author: PATTERSON, J. INGRAHAM, J.

text:
    Henry W. Sage v. Mayor, Etc., of City of New York.
    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    1. Waters—Accretions—Tideways.
    A grant to freeholders by the governor of the colony of New York of land bounded on one side by a river did not carry accretions to the' land, where the tideway of the river was granted by royal charter to. the city of New York.
    2. Same—Riparian rights—Compensation for destroying.
    Where the tideway of a river was granted to New York City by' royal charter, and the state afterwards increased the grant to an exterior street, under water, to be laid out by the city, an owner of upland property bounded by the river has no riparian rights for. which, compensation must be made when the city fills in the tideway in fronte of the property for the purpose of creating the street. Ingraham, J.r presiding.
    Appeal from, special term, New York County.
    Action by Henry W. Sage against the mayor, aldermen, and. commonalty of the city of New York, to enjoin defendant-from entering on certain premises described in the complaint, or from interfering in any way with the same, to compel defendant to account, and to quiet plaintiff’s title to said premises, and for other relief, The complaint was dismissed, and plaintiff appeals.
    William C. De Witt, for appellant; T. Connolly, for respondent.
   PATTERSON, J.

—The claim of the plaintiff is presented in. two aspects: First. He asserts ownership of the land reclaimed, from the water, and contiguous to his upland; an alleged ownership arising from ancient grants, or, failing that, growing out of the principles and rules of law relating to accretions, of land from alluvion or reliction. Second. If it is held that the claim of ownership of the made or reclaimed lands is not established, the plaintiff insists that he is entitled to compensation for the destruction of his riparian rights caused by the acts of the officers of the city of New York m carrying out the improvement of the water front opposite his premises, which acts are set forth in the pleadings or admitted in the stipulation containing the proofs in this action. We understand that, the defendant does not urge any objection to the form of the action, and therefore we have not taken that subject into consideration.

It was held in the court below that the plaintiff’s ownership was of the upland to high-water mark only. There is nothing in the agreed statement of facts to justify a different finding. The plaintiff’s title to the upland is derived from or through the grant of-Gov. Nicolls, made in 1666, to the freeholders and inhabitants of Harlem. That grant stopped at high watermark. Mayor, etc., of New York v. Hart, 95 N. Y. 443. The land under water between high and low water mark, or, as it is called, the “ tideway,” has belonged to the city of Hew York since 1686. ■ That necessarily disposes of the plaintiff’s claim to a title by deed or grant. The .same result follows with respect to his claim to the made land as an accretion. By the Do'ngan and Montgomery charters, the city, of Hew York acquired title to all the land between high and low water mark. Towle v. Remsen, 70 N. Y. 303. The title thus acquired has been virtually confirmed by every constitution of the state of Hew York from that of 1777 to that of 1894, and is the foundation of the right of the city and its grantees to the whole water front of Manhattan Island. The improvement made in front of the plaintiff’s premises, either by filling in or by the construction of the exterior street and bulkhead, and the consequent exclusion of the water from the former tideway, has merely converted the city’s land under water into terra firma. The city has lost no right, nor has the plaintiff acquired any, simply because of the reclamation of the land, for that land was indisputably the property of the city in its original state, and has not ceased to be so because its surface has been made permanently dry land. The plaintiff, therefore, has no claim to ownership of any of the land between original high and low water mark, and he can claim nothing beyond low water mark, for the interposed land of the city lies between his property and that reclaimed between low water mark and the exterior street.

That leaves for determination the question of the right of the-plaintiff to compensation for the destruction of riparian rights or easements. It is unnecessary in this particular case to consider the general subject of the right an upland owner has in, to, or upon the waters immediately adjacent to his property. The contest between the parties to this action must be disposed of upon the particular facts relating to the property rights of the city of Hew York in the land under water immediately surrounding Manhattan Island. By the Dongan charter, of April 27,1686, all the land under water, between high and low water mark, around that island, was granted to the city of Hew York. The Montgomery charter of January 15, 1730, confirmed the Dongan grant, and ceded an additional 400 feet-beyond low water mark, from the Battery to what is now known as King or Charlton streets, on the Horth river, and .to Corlears Hook (about Houston street), on the East river. By an act of the legislature of the state of Hew York, passed April 3,1807, the grant of the additional 400 feet was extended on the Horth river to about Seventy-fifth street, and on the East river to about Fortieth street. By an act of the legislature passed February 25,1826, the grant of the 400 feet line of 1807 Avas extended on the Horth river to Spuyten Duyvil creek, and on the East river to the Harlem river. On the 14th of April, 1852, land under Avater on the Harlem river, from the East rivtr to the Horth river, and beyond Ioav water mark, and to an exterior street to be laid ont by the city, was granted. The premises in question had a frontage on the Harlem river, and, as has been seen, the land under water between high and low water mark in front of such premises was granted to the city by the Dongan charter, in 1686, and the additional grant of land under water to the exterior street was granted by the act of April 14, 1852. The improvement constructed by the city of Hew York has redeemed, from the water, land ceded in part by the original charters and in part by the act of 1852. It is an improvement for the benefit of the public. If the grant to the city of Hew York contained in the Dongan charter authorizes it to destroy or impair the plaintiff’s alleged riparian rights without compensation, it becomes altogether immaterial to consider any question of the city’s use of the land beyond low water mark, granted by the act of 1852; for as to that, while, under the act of 1852, there may be a preservation to the upland owner of a pre-emptive right or equity in the made land, no other right exists that would not be effectu-' ally destroyed by the paramount right of the city to fill in or otherwise use the land under water, granted by the Dongan charter, if such right inheres in the city.

It has been determined by the courts of this state that, under the Dongan charter and its confirmations, the city of Hew York acquired an absolute fee to the tideway. That was clearly held in Furman v. Mayor, etc., of New York, 10 N. Y. 568, and is there stated to be well settled, and to admit of no dispute. That being so, the city held that land under water precisely in the same way, with the same incidents of ownership, and with the same right to use and dispose of it, as a private individual would have in the real estate of which he stood seised. In Nott v. Thayer, 2 Bosw. 61, it is stated by the court that it was not disputed by either party that the corporation had an absolute fee in the tideway. In Towle v. Ramsen, 70 H. Y. 308, it is said that the corporation has an absolute fee in the tideway, and that it necessarily followed that the city had a perfect right to make a grant of the land in fee simple absolute; and in Mayor, etc., of New York v. Hart, 95 N. Y. 443, it is stated that the title of the city to the tideway was, in its origin, absolute, and that the city could sell the strip to whomsoever it pleased. If such were the nature of the title of the city, the necessary incidents of ownership in fee must follow. There is nothing in the adjudged cases, and nothing in the terms or history of the grants by royal or state authority, that abridges in any way the title acquired by the city of New York. This absolute ownership of the city is said to be for public purposes. In the case of the Mayor, etc., of New York v. Hart, supra, Judge Finch says that the Dongan charter gave the tideway for commercial purposes and for the public use; that the city took it as the crown had held it, as trustee for the public ; but it is conceded in that case that those owning the upland might have all their rights cut off from the water by reason of the absolute ownership of the city in the tideway, and that the nature of the privileges and conveniences of the upland owner is such that they may lie at the mercy of the sovereign, and may be taken away without compensation. That is so, for the obvious reason that they stand as obstructions in the way of the sovereign’s right to benefit the public by necessary and appropriate improvements of the land over which the tide runs; and it is said m the same case that the city, by virtue of its ownership of the tideway, may destroy the privileges and conveniences by a use or grant for public purposes, and without compensation. This conclusion is drawn from the special facts existing in this case.

We do not understand that the case of Rumsey v. Railroad Co., 133 N. Y. 79, 44 S. R. 248, disposes of the question raised here. What is held in that case is that an owner of land on a public river is entitled to compensation for damages sustained by the construction of a railway across his water front, and the deprivation of his access to the navigable part of the stream, unless the owner has granted the right, or it has been taken by the power of eminent domain; and that is all that is there decided. It brings the law of this state on the general subject of the rights of riparian owners into harmony with the liberal view of such rights taken by courts in other jurisdictions; but there was no question involved between the upland owner and the grantee of the sovereign holding by chartered grants specifically conferring a title and ownership, held for two centuries, and defined to be an absolute ownership, which gives complete dominion; and that is the distinctive feature of this case. The right of the city stands upon its charters and grants, and confirmations thereof. Those charters and grants have been confirmed in their full scope and meaning, as were all royal charters and grants antedating October 14, 1775. Ro limitation has been placed upon such grants. They have been confirmed as they were made. It is too late for a private person to draw into question the power of King James the Second or King George the Second, by their governors general of the province, to grant, or the power of the legislature of the sovereign state of Rew York in 1777 to confirm what was granted, to the city of Rew York, in absolute ownership. Among the provisions of the Dongan charter (section 14) is one that authorizes the city “ at any time or times hereafter, when it to them shall seem fit and convenient, take in, fill and make up and lay out all and singular the lands and grants in and about the said city and island Manhattan, and the same to build upon or make use of in any other manner or way as to them shall seem fit, as far into the rivers thereof or that encompass the same as low-water mark aforesaid.” That term of the grant was confirmed with' all the rest, and gave the city the right to do just what it has done and is doing, and it was confirmed before any question could arise of the constitutional right of an upland owner to compensation for being deprived of his riparian rights or ease-meats ; and it is not shown by any authority that the royal grant, when made, could not be availed of by the city without making compensation to the upland owner. It is upon.the exceptional state of facts arising out of the nature and terms of the grants to the city, their proper construction, and the rights acquired under them, that we think the judgment of the court below was right, and should be affirmed.

YAN BRUNT, P. J., and WILLIAMS and O’BRIEN, JJ., concur.

INGRAHAM, J.

(dissenting).—In the year 1666 the original Harlem patent was granted by Richard Nicolls, governor of the colony of New York, by which there was granted to the inhabitants and freeholders of Harlem all that tract of land within certain bounds set forth in the charter, which lands were bounded by the “ Harlem river, or any part of the said river on which this island doth abut,” together with all the soils, creeks, quarries, etc., and “ other profits, commodities, emoluments and other hereditaments belonging to the said lands and premises within the said bounds and limits set forth belonging or in any wise appertaining.” This was confirmed by a patent granted by Gov. Dongan dated March 7, 1686. The plaintiff claimstitle to the upland in question under a grant from the inhabitants and freeholders in Harlem, dated May 2, 1700, by which there is set off for Jan Louwe Boogert a piece of land lying in the bend of Ilellgate, which land is bounded by the river, and includes the land in question. See Pirsson’s Dutch Grants, 142; Riker’s History of Harlem, 491. On Septe:nber 21, 1706, John Loewsen Bogert and Cornelia, his wife, conveyed this land to Johannes Benson, and in such conveyance this grant from the inhabitants and freeholders of Harlem was recited. This deed is printed at full in Pirsson’s Dutch Grants (page 95), and is recorded in the office of the register of the city and county of New York (Liber 226 of Conveyances, at page 37); and from the said Johannes Benson the plaintiff has acquired his title. The defendant, the city of New York, is about to fill up the land under water in front of the plaintiff’s premises, thus cutting him off from all access to the river, and destroying all riparian rights that the plaintiff has by virtue of his ownership of this property abutting on the river; and this action is brought to enjoin and restrain the defendant from such action so far as it affects or destroys the property of the plaintiff. The city of New York claims title to the land under water in front of and adjoining the plaintiff’s property under the charter granted by Gov. Dongan, April 26, 1686, which was subsequent to the two patents to the inhabitants and freeholders of Harlem. By the Dongan charter, there was granted to the city of New York “all waste, vacant, unpatented and unappropriated lands lying and being within the said city of New York and on Manhattan Island aforesaid, extending and reaching to the low-water mark in, by and through all parts of the said city of Yew York and Manhattan Island aforesaid; ” and by a subsequent charter, granted by Gov. Montgomerie on the 15th day of January, 1730, this grant was confirmed.

We have thus to consider what riparian rights, if any, the inhabitants and freeholders of Harlem acquired by the patent to them, and that passed from the grant by them to Bogert. The grant to the city of Yew York by both the Dongan and Montgomerie charters was the “ waste, vacant, unpatented and unappropriated lands; ” and I think it clear that the grant to the city of Yew ifork was subject to all rights that had been acquired by prior grantees. This certainly applies to prior grants by the English governors. The title that was granted to the city of Yew York by the Dongan and Montgomerie charters to right in the tideway has been several times before the courts of this state, and the title of the city of New York acquired under these charters has been characterized as an absolute fee to the tideway. See Furman v. Mayor, etc., of New York, 10 N. Y. 568; Towle v. Remsen, 70 N. Y. 308 ; Mayor, etc., of New York v. Hart, 95 N. Y. 443. The question, however, as to whether or not there existed a riparian right on lands that had been granted or patented prior to the Dongan charter to the city of Yew York was not before the court, and was not determined. In none of the cases cited to us upon the argument was that question presented, and, so far as those decisions apply, it does not appear that any claim was made to the existence of this riparian right; nor was the enforcement of such right at issue. I cannot find that this question had ever been passed upon by any of the courts of this state. The city of Yew York, a municipal corporation, acts in a dual capacity. This is discussed in Dillon’s Municipal Corporations (volume 1, § 66), where the learned author says :

“In its [municipal corporation’s] governmental or public character, the corporation is made, by the state, one of its instruments or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself. * * * But, in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community, which is incorporated as a distinct legal personality or corporate individual.”

And this relation of a municipal corporation, and the nature of its interest in property which has been conveyed to or acquired by it, are discussed in the case of Webb v. Mayor, etc., of New York, 64 How. Prac. 16, where the court say:

“ I perceive no difference between the tenure of property thus held by the city and the proprietary rights of natural persons or private corporations.”

The city of New York, therefore, took this property conveyed by the charters before mentioned in its “ proprietary right or private character ; ” and it became vested with the fee of the property,.subject to the same rights of prior patentees that would have existed in case the grant had been made to a Srivate individual or private corporation, instead of the city of Few York, and before this grant of the tideway to the city of New York, there had been granted to the inhabitants and freeholders of Harlem the land abutting on the tideway; and the grant to the city of New York contained in the charters was, it seems to me, subject to the right acquired by the patentees in the Harlem patent.

The first question presented is, what rights were acquired by the patentees of the Harlem patent ? There was granted by that patent the land eastward of a certain boundary to the Harlem river, as also to the North and East rivers, together with all the soils, creeks, quarries, etc., and all other profits, commodities, emoluments,- and hereditaments to the lands and premises within the said line belonging or in • anywise appertaining, with their and every of their appurtenances. It cannot now, I think, be disputed that such a grant, bounded upon an arm of the sea, vests in the owner of the land thus abutting certain riparian rights, which are well defined, and which are property appurtenant to the land so abutting.

It has been again and again decided that the title of the state to the bed of the rivers and arms of the sea was subject to the riparian right in favor of the owner of the uplands. Hedges-v. Railroad Co., 150 N. Y. 156, and cases cited. And if the state, as successor to the king of England, owns, the property under water subject to this right of the owner of the upland, it must follow that the king of England held this property, after his grant to the inhabitants and freeholders of Harlem, subject to these riparian rights that had attached to the uplands granted.

In Yates v. Milwaukee, 10 Wall. 504, the court say:

“ But, whether the title of the owner of such á lot extends-beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. * * * This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It .is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary, that it be taken for the public good, upon due compensation.”

And in the case of Illinois Cent. R. Co. v. Illinois, 146 U. S. 446, 13 Sup. Ct. 115, it was held that:

“ The riparian right attaches to land on the border of navigable water without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage. The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, supra, to access to the navigable part of the water on the front of which lies his land, and for that purpose to make á landing, wharf,- or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited, the court held that this riparian right was property and valuable; and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired.”

This case of Yates v. Milwaukee, supra, is cited with approval as determining the question respecting the rights of riparian owners by the court of appeals in Rumsey v. Railroad Co., 133 N. Y. 87, 44 S. R. 248.

In the case of Duke of Buccleuch v. Board, L. E. 5 H. L. 462, Lord Cairns defines most concisely what is meant by riparrian property. He says:

It has appeared to me throughout, that the property of the plaintiff in error in this case was what is commonly called ‘ riparian property.’ The meaning of that is that it liad a water frontage. The meaning of its having a water frontage was this: that it had a right to the undisturbed flow of the river, which passed along the whole frontage of the property in the form in which it had formerly been accustomed to pass. * * * Beyond all doubt, the water right was a property belonging to the plaintiff, for which compensation was to be made.”

And in the case of Saunders- v. Eailrqad Co., 144 H. Y. 87, it was held that the defendant’s patent from the state “ was valid and effectual to vest it with all the rights that the state had in the parcel in question, but it could not extinguish or impair the easement or riparian rights which the plaintiffs or their grantors had as owners of the uplands and bank of the river.” The court then proceeded to define what these rights are:

They embrace the right of access to the channel or navigaable part of the river for navigation, fishing, and such other "uses as commonly belong to riparian ownership, the right "to make a landing, wharf, or pier for his own use, or for that of the public, with the right of passage to and from the same with reasonable safety and convenience.”

In the case of Van Dolsen v. Mayor, etc., of New York, 21 Blatchf. 455,17 Fed. 817, the title of the defendant, the mayor •of the city of Hew. York, derived under the Dongan charter, was before the court, and this exact question seems to have been décided. It seems that in that case the plaintiff claimed title, under a grant dated 1676, of a tract of land bounded southeast by the river, and, in 1677, the grant of another tract adjoining this, bounded by ye water side.” • These grants being before the Dongan charter, it was held that the title of the city was subject to the riparian rights of the first grantee; and the, court held that the crown of Great Britain, “ after Magna Charta, coaid • not grant land bounded on a way, and afterwards, without compensation, remove the way, any more than an individual could ” ; that the defendants, as grantees from and under the crown, are limited as if they had made the grant Avhich the croAvn made. It Avas held that the defendants could not, wthout making compensation, so use the land granted to them by the Dongan charter as Avould seriously interfere Avith the riparian rights vested in the OAvner of the upland. The same principle, has been expressly applied by the court of appeals in the íavo cases before cited. Rumsey v. Railroad Co.; Saunders v. Railroad Go. In each of those cases the court expressly held that the OAvner of land abutting upon the arm of the sea or navigable stream had a riparian right as appurtenant to his abutting lands; that such right Avas property; and that neither the state nor the grantee of the state could use that property without making compensation.

It is conceded in this case that the city of New York, as the OAvner of the tideAvay in front of the plaintiff’s property, is about to fill up that land, and use it for its own purposes, and that • this will, in effect, destroy the ¡fiaintiff’s riparian right appurtenant to his property. The city has acquired by various patents and grants, from the "crown before the Revolution, and from the state since, the fee of the land under water for a considerable distance into the river; and it claims the right to use the property thus acquired, so that, Avhen filled up, the plaintiff’s property Avill be entirely cut off from all access to the river in any way. It is clear that, if plaintiff has a riparian right as appurtenant to his property, it is appropriated and destroyed by the use to Avhich the city proposes to put the property acquired by it betAveen the bulkhead line and high-water mark. The only question that there can be, therefore, is AArhetheror not the inhabitants and freeholders of Harlem acquired such riparian right as appurtenant to the property granted to them, and Avhether the subsequent grant of the tideAvay by the Dongan and Montgomerie charters to the city of NeAY York Avas subject to this right acquired by the inhabitants and freeholders of Harlem under its patent. By the grant to the inhabitants and freeholders of Harlem, the title to the land embraced within the boundaries contained in the grant vested in the grantees; and, Avith the title to the upland, there vested the riparian rights, as part of the land granted. This right in no way depended upon prescription or a presumed grant of the croAvn. It passed as a part of the land granted, and Avas as much property as the land itself Avithin the prescribed bounds.

Thus, it was said by Lord Wensleydale in the house of lords, in Chasemore v. Richards, 1 H. L. Cas. 382 :

“ It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturas, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil-itself, and that he is entitled to the benefit' of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbor’s soil for his own in its natural state. His right in no way depends upon prescription, or the presumed grant of his neighbor.”

And it was said by Lord Selborne in Lyon v. Fishmongers’ Co., 1 App. Cas. p. 682:

“ But the rights of the riparian proprietor, so far as they relate to any natural stream, exist jure naturas, because his land has, by nature, the advantage of being washed by the stream ; and, if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize and follow the course of nature in every part of the same stream.”

Thus, by the law of England -which applied when these charters and grants were executed, the grant by the crown to the inhabitants and freeholders of Harlem granted to them this riparian right as part of the property itself granted. This riparian right was entirely distinct and separate from the fee of the land under water below high water mark; and, at the time of the grant to the city of New York by the charters before mentioned, this right of property existed and was owned by the inhabitants and freeholders of Harlem. The grant to the city of New York by the Dongan charter granted and conveyed to it “ all the waste, vacant, unpatented and unappropriated lands lying and being within the said city of New York and on Manhattan Island aforesaid, extending and reaching to the low-water mark in, by and through all parts of the said city of New York and Manhattan Island aforesaid.” It is conceded that this grant did not apply to the uplands within the boundaries of the land conveyed to the inhabitants and freeholders of Harlem by the prior grant. It is also conceded that it applied to the fee of the land between high and low water, the fee of that land vesting in the city of New York. But what passed with the grant of that fee of land under water ?

In Lyon v. Fishmongers’ Co., 1 App. Cas., at page 683, Lord Selborne says :

With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights, properly so called, because the word ‘ riparian ’ is relative to the bank, and not the bed, of the stream; and the connection,, when it exists, of property on the bank with property in the bed of the stream, depends-, not upon nature, but on grant or presumption of law. * * * The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream ; but lateral contact is as good, jure naturas, as vertical; and hot only the word ‘ riparian,’ but the best authorities, such as Miner v. Gilmour, 12 Moore, P. C. 131, and the passage which one of your lordships has read from Lord Wensleydale’s judgment in Chasemore v. Richards, 7 H. L. Cas. 349, state the doctrine in terms' which point to lateral contact, rather than vertical. It is true that the bank of a tidal river, of which the foreshore is left bare at low water, is not always in contact with the flow of the stream ; but it is in such contact for a great part of every day, in the ordinary and regular course of nature, which is an amply sufficient foundation for a natural riparian right.”

In Gould on Waters (page 360, § 204) it is said :

“ The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself. It does not depend upon user, or presumed grant from long acquiescence on the part of other riparian proprietors above and below, but' exists jure naturae, as parcel of the land. It is not suspended or destroyed by mere nonuser, although it may be extinguished by the long-continued, adverse enjoyment of others. It is not affected by the use to which the water has been or -may be applied; nor is it impaired by unity of possession and title in such land with the land above or below it. It is a natural right, which arises immediately with every new division or severance of the ownership. 1 If,’ says Chief Justice Shaw in Cary v. Daniels, 8 Mete. [Mass.] 466, ‘ the owner of a large tract through which a water course passes should sell parcels above and below his own land retained, each grantee would take his parcel with a full right, without special words, to the use of the water flowing on his-own land as parcel, and subject to the right of all other riparian proprietors to have the water flow to and from such parcel. There is no occasion, therefore, for the grantor, in such case, to convey the right of water to the grantee, or reserve the right of water to himself, in express words, because, being inseparable from the land and parcel of the estate, such right passes with that which is conveyed, and remains with that which is retained.’ ”

We thus see that, by the grant to the inhabitants and freeholders of Harlem, this riparian right as property vested in the grantees, and this riparian right as part of the úpland which was included in the grant, was not waste, vacant, unpatented, and unappropriated lands lying upon Manhattan Island. The mere grant of the fee of the land under water did not, under the authorities above cited, convey a riparian right to the city of Mew York, where the upland adjacent to such land under water had been granted to others, so that the grant to the city of Mew York did not convey the upland; nor did such grant of the land below water, under the principle applied in the cases cited, convey to the city of Mew York any riparian right as relating to such land under water not connected with adjacent uplands. The city of Mew York owns the land under water in fee. It can sell this land, occupy it, do with it what it pleases. The plaintiff is not entitled to interfere with' this right. The plaintiff, however, owns a riparian right not appertaining to the land under water, but as a part of the upland; and this riparian right was property vested in the plaintiff, which neither the defendant nor any one else could appropriate or destroy without paying compensation therefor. The city is about to destroy this riparian right, the plaintiff’s property; and I can see no reason why the plaintiff should not have the right to a judgment to prevent this illegal destruction of his property.

It is unnecessary to consider whether Magna Charta applied to the colonies, and whether the king’s power to dispose of this property absolutely was limited by the fact that a prior grant of it had been made. The king had granted all his rights to this land to the Duke of York. The Duke of York thus owned both the land above and below high water. He granted this upland to the inhabitants and freeholders of Harlem, and his subsequent grant to the city of Mew York was subject to that right. Mothing in the grant to the city of Mew York indicates an intention to affect, the prior grant. On the contrary, it is only unpatented and unappropriated land which is granted to the city of Mew York; and this riparian right as property vesting in a former grantee from the king certainly was not included within a grant of waste, vacant, unpatented, and unappropriated lands lying within -certain general boundaries. I think, therefore, that the plaintiff had a riparian right which was property, and which the defendant was proceeding to deprive him of without compensation, and that, to the extent necessary to protect that right, he was entitled to judgment.

I agree with the court below as to the other questions decided, but think, for the reason above stated, that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: WILLARD BARTLETT, J.

license: Public Domain

text:
    Burden et al. v. Burden et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Deeds—Delivery—Evidence.
    A grantor conveyed land to his nephew, who thereupon conveyed it to grantor’s wife. The two deeds were not recorded until the grantor’s death, 20 years afterwards. The wife swore to the delivery, and her retention of the deeds. She was corroborated by the nephew, and by the attorney in whose office thoy were executed. Held sufficient proof of delivery, which was not rebutted by the fact that the grantor had possession, and paid taxes on the property to the time of his death ; and that, together with his wife, he had conveyed parts of it to others, after execution of the deed to her.
    Appeal from special term, Queens County.
    Action by Walter H. Burden and Charles E. Burden against Lavinia A. Burden and others to. determine a claim for real estate. The complaint was dismissed on the merits, and plaintiffs appeal.
    Augustus N. Weller, for appellants; Thomas C. Ennever, for respondents.
   WILLARD BARTLETT, J.

—The plaintiffs are sons and heirs at law of the late Capt. Henry Burden, of Long Island City. The defendant Lavinia A. Burden is his widow. On October 2, 1875, Capt. Burden, being the owner of certain valuable real estate in the town of Newtown, in Queens county, executed a conveyance of the same to Henry Burden, a nephew, who, with his wife, thereupon immediately executed a further conveyance thereof to Lavinia A. Burden. There is no doubt that these deeds were made for the purpose of transferring the-title of the property from Capt. Burden to his wife, through his nephew as an intermediary. They were not recorded, however during the lifetime of the captain, nor does their existence appear to have been known to his children until after his death. He died on October 30, 1895, and the deeds were placed on record in the office of the county clerk of Queens county, at the instance of the widow, on1 November 2, 1895. The plaintiffs insist that the conveyances were never delivered, afid seek on this ground to have them set aside as a cloud on their title as heirs at law. To sustain their position, the plaintiffs proved that Capt: Burden retained possession of all the property, except two pieces, during the 20 years between the time of the execution of the above-mentioned deeds and the time of his death ; that in 1888 he conveyed a part of the land to the plaintiff Charles E. Burden,—his wife, the defendant Lavinia A.' Burden, joining in the conveyance in order to cut off her dower; that in 1892 he made a similar conveyance of another piece to the Architectural Terra-Cotta Company, in which his wife also joined ; and that he continued to pay the taxes upon all the property except the two portions thus conveyed. The theory of plaintiff’s case was that Capt. Burden formed the intention in 1815 of conveying this real estate to his wife to avoid a liability which he apprehended as one of the directors of a bank which, had then recently failed, but that, after executing the deeds, he changed his mind, concluded not to deliver them, and kept them in a box, in his own possession, up to the time of his death. The plaintiffs offered testimony tending to show that the defendant Lavinia A. Burden had admitted this to be the fact. Mrs. Burden, however, denied having made any such admission, and swore positively to the actual delivery of the deeds to her on the day of their execution, and to her retention of them always afterwards. As to the delivery, her testimony was strongly corroborated by that of the nephew, Henry Burden, who appears to have been a wholly disinterested witness, and who swore that he himself handed the deeds to his aunt, Mrs. Lavinia A. Burden, at the law office of Mr. Otto Horwitz, where they were executed. Further corroboration, although less positive in its character, was furnished by the testimony of Mr. Horwitz. Considering the evidence ás a whole, I think the learned trial judge was undoubtedly right in holding that the deeds had been delivered. This was the only litigated issue of fact. It was tried most favorably to the plaintiffs, who were allowed to prove Capt. Burden’s declarations concerning his ownership of the land, made after the execution of the conveyances to his wife, and in her absence. Notwithstanding this testimony, the court found that there had been a delivery, on evidence sufficient to support such finding. The fact that some of the property had meantime been conveyed away to third parties by the grantor in the unrecorded deed was not conclusive evidence against a delivery. Williams v. Williams, 142 N. Y. 156; 58 S. R. 625. In the case cited the appeal book shows that the defendant had subsequently sold a part of the land which he originally conveyed to the plaintiff by an unrecorded deed, and yet a judgment in ejectment in her favor for the recovery of the remaining land was sustained.

The judgment should be affirmed.


author: McADAM, J.

text:
    Thomas K. Foster v. William I. Meeks.
    (Supreme Court, Appellate Term, First department.
    November 25, 1896.)
    Physicians—Employment—Liability of third persons.
    One who requests a physician to attend another person professionally, without indicating that he acts as an agent or messenger, is liable for the physician’s charges.
    Appeal from Eighth district court.
    Action by Thomas K. Foster against William S. Meeks for professional services. There was a judgment in favor of plaintiff, and defendant appeals.

      John P. Horren, for appellant; P. C. Taiman, for respondent.
   McADAM, J.

—The assignor of the plaintiff, Dr. Kennedy, a practising physician in this city, rendered professional services to the defendant’s father, now deceased. There is no dispute about the rendition of the services or their value. The question is one only of liability. The defendant contends that the claim is one against his father’s estate; while the plaintiff asserts that there is no estate to look to, the father having left no property, and that the defendant, by his conduct, made himself personally liable. It appears that the defendant called upon Dr. Kennedy and said': “Doctor, I want you to come and attend my father. He had a doctor who was not satisfactory.” The doctor thereupon visited the father, and rendered the services for which compensation is claimed. After the death of the patient, the doctor sent his bill to the defendant, who replied that the estate should be charged with the amount: and there is evidence that the defendant told him to send the bill against the estate to his brother, and that he (the defendant) would see it would be paid. The justice, upon these facts, found in favor of the plaintiff, and the defendant appeals.

"We think the testimony is sufficient to warrant the finding. If the father had requested the son to go for the doctor, and, acting on this authority as agent merely, the defendant had delivered the message to the doctor, no liability would have attached. But there is no evidence in the case that the father over directed the defendant to go for the doctor, and there is nothing from which it may be inferred that the defendant acted merely as a messenger. Indeed, his language would seem to negative that. He said, “ Doctor, I want you to come and attend my father ” ; not that the father wanted the doctor to come, or that the defendant was acting in a representative, capacity. The language fairly implies that the defendant was not acting as messenger, but on his own behalf. Where a person seeks to avoid personal liability for his acts, he should disclose that he is acting as agent only. Whitman v. Johnson, 10 Misc. Rep. 725 ; 64 S. R. 613 ; Story, Ag. § 266.

In Bradley v. Dodge, 45 How. Prac. 57, it was held that where a person called at the office of a physician, and, in the -absence of the latter, left his business card (with, “ Call on Mrs. D-, at No. 769 Broadway,” written upon it) with a clerk in the office, requesting him to hand it to the physician, and to tell him to “ come as soon as possible,” such person becomes liable to pay the physician’s bill in attending upon Mrs. D., in pursuance of the message. The defendant in that case relied upon Buck v. Amidon, 4 Daly, 126, 41 How. Prac. 370; but the court said:

“ In that case the defendant exhibited to and left with the plaintiff the telegram he had received, which, as well as the other facts and circumstances, clearly showed that he only noted as the agent of another party. In the case at bar, on the other hand, there was nothing on the card' to indicate to the plaintiff, before he rendered the services, that the defendant, had called at his office at Mrs. Day’s request, and that he was. therefore only acting as her messenger. • The defendant might, very readily have screened himself from all liability, by simply-writing the memorandum on a blank card, or adding to that which he 'wrote on his own card something that would have apprised the plaintiff of the fact that he acted in the transaction for Mrs. Day, as her agent. Having neglected to do this, the plaintiff was, under the circumstances, justified in believing that he was employed, and would be paid, by the defendant; and that Mrs. Day’s name was put on the card only for the purpose of indicating the person whom the defendant wished him to attend on his account. If, however, there can be any doubt on this point, the same is disposed of by the verdict of the jury [which was in favor of the plaintiff].’’

See, also, Clark v. Waterman, 7 Vt. 16; 29 Am. Dec. 150..

In Buck v. Amidon, supra, the court said:

“ While, upon an uncontroverted state of facts, the point involved remains doubtful, or, upon undisputed facts, inferences may be drawn either way, the question is one properly for the jury.”

The justice having found for the plaintiff upon the facts, with the inferences to be drawn from them, his finding, like that of a jury, should not be disturbed.

In Crane v. Baudouine, 55 N. Y. 256, the referee had found all the facts relating to the alleged employment of the physician in favor of the defendant. The general term granted a new trial (65 Barb. 260); and the court of appeals, in reversing the, general term, held that, on the facts found by the referee, his. judgment was right. If the justice had found in favor of the. defendant in this instance on the facts, that case would have, been a strong authority in favor of sustaining the judgment ;■ but, as thecjustice found the other way, it is inapplicable to the findings actually made. Ho motion to dismiss the complaint was made, and the parties thereby conceded that the question to be decided was one peculiarly of fact, and the justice’s finding thereon, in the light of the evidence presented, is sufficient to require an affirmance of the judgment. Lowenthal v. Copland, 41 N. Y. Supp. 8.

The judgment must be affirmed, with costs.

All concur.


author: BARRETT, J.

text:
    Hamilton H. Salmon et al. v. William F. Jobbins et al.

    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    Broker’s commission—Reduction of contract price—Effect.
    Where a company agreed to pay $20,000 for Canadian patent rights, and to purchase chemicals, at a specified price, to use with the process, but afterwards refused to comply, claiming misrepresentations by the owners of the patents, and the contract was modified by an agreement “ to deliver to buyers of the Canadian patents $10,000 worth of chemicals named in the said contract,” the modification was a bonus to secure the contract, and did not so change the price of the Canadian rights as to defeat a broker’s full commissions for securing the contract, though it deprived him of commissions on the chemicals.
    Appeal from judgment on report of referee.
    Action by Hamilton H. Salmon and another against William F. Jobbins and another. There was a judgment in favor of plaintiffs, and defendants appeal.
    The action is brought to recover one-half of a broker’s commission. The defendants are the proprietors of a patented process for the manufacture of glycerin. On January 13,1893, they entered into a contract with one Wood to pay him, among other things, a commission of 10 per cent, of all moneys, in payment for licenses to manufacture by their process, received under contracts obtained by Wood, and 2 per cent, of the amounts received for chemicals sold under such contracts. On September 16, 1893, a contract (obtained by Wood and Harris, local brokers) was entered into between the defendants and the Hamilton Powder Company, of Montreal, Canada. By this contract the powder company agreed to pay the defendants $20,000 for the sole license to use the defendants’ process in the dominion of Canada, with the right to take out a patent therefor in the province of Newfoundland. This sum was to be paid by six promissory notes of equal amount, dated September 1,1894, at 4, 8,12,16, 20, and 24 months. The powder company afterwards claimed that it had bought a larger plant than it otherwise would, by reason of the representations of Harris and the defendant Jobbins that sufficient waste soap ■leys could be obtained in Montreal to run the larger plant, and declined to carry out the contract as originally made. Harris and Jobbins agreed that they had unintentionally deceived the company, and on October 17, 1894, a modification agreement was executed by the defendants and the company, which rer cites: ££It is hereby mutually agreed that, in consideration that the soap manufacturers of Montreal have misinformed us as to the amount of tallow and oils used by them, whereby the profits from the plant at St. Henri are unfavorably affected, we, Jobbins and Yan Ruymbeke, do hereby agree that we will deliver to the buyers of the Canada patents ten thousand dollars’ worth of the chemicals named in the said contract for the sale of the said patent rights ” etc. At the trial the defendant Jobbins, who participated in the negotiations with the powder company which led up to the modification agreement, testified that the real agreement was that the defendants should reduce the license fee to $10,000, and that the company should bind itself to purchase $10,000 worth of chemicals, including in this amount about $1,150 worth already delivered; that these chemicals should be delivered as the company might order them; and that notes should be given for the license fee and the chemicals at the same dates, and for the same amounts, as specified in the original contract with regard to payment of the license fee, each note being one-half for license fee, one-half for chemicals. ¡No witness was called in contradiction of this testimony. The agreement between Harris and Wood was that the former should receive one-half of the latter’s fee. The plaintiffs are assignees of the other one-half of the sum due Wood. The referee awardee! them the sum of $166.66, and interest from January 4, 1895, being 5 per cent, of the sum of $3,333.33, the amount of the first note given by the powder company, and the only one which had fallen due when the action was brought.
    John S. Davenport, for appellants ; George P. Gordel, for respondents.
   BARRETT, J.

—We need add but little to the careful opinion of the learned referee. In our judgment, the testimony of Mr. Jobbins should not be deemed controlling, and the referee might well have rested his decision upon the practical elimination of that testimony as a governino- factor in the case. Mr. Jobbins was a party defendant, and his testimony bears inherent marks of untrustworthiness. He was directly interested in testifying as he did, since the plaintiffs were entitled to 10 per cent, upon the license, and to but 2 per cent, upon the chemicals. He was not corroborated by Harris (Harris was not called as a witness), and he was contradicted by the writing which evidenced the supplementary agreement. Whether the oral negotiations were or were not merged in this paper writing, the latter must still be considered upon the question of credibility, as well as in determining what the supplementary agreement really was. Viewed in its least binding aspect, this writing is certainly a credible witness, and its testimony is in entire harmony with the surroundings. It is, in fact, essentially unlikely that the notes given for the license should have been split up in the way that the defendants claim, and apportioned, one-half for the license, and one-half for chemicals which had not been delivered, and might not be for months. This improbability the referee points out, though he places his decision, in part, upon the merger. It is immaterial, however, by what process the learned referee reached the conclusion found in his decision. It is his decision, not his opinion, which is under review ; and it suffices for the affirmance of the judgment that, upon the facts as they appear in the record, his conelusion was right. We have no doubt, upon a review of all the evidence, that the supplementary agreement spoke the substantial truth, and the whole truth, and that the defendants simply agreed thereby to give the purchasers of the license $10,000 worth of chemicals to keep them to their original contract.

The contract between the defendants and Wood, the plaintiffs’ assignor, provided that:

“ Should any legal or other unavoidable special expense occur .in collecting any of the moneys due to us under any of- the-foregoing mentioned contracts, then the commission or commissions due thereon shall be only the net sum collected and received by us.”

It is now claimed that the amount of the chemicals furnished’ under the modification agreement is a special expense, and should be deducted from the license fee before computing the-plaintiffs’ commission. This claim conflicts with the defendants’ own view of their rights prior to the trial, and is plainly untenable. The original, contract with the powder company provided that-it should buy all of its' chemicals from the defendants. But for the modification of this contract, the plaintiffs would be entitled to commissions on the sums so far received from this source. The basis on which to compute their commissions would be the $20,000-for the license fee, plus the-amount of chemicals sold. This sum has been reduced by the-exact amount of such chemicals, and commissions allowed only upon the balance. In doing this, the referee treated the furnishing of the chemicals as a special expense, and deducted it a's such.- The defendants are not entitled to have the amount. deducted again.

The judgment should be affirmed,'with costs.

All concur.


text:
    George P. Smith et al. v. John Hayes.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Evidence—Weight and sufficiency.
    Plaintiff claimed that defendant agreed to pay $100 and the taxable costs of a foreclosure proceeding as a fee for services. Defendant denied that he agreed to pay the taxable costs. Plaintiff’s testimony was corroborated by his father and another person. A written agreement by defendant to sell to a college'the house bid in by him in the proceeding was introduced, and contained the clause, “ On condition that the college will pay §350, the cost of the former foreclosure.” Defendant testified that he did not know “that there were certain taxed costs in a suit.” The verdict was : “ The jury say they find a ■ verdict for the defendant for the foreclosure of the mortgage, $508 ; balance of taxable costs, $27.17 ; total, $535.17.” Held, that the verdict was against the weight of the evidence.
    Appeal from special term, New York County.
    Action by George Putnam Smith and another against John Hayes to recover for professional services rendered to defendant by plaintiffs as attorneys and counselors at law. From an order denying a motion for a new trial, after verdict in favor of plaintiffs for a part only of their claim, plaintiffs appeal.
    E. C. Perkins, for appellants; D. K. Case, for respondent.
   BARRETT, J.

—This is an appeal by the plaintiffs from an order of the trial term denying their motion for a new trial. The action was for professional services. There were two causes of action,—one for services rendered in the vacating of certain taxes upon the property known as “54 and 56 West Fifty-Fifth Street ” in the city of New York, and the other for services rendered in the foreclosing of certain mortgages upon the same property. The jury gave the plaintiffs a verdict upon the first cause of action, but decided against them upon the second. It is because of the unfavorable verdict with regard to the second cause of action that the plaintiffs appeal." The issue here was a narrow one. The plaintiffs admitted that, at the defendant’s express request, they agreed, in the first instance, to foreclose the mortgages for $100 and disbursements ; that is, a fee of $50 for each house. But they claimed that the defendant also agreed to pay them the balance of the taxable costs of each cause as soon as he acquired possession of the property ; that is, in" case he was compelled to purchase at the foreclosure sale. As soon as the mortgagor gave up possession, they were, they say, to be paid in full. They did foreclose the mortgages, and the defendant did become the purchaser at the sale. Prior to the commencement of this action, the mortgagor had vacated both houses. The defendant denied that he agreed to pay at any time the balance of the taxable costs. lie insisted that the entire agreement was to foreclose the mortgages for $100 and disbursements. And it was conceded that he had paid this $100 and those disbursements in full. The plaintiff Smith testified to the agreement as outlined above. His testimony was corroborated by two reputable witnesses (Smith’s father, Isaac T. Smith, and Dr. Samson, the president of the mortgagor college), and also by a written instrument under the defendant’s own hand. This instrument, apart from the corroborative witnesses, is, in our judgment, quite decisive of the case. It is an agreement, made after the defendant had purchased at the foreclosure sale, whereby he undertook to sell one of the houses in question to the Butgers Female College. The significant part of this instrument reads as follows:

“ New York, September 2d, 1893.
“ I, the undersigned, agree to sell to the Butgers Female College of New York, the house and lot No. 54 West 55th street, for the sum of thirty-five thousand five hundred dollars, on condition that the college will' pay three hundred and fifty dollars, the cost of the former foreclosure.”

This paper was signed by the defendant and by Dr. Samson, the president of the college. How, there was no reason why the college should pay, in addition to the price specified in the instrument, the cost of the former foreclosure, other than the defendant’s obligation thereof to the plaintiffs, and his desire to be reimbursed by the purchasers. The defendant certainly was not seeking to make money for himself out of the costs of the foreclosure. This is apparent from his own testimony, for he distinctly says that he did not even know that, as part of the foreclosure judgment, “ there were certain taxed costs.”1 Indeed, this is accentuated by the following question and answer :

“ Q. Do you wish to be understood as saying that you didn’t-know that part of the judgment in foreclosure actions was an amount of taxed costs and disbursements which formed part of the smn for which the property must be sold, in order to clear the mortgage off from liability ? A. I didn’t know it; no.”

How, if he did not know that he had judgment against the-college for the taxable costs, did not know m fact that these costs formed any part of the judgment, he must, in the instrument, have referred to the cost to him of the former foreclosure. But, according to his testimony, that “ cost” was but $50 and disbursements. Why, then, did hp not say that he-would sell for $35,500 on condition that the college would pay this “ cost of $50 and disbursements” ? Plainly, because the plaintiffs’ version of their agreement with him was the truth, and because he knew that upon his transfer of the property this cost of $50 and disbursements would at once, under his original agreement with the plaintiffs, be swelled to $350, which was the full amount of the taxable costs.

The written agreement in question was drawn and signed átan interview (in the plaintiffs’ offices) between the defendant, Dr. Samson, Isaac T. Smith, and the plaintiff Smith. The latter testified that at this interview the defendant talked of his proposed sale to Dr. Samson (for the college), and that he-(Smith) replied as follows :

“ I am very glad. Of course, you know, Mr. Hayes that the agreement afiout the balance of those costs for the foreclosure w^ that we would not ask for them so long as Rutgers College-stayed there. How, a transfer, even to Dr. Samson, of one of the houses, is not a transfer to Rutgers College, and, of course, you must then pay the costs on that house. He said, ‘Very well,” he would jjrovide for that.”

Both Dr. Samson and Isaac T. Smith corroborate, this testimony; not, perhaps, in totidem verbis, but in substance. For instance, Isaac T. Smith says that his son was asked to give a statement of the expenses against the college due to the office and again he says :

“The indebtedness was laid before Mr. Ilayes, and he said. that was so. * * * Mr. Hayes wanted all that was due from him for services in the office included, and in that way the amount of indebtedness from Hayes to the office was brought out. * * * I remember that Hayes was there, and wanted to find out how much he owed.”

Dr. Samson also testified that the provision in the agreement was for the benefit of the plaintiffs. “ The provision here,’? lie says, “ for me to pay $325 [he meant $350] in this agreement, that was for the man who had done his duty faithfully, Mr. Smith.”

What answer does the defendant make to this seemingly conclusive array of facts; to this testimony of three witnesses, corroborated by his own written contract ? Absolutely nothing. He makes no denial of the testimony, or explanation of the contract. He simply declares that he does not recall the interview. Being pressed as to whether he would say positively that no such interview took place, his only answer was, I don’t remember that there was; no.” It cannot be doubted that the jury misapprehended the point and force of this testimony. The form of their verdict indicated a certain confusion of mind with regard to the question presented for their con sideration. It was a sealed verdict, and it read as follows:

The jury say they find a verdict for the defendant for
the foreclosure of the mortgages.......$508 00
Balance of taxable costs.......... 27 17
Total................$535 17

The peculiarity of specifying in a general verdict for the defendant the amount of the plaintiffs’ claim was here enhanced by the erroneous statement of the claim itself, showing that the jury were not clear as to what the plaintiffs’ demand really was. There was in fact no balance of taxable costs amounting to $27.17. The latter item was the interest upon the taxable costs from the date when the right to recovery commenced under the original agreement down to the time of the trial. The jury, however, seem to have had quite as clear an idea on the subject generally as the learned counsel for the defendant, who insisted that he had secured a verdict for the defendant for $508, and that it could not be altered.

It is a plain case for a new trial. The order appealed from should therefore be reversed, with costs to the appellants to abide the event, and the motion for a new trial upon the second, cause of action granted.

PATTERSON", J., concurs. YAH BRUNT, P. J., and WILLIAMS and O’BRIEH, JJ., concur in result.


author: O’BRIEN, J.

text:
    George W. Sauer v. Mayor, etc., of City of New York.
    (Supreme Court, Appellate Divison, First Department.
    November 30, 1896.)
    1. Parties- Intervention.
    Where a litigation involves several causes of action, persons not affected by all such causes are not proper parties.
    3. Same—Who may intervene.
    In an action against a. city for damages resulting from the construction of a viaduct, the contractors who built it should not be admitted as defendants, though they agreed to indemnify the city for damages caused by carelessness in the work, since the question in such action is as to the liability of the city by reason of its acts, and not as to which of the wrongdoers, as between themselves, is primarily liable.
    Appeal from special term, New York County.
    Application by George S. Field and others, composing a partnership known as the Union Bridge Company, to be made defendants in an action by George W. Sauer against the mayor, aldermen, and commonalty of the city of New York. The application was denied, and petitioners appeal.
    The action is brought to recover on four separately stated and enumerated causes of action. The first three relate to damages alleged to have been caused by the defendant’s construction of a viaduct upon 155th street, and the fourth is for damages due to defects.in one of the defendant’s water meters. The defendant served on the Union Bridge Company a notice requiring the latter to come in and defend the second and third causes of action, and stating that in default thereof the defendants “ will claim to be reimbursed by you, if judgment is obtained against them.” The defendants entered into a contract with one Herbert Steward to build said viaduct, which contract was assigned to the Union Bridge Company, and thereafter the latter sublet to Steward, and he constructed all except the- metal work contracted for. The original contract purports to obligate said Steward to “ indemnify defendants from all damages, etc., which they may suffer, or to which they may be put, by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work done under said contract.” The Union Bridge Company applied to the court below to admit them as actual parties defendant, which was denied, from which denial this appeal is taken.
    Walter D. Edmonds, for appellants; Charles Blandy, for respondent Sauer.
   O’BRIEN, J.

—It is conceded that the four causes of action could properly be united in one complaint, under section 484 of the Code of Civil Procedure, and that the Union Bridge Company is only interested in two. If the latter had originally been made parties, the complaint would therefore be obnoxious to demurrer. It is claimed, however, that by reason of the notice served by the city the company will be bound by any judgment that may be entered in this "action, and, therefore, that they should be admitted as parties defendant, and allowed to litigate their liability as to two of the four causes. In support of this claim we are referred to the case of Mayor v. Brady (which was presented three times upon appeal) 70 Hun, 250, 54 S. R. 1, 77 Hun, 241, 59 S. R. 173, and 81 Hun, 440, 63 S. R. 259, and Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550. In the former case (Mayor v. Brady) the action was against the sureties upon the contractor’s bond, and upon the trial a judgment in a suit brought by one Cruikshanlc against the city was admitted in evidence, and was claimed to be conclusive upon the liability of the sureties. Cruikshanlc had been injured by an obstruction of the sidewalk caused by 'the work, and recovered a judgment for damages because thereof against the city, which was paid ; and the city thereafter brought an action against the sureties, who had engaged for the due performance of his contract by the contractor, to recover the amount which it had been compelled to pay by reason of the judgment. To establish the liability of the sureties upon the trial, no other evidence was offered than the judgment in the Cruikshanlc action. Upon appeal, the judgment in favor of the city was reversed, it being held that, “ when notice has been given to defend, the judgment is evidence of the amount of the damages arising from the injury, but it does not establish which of the wrongdoers is primarily liable.” Upon the third trial, evidence aliunde the judgment having been introduced to show that the injuries suffered by Cruikshanlc were caused by the negligence of the contractor, and that a judgment in his favor had been paid, a recovery by the city was affirmed., 81 Hun, 440, 63 S. R. 259. Village of Port Jervis v. First Nat. Bank, supra, was an action brought to recover the amount of a judgment which had been recovered against the village of Port Jervis for injuries caused by falling into an excavation left by defendant in a sidewalk in one of plaintiff’s streets, adjacent to property owned by the defendant, on which it was erecting a bank building. The defendant had a license from the plaintiff to make the excavations, but, as was alleged, neglected to surround it with proper guards or barriers. Upon the trial it was shown that the defendant has notice of the action brought 'against the plantiff, and the judgment was introduced in evidence, and relied upon as establishing the liability of the defendant; and upon appeal the question of the effect of the judgment so obtained was considered. It was therein said, referring to the position of an indemnitor :

“ If he has notice of the pendency of the action, and of the intention of the defendant therein to look to him for indemnity in case of a recovery, and is not denied an opportunity to defend, he is bound by the result of such action.”

And again:

“We cannot doubt that, within the authority cited, the evidence in this case was sufficient to authorize the jury to find that the defendant had notice of the pendency of the original action, and an opportunity to defend it, if he had so desired. This being the case, it was barred by the result of that action, and the judgment roll therein was conclusive evidence in this case of all facts litigated on the trial of that action.”

, These quotations are sufficient, in the light of the Brady Case, to show that the contention of the appellants is untenable. For, while here the bridge company has notice of the pendency of an action brought upon four separate causes of action, it is not placed in a position where it can defend, because it is not affected by all the causes of action, and therefore should not be obtruded in a contest between the plaintiff and the defendant in respect to matters with which it has no concern. Moreover, as to the two causes of action as to which it has an interest, the question to be -litigated will be the liability of the city by reason of its acts; and a judgment against the latter would not be conclusive upon the liability o± the bridge company, because in an action brought against the bridge company a question entirely different from that which will be litigated in this action will be presented, and similar to the one which was presented in the Brady Case,— as to which of the wrongdoers, as between themselves, was primarily liable for the injuries.

In directing, as the learned judge below did, that notice should be given to the bridge company of all proceedings, and that it should be allowed to appear and take part in the trial of the action, there was accorded all the relief to which the appellants were justly- entitled; and the order being, therefore, right, it should be affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    Frederick W. Sherman v. Louisa Engel.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    ■Landlobd and tenant—Tebmination op lease.
    Consent by a landlord that a sign “ To Let ” be affixed to the premises, and naming an agent to “put the bill out,” and acceptance of rent from another tenant secured by the agent so designated, show a discharge of the lease.
    Appeal from Sixth District Court.
    Action by Frederick W. Sherman against Louisa Engel. There was a judgment in favor of defendant, and plaintiff appeals.
    M. S. Guiterman, for appellant; Frank M. Tichnor, for respondent.
   BISCHOFF, J.

—This action was brought to recover the rent of an apartment for one month (from June 15 to July 15, 1896), under a sealed lease for 1J months entered into on the 22d day of November, 1895, between the defendant, as tenant, •and one Boss, the owner of the premises, as landlord. The plaintiff is the successor in title of Boss, and his assignee of the lease; the transfer of ownership having taken place June 1, 1896. The -defendant removed from the premises in the month of Mgy, 1896, and claims, in defense to this action, that Boss accepted her surrender of the lease, and recognized one Neil as the succeeding tenant, accepting payment of rent from him as such tenant. From the evidence, although in conflict, the justice was not unauthorized to find the fact, as he did, favorably to this defense; and Ave may not properly disturb that finding, Avhich in turn necessarily led to the legal conclusion that the defendant should prevail upon the issue litigated. The defendant’s testimony showed that Boss consented to the affixing of the sign “ To Let ” upon the premises, .and named one Kenny as the agent to “ put the bill out.” Kenny testified that lie secured N eil as the tenant, and that Boss, in the course of an intervieiv with the Avitness, approved of the selection, received rent from Neil, and expressed his Avillingness to accept him as tenant for a year. This was denied by Boss, but, in the absence of extraneous circumstances affording substantial corroboration of his testimony, Ave are not to say that Kenny’s story Avas improperly given credit by the justice, Avbose determination as to the facts ivas aided by his opportunity of observing the manner in Avhich the testimony Avas given, and the appearance of the Avitnesses upon the stand. It Avas quite competent to the parties to this lease (Ross and the defendant) to discharge it by parol. Tallman Ar. Earle (Com. Pl.) 13 N. Y. Supp. 805. And the fact of that discharge appears from Kenny’s testimony as to the transaction betAveen Boss and himself Avhen acting, in this regard, in behalf of Mrs. Engel, the defendant. Consideration for the landlord's agreement to discharge the tenant is to be found in the fact of her ■surrender and delivery of possession, and no question was raised upon the trial as to the competency of the defendant’s proof in support of that agreement. It Avould appear, however, that the statute of frauds does not apply to the transaction, since the term surrendered Avas of no more than a year’s duration, and therefore neither the agreement of surrender, nor the agent’s authority, Avere required to be evidenced by Avriting. 2 Rev. St. (Banks Bros.’ 9th ed.) p. 1884, § 6. The question litigated was entirely one of fact,—Avhether or not there had been an executed oral agreement; to discharge the lease (Tallman v. Earle, supra),—and we should not disturb the conclusion reached in the affirmative.

Judgment affirmed, with costs.

All concur.


text:
    Thomas Lenane v. Ludwig Mayer.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    Surety on lease—Discharge of suretj.
    A surety on a lease is not discharged by a reduction of rent by the-landlord, and an agreement that the lease should be discontinued as. to part of the premises where both charges were made on request o£ the surety. *
    Appeal from First district court.
    Action by Thomas Lenane against Ludwig Mayer. Judgment was rendered in favor of plaintiff for a part only of his, claim, and plaintiff appeals.
    H. B. Wesselman, for appellant; S. Campbell, for respondent.
   McADAM, J.

—The action was (1) against the defendant, as surety, for rent of three rooms in premises No. 59 North Moore street, this city, from March 1, to June 1, 1896, at the rate of $10 per month; and (2) to recover a water tax for the bar of store and other rooms in the said house, leased to the defendant as tenant, amounting to $67.10. The justice rendered judgment in favor of the plaintiff for the-second item, and no appeal has been taken by the defendant. As' to the first item, for-rent, the complaint was dismissed, and it is from this branch of the case the plaintiff appeals. -

As to this first claim it appears that on May 6, 1892, the-plaintiff leased to one Wilhelm Meyer six rooms in the premises, aforesaid,'for five years from June 1, 1892, at $288 per year, payable monthly, in advance, and that the defendant, simultaneously with the execution of the lease, became surety for the rent. Wilhelm Meyer, who occupied the rooms, thereafter-assigned the lease to one Frederick Fink, and Fink subsequently assigned it to James McKee, and the defendant executed consents to the assignments and agreements to continue his liability as theretofore. The defendant had also assigned to-Fink, and Fink to McKee, thfi lease of the store, on which the defendant was liable as lessee. The transfers to McKee were made in July, 1894. He did not require the six rooms, whereupon the defendant went to the plaintiff, and induced him to “ take three rooms off his hands,” and to make the rent of the three remaining rooms $10 a month, or $120 a year, at which rate the defendant paid the rent up to March 1, 1896. The defendant did not deny making the arrangement stated, but asserted a mere want of memory as to what had occurred. He admitted paying the rent from" July, 1894, to March 1, 1896, and said he did so because he. thought he had better pay than fight. The agreement which discharges a surety is one-made bv a creditor with his debtor without consulting the surety, and for the reason that the surety never made himself a party to the new understanding. Paine v. Jones, 76 N. Y. at pages 278, 279. Here it ivas made by the creditor directly with the surety, and hg cannot be heard to complain of it. '

The defendant now contends that, because three of the rooms were given up, the lease ivas canceled, and his liability as surety thereon discharged. Such a construction would not be in accordance ivith the manifest intentions of the parties. When the plaintiff agreed to take three rooms off the defendant’s hands, it negatived the idea that he was taking six, or was canceling the lease. The implication was that the three not taken off his hands wel’e to remain on,—that is, under the old arrangement, lease, and suretyship; the only other modification being as to the amount of rent, which was fixed at $120 a year, instead of $288, as theretofore. Coe v. Hobby, 72 N. Y. 141; Witbeck v. Waine, 16 N. Y. 532 ; Clark, Cont. 610.

While it was competent for the parties to have made a new contract of hiring, abrogating the lease and suretyship (McCreery v. Day, 119 N. Y. 1, 28 S. R. 597); such a result was not accomplished by anything which appears by the evidence contained in the justice’s return. The receipt given for the February, 1896, rent was signed by Mr. Morris, the plaintiff’s collector, and cannot alter the terms or legal effect of the contract then existing between the ^parties. Davidson v. Blumor, 7 Daly, 205. The return does not disclose a conflict, but rather a confusion, of evidence. Upon the proofs adduced, the plaintiff was entitled to a judgment for the March, April, and May rent, and it ivas error to disallow this portion of the plaintiff’s demand.

The judgment must be reversed, and a new trial ordered^, with costs to the appellant to abide the event.

All concur.


author: WILLIAMS, J.

text:
    Jacob Ringle et al. v. Francis O. Matthiessen.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Mechanics’ liens—Bond to discharge—Action on.
    An action against the sureties may be maintained on a bond, given under Laws 1885, o. 342, § 24, subd. 6, to discharge a mechanic’s lien, though they were not made parties to foreclosure proceedings begun, after the bond was given. 39 N. T. Supp. 92, affirmed.
    Appeal from trial term, Hew York County.
    Action by Jacob Ringle and George Ringle against Francis O. Matthiessen on a bond given to discharge a mechanic’s lien. From a judgment in favor of plaintiffs, entered on the decision of the court, a jury having been waived (39 H. Y. Supp. 92), defendant appeals.
    William G. Wilson, for appellant; Thomas C. Ennever, for respondents.
   WILLIAMS, J.

—The action was brought to recover upon a bond, given under the statute, to discharge a mechanic’s line. After the lien was discharged, the action to foreclose the lien was prosecuted to judgment against the same parties, the sureties upon the bond not having been brought in as parties. The judgment adjudged that the plaintiffs recover against the ■defendants the amount of their claim, and that they had alien against premises described' therein for the amount of their claim, but provided that so much of the judgment as declared that the plaintiffs had a lien on thepremises was inform only, and was directed and entered for" the purpose of enabling plaintiffs to recover upon the bond given to discharge, the lien. That judgment was affirmed, upon appeal, by the general term of the supreme court. 33 N. Y . Supp. 398. The only question raised upon this appeal is as to the procedure to enforce the liability of the sureties on the bond. The defendant claims that an action at law could not be maintained, but the only ■remedy was to bring the sureties into the foreclosure action as defendants, and establish their liability in that action. The trial court held the action at law could be maintained, and ordered judgment accordingly.

This judgment was right. In Morton v. Tucker, 145 N. Y. 248, 64 S. R. 685 the learped judge writing the opinion said :

“ The sureties in the bond intended, and must be understood as undertaking, to pay the amount which it should be adjudged was due and owing to the plaintiffs, and which was chargeable against the property by virtue of the notice of lien. In other words, the condition was for the payment of any judgment which might have been secured against the property had not the bond been given. The bond, as we have seen, was given to discharge the lien.”

This is a very clear statement of the liability of the sureties. The condition of the bond required by the statute, in order to procure a discharge of the lien was “ for the payment of any judgment which may be rendered against the property.” This clause ought not to be construed literally, because, when the' lien is discharged by the giving of the bond, no judgment can be, in a literal sense, rendered against the property. The meaning clearly was “ for the payment of any amount adjudged to be due and owing, and which would have been adjudged a lien upon the property but. for the discharge of such lien before judgment by the giving of the bond.” In this case the judgment did adjudge the amount due and owing, and did substantially adjudge that such amount was, before the giving, of the bond, a lien upon the property, and would still have been such lien but for the discharge of the lien by the giving of the bond. The bond was, therefore, forfeited, the condition had failed, and the common-law right to recover upon the bond against the sureties was complete. In Morton v. Tucker, above, it was held that, after the giving of the bond, and the consequent discharge ■of the lien, it was proper in an equity action to bring the sureties in. the bond into the case, and a recovery could then be had against them in that form of action, and that it was not necessary to await judgment in the foreclosure action in order to have this remedy m equity against the sureties. The question there arose upon a demurrer by the sureties to the complaint, in such equitable action, and it was only necessary to determine, in that case, that such action could be maintained against the sureties. It was not necessary there to hold that an action in the form and upon the facts appearing in this case could not be maintained, and whatever was said in the opinion to that effect was clearly obiter.

We see no reason why the plaintiffs should not have the same right to maintain a common-law action upon this bond as upon any other bond. While, very likely, the plaintiffs might, if they saw fit to do so, have brought the sureties into this foreclosure action, and have their liability therein determined (the court of appeals, in Morton v. Tucker, held such procedure might be adopted), still it would manifestly be unjust to compel the plaintiffs to adopt such procedure. If compelled to bring the sureties into the action, the plaintiffs would have new issues introduced into this foreclosure action,—questions relating to the execution and filing of the bond, and the discharge of the lien (and these issues might be multiplied in case a number of liens, in favor of different parties to the action, were discharged by the giving of different bonds). Moreover, sureties might, when made parties to the action, litigate all the issues therein, though not relating directly to the giving of the bond and the discharge of the lien. And if the sureties must be brought into the action, then so often as such bonds were given, perhaps at several different times, and even down to the time of the completion of the trial, the pleadings would have to be amended, or supplemented pleadings made, and the trial, so far as it had progressed, would, at the election of the new parties brought in, have to be gone over again, because the bringing in of other new parties would not be a matter of favor to them, but a matter of right, and no condition could be imposed, upon bringing them in, that it should be without prejudice to the proceedings already had in the action. We can see-no reason for putting plaintiffs in this unfavorable position, because defendants take advantage of the provisions of the statute for their own benefit, and give the bond and thus discharge the lien.

It can hardly be claimed that no recovery can be had upon the bond, in such an action as the present one, because there can be no failure of the condition of the bond. The legislature never could have intended, by Laws 1885, c. 342, § 24, subd. 6, to take away plaintiff’s lien on the property, and substitute in its place a bond the condition of which could never be broken, and a common-law action upon which could never in any event be maintained. The condition could be broken, and was broken .in this case, under a fair .and reasonable construction of the provisions of the statute under which the bond was given. The plaintiffs were clearly entitled to recover under the evidence. The judgment shohld be affirmed with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Richard W. Stevenson v. New York Life Ins. Co.
    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    Interpleader—Character of conflicting claims.
    In order that a defendant may obtain an order of interpleader (Code Civ. Proc. § 820), lie must prove that the claim adverse to plaintiff is well founded.'
    Appeal from special term, New York County.
    Action by Richard W. Stevenson, as trustee, against the New York Life Insurance Company, on two insurance policies. From an order granting a motion for leave to interplead the executrix of the insured as a party defendant, and to deposit the amounts of the policies with accrued interest to date, plaintiff appeals.
    Julien T. Davies, for appellant; G. W. Hubbell and Donald McLean, for respondent.
   VAN BRUNT, P. J.

—This action was brought upon two policies of insurance issued to one Martin J. S. De Garmendia by the defendant, the New York Life Insurance Company, payable by their terms, upon the death of said De Garmendia, to his executors, administrators, and assigns. On the 10th of September, 1892, De Garmendia assigned, by instruments in writing, said policies of insurance to one William IL Emerson, and, on the 28th of October, Emerson assigned the same to-Carlos G.= De Garmendia, who on the 6th of November, 1892,, duly assigned the said policies to one Marie Rose De Garmendia. On the 22d of November, 1894, said Marie Rose De Garmendia assigned and transferred the policies to the plaintiff, Richard W. Stevenson, as trustee. The insured having died on the 16th of June, 1896, the said Stevenson, as trustee, commenced this action to recover upon the said policies from the New York Life Insurance Company. The said company then, upon affidavit, stating the foregoing facts, and that on the 16th of November, 1895, it had received a letter from Martin J. S. De Garmendia, the assured, in which he claimed the entire-ownership in said policies, free from any claim based on any assignment thereof, and directed that payment of said policies, at his death, should be made only to his legal representatives, and that on the 19th of June the company received a letter-from the plaintiff, in which he claimed the proceeds under said policies, and on the 22d of June the company received a letter from Donald McLean, as attorney for the executrix of the deceased, in which he claimed for his client the proceeds under said policies ; that the company had no interest in the question to which the said policies of insurance belonged, and was ignorant of the grounds or merits of the respective claims made to said policies, and did not know to Avhich of said claimants it might safely pay the amount of said policies, and applied for an order discharging itself as defendant, and bringing in as defendant the executrix of said De Garmendia, deceased. This motion having been granted, from the order thereupon entered this appeal is taken.

It seems to be conceded upon the part of the respondent that, in order to entitle the defendant to an order of interpleader, it is necessary that it should be shoiAm that tAvo persons have preferred a claim against the defendant, Avithout its collusion, for the same debt; that the defendant had no beneficial interest in the thing claimed, and cannot determine, Avithout hazard to itself, to Avhich of the claimants the debt should be paid; a,nd although, upon the argument, it seems to he claimed that there was a difference in the requirements betAveen the condition of proof in an action of interpleader and in a motion for interpleader, it is evident that no such distinction exists. It is true that Code, '§ 820, is silent as to the proof Avhich the court should require in order to justify the making of an order of interpleader. It simply states Avhat must appear in order to entitle the court to act at all; and upon such proof it provides that the court may, in its discretion, make the order. Section 820 was intended to be a summary substitute for the more cumbersome procedure by action, and it Avas not intended to inaugurate any neAV rule in reference to what should be required to justify an interpleader. It must be made to appear, as is conceded upon the part of the respondent, that the defendant cannot, Avithout hazard, determine to Avhich of the parties claimant he should pay the moneys, the subject-matter of the action. In the case at bar there is not the slightest proof of hazard. It appears that these policies Avere assigned by the assured in his lifetime, as he had a right to do; and there is not the slightest particle of eAddence tending to support the claim made by his executrix, or any facts stated Avhich can throAV the shadow of a doubt ujAon the right of the jfiaintiff to recover. It is true that it is stated that the deceased, in his lifetime, repudiated these assignments. But that, of itself, affords no ground for the impeachment of the assignment. Some facts or circumstances must be stated AAdiich throAV some doubt upon the right of the plaintiff to recover the money sued for. It is said in Bank v. Yandes, 44 Hun, 55 :

“ It is not necessary simply to establish, in order to justify an interpleader, that some claim is presented, but it necessary, in addition, to prove that such claim has some reasonable foundation, or that there is some reasonable doubt as to whether the stakeholder would be reasonably safe in the payment OArer of the money.”

The cases cited upon the part of the respondent in no way conflict with this rule. In all of them facts were stated from which the court could see that there was some question as to the right of the claimants, and the cases were not presented to the court upon the mere naked assertion of claims, without am iota of proof tending to show that they had any foundation.

The order should be reversed, with $10 costs, and disbursements, and the motion denied, with $10 costs.

All concur.