text:
    Benjamin J. Dennis et al., Resp’ts, v. William Walsh and Margaret J. Walsh, App’lts.

      (City Court of Brooklyn, General Term,

      Filed November 23, 1891.)

    1. Mechanic’s lien—Contract.
    In an action to foreclose a mechanic’s lien one D., who was the son of one plaintiff and the brother of the other, and was the architect who drew the plans and specifications, testified that he acted for plaintiffs in making the contract for the building and that plaintiffs did the work. It also appeared that defendant had drawn a check on account of the work to the order of plaintiffs. Held, that a finding that the contract was with the plaintiffs was proper.
    2. Same—Performance.
    On the completion of the work plaintiffs offered to perform any work which defendant wished to complete the contract, but defendant refused tó point out any work unfinished. Held, that this showed a substantial performance of the contract.
    3. Same—Consent op owneb.
    Where the owner of the property lives within thirty feet of the building, sees it in course of erection, and gives her own check on account thereof, this is sufficient to justify a finding that the work was done with her consent.

      4. Same—Notice.
    The fact that the notice of lien states that both defendants owned the premises in question, when in fact it was owned by only one, does not impair the validity of the lien.
    5. Same—Findings.
    Counsel for plaintiffs submitted findings of fact and conclusions of law, which the judge adopted as his decision and signed at the foot. Held, a sufficient compliance with § 1022‘of the Code.
    Appeal from judgment entered upon the decision of the court at special term.

      Moffett & Kramer, for resp’ts; Patrick Keady, for app’lts.
   Osborne, J.

Action to foreclose a mechanic’s lien on which plaintiffs had judgment, from which judgment defendants appeal. The premises in question were the separate property of the defendant, Margaret J. Walsh, and the work done on the premises, and for which the mechanic’s lien in suit was filed, was the carpenter work and material required in the erection of a stable on said premises for the use of the defendant, William Walsh.

The learned counsel for the defendants contends that plaintiffs had no contract with the defendants, but that whatever contract was made was entered into with one Ernest Dennis. We think the evidence plainly shows that the contract was with the plaintiffs. Ernest Dennis, a son of one of the plaintiffs, and a brother of the other, testifies that he acted as the agent of the plaintiffs in making the contract, and that plaintiffs did the work Ernest Dennis was an architect, and he prepared the plans and specifications and signed them “ Ernest Dennis, Architect,” thus apparently defining the nature of his connection with the work, and it clearly appears that the work was done by the plaintiffs; a check for §400 paid on account of the work was drawn by Mrs. Walsh to the order of the plaintiffs under their firm name of Benjamin J. Dennis & Son, and we regard this as strong corroboration of plaintiffs’ contention that the contract was with them, and that defendants knew it. The finding of the learned trial judge to the effect that the contract was with plaintiffs was, in our opinion, well supported by the evidence.

We are also of the opinion that there was a substantial compliance with the terms of the contract. It appears from the evidence, and is not contradicted, that, when plaintiffs had finished their work, as they claimed, one of them went with a carpenter to the premises, and there saw Mr. Walsh and offered to perform any work which Walsh desired to have done in completion of the contract; but Walsh refused, to point out or designate any work unfinished.

The learned counsel for appellants further contends that there was no consent of the defendant, Mrs. Walsh, to the performance of the work so as to bind her property. We do not think that this contention can be sustained. It appears from the evidence that she lived within thirty feet of the premises in question and saw the stable in course of erection. She was present when her husband had a conversation with Ernest Dennis about building the stable, and she also, as above stated, drew her own check for $400 to the order of the plaintiffs, as a payment on account of the work. Under the law as laid down in the recent case of Schmalz v. Mead, 125 N. Y., 188 ; 34 St. Rep., 779, these facts are all sufficient to justify a finding that the work was done with her consent. The cases of Jones v. Walker, 63 N. Y., 612, and Ziegler v. Galvin, 45 Hun, 44 ; 9 St. Rep., 459, relied on by the learned counsel for the appellants, are not in point. Those cases arose under a local act relating only to the city of Buffalo, and that act contained no provision for filing a lien for work done with the consent of the owner, as in the act of 1885 under which the lien in suit was filed.

The answer of the defendants admitted that Mrs. Walsh owned the premises in question; while the notice of lien set out that both defendants owned the premises; we regard that objection as of no weight, as § 4 of the mechanic’s lien law provides that the failure to state in the notice of lien the name of the true owner shall not impair the validity of the lien.

A further point is made that the alleged findings were not properly made, and do not comply with the statute. It appears from the printed case that the learned counsel for the plaintiff submitted findings of fact and conclusions of law separately stated, and the learned trial j udge, finding them to be in accord with his decision, signed them at the foot thereof, and ádopted them as his decision. This, in our opinion, was a compliance with the provisions of § 1022 of the Code of Civil Procedure, and was equivalent to a statement of the facts found and the conclusions of law, and it also directed the judgment to be entered thereon. True, .§ 1023 provides that either party “ may submit in writing a statement of the facts which he deems established by the evidence and of the rulings upon questions of law which he desires the court to make,” and it is made the duty of the court to note in the margin the disposition of each proposition ; but that section also provides that “ an omission to do so does not affect the validity of the decision.” We fail to see how the defendants .have been injuriously affected by the failure to literally comply with the provisions of this section. The learned counsel was certainly not in any way misled, for the appeal book shows that he filed exceptions to all of the findings which were not in accord with his views, and to all the conclusions of law so signed by the learned trial judge and constituting his decision. Even if this was not a waiver of any objection to the form of the findings and conclusions submitted by plaintiff’s counsel, he should have applied to the court below for any relief which he deemed necessary to protect any rights of the defendants.

We are accordingly of the opinion that the judgment should be affirmed, with costs.

Clement, Ch. J., concurs.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Frederick Gans, Resp’t, v. Joseph Hughes, App’lt.

      (City Court of Brooklyn, General Term,

      Filed November 23, 1891.)

    Pleading—Joinder of causes of action.
    The complaint in this action alleged that defendant wrongfully entered premises occupied by plaintiff and unlawfully removed and carried away personal property; it also set up three other causes of action for unlawfully entering said premises and interfering with plaintiff’s business on different days. Held, that there was no improper joinder of causes of action; that they were all for trespass.
    Appeal from an interlocutory judgment rendered by this court at a special term thereof on a demurrer to the complaint of the plaintiff.
    The amended complaint states in the first paragraph that the plaintiff is the lessee of certain premises and is entitled to the quiet possession and enjoyment of the same.
    The second paragraph states that the defendant on the 10th day of June “ wrongfully entered the said premises and unlawfully and against plaintiff’s will removed and carried away a portion of the fixtures belonging to the said store to the damage and '-inconvenience of the plaintiff, and to the detriment of his business as a baker.”
    The third, fourth and fifth paragraphs set forth four separate and distinct trespasses, consisting of wrongful entry and detainer, at as many distinct and separate times, viz.: December 16th, December 18th, December 20th and January 3d.

      Julius Klamke, for resp’t; Magner & Hughes, for app’lt.
   Van Wyck, J.

This is an appeal from an interlocutory judgment in favor of plaintiff on a demurrer interposed by the de-’ fendant.

The defendant demurred on two grounds: First. That the facts stated did not constitute a cause of action. This was abandoned for it had no foundation in law. The defendant presses the second ground of demurrer, that causes of action were improperly united, in that paragraph two of the complaint sets up a cause of action for damages for injuries to personal property, while in paragraphs three, four and five thereof three causes of action arising at different times are set up for trespass upon the same premises. We think the defendant’s construction of paragraph two of the complaint is erroneous. It is plain that the pleader has in one form in that paragraph set up a cause of action for trespass upon land and pleaded special damages for injuries to fixtures done by the trespass. Such damages are recoverable in an action for trespass upon land. Sedgwick on Damages, 8th ed., §§ 943, 944.

There is no contention that four causes of action for trespass upon the same premises by the defendant at different times can not be united in the same action under Code Civ. Pro., § 484.

Judgment must be affirmed, with costs.

Clement, Ch. J., concurs.


author: Earl, J.

text:
    Margaret O’Neill, Resp’t, v. The Dry Dock, East Broadway & Battery Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Negligence—Evidence—Expert.
    While jurors are generally well acquainted with such common things as trucks and horses, yet it cannot be said that an expert witness who has had large experience as an owner, driver and manager of trucks, and well acquainted with the locality, did not know more about the distance within which a truck, under circumstances stated, could be stopped, than ordinary jurors, and a judgment will not be reversed because the judge allowed such a question to be answered.
    2. Same—Street railroads—Right oe way.
    In the case of a railway crossing a street neither the car nor the vehicle upon the street has a superior right to the other. The right of each must be exercised with due regard to the right of the other.
    3. Trial—Requests to charge.
    Counsel cannot ask as a right unreasonably to prolong a trial by innumerable and interminable requests to charge.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered on verdict of jury and order denying motion for new trial.

      John M. Scribner and Jacob F. Miller, for app’lts; G. Washburne Smith, for resp’t.

       Affirming 86 St. Rep., 934.

   Earl, J.

In July, 1889, while the plaintiff was a passenger in one of the cars of the defendant corporation, she was injured in a collision between the car and a truck of the other defendant, and she brought this action to recover damages for her injuries, alleging that they were caused by the concurring negligence of both defendants.

It is not important now to detail the circumstances attending the injury of the plaintiff. A careful scrutiny of the evidence leaves no doubt upon our minds that it fairly tended to show concurring negligence of both defendants, and the verdict of the jury, approved by the general term, therefore concludes us. Hence we have only to considér whether any exceptions taken by the defendants, or either of them, upon the trial, point out error.

The collision causing the injury of the plaintiff took place while the car was crossing and the truck was going up Broadway. The claim of the plaintiff and of the railroad company was that the driver of the truck was negligent because he did not keep the truck out of the way of the car, and drove the truck with its load against the car. Upon the trial a witness was called for the railroad company of large experience as an owner, driver and manager of trucks, and well acquainted with the locality where the collision occurred, and he was asked this question : “ Suppose a truck weighing nineteen hundred pounds or thereabouts, carrying a load of thirty-six hundred pounds or thereabouts, and drawn by a horse weighing twelve to thirteen hundred pounds or thereabouts, and that the horse and truck were being driven up Broadway, and were at the time within one hundred feet south of Walker street, driving north, with the horse on a walk, and the horse being a gentle and tractable animal under full control at the time, within what distance could such a truck, under such circumstances, be stopped, the pavement being wet by sprinkling carts?”

This was objected to on behalf of the defendant Westing as “incompetent, and that it is not a question for an expert,” and the objection was overruled, and the witness answered “between three and four feet.” This belongs to a class of questions not much to be encouraged. The answer to such a question can be of but little service to jurors. They are generally well acquainted with such common things as trucks and horses, and the power, action and capacity of horses which, particularly in the city of ¡New York, are constantly open to observation. Yet we cannot say that the expert witness did not know more about the subject of inquiry than ordinary jurors can generally be supposed to know. The question is barely competent, and probably was not harmful; and the judgment should not, therefore, be reversed because the judge allowed it to be answered.

The counsel for the railroad company, in a variety of forms, requested the court to charge that the railroad company with its car crossing the street had the right of way and the paramount and superior right in the street which the driver of the truck was bound to respect, and he refused so to charge, and this refusal is now complained of as error. The rule invoked by these requests has its application where the tracks of street railways are laid in the streets. As the cars must run upon the tracks and cannot turn out for vehicles drawn by horses they must have the preference, and such vehicles must, as they can, in a reasonable manner, keep off from the railroad tracks so as to permit the free and unobstructed passage of the cars. In no other way can street railways be operated. As to such vehicles the railways have the paramount right, to be exercised in a reasonable and prudent manner. But a railway crossing a street stands upon a different footing. The car has the right to cross and must cross the street, and the vehicle has the right to cross and must cross the railroad track. ¡Neither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.

After the judge had charged the jury, the counsel for the defendant, Westing, was proceeding to ask the judge to charge some request, and the judge said to him that he declined to receive any more requests from him, and to this the counsel excepted, and he now claims that his client’s rights were erroneously abridged. In Chapman v. McCormick, 86 N. Y., 479, we held that it is the legal right of counsel on the trial of an action to submit propositions bearing upon the action, and that it is the duty of the court to instruct the jury on each proposition, and that a denial of such right is the subject of exception and of review upon appeal. But the facts of this case do not bring it within the rule there laid dowm nor within the reasons which induced the decision in that case. Here, before the judge commenced his charge, the counsel for the respective parties handed up to him requests to charge, and he either charged or refused to charge such requests. After the judge had finished his charge and passed upon the requests to charge, the counsel for defendant Westing made a further request to charge, when the judge asked him if he had “ anything else ? ” He replied: “ That is all I wish for that.” The judge then said Go on,” and then he made another request and the judge charged as to the request in a manner satisfactory to him, and. he then apparently took his seat. The counsel for the railroad company then made a request to charge, which the judge acceded to. Then the counsel for Westing again arose and proceeded to make a further request, which the court declined to hear or receive. Here the judge did not abuse his discretion. His refusal to hear or receive the further request was not arbitrary. He had fully and fairly laid down the law applicable to the facts of the case. The counsel for the defendant Westing had had full opportunity to make his requests and had made them so far as he deemed important, both before and after the charge was made, and whether after that he should be permitted to prolong the trial and still further vex the judge with requests, rested in his discretion. The counsel of a party cannot ask as a right unreasonably to prolong a trial, by the examination of witnesses or by debates to the court or the jury, or by innumerable or interminable requests to charge. In these matters the judge has some discretion, to be exercised in the interest of justice and with a due regard to the rights and interests of the parties. A party has the right to a reasonable opportunity to present his evidence, objections and requests, and after he has had that he cannot complain of reasonable restrictions and limitations put upon the exercise of his right by the judge in the fair use of the discretion which he undoubtedly possesses.

There are various other exceptions in the case, to some of which our attention has also been called. But they point out no error and need no further attention here.

The judgment should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    Edwin Young, Resp’t, v. The Rondout & Kingston Gas Co., App’lt.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Injunction—Dissolution op.
    To dissolve an injunction with the inevitable result of defeating plaintiff’s remedy without a trial, the court must be entirely satisfied that the case is one in which by settled adjudication the plaintiff upon the facts stated is not entitled to final relief.
    2. Same—Laws 1884, chap. 367—“Business op a similar nature.”
    Where plaintiff, a stockholder, has brought an action to restrain a gaslight company from consolidating with an electric light company, on the ground that the proposed consolidation was unlawful and would be ruin-pus to the former, and an injunction pendente lite has been granted, it will not he dissolved on the ground that the corporations are so similar as to come within the provisions of chapter 367, Laws 1884. It is a question fairly open to discussion.
    Appeal from judgment of the supreme court, general term/ third department, affirming order of special term granting injunction restraining defendant from consolidating with the Kingston Electric Light, Heat & Power Company until further order.

      Linson & Van Buren, for resp’t; Putney & Bishop, for app’lt.

       Affirming 39 St. Rep., 602.

   Finch, J.

The doctrine recently declared in Hudson River Telephone Co. v. Watervliet T. & R. R. Co., 121 N.Y., 397; 31 St. Rep., 524, seems to us decisive of this appeal. To dissolve an injunction with the inevitable result of defeating plaintiff’s remedy without a trial we must be entirely satisfied that the case is one in which by settled adjudication the plaintiff upon the facts stated is not entitled to final relief. We cannot say that of this plaintiff’s complaint in advance of a trial.

The grievance alleged and sought to be prevented is a proposed consolidation of two companies which it is claimed will be ruinous to the stockholders of one. And the grounds of resistance alleged are that the two corporations are not so similar as to come within the legislative provision, that the act itself is permissive merely and does not exclude the interference of the court to prevent a wrong and injustice, and that the law of 1884 is in some of its features unconstitutional.

These are grave and serious questions. On this motion we ought not to decide them. Whether the gas company and the electric light company are “ similar ” within the meaning of the statute, when their modes of operation are different, and one is organized not merely to supply light but to manufacture and sell the apparatus for that purpose, is a question fairly open to discussion ; and the other questions are too debatable to be decided on this motion.

The appeal should, therefore, be dismissed, with costs.

All concur.


author: Andrews, J.

text:
    James P. Kernochan, Individually and as Ex’r, et al., Resp’ts, v The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed, December 1, 1891.)

    1. Railroads—Elevated—Damages by erection oe—Lessor and lessee.
    The lessor in alease, made after the construction of an elevated railroad, of premises abutting thereon, can maintain an action for damages for the loss of rents occasioned thereby. Where the lease was made prior to the construction of the road, the lessee is the proper party to maintain an action for damages.
    2. Same.
    Upon the death of a lessor intestate, or having devised the land, the right to damages accruing from his death to the termination of the lease goes with the title to heirs or devisees, as the case may be, and not to his administrator.

      3. Evidence—Expert.
    The general objection, of incompetency to a question put to an expert asking his opinion as to what would have been the value of the property had the railroad not been built, does not raise the point that the opinion of the witness was inadmissible.
    (Earl, J., dissents.)
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff, entered upon conclusion and finding made by judge at special term.

      Samuel Blythe Rogers, for app’lts; G. Willett Van Nest, for resp’ts.

       Affirming 36 St. Rep., 434.

   Andrews, J.

This case and several others now awaiting decision present the question whether the owner of premises in the city of New York who, after the construction of the elevated railroad in the street upon which the premises abutted, leased them for a term of years, can maintain an action for damages for the impairment of easements in the street appurtenant to his premises by the existence and maintenance of the road, suffered during the period in which the premises were in the actual occupation of tenants under the lease, or whether the right of action is in the lessee.

The case presents the further question whether, upon the death of the lessor intestate, the right to damages accruing from his death to the termination of the lease is vested in his administrators or belongs to his heirs, who, upon his death, succeeded to his title to the land. There is a further question of evidence to which reference will be made.

The question as to the respective rights of lessor and lessee, under the circumstances stated, has occasioned considerable controversy, and has been argued in several of the cases before us with much ability, and this question will be first considered.

The proposition that the structure of the elevated railroad invades property rights of owners of abutting property is no longer an open question. It is generally, if not universally, true that the structure is located in streets the fee of which is in the city of New York. The building and operating of the road involves no actual entry upon the lands of the abutting owners, nor any injury to any corporeal hereditaments. The act of the defendant was not therefore a trespass upon land of another, as that injury is defined in the common law. It has been usual in these cases to denominate the injury to abutting owners a trespass. Every invasion of another’s rights is such in a general sense, and in this general sense the word has been used as a convenient term to characterize the wrong committed. But the attempt to fasten upon this use an implication that the injury was one to the immediate occupier of the property, viz., to the tenant rather than to the landlord, has no justification.

In the Story case the court, in speaking of the right of an abutting owner in the public street, said: “ The right thus secured was an incorporeal hereditament; it became at once an appurtenant to the lot and formed an integral part of the estate in it. It follows the estate and constitutes a perpetual incumbrance upon the estate burdened with it. ¡From the moment it attached the-lot became the dominant and the open way or street the servient tenement.” The invasion of this incorporeal right by the structure of the elevated road is the gravamen of this and similar actions, and such an injury, although not a trespass upon land, has, throughout the course of common law, been remediable by an action for damages, technically known as an action of trespass on the case.

It is a fundamental proposition that only the party injured by a wrongful act can maintain an action for damages. There may be difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons, or to separate- and distinct interests in the same property. But, we repeat, he only is entitled to maintain an action who can show that his right has been invaded, and to such person or persons only is the wrongdoer bound to make compensation. The owner of real property, so long as he is in .possession and has not leased or created any subordinate interest in the land, plainly is the only person who has been injured by the construction and maintenance of the elevated railway. His easements, appurtenant to the land, have been invaded by the structure constituting an injury to the inheritance, as distinguished from a mere temporary and casual wrong or trespass, not affecting the permanent value or use of the premises. It is true that the wrong is not permanent in the sense that it is irremediable. The structure may be voluntarily removed, or its removal may be compelled on the application of abutting owners and past damages may be recovered. Until the company shall have acquired by condemnation proceedings or voluntary cession the rights of abutting owners, the ordinary legal and equitable remedies are open to them.

It is found as a fact that the defendants proclaim their intention to continue to maintain and operate the railroad, and this is a necessary inference from the situation. The character and purpose of the structure, the corporate powers and obligations of the defendants, the large amount expended in the enterprise, the right of condemnation given by the statutes, are conclusive not only that the defendants intend permanently to operate the road, but also of the fact that when forced so to do they will acquire the legal right as against all parties in interest. That under these circumstances the construction and operation of the road before any consummated right has been acquired by the defendants, whereby the owner of abutting property is deprived of the full enjoyment of his property, constitutes an injury to the inheritance, admits, we think, of no doubt.

In the present case the owner of the lot did not retain the full and absolute dominion, but carved out of the fee a term of years. But by so doing he did not divest himself of his inheritance. He still had an inheritance in the land, technically a reversion. His prior absolute and unqualified estate was divided into two estates, one in the termor, the nature and quality of which is determined by the lease, and the other in himself. In determining whether the lessee acquired by his lease the right to recover damages inflicted upon the property by the road during the term, the situation at the time the lease was executed, the terms of the instrument and the intention of the parties thereto, are to be considered. The first and most obvious consideration is that the lease was of the lot, and that when made the incorporeal and appurtenant easements in the street to the extent that they had been taken or invaded by the elevated railroad, had been practically severed, though by wrong, from the abutting property. The part so taken away was not enjoyed in connection with the premises leased when the lease was executed. But still more material is the fact that, the rent reserved in the lease was for the use of the lot in its actual situation. This is not stated in terms, but there can be no other reasonable inference. The road was then in the street, and was intended to be a permanent structure. It would be an unnatural and violent presumption that the lessor intended to exact, or that the lessee intended to pay, rent measured by the value of the use of the premises without the railroad, on the supposition that it would be removed during the term.

On the contrary, it is undoubtedly true that the rent reserved in leases like this represents in the minds of the parties the value of the use of the premises incumbered by the disadvantages of the railroad. The rent is diminished to the extent of the estimated injury to the rental value of the premises from this cause. In no other view practically could property built upon, and especially business property, be rented at all. Lessees usually desire leases of such property for a considerable period. The owner could not ordinarily rent from day to day, or week to week. The loss falls upon the lessor, and the continuance of the wrong during the term imposes no pecuniary loss upon the lessee. To hold that the right of action vests in the lessee, or to divide the claim between the owners of the two estates, would be contrary to justice and to the presumed intention of the parties.

There are many cases illustrating the principle before adverted to, that the same wrongful act may affect distinct interests in the same property, and give a separate action to the' several owners. It was held as long ago as the case of Bedingfield v. Onslow, 3 Lev., 209, that lessee and reversioner may each have an action for an injury resulting from the same wrong, each with respect of his particular estate. A reversioner, however, who by his lease has vested the immediate right of possession of the property in the lessee, sustains no legal injury from mere temporary or casual trespasses on the land. Such wrongs affect the possession merely, and are to be redressed at the suit of the tenant. But the construction of the elevated railroad in the street without having acquired the easements of an abutting owner, if it has diminished the rental value of the property, is a wrong which, within the authorities, affects the inheritance, and gives the reversioner a right of action. He has been compelled to accept smaller compensation for the use of his property than he otherwise would have re•ceived, and to that extent has been deprived of its beneficial enjoyment. He has no absolute remedy to compel the removal ■of the structure, since the right of condemnation can at any time be exercised by the defendants.

It has been held that an action lies by a reversioner for a wrongful obstruction of lights of his houses; for a permanent obstruction in the adjacent street; for obstructing a private way .appurtenant to his premises; for preventing the access of tenants to a wharf, and for fouling a stream passing his lands upon which •dye works had been erected. Jesser v. Gifford, 4 Burr., 2141; Leader v. Moxon, 3 Wils., 461; Bedingfield v. Onslow, supra; Clowes v. Staffordshire Potteries, L. R., 8 Ch. App., 125 ; Kidgill v. Moor, 9 C. B., 364; Bell v. Midland Railway Co., 10 C. B. (N. S.), 287; see Mott v. Shoolbred, L. R., 20 Eq., 22; Addison on Torts, 139.

It is obvious, we think, within the authorities, that the lessor in a lease made after the construction of the elevated railroad, of premises abutting thereon, can maintain an action for damages for the loss of rents occasioned thereby. The principle that diminished rental value is a basis for awarding damages, has been frequently recognized in these and similar cases. Francis v. Schoellkopf, 53 N. Y., 152 ; Tallman case 121 id., 119; 30 St. Rep., 491; Drucker case, 106 N. Y., 157; 8 St. Rep., 599; Hussner case, 114 N. Y., 433 ; 23 St. Rep., 856; Lawrence case, 126 N. Y., 483 ; 37 St. Rep., 834.

It is also a necessary deduction from the circumstances attending the making of ordinary leases of improved property, executed after the construction of the elevated railroad, that the right to recover damages is vested exclusively in the lessor. The circumstances and situation forbid the inference that the parties acted upon the presumption that the road would be removed or abandoned during the term; on the contrary, they act upon the presumption that the wrong will .be continued and the rent reserved is fixed upon this assumption.

Baker v. Sanderson, 3 Pick, 348, was an action by a reversioner for damages for obstructing the plaintiff’s mills, and it was alleged in the declaration "that in consequence of the obstruction tenants had threatened to quit, and the plaintiff was constrained to make •a reduction in rents. The court held that the declaration disclosed a good cause of action, and that a recovery by the plaintiff would be a bar to any action by the tenants for the same obstruction.

In Sumner v. Tileston, 7 Pick, 198, the plaintiff sued the defendants for damages caused to the plaintiff’s mill by the act of the defendant by raising a dam below. During the period for which damages were claimed, the mill for a time was occupied jointly by the plaintiff (the owner) and his son, and for another part of the time by the two sons, and in each period the plaintiff reduced the rent on account of the back water. On the trial one of the sons was called as a witness by the plaintiff, and objection was taken to his competency on the ground of interest, which was overruled. On appeál the court held that the plaintiff was entitied to maintain the action, and on the question of the competency of the son as a witness, Parker, Ch. J., said: “ He paid for the-use of the mill according to the value of -the rent, deducting the obstruction. He can have no action against the defendant for the same reason, viz. : that he is not damnified.”

We should be very reluctant to make a decision which would expose the defendants to a double action in cases like this, and we are satisfied that the cause of action is entire and is solely vested in the lessor. In a case where the lease was made prior to the construction of the road, different considerations would apply. Under such a lease the lessee is the party who would be entitled to maintain the action, for the same reason that we hold the lessor is entitled in the present case, viz.: that he is the. one who suffers-the injury. Other cases may be suggested, as for example, aground lease made either before or after the construction of the road, and the tenant makes erections upon the land, or cases where the lease is for such a long term as practically to amount to a. fee. We will not anticipate what rule may be held in such cases. It is sufficient to say that they are not controlled by the present decision.

This court in the recent case of Pappenheim v. Metropolitan Elevated Railway Co., 40 St. Rep., 445, held that upon an absolute sale in fee of premises on a street through which an elevated railroad is constructed, all right to damages subsequent to the conveyance, by reason of the location and operation of the railway in the street, vests in the grantee.

This conclusion seems incontestable. The easements of an abutting owner, invaded, are appurtenant to his premises, and in the nature of things they are indissolubly annexed thereto until extinguished by release or otherwise. They are incapable of a distinct and separate ownership. The owner of a lot cannot reserve them upon a sale, and they must of necessity pass as. appurtenant to the premises, and with them passes to the purchaser also the right to any remedy for their invasion. In the case of a lease the casements remain annexed to the estate, not dissevered in fact or intention from the inheritance, and whether the general owner alone can assert a claim for damages, or whether both lessor and lessee have an action, will depend on the intention and the circumstances. The holding that, the vendee acquires the right to all remedies for the future invasion of the easements, accomplishes substantial justice. Both the vendor and vendee know that the owner of the land, as such, can compel the removal of the road from the street, or as an alternative that the company must institute proceedings for condemnation. Hnder such circumstances, the price obtained or given for the property would not ordinarily be regulated on the assumption that the wrong is to continue unredressed or without compensation, but would naturally represent approximately the value of the land as if no road had been built, or, what would be-substantially the same thing, the value of the lot in its existing situation, supplemented by the value of the right which passes to the grantee with the conveyance to recover future damages, or in case of condemnation to receive full compensation for the easements taken.

In case of leases, especially leases for short terms, neither party expects that the wrong will be promptly righted, and in practice as well as theory the 'rent reserved represents the impaired value of the use. Both the rule declared in the Pappenheim case and in this operate, as near as may be, to vest the right to compensation in the party who sustains the loss.

As to the second question, we entertain no doubt that on the death of the lessor, intestate or having devised the land, the right to damages from the death of the decedent thereafter suffered goes with the title to his heirs or devisees, as the case may be. The lessor in his lifetime never had any claim to recover such damages, and his administrator or executor can have none. It might happen that no future damages would accrue.

Upon the road being discontinued or the structure removed, the liability of the company, except for past damages, would -cease, and the owner, who had leased his premises for a term of years at a diminished rent, upon the assumption that the road was to continue, would find himself in the position of having let his premises for what for the unexpired term might be an inadequate compensation, but this we conceive would entitle him to no remedy against the company. Such damages would not be regarded as flowing from the original wrong. While the wrong continues, the true principle is, we think, that, as between lessor and heir or devisee, the right to damages accruing subsequent to the devolution of the title of the lessor vests in those who have succeeded thereto. They sustain the injury, and not the decedent or his estate. As owners of the reversion they are entitled to the rents accruing from the decedent’s death, and if they are inadequate, and this is attributable to the wrong of the defendants, it is an injury to the reversion, and the reversioners at the time .are the persons entitled to maintain the action.

The question of evidence arises on an exception to a question . put to an expert witness for the plaintiff similar to that recently considered in the Roberts case, the allowance of which in that -case was held to be error. The objection there was specifically taken that the question involved a fact not provable by opinion. Here there was only a general objection on the ground of incompetency. We have been inclined to hold, in view of the course of trials in these cases against the elevated railway, that although the general objection of incompetency made to a question put to an expert asking his opinion might be deemed in ordinary cases sufficiently specific, nevertheless to apply that rule in these cases would be unjust, because the objection considered in connection with the course taken on these trials would not fairly lead the court or counsel to suppose that the objection was aimed at the mode of proof, but rather to the competency of the fact sought to be proved. We think we should follow the instruction on the subject in the McGean case, 117 N. Y., 219; 27 St. Rep., 337, and hold that the objection did not raise the point that the opinion of the witness was inadmissible.

These considerations lead, to an affirmance of the judgment.

All concur, except Earl, J., dissenting.


author: Gray, J.

text:
    Charles S. Hine, Resp't, v. The New York Elevated Railroad Co., App’lt.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Railroad-Elevated—Damage to bental value.
    Upon the trial of an action hy the owner for damages to his premises, caused by the building of an elevated railroad, the court refused to rule “that if the jury should find that the premises were in the possession of tenants, at any or all times during the period subsequent to the construction of the railroad and prior to the commencement of the action, then they must award no damages for such period." Held, no error,
    2. Same.
    The owner of the property has his remedy for the injury done to the inheritance by a trespasser; and the tenant has his remedy for any injury done to the possession.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff entered upon the verdict of a j ury.

      Julien T. Davies and Brainard Tolles, for app’lt; William H. Arnoux, for resp’t.

       Affirming 37 St. Rep., 606.

   Gray, J.

The action was at law, and was brought to recover damages for injuries sustained by the plaintiff by reason of the maintenance and operation of the defendant’s elevated railroad in front of premises on the Bowery, in Hew York city. The period for which these damages were claimed was from May, 1878, to the commencement of the action, in September, 1880. The defendant’s use of the street commenced about the time when new leases of the building were made by the plaintiff and the rentals reserved were less than had been obtained previously. The plaintiff not having been in possession of the premises, the point made by the appellant is that it was error to permit any recovery by him.

This point is claimed to have been raised by several exceptions; but it was not distinctly presented nor raised during the trial; nor until, upon the submission of the case to the jury, the court was requested to rule that if the jury should find that the premises were in the possession of tenants at any or all times during the period subsequent to the construction of the railroad and prior to the commencement of the action, then they must award no damages for such period.

Upon the trial no objection was taken to the admission of evidence as to the plaintiff’s damage resulting from a diminished rental value, upon any ground suggesting the point argued. The evidence was principally adduced to prove the difference in the rental value of the premises previous and subsequent to the construction of the road, and it was upon that basis that the plaintiff’s recovery rested. But, assuming that. the question was fairly and competently raised upon the trial, through such a request to charge, we think there was no error in the ruling of the trial judge.

The plaintiff sued for past damages, and proved that such had actually been sustained in a diminished rental value, and from causes connected with the existence of this railroad. The action was not based upon any theory of the continuing nature of the trespass; nor was the recovery predicated upon any anticipation of its continuance. It was for damages actually suffered in the past. So that the defendant’s case resolves itself into the mere proposition that a lessor, or landlord, who has sustained a damage to his property in the past from the defendant’s tortious acts, is without remedy, or right of action, if he was not in the physical possession of the premises. If this proposition is true, it operates to deprive the owner of the property of his right to recover for a damage inflicted by the defendant; and, as the element of damage is in the diminished rental value, and of course is peculiar to the owner of the property, the defendant would go free and relieved of the obligation to make compensation for a loss actually caused by it. This is abhorrent to the judgment. The wrong complained of, and for which a recovery has been had, was one committed upon the owner’s rights, and not affecting the occupants of the premises. If the tenants had a cause of action against the defendant for some injury to their rights to the enjoyment of the possession of the premises accruing after the leasing, it would be quite different from the landlord’s. There is no principle of law that I am aware of which limits the number of actions which may be brought against a wrongdoer by those persons who have suffered from his acts. The owner of the property has his remedy for the injury done to the inheritance by a trespasser; as the tenant has his remedy for any. injury done to the possession. In either case it is a matter of proof as to the damage sustained by the particular complainant; and neither litigant is the representative of the other in an action of trespass.

In Francis v. Schoellkopf 58 N. Y., 152, which was an action of damages, growing out of a neighboring nuisance, brought by the owner of the property, her right of recovery was limited to the loss of rents and to the diminution of rent when a tenant was obtained. She was not permitted to recover for the injury done to the tenants while occupying the property. This marks the just distinction in the respective rights of recovery of landlord and tenant.

The appellant makes an elaborate argument upon the theory that as the effect of a conveyance would be to vest a purchaser of the property with the right of action against the defendant and to divest the seller, notwithstanding the sale was kt a diminished price, the same principle should be made to apply to the case of the lessor and lessee of property. We have had occasion to pass upon the question which this proposition raises in the Kernochan case, decided at the present term, and the discussion there renders it unnecessary to say anything- here.

The judgment should be affirmed, with costs.

All concur, except Earl, J., not voting.


author: Per Curiam.

text:
    George E. Sterry, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Railroads—Elevated—Damages.
    One who purchases premises after the construction of an elevated railroad is entitled to damages to the fee on account of the maintenance and operation of the railroad.
    2. Same—Landlord and tenant.
    The landlord is entitled to rental damages to premises in the possession of his tenants under a lease made after the construction of the railroad.
    Appeal from judgment of the New York common pleas, general term, affirming judgment for plaintiff entered on referee’s report.

      Julien T. Davies and J. C. Thomson, for app’lts; John A. Weekes, Jr., and Henry A. Forster, for resp’t.

       Affirming 36 St. Rep., 1023

   Per Curiam.

The plaintiff purchased the premises in question in 1886, several years after the construction of the railroad, and hence the defendants claim that he is not entitled to any fee damage on account of the maintenance and operation of the railroad. Our decision in Pappenheim v. Metropolitan El. R. Co., 128 N. Y., 436; 40 St. Rep., 445, is an answer to this claim.

The defendants further claim that the plaintiff was not entitled to any rental damage, because the premises were in the possession of his tenants. To this claim our decision in Kernochan v. N. Y. El. R. R. Co., 128 N. Y., 559; 41 St. Rep., 110, is an answer.

The judgment should be affirmed, with costs.

All concur, except Earl, J., not voting.


author: O’Brien, J.

text:
    Peter Kearney, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Railroads—Elevated—Damage to easement—Ground lease.
    In 1863 H., the owner of land on Sixth avenue in New York city, leased it to S. for twenty-one years, with a stipulation that if S. erected a three-story dwelling thereon H. would at the expiration of the term either buy it or grant a new lease for twenty-one years more, and that at the expiration of the lease S., or his assigns, might remove the building. In 1866 S. assigned the lease to plaintiff, and in 1884 H. gave plaintiff a new lease for ten years, in which reference was made to the former lease, etc., and the same conditions made as to purchase and removal of the building. Defendant's road was bui.t in 1878, and this action brought in 1888. Held, that plaintiff was for all the purposes of the action the absolute owner of the building from 1866 and entitled to recover such sum as represented its diminished rental value in consequence of the construction, maintenance and operation of defendant’s railroad.
    2. Same.
    Plaintiff could also recover such permanent injury as he sustained by the appropriation by defendants of such easements as were taken and were appurtenant to the house and a part of it.

      3. Same—Landlord and tenant.
    The landlord is entitled to rental damages to premises in the possession of his tenants under a lease made after the construction of an elevated • railroad.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered upon conclusions and findings at special term.

      Brainard Tolles, for app’lts; G. Willett Van Nest, for resp’t.

       Affirming 37 St. Rep., 892.

   O’Brien, J.

The judgment in this case contains an injunction restraining the defendants from the continued maintenance and operation of their elevated railway in front of the plaintiff’s premises, No. 738 Sixth avenue, in the city of New York, unless, within the time fixed therein, the defendants pay to the plaintiff the sum of $525, as the price of so much of the plaintiff’s easements, or other property appurtenant to his said premises, as is taken, appropriated or otherwise interfered with by the maintenance and operation of the railway. The judgment also awards to the plaintiff the sum of $1,062, for the injuries to his property sustained during the six years preceding the commencement of the action, with the interest thereon. The questions involved in this appeal are in respect to the plaintiff’s interest in the property. The building is a four-story, brown stone front, the second above Forty-second street, the first story being used as a store and the apartments above fitted up for dwellings. One of the passenger platforms of defendants’ stations extends across the entire front of the building. The nature of the plaintiff’s interest appears from the following facts found by the trial court: On the 1st of May, 1863, Grlovina R. Hoffman, who was then the owner of the land, executed and delivered to one John 0. Sares a lease in writing and under seal, in which her husband joined, whereby she demised to Sares the premises, which it seems then consisted of a vacant lot only, for the term of twenty-one years from that date, at the yearly rent of $250 per year, besides all taxes and assessments.

xThe lease, also, contained numerous conditions and covenants, none of which need. be referred to except the following: It was stipulated that if during the term the lessee should erect upon the lot a dwelling three stories or more in height above the basement, and constructed of brick or stone, the lessor would, at the expiration of the term, either pay to the lessee the just and full value of the house at the time, such value to be ascertained according to a method prescribed in the instrument, or grant a new lease to the tenant or his assigns for a further term of twenty-one years, at a yearly rent to be ascertained as therein provided for. The lease also provided for other renewals thereof, or the purchase of the building, at the option of the lessor, and also that at the final termination of the lease the lessee or his assigns might remove the building on certain conditions if the landlord did not elect to purchase. In March, 1866, the house in question having been then erected, Sares assigned the lease, with all its benefits and obligations, to the plaintiff for the consideration of $8,000. The plaintiff took possession of the premises at the date of the assignment of the lease to him, and has been in possession ever since, either as occupant or landlord. On May 1,'1884, upon the expiration of the lease above described, Mrs. Hoffman, the owner of the ground, executed and delivered to the plaintiff a new lease in which reference is made to the former lease to Sares, the assignment thereof to plaintiff, the expiration of the first term and its surrender to the lessor, and then proceeds to demise the premises to the plaintiff for a first term of ten years, at a yearly rent of $900, with provisions for four renewals of the term of ten years each. It contained the same provisions as the first lease concerning the payment of rent, taxes and "assessments, the mode in which the rental upon any renewal was to be ascertained and the purchase or removal of the building. The construction of defendants’ railway in front of the premises was commenced in January and completed in June, 1878, and this action was commenced October 5,1888. The plaintiff’s title and right of possession must date from the assignment of the lease to him by Sares in 1866. The lessor under the first lease upon the expiration of twenty-one years, in 1884, instead of pm-chasing the building, as she might, elected to grant to the plaintiff a new lease.

The provisiots in the two leases are so connected that the plaintiff’s title when he brought this action must be held to be continuous since 1866, and that the price paid by plaintiff was with reference to the situation then existing. But two points have been argued by the defendants upon this appeal:

1. That as plaintiff took a lease of the premises in 1884, after the construction of defendants’ road, he has no right to substantial damages or an equitable remedy.

2. That the plaintiff cannot recover damages for the period during which the premises were leased by him to tenants.

The first point ignores the fact already pointed out that plaintiff’s title accrued in 1866, and before the construction of the road. The lease of 1884 cannot be deemed a new or voluntary arrangement but a continuation of the lease of 1863, which the plaintiff may have been obliged to enter into in order to preserve liis existing rights. The plaintiff’s rights under the lease of 1884 are but an extension of the rights acquired under the lease of 1863. Ho was, for all the'purposes of this case, the absolute owner of the building since 1866, and we perceive no reason why he was not entitled to recover such sum as represented its diminished rental value, in consequence of the construction, maintenance and operation of the defendants’ railroad. This is not the case of a tenant under a lease made after the road was built, suing for an injury to his possession, but an owner under title acquired before that time seeking to recover for loss of rents. As such owner of the building he could also recover such permanent injury as he sustained by the appropriation by the defendants of such easements as were taken and were appurtenant to the house and a part of it. The trial court found that for more than half the period prior to the commencement of the action for which the rental damage was recovered the premises were in the possession and occupancy of tenants under the plaintiff. The defendants' counsel insists here, as he did in the court below, that no damage should be allowed for this period, as the injury, if any, was inflicted upon the tenant. Since the argument that point has been determined against the defendants in another case. That decision must control the disposition to be made of this case, and we will not attempt to add anything to the reasoning by which the result was reached. Kernochan v. N. Y. El. R. R. Co., 41 St. Rep., 110.

The judgment should, therefore, be affirmed, with costs.

All concur, except Earl, J., not voting.


text:
    William Y. Mortimer et al., Ex’rs and Trustees, Resp’ts, v. The Metropolitan El. Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Railboads—Elevated—Damage to easement—Rental value.
    An owner of real estate may recover damages for the injury to its rental value while the property was in the actual possession of tenants under a lease from such owner made after the construction of the elevated railroad complained of.
    2. Same.
    Plaintiff’s intestate was the owner of the property in question from 1858 to the time of his death, 1882. He leased it to G. in 1880 for a term expiring 1885. This action was begun in 1886 and damages demanded from 1882. Held, that while it may be true that a devisee in a certain general sense is a purchaser, the plaintiffs, who were trustees for certain designated beneficiaries in respect to this property, represented all the rights that their testator could assert against defendant before his death.-
    3. Evidence—Expebt testimony.
    On the trial plaintiffs’ counsel asked an expert witness, “ To what ex" tent, in your judgment, was the rental value 'of the property diminished by the structure and the passing of trains; how much per year? ” Counsel for defendant objected to the question as “improper, irrelevant and immaterial, as assuming that the property has been injured in that way, and as requiring the witness to separate such injury from that due to other causes.” Held, that the real objection to the question was that it sought to substitute the opinion of the witness for the judgment of the jury, and that this idea was not fairly embraced in the objection.
    Appeal from judgment of the ¡New York superior court, general term, affirming judgment for plaintiff, entered upon a verdict of a jury, and order denying new trial.

      Brainard Tolles, for app’lts; John E. Parsons, for resp’ts.

       Affirming 37 St. Rep., 970.

   O’Brien, J.

The plaintiffs’ recovery in this case was for damages sustained in the depreciation of the rental value of certain real estate situated at the corner of the Bowery and Division street in the city of ¡New York, caused, as is alleged, by the construction, maintenance and operation of the defendant’s railroad. The plaintiffs’ intestate, Richard Mortimer, was the owner of the property since the year 1858, to the time of his death, May 80, 1882. On the 5th of May, 1880, he leased the property to one Gregg, for a term expiring May 1, 1885, so that at the time of his death this lease had nearly three years to run. This action was commenced July 28, 1886, and damages were demanded in the complaint only from the death of the plaintiffs’ testator. Under the instructions of the court, the jury assessed the damages in two separate sums, namely: From June 1, 1882, to May 1, 1885, the period, after Richard Mortimer’s death, covered by the lease to Gregg, $14,653.80, and from May 1, 1885, to the commencement of the action, July 28, 1886, $5,875.20. The trial court, upon defendant’s motion, set aside the verdict for damages from June 1, 1882, to May 1, 1885. Both parties having appealed to the general term, the order setting aside the portion of the verdict above described, was reversed, and the balance of the verdict was, on defendants’ appeal, affirmed. The defendants appeals to this court from the judgment entered on the verdict as affirmed by the general term and also from the order reversing the special term in reducing the verdict. The principal question raised by the appeals is the right of an owner of real estate to recover damages for an injury, such as was proven and found in this case, while the property was in the actual possession of tenants under a lease from such owner. Our decision at this term in the case of Kernochan v. The N. Y. Elevated R. R., 128 N. Y., 559; 41 St. Rep., 110, disposes of that question conclusively against the defendant’s contention, and it is only necessary to notice some minor points argued by the defendant. The will of Eichard Mortimer devised the real estate in question to the plaintiffs, as executors and trustees, upon certain specified trusts for the benefit of his children. It is contended in behalf of the defendant that the plaintiffs stand in the position of purchasers of the property after the road was put into operation. If this view of the plaintiffs’ relations to the property was correct, I am unable to see how it would affect the defendant’s liability, since the recent decision of this court in the Pappenheim case, 128 N. Y., 436; 41 St. Rep., 445. But while it may be true that a devisee in a certain general sense is a purchaser, it would be more correct to say that the plaintiffs, with respect to this property, represented all the rights that their testator could assert against the defendant before his death. There were no negotiations in reference to a purchase, as in other cases where the price paid is fixed with reference to the existing situation and all the burdens and disadvantages that the property is subject to, in consequence of its locality, are considered and enter into the agreement of the parties. The title to the property, devolved upon the plaintiffs under the will and they hold it, not in their own right or for their private purposes, but as trustees for certain designated beneficiaries. It is difficult to suggest any sound reason why the remedy that existed in the lifetime of the testator should be lost or impaired after the property came to the hands of the plaintiffs in trust for his heirs. The amount of damages sustained was a question of fact. The plaintiffs recovered for the diminution in the rental value during the period covered by the complaint. The cases all agree that this element of loss, at least, is recoverable. Tallman v. M. E. R. R. Co., 121 N. Y., 119-124; 30 St. Rep., 491; Drucker v. Manhattan R. Co., 106 N. Y., 157; 8 St. Rep., 599; Pond v. M. E. R. R. Co., 112 N. Y., 186; 20 St. Rep., 479; Lawrence v. M. E. R. R. Co., 126 N.Y., 483; 37 St. Rep., 834: Hussner v. Brooklyn City R. R. Co., 114 N.Y., 433; 23 St. Rep., 856.

On the trial the plaintiffs’ counsel propounded the following question to an expert witness:

“Q. To what extent, in your judgment, was the rental value of the property diminished by the structure and the passing of trains from the period June 1, 1882, down to the commencement of this suit; how much per year ? ”

“ Counsel for the defendant objected to the question as improper, irrelevant and immaterial, as assuming that the property has been injured in that way, and as requiring the witness to separate such injury from that due to other causes. The court overruled the objection, and counsel for the defendant duly excepted.”

The question recently decided by this court in the Roberts case is not raised by this objection. The real objection to this question was that it sought to substitute the opinion of the witness for the judgment of the jury, and this idea is not fairly embraced in the objection. Kernochan v. N. Y. El. R. R. Co., supra.

The judgment and order appealed from should be affirmed, with costs.

All concur, except Earl, J., not voting.


author: Peckham, J.

text:
    Valentine Hammann, App’lt, v. Richard Jordan, Resp’t.

      (Court of Appeals,

      Filed December 1, 1891.)

    1, Party wall.
    A party wall agreement was entered into by which defendant agreed that if he should afterward make use of the wall to be erected by plaintiff he was to pay a certain sum. The latter built the wall and, with defendant’s knowledge, left spaces for 'windows and built in flues overreaching the centre of the wall by two inches. Upon defendant’s commencing to build, some years subsequently, he for the first time claimed that the leaving of the spaces and encroachment of the flue rendered it impossible for him to use the party wall, and refused to pay the amount agreed upon. Held, that as the work was done with defendant’s consent and approbation he could not afterwards set up as a defense the leaving of the spaces for the windows.
    2. Same—Evidence—Flues in tarty walls.
    It is proper to ask an architect in the city of New York whether it was not customary to build party walls with flues in them.
    3. Same—Encroachment in party wall oe flues.
    As to whether the encroachment of two inches over the line in inserting flues in a party wall was such a substantial failure to comply with the agreement that the court could not permit a deduction for the cost of curing the defect and grant judgment for the balance, was upon the evidence a question of fact which should have gone to the jury.

      4. Same—Evidence as to intention.
    It is proper to ask plaintiff whether he intended to have the wall built correctly with regard to the flues.
    Appeal from judgment of the New York superior court, general term, affirming judgment for defendant entered upon a direction of the court at trial term.

      Jacob F. Miller, for app’lt; A. Britton Havens, for resp’t.

       Reversing 36 St. Rep., 423.

   Peckham, J.

The plaintiff and defendant entered into an agreement for a party wall of the length of seventy-eight feet, more or less, between their premises in Charles street in the city of New York. The plaintiff was to build it, and the defendant, agreed that when he made use of it in the erection of any build ing on his premises he would pay plaintiff the sum of $751.16, being one-half the sum to be expended in its erection. The plaintiff built the wall and left some openings for windows therein and put in some flues. The flues, it was contended, overreached the centre of the wall by some two inches. The wall was twelve-inches wide.

As to the windows the plaintiff testified that the defendant saw the wall while plaintiff was building it, and saw the spaces left and which were intended for windows, and asked plaintiff about them. The plaintiff explained to him how he proposed to do the work, and the defendant was satisfied and said, “ If you do that, I having nothing to say.” He raised no objections thereafter until he commenced to build, which was some years subsequent to the completion of the wall, and he now claims that the leaving of the-spaces for the windows and the encroachment of two inches by means of the flues upon the defendant’s side of the wall, left it in such condition that he could not make substantially the same use of the wall that the plaintiff had, and that hence he was not bound to pay the amount stated in the agreement, or any sum . whatever.

If the testimony on the part of the plaintiff be true, we think an answer is made to the objection as to the openings for the windows. These were left with defendant’s consent and approbation, and he cannot afterwards change his mind and claim that the insertion of the windows was a violation of the agreement or that the result was such as to preclude him from substantially the same use of the wall as the plaintiff made.

The only other objection was the two inch encroachment upon defendant’s portion of the wall.

The defendant swore that be was stopped from building on the west or party wall side in consequence of the plaintiff’s flues coming out too far on that side, and that he could not put his beams into the wall opposite the flues without getting into them, and consequently the beams had not sufficient backing. In this he was probably mistaken, for his architect, who was a witness, testified that if he (the architect) had said anything during his testimony whereby he conveyed the impression that because of that space of two inches over the line of defendant he could not put the beams in, he did not wish to be so understood. They could not have put in the beams opposite the flues even if the flues had not encroached the two inches, because the law forbid the placing of beams within one foot of a flue. The architect also said that he could have put a chimney breast opposite the flues, and that as the wall was built, and assuming there had not been this encroachment, they would certainly have been obliged to build out the chimney breast just the same. In truth the defendant built a portion of wall and tied it to the wall in question by anchors, and has thus used it. These chimney breasts would have cost about $128 or $130.

.The plaintiff in this state of the case called an architect, and asked him if it was customary to build flues in party walls. This was objected to, and the court asked the plaintiff’s counsel what he desired to prove, and he said he wanted to show it was a proper thing to put a flue in a party 'wall. The objection was sustained and the plaintiff excepted. We think this was error. There is no rule in this state which requires a wall to be absolutely solid under all circumstances in order to be a party wall. We think it was propel’, therefore, to ask an architect in the city of ¡N"ew York whether it was not customary to build party walls with flues in them. Presumably he was familiar with the manner of erecting such walls in that city when, nothing but a party wall in terms was called for, and if it were a fact that it is customary in building them to put flues therein, their presence in this party wall, in the absence of some agreement to the contrary, would not be a violation of contract on the part of the plaintiff.

It is true that party walls are frequently erected under written agreements, which agreements may provide for flues or openings, or for absolutely solid walls. It is also true that the term “ party wall ” does not yet, as matter of law, and necessarily imply a solid structure, and, therefore, what the general custom is in ¡New York in regard to flues when party walls are erected may be some evidence of the meaning of the term as used in such an agreement as this. We. think it was competent, and should have been admitted. Smith v. Clews, 114 N. Y., 190; 23 St. Rep., 166.

In Fettretch v. Leamy, 9 Bos., 510, 525, the learned judge who there delivered the opinion of the court assumed that evidence that the term “ party wall ” had acquired by usage or custom in the city of New York any peculiar significance would be proper. The Pennsylvania cases cited by counsel are essentially different.

If proper to erect a party wall with flues therein, the next inquiry would be whether the encroachment of two inches already referred to was such a substantial failure to comply with the agreement that the court could not permit a deduction for the cost of curing the defect, and grant judgment for the balance.

Upon the evidence we think this was a question of fact. Even if the testimony were in substance uncontradicted as to the existence of the defect, the cost of curing it and the consequences resulting to the defendant, still in such a case as this we think it was proper to submit to the jury the question upon all the evidence whether there was or was not a Iona fide and substantial compliance with the requirements of the contract. It was not so clear as to make it a question of law. Glacius v. Black, 50 N. Y., 145; Phillip v. Gallant, 62 id., 256. The defect must not have been wilful dr substantial, as the plaintiff should not be permitted to recover where he has wilfully or substantially violated the contract. Glacius v. Black and Phillip v. Gallant, supra.

To show that this encroachment of two inches Was not wilful, the plaintiff was asked when on the stand whether he intended to have the wall built correctly with regard to the flues, and under the objection of the defendant the question was excluded. We think it was proper to ask the plaintiff that question. It covered the inquiry whether he intentionally encroached two inches, or at all, upon the line of the defendant in building the flues, and he should have been permitted to show that he did not.

The defendant urges that the evidence clearly shows the wall could not be used by defendant in substantially the same manner as by the plaintiff, and hence he claims the wall does not fulfill one of the essentials of a party wall, and that he ought not to be compelled to pay any portion of the expense of building it.

Some of defendant’s witnesses did say that the wall was not capable of substantially similar use by both parties. One witness said that there should have been a four inch partition line between the flues in order to give the defendant the same opportunity of using the wall as plaintiff had. If, however, the defendant could obtain such opportunity by the expenditure of the $128 or $130 for a chimney breast, as spoken of by the plaintiff’s witnesses, it would be for the jury to say whether that would not amount to an opportunity for a substantially similar use, and whether after deducting that sum the plaintiff ought to have judgment for the balance of the amount he agreed to pay upon using the wall. What amounts to a substantially similar use would under the evidence here be a question of fact, assuming it to be a condition precedent to a recovery at all that an opportunity for such substantially similar use should exist.

If the defendant in fact suffered any further damage by reason of this encroachment, in the way of being compelled to use some portion of his lot for an additional wall, which but for such encroachment he would not have been compelled to use, the amount of such damage it would be for the jury to determine, and that amount should be deducted from the recovery otherwise allowable. If the amount were of so substantial a nature as to cause the jury to conclude that the encroachment itself was, whether innocent or wilful, a substantial departure from the contract, then the verdict should be for the defendant so far as the plaintiff’s cause of action was concerned.

These matters can be properly submitted to a jury upon a new trial. We think the case should" not have been taken from the jury, and the judgment of nonsuit should, therefore, be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    George Munro, Resp’t, v. Frank Tousey, App’lt.

      (Court of Appeals,

      Filed December 1, 1891.)

    Trademark—Rights op publisher—Injunction.
    Plaintiff having published a story called “ Old Sleuth, the Detective," started an “ Old Sleuth Library,” containing de:ective stories. Held, that by the appropriation and use of the name “ Old bleuth ” to designate such serial publication plaintiff did not acquire a property right in the word “Sleuth,” which the law would protect against the use of by others in entitling works of fiction, especially where there is no proof of intention on the part of others to defraud and no similarity as to covers or pictorial illustrations by which a purchaser might be misled.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff granted at special term.

      Wm. H. Townley, for app’lt; Roger Foster, for resp’t.

       Reversing 36 St. Rep., 522.

   Gray, J.

The plaintiff was the publisher of a series of pamphlet works of fiction, entitled as the “ Old Sleuth Library,” and in this action he has sought to restrain the defendant, who was the publisher in a like way of the “ New York Detective Library,” from publishing and selling any book or pamphlet containing in its title, or in any part of it, the word “ Sleuth,” or purporting to be by the author of any story with any such title, and to compel an accounting for all profits realized.

The defendant’s publications, which are especially aimed at by name in this action, were variously entitled as “Young Sleuth, the Detective, in Chicago,” or as “ Young Sleuth, the Keen Detective,” or as “The Broken Button, or Young Sleuth on the Trail,” and by other titles which contained the words “Young Sleuth,” or “ Sleuth.”

The foundation for plaintiff’s claim to an exclusive right to the use of the word or name “ Sleuth,” in any application of it to the title or authorship of a work of fiction, seems to consist in his having selected and made use of the name “ Old Sleuth Library ” to designate a series of pamphlet publications of detective stories.

Previously, he had published a story called “ Old Sleuth, the Detective,” which proved so unusually attractive to some portion of the reading public as to cause the plaintiff to start an “ Old Sleuth Library ” series and to suggest to his author that in his future contributions of detective romances to that library he should describe their authorship as-being by “ Old Sleuth.” The plaintiff now contends that “ Sleuth," as a word or name, has become his property and a trade mark, which designates, as he puts it, “ a certain kind and quality of goods, namely, books describing the detection of crimes, manufactured and sold by him and his counsel argues that the plaintiff’s title to such a trade mark is conclusively established by the findings in the case. But with respect to this argument of ownership, it is sufficient to say that we may not so read the findings of the learned trial judge. What he does find is that the pseudonym “ Old Sleuth ” was the plaintiff’s property and was used by him to identify his publications. There may have been some evidence to warrant such a finding, and, in the view I take of this case, it may be assumed that it was the fact. The question then, which we have actually presented, is whether by the appropriation and use of the name “ Old Sleuth,” to designate bis serial publications of detective stories, the plaintiff has acquired a property right in the word “ Sleuth ” which the law will protect against the use of by others in entitling works of fiction. I think we cannot agree with the court below in such a view. There is no proof to support a finding of an intention on the part of the defendant to defraud the plaintiff or the public, except as it may be inferred by the court from the mere use of the name “ Sleuth and as to any similarity it) the pamphlet publications, in covers, or pictorial illustrations, by which a purchaser might be misled, nothing in the evidence, or in a personal inspection of the exhibits, would warrant the finding that it existed. The differences in the titles of the series in which the stories appear, and in the illustrations upon the covers are marked.

That the plaintiff would be entitled to the protection of the law against the use by others of the words “ Old Sleuth Library,” as used to describe a series of publications, or against the use of the name “ Old Sleuth, the Detective,” for a work of fiction, must be conceded. That is plainly right; and in order to afford a protection more adequate than would be afforded by an action at law, the equity power of the courts might be successfully invoked to restrain a similar use by others of such names and to prevent a species of literary piracy. This power is exerted upon the same principle upon which the court acts in trade-mark cases in restraining the unauthorized use of the label or sign constituting the trade-mark. The theory upon which a court of equity has long acted is that a resemblance in, or an imitation of, the names, signs or marks under which another conducts a business is a deception practiced upon the public and an injury to the proprietor in the loss of custom and patronage, to redress which an action at law for damages is not a sufficiently satisfactory remedy. That is the principle we may extract from the often cited opinions of Lord Eldon in Hogg v. Kirby, 8 Vesey, Jr., 215, of Lord Langdale in Knott v. Morgan, 2 Keen, 213, and of our own chancellors in the early cases of Snowden v. Noah, Hopkins Ch., 347, and of Bell v. Locke, 8 Paige, 75. A publication is the subject of property, and there is no reason why, like every other kind of property, it should not be the subject of the law’s protection. To put out a colorable imitation of it, by which the public may be easily misled into supposing that it is the literary article they had in mind to obtain and read, is an act of deception, which injures the publisher.

In Snowden v. Noah, supra, Chancellor Walworth said of the injury to the right of a publisher of books by acts of deception and piracy, that like that which is done to the good will of an established trade, or to the custom of an inn, “ the injury, for which redress is given in such cases, results from the imposture practiced upon the customers of an existing establishment, or upon the public.” So that, if there was such a simulation of the plaintiff’s publications for the fraudulent purpose’ of imposing upon the reading public, a court of equity would protect him against the continuance of such encroachment upon his rights. But the difficulty in the way of the plaintiff’s case is that there is no such resemblance between the defendant’s publications and those of the plaintiff’s as to prevent the ordinary and natural use of one’s senses in ascertaining the difference before buying. And unless that exists, in a similarity in their caption and appearance, there is no just reason for the interference of equity.

The difference in the caption of the story, as well as the difference in the name of the series, and in the illustrations upon the covers, should indicate to the most ordinary intelligence that the defendant’s publications were not of tales of “ Old Sleuth, the Detective," or parts of the “ Old Sleuth Library.” No admirer of that hero of fiction, and a follower of those serial publications, could be misled when buying numbers of the defendant's “New York Detective Library,” containing tales of “Young Sleuth, the Detective, in Chicago;” or of “Phoebe Paullin’s Fate, or Tracked by Yomig Sleuth ; or any others of those named. If the character and prowess of Old Sleuth have captivated the literary fancy of a portion of the public, and a magic in the name secures the-public patronage to the “ Old Sleuth Library,” how can it be imposed upon by the caption of stories of “Young Sleuth;” or of “ The Broken Button, or Young Sleuth on the Trail ? ” And the-illustrations of Young Sleuth and of his rescued subjects convey no idea of Old Sleuth. Both to the eye and to the ear the differences are marked. The youth of the detective hero in the defendant’s tales, as indicated in the title, sufficiently warns an intending purchaser that the original Old Sleuth is not the subject of the author’s imagination.

If he deems Mr. Munro’s “Old Sleuth Library ” more reliable as a depository of exciting detective tales, why or how should he-select from MivTousey’s “New York Detective Library? ” However attractive the captions of the tales published by Mr. Tousey, neither they, nor the illustrations designed to fasten the public eye, can fairly be said so to resemble the plaintiff’s series or titles as to amount to an imposture upon the reading public.

That is what the question is here, as it is in every case where it-is sought to restrain the prosecution of a business charged with being an encroachment upon the complainant’s property rights. A court of equity should proceed in the exercise of its power with a wise and judicial discretion. Incases such as this, it should presume that the public makes use of the senses of sight and hearing, and that it is possessed of a sufficient amount of intelligence to note the differences these senses convey. The court, ought not to interfere with the freedom of conduct of trade, and with general business competition. Its power to restrain should be reserved to prevent fraud and imposture from some real resemblance in the name and appearance of the publications.

I think the judgments of the special and general terms should be reversed, and, as a new trial would be useless, judgment should be ordered for the defendant, dismissing the complaint, with costs-in all the courts.

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


text:
    George Munro, Resp’t, v. Frank Tousey, App’lt.

      (Court of Appeals,

      Filed, December 1, 1891.)

   Per Curiam.

The disposition of this appeal is controlled by the decision in action No. 1.

The judgments, therefore, of the special and general terms below should be reversed, and judgment ordered for the defendant. dismissing the complaint, but with costs to the appellant only in .this court.

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