author:
Daniels, J.
      Van Brunt, P. J.

text:
    Alfred C. Barnes et al., Resp’ts, v. Frederick D. Blake, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Partition—Parties—Tenant by curtesy.
    The husband of one of the owners of land is not a proper or necessary party to an action for partition.
    2. Same—Pleading—Demurrer.
    But that fact does not authorize him, when joined as a defendant, to demur to the complaint as not stating a cause of action against him. His remedy is by answer disclaiming all interest.
    Appeal from interlocutory judgment overruling a demurrer to the complaint.

      G. Bainlridge Smith, for app’lt; Flamen B. Gaudier, for resp’ts.
   Daniels, J.

The defendant Frederick D. Blake has been made a defendant in this action, which is for the partition of real estate, upon the allegation that he was a tenant by the curtesy initiate as the husband of the defendant, Sarah Frances Blake, who is one of the tenants in "common. The demurrer was served on the ground that the complaint stated no cause of action against him. And that objection seems to be well founded, for the law has not authorized nor required the husband to be made a party to an action of partition, when his wife may be interested in the property to be divided. Who are to be made parties has been declared by § 1438 of the Code of Civil Procedure. That section does provide for making the wife a party, for the reason that she has an inchoate right of dower. ■ That is an existing right which may develop into a title, and surely will do so, on the decease of the husband leaving his wife surviving him, unless she previously released her interest in the land. But with the husband the case is entirely different, for he can have no interest or right until the decease of his wife, and only then in case there has been issue, born alive, capable of inheriting the land Her conveyance or divestment of title, during her life, will prevent the estate, by way of curtesy, from ever coming into existence. 3 R. S., 6th ed., 159, § 75. And it is doubtless for that reason that the husband by this section has not been permitted to be made a party, until he shall first have become a tenant by the curtesy. If it had been intended that he should previously be brought in as a party, the section would have so declared, as it has in the case of the wife having an inchoate right of dower. The requirement that she shall be a party and the omission of it in the case of the husband is significant evidence of the intention to exclude him until he shall be in fact, as the section has declared, an actual tenant by the curtesy. This construction is not only supported by the language of the section, but it is further maintained by § 450 of the same Code, declaring that “ it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property.”

These sections are entirely harmonious and require the husband to be excluded as a party. The husband in this case is not a person who, by any contingency contained in any devise or grant or otherwise, is or may become entitled to a beneficial interest in an undivided interest in the property. For by no devise, grant or other instrument was such a contingency ever created. And in the connection in which the words “or otherwise” have been used, that is the construction required to be placed upon. them. Lewis v. Smith, 5 Seld., 502, 520. They were added to-include any like or similar source of a contingent interest, and not to include a mere possibility that the- husband of a tenant in common- may outlive his wife, and after issue born alive of the-marriage may finally become a ^tenant by the curtesy. This construction is also supported by the omission specifically to provide for his being made a party, when the fact was within the-legislative contemplation in framing the section, and his presence was only provided for as a party after he should, in fact, have become a tenant by the curtesy. And this construction was-adopted in Mapes v. Brown, 14 Abb. N. C., 94. And to the like effect is Trustees of Jones Fund v. Roth, 18 Wk. Dig., 459.

But the fact that this defendant was not either a proper or necessary party did not authorize him to demur to the complaint on the ground taken in his behalf. For it did very clearly state a cause of action for the partition of this real estate. And the complaint, therefore, was not liable to the objection mentioned in the demurrer. It is only when the complaint “does not state facts sufficient to constitute a cause of action,” that a demurrer in this form can be sustained. But that is not the condition of this complaint It does state a cause of action which is sufficient to-exclude it from this subd. of § 488 of the Code of Civ. Pro. Foulks v. Foulks, 25 N. Y. State Rep., 339.

The only class of cases in which a demurrer has been authorized •by § 488 of-the Code of Civil Procedure for an excess of parties is where there is a misjoinder of plaintiffs. The misjoinder of defendants was not deemed so serious a defect as to require a demurrer for its redress. It has, therefore, been left as it stood under the former system of practice, to be corrected by answer, by way of disclaimer, where the party has no interest in the subject of the action. The special term should not only have overruled, but also dismissed the demurrer as improperly served. And the order should be so modified, and, as modified, affirmed, with costs.

Brady, J., concurs.

Van Brunt, P. J.

I concur in the result of Mr. Justice" Daniels’ opinion only. It seems to me that as the learned judge has thought it necessary to discuss so elaborately the question as to "whether the husband is a necessary patty, it is apparent that he was a proper party, as in a partition suit every person is a proper party who may have even only a colorable claim.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Arthur Furber, Resp’t, v. Alexander J. McCarthy et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Arrest—Undertaking—Liability of sureties.
    The undertaking given upon procuring an order of arrest includes the costs awarded to the defendant on a motion for a new trial and an appeal from order denying the same; and hence, in an action on the undertaking, the sureties are entitled to credit for such costs paid by their principal.
    2. Same—Interest.
    In such an action interest on the amount of the judgment recovered by the plaintiff in the action in which he was arrested is properly allowable.
    Appeal from a judgment entered upon the decision of Justice Beach, before whom the cause was tried without a jury upon the admitted facts.

      F. P. Johnson, for app’lts; Arthur Furber, in person, resp’t.
   Brady, J.

The appellants claim that the conclusions of law and judgment rendered are not justified by the facts found. The action was brought upon an undertaking which was given on the arrest of the defendant in the action and which was executed by the defendants. The defendant in the action in which the undertaking was given succeeded at the trial and judgment was rendered in his favor for $122.45 costs, June 1, 1883. The plaintiffs in that action moved for a new trial and the motion was denied, with costs. An appeal from this order was taken, which, upon due consideration, was affirmed. The amount of costs awarded to the defendant in the proceeding was $84.98. These were paid to the plaintiff, who was then the plaintiff’s attorney, together with the costs of the judgment, amounting in all to $210.94.

The court held on the trial that the appellants were entitled to be credited, upon their liability 'On the. undertaking, with the amount of costs included in the judgment claim, $122.45, but not for the additional amount awarded to the defendant in arrest on the motion for a new trial and the appeal therefrom, with the in-, terest paid by them, amounting to $88.49. The court also rejected a note for $250, made by the defendant in arrest then before it, who was then, and still is, totally insolvent, and which note and the right of action thereupon were assigned to the appellants, the sureties on the undertaking. The claim of the defendant in arrest, springing from the undertaking, was assigned to the present plaintiff and this action commenced on the 18th of November, 1880.

The appellants claim that they were entitled to set off the note to the extent of the liability on the undertaking. But the court ■upon a former decision of the general term in this case held otherwise, and it is not intended on this appeal to reconsider that question. The condition of the undertaking is that if the defendant in the action recover judgment, or it is finally decided that the plaintiffs are not entitled to the order of arrest, the plaintiffs will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrests in said action, not exceeding the sum of $250.

The question whether the additional costs mentioned should be deducted from the amount of the defendant’s responsibility on the undertaking has substantially been disposed of. Baere v. Armstrong, 26 Hun, 19. The undertaking was that the plaintiffs would pay all such costs and damages that might be awarded ; which means all the costs that might legitimately be contracted during the progress of the action, and this includes the application for a new trial, which, the sum of the costs amounting to eighty-four dollars and ninety-eight cents, resulted from that proceeding. The charge is neither unusual nor extraordinary, and, therefore, embraced within the language of the undertaking, though not independent of it. The question decided in the case cited was that the defendants had a right to prove that their principal paid the costs awarded upon a motion to discharge the attachment, and upon two appeals. The evidence was rejected, and exception taken, and upon that exception, and for nothing else, the judgin favor of the plaintiff was reversed.

The refusal to credit, therefore, the sum of eighty-four dollars and ninety-eight cents upon the undertaking was erroneous.

The interest seems to have been properly allowed. The condition of the undertaking, as we have seen, is that if the defendant in the action recover judgment therein, the plaintiffs will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest in the action not exceeding $250. When the judgment was entered, therefore, the liability of the sureties was established and the interest became a legitimate item of damage. Brainerd v. Jones, 18 N. Y., 35. Comstock, J., said in that case: “The rule has often been laid down in general terms that the sureties are not liable beyond the penalty of the bond in which their obligation is contained. But on a careful examination of the reason and justice of the rule it will be found inapplicable to a question of interest accruing after they are in default for not paying according to the condition of the bond.” “In this case,” continued the learned justice, “the defendant’s bond was conditioned that Bamsdell should pay whatever sum might be recovered against him in a certain action of replevin. If the sum recovered against Bamsdell had been greater than the penalty of the bond such penalty would nevertheless have been the measure of their liability at that time. But on the recovery of the judgment their obligation was mature. Its utmost extent then was the penalty under which they had bound themselves for the payment by Bamsdell. But after that they were in default and during the continuance of that default interest is due from them as in any other case where money is not paid where the creditor becomes entitled to it." The case of Poillon v. Volkenning, 11 Hun, 385, is not antagonistic to this doctrine. It is in accord with it. There it was provided that the damages for which the sureties became responsible should be ascertained by a reference or otherwise as the court should direct; and it was held that the sureties were liable for interest on the amount of damages from the time only that they were ascertained in the'manner provided for by the undertaking and not in excess of that.

For these reasons the judgment must be reversed and a new trial ordered, without costs of this appeal to either party.

Yaw Brunt, P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    Laura F. Bradhurst, App’lt, v. Augusta C. Field et al., Ex’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)
    Will—Tettst—Legacy to wife.
    The will of plaintiff’s husband, executed before their marriage, directed his trustees to invest a sum sufficient to realize an income of $3,000 annually, and to pay the same to her. By a codicil, executed after marriage, he stated that he had advanced large sums to her, and, therefore, revoked said provision, and gave to her and directed his executors to pay her $10,-000 in lieu of dower. Held, that the former provision was entirely revoked ; that no trust was left in the will or created by the codicil, hut an ascertained sum of money was directed to he paid to plaintiff, to which sum she is expressly restricted by the terms of the codicil.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.

      Austen C. Fox, for app’lt; Charles F. O' Connor and Daniel P. Hays, for resp’ts.
   Daniels, J.

What the plaintiff designs to accomplish by this action is the appropriation of so much of the estate of the testator to the creation of a trust as will secure from its proceeds to her the sum of $10,000 annually during her natural life. And whether it can be maintained by her must depend upon the construction which the will and codicil of the testator should receive. The will was executed by him prior to his intermarriage with her. And by its third paragraph he directed his trustees, immediately after his decease, to invest an amount of money sufficient to realize an income of $3,000 annually, and to pay the whole of this income in semi-annual payments to the plaintiff during the term of her natural life.

The codicil was made and executed after the testator intermarried with the plaintiff. And by its third paragraph he stated that since the making of his will he had advanced large sums of money to the plaintiff, and that it was his object and purpose to secure to her such further sum as might be necessary for her support. He then proceeded as follows: “ I therefore revoke and declare void the said third clause or subdivision of my said will which provides for the payment of said sum of three thousand dollars to said Mrs. L. F. Seaton, and each part thereof.” And by the next paragraph he provided, gave, devised and bequeathed to the plaintiff, and directed his trustees to “pay to her the sum of ten thousand dollars, and the same shall be in lieu of dower in my said estate.’ ’ By these paragraphs of the codicil the directions inserted in the will for the benefit of the plaintiff were entirely abrogated. That was clearly the design ana intention of the testator, for he stated that he revoked and declared void the third clause or subdivision of the will, which had made the only provision contained in it for the plaintiff’s benefit And that rendered her entirely dependent upon the codicil itself. And by the codicil she was expressly restricted to the sum of $10,000, to be paid directly to her by the executors. No trust whatever was provided for, but an ascertained sum of money was directed to be paid over to her. This was the extent of the provision made for her benefit, and there is no language either in the will or the codicil that will justify its enlargement. It was not a provision in addition to that mentioned in the will that the testator intended to make, but it was a provision for her benefit in addition to the large sums of money stated by him to have been advanced to her after their marriage. And this addition he has declared to be the sum of $10,000.

It is contended that in view of the relation of the plaintiff to him, as well as of the advantage previously declared in the will itself, that the word “ annually” should be added to the direction given by the testator for this payment But neither of the instruments discloses any fact or circumstance indicating that to have been the testator’s intention. And it would be a violation of the language employed by him, and to substantially make a new will, for the court to add this word to his directions.

It is true that words and limitations may under certain circumstances be- supplied to the will of a testator. Phillips v. Davies, 92 N. Y., 199.

But that is only authorized to be done where from the will, or the cii’cumstances attending its execution, the intention of the testator can be seen to require it. It is his intention which the law requires to be carried into effect so far as it can be gathered or ascertained from what he has declared. Hard v. Ashley, 117 N. Y., 606; 28 N. Y. State Rep., 601; Colton v. Colton, 127 U. S., 300; Roe v. Vingut, 117 N. Y., 204; 27 N. Y. State Rep., 238; McKenzie v. Ashley, 145 Mass., 577; Metcalf v. First Parish, etc., 128 Mass., 370.

But neither of these authorities, nor the principle which they maintain, will authorize the court to proceed any farther than to discover and follow the testator’s intention. Here that has been plainly evinced in language which is free from ambiguity. And it was that the plaintiff should receive from the trustees the sum of ten thousand dollars, and no more. And that was the conclusion intimated when this case was upon another occasion before this court, the decision upon which is contained in 10 N. Y., Supp., 452; 32 N. Y. State Rep., 430. The demurrer to the complaint was rightly maintained, for it does fail to state facts presenting a cause of action. And the judgment should be affirmed with costs, but with leave to the plaintiff to amend in twenty days, on payment of the costs of the demurrer and of this appeal.

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


text:
    The Saint Nicholas Bank of New York, Resp’t, v. The State National Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Banks—Liability of collecting bank.
    Plaintiff sent to defendant a draft on a bank in Texas for collection. Defendant forwarded the same to its agents in Texas, by whom it was collected, and the proceeds remitted by a sight draft on New York, the usual mode of remittance. Before the sight draft could be presented for payment, both the drawer and drawee thereof had failed. Held, that defendant was not liable for the loss, as neither it nor its agents were guilty of any negligence or misconduct, but the loss was occasioned solely by failures in business, which cannot ordinarily be expected or anticipated.
    Appeal from a judgment recovered on a verdict directed by the court.

      A. Walker Otis, for app’lt; Charles M Hughes, for resp’t.
   Daniels, J.

The verdict was directed for the amount of a draft sent by the plaintiff, a banking corporation located and carrying on the business of banking at the city of New York, for collection, to the defendant, a banking corporation located and carrying on a like business at Memphis, in the state of Tennessee. Previous business transactions of a similar nature had taken place between these banks, without any special agreement or arrangement beyond that of defining the defendant’s commission of one-fourth of one per cent and the necessary expenses attending the collections. The draft in this instance transmitted is as follows:

Dallas, Texas, Nov. 6,1884.
The National City Bank of Dallas:
“ Pay to the order of Henry Levy & Son, four hundred seventy-three dollars fifty-seven cents.
, “$473.57. “A. D. Aldridge & Co.
“ Endorsed, deposit St. Nicholas National Bank.
“Henry Levy & Son.”
“ Pay M. S. Buckingham, cashier, or order, for collection for St Nicholas Bank of New York.
“Thomas G-. Pollock, Cashier.”

On the day of the receipt of the draft the defendant sent it forward to Adams & Leonard at Dallas, in Texas, for collection there. They were a banking firm at that place in good credit and the correspondents of the defendant, through whom their collections had previously been made. For that purpose its cashier indorsed the draft payable to Adams & Leonard for collection on its account. And they, on the 17th of November,' 1884, presented it to the National City Bank for payment, which was then made to them. Adams & Leonard then drew their sight draft on Jemison & Co., of the city of New York, for the amount to be transmitted, and sent it to the defendant, and the latter forwarded the same draft to the plaintiff. But before it could be presented for payment, both Adams & Leonard, the drawers, and Jemison & Co., the drawees, failed and the debt was lost. The court at the trial held this to have been the loss of the defendant, and directed .a verdict against it for the amount, to which an exception was duly taken.

It has not been maintained or charged that the defendant had become involved in any wrong, inattention or carelessness, but that where the proceeds of a collection of this nature have not been realized by the holder of the paper, the collecting agent will necessarily be liable for the loss. And whether that is the legal rule to be applied is the point upon the determination of which this appeal must depend.

Authorities have been brought to the attention of the court, as they were also at the trial, which are supposed to dispose of this point in the plaintiff's favor. They commence with, and have chiefly followed, the case of Bank of Utica v. McKinster, 11 Wend., 473, where it was held that the bank with which a- note was left for collection was liable for the failure to give the notice of non-payment which was necessary to charge the endorsers. In the case of Allen v. Merchants' Bank, 22 Wend., 215, this liability was again affirmed, and so far extended as to render the collecting agent liable for the default of agents employed by it for the effectual collection of the debt. There the bank receiving the bill from the plaintiff sent it to the Philadelphia Bank, in the city of Philadelphia, for collection, and that bank delivered it to its notary, who presented it for acceptance, which was refused. He then noted the bill for non-acceptance, but omitted to give notice thereof to the endorsers; when the bill became due it was in like manner presented for payment, and payment refused, when the notary protested it for non-payment. The question there was whether the Merchants’ Bank óf New York, which received the bill from the plaintiff, was liable to him for this omission of the notary to protest the bill for non-acceptance, and the court held that it was, although the defaulting notary was not selected to act by it, and was not its own agent or servant The conclusion arrived at by the decision was declared by a formal resolution, holding that when a bank, broker, or other money dealer, receives, upon a good consideration, a note or bill for collection in the place where such bank, broker or dealer carries on business, or at a distant place, the party receiving it for collection is liable for the neglect, omission, or other misconduct of the bank or agent to whom it is sent, either in the negotiation, collection, or paying over the money, by which it is lost, or other injury sustained by the owner, unless there be some agreement to the contrary, express or implied Id., 244. And this has been followed, although differing from the rule followed in several other states, in Montgomery Co. Bk. v. Albany City Bk., 3 Seld., 459; Com. Bank v. Union Bk., 1 Kernan, 203; Ayrault v. Pacific Bk. 47 N. Y., 570; Exchange Nat. Bk. v. Third Nat. Bk., 112 U. S., 282, and in cases also decided in other states.

In this latter case the bill was sent to the defendant, and under its authority presented to the drawee for acceptance, and he accepted it personally, when it had been drawn on him as secretary of the Newark Tea Tray Company. Here, as well as in the other cases mentioned or referred to, there was a distinct act of misconduct or neglect producing the loss, on which the liability was directly placed. While in the present case there was neither wrong, inattention nor carelessness on which the liability of the defendant could be placed. But the prevailing mode of transmitting the funds collected was adopted and followed.

This case also differs in a very material respect from Mackersy v. Ramsays, 9 Clark & F., 818, where the correspondent was held, liable because it had received the money and afterwards omitted, by reason of their failure, to remit or pay it over. The same result was reached after a very full examination of the authorities in Bradstreet v. Everson, 72 Penn., 134.

But the principle followed by these cases cannot logically determine the one presented by this appeal. For here the defendant did not receive or retain the money: neither was there any default in that respect on the part of its correspondents in Dallas. For they at once remitted the proceeds of the collection by the means usually taken for that object. And they were lost, not by any misconduct at either place, but by failures in business, which will at times occur, but which ordinarily cannot be expected or anticipated. They are the misfortunes of business, entailing losses, without fault or misconduct, which must be sustained by the parties upon whom they fall

In-the case of Indig v. National City Bank, 80 N. Y., 100, the important facts were like those now presented. The plaintiff delivered a note for collection to the defendant It was payable at the Bank of Lowville, to which the defendant sent it for payment. The maker was a depositor in that bank, but resided about thirty miles therefrom.

His balance was sufficient within thirty dollars to pay the note, and the bank thereupon sent back its draft on New York for the amount of the note, but before it could be presented, the bank at Lowville failed, and payment of the draft was refused, and the action there was to recover the loss. But the court held that the defendant was not liable, as the ordinary course had been followed, and there was no fault or negligence in selecting and using the means adopted for remitting the money. And the principle followed in deciding that case has also been sanctioned in Massachusetts, Buell v. Chapin, 99 Mass., 594; and that seems to’ be likewise the law-in the state of Tennessee. Bank of Louisville v. Bank of Knoxville, 8 Baxter, 101.

The case of Faulkner v. Hart, 82 N. Y., 413, justifies the application of no different rule to the decision' ofAhis case.' That relates to a different subject in no way including the present controversy. It is true that it is to be disposed 'of' under the general rules of the commercial law. But there is no authority for holding the rule necessarily invoked for this case to be in any respect at variance with that which was declared and followed in the cases last mentioned.

There is no well-sustained principle declaring the liability of the defendant under the facts now appearing, and the judgment should be reversed, and a new trial ordered, with costs to the defendant to abide the result.

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


text:
    Wright E. Post, Pl’ff, v. John W. Hazlett, Def’t.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Vendob and fubchaseb—Marketable title—Revebsionaby intebest of ADJOINING OWNEB IN CLOSED STBEET.
    Plaintiff’s grantor held under a deed which bounded the land conveyed by the side of the street. In proceedings taken under Laws 1869, ch. 890, to straighten the street, no award was made to plaintiff's grantor, the commissioners being under the erroneous impression that he had the reversionary interest in the road bed. Held, that the commissioners in such proceeding had no right to determine absolutely the ownership of the reversionary interest in the road bed; that plaintiff’s grantor had no such reversionary interest under his deed and acquired none under said proceedings, and that plaintiff could not convey a marketable title to the land formerly forming a portion of such road bed.
    Voluntary submission of a controversy under § 1279 of the Code.

      Lang don War d, for pl’ff; Albert J. Sire, for def’fi
   Brady, J.

The question to be determined is whether a deed from the plaintiff of the two houses and lots known as Hos. 216 and 218 West Fifty-third street, would convey a good and marketable title.

The land in question was formerly a part of the bed or roadway of the Bloomingdale road, which it is conceded was not conveyed to the plaintiff’s grantor by reason of the limited effect of the grant, according to the adjudications of this state on the subject of boundaries, but he claims to have acquired a good title by virtue of certain proceedings had under the act embraced in chapter 890 of the Laws of 1869, entitled “An act to alter the map or plan of the city of New York, and carry the alterations into effect.” In such proceedings, unfortunately for him, the commissioners have no power to determine authoritatively who is the owner of the reversionary interest in the roadbed, however conclusive their confirmed report may be as to all other features of the proceedings, and the act itself contains provisions indicating a legislative knowledge of this rule duly applied therein, although it would make no difference whether it did or not.

The commissioners assumed that Mr. Livermore, being the abutting owner, was entitled to the reversionary right to the bed of the Bloomingdale road, but which, as we have seen, by concession, was an erroneous view. The act, however, provides for the acquisition of the reversionary interest in the bed of the road by the abutting owner where he is not by right entitled to it. It declares as follows:

§ 2. If any part or parts of Broadway shall be closed under the provisions of this act, any owner of land now fronting on Broadway, abutting on any part so closed, may acquire an exclusive right, title and interest of, in and to so much of any part so closed as lies between the present front line of the land owned by him and the line of Broadway as it may be so as aforesaid located and established, and two lines respectively drawn at right angles to a line parallel with the Seventh avenue, from the northerly and southerly ends of the present front lines of the land owned by him, upon paying to the chamberlain of the city of New York, for the mayor, aldermen and commonalty of the said city, the amount of any award by the said commissioners of estimate and assessment, for the discontinuance of the public use of the land such owner is so entitled to acquire and also paying to the said chamberlain, for the parties entitled thereto, the amount of any award by the said commissioners for the reversionary interest in such lands or any part thereof; and no person shall acquire or be vested with any right, title or interest or to any such land until he shall have actually paid to the said chamberlain the amount of such awards, with interest thereon from the day of the confirmation of the report of the said commissioners ; but no award shall be made for the reversionary interest in case the parties having such interest shall be entitled to acquire the land.

No award however was made by the commissioners for the reversionary interest in accordance with this statute, for the reason that it was supposed, as already suggested, and was so determined by the commissioners, that Mr. Livermore having the reversionary interest was not entitled to any award. The importance of the award to the owner of the reversionary interest and the protection granted him is manifest from the provision of the act, section second, to the effect that the public use of any piece of land for which an award is made for the reversionary interest shall not be discontinued, nor shall the part of the street- be held to be closed until the party entitled to the award for the reversionary interest shall, by accepting such award, release his interest in the land for which the award is made. It may be appropriately observed here that perhaps as to the locus in quo the street has not according to these provisions been closed and its character as a public highway still exists.

Although the consideration of this case on the briefs has taken a wide range, the well established legal proposition that the commissioners had not the right to determine absolutely the ownership of the reversionary interest, and it appearing that the plaintiff was not the owner of it and, therefore, had no title to it, requires the conclusion that the defendant is entitled to judgment. The plaintiff could not convey to him a good and marketable interest. He neither acquired one by his deed nor by compliance with the statute, because no award was made to the owners of the reversionary interest in the roadbed, assuming that in a proceeding like that suggested such a determination would not be subject to objections founded upon provisions of the constitution of the state.

. The conclusion thus expressed is one very much to be regretted, for the reason that the deed from Taylor to Livermore was-executed many years ago, namely, in 1863, and, so far as appears from the statement of facts, neither he nor his heirs nor legal representatives have made any claim growing out of the changes 'which were accomplished by the provisions of the act of 1869, already mentioned. There is a seeming injustice in depriving Taylor’s grantee, and the plaintiff who holds under the latter, of the benefit and advantage of the roadbed, the rule as to the conveyance of which has been the subject of many conflicting decisions, White's Bank of Buffalo v. Nichols, 64 N. Y., 71, and which in this state seems to have been established by invoking the intention of the parties as modified by the terms of the deed as to boundaries, so that the question as to the boundary is in all cases one of the interpretations of the deed or grant, White's Bank of Buffalo v. Nichols, supra; the intent to transfer the bed of the street, in other words, being an important factor in the claim and chain of title, whereas, with great deference, the rule should have been just the converse,namely that the roadbed in front of premises conveyed should be embraced by the grant as part and parcel of it unless, as said in some of the cases, the intention ipsis verbis to withhold it from the transfer was expressed.

It may be said, as a rule of human action, that few grantors, if any, upon the execution of a conveyance, intend really and actually to withhold anything appurtenant to the land described, unless they so express themselves in the grant by which the transfer is made, which is very rarely, .if ever, done, the intention and the act of granting being to convey the land and all its immunities ; and the rules to the contrary seem to spring from technical interpretations of the language employed to describe the land conveyed, resting on technical refinements in which the intention and design of the grantee to acquire all advantages and by his purchase to get the whole estate has received no individual consideration whatever; indeed, the interpretation has generally resulted to the benefit of the grantor.

Por these reasons the defendant is entitled to judgment, because, as already suggested, the plaintiff is not able to convey a good and marketable title under the contract of sale and purchase. Ordered accordingly.

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


text:
    The People ex rel. The Union Trust Company of New York, App’lt, v. Michael Coleman et al., Commissioners, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Taxes—Corporations.
    Where, under § 3, chap. 456, Laws of 1857, commissioners of taxes are to determine the assessed value of the capital stock of a corporation, such commissioners are not restricted to the value of the assets. They may take into consideration the business of the corporation, its property, the value of its actual assets, the amount of its present and contingent liabilities, the amount of its dividends and the market value of its shares of stock in the hands of individuals.

      Appeal from order of special term dismissing writ of certiorari.

      Wheeler H. Beckham, for app’lt; George S. Coleman, for resp’ts.
   Brady, J.

This proceeding was instituted by the relator pursuant to chapter 269 of the Laws of 1880, for the purpose of reviewing the assessed valuation of its capital stock as fixed by the respondents for the year 1889.

The question presented and very elaborately argued on behalf of the appellant relates to the method of ascertaining the actual value of the capital stock of the corporation under the laws of this state for the purposes of taxation. On behalf of the appellant it is claimed that the assessing officers have no right, in any event, to place a higher valuation upon the capital stock of the company than the actual value of the assets. The respondents, on the other hand, insist that in determining that value they are not restricted to the consideration of assets, but can consider the business of the corporation, the amount of dividends it declared, and all the elements which go to make up what is called the market value of the shares of-its stock. And it is insisted as a legal conclusion that their judgment should not be disturbed unless shown to be clearly erroneous.

The learned justice in the court below considered that, under the act of 1857 and the construction given to it by the court of appeals in the case of the People ex rel. Knickerbocker Ins. Co. v. Coleman and others, 107 N. Y., 541; 12 N. Y. State Rep., 315, a definite rule had been declared and a binding construction adopted in reference to § 3 of chapter 456 of the act mentioned, that the construction of the statute was involved in the case and necessarily under consideration; and this view seems to be unassailable. The act referred to, by its third section, provides as follows:

“ The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this state, shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the county.”

This statute does not prescribe the mode of determining the value, which must be ascertained according to the terms of its provisions; but the course of adjudications bearing upon the subject have supplied, it would seem, the deficiency. In the case of the People ex rel. Twenty-third Street R. R. Co., 95 N. Y., 554, the court of appeals had occasion to consider the language of the act, and the apparent inconsistencies of the Revised Statutes concerning the taxes and assessments upon incorporated companies when considered in connection with the act of 1857 were explained, and it is claimed that whatever doubts existed prior to 1884 were removed by that decision. In 1885 the act in question was again before the court of appeals in the case of The People ex rel. The Butchers' Hide & Melting Company v. Asten, 100 N. Y., 597. In that case the court said:

“ Under this statute the commissioners were required to ascertain and determine the actual value of the stock, and make the deduction as provided. This was done by placing an estimate on the capital stock at its par value. The commissioners did this in the performance of their judicial duty, which conferred upon them authority to act in accordance with their own knowledge and with such information as they were able to obtain as to the real value of the stock from sales in the market, or otherwise, and by ascertaining the value of the property which the stock represented and by determining the dividend earning power of the corporation. There is no evidence in the record before us which establishes that the value fixed by the commissioners was incorrect or unauthorized, and it does not appear unqualifiedly and beyond question that the value of the capital stock was less than par.”

It appears that the entire capital of the Butchers’ Hide & Melting Company was invested in real estate, and that the company owed $80,000 for which a mortgage had been given; that it had but little personal property of any value and that its business had lately yielded no dividends. The court of appeals assuming all these facts to be true held:

“ That they were by no means conclusive, as it is well known that the stock of corporations may have a market value, even although for the time being they are unable to pay dividends.”

In 1887 the act was again before the court of appeals in the case of The People ex rel. The Panama R R. Co. v. Com'rs, 104 N. Y., 240; 5 N. Y. State Rep., 647; in which it appeared that the commissioners in fixing the actual value of the capital stock took the actual value of the shares as a measure of the value of the stock. That practice was not denounced; it was not held to be illegal or erroneous; it was not held to be an improper test and not so declared

The most comprehensive expression of the court of appeals on the method of ascertaining the actual value of capital stock for the purposes of taxation is found in the case referred to by the learned justice in the court below. People ex rel Knickerbocker Fire Insurance Company v. Commissioners, 107 N. Y., 541; 12 N. Y. State Rep., 315; affirming 44 Hun, 410; 9 N. Y. State Rep., 29.

The opinion of Earl, J., in its entirety was concurred in by the court and is directly applicable to the controversy involved herein and practically disposes of its issues. Judge Earl in the course of his opinion said “ This section has been under consideration in this court several times and its true construction and practical application have been found not to be entirely free from difficulty. The law does not prescribe how the actual value of the capital stock of a corporation is to be ascertained. That is left to the judgment of the assessors, and in appraising the actual value they have a right to resort to all the tests and measures of value which men ordinarily adopt for business purposes in estimating and measuring values of property.

“They may take into account the business of the corporation, its property, the value of its actual assets, the amount and nature of its present and contingent liabilities, the amount of its dividends and the market value of its shares of stock in the hands of individuals. They may resort to any or all of these as to them seems best and they are not confined to one of them. They may take that test which they think will be most likely to give them the actual value of the stock, and they may disregard all the others.

“The law. commits the matter to their judgment, and when they have exercised that it is subject to no review or correction except as prescribed by law.” The precise doctrine of the case cited has been applied in this department in the case of the Central Park, etc. R. R. Co. v. Commissioners, 21 N. Y. State Rep., 350. The precise point involved here arose in that case and was passed upon.

It thus appears that the commissioners in making the estimate of which complaint is made acted within the line of their duty and their proceedings are not distinguished by the adoption of any improper rule of action or of control. It is conceded that the argument on behalf of the appellants is comprehensive, elaborate and ingenious, but it cannot avail- them for the reason that the question has been considered and disposed of by the court of last resort, and it is not therefore open to discussion.

It may be said in conclusion that there is really no evidence in this case showing or tending to show that the value adopted by the respondents was excessive, as suggested by the learned counsel for the appellant, or that the deductions allowed by them were insufficient. Indeed it is not understood that the relator assaults the result but rather the methods adopted by the commissioners in assessing the value of the capital stock. But the methods were lawful, as we -have shown, and there is therefore no reason for interfering with the judgment of the commissioners.

The order appealed from must be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.


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    In the Matter of The Metropolitan Elevated R. Co. (In re Jones et al.), Parcel of Oberfelder.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Eminent domain—Elevated railroad.
    Where commissioners were appointed to ascertain the compensation to he made to owners for certain easements taken hy the Elevated Railroad Companies of New York, and no exceptions were taken on the trial, and the report of the commissioners was confirmed, and there was evidence to support their findings, this court will not interfere.
    The special proceeding was commenced on September 20, 1889, by service on Tobias Oberfelder, the respondent, of the petition and notice of application for the appointment of commissioners. The petitioner, The Metropolitan Elevated Railway Company, is a domestic corporation organized and existing under and by virtue of the acts of the legislature of this 'state, being chap. 885, Laws 1872, chap. 837, Laws 1873, chap. 275, Laws 1874, chap. 606, Laws 1875, and the acts amendatory thereof and supplemental thereto. The respondent, Tobias Oberfelder, purchased the premises in question, Ho. 140 First avenue, in this city in 1854, and ever since then has owned and occupied the same; these premises are eighty feet deep, and have a frontage of eighteen feet ten inches on First avenue. Upon this lot is erected a building of brick, four stories in height and eighty feet deep, forty-six feet six inches in height, eighteen feet ten inches in width on First avenue, and is used as a store and dwelling.
    First avenue is one of the public streets of this city, and was •opened under and by virtue of chapter 86, Laws of 1813, and the acts amendatory thereof and supplemental thereto. The elevated railway structure was constructed and the operation of the railway was begun by the petitioner, and since the year 1879 the railway has been maintained and operated by the petitioner and the Manhattan Railway Company, respectively, as lessor and lessee. The ¡structure of the railway and the manner of operating the same is familiar to every resident of the city and'is particularly described in the report of the commissioners.
    In September, 1889, the Metropolitan Elevated Railway Company began these proceedings to acquire so much of the property, ■easements and other interests in First avenue appurtenant to or part of or constituting the street in front of the said premises as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner as the same is now constructed and maintained, etc., and as has been and may be required by reason of the operation of said railway with cars or trains of cars, etc. The respondent consented to the granting of the prayer of the petitioner and to the appointment of commissioners therefor; the order was entered appointing Messrs. Andrew H. Green, Dwight B. Olmstead and Edward C. Donnelly,
    , commissioners “to ascertain and appraise the compensation to be made to the persons hereinafter specified as owners of premises respectively interested in the privileges, easements or interests taken by the petitioners herein for the purpose of its incorporation as described in the petition herein, to wit, the constructing, maintaining and operating its railway, including its roadway, tracks, etc., for its usé as an elevated railway, and so long as the said streets or avenues or any of them shall be used or maintained as public streets, highways or thoroughfares, which said privileges, easements or interests are situate in the city and county of New York.”
    The said property and real estate is further described as follows: So much of the property, easements or other interests in the streets and avenues respectively hereinafter named and intersecting streets appurtenant to or part of or constituting the streets in front of or alongside of the lots and premises hereinafter described respectively, as has been taken by reason of the construction and maintenance of'the elevated railway of the petitioner, as the same is now constructed and maintained, etc.., and as is required by reason of the operation of said railway with cars, etc.

      These commissioners met and the proceedings were conducted by them in strict compliance with the provisions of the law governing these special proceedings; their report was duly made and filed on July 1, 1890. The important part of the report of the commissioners is as follows:
    “ Ninth. That the compensation to be made for so much of the privileges, easements and rights appurtenant to the said lot of land known as No. 140 First avenue, in the city of New York, as has been taken by and for the purpose of the petitioner in the manner that the same has been taken by the petitioner by the construction, maintenance and operation of the said railroad through First avenue, in front of the said lot, as hereinbefore described, and in accordance with the plan hereto annexed, is the sum of seventeen hundred dollars ($1,700), etc.” The order of the special term confirming this report was duly made and entered on July 9, 1890. From this order of confirmation the petitioner appealed to the general term of this court on July 21, 1890.

      Davies & Bapallo, for app’lts; D. B. & C. P. Cowles, for resp’t.
   Brady, J.

No exceptions were taken by the appellants and the proceedings present only the questions, if any, which spring from them, namely, whether the respondent Oberfelder was entitled to an award, and if yea, whether the compensation given was so excessive as to be palpably wrong. The recorded testimony was in conflict to some extent on the subject involved, but, as the record does not necessarily give all the influencing circumstances, the whole case is not, it may be said, before us.

It is familiar law that in proceedings like these the commissioners are not, like other tribunals, to be governed exclusively by evidence, or confined to the strictness observed in common law actions in the receipt of evidence and can view the locus in quo. Aside from this it does not appear upon the record that the commissioners erred in the principles upon which they made their appraisal, a circumstance striking and impressive relating to that conclusion being the absence of exceptions. Both parties had an equal range of proof and the respondent was the successful party, and it cannot be said either that he was not entitled to damages or that the amount given was excessive. The facts showing a depreciation in the enjoyment of the respondent’s premises and a diminution of their value were stated and reported by the commissioners to exist arising from the construction and use of the appellants’ road and appliances. The proof showed that while the property in the immediate vicinity had since the respondent’s purchase of his premises increased twenty-five per cent, the respondent’s had only increased ten per cent in consequence of the appellants’ structure and the running of its locomotives. The commissioners gave less than these figures warranted however and this decreases the cause of complaint by the appellants. It is not at all difficult in these cases to build up theories upon which an appeal seems to be plausible or to advance others which may be the subject of examination in other cases, or to assume that the commissioners have considered improper items of damage, but. only questions which, rest upon some tangible basis can be properly considered. In this brief review all is said that is deemed appropriate except that there has been nothing discovered which calls for a reversal. The order appealed from should therefore be affirmed, with costs.

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


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    Lisette Spliess, Resp’t, v. Bertha Meyer, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Partition—Parties.
    In an action for partition of the real estate of U., where plaintiff, an heir at law, was a tenant in common with some of the defendants, the defendant M. was made a party ; and the complaint alleged that she claimed to be the widow of U., and as administratrix had collected rents of this real estate; that she claimed dower ; that she was not U.’s widow and was never legally married to him. Held, that the defendant M. was a proper and necessary party defendant.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Antonio Knauth, for app’lt; J. G. Julius Langbein, for resp’t.
   Daniels, J.

The action is brought by the plaintiff as one of the heirs at law of Greorge TJehlinger, deceased, for the partition of his real estate. The complaint alleges that the defendant Bertha Meyer, calling herself Bertha TJehlinger, claims to be the widow of the deceased owner of the property, and entitled to dower therein. It is further averred that she is not the lawful widow of TJehlinger, and was never legally married to him, but as administratrix has collected and received the rents of his real estate. This defendant demurred to the complaint on the ground that it failed to state facts constituting a cause of action against her.

But it does appear from it that the plaintiff and two of the defendants-were tenants in common of the real estate described in the complaint, and that this defendant claims to be entitled to an estate in dower therein, which is* sufficient reason for making her a defendant. Code Civil Procedure, §§ 1538, 1539.'

The fact that her right to dower in the premises may be controverted and thereby result in an issue for its trial, would not justify her omission as a party. For the practice in actions of partition has been so far changed as to provide for the trial and determination of this as well as other classes of disputes concerning the title to the estate to be partitioned. Claims arising out of transactions connected with the same subject of action may now be united in the same action, whether they be legal or equitable or both. Id., § 484, subd. 9. The object is to provide for a complete determination of the controversy, and to clear it up entirely, so far as it is connected with the same subject. And that is the nature of the claim made for dower in this property by this defendant. It has also been particularly and further provided that adverse claims of title or interest in the property may-, be tried in the action of partition. Id., § 1543. And for that' object a trial by jury has been provided. Id., § 1544. And the interlocutory judgment is required to declare the right, share or interest of each party in the property, so far as the same shall be ascertained, and it must determine the rights of the parties therein. Id., § 1546. And for that determination this defendant is a necessary party. It could not be made without affording her an opportunity to be heard.

These further and special provisions are consistent with no other conclusion than that the rights and interests of the different parties in the property were intended to be tried and defined in the action. For all the necessary modes of proceedings have been carefully supplied and directed to be followed for the attainment of that end. And so they have been regarded by the courts. Hulse v. Hulse, 23 N. Y. State Rep., 123; Brown v. Brown, Id., 768; Shannon v. Pickell, 2 id., 160. These changes, as they are now contained in the Code of Civil Procedure, and so far as they had previously been made by 3 R. S., 6th ed., 586, §§ 20-27, do not appear to have been brought to the notice of the court in the case of Van Schuyver v. Mulford, 59 N. Y., 426. And that authority cannot, therefore, be followed as controlling. But as the provisions of the statute have been made applicable, fully authorizing and requiring the settlement by trial of contested claims, they are imperative and must be followed. This case is clearly within these changes in the law. And the judgment should be affirmed, with costs, but with liberty to the defendant to withdraw her demurrer and answer within twenty days upon payment of the costs of the demurrer and of the appeal.

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


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    Lillian Stahl, Resp’t, v. Richard Stahl, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. DrvonoE—Alimony—Decebe.
    Where a judgment of divorce provides that if the plaintiff survived tie. defendant, or the circumstances of the parties should materially change, an application might be made at the foot of the judgment for a modification as to the allowance for support, Ithe decree is not a final judgment as to. alimony, and the same may be increased.

      (Kamp v. Kamp, 59 N. Y., 212, distinguished.)
    2. Same.
    Under such a decree the allowance may be increased by the consent of' the defendant.
    3. Same—Peovision as to execution.
    A provision in such a decree for execution against the defendant in case the alimony was not paid cannot be stricken out on motion, but is reviewable only on appeal. Such provision could not injure the defendant, as, in any event, the statutory provisions would have to be observed if the execution was to be enforced against his person.
    4. Same. •
    A motion to set aside an ex parte order for the issue of process against the defendant is premature where it does not appear that any execution or process against his person has been issued.
    Appeal from an order of Andrews, J., denying an application to set aside a commitment of the defendant herein, to vacate the order increasing the amount of alimony, and to strike out certain portions of the decree.

      Benno Loewy, for app’lt; Gilbert B. Hawes, for resp’t
   Brady, J.

The scope of the decision of Kamp v. Kamp, 59 N. Y., 212, seems to have been misunderstood by the counsel for the appellant and has led him into errors which have very much enlarged the sphere of this appeal. In that case it was decided, it is true that in an action for a divorce a vinculo the jurisdiction of the court over the subject matter of the action and the parties with respect to all matters involved in it terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment. Therefore if no provision be made in the decree for alimony it is to be presumed that the court decided adversely to the claim of that allowance and the decree is equally final as if such provision had been made. It appeared in that case, it should be noted, that the application was made in a suit terminated by final judgment divorcing the parties a vinculo more than eighteen years before the proceeding was instituted, and therefore was regarded without precedent and without jurisdiction. And it followed as a matter of course that the order which was complained of, being made without jurisdiction, was utterly void and unavailable for any purpose, a doctrine which could be set up collaterally or otherwise and therefore could be employed upon a motion.

That case is entirely different from this. The court in pronouncing judgment herein declared that if the plaintiff should survive the defendant or any other event should occur materially changing the circumstances of the parties, or either of them, an application might be made at the foot of the order, decree and judgment by any party in interest for such modifications of the judgment touching the said allowance for support, as might be just, in view of any right, title and interest in or claim to the estate, real or personal, of the said Bichard Stahl which might then have accrued to her, by act and operation of law, or in view of any such other event

The reservation of this right of supervision being a part of the original decree, was designed to continue the subject to which it related within, the jurisdiction of the court, and was in effect a continuation of the power of the court over the subject and the parties, and was not as to alimony a final judgment. In that respect, therefore, it differed from the judgment considered in the case just cited, and is in no respect kindred to it.

The counsel for the appellant is also in error in supposing that the amount of alimony established by the final decree cannot be enlarged by the consent of the defendant, as was done in this action, and which presents, therefore, an entirely different feature from that of Kamp v. Kamp, in which the application was made for an increased allowance and opposed by the defendant. This is not a case or proceeding in which the court had no jurisdiction; on the contrary, it had jurisdiction of the subject-matter and of the parties, and preserved it by the decree to which reference has been made. The consent was, therefore, abundantly sufficient to enlarge the allowance. It was germane to the subject and within the line of the reservation of power mentioned.

This view disposes of a number of suggestions contained in the brief of the appellant’s counsel, and among others that the court had no power in the final decree to provide for execution against the person of the defendant for the alimony therein ordered to be paid. That having been part of the original decree, could be taken advantage of only by appeal. If the defendant were arrested, however, in a proceeding against him for the non-payment of alimony, it would be one in the nature of a contempt. The statutory requirements thereof could not be dispensed with notwithstanding the decree, and, therefore, upon that particular subject the decree was of no practical utility. It neither inured to the benefit of the plaintiff nor to the disadvantage of the defendant. Whatever methods are provided for the enforcement by imprisonment for the non-payment of the alimony ordered must be adopted, no matter what the nature of the decree may be, and orders relating to it being unauthorized, might doubtless, under the decision in Kamp v. Kamp, supra, be disregarded, and, therefore, in reference to such a subject are wholly immaterial:

It is not important either to consider the suggestion of Justice Andrews as to the effect of § 1487 of the Code in relation to proceedings for the non-payment of alimony ordered by the decree, inasmuch as the proceeding itself, as already suggested, would be controlled by the provisions of the Code relating to the subject, and which must necessarily be invoked and complied with in any such proceeding. It may be remarked here that in the different points presented by the counsel for the appellant the decision in the case of Kamp v. Kamp has been arrayed as an authority sustaining the doctrine advanced in each, but, as we have seen, that case is not applicable here for the reason that the order in reference to the alimony complained of was made authoritatively, and, therefore, not without jurisdiction.

Out of a multitude of points presented on behalf of the appellant, one alone seems to be forcible, and that is that granting an ex parte application for process against the person of the defendant for non-payment of alimony was not authorized by law and could not be sustained, even when based on a decree which provides that an application may be made ex parte for such process if the defendant fails to obey its mandates. The application, under such circumstances, must necessarily rest upon the affidavit of the plaintiff or her attorney as to the non-payment of the alimony. That, however, is not conclusive evidence, though prima facie sufficient to warrant an order to show cause, and does not become so until after the return of the order and the omission of the party proceeded against to deny or explain. Aside from these considerations, it does not appear that any execution or. process against the person of the defendant had been issued herein and the motion which resulted in this appeal was, therefore, premature. Non constat that any process would be issued except in the mode provided by law; and the object of the proceeding would seem to be, as suggested in the papers presented on behalf of the plaintiff, to enable the defendant to come into this jurisdiction and remain here for such time as he might safely do so in expectation of a hostile proceeding in reference to alimony.

It must also be suggested that the defendant made the application out of which this appeal grew by his attorney when his client, was designedly and it maybe said unjustifiably out of the jurisdiction, nevertheless the proceedings were entertained, the counsel for the appellant supposing erroneously that as all the proceedings complained of were irregular according to the decision in Kamp v. Kamp, and the right proclaimed by that case to dispose of the various objectionable features of the judgment roll and of the proceedings complained of by motion, he could proceed in that mode without waiting for the return of his client to our jurisdiction or the attempted enforcement of anything hostile against his client. It is a striking illustration of what misconception of an adjudication and its doctrines may lead to in its attempted application to a particular case embracing features and elements without its purview, and, therefore, uselessly employed.

It may be said in conclusion that the following expression with regard to the merits of this case indulged by the learned justice presiding in the court below has a fitting place here: I am not called upon in deciding this motion to express any opinions as to the merits of the controversy which has been going on between the plaintiff and the defendant for several years ; but I may say that, so far as appears by the papers before me, the defendant is not entitled to any special consideration at the hands of the court. The decree was made after a long hearing and adjudged that the defendant had been guilty of adultery and granted a divorce to the plaintiff. The decree and subsequent order, made, as above stated, upon the written consent of the defendant and his then attorney, awarded alimony to the plaintiff, and it is conceded that a large part of such alimony has not been paid; and it is claimed that the defendant is able to pay the same, but -has left and remains out of this state to avoid the process of the court. Being in contempt of the decree and order of the court, he is not in a very good position to ask the court to exercise extraordinary and doubtful powers in his behalf.

For these reasons the order appealed from should be affirmed, with ten dollars costs.

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


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    In the Matter of the Petition of Jacob Lorillard et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    1. Constitutional law—Title op act—Laws 1890, chap. 349.
    Chapter 349, Laws of 1890, gave full power to commissioners to take lands for the Washington bridge in New York. Section 3 declared that upon an application for that purpose such proceedings should be had as are provided for the acquisition of real estate by chap. 490, Laws of 1883 (aqueduct act.) Held, that § 3 did not violate § 17, art. 3 of the state constitution, which declares that no existing law can he made part of an act to he passed unless inserted therein.
    2. Eminent domain—Bridges—New York city.
    Said § 2 did not, however, provide the manner in which the application should be made. Held, that this was legal business of the city and under chap. 410, Laws of 1882, § 215, its conduct was made the duty of the law department of the city; and that it was substantial error to allow it to be carried on by any person other than the corporation counsel.
    Appeal by the mayor, etc. of the city of New York, from an order appointing three commissioners or appraisers to ascertain and determine the compensation to be made to the owners and others interested in parcels of land to be acquired under chap. 249 of the Laws of 1890.

      David J. Dean, for app’lt; James C. Carter, A. B. Johnson and JET. D. Hotchkiss, for resp’ts.
   Daniels, J.

The first important objection taken to the legality of the.proceedings which resulted in the appointment of the commissioners of appraisement, is that § 2 of chap. 249 of the Laws of 1890, so far as it has prescribed the mode of proceeding to be taken and followed in obtaining title to these lands, is a violation of and in conflict with § 17 of art. 3 of the constitution of this state. This section went into effect on the first of January, 1875, and has since formed a part' of the constitution of this state.

It has declared that “No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting "it in such act.”

And the position taken upon it in support of the appeal is that the direction declaring that, “Such proceedings shall be had upon such application, except that the same shall be in the first judicial district, as are provided for the acquisition of real estate by chap- " ter four hundred and ninety of the Laws of eighteen hundred and eighty-three, and with like effect, and all payments for the real estate so acquired, and for the charges and expenses of acquiring the same, shall be made in the manner in which such payments are to be made and out of moneys therefor to be raised as provided in the said last-mentioned act,” is in conflict with this part of the constitution.

The act in this manner referred to was enacted to provide new reservoirs, dams and a new aqueduct, to supply the city of New York with an increased amount of water. And by sections 6 to and including 22 of that act, the proceedings were prescribed which should be followed to acquire title to and make compensation for the lands required for the work thereby authorized. And all that was designed by this part of § 2 of the act of 1890 was that the same proceedings should be taken and followed, and the compensation in like manner provided and made, to acquire the title to the lands to be obtained by these commissioners. There are eight parcels of these lands, and the commissioners’ right to acquire title to them has only been denied in case this section of the act of 1890 is in conflict with § 17 of article 3 of the constitution of the state, and if the proceedings to obtain that title have been regularly instituted.

Since this section was made a part of the constitution of the state, very similar acts have, from time to time, been enacted by the legislature. And where they have not been silently acquiesced in, this form of legislation has been maintained by the courts. The facts that this exercise of legislative power has been so generally uncontested, with its frequent repetition, are circumstances indicating the correctness of the conclusion that there is no such conflict between this form of legislation and the constitution as will require this law to be condemned. For the existence of this legislative practice, assented to as it practically has been on the part of the public for a series of years, are indications of the general conviction that it does not infringe upon this restraint of the constitution. People, etc. v Dayton, 55 N. Y., 367, 377-8.

To invalidate an act of the legislature because it transcends the restraint of the constitution, a conflict between them must be clearly found to exist. “ Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law.” People v. Briggs, 50 N. Y., 553, 558. And it has been added that “proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated.” United States v. Harris, 106 U. S., 629, 635.

That the legislature violated this restraint of the constitution in the enactment of so much of the act of 1890 as has now been drawn in question, has certainly not been exhibited with this degree of clearness. For it has neither been provided in this part of the act that so much of the law of 1883 shall be made a part of it, nor has it been enacted that any part of that act shall .be applicable to it. But all that has been provided for is that the proceedings for the acquisition of the title to the lands required for public use by the act of 1883, and for the compensation to be made to the owners, shall be followed in acquiring the lands now proceeded against The authority to acquire the title is wholly provided by the act of 1890. And it is only to indicate the course of proceeding to be followed to obtain that title that this reference is made to the act of 1883.

In all respects, the authority of the commissioners has been created and provided by the act of 1890, but it is to be carried into effect through the course of proceeding otherwise provided for by the other act. The latter act regulated the practice, while the act of 1890 created the authority to proceed under that practice. And that this form of legislation was not in violation of, or in conflict with, this part of the constitution was held in People v. Banks, 67 N. Y., 568.

It is true that the similar reference contained in the act then before the court was to a general law of the while here it is to a local act. But that difference will justify no distinction in the application of the principle. Sustaining this reference to a general law will equally require it to be maintained' when the reference is made to a local law, no reasonable distinction can be made between the cases. And that was virtually assumed in the decision of the case last mentioned. For it was then said that “ there is no evil of this or any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving effect to a statute otherwise perfect and complete. ” Id., 576.

And in deciding Wells v. City of Buffalo, 14 Hun, 438, 440, the principle was sustained in its application to a direction for compliance with another local act. And the cases of Union Ferry Co., 98 N. Y., 139, and People v. Squire, 107 id., 593; 12 N. Y. State Rep., 832, have in no respect abridged this application of the principle.

In the enactment of the law of 1890, the act of 1883 was clearly within the knowledge and understanding of the legislature. The reference to the latter in the former is complete, exhibiting a perfect comprehension of what was intended to be accomplished. The two acts form an intelligible system, by which the authority provided solely by the act of 1890 can be regularly carried into effect. Both upon principle, as well as authority, there can be found no conflict between the act of 1890 and this section of the constitution of the state. And the court did accordingly possess the authority to appoint commissioners of appraisement to obtain this title. .

But while the commissioners in charge of the work of providing the Washington bridge were authorized by § 2 of chap. 249 of the Laws of 1890 to apply for the appointment of three disinterested persons as commissioners of appraisal, the manner in which that application could regularly be made was not prescribed nor defined by it. The power alone was given tó them by this act, without indicating in any manner the practice to be followed in its enforcement. That, therefore, may be properly ascertained by consulting so much of chap. 410 of the Laws of 1882 as has provided for the transaction of the legal business of the city. This was business of that description. For the land to be obtained was for the city and to be part paid for by it, when obtained the title to it was to be vested in the city and held in trust by it for the benefit of the public.

By § 215 of this act the law department of the city has been given “the charge and conduct of all the law business of the corporation and its departments, and of all law business in which the city of New York shall be interested,” except as otherwise might be provided. There was no provision of law excepting this proceeding from this very general provision, and it should be so construed as to include it in fact, as it does in its terms.

This was not merely a formal enactment for the interests of the city, and the avoidance of confusion and the prevention of abuses were intended to be secured by it. If commissioners in one case could withdraw the conduct of their legal proceedings from the law department, there would be nothing to prevent the same from being done in all other instances, and endless confusion would be the result. The power has also been specially deputed to that department to guard the interests of the city. It is expected to act justly and impartially, and that it will avoid all extraneous influences which might affect an individual not subject to the same responsibilities. Its duty is to see to it that the city shall not be obliged to pay more than a fair equivalent for what it is to obtain and at the same time to avoid injustice to the party whose property may be acquired. And there is great and manifest fitness in confiding the control of all these proceedings to that department of the city government.

The objection that this proceeding was not instituted and carried on before the court by the corporation counsel is not formal, but substantial. It vitally affects the rights of the city whose inhabitants, by way of taxation, must finally pay the price awarded for the property. And the omission of the counsel, if it was in fact omitted, to present this objection when the application was heard, was no waiver of it. His duty was not to waive or surrender it, but to insist upon its observance. But if he failed from inadvertence to make the objection, the public interests cannot be permitted to suffer on account of that fact. For the law is mandatory that the law department shall have the charge of the legal business of the city and it is equally the duty of this court to observe and maintain that mandate. That can be no otherwise now done than by vacating this order, and requiring the commissioners to make their application and conduct their proceedings to obtain the title to this land through the intervention of the law department of the city.

The order should, therefore, be reversed, and the motion denied, without prejudice to a renewal of the application by the counsel of the city.

Yak Brunt, P. J., and Brady, J., concur.


text:
    Elijah Myers et al., Pl’ffs, v. Benjamin F. Trescott, Def't.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1891.)

    Sale—Acceptance op offbb.
    Defendant wrote plaintiffs offering to sell them a grade of dried apples called “ chops ” at a price stated. Plaintiffs accepted by letter the offer at the price and added “ we do this of course on the presumption that the goods are of ‘ prime ’ quality and run 200 pounds net or more per barrel. Please send us sample at once and we will then give you shipping directions.” Upon the day on which defendant received plaintiffs’ letter, defendant received a better offer which he accepted. In an action for breach of contract, Held, that plaintiffs’ letter, in view of its conditions about weight, quality and sample, was not an unqualified acceptance and that there was no sale.
    Motion by defendant for- a new trial upon exceptions directed to be first heard at the general term, the judgment being in the meantime suspended.

      James 0. Foley, for def’t; T. Henry Dewey, for pl’ffs.
   Daniels, J.

A verdict in the action was directed by the court in favor of the plaintiffs for the sum. of $162.34 as damages for the breach of a contract for the sale of what were called chops. ' The article alleged to be sold was dried apples, packed and understood in the trade as chops. On the 22d of January, 1888, the defendant wrote to the plaintiffs

F. Myers & Co., New York:

Gents.—If you can use my entire lot of chops at 2 3-4c., I will let you have them. I have between 65,000 and 66,000 2 3-4 F. O. B. New York, lighterage free, or one car load at 2 7-8, N. Y.

If you want them let me know promptly. They are packed heavy in barrels, having used a “ Sampson jack ” to pack them. Of uniform quality in every respect.

Yours, etc.,

B. F. Trescott.

And they replied to this letter on the twenty-fourth of the same month as follows:

New York, Jan. 24th, 1888. Mr. B. F. Trescott, Pavilion, NY.:

Dear Sir.—Your favor of 22d just to hand, and we have concluded to accept your offer of all your chops, between 65,000 and 66,000 pounds, at 2 8-4c., delivered lighterage free, New York.

We do this, of course, on the presumption that the goods are of “ prime ” quality and run 200 pounds net or more per barrel.

Please send us sample at once and we will then give you shipping directions.

Yours truly.

E. "Myers & Co.

And the controlling question in the case is whether this was such an acceptance of the plaintiffs’ offer as resulted in the making of a contract. The offer was direct and explicit, and so was the first paragraph of the defendant’s reply, and if the correspondence had ended there a legal contract between the parties would have been made. But it did not, for the plaintiffs then proceeded to add a statement by way of qualification of their acceptance. And they were that the goods were of prime quality and ran 200 pounds net, or more, to the barrel, and requested a sample to be sent at once, when the plaintiffs would give the defendant shipping directions. This was in the nature of conditions added, rendering the preceding explicit acceptance dependent upon the facts that the apples were of prime quality and ran 200 pounds or more to the barrel, and that the quality should be further assured by a sample at once sent to the plaintiffs. These qualifications left the transaction open in such a manner that if the plaintiffs did not find the apples either to be of prime quality or to run 200 pounds net or more to the barrel, they would be at liberty to refuse to receive them. And it made the acceptance to depend upon facts not contained in the defendant’s proposals of sale. To create a binding contract by way of correspondence the law requires the offer to be accepted by the party to whom it may be made as it shall be contained in the offer itself. If that is not done, then the minds of the parties do not meet upon the terms contained in the offer, and no contract of a binding nature js brought into existence. Upon this subject it was said in Fliason v. Henshaw, 4 Wheaton, 225, “ That an offer or bargain by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of or departure from these terms invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties the negotiation is open and imposes no obligation upon either.” Id. 228. And this principle was followed in Carr v. Duval, 14 Peters, 77, 83, and in Mactier's Administrators v. Frith, 6 Wend., 103; Mayer v. McCreery, 9 N. Y. State Rep., 114; affirmed, 119 N. Y., 434; 29 N. Y. State Rep., 690; Potts v. Whitehead, 23 N. Y. Eq, 512; Lyman v. Robinson, 14 Allen, 242, 254; Corcoran v. White, 117 Ill., 118; Sievewright v. Archibald, 17 Q. B., 103, and Carter v. Bingham, 32 Upper Canada, Q. B., 615.

The plaintiffs wrote again to the defendant on the 30th of January, 1888, giving directions for the shipment of the apples. But these directions he declined to comply with, stating to them in a letter of the 1st of February that their reply of the 24th of January had not been received until the 28th, when he found a telegram from other parties awaiting him offering a higher price for the apples, which he immediately accepted. A further letter was written by the plaintiffs to the defendant on the 9th of February, but neither this letter nor the oral evidence given in the case made ■ any change in-the least degree beneficial to the plaintiffs. For the contract to be binding upon the defendant was required by the statute of frauds to be in writing. And as long as the proposal made by him was not unqualifiedly accepted by the plaintiffs, no such contract was created, and the defects in the correspondence could not be removed or corrected by any conversation to which the defendant was not a party, or letters afterwards written to him with whose terms he declined to comply. The plaintiffs accordingly were not entitled to recover under the evidence as it was produced in the action, and the verdict should be set aside, and a new trial ordered, with costs to the defendant to abide the event.

Tan Brunt, P. J., and Brady, J., concur.