text:
    The People ex rel. Edward Luckemeyer, App’lt, v. Michael Coleman et al., Com’rs of Taxes, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Taxes—Capital invested in imfobted goods.
    Proof that all the capital of a firm was invested in their business, which was that of importers and commission merchants; that they advanced the duty; delivered the goods to the persons who sold them; received the money therefor, and charged a commission for doing so; that all the goods came from Europe, and were sold in the original packages, is insufficient to establish a right of exemption from taxation because the capital was invested in imported goods in original packages.
    2. Same—Debts.
    One of the partners bought of H. & Co. certain stock and exchanged checks with them for the amount thereof. H. & Co. did not have the stock, and two months later the transaction was closed by paying the difference in the market price. Held, that this did not create an indebtedness which could be considered in determining whether the firm or its members had taxable property.
    Appeal from order and judgment of special term dismissing ■certiorari proceedings with costs.

      C. Strauss, for app’lt; G. S. Coleman, for resp’ts.
   Van Brunt, P. J.

This proceeding was brought to review and cancel the assessment on part of the personal property of the relator for the year 1890.

He was assessed in the sum of $150,000 for money invested by him in business in the city of Mew York. On the second Monday of January, 1890, the date as of which this assessment is by law declared, the relator resided in Paris. He was a special partner of the firm of Scheffer, Schramm & Yogel of the city of Mew York, having contributed $350,000 as special capital; which firm .was engaged exclusively in importing dry goods and in importing goods on consignment for sale in original packages.

It was attempted to be shown that the individual indebtedness of the relator on the said second Monday of January was $374,500, and that the relator had no property of any kind, either real or personal, in this country other than this special capital in thte firm, the entire capital of which was wholly invested in imported goods in original packages.

If either of these propositions is sustained, then the relator was not liable to taxation.

Various other objections were raised by the counsel for the respondents to the review of the tax, but it is only necessary to consider the two above mentioned.

The evidence wholly fails to show that the whole or any part of the capital contributed by the relator to the firm of which he was a member was at the time of levying this tax invested in imported goods in original packages. The evidence of Scheffer, one of the partners of the relator, is referred to as establishing this proposition, but on reading that evidence it will be seen that he nowhere swears to any such fact.

He says that the business of the firm was importers of dry goods and commission business; that they received invoices of consigned goods, paid the duty on the same, and delivered them to parties who sold them, the proceeds were payable to them and they charged a commission for doing this; that the goods were all ■consigned from Europe, and that that had always been their business, and that on the second Monday of January, 1890, all the capital of the firm was invested in this business, and bad been for years before that; and that in the making of sales they always made them in the original packages.

But the evidence nowhere states that any part of this capital was, on the second Monday of January, invested in a single original package. Every article of goods which they had ever received may have been sold, and debts therefor due to the firm or the money in bank, and the evidence be entirely correct and true. Such evidence falls far short of establishing a right of exemption because the capital of the firm was invested in imported goods in original packages. If the capital of the firm had actually been invested on the second Monday of January, 1890, in imported goods in original packages, this firm would never have thought it necessary to resort to the scheme hereinafter mentioned of creating an indebtedness for the purpose of avoiding taxation.

The conclusion seems, from this circumstance, to be irresistible that the capital of the firm was not on that date invested in imported goods contained in original packages.

It is further claimed that the relator was not liable to taxation because he was indebted to the firm of Hallgarten & Co. in the sum of $374,500 for the purchase of 3,500 shares of the capital stock of the N. Y. C. & Hudson River Railroad Company. It appears that Mr. Scheffer, the partner of the relator, went to Hallgarten & Co., and bought 3,500 shares of New York Central stock' at a price which amounted to $374,500. It was not expected that this stock should be delivered immediate^by Hallgarten & Co., or paid for immediately bv the relator.

A form of paying for the same was gone through with, namely, Hallgarten & Co. and the relator's firm exchanged checks for $374,500; this was so plainly simply an exchange of checks that it was never entered in the regular books of account of Hallgarten & Co. It is claimed the appellant borrowed of Hallgarten & Co. $374,500 to pay for this stock and that Hallgarten & Co. held the stock as collateral. But it appears that Hallgarten & Co. had no 3,500 shares of stock on hand at this time, and they never bought any stock for the appellant, but that in March the account was settled by the appellant paying to Hallgarten & Co. the difference in the market price of N. Y. Central stock in January and its market price in March.

We think that this transaction wholly failed to bring the case within the principle of the Peoples. Ryan, 88 N. Y., 142, where it was held that an indebtedness created for the express purpose of avoiding a tax must be considered in determining whether a party has taxable property or not, notwithstanding the fact that the indebtedness was created for the purpose of such evasion. In that case a man bought government bonds and borrowed $25,000 to pay for them and deposited the bonds as collateral for the loan, and the court held that it was an indebtedness which could be enforced against the defendant when the tax was levied, and consequently should have been deducted.

In the case at bar it is difficult to see what debt was due to Hallgarten & Co. in January, 1890. Mo indebtedness could accrue to Hallgarten & Co. until they delivered or tendered the 3,500 shares of stock. At most, the relations between the appellant and Hallgarten & Co. created a contract out of which a debt might arise, but no debt existed until Hallgarten & .Co. tendered the stock and demanded payment, nor could they claim the purchase price without offering to deliver the stock. The pretext of exchanging checks did not alter the question. It was perfectly plain that it was a simple exchanging of checks. The giving of a check by Hallgarten & Co. to the appellant’s firm and the taking of their check for the same amount upon the same day created no change in the contractual relations existing between Hallgarten & Co. and the appellant.

This view is emphasized by the fact that Hallgarten & Co. had not 3,500 shares of stock to deliver to the appellant, and never held 3,500 shares of stock as collateral to any indebtedness of his-to them.

We think, therefore, the learned judge below was right in holding that no case for exemption was shown.

The judgment should be affirmed, with costs.

Daniels, J., concurs.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People ex rel. John W. Goodwin, Resp’t, v. Charles F. MacLean et al., Police Com’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Municipal corporations—Police—Resignation—Reinstatement.
    Relator tendered to the respondents his resignation as a police officer, which was accepted hy them. The resignation was obtained through coercion and duress exercised by his sergeant. Subsequently he demanded reinstatement, but the circumstances under which the resignation was executed were not brought before the board. Held, that the acceptance of the resignation was valid and relator ceased to be a member of the force; that Iris election to disaffirm did not render such acceptance invalid; that if he desired to disaffirm it was his duty on presentation of a statement of the circumstances to ask a reconsideration of the acceptance, and that the refusal to grant his demand had no greater effect than a determination of the facts against him, and the court had no power to review their determination on application for a mandamus.

    Appeal from an order granting a peremptory writ of mandamus requiring the appellants to forthwith reinstate the respondent to his position as a member of the police force.

      Edward H. Hawke, Jr., for app’lts ; Lewis J. Grant, for resp’t
   Ingraham, J.

The case of the respondent presented in these proceedings is one that appeals strongly to the sympathy of the court, and would induce us to grant him the relief asked for and affirm the order if we could do so without violating established legal principles.

The jury have found upon the trial of the issue raised by the return to the alternative writ that the respondent was on the 13th day of August, 1889, a member of the police force of the city of Hew York; that he did on that day tender to the police commissioners his resignation from the force, and that on the 14th day of August, 1889, the police commissioners accepted such resignation at a meeting of the board; that such resignation was not obtained by any coercion, fear, duress, or force used and brought to bear upon him by the police commissioners, and was obtained from the respondent by coercion, force, fear and duress used and brought to bear upon him by his superior officer, Eichard F. Magán, a sergeant of police.

The' facts alleged in the alternative writ, admitted by the return and as found by the verdict of the jury, must determine the right of the respondent to the relief which was granted by the court below.

The sergeant who obtained the resignation was not acting under the order of the appellants, but was the respondent’s superior officer, and it cannot be said that the resignation was when given void. Assuming that it was voidable at the election of the respondent, it was only void when he elected to disaffirm it, and until such election the appellants were justified in acting on it. Upon the presentation of the resignation to the commissioners, it was their duty to either accept or refuse to accept it. Such action being required by § 273 of the Consolidation Act, and it having been thus presented them, regular in form, signed by the respondent and not repudiated by him, their action in accepting it was within the powers conferred upon them and was legal, and the respondent ceased to be a member of the force. See People ex rel. Tuck v. French, 108 N. Y., 109 ; 13 St. Rep., 89.

Does the fact that the respondent elected to disaffirm the resignation after the board had accepted it, and thus legally terminated his connection with the force, so that he was no longer an officer of the city, invalidate the official action so as to make the acts of the board, public officers, valid at the time of performance, invalid and to reinstate the respondent as a member of the police force? It seems to me clear that such an election does not have such an effect.

When the respondent had determined to disaffirm the resignation he could have presented the case to the board, with a statement of the circumstances which induced him to sign the resignation, and a request that they would reconsider their official act in accepting his resignation. It would then have been their duty to ascertain whether the respondent had truly stated the facts and to determine whether or not their action should be reconsidered and the respondent reinstated.

It seems that this view of the duty of the respondent was adopted by this court in the certiorari proceedings to review the action of the appellant in accepting the respondent’s resignation,, where Brady, J., says:

“If the charge can be made against any member of the force, whoever it may be, whether captain or sergeant, that the relator was forced to resign, that would doubtless furnish a good and sufficient reason why he should be reinstated on a proper application to the respondent for that purpose.”

It is alleged in the alternative writ that the respondent demanded that the appellants forthwith reinstate him to said office, and that the appellants have refused, and this is not denied by the return; but the refusal of the appellants to reinstate the respondent did not have the effect of rescinding the acceptance of the resignation so as to reinstate the respondent as a police officer. It does not appear that when that demand was made the-circumstances under which the resignation was executed were brought before them as a reason why he desired to be reinstated, and there is no allegation that there was any action of the board that could be reviewed by the court

It is not alleged that the appellants have refused to entertain the respondent's application to be reinstated, but simply that they have refused to reinstate him without the presentation to them of any facts which would justify such action on their part

It is well settled that the proceedings of an officer or body where the acts are judicial cannot be reviewed on an application for a mandamus. In the case of People v Common Council, 78 N. Y., 39, Rapallo, J., says: “ The office of the writ of mandamus is, in general, to compel the performance of mere ministerial acts prescribed by law. It may also be addressed to subordinate judicial tribunals to compel them to exercise their functions, but never to require them to decide in a particular manner. It is. not like a writ of error or appeal, a remedy for erroneous decisions. This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act in a matter ns to which it has the right to exercise its judgment. The character of the duty and not that of the body or officer determines how far performance of the duty may be enforced by mandamus.

“Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what the decision ought to be.”

Applying this principle to the case here presented, it was the duty of the appellants to determine whether or not they would rescind their acceptance of the resignation and reinstate the respondent. Whether they should reinstate him depended upon the circumstances under which the resignation was executed

Their refusal to grant the demand of the respondent could not under any circumstances have any greater effect than a determination of the facts against him, and that determination we have no power in this proceeding to review or reverse.

It follows, therefore, that the order appealed from must be reversed, and the proceedings dismissed

Daniels, J., concurs.

Van Brunt, P. J.

I concur in the result of Mr. Justice In* graham’s opinion. If the proper question had been presented upon the mandamus proceedings, a different result might have been obtained. If the so-called resignation was altered and added to, as is claimed by the relator, it was no resignation at all. As such alterations were fraudulent and could not alter the character of the paper, and in fact destroyed whatever vitality it might have possessed.

The order appealed from does not follow the alternative writ and for that reason, if for no other, should be reversed.


author: Per Curiam.

text:
    Frank Work et al., Resp’ts, v. Dudley Tibbits, Impl’d., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Pleading—Amendment on tbial.
    It is improper to allow an amendment of a complaint on the trial which sets forth additional charges, and claims an additional amount, in the absence of the defendant, and without notice to him. His absence from the trial is a waiver of the right to object to testimony or the granting of the relief asked for in the complaint, but is not a waiver of notice of motion to so amend.
    Appeal from order denying motion to set aside judgment, and allow defendant to defend.

      Esek Cowen, for app’lt; F. F. Marbury, for resp’ts.
   Per Curiam.

We think the amendment of the complaint whereby the plaintiff was allowed to charge the defendant’s property with the counsel fees was unauthorized so far as it affected the appellant.

The defendant had appeared in the action and interposed an answer. His counsel had advised him that he had no defense to the plaintiff’s claim as alleged in the complaint, and although his counsel had intended to be present at the trial, in consequence of a mistake he was not present, and the case was tried and judgment entered as against this defendant by default.

Ho amendment to the complaint that increased the burden upon defendant could be made without notice to the defendants who had appeared in the action, and the amendment in question was ordered by the court in the absence of this defendant and without notice to him. His absence from the trial was of course a waiver of the right to object to the testimony or to the granting of the relief asked for in the complaint, but was not a waiver of notice of motion to so amend the complaint that charges not set up in the complaint and which was for money paid by plaintiff after the complaint was served, were added to the amount which plaintiff sought to have the court adjudge to be a lien upon the defendant’s property.

When the complaint was thus amended, this defendant had the right to plead to it and, that right could not be taken from him and a judgment entered against him on the amended complaint not served on him and which he had no opportunity to answer.

As the defendant was in default on the trial he cannot appeal from the judgment and so have the question as to the propriety of the charge for legal services determined, and his only remedy was to make the motion to set aside the judgment.

The order appealed from must be reversed and the motion granted and judgment vacated, with costs as to the appellant, unless the plaintiff stipulates to deduct from the amount of the recovery the amount allowed for counsel fees, in which case order is affirmed, without costs.

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


author: Daniels, J.

text:
    The Riverside Bank, App’lt, v. John Totten, Resp’t

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Parties—Substitution op assignee op claim.
    If the assignor of a chose in action desires to he relieved of his responsibility as a party he should apply for a substitution in the course of the proceeding. Where he waits for several years and until a judgment for costs is rendered against him, it would be manifestly improper to substitute the assignee of the claim in his place against the consent of the defendant, as of the date of assignment, even if the court had authority to do so.
    Appeal from an order denying a motion to substitute the assignee of the plaintiff as plaintiff in the action in the place and stead of 'the appellant

      Henry Parsons, for app’lt; Robert W Gilbert and Myndert A. Vosburgh, for resp’t
   Daniels, J.

The action was brought upon a promissory note to which the defendant Totten was a party. But during, its pendency and before the trial an assignment was made of the cause of action to Christopher B. Keogh, and a stipulation for the substitution of his attorneys in place of the attorney for the bank. The assignment and stipulation were made on the 18th of February, 1889, and under the authority of the stipulation the attorneys of Keogh were substituted in the action in place of the attorney for the bank. But no change was made by which the assignee became the plaintiff in the action, but it has proceeded since the assignment in the name of the bank, the original' plaintiff. And upon the trial which took place, in which Keogh was a party participant, the recovery in favor of the bank was for a sum less than fifty dollars. And the result was that the defendant in the action became entitled to recover his costs. And they were taxed and a judgment entered for the balance over and above the recovery, amounting to the sum of $424.33. But it was not until the 4th of May, 1891, that any action was taken on the part of the bank for the purpose of substituting its assignee in the place of the bank as plaintiff in the action. And then the object of the motion was not merely a change in the party plaintiff by making Keogh plaintiff in the action, but it was to substitute him as the plaintiff as of the 13th of February, 1889, and substantially therefore to change the judgment instead of being a judgment against the bank, to be a judgment for this sum of money against Keogh.

The Code of Civil Procedure, by § 756, has provided for the continuation of the action in the name of the assignor as a party after the assignment, where no proceeding shall be resorted to for the purpose of substituting the assignee in the place of the assignor. The proceeding, therefore, has been carried on under the authority of the law to the present time in the name of the plaintiff; and an appeal has been taken in its name from the judgment of the general term, affirming that recovered on the report of the referee, to the court of appeals.

To avoid the continuation of the action in this manner, as long as the assignee made no application to be substituted as plaintiff, the bank, if it desired to be relieved from its responsibility as a party, should have applied for this change in the course of the proceeding. It failed to do so, but permitted the proceeding to be continued precisely the same as though no assignment of the cause of action had taken place, And this was allowed to continue for a period of upwards of two years, clearly indicating the disposition of the bank to be to permit the litigation to proceed in its original form, notwithstanding this change which had taken place in its interest as a party; and by this acquiescence or delay on its part it has become legally liable to the defendant for the costs which have been recovered by the judgment. And this court has no authority under the provision of the Code which has been mentioned now to relieve it from that liability against the consent of the defendant by substituting the assignee in its place.

Whether a substitution or change should be made is under this section of the Code discretionary. And so it was also held in Getty v. Spaulding, 58 N. Y., 636. And it would be a manifestly improper exercise of that discretion, if the court had the power to do so, to relieve the plaintiff from the liability to which it has become subjected, as a consequence of its own delay and omission to act, by making the assignee the plaintiff in the action from, or about, the time when the assignment was made and delivered. Such an interposition on the part of the court, if it had the power to exercise the authority, would be transparently unjust; and as the plaintiff has permitted this state of facts to arise by its own delay or omission to act, it is not now in a condition to complain of the results. The object oí the motion was not to substitute the assignee as a party plaintiff from the time when it was made,' but it was to relieve the plaintiff by a substitution from the liability which in this manner had been incurred. And that was rightly considered by the court to be improper, and it necessarily led to a denial of the motion. This denial seems to have been sanctioned by clear principles of justice, and it cannot be interfered with upon this appeal, but the order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.


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

text:
    Butler H. Bixby, Pl’ff, v. The Mayor, etc., of New York, Deft.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Municipal cokpobations—Police justices—Laws 1888, chap. 412.
    Chapter 412, Laws 1888, was intended only to ratify and legalize the payments which had been made under the resolution of the common council increasing the salaries of police justices, and not to validate such resolution so that claims could be made against the city for unpaid balances of salary at the rate specified therein.
    Motion by the defendant for new trial upon exceptions ordered to be heard in the first instance at the general term.

      D. J. Dean, for deft; Gratz Nathan, for pl’ff.
   Van Brunt, P. J.

This action was brought to recover an alleged balance of salary from January 1, 1870, to November 1, 1873, due to the plaintiff as one of the police justices of the city of New York. Upon the trial the plaintiff alleged that the salary of the office was $10,000 per annum, payable in monthly instalments ; and that he was paid the salary named until the 31st of July, 1871, from which date to the 1st of November, 1873, he was paid at the rate of $5,000 per annum. The defendant denied that t.he salary was $10,000 per annum, and alleged that such salary was $5,000, all of which had been paid.

To support the allegation that the salary was $10,000 the plaintiff proved that on the 31st December, 1870, the salary of the city judge was $10,000 per annum, and that on the 20th of December, 1869, a resolution was passed by the board of aider-men to fix the salary of the police justices at the same rate as was then paid to the city judge.

The resolution was adopted by the board of assistant aldermen on the 24th of December, 1869, and sent to the mayor. The resolution was returned by the mayor to the board of aldermen on the 31st of December, 1869, without his approval or objections thereto, and no further action was taken thereon.

The defendant objected to the admission of the resolution upon the ground that it never became a law, because it had never been approved by the mayor, or had not remained in his office ten days without action; neither had it been passed by a two-thirds vote or otherwise after being sent back to the common council.

The court held that the resolution had become validated by an act of the legislature, passed in 1888, and known as chap. 412 of the laws of that year, and overruled the objection, to which ruling the defendant excepted.

The plaintiff then proved that demand was made by the claimant at the end of each month during the period covered by the claim. The defendant objected that at the time such demands were made the plaintiff had no valid claim, which objection was overruled, and defendant excepted.

At the close of the plaintiff’s case the defendant’s counsel moved to dismiss the complaint; the motion was denied and exception taken. A verdict was directed for the principal and interest of the claim to the plaintiff, and defendant excepted. The court made an order that the exceptions should be heard in the first instance at the general term, the judgment in the meantime to be suspended.

There are questions presented by this appeal as to the constitutionality of the act, which will hereinafter be discussed, and also questions as to the right to maintain this action, no demand having been made after the passage of the act, which it will not be necessary for us to consider, in view of the conclusion we have reached in construing the act in question.

In Cox v. Mayor, 103 N. Y., 519; 3 St. Rep., 672, it was held that the common council had no power to increase the salary of the police justices as they attempted to do by the so-called resolution of December, 1869, above referred to. And it was further held that the payment of the increase to the police justices which had been continued for some time could not be recovered back by the city because the money was received in good faith; there was no mistake of facts, and the payments were made voluntarily by the city officials out of moneys lawfully placed in the city treasury for that purpose.

Subsequently, in May, 1888, the legislature passed an act (chap. 412) which provided that all payments made by the mayor, etc., from January 1, 1870, to September 1, 1871 (those being the dates between which the increase had been paid by the city), to the persons then police justices at the rate of salary fixed by resolution of the common council, dated December 81, 1869, were declared to be lawfully paid, and said resolution was thereby legalized, ratified and confirmed.

It is claimed that by this legislative action life was breathed into this resolution as of the time when it was originally passed, and that the plaintiff and others who were then acting as police justices might recover the salary remaining unpaid at the rate of $10,000 per annum.

We think, upon an examination of the act in view of the circumstances under which it was passed, that no such construction can be put upon it. In the construing of statutes the principle is well settled that the legislative intent must govern even where such construction seems to run counter to the letter of the law. People ex rel Wood v. Lacombe, 99 N. Y., 45, and cases cited.

It is not to be presumed, in th econstruction of this act, that the legislature intended to make a gift to the persons who occupied the office of police justice between the 1st of January, 1870, and the 1st of Movember, 187S, and if any reasonable construction can be placed upon the act without giving it this interpretation it certainly should be done.

It appears that the city officials had without authority been paying the alleged salary to these police justices ; they, perhaps, were amenable to the city to the extent of the excess in payment; and it would appear that this legislation was intended to protect them against such liability and for no other purpose, because the reference to payment in that act could have no other effect, as it had already been decided by the court of appeals that the city could not recover back from the justices the excessive salary paid to them. The latter, therefore, needed no protection.

Having this in view, the legislation becomes entirely intelligible and consistent. The provision was for the purpose of protecting the city officials in the payments which had been made, and it, therefore, declared that all these payments had been lawfully made and said resolution legalized, ratified and confirmed so far as these payments were concerned.

There was evidently no intention, as has already been stated, to make a donation in excess of that which they had already wrongfully received to the persons who happened to be occupying the office of police justices during this period. Unless the intention of the legislature was as has been hereinbefore indicated, then all reference to this question of payment in the act was absolutely senseless; and the legislature is not to be presumed to have legislated upon a subject without some meaning or object.

We think that the true construction of the act limits the ratification of the resolution to the legalization of the payments which had been made, and forms no basis for the claim presented by the plaintiff.

The exceptions should be sustained and new trial granted, with costs to defendant to abide the final event

Ingraham, J.

I concur with the presiding justice in his construction of the act of 1888, and I think it clear that the plaintiff is not entitled to recover.

The act of the common council in attempting to pass the resolution known as the resolution of December, 1869, was without authority. Their act was therefore void and there was no resolution passed.

The legal salary of plaintiff was $5,000 per year; for that he was to perform the services required of him by law as police justice and he received such compensation for such services.

In 1888, when the act in question was passed, there was no resolution in existence, but for a certain period plaintiff had been paid upon the assumption that the resolution fixing such salary at $10,000 per year was legal.

The act proceeds to legalize such payment and declared that the plaintiff was lawfully paid the amount that he was to be paid under the void resolution.

The act then provides that said resolution is hereby legalized, ratified and confirmed.

Now for the first time there is legal resolution; for the first time there is anything that is binding upon the municipal corporation. There is no intention expressed that the act should have retroactive effect except so far as to legalize the payments that had been actually made, so that the position is, that on May 26, 1888, a resolution is adopted whereby it is resolved that “ the salary of each of the police justices be and is hereby fixed at the same rate as now paid to the city judge.”

The services that the plaintiff had rendered and for which he seeks to recover in this action had been rendered and his term of office had expired long prior to the passage of the act. This act if it was to take effect as of the date of it's passage could not affect his right to compensation rendered before it was passed.

Had it been the intention of the legislature to give by the mere legalization of the void resolution the retroactive effect claimed by plaintiff, the legalization of the payments by the city officers would have been unnecessary; all that would nave been necessary would have been to legalize the passage of the resolution as of the date at which it was attempted to be passed, and when the legislature provided that the payments made on the assumption that the resolution was valid should be legalized, and then proceeded to legalize the resolution, I think that the act, so far as it was to have any effect prior to its passage, must be confined to the express provision of the statute legalizing the payments.

The act of the legislature in legalizing the resolution is not the act of the principal ratifying an act of an agent whereby the agent had assumed to act for his principal without authority. When the common council attempted to pass the resolution, they assumed to act under power delegated to them by the people of the state. Such power had not been delegated; consequently their act was void.

Subsequently the legislature, notwithstanding the common council had no power to do what they attempted to do, in 1888 legalized the resolutions, then making it a legal resolution, and it could only be effectual from the time it was legalized.

But assuming that the act had the effect claimed by plaintiff, the cause of action for the salary unpaid arose only when the act legalizing the resolution was passed, and this action was commenced prior to that time and without presentation of the claim to the comptroller when it was a legal claim and the city was bound to honor it.

When the action was commenced, therefore, there was no liability of the city and no cause of action against the city existed. I concur, therefore, with the presiding justice that a new trial should be ordered.

Daniels, J., concurs.


author: Lambert, J.

text:
    Charles G. Cornell, Jr., et al., Resp’ts, v. The United States Illuminating Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Reference—Long account.
    The mere fact that the trial may possibly develop that it is necessary to examine many items of account is not sufficient to justify or support an order of compulsory reference; but such a state of facts must be shown as to justify the legal inference that the trial will involve the examination of a long account.
    Appeal by defendant from an order made on motion of the plaintiffs directing the issues to be tried before a referee.

      Richards & Heald, for resp’ts; Cravath & Houston, for app’lt.
   Lambert, J.

The first and second causes of action set forth in the compIaintTiave their foundation in contract, and a specific sum of money in each case is sought to be recovered; so it requires no argument to demonstrate that they do not involve an account within the meaning of the provisions of the Code.

The third cause of action is for goods and merchandise sold, work and labor performed for the defendant by the plaintiffs of the alleged reasonable value and agreed price of $3,368.07, between December 17, 1889, and June 17, 1890, and paid thereon only at various times $2,975.30.

The allegations in which this cause of action is found are so general, and wanting in detail, that the couz-t is left to infer or spell out the fact that there may possibly be involved and in dispute on the trial many items of account. It-has been distinctly held by the court of last resort that the moving party, to bring the case within the purview of the provision of the Code, must allege at least such a state of facts as will justify the legal inference that the trial will involve the examination of a long account. Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843.

The affidavit of the plaintiffs’ attorney, read in support of the motion, does not supply the omission suggested; it contains the opinion of the attorney that the trial will require the examination of a long account, but fails to give the facts upon which the same is based. The most that the plaintiffs have proved is, that possibly the trial may develop that it is necessary to examine many items of account, but this is not sufficient to justify or support an order of compulsory reference. By the seventh and eighth paragraphs of the answer, the defendant admits the sale and delivery of all the goods and merchandise and work performed set out in the third cause of action, and joins issue on one payment of $29.48, and the value or agreed price of the merchandise and labor, constituting the plaintiffs’ third cause of action. The mere statement of the issues made by the pleadings makes the inference quite probable that very few items will come in dispute on the trial.

The counterclaim set up in the answer is for damages for alleged breach of contract, and in no sense involves an account such as is required to make the case referable under § 1013 of the Code.

The order appealed from, must be reversed and the motion denied, with ten dollars costs and disbursements.

Daniels, J.,


text:
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Trial—Calendar.
    The complaint herein was dismissed so far as it prayed for equitable relief, and proceeded to trial at circuit, when plaintiff was allowed to withdraw a juror on condition of paying costs and making a motion for leave to amend. Said motion having been denied. Held, that he was entitled to have the cause restored to the calendar and retry it.
    Appeal from order denying appellant’s application at circuit to restore cause to the calendar.

      R. J. Moses, Jr., for app’lt; E. Louis Lowe, for resp’ts.
   Per Curiam.

The complaint hei-e was never dismissed generally. It was dismissed at special term only so far as it prayed for equitable relief. Thereafter the action was tried at circuit, and the plaintiff was permitted to withdraw a juror on certain conditions; namely, the payment of costs and the making of a motion for leave to amend within twenty days. The costs were paid, and the motion to amend was duly made and denied. That left the action as it stood when the juror was withdrawn, and the plaintiff then had a right to go back to circuit and retry his case as best he could. Otherwise, the favor originally granted to the plaintiff at circuit would cost him his right to review; for if the juror had not been withdrawn the complaint would have been dismissed, and the plaintiff could then have appealed. He should be no worse off by reason of the refusal to permit him to •amend.

The order should be reversed, with, teu dollars costs and disbursements, and the cause set down for trial on the pleadings as they stand.

Van Brunt, P. J., Barrett and Andrews, JJ., concur.


author: Finch, J.

text:
    Lester A. Lewis, App’lt, v. Ervin G. Gollner et al., Resp’ts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Covenant—Hot to build, when personal—Purchaser with knowledge, WHEN BOUND BY.
    C. having contracted for the purchase of lands on which to erect flats, plaintiff ana other adjoining owners, in order to prevent such erection, purchased his contract at an advance of $6,000, and in consideration thereof G. agreed orally not to “ erect any flats in plaintiff’s immediate neighborhood, or trouble him any more.” Soon after, however, he bought another lot diagonally opposite and began the erection of flats, first in his own name, afterwards under that of his wife. Held, that the agreement, though by paroi and purely personal, was in effect that whatever land G. might possess in that immediate neighborhood should not be used for flats, and in equity the agreement would follow the land into the hands of a purchaser with full knowledge of the facts, and could be enforced against the latter.
    2. Same.
    The term “ immediate neighborhood ” was not indefinite, but covered the locality of the construction in progress. Nor was the agreement against public policy.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment dismissing complaint

      Wm. C. Beecher, for app’lt; Geo. C. Case, for resp’ts.

       Reversing 37 St. Rep., 613.

   Finch, J.

All the facts alleged in plaintiff’s complaint were found by the court, but were held to be insufficient to entitle him to equitable relief.

The plaintiff’s residence was on President street, between Seventh and Eighth avenues, in the city of Brooklyn. That street and Union street, which runs parallel with it one block away, are occupied by private residences constructed by citizens of some wealth and social standing, whose homes are more or less creditable to their taste, and in which, as giving character to their neighborhood, they feel a pardonable pride. That part of the city had never been invaded by flats or tenement houses, which bring together a changing and floating population under one roof, having no ownership of their own and caring little for anything beyond their personal comfort and immediate needs. Into this locality came the defendant Grollner, a builder of tenement houses and flats. He bought a lot fronting on Union street and immediately in the rear of plaintiff’s premises, and at once announced his intention of erecting there a seven-story flat. Such a building in such a locality was regarded as offensive and injurious by the residents of the vicinity, and the court has found as a fact that the construction of such a building in that locality would cause injury and damage to the neighboring premises. Grollner was not without experience, and apparently knew what he was about when he took some pains to let his plans be generally understood. The neighbors at first remonstrated, but found Grollner immovable and standing upon his rights. They then sought to buy him out for the sole ana declared purpose of saving the neighborhood from flats. Grollner had no title, but simply a contract. The price he had agreed to pay was $18,000, which was the full and fair value of the property, and upon that he had paid only the sum of $500. He began the negotiations with a very large price, but finally agreed to sell out for $24,500, or a net profit of $6,000, and upon the further contract that “ he would not construct or erect any flats in plaintiff’s immediate neighborhood or trouble him any more.” It is evident, since the lots were worth in the market but $18,000, since the sole motive of the purchasers from Grollner was to prevent his meditated construction, and since his declaration of his purpose was the cause and occasion of the final purchase, that the $6,000 was the consideration for the restrictive agreement of Grollner, and was the price paid for his covenant not to build flats in the neighborhood or trouble its residents with similar injurious and disagreeable enterprises. Neither party at all misunderstood that this was the material point of the contract. It would have been the extreme of folly for the purchasers to pay $6,000 to prevent the erection of'fiats on the one lot alone, leaving Gollner free to repeat the enterprise in the immediate neighborhood, and inflict the very injury to escape which the tribute had been paid. Gollner himself, according to the plaintiff’s proof, accurately understood and clearly stated the pith of the agreement when he said that after making it, if he should build flats in the vicinity, he “ should be considered a blackmailerand when other lots were suggested by the witness Moody, Gollner said: “ What, go for more blood money after I had taken blood money out of those people; I would not do it.” And yet he did attempt to do it At the moment when his contract with plaintiff was closed and the down payment was made, he began negotiations for the purchase of a lot on Union street diagonally opposite his first purchase, and, obtaining title, at once commenced the erection of a seven story flat. When reminded of his agreement and remonstrated with, he seems, according to one witness, to have regarded it as a good joke upon his vendees, and added that “he guessed he could fight them with their own money, that he had $6,000 of it in his clothes, patting his pocket, and he would see that go as far as it would last in that direction.” Then came a letter from plaintiff’s attorney threatening an action, and a refusal by one of his material men to further supply him under the circumstances, and thereupon Gollner sought shelter for his enterprise and his breach of faith under an ownership in his wife. His equity in the lot purchased was $2,000, and that equity, together with his large expenditure upon the foundations, he conveyed to her for her equity in two other lots which amounted to $700 ; and then, as her agent and architect nominally and in form, continued the ■construction. Mrs. Gollner lent herself to this artifice and took the title with full knowledge of all the facts and unquestionably for the purpose and with the intent of aiding and protecting her husband in his effort to avoid his own honest obligatior.

This state of facts had its natural effect upon the courts below, and the general term, after their recital, added that if there was .any authority, directly or indirectly, in plaintiff’s favor they would without hesitation grant him relief; but saying that they felt also bound to say that equity stood helpless before this cool and deliberate wrong. The inquiry which faces us is, therefore, whether in truth equity is thus helpless to enforce such a clear and admitted right.

I think we should first examine the situation as between plaintiff and Gollner upon the supposition that the latter had remained ■owner of the land and was himself engaged in violating his contract, and ask of ourselves the question whether in such event it would have been possible for equity to interfere, or whether the objections and difficulties suggested by the respondents would have proved insuperable.

Two of those objections we may dismiss quite briefly. The agreement was not in the least indefinite or uncertain, as it respects the matter in controversy. The phrase “ immediate neighborhood,” taken in connection with the subject matter of the contract, is not so indefinite as to be incapable of just and natural boundaries, but in any event covers and includes the locality of the construction in progress. The court has so found, and there is .no reason for doubting its correctness. Nor is there any foundation for saying that in its restrictive character the agreement is against public policy. We have too lately discussed that subject to make a recurrence to it necessary. We have perhaps widenecL and extended the area within which restraints of trade and business may'lawfully operate, and certainly should not narrow them till they are less than one neighborhood in a single city.

Nor is there any. difficulty in the fact that the agreement is by paroi and purely personal. If just grounds of equitable jurisdiction exist, any valid contract, however unsolemn, may be enforced by a decree of specific performance. The cases are very numerous-in which agreements purely personal not to engage in a particular-trade or business within certain reasonable boundaries have been enforced by injunction, and it certainly does not lessen the duty or imperil the right that the contract proved or established is by paroi. In one possible view of this case we are in fact dealing with just such a contract. The occupation of the defendant Grollner was that of a builder of flats and tenement-houses. He so describes himself, and gives that as his specific business and occupation. He sought to carry it on in plaintiff’s neighborhood, and was paid $6,000 not to carry it on in that locality, and because-his doing so would in fact cause injury to the persons who paid him the money. Of course there is a difference between the present case and those in which the contract purpose -is to prevent, competition; a difference which respects the nature and character of the injury resulting from a breach; but that difference does not. disturb the doctrine common to both that in a proper case equity will specifically enforce by affirmative decree or restraining injunction a definite and fully established and valid contract, although a personal one, and irrespective of the fact that it happened to be-by paroi. The jurisdiction attaches upon the ground that an action at law for damages will not do complete justice, or accomplish the purpose contemplated by the contract. Even though the agreement itself fixes a penalty for its breach, it will not follow that equitable relief must be denied, for, if the contract appears to be such in its character and purpose that its performance was contemplated by the parties, and not merely damages for the breach, the equitable relief will be awarded. Diamond Match Co. v. Roeber, 106 N. Y., 474; 11 St. Rep., 47. When that relief is by injunction to restrain the commission of an injurious act, the complaint of the plaintiff is somewhat in the nature of a bill quia timet, in which equity acts to prevent a mischief rather than to redress it There is, therefore, no reasonable doubt that if G-ollner was still the owner of the land, and engaged in constructing the flats, his enterprise could be restrained by injunction. No other remedy would have the dimensions or proportions of the-contract purpose. Money damages could not be an accurate substitute, and would merely palliate, and not redress the injury. It would be a continuing one, whose full and actual effects could scarcely be foreseen, and which the plaintiff could only escape by breaking up his home and retreating to some possible locality in which tenements were not, and their builders did not afflict

But Gollner did not remain the owner of his new purchase, and that brings us to the difficulty which the courts below deemed insurmountable, and which needs to be thoughtfully considered. They reasoned that the new vendee could not be affected except through or by the purchase of the land and so only when the land carried with it as an inseparable attachment the burden of the* contract; that when the contract was made there was no land to which it did or could attach ; and so the agreement remained wholly personal to Gollner, and did not affect or bind his wife. I do not see the contract in that way. Gollner might have fulfilled it by omitting to buy or lease any land within the prescribed limits, but his agreement left him at liberty to do so or not as he pleased, but required that if he did so purchase or lease he should not erect upon the land so owned or possessed the prohibited structures. The moment he bought or leased any such land he came under an obligation not to use it in a particular way; the land in his hands necessarily became restricted and limited in the use of which it was capable; and as much so though bought of another as if it had come from the contractor who imposed the restraint as vendor. I do not see why the equitable rights of the plaintiff did not attach to the land when bought if it came, as it did, within the scope of the contract Why should it affect the result that the obligation and the land ownership were not simultaneous, or that the latter came from a vendor who did not restrict when the contractor could and did ? In the case of a mortgage the lien may attach to and bind after acquired property, or cover future and later advances as between the parties themselves, and that is permitted because they have so agreed and their contract contemplates that precise result In like manner I think the agreement under discussion was in substance and effect that whatever land the defendant Gollner might thereafter possess in that immediate neighborhood should be restricted in its use by him and should not be devoted to the construction of tenements or fiats. In other words, when he bought the land the plaintiffs equitable rights at once attached to it, became a burden upon it so long as Gollner owned it, so that apparently the contract ceases to be merely and purely personal because it affects and was intended to affect the use and occupation of Gollner’s after acquired land in that neighborhood. But if the contract remains technically a personal one, I think the reasonable and settled doctrine is that the contract equity is so attached to the use of the land which is its subject matter as to follow the land itself into the hands of a purchaser with full knowledge of all the facts, who buys with his eyes open to the existing equity and more especially when he buys for the express purpose of defeating and evading that equity. It has been held that the equity resulting from a valid agreement, althougn the latter was not a covenant running with the land, or a legal exception or reservation out of it, but stood solely upon the ground of a personal contract dictating the mode of user, would nevertheless go with the land into the hands of a purchaser with notice, and who did not buy innocently or in good faith. Whitney v. Union Railway Co., 11 Gray, 363. In Hodge v. Sloan, 107 N. Y., 250; 11 St. Rep., 770, we substantially affirmed that doctrine, holding that a purchaser without restriction in his deed, but from one who was restricted by a personal.covenant not running with the land or binding his assigns, yet with notice of the facts, is bound by the restriction in a court of equity, Judge Danforth, describing the character of the agreement thus: “It is restrictive, not collateral to the land, but relates to its use.”

It is true and should be noted that in these cases the restrictions followed the line of title and were imposed by the original owners and vendors of the land, while here they were not so imposed, but came from one never an owner of the land, but deriving his right from a contract with one who did become such owner. But why should that difference change the result? The original owner’s right rests upon one consideration and that of the stranger to the title upon another, but each one equally good and worthy of equitable regard. In Parker v. Nightingale, 6 Allen, 344, it is declared not to be in the least material that the restrictive stipulations should be binding at law, or that any privity of estate should subsist between parties in order to render them obligatory and to warrant equitable relief in case of their infraction. I think that doctrine is sound and just. The source of the restriction would seem to be immaterial if itself binding and founded upon sufficient consideration; and a breach is no greater wrong to a privy in. estate than to a stranger validly contracting about its use. Nor can the vendee in bad faith stand upon such a difference. Equity has no compassion for a fraud, and he who buys in aid of one with full knowledge of what is right, but with purpose to defeat it, should not escape the hand of equity by a criticism upon the origin of the restriction violated. If these views are correct it will follow that plaintiff should have been awarded the relief which he sought.

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

All concur, except Ruger, Ch. J., and Andrews, J, not voting.


author: Andrews, J.

text:
    The E. G. Blakslee Mf’g Co., Resp’t, v. The E. G. Blakslee’s Sons Iron Works, App’lt.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Ejectment—Land grants—Riparian owners.
    A riparian owner has no title to the land under water in front of his premises, hut simply a right to apply to the state for and obtain a grant as owner of the upland, and when he has sold the upland he is no longer in a position entitling him to make such application, and neither he nor his grantees can assert any claim by reason of an attempted reservation in his deed.

      2. Same—Patent.
    A patent from the state cannot be assailed collaterally, unless void on its face. The question as to -whether it has in fact been executed to the owner of the upland cannot be litigated in an action of ejectment by the patentee against the parties in possession. Where evidence de hors the patent is requisite to establish its invalidity, it can be avoided only in a direct proceeding to review the action of the commissioners, or by action in equity to vacate the patent.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Francis Larkin, for app’lt; Alfred Taylor, for resp’t

       Affirming 37 St. Rep., 707.

   Andrews, J.

The land in controversy was formerly land under water of the Hudson river, embraced in a patent from the state issued to the plaintiff pursuant to a resolution of the commissioners of the land office on the 18th day of March, 1889, under the provisions of the Revised Statutes, 1 R. S., 208, § 67, as amended by chapter 283 of the Laws of 1850.

The defendant claims title to the locus in quo under certain mesne conveyances from Reuben Quimby. The defendant also, sets up as a defense an outstanding title to a portion of the premises in controversy in one Elijah Hunter and his grantees under a patent from the state of lands under water, issued February 22, 1787, and there is no question that this constituted a paramount title to that acquired by the plaintiff under its subsequent patent as to any portion of the premises claimed which may have been embraced in the Hunter grant The difficulty which the defendant encounters in sustaining this latter claim is, the finding of fact, by the court that the Hunter grant did not include any part of the premises in controversy, which finding is supported by evidence. The defendant, to sustain his contention that the Hunter grant included a part of the premises in question, relies upon the evidence of a surveyor, who, in locating the Hunter patent, assumed as a starting point an ancient and well known monument known as the “point of rocks,” and assuming this starting point to be correct, it would appear that a part of the premises in controversy was within the boundaries of the Hunter patent But. that patent describes the land conveyed thereby as land under water of the Hudson river, adjacent or opposite to his (Hunter's) laud or farm, which is located at Greenfield Landing, in the county of Westchester, beginning “at a certain stake at high water mark at the said Greenfield Landing.”

It is clearly shown that as Hunter’s farm lay wholly south of the Sing Kill, and that no part of the premises in controversy was-adjacent to the upland of the Hunter farm; that Hunter never occupied any part of the premises in question; that he and his grantees erected wharves and buildings upon the land underwater in front of his farm, but not upon the part now claimed to have been within his grant, and finally the evidence warranted the judge in rejecting the starting point of the Hunter grant fixed by the witnesses for the defendant, and in determining as a question of fact that the lines of the grant were wholly south of the premises in controversy. This disposes of the defense based upon the Hunter patent

Other questions remain to be considered. Reuben Quimby, on the 15th day of May, 1853, conveyed to William H. Gregory and Seth H. Mead a lot north of .the Sing Kill, and on the west side of Water street, in the village of Sing Sing, described as extending westerly from Water street to the lands of the Hudson River Railroad, and following the granting clause in the deed are the following words: “ Excepting and reserving to the said Reuben Quimby, his heirs and assigns, all the water rights and privileges and all the water grants and rights in the Hudson River west of the said railroad, which now or may hereafter appertain or belong to the above described premises, the same and in the same manner as if these presents had' not been given.” The plaintiff has succeeded to this title under deeds containing a similar exception, and is also the owner of adjacent lands on the north of the Gregory and Smith lot

The patent of 1889 assumed that the land then owned by the plaintiff embraced in the Gregory and Smith deed, and the adjoining land on the north, which it acquired from other persons, was upland, and made the plaintiff an upland owner, entitled under the statute to the conveyance of the land under water in front of their premises. The description in the patent commences: “All that certain piece or parcel of land under the water of the Hudson River in front of and adjacent to upland' of said. E. G. Blalcslee Manufacturing Co., in, etc., described as follows.”

The title claimed by the defendant originated in 1854, subsequent to the deed of Gregory to Smith, in a mortgage from Quimby (the grantor in that deed), mortgaging certain upland south of and contiguous to the Gregory and Smith lot to one Curtis, which mortgage also purported to mortgage the land under water lying in front of the Gregory and Smith lot. It seems to be very clear as a legal proposition that the exception in the Gregory and Smith deed was wholly ineffectual either as a reservation to Quimby, the grantor, of any property right or interest in the lands under water in front of the premises conveyed, or as precluding the plaintiff as the owner of the upland from subsequently claiming such lands under water under the patent from the state. The state, at the time of the execution of the deed to Gregory and Smith, was the owner in feo of the lands under water in front of the premises conveyed by that deed. People v. The Ferry Co., 68 N. Y., 71. Quimby had no title thereto, and could convey none. While he owned the upland he might have applied for a grant, but when he sold it he was no longer in a position entitling him to make such application, and neither he nor his grantees could assert any claim by reason of the attempted exception or reservation in the deed.

The power conferred on the commissioners of the land office only authorizes a conveyance of lands under water to be made to the owners of the upland. The right or privilege conferred by the statute is appurtenant to the upland, and vests in the owner thereof, and it never can exist severed from such ownership. ^ The title set up by the defendant under mesne conveyance from Quimby of the lands under water in front of the Gregory and Smith lot cannot therefore prevail. But the defendant attacks the plaintiff’s title under the patent on the grounds, first, that in fact the lands embraced in the conveyance from Qnimby to Gregory and Smith was not upland, but that it was originally below high water mark, and that consequently the patent of 1889 was void, as not having been made to the owners of adjacent upland; and, second, that if the plaintiff was as to the lands owned by it an upland owner, still the lands under water embraced in .the patent were not wholly in front of the premises owned by the plaintiff, and that a part of the lands in controversy, and for which a recovery has been had, are outside of the limits to which the commissioners were confined, in that they attempted to convey lands part of which were not in front of the lands of the plaintiff.

It is a conclusive answer to both of these contentions that a patent from the state is not assailable collaterally, unless void on its face. The declaration in the statute of 1850, that a grant made to any person other than the owner of the upland “ shall be void,” is to be construed as subject to the settled rule that where evidence de hors the patent is requisite to establish its invalidity, it can be avoided only in a direct proceeding to review the action of the commissioners, or by action in equity to vacate the patent. This principle has been established by a long line of authorities, and further elaboration would be useless. Jackson v. Lawton, 10 Johns., 23; People v. Mauran, 5 Den., 389; People ex rel Burnham v. Jones, 112 N. Y., 598 ; 21 St. Rep., 820 ; Ehrhardt v. Hogaboom, 115 U. S., 67; Johnson v. Towsley, 13 Wall., 83; French v. Fyan, 93 U. S., 169; Steel v. Smelting Co., 106 id., 447.

The patent of 1889 is valid on its face and affirmatively purports to have been executed to the owner of the upland. Whether this was in fact true cannot be litigated in this action.

We find no error in the judgment, and it should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    John Hoey, Pres’t, App’lt, v. Thomas S. Gilroy, Com’r, et al., Resp’ts.

      (Court of Appeals,

      Filed December 1, 1891.)

    Municipal corporations—Obstructions on the stret—Consolidation Act, § 86.
    The common council of the city of New York has power to authorize the erection and maintenance of an iron awning 110 feet long, supported by iron pillars, placed along the inside of the curbstone, the roof of iron being ten feet from the sidewalk; and such awning when conforming to the ordinance passed in 1886 is not an illegal obstruction in the street.
    (Peckham, 1., dissents.)
    Appeal from judgment of the Hew York common pleas, reversing judgment in equity enjoining defendants from removing an awning erected and maintained in a public street

      Wm. D. Guthrie, for app’lt; Ira D. Warren and D. J. Dean, for resp’ts.

       Rev’g 37 St. Rep., 754.

   O’Brien, J.

The plaintiff brought this action as president of the Adams Express Company, an incorporated association composed of more than seven persons, to enjoin the defendants from removing an awning or structure in front of the place of business used by the plain tiff’s company, in the city of Hew York. The defendants are the public officers of the city, having power to remove obstructions unlawfully placed or kept in the public streets of the city. The special term sustained the action and enjoined the defendant from removing or interfering with the structure, but the general term has reversed the judgment It appears from the findings that the Adams Express Company, occupy a building at the corner of Broadway and Great Jones street, in the city of Hew York, for the transaction of their business. The building is forty feet wide on Broadway and one hundred and thirty feet deep on Great Jones street. The company had erected and maintained for some time prior to the commencement of this action, in front of its premises on Great Jones street, a permanent iron structure 110 feet in length and nineteen feet in width, covering the whole sidewalk and extending over the curbstone about twelve inches. The roof was constructed of light corrugated iron, supported by iron columns about three and a half inches in diameter, placed about twelve feet apart and next to and, along the inside of the curbstone, the lowest point of the roof being about ten feet above the sidewalk, the iron columns being imbedded in the soil of the street The authorities of the city having charge of the streets notified the company to remove the structure, and on the neglect or refusal of the company to comply with the notice the defendants were about to remove it, when they were enjoined in this action. The learned judge who gave the opinion of the court at general term has very clearly shown that, according to the general rules of law, this structure constitutes an encroachment upon the street, and is, as to the public at least, an obstruction. But the question here is whether it is an authorized or an illegal structure.

The legislature, by virtue of its general control over public streets and highways, has the power to authorize structures in the streets for the convenience of business that, without such authority, and under the principles of the common law, would be held to be encroachments and obstructions. This power it may delegate to the governing body in a municipal corporation ; and the most important question in this case is whether the power to authorize this structure has been so conferred upon the authorities of the city of Hew York. That depends upon the construction to be given to that part of the consolidation act which enumerates and specifies the powers conferred by the legislature upon the common council in that regard. That portion of the act which is material to the question now under consideration is as follows :

Sec. 86. The common council shall have power to make ordinances, not inconsistent with law and the constitution of this state, and with such penalties as are prescribed in the last section, in the matters and for the purposes elsewhere especially granted, namely:

4. To prevent encroachments upon and obstructions to the streets, highways, roads and public places, not including parks, and to authorize and require the commissioner of public works to remove the same; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same, but may authorize the temporary occupation of a portion of a street, during the night time only, by trucks belonging to or habitually driven by actual residents of the city of New York.

8. To regulate the use of streets and sidewalks for signs, signposts, awnings, awning-posts, horse-troughs, urinals, telegraph posts and other purposes.”

Effect must be given to this statute according to the intention of the legislature. It will not do to say that because the legislature in general words declared that the common council shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk,” and in the same statute specifically authorized them to regulate awnings, the prohibition and the specific power are so contradictory and inconsistent that one or the other must be rejected. Courts, in construing statutes, aim to reconcile apparent contradictions, and to give effect, if possible, to every part of the enactment

It cannot be doubted that the power to regulate awnings carried with it the power to authorize their erection and maintenance upon compliance with the rules adopted upon that subject. It is just as clear that the legislature intended to authorize the common council to permit the construction of awnings as it is that it intended to prohibit them from permitting encroachments upon or obstructions in the streets. An awning was an obstruction that was intended to be excepted from the general prohibitive words, or perhaps it would be better to say that the legislature did not intend that the general words should cover that particular case. When a statute contains two distinct provisions, one being specific, with precise directions to do a particular thing, and the other general, prohibiting certain acts which in their general sense include the particular thing authorized by the direction, the general prohibitive clause does not control the specific authority. When a general intention is expressed, and also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. Churchill v. Crease, 5 Bing., 178; The People, etc., v. McClave, 99 N. Y., 83, 89.

Having in view these general rules of construction, we have no doubt that the common council had power to authorize the erection and maintenance of the structure in question, and it remains only to see whether this power has been exercised

On the 10th of May, 1886, the board of aldermen and common council of the city passed a general ordinance, after it had been returned by the mayor without his approval, “ to regulate the erection of "awnings extending across sidewalks * * * in the city of New York,” the material part of which is as follows :

“ Section 1. Awnings of tin, or other light metal or canvas, may be erected across the sidewalks of any of the streets of the city of New York, except Broadway, Fifth avenue, Lexington avenue and Madison avenue, provided any and every such awning shall not be higher than the floor of the second story of the building, the first floor being the ground floor, but in no case to be covered with wood; and every awning or water-shed of any kind covering one-half or more than one-half, or less than the full width of the sidewalk, shall have connected therewith a gutter and leader of material and size sufficient for conducting the water from the same to the outer line of the curbstone, under a penalty of five dollars for each day such awning or water shed shall remain without such appurtenances.

“ Section 2. All posts fixed in any street for the purpose of supporting any awning shall be of iron not exceeding six inches in diameter, and the rail crossing the same shall also be of iron; the said posts shall placed next to, and along the inside of the curbstone, and the cross-rail, which is intended to support the awning, shall not be less than eight, nor more than ten, feet in height above the sidewalk, and the said cross-rail shall be strongly secured to the upright posts. No portion or part of any canvas or cloth, or tin or other light metal used as an awning, shall hang loosely, or project upward or downward from the same over any sidewalk or foot-path, under a penalty of ten dollars for each day’s offense.”

The awning in question was built prior to the passage of this ordinance, and under another then existing; but after the enactment of the above it was changed and made to conform to it upon the request and with the consent of the city authorities.

We cannot hold that this structure is not an awning within the meaning of the statute, but something else, because it is fairly within the description of an awning contained in the ordinances, and we think it is impossible in any aspect of the case to hold that it is an illegal obstruction in the street. In Hume v. The Mayor, 74 N. Y., 264, it was held that a private person injured by the falling of an awning like the one in question could recover against the city for the injury; that, if the structure was unauthorized, it was an encroachment upon the street and a nuisance; but if placed in the street by authority of the city, then ib was liable for any defect arising from want.of proper supervision or from negligence in the construction. We cannot perceive that the case has any bearing on the question involved here, which is whether this particular awning was constructed with or without authority. It is doubtless a very serious obstacle to the full and uninterrupted use of the street by the public, but so long as the city authorities had power to authorize its erection, and have exercised that power, the court cannot ignore their action. The common council can at any time abate such obstruction, and prevent them in the future, by a repeal or modification of the ordinance. The remedy for such improper use of the streets is with the city government, and not the courts.

The order of the general term should be reversed, and the judgment of the special term affirmed, with costs.

All concur, except Peckham, J., dissenting.


text:
    James M. Horton, Resp’t, v. Moritz Bauer, Imp’ld, App'lt.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Contract—Breach—Damage.
    On the foreclosure of a purchase money mortgage the defendant counterclaimed damages sustained by a breach by the vendor of an agreement to remove certain railroad tracks which were upon the premises, by reason of which he claimed to have lost a sale of the property to one B., at an advance of §36,000. He did not disclose the encroachment to B. who was his friend, and the latter on discovering it, refused to perform on that ground, waiving other defects in the title. The court held that the contract with B. was a sham, devised solely to furnish a basis for damages. Reid, That there was quite enough to justify that conclusion, and that a finding that only nominal damages were sustained by the breach of agreement was supported by the evidence.
    2. Same—Burden of proof.
    The agreement was one of indemnity merely, so far at least as loss of profits was involved, and the burden of proof was upon defendant of establishing such a loss as was the natural and legitimate consequence of the plaintiff's breach.
    3. Same.
    The fact that defendant offered to assign his contract to plaintiff to enable the latter to enforce it, who declined the offer, is no defense. No such duty devolved upon plaintiff, as defendant was bound fairly to prevent or lessen his loss before calling for his indemnity.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of foreclosure and sale.

      E. Winslow Paige, for app’lt; John M. Scribner, for resp’t.

       Affirming 37 St. Rep., 637.

   Finch, J.

The counterclaim asserted by the defendant rested upon two facts: one, the contract of indemnity executed by the plaintiff relative to the encroachment of the street railroad company upon the lands agreed to be purchased; and the other, an alleged failure of a later and more profitable contract between the defendant and Borger for the sale of the same land; which failure was traced to the presence of that encroachment. There is no doubt that at the date of each contract the tracks of the railroad were, in fact, located upon the land in controversy, and to the knowledge of both plaintiff and defendant; but the trespass was unintentional and incidental, growing out of uncertainty as to the lines of an unopened street, without any claim of right, and ended by the ultimate removal of the rails. How a damage of $36,000 was to result to the defendant from this harmless trespass which never challenged his title or right of possession is disclosed by the two contracts, in the first of which the defendant was vendee, and in the second an apparent and alleged vendor. Knowing of the encroachment at the closing of the contract of purchase, he required to be executed and delivered by the vendor the covenant upon which this action rests and which is as follows : “ I hereby covenant and agree within thirty days hereafter, either to obtain the execution by said railroad of a lease of said premises in a form satisfactory to Moritz Bauer (containing the privilege of the lessor to recover possession of the premises upon thirty days notice), or to have the tracks of said railroad company entirely removed from said lands. And I hereby expressly covenant and agree to indemnify and save harmless the said Moritz Bauer of and from all loss and damage which may arise from the encroachment of the tracks of said railroad company upon said land, including loss of profits, in any future transaction in respect to said lands.”

The original contract was dated May 4, 1887, and provided for performance by both parties on July 6th following. That performance was several times postponed, but was finally fixed for the 3d of August. On that day there were produced and delivered to the vendee a letter from the railroad company substantially acknowledging the encroachment, explaining its accidental and unintentional character and agreeing to remove the tracks upon thirty days notice, and one in reply from the vendor by which he accepted the company as a tenant liable to removal on thirty days notice. These papers were unsatisfactory to the defendant, who declined to regard them as a lease, and who required for his further protection the covenant of indemnity above recited, upon the execution of which he accepted the title. Negotiations were thereafter commenced by the vendor for a formal lease which were delayed beyond the thirty days under circumstances which quite plainly indicated a waiver of time as a material or essential element of the contract. But during the period of that delay and before the track was removed he entered into a formal contract with Borger for a sale of the premises at an advance of $36,000. The vendor testifies that the vendee was his intimate friend, and yet he never told him of the encroachment or the existing situation relative to its removal, but left him to discover it for himself. Borger did so, and although there were other and better grounds on which to object to the title tendered, he waived them all and refused to perform on the sole ground of the encroachment by the railroad company.

The general term have held, upon a view of all the circumstances attending the transaction, that the contract with Borger was a sham, devised solely to furnish a basis for damages against the original vendor, and not made in good faith. There is quite enough to justify that conclusion; and the refusal to find as a fact the actual existence of that contract and also the finding that only nominal and no real or actual damages resulted are, in our judgment, supported by the evidence.

It is obvious that the contract was one of indemnity merely, so far at least as loss of profits was involved. The covenant as to that was explicitly to indemnify and save harmless. The burden was'thus put upon the defendant of establishing such a loss as the natural and legitimate consequence of the plaintiff’s breach. But the alleged loss from the failure of the Borger contract was ineffectual for two reasons. Bauer might have enforced that contract. An accidental trespass, conceded to have been without title and without right, upon a part of the lands agreed to be conveyed, furnished no justification for Borger’s refusal and would have been no defense to an action for specific performance. If he had taken from. Bauer a full covenant deed, no one of the covenants would have been broken and no action upon them could have been maintained. The vendor'had a seizin in fee and full right to convey. The covenant of warranty and for quiet enjoyment is not broken by a bare trespass not amounting to an eviction. And that against incumbrances implies for its basis some outstanding right or claim of right Bauer’s deed to Borger, if accepted, would have given the latter everything which the contract required, and there was nothing in the accidental and admitted trespass which could have induced a court of equity to relieve him from his purchase. All this, conceded by appellant for the purposes of the argument to be a possible truth, is met by the answer that Bauer offered to assign his contract to plaintiff to enable the latter to enforce it, who declined the offer. I do not think that is a sufficient answer.

Ho such duty devolved or could be put upon the plaintiff. The transaction with Borger was one for which the plaintiff was in no manner responsible, and in which he had no interest, except that it should be an honest one and honestly conducted and enforced. The duty of enforcing it, or showing that enforcement was impossible, rested upon Bauer. He was bound fairly to prevent or lessen his loss before calling for his indemnity. If he desired to make the plaintiff responsible for the results of the litigation, he could easily have offered to let him conduct it or aid in its progress, but' an assignment of the contract the plaintiff was in no manner bound to accept. The damages, therefore, accrued from the fault and bad faith of the defendant. He permitted the breach of his contract with Borger and abandoned it without necessity and without reason. '

It is further to be remembered that if Bauer had sued Borger to compel a specific performance, the former could have removed and was perfectly able to have ended the encroachment, as it was in fact ended, long before his action could have come to trial, and a perfect and flawless title then would have commanded the relief of performance. Jenkins v. Fahey, 73 N. Y., 355. And this conduct of the defendant, who abandoned his legal and equitable right in order to make a loss, and omitted an honest effort to protect not only himself but his indemnitor, coupled with the other facts and circumstances of the case, fully authorized the courts below to determine as a fact that the Borger contract and the alleged loss of profit were alike fictitious and collusive, and not actual and honest. These conclusions, resting upon sufficient evidence, are decisive upon this appeal.

The judgment should be affirmed, with costs.

All concur.