author: Andrews, J. Gray, J.

text:
    John Reining et al., Resp’ts, v. The New York, Lackawanna & Western Railroad Co., App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Railroads—Appropriation op street.
    While it is competent for the legislature to authorize railroad, tracks, either for steam or horse railroads, to be laid on the ordinary grade of streets, the fee of which is in the state or municipality, without making compensation to abutting owners for consequential injuries to their property, the legislature cannot legally authorize structures for railroad purposes to be erected therein for the use and convenience of railroads which practically exclude the abutting owners from the part of the street so occupied, without compensating them for the injury suffered, and it is not necessary that there should be an actual physical exclusion of the lot owners from the use of that part of the street to entitle them to a legal remedy, but it is enough if such part of the street is practically and substantially closed against them for ordinary street uses.

      2. Same—Change op grade.
    Pursuant to permission given by the common council ’of the_ city defendant constructed its railroad through the street in front of plaintiff's premises, and in doing so constructed an embankment which was five feet high at that point, leaving a space between the retaining wall and the curb of only nine feet, not sufficient to allow teams to pass each other, nor a single team to turn without difficulty. The embankment was twenty-four feet wide, was paved, and had two tracks. The provisions of the charter as to a change of grade of streets were not complied with. Held, that there was

      no change of grade, hut an appropriation of the street to the purposes of the railroad, and that plaintiffs were entitled to recover for the injuries done to their property.
    (Earl and Pinch, JJ., dissent.)
    Appeal from judgment of the general term of the superior court of Buffalo, affirming judgment in favor of plaintiffs.

      John G. Milburn, for app’lt; David F. Day, for resp’ts.

       Affirming 35 N. Y. State Rep., 731.

   Andrews, J.

The principal question in this case respects the rights of the plaintiffs, as abutting owners, to recover damages occasioned by the construction of the defendant’s road in Water. street, in the city of Buffalo. The plaintiffs’ premises are situated on the northerly side of Water street and are bounded easterly by Commercial street, westerly by Maiden Lane, and southerly by Water street, and occupying the whole lot is a four story brick building, used as a store and residence, constructed before the railroad was placed in Water street. Water street runs easterly and westerly and has existed for more than forty years. Up to 1875, the plaintiffs owned the fee to the centre of the street opposite their premises, subject to the public easement. In that year proceedings were taken by the city of Buffalo to acquire the title to a large number of streets in Buffalo, including Water street, by condemnation, and resulted in the city acquiring the title, upon payment of a uniform and nominal award of five cents damages to each of several hundred owners of lots on the streets taken, including the plaintiffs.

In 1882 the common council of the city of Buffalo by ordinance granted to the defendant the right to construct and maintain two railroad tracks “ along Prince street to a point midway between Hanover street and Lloyd street, thence across Lloyd street at such grade as will permit said company with a practical construction to cross Commercial street at the height fixed by the state engineer; thence to and along the centre of W a ter street to the docks of the Delaware, Lackawana & Western Railroad Company at the foot of Brie street.” Commercial slip is a part of the Brie canal and separates Prince street and Water street, and together they form a continuous street except as it is interrupted by Commercial slip. The defendant, in pursuance of the permission of the common council, and in accordance with the map and profile approved by the council, and under the direction of the city engineer, proceeded to raise the grade on Prince street so as to enable the company to cross Commercial Slip by a bridge fourteen feet above the water line, the height fixed by the state engineer, and to meet this grade of the bridge constructed an embankment in the centre of Water street from the bridge easterly for the distance of 300 feet, passing the plaintiffs’ premises. Water street is sixty-six feet wide. The sidewalk on the Water street side of the plaintiffs’ lot occupies fourteen feet The embankment of the defendant is twenty-four feet wide, and at the junction of Water and Commercial streets (at the corner of which is the plaintiffs’ lot), it is five feet nine inches high, and from that point descends westerly by a gradual descent, passes the plaintiffs’ lot and across Maiden Lane and reaches the original level of the street nearly 300 feet west of the corner of Commercial and Water streets. The embankment is supported laterally by solid, perpendicular stone walls, which extend along Water street in front of the plaintiffs’ lot and across the entrance of Maiden Lane.

Between the perpendicular stone wall on the northerly side of the embankment and the sidewalk in front of the plaintiffs’ building is a space only eight to nine feet wide, which is the only carriageway left on the Water street side of the plaintiffs’ premises. Commercial street extends northerly and southerly from Main street to Buffalo Harbor. The raising of the embankment in Water street rendered it necessary to make an embankment in Commercial street, to meet the grade of the railroad, and this was done by the defendant. The defendant paved the surface of the twenty-four feet strip in Water street occupied by its embankment and laid thereon part of the way one track, and part of the way two tracks for the accommodation of its business. Carriages or teams cannot cross Water street in front of plaintiffs’ premises. This is prevented by the embankment Access to their premises on the Water street side from Commercial street south of Water street is also prevented except by first crossing Water street, and then passing along the embankment on Commercial street 130 feet, and then turning into the roadway on Commercial street between the embankment in that street and the sidewalk, and thence into Water street, or else when reaching the junction of Commercial and Water streets, by turning west and driving down the embankment along the railroad tracks about 300 feet to the end of the grade, and then turning and going westerly along the narrow roadway eight or nine feet wide on the northerly side of the embankment. This space is not sufficient to allow wagons to pass each other, nor can a single wagon with horses be turned around in this space, except with difficulty. It was conceded that the plaintiffs up to the time of the trial had sustained damages in the diminished rental value of their premises by reason of the embankment, in the sum of $525, for which sum a verdict was rendered, and no question now arises as to the rule of damages or the amount, provided, upon the facts, damages are legally recoverable.

The counsel for the defendant rests his claim that the judgment, should be reversed upon two general propositions: First, that the laying of tracks for the running of cars by steam on the grade of a city street, and the operation of trains thereon under legislative and municipal authority, where the fee of the soil is in the municipality, violates no property rights of an abutting owner, and consequently, in the absence of a special statute authorizing compensation, he is without remedy, although his property may be injured; and Second, that the erection of the embankment to accommodate the street to the use of the defendant was merely a change of grade which it was competent for the city to authorize in its discretion, and that such change of grade, although it damaged the plaintiffs’ property, was, within the case of Raddiff’s Fx’rs, 4 N.Y., 195, damnum absque injuria. The tracks, it is said, were placed on the new grade, and therefore on the surface of the street, and the case, it is claimed, is not distinguishable in principle from what it would have been if without any change of grade the tracks had been laid on the original surface of the street.

There was a third subordinate defense insisted upon, viz., that the charter of Buffalo gives a special remedy for injuries to lot owners from a change of grade of streets and that this remedy is exclusive and was the only one open to the plaintiffs.

The first proposition is sustained by our recent decision in Fobes v. R, W& O. R R. Co., 121 N. Y., 505; 31 N. Y. State Rep., 828. Prior to that decision it had been decided in People v. Kerr, 27 N. Y., 188, and in Kellinger v. Forty-second Street R. R. Co., 50 id., 206, which followed it, that the laying of horse railroad tracks in the streets of the city of Rew York, the fee of which was in the city, was consistent with their use as public, open streets, and with the trust upon which the streets were held, and that abutting owners had no remedy for any consequential injuries they might sustain from the construction and operation, under legislative authority, of a horse railroad in the street in the absence of any negligence.

The case of Williams v. The N. Y. C. R. R. Co., 16 N. Y., 97, was that of a steam railroad over lands previously dedicated by the owner for a street, where he retained the fee, and it was held that such a use was not within the scope of the dedication and that the legislature could not authorize such use except on condition of making compensation to the owner of the fee.

The same doctrine was applied under similar circumstances to the case of a horse railroad in Craig v. Rochester City R. R. Co., 39 N. Y., 404. These latter cases, as will be observed, decide the principle that neither a horse nor steam railroad can be authorized in streets the fee of which is in the adjacent owner, without his consent, while the former cases hold that where the fee is in the municipality, horse railroads may be authorized against the will of the abutting owner and without making compensation. The distinction is made to rest on the location of the fee.

The case of Fobes v. R.,W. & O. R. R. Co., supra, presented the distinct question whether the construction of a steam surface railroad, part of a long line of railroad, on the ordinary grade of a street, under legislative authority, subjected the company to liability for consequential injuries to the lot of an abutting owner, 'whose lot was bounded by the side of a street and who had no title to the soil therein. It was urged on behalf of the plaintiff that the cases relating to horse railroads were not applicable by reason of their different purpose, such railroads being primarily designed for street traffic, and steam railroads, such as that then in question, for ordinary railroad traffic, and also that the one by reason of the different motor imposed a different and increased burden on the street from that imposed by the other, and interfered to a much greater extent with the enjoyment of the street by abutting owners. The opinion of Judge Peckham in that case contains a careful review of the street railway cases in this state, both in this court and the 'supreme court, and it was shown that it had become the settled doctrine of our courts that as against abutting owners having no title to the bed of the street, it was competent for the legislature to authorize the construction of a steam surface railroad therein without making compensation to the owners of the abutting property injured by such construction, and that there was no legal distinction between the case of a railroad operated by horses and one operated by steam power, and the court reversed the judgments below in favor of the plaintiff. The court, in its opinion, distinctly limits the doctrine to cases where the railroad is laid on the same grade as the street, leaving ■ the street substantially free and unobstructed for ordinary travel. The learned judge, after referring to the law as established in this state on the subject, says: “Tire company was, therefore, not liable to such an owner for any consequential damages arising from a reasonable use of the street for railroad purposes, not exclusive in its nature, and substantially on the same grade as the street itself, and leaving the passage across and through the same free and unobstructed for the public use.”

And again, after showing that there -was no difference in principle between the cases of a steam and horse railroad, he says: “ If the use of either becomes unreasonable, excessive, or exclusive, or such as would not leave the passage of the street substantially free and unobstructed, then such excessive, improper or unreasonable use would be enjoined and the adjoining owner would be entitled to recover damages sustained by him therefrom, in his means of access, etc., to his land.”

It is no longer open to debate in this state that owners of lots abutting on a city street, the fee of which is in the municipality for street uses, although they have no title to the soil, are nevertheless entitled to the benefit of the street in front of their premises for access and other purposes, of which they cannot be deprived except upon compensation. The right of abutting owners in the streets is not, however, of that absolute character that they can resist or prevent any and all interference with the street to their detriment, or which can be asserted to stay the hand of the municipality in the control, regulation, or improvement of the streets iu the public interests, although it may be made to appear that the privileges which they had theretofore enjoyed, and the benefits they had derived from the street in its existing condition, would be curtailed or impaired to their injury by the changes proposed.

The cases of change of grade furnish apposite illustrations. They proceed on the ground that individual interests in streets are subordinate to public interests and that a lot owner, although he may have built upon and improved his property with a view to the existing and established grade of the street, and relying upon its continuance, has no legal redress for any injury to his property, however serious, caused by a change of grade, provided only that the change is made under lawful authority. This it-is held is not a taking of the abutting owner’s property, and the injury requires no compensation. The hardships arising from thq .application of this rule of law have led to constitutional amendments in many of the states, providing for compensation for property damaged as well as taken in the prosecution of public improvements.

In this state the law and the constitution are unchanged. But that there is a limitation to public powers over the streets of a -city, which cannot be transgressed without invading the constitutional rights of abutting owners, was a principle announced in the Story case, 90 N. Y., 122, and confirmed and broadened so as to apply to other circumstances in the subsequent cases. The elevated. railroad structure, the subject of complaint in the /Story case, occupied with its supports and stairways portions of the street, and such occupation was necessarily exclusive, and this fact was prominently brought into view in the opinions delivered. The parts of the streets so occupied could not be used for general-street purposes. This fact it is claimed distinguishes the present case from that, and it is insisted that this case is more nearly allied to the Fobes case than to that of Story. It is true that the part of the street occupied by the embankment of the defendant is still a part of Water street. It is also true that the occupation of the embankment by the tracks of the defendant was not necessarily exclusive, that is to say, it is possible for ordinary Ambicies to traverse the embankment longitudinally, but such travel would subject the traveler to the risk of meeting railway trains on the narrow causeway and he would have no opportunity to turn off the embankment except bv driving over the perpendicular wall Avhich supports it. The plaintiffs are practically excluded from the use of that portion of the street by the presence of the railroad there. They and their customers cannot drive across it, and if they had the temerity to drive along it, nevertheless they would be compelled to make a long circuit to reach .the plaintiffs’ premises from the streets south of the embankment. The only practicable roadway in front on Water street is but a few feet in width, quite insufficient for a safe and convenient Way to and from their lot.

We think the public cannot justly demand such a sacrifice of private interests, or justify such an appropriation of a street by a municipality, in aid of a railroad enterprise. The Fobes case gives no countenance to the defendant’s contentiori. The limitations upon legislative and municipal authority, so carefutly stated in the passages quoted from the opinion, are distinctly opposed to such an assumption. That case, and those of Kerr and Kellinger, were cases of railroad tracks laid upon the general grade of city streets, as such grade existed when the tracks were authorized. There was no exclusive appropriation in fact of any portion of the surface by the companies, except that the rails were embedded In the soil. "The whole street in each of these cases remained open ■and unobstructed, except that the existence of the tracks and .the operation of the respective roads thereon rendered access to the lots of the abutting owners somewhat less safe and convenient than before. Here, as the evidence tends to show, the city of Buffalo, for the convenience, and presumably upon the applicatian of the defendant, devoted the centre of Water street to what, is practically the exclusive use of the defendant, leaving for the-use of the plaintiffs a narrow and inconvenient roadway, separated from the center of the street by a barrier therein impassible-for carriages from east to west, opposite the plaintiffs’ lot on Water street, and only theoretically open from north to south, and then only by a circuitous route. It is quite probable that, the general interests of Buffalo and of the larger public are-promoted by this appropriation of the street, but it by no means follows that a lot owner whose property is in j ured should bear the loss, for the public benefit We think the case falls within the principle of the Story case, and that while the law now is that it is competent for the legislature to authorize railroad tracks, either for steam or horse railroads, to be laid on the ordinary grade of streets, the fee of which is in the state or municipality, without making compensation to abutting owners for consequential injuries-to their property, the legislature cannot legally authorize structures for railroad purposes to be erected therein for the use an d convenience-of railroads which practically exclude the abutting owners from the-part of the street so occupied, without compensating them for the injury suffered, and that it is not necessary that there should be an actual physical exclusion of the lot owners from the use of that part of the street occupied by such structures in order to entitle them to a legal remedy. It is enough if such part of the street is practically and substantially closed against them for ordinary street uses.

The power conferred by the charter of Buffalo upon the common council to “ permit the track of a railroad to be laid in, along, or across, any street or public ground,” Laws 1870, chap. 519, tit.. 19, § 3, must be construed as subject to the qualification that no property rights of abutting owners are thereby invaded. The-present controversy could not have arisen prior to 1875, when the plaintiffs were owners of the fee to the center of Water street.. They would then, under the settled law, have been entitled to-compensation. The city of Buffalo having in that year acquired, for the nominal consideration of five cents, the technical fee in, the street, proceeded afterwards to authorize the laying of the-tracks in question, and it is now claimed that this change in the-title defeats the plaintiffs’ right to compensation. This is probably true if what has been done by the defendant under license of the city was simply the laying of its tracks on the surface of the street at its ordinary grade; but this was not the character of the-change effected.

The second proposition of the counsel of the defendant, that the-building of the embankment was a mere change of grade of Water street, made under ,the authority of the city, is, we think, untenable. The charter of Buffalo gives plenary power to the city to fix and change the grade of streets by formal proceedings, and provides that when a grade is established or altered, a description of such grade shall be made and recorded by the city clerk. Charter 1870, tit. 9, §§ 1, 2, 6.

The action of the common council, granting permission to the defendant to occupy Water street, while it involved as a consequence the construction of an embankment in Water street, did not purport to be an exercise of the power to change the grade of the street under the charter. It does not appear that any .description was made or recorded, as is required when a new grade is established. It would be a strained construction to regard the action of the council as a change of grade of Water street under the charter provisions. The defendant desired to lay its tracks in Water street and the other streets mentioned in the grant, and to •enable it to do this and to cross Commercial slip an embankment in the street was authorized. The grade of Water street was not altered, but the defendant was permitted to build an embankment in the street for its railway. The fact that what was done did effect a change in the grade óf that part of the street occupied by the embankment does not prove that what was done was in the execution of the power to alter the grade of streets, conferred on the council.

The primary object of this power contained in municipal charters is to enable the municipal authorities to render a street more safe and convenient for public travel, to afford drainage, in short to adapt it more perfectly for the purposes of a public way. It is claimed that the city, under this power, could lawfully authorize an embankment in part of the street, leaving the other part on n, lower level. We are not called upon to say whether there is any limit to the exercise of municipal authority, or that they cannot, in exercising the power to establish and alter the grade of .streets, raise an embankment in a part of a street, if, in their judgment, this will promote the public convenience and the purposes of the street as a highway. But, we think, they cannot, under the guise of exercising this power, appropriate a part of a street to the exclusive, or practically to the exclusive, use of a railroad company, or so as to cut off abutting owners from the use of any part of the street in the accustomed way, without making compensation for the injury sustained.

We have held that the authority conferred by the general rail-, road law upon railroad companies to cross highways in the construction of their lines authorizes their construction on, over, or below the grade of the highway crossed, and that incidental changes of the grade of the street rendered necessary to accommodate railroad crossings gives no right of action to abutting owners who may sustain injury. Conklin v. N. Y., O. & W. R. R. Co., 102 N. Y., 107; 1 N. Y. State Rep., 677. The practice of permitting railroads to cross highways is coeval with the introduction of the railroad system in the state, and the decision comports with the general understanding of the bench and the bar. In case of railroad crossings, the highway is left as before. Ho part of it is taken or exclusively appropriated by the railroad company. In these cases there is no use of the highway for railroad purposes. Railroads of necessity intersect highways, and it is held that the state may permit them to be crossed by a railroad company, and that this involves an invasion of no substantial right of the owner of the fee. We ought not to extend the doctrine of the crossing cases to unreasonable limits, and we think it cannot be applied to justify'the exercise of the public powers attempted in the present case. The Ottenot case, 119 N. Y, 604; 28 N. Y. State Rep., 483, related to the right of an abutting owner on Commercial street to recover damages for the raising of the embankment on that street in front of his premises to meet the grade on Water street. The members of the court agreed that the judgment should be reversed, under the TJline case, 101 H. Y, 98, for error in the rule of damages. It was the opinion of the learned judge who wrote in that case that the plaintiff could not recover for two additional reasons: First, that as the-plaintiff “was not an abutting owner on Water street and had no-rights therein," he had no right to complain because of the construction of the railroad therein; and second, that the raising of the embankment in Commercial street was in legal effect a change of grade by the city, and, therefore, there was no actionable injury.

The plaintiffs here are abutting owners on Water street, and their claim is not subject to the objection made to the claim of Ottenot in the first ground mentioned. If the second ground is: tenable it must rest, we think, on the point that the plaintiff Ottenot had no right to question the legality of the structure in Water street, and therefore that the accommodation of the grade-in Commercial street to meet the grade on Water street was in a proper sense a change of grade for street purposes. The Ottenot case does not, we think, control the present one, and assuming that in that case the embankment on Commercial street could be regarded ns a change of grade under charter powers, the embankment on Water street cannot be so regarded.

The point that the charter confines the plaintiffs to a remedy against the city, is based upon a provision of the charter, tit.'9r § 17, that “-when the city shall alter the recorded grade of any street or alley, the owner of any house or lot fronting thereon may within one year thereafter claim damages by reason of such alteration.” The conclusion we have reached, that the action of the city in granting permission to the defendant to construct an embankment in Water street was not a change of grade in the street, within the charter provisions, disposes of this question. The charter provision was intended to afford a remedy for damages from changes of grade where none existed before, and to cases to which it applies the-- remedy is necessarily exclusive. Heiser v. Mayor, etc., 104 N. Y., 68; 5 N. Y. State Rep., 558. Here the plaintiff, as we hold, has a common law remedy for his injury, and this is not cut off by the provision in the charter.

We think the judgment should be affirmed.

Gray, J.

I concur with Judge Andrews. In Judge Earl’s, opinion in the Ottenot case, 119 N. Y., 603 ; 28 N. Y. State Rep., 483, in which I also agreed, the street, a portion only of the grade of which was changed by raising, was not subjected to, or burdened by other uses. It remained, as much ás ever, in other respects, an ordinary street. The change of the grade was in the-general public interests, and the moving cause for the change did not affect the complexion of the question in the case. The plaintiff’s property in that case did not abut upon Water street and he had no right to complain of the railroad structure or embankment in question. Here the object was to subserve the railroad use, and the appropriation by the defendant of this embankment is practically exclusive. The street was subjected to a new use, with consequences as direct, in the permanent deprivation of the abutting property owners’ appurtenant easement, as though the railroad was operated in front of his premises upon a structure physically incapable of other uses. I think we have, in the present case, the element of an appropriation by the defendant of the street by a permanent structure and obstruction, and, hence, it must fall within the spirit, if not the letter, of our decision in the Story case.

All concur, except Eabl and Finch, JJ., dissenting.


source: Caselaw Access Project

license: Public Domain

text:
    John Reining et al., Resp’ts, v. N. Y., Lackawanna & Western R. R. Co., App’lt. Christian H. Strasser et al., Resp’ts, v. Same. Romanna Jeaume et al., Resp’ts, v. Same.

      (Court of Appeals,

      Filed October 6, 1891.)

       Affirming 27 N. Y. State Rep., 69.

       Affirming 35 N. Y. State Rep., 674.

   Judgment affirmed, with costs, on opinion in Reining v. Same defendants.


author: Earl, J.

text:
    Lydia Hulbert et al., Adm’rs, Resp’ts, v. William B. Clark et al., App’lts.

      (Court of Appeals,

      Mled October 6, 1891.)

    Mortgage—When a subsisting lien—Limitations.
    'A mortgage given to secure payment of promissory notes is a subsisting lien and can be foreclosed after an action at law upon the notes is barred by the statute of limitations^ The statute does not after the prescribed period destroy, discharge or pay the debt, but it simply bars a remedy thereon.
    Appeal from judgment of the supreme court, general term, fifth department, modifying judgment entered upon report of referee by striking out provision for personal judgment against the mortgagor, and affirming the judgment as modified.
    This action was commenced in July, 1887, to foreclose a mortgage executed and delivered by the defendants to Reuben D. Halbert, the plaintiff’s intestate, on the 8th day of March, 1867. The mortgage as stated therein was given to secure the payment of eight promissory notes of $500 each, held by Hulbert, all bearing the same date as the mortgage, and maturing at different times within nine months from their date. It was provided that the mortgage should become void if the notes, principal and interest, should be paid at maturity, but that in case of default in the payment of the notes or any part thereof, it should be lawful for the mortgagee to sell the mortgaged premises in the manner prescribed by law, and out of the moneys received upon such sale to retain the amount then due and unpaid upon such notes and to pay the balance if any to the mortgagor, William B. Clark. There was no covenant to pay the notes or the mortgage. The answer alleged payment of the notes, a set-off and the six years statute of limitations.
    The action was referred and tried before the referee. He found that two of the notes had not been paid, and that there was due thereon over and above the set-offs allowed by him the sum of $1,310.09; and he decided that the mortgage was a subsisting security for that sum and ordered judgment of foreclosure. The judgment entered upon the report having been affirmed at the general term, the defendants appealed to this court.

      J. N. Hammond, for app’lts; F. L. Manning, for resp’ts.

       Affirming 33 N. Y. State Rep., 354.

   Earl, J.

The sole question for our determination is, whether tim mortgage continued to be a subsisting lien and could be foreclosed after an action at law upon the notes was barred by the statute of limitations. This is an interesting question which has given rise to considerable discussion in the courts of this country and England. We do not, however, deem it difficult of solution.

The statute of limitations does not, after the prescribed period, destroy, discharge or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The legislature could repeal the statute of limitations, and then the payment of a debt upon which the right of action was barred at the time of the repeal could be enforced by action, and the constitutional rights of the debtor are not invaded by such legislation. It was so held in Campbell v. Holt, 115 U. S., 620. It was held in Johnson v. Albany & Susquehanna R. R. Co., 54 N. Y., 416, that the statute of limitations acts only upon the remedy; that it does not impair the obligation of a contract or pay a debt or produce a presumption of ¡payment, but that it is merely a statutory bar to a recovery; and so it was held in Quantoch v. England, 5 Burr, 2628; and so it has ever since been held in the English courts.

These notes were, therefore, not paid, and so the referee found. The condition of the mortgage has therefore not been complied with. The notes being valid in their inception, the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security and can be foreclosed. The mortgage being under seal can be foreclosed by action at any time within twenty years. Code, § 381. It is only an action upon the notes that is barred after six years. Code, § 882.

It is a general rule recognized in this country and in England, that when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred.

The subject has several times been under consideration in the courts of this state. In Jackson v. Sackett, 7 Wend., 94, ejectment was brought on a mortgage executed as collateral security for the payment of a sum of money secured to be paid by a note. The note' had been past due more than twenty years when the action was commenced. Upon the trial it was the contention of defendant’s counsel that from the lapse of time the note must be presumed to have been paid, and on that ground the court non-suited the plaintiff. The supreme court, upon review, held that the evidence as to payment ought to have been submitted to the jury, and nothing else was decided. It was in fact held that payment of the note was the only defense to the action, but the judge writing the opinion expressed what must now be conceded to be erroneous views as to the presumption of payment furnished by the statute of limitations. He appeared to be of opinion that, after six years, there was a statutory presumption of payment, not a presumption of law, but a presumption of fact, from which, with other evidence, the jury might infer payment In Heyer v. Pruyn, 7 Paige, 465, the chancellor said that the intimation of an opinion by Justice Sutherland, in Jackson v. Sackett, “that a mortgage to secure a simple contract debt was présunied to be paid in six years, because the statute of limitations might, at the expiration of that time, be pleaded to a suit on the note, certainly cannot be law.” The case of Pratt v. Huggins, 29 Barb., 277, is quite like this. That was an action to foreclose a mortgage given to secure the payment of $250, for which the mortgagee, at the same time, took the mortgagor’s promissory note. The note and mortgage were dated February 5, 1835, and were payable February 1, 1836. The action was commenced September 6, 1855. Upon the trial the defendant claimed that the plaintiff could not maintain the action, because an action upon the note was barred by the statute of limitations; and so the trial judge held, and gave judgment for the defendant.

The plaintiff appealed to the general term, and there after much discussion and consideration the judgment was reversed, the court holding that a debt secured by a sealed mortgage and an unsealed note may be enforced by a foreclosure of the mortgage after the expiration of six, but before the expiration of twenty years from the time when the debt became due; that the lapse of six years is not conclusive evidence that the mortgage has been paid, and that the provision of the statute of limitations making the lapse of six years a bar, in such a case, is in terms confined to an action upon the note, and does not operate to defeat a remedy on the mortgage. There, as here, there was no covenant to pay in the mortgage, and the mortgage was collateral to the note. In the Mayor v. Colgate, 12 N. Y., 140, it was held that the lien of an assessment which was to be regarded, in effect, as a mortgage, could be enforced after the statute of limitations would have barred a common law action against the person liable to pay the same, for the recovery thereof. In Morey v. The Farmers' Loan & Trust Co., 14 N. Y, 302, an action by the vendee for specific performance of a contract under seal to convey land on payment of the purchase money, it was held that the presumption arising from the lapse of twenty years'after the money became due was not sufficient evidence of payment to entitle the plaintiff to the relief demanded. To the same effect is Lawrence v. Ball in the same volume, at page 477.

In Borst v. Corey, 15 N. Y., 505, it was held that an action to enforce the equitable lien for the purchase money of land was barred by the lapse of six years after the debt accrued. The reasoning by which the result was reached in that case is not altogether satisfactory, and yet that decision is not in conflict with the views we now entertain. The judge there writing the opinion said: “ The equitable lien (for the purchase money) is neither created or evidenced by deed, but arises by operation of law, and is of no higher nature than the debt which it secures.” He distinguished that case from one like this, as follows: “It has, however, been held that when a mortgage was given to secure the payment of a simple contract debt, the statute limiting the time for commencing actions for the recovery of such debt was no bar to an action to enforce the mortgage,” and he cited, among other-cases, Heyer v. Pruyn. He said further: “ There is a material distinction between a mortgage and the equitable lien for the purchase price of land given by law, and also between an action to foreclose a mortgage and one to enforce a lien. The action to foreclose a mortgage is brought upon an instrument under seal which acknowledges the existence of the debt to secure which the mortgage is given; and by reason of the seal the debt is not presumed to have been paid until the expiration of twenty years after it became due and payable.” In Johnson v. The Albany & Susquehanna R. R. Co., supra, the action was to compel defendant to issue its certificate for stock subscribed for after an action to compel the subscribers to pay for the stock had been defeated on the ground that the action was barred by the statute of limitations; and it was held that the plaintiff, notwithstanding the statutory bar, could recover only upon proof of actual payment. In Lewis v. Hawkins, 23 Wall., 119, Mr. Justice Swayne, writing- the opinion, recognizes the rule above stated, as follows : “ That the remedy upon the bond, note or simple contract for the purchase money is barred in cases like this, in no wise affects the right to proceed in equity against the land.” Hardin v. Boyd, 113 U. S., 756, was a bill in equity to set aside a conveyance of lands, or in the alternative for payment of the purchase money, and to make it a lien on the lands; and it was held that although the debt for unpaid purchase money was barred by limitation under the local law, the lien therefor on the land was not barred.

In Coldcleugh v. Johnson, 34 Ark., 312, the supreme court said: “ The debt itself would appear to be barred in 1872, and no action could be brought at law. But the bar of the debt does not necessarily preclude a mortgagee or vendee retaining the legal title from proceeding in rem in a court of equity to enforce his specific lien upon the land itself.” The case of Thayer v. Mann, 19 Pick., 535, is precisely in point. There, in the case of a mortgage of real estate to secure the payment of a promissory note, it was held that although the note was barred by the statute of limitations, yet because it had not been paid, the mortgagee had his remedy upon the mortgage. In Hancock v. Franklin Insurance Company, 114 Mass., 155, there was a pledge of property to secure a note, and it was held that the pledgor might avail himself of the statute of limitations as a defense to a suit upon the note, but that the statute affected merely the remedy on the note, and did not defeat the lien of the pledgee upon the property pledged. In Hannan v. Hannan, 123 Mass., 441, in an action to foreclose a mortgage given to secure a note, it was held that the question in such a case, whether anything is due upon the note, must be conducted in nearly the same way, and depended mainly upon the same evidence as if the note were in suit, and that in such an action the defendant may show the same matters in defense against the mortgage, except only the statute of limitations, that he could against the note.

In Shaw v. Silloway, 145 Mass., 503, it was said: “If there is an actual pledge and the debt becomes barred this does not give to the debtor a right to reclaim the pledged property. The debt is not extinguished; the statute only takes away the remedy. In case of an ordinary mortgage of real or personal property, the security is not lost though the debt be barred.” In Joy v. Adams, 26 Me., 330, it was held that the-mortgagor could not defeat the right of the mortgagee to foreclose his mortgage by showing merely that the notes to which the mortgage security was collateral had become barred by the statute of limitations. In Belknap v. Gleason, 11 Conn., 160, it was held that the statutes of limitations being statutes of repose, suspend the remedy but do not cancel the debt; that though such statutes are equally available as a defense at law and in equity, yet where there are two securities for the same debt, one of which is barred by the statute and the other not, the creditor, notwithstanding he has lost his remedy at law on the former, may pursue it in equity on the latter; and that where the security for a debt is a lien on property, personal or real, that lien is not impaired because the debt is barred by such statute. In the case of Ballou v. Taylor, 14 R. I, 277, it was held that the remedy on a mortgage is not lost because a personal action on the mortgage note is barred by the statute of limitations. In Spears v. Hartley, 3 Esp., 81, Lord Eldon held that a wharfinger who had a lien on a log of mahogany could hold the-log until his demand was satisfied, although the demand was barred by the statute of limitations; and Higgins v. Scott, 2 Barn. & Ad., 413, is to the same effect.

We could go much further in these citations. But we have gone far enough to show that the rule applicable to a case like this is, both upon, principle and abundant authority, as we have above stated it. There are eases in some of the states of this country which lay down a different rule, but those cases generally depend upon some local statutes, or are to be found in states where it is held that the statute of limitations not only bars the remedy but destroys and annihilates the debt by the presumption that it has been paid or discharged.

There are no other questions which need examination.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur except Finch, J., absent.


author: Peckham, J.

text:
    Roxanna Lawrence et al., Resp’ts, v. Henrietta Church, Ex’rx, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Contract—Agreement to pay debts of an estate.
    As a part of an agreement to discontinue an action bmueht by executors, it was provided that defendant should have the proceeds of a certain mortgage held by the estate after paying expenses of the administrator, and pay “ the debts allowed or legally established against the estate of the deceased.” In an action to enf orce said agreement the general term reversed the judgment for plaintiff on the ground of the improper admission of the surrogate’s decree, which had been entered after the commencement of this action, as proof of the amount of such debts, and granted a new trial unless plaintiff consented to deduct a certain sum, without prejudice to a future action to recover the same. Held, error, as illegal and beyond the power of the court to grant such privilege.
    2. Same.
    The agreement cannot be construed as including expenses incurred by the plaintiffs in their unsuccessful defense to the defendant’s demurrer in this case. Such expenses are not as between the parties to the agreement expenses of administration to be deducted from the proceeds of the mortgage.
    3. Same.
    The decree of the surrogate was competent and conclusive evidence as to the amount of the testator’s dqbts which had been legally established, and also as to the legal and proper expenses of settling and administering upon the estate.
    4. Same.
    Application should hdve been made by plaintiffs under §544 of the Code for leave to permit them to make a supplemental complaint alleging the entry of the decree as a material fact occurring since the original complaint was made, and upon the granting of the order the decree could be properly put in evidence.
    5. Same—Interest.
    The defendant’s testator also agreed to pay to L. the sum of $3,000, in such manner as would be acceptable to her. Held, that the sum would not draw interest until a demand was made or until a suit was commenced.
    6. Same.
    The amount of the “ expenses and commissions in collecting the Chew . mortgage and settling and administering the estate ” the defendant’s testator did not agree to pay. He merely consented that such amount might be • deducted from the proceeds of the Chew mortgage, which lie was to receive the benefit of.
    7. Same—Consideration.
    Mutual promises stand as consideration, each for the other.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment in favor of plaintiffs, and granting new trial unless they would consent to deduct $950.24 and interest therefrom, without prejudice to a future action to recover tin same.

      Richardson & Robbins, for app’lt; J. H. & C. W. Stevens, for resp’ts.

       Reversing 32 N. Y. State Rep., 751; see also 35 id., 956.

   Peckham, J.

The general term upon defendant’s appeal reversed the judgment for plaintiff, entered upon the report of the referee, and granted a new trial, unless the plaintiff consented to deduct from the judgment the sum of $950.24, with interest from February 23,1889, without prejudice to á future action to recover the same, or any part thereof, and in case the plaintiff did so consent, the judgment thus modified was affirmed, without costs of the appeal to either party.

The plaintiff consented to make the deduction, and the amount named was thereupon deducted from the judgment (without prejudice, as above stated), and as thus modified the judgment was affirmed, and from the affirmance the defendant has appealed here. The plaintiff, of course did not appeal, having consented to make, and making, the deduction as provided for by the order of the general term.

Whether the general term were correct in ordering a reversal unless this deduction were made is a question which is not before us, and which, therefore, we are not to inquire into. The alternative was granted plaintiffs to reduce their judgment, and retain it as reduced, or submit to a total reversal. They elected to reduce it as provided by the general term, and it was reduced accordingly, and as reduced it was affirmed. We must now assume that the original judgment entered upon the report of the referee was erroneous at least to the extent indicated by the decision of the general term, and the plaintiffs cannot be heard to insist that such original judgment was correct. This has been expressty decided in this court. Whitehead v. Kennedy, 69 N. Y., 462.

Assuming the general term was right in reversing the judgment and granting a new trial, it is insisted that the privilege permitting the plaintiffs to deduct the sum named without prejudice to a future action by them to recover the same or any part thereof was illegal and beyond the power of the court to grant. We are of that opinion.

We think the court had no power to grant the privilege to the plaintiff to sue again to recover the amount deducted from this judgment or any part thereof.

So far as the plaintiffs are concerned, the liability of the defendant’s testator was solely under the agreement, and it was indivisible and could not be split up into two or more claims or causes of action in their favor. They could have but one cause of action founded upon the agreement, and the liability of the defendant’s testator could not be enlarged by any order of the court The result of the decision of the general term is to permit a recovery in this action for a portion of defendant’s liability upon the agreement, with costs of the trial, and to grant to plaintiffs the right to commence a new action to recover the balance of defendant’s liability arising upon the same agreement, with costs in case of recovery. This is improper. Whitehead v. Kennedy, supra. If the general term did not desire to grant a new trial unconditionally, the alternative should have been a modification of the judgment by the deduction of the amount regarded as erroneous, without any privilege of again suing for the same. Such a modification when assented to by the plaintiffs and resulting in the affirmance of the judgment as modified, would upon the facts in this case have operated as an abandonment by plaintiffs of the amount deducted.

If the plaintiffs were not satisfied with such an affirmance, they could refuse to avail themselves of the privilege offered, and go back for a new trial upon the whole issues involved in the case.

Upon this appeal we think we should now reverse the judgment entered upon the order of the general term, and also that entered upon the report of the referee, and grant a new trial absolutely. The judgment as modified by the general term we hold to be erroneous, and we ought not under the facts of this case to' modify it by making the order for modification on the terms which we hold the general term might have legally imposed, be- ' cause we think there were other errors in the case which in justice require us to reverse the judgment as it stands.

As we must assume that the original judgment was erroneous and was therefore properly reversed, we think for the above reason we should now reverse both judgments and grant a new trial.

Some questions will arise on the new trial which it is proper for us to now express an opinion in regard to.

The agreement upon which the action is brought provides that defendant’s testator will pay all the debts allowed or legally established against the estate of the deceased, Judson W. Sherman.

The decree entered upon the judicial settlement of the accounts of the executors, to which accounting the defendant’s testator was a party, would be conclusive of the amount of the debts which had been legally established.

It would also be conclusive evidence of the expenses of settling and administering upon the estate. The defendant’s testator agreed that such expenses as were legal and proper in the administration of the estate should be deducted from the proceeds of the Chew mortgage and only the balance thereof should be credited to him.

We do not think the agreement can be construed as including expenses incurred by the plaintiffs in their unsuccessful defense to the defendant’s demurrer, in this case. Such expenses are not, as between the parties to the agreement, expenses of administration to be deducted from the proceeds of the Chew mortgage. They never could have been in the contemplation of the parties. It is not possible for us to so construe this agreement as to hold that expenses incurred in such a case, or costs paid to the defendant’s testator under such circumstances, were to be regarded as administration expenses and allowed for by him.

While such expenses may properly be claimed by the plaintiffs to have been expenses of administering the estate, and hence justly allowed to them in their final accounting, we do not think they can be so regarded as between the parties to the agreement. Those particular expenses, therefore, are not to be deducted from the proceeds of the Chew mortgage before the defendant can receive the benefit thereof. The decree is, however, conclusive evidence as to what the proper and legal expenses of administration were, and the amount thereof should be deducted from the proceeds of the mortgage, with the exception above stated.

One of the issues to be determined in this action was the amount of the debts of the late Judson W. Sherman which had been legally established. Another was the amount of the legal and proper expenses of settling and administering upon the estate. Upon both these issues the decree in question was competent and conclusive evidence and therefore it determined a part of the matters in controversy in this action.

The decree was, however, entered subsequent to the commencement of this action and 'it allowed among the necessary expenses of administration disbursements made by the plaintiffs after the action herein was commenced. We think, in order to prove such items by the decree, that application should be made by the plaintiffs under § 544 of the Code, for leave to permit them to make a supplemental complaint alleging the entry of this decree as a material fact which has occurred since the former ■complaint was made, and upon the granting of such order the decree, proving all the proper items subsequent as well as prior to the commencement of this action, can be properly put in evidence on the trial.

There is a question of interest which we think was erroneously decided by the referee.

The defendant’s testator in the agreement promised that he would “pay to Roxanna Lawrence aforesaid the sum of three thousand dollars, in such manner as will be acceptable to her.” The refei'ee allowed interest thereon from the date of the agreement, January 4, 1884. The money by this agreement would become due on demand. I do not think it would draw interest until a demand was made or until a suit was commenced. The plaintiffs were not bound before making the demand to wait for the collection of the Chew mortgage and the, closing of the estate and the final determination of the amount of the “ benefit ” to be given to the defendant’s testator in the way of proceeds of such mortgage.

This “ benefit ” he was to receive when the mortgage was collected and the deductions for costs of collection and legal and administration expenses had been made, but his promise to pay the $3,000 was not contingent upon the collection of the mortgage, nor was he to pay only the balance of the $3,000 remaining after the proceeds of the mortgage had been applied to such payment The two matters were in this respect independent of each ■other. He had agreed unconditionally to pay the $3,000 to Roxanna Lawrence. What he might thereafter be allowed from the proceeds of the mortgage after making the proper deductions would in the final result diminish the amount of his expenditures under and by reason of the agreement, but the receipt of such proceeds was not a condition precedént to his obligation to make that payment. As to interest upon the debts of the deceased Sherman paid by the plaintiffs, the referee allowed it upon the balance of the debts, expenses and commissions over and above the amount of the collection of the Chew mortgage, to be collected from the date of the final accounting, February 23, 1889, and he found the sum to be $449.49. This sum was arrived at by allowing some items for administration expenses which we have already held to be improper, and hence the result would be less than the above named sum.

The amount of the “ expenses and commissions in collecting the Chew mortgage and settling and administering the estate,”the defendant’s testator did not agree to pay. He merely consented that such amount might be deducted froih the proceeds of the Chew mortgage, which he was to receive the benefit of.

While the method of casting the interest pursued by the referee was not based upon precisely accurate principles, the result arrived at was exactly the same as if the other and proper method had been pursued. After the entry of the decree all the items appeared which were necessary to be known in order to arrive at the amount of defendant’s indebtedness by reason of the agreement, outside of the $3,000, and that amount was then due the estate, and interest should run upon it from the date of the entry of the decree.

Upon the question of the consideration for the agreement, we may assume, without deciding, that the general term was in error in regarding the defendant concluded by the order entered upon the demurrer. In that case the question is open here. We think the consideration was ample. There were mutual promises, and each stood as the consideration for the other.

We think, therefore, that the proper order for us to make is to reverse the judgment in favor of plaintiff entered upon the order of the general term, and also the original judgment entered upon the report of the referee, and to grant a new trial absolutely, with costs to abide the event, and we direct accordingly.

A'11 concur, except Finch, J., absent.


author: Ruger, Ch. J.

text:
    The People, Resp’ts, v. Martin D. Loppy, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Appeal—Op criminal cases direct to court op appeals—Evidence.
    In reviewing the evidence of a criminal case referred directly to the court of appeals under chapter 493, Laws 1887, this court is governed by the practice regulating appeals to the supreme court in dealing with questions of fact, and the jury is the ultimate tribunal for the investigation and determination of questions of fact, and, unless there are circumstances indicating some partiality, mistake, error or prejudice on their part it, will regard their findings on disputed and conflicting evidence as conclusive.

      3. Homicide—Evidence.
    The defendant was an idle dissipated fellow, supported by his wife, the deceased, and living in a tenement house. On the morning of July 4 he quarreled with her and threatened her life. In the afternoon a friend was admitted to their apartments after much delay and repeated knockings and found the wife dead and the floor covered with blood, etc. Defendant claimed she had committed suicide with a pair of scissors, but when half of a pair was found the defendant secreted it. The four wounds were such as would be received by a person covering the body with the arm to protect the heart. The defendant claimed to have been out when she killed herself, but none of the tenants saw him go or return, and it was his habit to remain in all day. Held, that from the evidence the jury was not only justified in their verdict, but were compelled to the conclusion that defendant murdered her.
    Appeal from judgment of the ¡New York general sessions convicting defendant of the crime of murder in the first degree.

      Wm. F Howe, for app’lt; McKenzie Semple, asst, disk atty., for resp’ts.
   Ruger, Ch. J.

This case is an illustration of the general character of the appeals taken in capital cases, under the recent statute (Chap. 493, Laws of 1887) authorizing appeals directly from the trial to this court. This statute makes the formality of filing and serving a notice of appeal operative as a stay of proceedings on the judgment of conviction, and imposes upon the county where the conviction was had the labor and expense of preparing and printing the record for a review, without regard to the question whether any errors were committed on the trial or not Thus, without any risk, expense or burden on his part, a convicted criminal is allowed to secure a delay of many months in the execution of his sentence, and impose upon the people unnecessary expense and "upon the courts the burden of examining cases generally destitute of merit The unlimited license thus given to criminals to create delay and expense is invariably availed of, and a large majority of the appeals thus taken to this court have come to us " either writhout exceptions, or, if any, those usually of the most trivial character. This case forms no exception to the general character of such cases. There is but one exception in the case which has been called to ou.r attention, and that is of a frivolous and unimportant character. The main object which these appeals have, if any beyond creating delay, seems to be to see if the court •can, on a review of the evidence, discover some ground, not perceptible to counsel, upon which to base a reversal of the findings •of'the jury on questions of fact The rule repeatedly laid down by this court, that such questions are for the exclusive consideration of juries, seems to have had no restraint upon the freedom with which such appeals have been taken, as, indeed, there is no good reason why it should, so long as criminals, without trouble or expense to themselves, are encouraged by the law to take appeals, and thereby secure delay at all times, and a possible -chance of escaping punishment for their crimes. People v. Wood, 123 N. Y., 632; 33 N. Y. State Rep., 589 ; People v. Jugigo, 123 N. Y., 630; 33 N. Y. State Rep., 589 ; People v. Cignarale. 110 N. Y., 23; 16 N. Y. State Rep., 155 ; People v. Kelly, 113 N. Y., 647 ; 22 N. Y. State Rep., 969.

This condition of the record leaves but one question open to us to examine, and that is, whether the evidence discloses any just reason why the judgment of the court below should not be enforced. In reviewing the evidence in such a case, this court has frequently laid down the rule that we shall be governed by the practice regulating appeals to the supreme court in dealing with questions of fact. This practice regards the jury as the ultimate tribunal for the investigation and determination of questions of fact and, unless there are circumstances indicating some partiality, mistake, error or prejudice on their part, to regard their findings on disputed and conflicting evidence as conclusive. People v. Cignarale, supra; People v. Kelly, supra.

A careful perusal of the evidence in this case leads us to the conviction that the jury have made no mistake in their verdict. It is not necessary .to detail the evidence at length, as a reference to its leading features will indicate by irresistible inference the identity of the person charged with the commission of the crime. Loppy and his wife were living in a tenement house in Chrystic street, New York, and the crime was there committed about 2 o’clock in the afternoon of July 4, 1890. They had been married about fifteen years and constituted the whole family. They occupied two small rooms, a sitting room and bed room, in the fifth story of a crowded tenement. They were people of humble circumstances and supported themselves by their daily labor. The deceased was about forty years old and worked for tailors as a finisher of pataloons; and the defendant was fifty years of age and had been employed as a fireman on tugboats in the harbor of New York; but for two years previous to the homicide had been out of work and was supported by his wife. He was dissijDated, as well as idle, and had no means of obtaining the money necessary to enable him to indulge his vices, except from his wife. As might be expected, she was not at all times able to supply his wants and he then became ugly, abusive and violent He frequently quarreled with his wife and often threatened to kill her.

On the day in question he arose about six o’clock in the morning, and, after a quarrel with his vrife, obtained money from her and went out and drank until he became intoxicated. A friend and associate of the parties visited their rooms about eleven o’clock in the forenoon of July 4th, and left soon after. While there he witnessed a quarrel between Loppy and his wife, in which Loppy called her abusive names and threatened her life. The next that is learned about Loppy was from the same friend, who visited the defendant’s rooms about three o’clock of the same day, when he found the door locked. He repeatedly knocked at the door, and finally, after much delay, obtained an entrance. The defendant came to the door, and, after inquiring who was there, opened it and let Weir into the room. Weir then beheld the dead body of the deceased, fully dressed, lying on the floor of the sitting room. The floor of the room was covered with oil cloth, and near the body considerable pools of blood appeared to have been formed and wiped up with a wet cloth. The defendant had no clothes on but his pantaloons, shirt, underclothing and socks. His hands, stockings and shirt were spattered and stained with blood, and he had the appearance of being intoxicated. Upon inquiry, he replied that his wife had killed herself with the scissors. Weir then charged him with having killed her himself, but he said, no, she killed herself. Weir then left and went down into the street, where he remained until he was called back into the room, some half an hour later. After Weir left, the defendant went out into the hall and called the inmates of the other rooms of the house, saying: “ Gome up stairs, my wife is dead.” After some of the people gathered in his room, he repeatedly said that “ she had killed herself with the scissors.” Some one suggested calling the * police, to which the defendant replied : “ This is a case for the coroner.” One of the first visitors to the room found near the body the half of a pair of scissors, covered with blood, and he picked it up. The defendant immediately took it and held it behind him. Upon being asked by another bystander what he had in his hand, he replied “ Nothing.” After he had been left alone in the room for a short time, the police arrived, and he said: “ My wife has committed suicide.” On being asked “ What with,” he replied, “ A pair of scissors.” He was then asked “ Where they were,” and answered. “ I don’t know where they are.”

On search being made, one-half of a broken pair of scissors, covered with blood, was found under the oil cloth covering the floor, and the other half in the bedroom under a basket. There was also found in the bedroom a pail containing bloody water and a bloody towel. There were found four wounds on the body; all, apparently, made with the same instrument; three upon the outside of the left arm and one into the heart, on the left side of the body. The blow entering the heart, evidently first pierced the fleshy part of the arm about half way between the elbow and the shoulder and then entered the body and reached the heart. At the time the fatal blow was struck the left arm had obviously been drawn up so as to cover the region of the heart and interposed to guard against an anticipated blow. Upon the trial the defendant testified that he left the house, and his wife alive, just before two o’clock and returned about ten minutes past three and found her dead, lying on the floor; that Weir was the first person who called at his room after he returned and got there about fifteen minutes past three; that after Weir left he went into the hall and called the inmates of the other rooms and informed them that his wife was dead, and that about four o’clock he was arrested and taken to the police station.

Each floor of the house was occupied with tenants who had opportunities of seeing those who passed out and in the house, but none of them saw the defendant go out or come in at the time he claimed to have done so. It was his habit to remain in the house during the day,and some of the witnesses testified that on the day in question Loppy and his wife were almost constantly engaged in quarrelling from the time they arose in the morning until two o’clock in the afternoon. The medical evidence showed that death must have occurred about two o’clock. In the face of this evidence it seems impossible to resist the conclusion that Mrs. Loppy was murdered and that her husband caused her death. He never suggested that the- crime was committed in his absence during the commotion which immediately followed it; but constantly asserted that she killed herself with scissors, implying that he was present and knew it as a fact

The nature and character of the wounds found on her arm and "body are inconsistent with the idea that she inflicted them herself. A person attempting to kill herself would hardly have tried to protect the vital parts by holding her arm over them and thus interposing additional obstacles to the accomplishment of her purpose. That position would be instinctively adopted by one desiring to protect herself from assault and sqve, instead of taking her life. It could hardly have been possible that Loppy should have been absent from the room while the crime was committed. He claims that he was in the street from two to three o’clock; but no one saw him pass out or in the house and no one is called who saw him in the street or away from the house during this time. The condition of his clothing tended to show that he had not recently left the room and he was found, immediately after he pretends to have returned, with his hands and clothing stained and spattered with blood and having, obviously, been interrupted in an effort to remove the evidence of his crime. He evidently concealed the scissors with which the crime was effected, and, although constantly asserting that she killed herself with scissors, denied all knowledge as to where they were or what had become of them.

Sufficient has been related of the circumstances of this crime to .show that the jury were not only justified in their verdict, but were compelled to the conclusion which it indicated.

We are therefore of the opinion that the ends of justice require us to approve the verdict of the jury, and affirm the judgment appealed from.

All concur, except Finch, J., absent


author: Gray, J.

text:
    John P. Cranford et al., Resp'ts, v. Martin B. Tyrrell, App’lt.

      (Court of Appeals,

      Filed October 6,1891.)

    Nuisance—House oe prostitution—Special damages.
    Where the indecent conduct of the occupants of a neighboring house of prostitution and the noise therefrom are such as to render plaintiff’s house unfit for comfortable or respectable occupation and unfit for the purposes it was intended for, this will constitute such special damage as to entitle him to maintain an action to abate the nuisance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Jas. & Thos. H. Troy, for app’lt; Alfred E. Mudge, for resp’ts.

       Affirming 37 N. Y. State Rep., 967.

   Gray, J.

In this action, which was brought to restrain the defendant from keeping a house of ill-fame and from using his premises as an assignation house, and to recover damages for injuries sustained, the trial court found as facts that the house, as maintained by defendant, was a resort for prostitutes and licentious men and that the persons occupying rooms acted in a boisterous and noisy manner and indecently exposed their persons at the windows, “ whereby the use and occupation of the plaintiff’s premises have been interfered with and rendered uncomfortable and whereby the occupants of the plaintiff’s premises have been annoyed and seriously disturbed.”

Such a finding was amply justified by the evidence, and indeed it is not discussed by the appellant; but he argues that the plaintiffs could not maintain a civil action of this nature inasmuch as the damage they suffered was a damage common to the whole community, and not special to them. If that position had been sustained by the facts, I do not doubt but that it would have been* the duty of the trial judge to have denied the relief prayed for. The rule of law requires of him who complains of his neighbor’s use of his property, and seeks for redress and to restrain him from such use, that he should show that a substantive injury to property is committed. The mere fact of a business being carried on, which may be shown to be immoral, and, therefore, prejudicial to the character of the neighborhood, furnishes of itself no ground for equitable interference at the suit of a private person. And though the use of property may be unlawful, or unreasonable, unless special damage can be shown, a neighboring property owner cannot base thereupon any private right of action. It is for the public authorities, acting in the common interest, to interfere for the suppression of the common nuisance. See Francis v. Schoellkopf 53 N. Y., 152.

If the business complained of is a lawful one, the legal question presented in a civil action for private damage is whether the business is reasonably conducted and whether, as conducted, it is one which is obnoxious and hurtful to adjoining property. If the business is unlawful the complainant in a private action must show special damage, by which the legitimate use of his adjoining property has been interfered with, or its occupation rendered unfit or uncomfortable. That the perpetrator of the nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained and for an injunction against the continued use of his premises in a similar manner. The principle has been long settled that the objection that the nuisance was a common one is not available if it be shown that special damage was suffered. Rose v. Miles, 4 M. & S., 101; Rose v. Groves, 5 Man. & Gr., 613; Francis v. Schoelllcopf, supra; Lansing v. Smith, 4 Wend., 9. One who uses his property lawfully and reasonably, in a general legal sense, can do injury to nobody. In the full enjoyment of his legal rights in and to his property the law will not suffer a man to be restrained; but his use of the property must be always such as in no manner to invade the legal rights of his neighbor. The rights of each, to the enjoyment and use of their several properties should, in legal contemplation, always be equal. If the balance is, destroyed by the act of one, the law gives a remedy in ■damages, or equity will restrain. If the use of a property is one which renders a neighbor’s occupation and enjoyment physically uncomfortable, or which may be hurtful to the health, as where trades are conducted which are offensive by reason of odors, noises or other injurious or annoying features, a private nuisance is deemed to be established, against which the protection of a ■court of equity power may be invoked.

In the present case the indecent conduct of the occupants of the defendant’s house and the noise therefrom, inasmuch as they rendered the plaintiff’s house unfit for comfortable or respectable ■occupation and unfit for the purposes it was intended for, were facts which constituted a nuisance and were sufficient grounds for the maintenance of the action. If it was a nuisance which affected ,the general neighborhood and was the subject of an indictment for its unlawful and immoral features, the plaintiffs were none the less entitled to their action for any injury sustained and to their ■equitable right to have its continuance restrained.

The judgment appealed from should be affirmed, with costs.

All concur, except Finch, J., absent.


text:
    Orren G. Staples, Resp’t, v. Copley A. Nott, Impl’d, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    "Usury—Note to be used in another state—Conflict of laws.
    The note in suit was given in renewal of a former one payable in Washington, and was, drawn with interest at seven per cent. It was given in pursuance of .an agreement made at Washington, where plaintiff lived, but was executed and was payable at a bank in this state, and mailed to plaintiff at Washington. Held,, that the fact that it was executed or was payable in this state did not make it a New York contract; that it was valid under the laws of the District of Columbia, and was enforceable.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      M. M. Waters, for app’lt; John C. McCartin, for resp’t.

       Affirming 84 N. Y. State Rep., 175.

   Gray, J.

The promissory note in suit bears date at Washington, D. C., April 5, 1889, was made payable at a bank in Water-town, D. Y, and carried interest at the rate of seven per cent, per annum. The appellant was endorser upon it, and defends on the ground of usury. If the contract of the parties, which is evidenced by this note, was governed by the lays of this state, the defense should have prevailed; but if made under the laws of the District of Columbia, the judgment was right, and should be sustained.

The note was given in renewal of a balance due upon a prior note, made by and between the same parties, which bore date at Washington, D. C., April 5, 1888; was payable one year after date at a bank in Washington, bore the same rate of interest, and was similarly endorsed. Some payments were made on account -of the principal, but before its maturity the maker requested of plaintiff, a resident of Washington, by letter, to renew for the balance remaining due. Failing to receive any reply, he went on to Washington, and there prevailed upon the plaintiff to agree to take a new note for his debt. This note was then drawn by the plaintiff, and handed to the maker for execution, who took it back to his home in Syracuse, N. Y., where his and the appellant’s signatures were affixed, as maker and endorser, respectively. It had been agreed with the plaintiff that, upon this new note being returned to him, he would send back the original note, and the appellant himself mailed the renewal note to the plaintiff in Washington.

These facts, which were not disputed, should make it perfectly obvious that there was here every essential to a valid contract under the laws of the plaintiffs domicil, and the only accompaniment lacking to a full local coloring was the foreign place named for payment. For the affixing of the signatures to the note by the maker and the endorser, however important as acts, was yet "but a detail in the performance and execution of the contract which had been agreed upon with the plaintiff. But naming a New York bank as the place where the maker would provide for the payment of the note did not characterize the contract in one way of the other. That arrangement was one simply for the convenience of the maker. It could have no peculiar effect. The transactions, which resulted in an agreement to extend the time for the payment of the debt and to accept a new note, took place wholly in the District of Columbia, and what else was enacted in the matter elsewhere neither added to nor altered the agreement of the parties. Though the engagement of the endorser, in a sense, was independent of that of the maker, that proposition is one which does not affect the local character of the contract, but which simply concerns the question of. the enforcement of the endorser’s liability. Whatever the previous knowledge of the appellant as to the negotiations and the agreement for a renewal of the promise to pay, between the maker of the old note and the plaintiff, the question is without importance. When he endorsed the note, which had been prepared and was brought to him, and •sent it through the mail to the plaintiff, his engagement was with respect to a contract validly made according to the laws of the District of Columbia, and when the note was received by the plaintiff the transaction was then consummated in that place. In Lee v. Selleck, 33 N. Y, 615, it was said, with respect to an endorsement in Illinois of a note made in New York, that the fact of the endorser writing his name elsewhere was of no moment. Upon delivery by his agent to the plaintiffs in New York it became operative as a mutual contract.

The agreement, which was made in Washington for the giving of the promissory note in question, was the forbearance of a debt already due, upon which the appellant was liable % and the renewal of his engagement, as endorser upon the note, without any qualification of liis contract of endorsement, was, in fact, an act in ratification and execution of the previous agreement. That agreeinent between the plaintiff and the maker in Washington took its-concrete legal form in a note, prepared there by the plaintiff, with a rate of interest sanctioned by the laws of his domicil, adopted by the appellant, by endorsement in blank, and made operative as-a mutual contract by delivery to plaintiff in Washington through the mails.

For the court to hold because the note was not actually signed and endorsed in the District of Columbia, where the agreement it evidenced was made, or because it was made payable in another state, that the contract was void as contravening the usury laws of the place of signature and of payment, would be intolerable and. against decisions of this court. Wayne Co. Sav. Bank v. Low, 81 N. Y., 566; Western T. & C. Co. v. Kilderhouse, 87 id., 430 ; Sheldon v. Haxtun, 91 id., 124.

I think the plaintiff was entitled to recover as upon a contract, made under the government of the laws of the District of Columbia, and therefore valid and enforceable in any state.

The judgment should be affirmed, with costs.

All concur.


text:
    Peter Garlock, Ex’r, App’lt, v. Ella Vandevort et al., Resp’ts.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Will—Power oe surrogate to construe.
    A surrogate has power on the settlement of an executor’s accounts to construe a clause of the will declaring that he is not indebted to any of his children and providing tint any testamentary gift to a child presenting a, claim against the estate should be void, and to determine whether such, clause applied to a child who presented a claim which was ultimately allowed.
    2. Same—Action to construe—When will not lie—Costs.
    Pending proceedings for settlement of accounts in which such question arose, and after a holding by the referee therein that the surrogate had no jurisdiction to hear that issue, but before the surrogate had ruled thereon,, this action was brought to construe said clause in the will. Held, that the surrogate had concurrent jurisdiction with the supreme court to determine the question, and having first obtained jurisdiction was entitled to retain it, and that the complaint was properly dismissed_ and the plaintiff charged with the costs.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered on dismissal of complaint.

      E. K. Burnham, for app’lt; T. H. Bennett, for resp’ts.

       Affirming 33 N. Y. State Rep., 1035.

   Gray, J.

The plaintiff sets forth in his complaint two grounds for bringing this action to obtain a construction of the will of Thomas Yandevort, deceased. The one sought to raise a question as to the residence of a grandchild, as bearing upon her capacity to be a legatee of certain property, and the other related to a clause-of the codicil nullifying bequests and devises, in the event of any of the testator’s children presenting to his executors claims against the estate, other than for the bequest or devise given in the will, practically speaking, cutting off the child in such an event. At the time this action was brought there was pending in the surrogate’s court, and undetermined, a proceeding instituted by this plaintiff’s co-executor for a judical settlement of his accounts, into which were brought all persons in interest and who are now made the parties to this action.. Objections were there filed by this plaintiff, and other parties, to the executor’s accounts, which raised inter alla the precise question which this complaint raises •concerning the effect of the clause in the .codicil above mentioned.

The first question in the complaint arises out of that portion of testator’s will in which he gave to his “ grandchildren living in Michigan at his decease all his real and personal estate * * *

in Michigan.” The complaint questions the right of one of the grandchildren to be a legatee as to such portion of the estate; but the point was not argued in the appellant’s brief and seems to have been abandoned. It could not well be pressed, as constituting any ground for invoking the equity .jurisdiction of the supreme court. Whether the particular grandchild was a resident of Michigan or not was a question of fact, and one which the surrogate could perfectly well dispose of. The issue mainly contested in the surrogate’s court, and which is relied upon now, was as to the right of the defendant Gilbert Vandevort, a child who prosecuted a claim against the estate, or of his descendants, to receive any share under the will.

The claim had been disputed, but, being allowed, had been paid by the executor. This fact was insisted upon before the surrogate as avoiding the child’s interest under the will by force of the provision of the clause of the codicil referred to. The learned judge at special term decided that the action was not brought in good faith, and that the questions involved were within the jurisdiction of the surrogate to determine, and he, therefore, dismissed the complaint, charging the plaintiff personally with the costs. This disposition of the case, I think, we must all agree to have "been a correct and just one.

There is no question but that the supreme court could entertain jurisdiction of an action brought by an executor to determine the force and validity of such a provision in a will, but it is not "an exclusive jurisdiction. , The surrogate had the power, as well, to construe the will in that respect. Though a judicial officer with limited and prescribed jurisdiction and powers, yet it is not open to question that in a proceeding before him, having for its object the settlement of an executor’s accounts and to obtain a decree directing the distribution of the fund in his hands, and with ail ' the parties in interest present, the surrogate may construe the provisions of the will and determine the meaning and validity of any of them, whenever such a determination is necessary in order to make his decree as to distribution. Such a jurisdiction is, of •course, not general, but it is one which is incidental to his office, and which flows clearly from the authority conferred upon him by the statute. See $ 2472 of the Code of Civil Procedure. ■Subdivisions 3, 4 and 5 of the section of the Code cited would Iiave but little meaning and force if such a judicial exercise of the surrogate’s authority were not impliedly granted. It is quite unnecessary to discuss this question at any length, for that has been already done in cases where it has arisen under the provisions of the Code of Civil Procedure and under the provisions of the Revised Statutes. It is sufficient to refer to the cases of Matter of Verplanck, 91 N. Y, 439, 449, and of Riggs v. Cragg, 89 id., 479.

The question here for the surrogate to determine was whether the presentment by and the ultimate allowance to a child of a claim against the estate precluded him from taking his share of his father’s estate, under a clause of his will which recited that he was “ in no wise pecuniarily indebted to any of his children,” and proceeded to declare null and void a testamentary gift to the one presenting a claim. This situation required of him a decision as to whether the clause applied to such a case, and whether it was valid and enforceable. The present is unlike those cases where the issue raised was not as to the validity or meaning of the testamentary provisions; but involved the validity of some deed or agreement, to affect the legatee’s interest. Nothing of the kind appears here; for whether Gilbert Yandevort could take or not depended upon the surrogate’s decision as, to what effect, if any, should be given to the particular clause of the codicil. The surrogate’s jurisdiction was equal to and concurrent with the supreme court, and, following the well established rule in such a case, the surrogate’s court,, as the tribunal which first obtained jurisdiction of the subject matter and of the persons, retained and should continue to exercise that jurisdiction. Schuehle v. Reiman, 86 N. Y., 270.

I do not think it was error, or any abuse of discretion, for the court below to charge the costs upon the plaintiff personally. Of the two questions propounded in the complaint for determination, the one concerning the residence of the legatee was frivolous, inasmuch as the legacy had already been paid over and the question was one merely of fact. The other issue tendered, as to the effect of the clause of the codicil, was at the time pending before and undetermined by the surrogate. To his jurisdiction in the matter no objection had been made by this plaintiff. His action was begun upon the surrogate’s referee holding that the surrogate had no jurisdiction to hear the issue; but before the surrogate had passed on the referee’s-report. There does not seem to have been any necessity, nor any good ground for invoking the jurisdiction of the supreme court, and thereby delaying the proceedings before the surrogate and burdening the estate with further expenses of litigation; and I think, under the circumstances, that the discretion of the court below was very properly exercised, and that it should not be interfered with by us.

The judgment below should be affirmed, with costs to be paid by the appellant personally.

All concur, except Finch, J., absent.