. The motive inducing his conduct was the raising of money through the unlawful abstraction and sale of a portion of the securities of this estate, and to attain that end their separation and division, or the omission to make it, would have no influence whatever over the selection of those made the subject of this unlawful disposition. This conclusion is not without actual proof in the case, for it appeared by the evidence that certain securities had been in fact set apart to raise the annuities of $7,000 for the widow of the testator, who died shortly before the failure of this firm, and $2,000 for two other persons, in the manner provided for by the will. After this separation had taken place, bonds and mortgages included in it were paid off and United States bonds substituted in their places, and these particular bonds were among the securities taken and appropriated by this executor. It is reasonably clear from this circumstance, as well as the consideration already given to this subject, that the fact of the securities being separated would have had no effect whatever in diverting this executor from the execution of his unlawful purpose. He was ready to despoil the children of the testator and deprive them of the provisions made for their support and maintenance, as well as the widow, provided only tliat the securities made the subject of his disposition should be such as would best promote his unlawful intention. In this respect he evidently had no personal preferences, and no reason exists for supposing that either one of the persons interested in this part of the estate enjoyed any such favorable consideration from him as would warrant the conclusion that he or she could by any possibility on that account escape the consequences of his rapacity. It was not because this portion of the estate had not been separated and set apart, as the testator directed that to be done, that the securities were misappropriated, but it was for the reason that those taken proved the most acceptable to the person making this unlawful use of them. And because of that circumstance the defendant McKesson cannot be held liable simply because of his omission as an executor to conform to this direction as it is contained in the testator’s will.

Soon after the appointment of the executors they jointly selected an accountant to keep the accounts pertaining to the administration of the estate, and it appeared by his evidence that in 1872 a misappropriation of the securities -of the estate became apparent from the accounts, and in the following year thié was still further evident. By reason of .this circumstance it has been' urged that McKesson became chargeable with constructive knowledge of the maladministration of this other executor, and consequently liable for the loss sustained through his acts by the estate. But this accountant was not solely the clerk or representative of the defendant McKesson in the performance of his duties. lie was selected by all the executors acting together and was in their joint service, and for that reason one of them could not be properly charged with the loss produced by the unlawful act of another simply because this person had discovered the existence of the wrong. This discovery was in no manner communicated to the defendant McKesson. The omission may have been, and probably was, a breach of duty on the part of the accountant, but the law requires something beyond that to render an executor, not in fault, chargeable with such a loss to the estate, for that liability has been made to depend upon some actual default, inattention or acquiescence in the unauthorized act of the other executor to render the one not engaged in its commission liable for its consequences. He, himself, must be individually in fault in some respect before such a liability can be imposed upon him; and the existence of knowledge of this nature acquired by a person in the joint employment of the executors will not justify the imputation of any such fault to him. As long as he himself was innocent, as he was, and involved in no fault or violation of his own duties or obligations, this circumstance cannot render him liable in the case.

In some of the mortgages which were discharged the defendant McKesson joined in the discharge, but it was simply for the purpose of rendering the instrument more formal than it otherwise would be, and without receiving any portion of the money arising out of the discharge of such securities. He was also aware of the sale of the Inebriate Asylum bonds held as a part of the éstate; but neither of these circumstances, nor both together, will sustain the judgment which has been recovered, for the proceeds wholly went into the hands of the defaulting executor and McKesson had then no reason whatever for suspecting his integrity or .his fidelity. And as to the proceeds of the bonds he received assurances, concerning the use which would soon be required for them, well calculated to set at rest any suspicion whatever which might arise in his mind as to the safety and disposition of the fund produced by them. In no view which the facts will justify in this case was McKesson responsible for this misappropriation of the securities of the estate; and to that extent, certainly, the judgment' was erroneous and cannot be sustained.

After the plaintiff became of age the estate continued to be administered in her behalf precisely the same as though that event had not occurred. The executors by that circumstance, in 1869, became entitled to relieve themselves from all responsibility over her share of the estate as her guardians, but they omitted to do so, and continued to administer it precisely the same as they had previously done. So far as a trust had been created in her favor, this was authorized by the terms of the will, and the executors appear to have been actuated by that understanding. For that reason the comparatively small loss sustained by the plaintiff by depositing the trust funds received out of the regular administration of the estate, with the firm of Wilmerding & Mount, could not be affected by the provisions of the statute of limitations. The trust proceeded, in all respects, the same as it had been provided for in its creation, and it is well settled that the statute of limitations is no answer to a liability arising under circumstances of this nature. (Gratz v. Prevost, 6 Wheaton, 481.)

The ground upon which the application was made for a new trial, was that an instrument had been found, executed by the executors, making a separation of so much of the estate of the testator for the benefit of his widow, as was necessary to raise her annuity. But it was properly denied for the reason that this instrument would probably have been discovered and produced upon the trial, if it had been diligently searched for before the time when it was needed. And in addition to that, such an actual separation of the securities of the estate appeared, as a matter of fact, to have been made. The production of this instrument upon the trial would not have materially changed the case as it was presented, although it might, in the judgment of the court, have reduced the amount for which the defendant McKesson was declared to be liable. Under the circumstances, as they appeared and should have had effect in the case, the production and proof of this formal instrument would have been of no particular service to this defendant. The order refusing to open the judgment on account of its discovery, was right and should be affirmed, with the usual costs. But for the reasons already assigned in considering the effect of the evidence given and the facts found in the case, the judgment itself should be reversed, inasmuch as no intelligible reduction of it can probably be made, and a new trial ordered, with costs to abide the event.

Brady, P. J., and Barker, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.