text:
    William J. Logan et al., Resp'ts, v. The Berkshire Apartment Association, App'lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Contract—Satisfactory performance—Acceptance.
    Plaintiffs made a tank for defendant under a special contract, to be satisfactory lo defendant. On objection being made, they made alterations. Defendant made other changes, but retained and used it to the time of the trial. Held, that such retention aud use amounted to an acceptance, and rendered defendant liable for the price.
    2. Same—Pleading.
    An allegation in a complaint for the purchase price of such an article, of its receipt and retention after delivery aud alteration as required, is equivalent to an allegation of acceptance, and dispenses with the usual averment of performance.
    8. Same.
    It is sufficient that the complaint allege the substantial subject-matter of the contract, omitting the details, and proof of the latter on the trial will not constitute a variance.
    Appeal by the defendant from a judgment of the general term of the city court, affirming a judgment of the trial term, entered May 18, 1892, in favor of plaintiffs, upon the verdict of the jury.

      Nelson S. Spencer, for appl't; Edward P. Lyon, for resp'ts.

       Affirming 48 St. Rep., 36.

   Daly, Ch. J.

The plaintiffs claim to recover $285 for a tank, to be used for heating water by steam, they delivered to the defendant under a special contract. The defendant at first objected to the tank for certain alleged variations from the contract, but afterwards consented to take it upon the plaintiffs offering to make certain connections. When this additional work was done objection was still made to the flanges furnished for the connections as unsuitable and imperfect, and defendant had new flanges made by another machinist, after which the tank was in constant use down to and at the time of the trial. Upon this state of facts the jury found for the plaintiffs, aud the general term of the city court affirmed the judgment.

The conceded facts show an acceptance of the tank by the defendant. Detention and use after discovery of the alleged defects made it liable to pay the price. It is contended that it makes a difference in principle that the tank was used after an alteration had been made at the defendant's expense. This alteration did not make it, as defendant seriously urges, some other tank than the one furnished by plaintiffs, which he used and has continued to uso. Uor is there any more force in the contention that the tank was not a chattel in the ordinary sense, but a fixture attached to the freehold “ which could not ho returned if unsatisfactory any more than any part of a building could be returned when once built.” The contention is not even plausible. An old tank was removed to make room for the new one, and, among the several small items of plaintiff’s contract, was a stipulation to take the old tank out. There was nothing to prevent the removal of the new tank if it was unsatisfactory, and this, with a notification to the plaintiffs, would have relieved the defendant. The retention and use of the tank, under the circumstances, concludes the defendant and also disposes of the claim, urged with much persistency, that the terms of the plaintiffs’ contract provided that their work was to be done to the defendant’s entire satisfaction. Defendant cannot keep and use the tank, and claim to be dissatisfied.

The only important exceptions taken by the defendant and not involved in the disposition made of the foregoing objections, will be considered in the order of their importance. At the opening of the case, defendant moved to dismiss the complaint upon the gi ound that it did not state facts sufficient to constitute a cause of action, as it did not allege performance, nor any time within which the contract was to be performed, nor that it was performed within a reasonable time. The motion was denied. The complaint alleged an agreement to make a hot water pressure tank and deliver the same on foundation in cellar for the price of $235, and alleged the plaintiffs “ made and delivered the tank to the defendant, when it was found that a slight alteration was required by defendant, which alteration plaintiffs made, and that defendant retained and still has possession of the tank, and refuses to pay for the same.”

The answer is a general denial. The general rule is, that the plaintiff must allege the facts showing performance by him and the default of the defendant; and so should allege performance within the time fixed by the contract, or, if no time be fixed, performance within a reasonable time. But the complaint in this action alleged the receipt and retention of the tank by defendant after its delivery and after it had been altered as required by defendant, and such an averment was equivalent to an allegation of acceptance, and dispenses with the usual averment of performance, as acceptance is a waiver of any unperformed conditions. The case upon which appellant relies, Pope v. Terre Haute Co., 107 N. Y., 61; 11 St. Rep., 209, was that of an executory contract for the sale and delivery of iron, and the complaint alleged tender of delivery and refusal to accept. It appearing that no time was fixed by the contract, the plaintiff was bound to prove delivery within a reasonable time, as this was essential to his cause of action, and whatever is essential to the cause of action must be pleaded as well as proved; and so it was held the complaint should have averred an offer to deliver within a reasonable time. The distinction between the complaint in that case and one averring delivery and acceptance is obvious.

The plaintiffs produced in proof of the contract set up in the ' complaint letters containing proposals and acceptance passing between themselves and the defendant, which constitute a valid contract; but objection was made that it did not prove the contract alleged in the complaint, for the reason that the contract, as proved, for the manufacture and delivery of the tank, contained additional stipulations not set forth in the complaint, viz. :

That plaintiffs were to cut apart the old tank so as to take out the old coil and put it in the new tank, to cut all holes for connections, take out the old tank, a hand-hole plate in each end, complete the job within two or three weeks, and furnish all necessary flanges bevelled for connections. As it would ordinarily be necessary for plaintiffs to prove performance of all the^ work before they would be entitled to recover the contract price, it was contended that they were equally bound to plead the-whole contract, and could not prove it under an allegation setting forth a part only. The observation of the court below upon this point was that the plaintiffs had merely “ proved the contract fuller in detail than they had alleged it in the complaint.” It is not required by the Code that the proof and the pleading shall accord exactly. Allowance is expressly made for variances, if the adversary be not misled, and an examination of the many cases of variances which have been held immaterial disposes of the objection in this case. See Code, § 539, and cases cited under it. It is only where the allegation is, “ unproved, not in some particular, or particulars, only, but in its entire scope and meaning,” that there is a failure of proof. Code, § 541.

Here we have an agreement for the manufacture and setting up of a specific article, with details and items of work required to put it in place of a former one, to remove the latter, and to do the work in a specified time. The complaint sets up the substantial subject matter of the contract and omits the details. There was no claim of surprise upon the trial, and an amendment, therefore, was not necessary, for the court might order the fact to be found according to the evidence. Secs. 539-540. The subject matter of the contract set out in the complaint and proved on the trial were identical, and there was an omission of detail only in the pleading.

It is urged that the plaintiffs were permitted to recover as for a substantial performance, and yet that the court refused to admit testimony of the cost of the alteration of the flanges which were required before the tank could be used. It appears, however, that no competent testimony of this expense was offered. The defendant’s superintendent was asked how much he paid for having the tank altered, and this was objected to as incompetent and the objection sustained. It was clearly incompetent. The machinist who made the alteration, or other competent witness, should have been called to show the value of the work, but there is no proof of that kind in the case.

It is claimed that the court erred in excluding evidence of a conversation with one of the plaintiffs through the telephone. The evidence was excluded because the defendant's witness could not identify the person with ’whom he had the conversation. Without intimating an opinion as to whether in such a case the testimony is admissible, 23 Mo. App., 451; 97 Mo., 473; 118 Ind., 194; 10 Am. St., 135; 35 Ill. App., 540; 3 N. Y. Crim. Rep., 483-501; 28 Alb. Law J., 422, it is sufficient to say that the conversation proposed to be shown was wholly immaterial. Appellant states that it was to show an offer by the defendant to return the tank, but inasmuch as, notwithstanding any such offer, defendant ultimately concluded to retain it and use it, and has retained and used it, the offer to return does not relieve it from responsibility.

For the same reason, defendant was not prejudiced by the evidence of the plaintiffs as to conversations as to the agreement of the defendant to accept the tank if certain extra work was done upon it. Such an acceptance is expressly admitted in the letters of the defendant’s superintendent. It is claimed that the defendant was injured by not being permitted to give the superintendent’s version of the same conversation. It is true that his testimony as to a proposition made by the plaintiffs was stricken out, but almost immediately afterwards it was testified to again by him and remains in the case.

The exceptions to the testimony of O’Neill, the plaintiffs’ machinist, are of no importance. He was competent to state that-before he left the place that night he had finished connecting the coil with the tank. His testimony that when he got through the fireman and engineer said they thought it was all right was competent to show that he omited to do nothing which those persons in charge of the defendants’ steam boiler, and who were competent judges of the necessity of the case, indicated as necessary to be done. The evidence was not offered to bind the defendant by the assent of its servants, bat was a mere statement of the facts as they occurred. But, in view of the subsequent acceptance, retention and use of the tank, this and the other rulings complained of do not affect plaintiffs’ right to recover, nor the validity of the verdict which they have obtained.

The judgment must be affirmed, with costs.

Bisohoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Albert De Cernea, Resp't, v. Russell R. Cornell et al., App'lts.

      (New York, Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Contract—Evidence—Custom.
    In an action for breach of contract for sale of paper, where the defense-was fraud in reducing the agreement to writing, and that defendant’s, agent signed for them without reading the contract, evidence of a custom or usage in the sale of paper in calculating the cost, known to plaintiff, is admissible on the question of fraud.
    2. Same—Direction of verdict.
    It appearing that plaintiff had been engaged in the paper trade for a number of years, and k"pw that the price of paper of the size called for at the mill was almost, double that named in the contract, and the agent tesli- - fving that that size was not spoken of between them; that plaintiff drafted tile contract in an adjoining room, and that he signed without reading under pressure of plaintiff’s extreme urgency for celerity in shipment, a direction of a verdict for plaintiff was error.
    Appeal from a judgment of the general term of tlm city court of New York, which affirmed a judgment for plaintiff entered upon a verdict directed by the trial court.
    Action by vendee to recover damages for the vendors’ refusal( to perform a contract in writing for the sale and delivery of paper, the alleged damages being the difference between the agreed price and amount paid by the vendee in open market for paper of like quantity and quality.

      Edward Wells, Jr., for resp’t; Alfred G. Reeves and George G. Beattys, for app’lts.

       Reversing 49 St. Rep., 871.

   Bischoff, J.

Plaintiff sought to recover damages alleged to have accrued to him from defendants’ breach of a contract writing, whereby they bound themselves to sell and deliver to him one thousand reams of-baker’s light straw paper, 20x30, sixteen pounds to four hundred sheets, at nineteen cents per rearm The defense was, that by general usage in the paper trade, a ream 15x20 is accepted as of standard size, and which size serves as the common multiple for calculating the cost of a ream of different size, and that in quoting the cost of paper, for the purposes of purchase and sale, reference is invariably had to this common multiple; that with knowledge of the fact of this usage, and of the further fact that in offering to supply plaintiff with the paper described in the contract at nineteen cents per ream defendants’ agent referred to the cost of a ream of standard size, plaintiff, in reducing the terms of the oral agreement to writing, fraudulently stated the cost per ream of paper of the size therein described to be nineteen cents, and that defendants’ agent, without reading the proposed contract, executed it, believing it to state the terms of the oral agreement correctly.

Unquestionably the facts pleaded as a defense in this action, if sufficiently established on the trial, would have afforded ample ground for rescission of the contract in equity in an action for that purpose, and would have constituted a good defense to an action in equity brought to enforce a contract which was entered into under like circumstances.

The rule which refuses relief for neglect or omission to read a contract before it is executed to a party thereto, though it appears that he executed the contract under a mistake of fact, or misapprehension respecting its terms, applies where the other of the contracting parties intended to make the contract as it was executed and was himself free from any fault by which the party seeking relief was misled or deceived, but does not extend to the-case where the party insisting upon the contract as it was executed cannot be injured by the granting of relief to the other, or where-the denial of relief to the party misled will enable the other to retain an unconscionable advantage "which was secured by the perpetration of a fraud, or the practice of an imposition or deceit at the time of the execution of the contract. Paisley v. Casey. 41 St. Rep., 339; Fallon v. Metropolitan Life Ins. Co., 47 id., 111. True, the court below, being without the powers of a court of equity, could not award defendants affirmative equitable relief: but by express provision of the Code of Civil Procedure, § 507, defendants were enabled to avail themselves of the same defenses which they might have interposed had this action been brought in a court of equitable jurisdiction. Evidence of the fact of the usage above mentioned was, therefore, competent and material to the defense and its exclusion by the trial court under plaintiff’s .objection error.

Again, it was error for the trial court to direct a verdict for plaintiff against defendants’ objection and against the request of their counsel that the question of fraud be submitted to the jury.

It appeared from plaintiff’s own testimony that he had been engaged in the paper trade for a number of years immediately preceding the execution of the contract in question, and this fact, presumptively at least, established his knowledge of any well known and prevalent custom or usage in that particular trade. Harris v. Tumbridge, 83 N. Y., 92; Dickinson v. Poughkeepsie, 75 id., 65; Walls v. Bailey, 49 id., 464; Rice on Evidence, vol. 2, p. 906, etc. His denial of any such knowledge was that of a party in interest, and so not conclusive. Elwood v. W. U. Tel. Co., 45 N. Y., 549; Kavanagh v. Wilson, 70 id., 179; Gildersleeve v. London, 73 id., 610; Bklyn. C. T. R. R. Co. v. Strong, 75 id., 592; Koehler v. Adler, 78 id., 291; Wohlfahrt v. Beckert, 92 id., 497; Munoz v. Wilson, 111 id., 300; 19 St. Rep., 372; Canajoharie Nat. Bk. v. Diefendorf, 123 N. Y., 191; 33 St. Rep., 389.

He admitted that at the time of the execution of the contract he knew the actual cost at the mill for paper of the size therein described to be over nineteen cents per ream, and believed it was over thirty cents, while Arnold (defendants’ agent), testified that at no time during the interview with plaintiff, which culminated in the execution of the contract, was the size 20 x 30 Mentioned, that plaintiff himself drafted the proposed contract in an adjoining room, and that he (the witness), indorsed defendants’ acceptance thereon, without reading it, under pressure of plaintiff’s extreme urgency for celerity in the shipment of the paper. Arnold’s testimony furthermore developed the fact of the usage contended for. These facts, beyond peradventure of doubt, would have justified a finding that the execution of the contract by defendants' agent was the result of trick and deception practiced by plaintiff.

The court below seems to have disposed of the case under a mistaken view that evidence of the usage was sought to be introduced on defendants’ behalf to vary the terms of the contract, and so excluded it on application of the familiar rule which precludes the impairment of the legal effect of a written instrument by parol evidence, but it is apparent that the office of the proffered evidence was to impeach the contract for fraud, and no question can arise respecting its admissibility for that purpose. Browne on Parol Evidence, 67.

The judgment of the general and trial terms of the court below should be reversed, and a new trial had, with the costs of this appeal to the appellants to abide the event.

Bookstaver and Pryor, JJ., concur.


author: O'Brien, J.

text:
    William O. Douglass, Resp't, v. Peter Ferris et al., App'lts.

      (Court of Appeals,

      Filed April 25, 1893.)

    1. Guardians—Bond of sureties—Laches.
    Where a ward was induced by fraud to settle with his guardian and the latter was discharged by a surrogate’s decree, but upon the discovery of the fraud by the ward, he promptly repudiated the transaction, and called upon the guardian to account or pay and offered to restore what he had received, the sureties upon the guardian’s bond are not discharged by the settlement between the plaintiff and the guardian or in consequence of the plaintiff’s omission to notify them at an earlier day of the situation or to proceed against the guardian.

      2. Same—Limitations.
    After the ward has repudiated the fraud by offering to restore what he had received, and demanding the money from the guardian, he is not limited by any different period of time for instituting proceedings to call him to account than he would have been if the fraud had not been practiced on him.
    3. Same-Costs.
    The costs of suits to set aside settlements and discharges made by the ward himself, when of full age aud after he assumed the control and management of the estate, are not within the condition of the bond given by the guardian’s sureties.
    (Andeews, Oh. J., dissents.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered upon trial by the court, without a jury.

      Richard L. Hand, for app'lts; Royal Corbin, for resp't.

       Modifying and affirming, 44 St. Rep., 710.

   O'Brien, J.

The general question presented by this appeal is the liability of the defendants to the plaintiff upon a bond given on the 29th of March, 1872, to the plaintiff, who was then a minor, to secure the faithful performance by Edwin B. Low, his general guardian, appointed on that day, of the duties of his trust. The plaintiff arrived at the age of twenty-one years on the 26th of March, 1879, and it appears that on the 14th of the following May the guardian had in his hands $4,363.10, to which the plaintiff was entitled. On that day, as the findings show, the guardian and his brother, who was insolvent, approached the plaintiff with a view to a settlement and discharge of the obligation. They presented the brother’s note for $3,200, payable to the order of the plaintiff, and bearing date March 31,1879, at two years, with semi-annual interest, and also a mortgage purporting to secure the payment of the sum for which the note was given and running to the plaintiff, covering 200 acres of land in the state of Illinois. The guardian, for the purpose of inducing the plaintiff to settle his claim for the amount of "the note as secured, fraudulently represented to the plaintiff that the lands embraced in the mortgage were cultivated and valuable improved farm lands, and worth at least $10,000, and ample security for the payment of the sum for which the note was given. The plaintiff was ignorant of the facts touching the solvency of the maker of the note and the value of the land and the sufficiency of the security, but relied entirely upon the representations of the guardian. In fact, the lands were uncultivated swamp lands, not worth to exceed $700, all of which was known to the guardian at the time of making the representations.

The plaintiff, believing the statements to be true, was induced to settle his claim for the note and security and to give to the guardian a receipt in full for the $3,200, and also a paper purporting to discharge him from his trust and authorizing an attorney named to appear before the surrogate and declare the account of the guardian settled and to procure him to be formally discharged. The attorney and the guardian on the 12th day of January, 1880, appeared before the surrogate, and the account was stated, and the guardian credited with the payment of the balance in his hands, namely, $4,360.82, and, thereupon, the surrogate entered a decree whereby it was adjudged that the guardian had fully accounted for all moneys of his ward that came to his hands, and that nothing remained in his hands that was due to the plaintiff.

The plaintiff was ignorant of the facts constituting the fraud thus practiced upon him until about the month of November, 1880, when he immediately communicated his information to the guardian, and demanded that the settlement, receipt, power of attorney, decree of the surrogate and discharge be rescinded and treated as void,_ to which demand the guardian asssented and promised to pay the amount of the claim to the plaintiff, but failed to do so except the sum of $800, which was paid about the month of February, 1882. It has also been found that the plaintiff, at all times since the discovery of the fraud, has been ready and willing to restore what he received from the guardian on the settlement, and that before the commencement of any suit he executed and tendered to the guardian an assignment of the mortgage and the note and a satisfaction thereof, and these papers have been ready for delivery since October, 1882, when he commenced an action in the supreme court against the guardian as such. The object of that action was to procure a judgment annulling the decree of the surrogate and the settlement papers upon which it was based, and declaring the account between the plaintiff and his said guardian to be unadjusted and the sum of $3,200 unaccounted for. The complaint contained suitable allegations of all the facts upon which to base the relief.

The only pleading which the guardian served in the action was a demurrer which, upon a hearing, was overruled and judgment was ordered in favor of the plaintiff for the relief demanded with costs, which judgment was to be absolute unless the defendant answered over, as he was permitted to do by the judgment. It was entered on the 16th day of February, 1885, and adjudged, among other things, that there was still due to the plaintiff from the guardian the sum of $3,507.24, which included interest on the sum of $3,200 from March 31, 1879, less the payment made before mentioned. Service of a cop}T of the judgment was made upon the defendant’s attorneys on the day of its entry. The defendant therein then appealed to the general term where it was affirmed, and judgment of affirmance'and for costs entered June 9, 1885, which was made absolute in form upon proof that the defendant had failed to answer or pay costs as permitted by the special term. Executions were issued upon these judgments and returned wholly 'unsatisfied. Then .the present action was commenced, October 31,1885, against the sureties upon the guardian’s bond, by the service of the summons and complaint, on that day, upon the sureties Gilletta Low, Eodney Sargent and Peter Ferris. The first named answered separately, by the same attorneys representing the guardian in the former suit, that she was a married woman when she executed the bond, and the action, as against her, was discontinued by stipulation, but she was not released. The other sureties answered by the learned counsel who argued the case at bar in this court, or by his firm, and after the case was at issue and ready for trial in 1886, they were substituted as attorneys in the old suit against the guardian and appealed to this court from that judgment.

The new attorneys then had control of both cases, and in June 1886, they made a motion to the court at special term in both actions. The object of these motions was, first, to permit the appeal to the court of appeals in the old action to be prosecuted without further security, and to stay all proceedings in this action, without security, pending that appeal. This motion was granted upon a showing in support of the application, apparently that the plaintiff already had security in the guardian’s bond, and that the appeal to this court from the judgment in the old suit conclusively determined the liability of the sureties on that bond. In October, 1887, this court affirmed the judgment, 107 N. Y., 628, without an opinion. In the meantime, and on the 28th of January, 1887, Sargent, defendant, and one of the sureties died, leaving a will, in which the defendant, Abbey A. Prouty, was named as sole executrix, to whom letters testamentary were issued. This action was revived as against her by a supplemental complaint which was answered by both defendants, and these pleadings present the issues in the case. On the trial the plaintiff gave in evidence the bond, the judgment roll in the action against the guardian, and the judgments of affirmance at general term and in this court, and the executions issued and returned unsatisfied and rested. Substantially the only proof given by the defendants was to show that the sureties had no knowledge of the settlement between the plaintiff and the guardian, or of any of the fraudulent acts or proceedings before referred to, until the month of October; 1885, and also some proof relating to the financial responsibility of the guardian during a part of that time. The court found all the facts, the. substance of which is herein stated, and other facts not necessary to refer to, and found according to the defendants’ contention that they were ignorant of the settlement or of the proceedings until the time stated, and, further, that up to April, 1882, the guardian was the owner of a valuable piece of unincumbered real estate in the county, the actual value of which was not shown, and which he conveyed at that date, and has been insolvent since January 27, 1885. lie held, as matter of law, that the judgment in the first action was prima faene binding upon the defendants and evidence against them of the facts therein adjudged, and that they were liable for the amount of that judgment and the costs, with interest thereon.

The condition of the defendants’ obligation was that the guardian “ shall well and faithfully in all things discharge the duty of guardian to the above named minor according to law, and render a just and true account of all moneys and property received by him, and of the application thereof, and of such guardian in all respects to and before any court having cognizance thereof when thereunto required."

To insure the performance of this trust the sureties bound themselves in the penalty of the bond, “ and each of us, our, and each of our heirs, executors and administrators, and each and every of them, jointly and severally, firmly, by these presents.” The principal questions discussed by the learned counsel for the defendant on this appeal are, first, that tlie sureties have been discharged by the settlement between the plaintiff and the guardian, and the extension of time involved therein, and, secondly, in consequence of the plaintiff’s omission to notify them at an earlier day of the situation, or to proceed against the guardian. It was competent for the plaintiff, after he became of age, to settle with his guardian, and if the settlement had been fairly and honestly, and not fraudulently made, it would discharge the guardian and his sureties. Kirby v. Taylor, 6 Johns. Ch., 242.

But in this case the settlement and the papers executed by the plaintiff to the guardian, as well as the decree of the surrogate based thereon, were vitiated by fraud, and had no effect upon the plaintiff’s rights. It is true that he was the only one that could complain of the fraud, or could elect to repudiate the transaction, and until such time as he did the transaction was binding. But when he made that election, and brought an action to annul the transaction, and the court declared it void, the effect of the election and judgment was to make it void ab initio, and of no more effect or legal significance than if it had never occurred. So that, in truth, there was no settlement or release of the guardian, and no binding or valid extension of time for the payment of the moneys in his hands by the plaintiff.

Upon principle and authority there cannot, I think, be any doubt that if the guardian had accounted before the surrogate in the psual way, and a decree had been entered, free from fraud, adjudging that he owed the plaintiff a designated sum, that decree would have bound the sureties. This is upon the principle that by their contract they are privy to the proceedings against their principal, and when he is concluded they, in the absence of fraud or collusion, are concluded also. Douglass v. Howland, 24 Wend., 35; Jackson v. Griswold, 4 Hill, 522; Annett v. Terry, 35 N. Y., 256; Baggott v. Boulger, 2 Duer, 160; Rockfeller v. Donnelly, 8 Cow., 637; Girvin v. Hickman, 21 Hun, 316; Casoni v. Jerome, 58 N. Y., 315; Harrison v. Clark, 87 id., 575; Thayer v. Clark, 48 Barb., 243; S. C., aff'd 41 N. Y., 620; 4 Abb. Ct. App. Dec., 391; Herman on Estoppel, etc., 173, 174; Dodge v. St. John, 96 N. Y., 264; M. Church v. Barker, 18 id., 463.

The plaintiff was obliged to bring an action to set aside the decree of the surrogate, which operated to discharge the guar-, dian, and also to set aside the fraudulent transaction upon which this decree was based. He could not have obtained this relief in the surrogate’s court, and the supreme court having obtained jurisdiction for this purpose could and did retain the whole case, not only for the purpose of setting aside the fraudulent settlement and decree, but also of determining the amount due to the plaintiff upon an honest accounting. Hood v. Hood, 85 N. Y., 561; Haight v. Brisbin, 100 id. 219; Perkins v. Stimmel, 114 id., 359; 23 St. Rep., 657; Stilwell v. Mills, 19 Johns., 304; Sanders v. Soutter, 126 N. Y., 193; 37 St. Rep., 1.

The duty of the guardian, guaranteed by his sureties, was to account before any court of competent jurisdiction for the money or property that came to his hands by virtue of the trust, and as the supreme court had such jurisdiction, its judgment against the guardian had, at least, the same force and effect as the decree of the surrogate would have had. The sureties by their contract had so connected themselves with the obligations of the guardian, and with the proceedings to bring him to an account, and with the judgment rendered, that it bound them as well as the guardian as to all questions necessarily involved. The judgment could be impeached for want of jurisdiction, or for fraud or collusion, but in all other respects it became conclusive as evidence or by way of estoppel The plaintiff could not have succeeded in his action against the guardian to annul the settlement and decree without showing that he had rescinded, any more than he can now succeed against the sureties without establishing the same fact. But the judgment in the former action adjudged that the transaction had been rescinded and this concludes the defendants also.

In regard to the question of laches, it is true that an omission to promptly repudiate and rescind a settlement of this character by the ward, and long acquiescence by him in what was done, with knowledge of all the facts, would furnish a good defense to the sureties. But so it would to the guardian, and the judgment against him has determined conclusively that there was no want of diligence in this respect on the part of the plaintiff in demanding rescission and tendering back what he had received. That question was necessarily an issue in the former action, and so far as it was, the defendants are concluded, though they may not be as to questions that did not concern the guardian’s defense. But it is conceivable that sureties, under such circumstances, might have relied, to their prejudice, upon the decree of the surrogate, and an omission to attack that in time was a defense that may not have been involved in the former action; and was probably open to the defendants on the trial of this action, but the case is relieved from any difficulty on that point by the stipulation of counsel and the finding of the court that the defendants, up to the time of the commencement of this action, did not know of the existence of that decree, and, consequently, could not have acted upon the faith of it or have been misled or lulled into security by it.

It must. be conceded that the judgment against the guardian conclusively established at least the existence of the debt to the ward, and when the plaintiff had proved the execution of the bond, and that the remedies against the guardian had been exhausted by the return of an execution on the judgment unsatisfied, he had made out his case. It was not necessary to the maintenance of the action to establish any other fact determined by the former judgment. It became necessary, then, for the defendants to show some defense, and they gave no proof, except with respect to the two facts already mentioned. In this view the judgment was more important to the defendants than to the plaintiff, for, unless the facts upon which they rely for a defense are thereby established, they are not established at all. Without the judgment the court could not know that there ever had been a settlement induced by fraud, a discharge of the guardian, or a decree of the surrogate adjudging, virtually, that the guardian had performed his trust, but all of which was based upon fraud. Indeed, if the judgment is to be discarded as evidence for or against these defendants, except so far as it proves the amount due to the ward, then it is perfectly clear that no defense whatever has been made out or even attempted. In order to give the defendants any standing at all, they must have the benefit of all the facts determined m the suit against the guardian, for they are not otherwise established. But the defendants cannot use that judgment as proof of facts in their favor, and upon which they rely, and at the same time reject the legal result of these facts as expressed in or necessarily implied from the decision. They are really in the attitude here of insisting that the judgment is conclusive in tiiis action as to the facts, but not as to the law. It was determined in that action that the plaintiff had rescinded and repudiated the transaction upon which the decree of the surrogate was based, and that he had acted with reasonable promptness and diligence, whether that was a fact or a legal conclusion, and the defendants must, if they claim the benefit of any part of the record, take the whole of it.

Moreover, it is apparent from the record and the course of the trial that the question of laches now urged in this court as a ground for the reversal of the judgment constituted no part of the original plan of defense. It is predicated -wholly upon a fact established only by the judgment-roll in the suit against the guardian given in evidence by the plaintiff, namely, that the jilaintiff delayed the action against the guardian from the time of the discovery of the fraud in November, 1880, till October, 1882.

But no such defense was interposed or suggested by the answer. The only defenses set up are (1) the decree of the surrogate ; (2) that the fraud was the personal act of the guardian, for which the sureties were not responsible ; (3) that the plaintiff extended the time of the guardian to pay for two years by taking the note without the consent of the sureties, who were released thereby; (4) that the plaintiff, after he became of age, settled with the guardian and released him; (5) that the plaintiff elected to treat the bond as joint by bringing an action against all the sureties. The answer contains no allegation that the plaintiff was chargeable with any laches in delaying to prosecute the guardian, and they cannot now avail themselves of a defense not pleaded, though the facts upon which it is based may appear in the record. It is not every fact that appears in the record that a party can have the benefit of in this court, but only such facts as have been pleaded and proven. Secundum allegata etprobata is the rule that governs in such cases. •

But apart from these considerations, and entirely independent of the question of the effect of the former judgment, it would be difficult to hold, upon the lasts upon which the defendants’ argument is based, that the plaintiff is chargeable with such laches as operate to relieve the sureties. He did not discover the fraud until November, 1880, and then he immediately communicated the information to the guardian and demanded that the transaction be rescinded, and offered to restore what he had received under it, and the guardian promised to comply with this demand and to pay" the claim, and in February, 1882, actually did pay a portion of it. The relation of guardian and ward is one of trust and confidence, and, under the circumstances, it cannot, we think, be affirmed as matter of law that the ward is chargeable with want of diligence because he acted upon the faith of the guardian’s promise, and did not commence his action until October, 1882. After that date the delay is chargeable to the dilatory nature of the defenses interposed by the act of the defendants themselves and their principal. Nor can the plaintiff, under the circumstances, be charged with any omission of duty in not notifying the sureties. They could not remain passive during all this time, and then when called upon to respond impute laches to the plaintiff. They owed to him a more active duty than he did to them. They had virtually assured him by their contract that his guardian would be faithful to his trust and that he would not perpetrate a fraud upon him. Under such circumstances, if there was any duty to use active vigilance, it was imposed upon the sureties themselves rather than upon the ward. They had agreed to be responsible to him, not with reference to any fixed or computable period of time, but for all time until the guardian had accounted or paid and the relations completely terminated. In the case of guarantees for the collection of notes and such obligations, and other contracts of indemnity, the holder can know with certainty when the debt is due or when there is a breach of the contract secured. The rule of diligence that governs in such cases cannot be applied here, at least with the same strictness. But even in that class of cases it is only when but one inference can be legitimately drawn from the facts that reasonable diligence becomes a question of law. If, on the contrary, different inferences may be fairly drawn by equally intelligent ancl unbiased minds, the question is one of fact. S. S. N. Bank v. Sloan. 135 N. Y., 371; 48 St. Rep., 470; C. N. Bank v. Pratt, 135 N. Y., 423; 48 St. Rep., 478.

If the doctrine of laches could be applied to the relations that exist between the plaintiff and the defendants to the same extent as to that class of obligations just referred to, a proposition which may well be doubted, still the judgment could not be disturbed against the findings of the learned trial court.

The argument of the learned counsel for the defendants seems to me to rest wholly upon the proposition that by mere delay to proceed against the guardian fr.om November, 1880, to October, 1882, the sureties were relieved. I do not understand that delay alone on the part of the ward, after he becomes of age, to proceed against the guardian for accounting will discharge the sureties upon his bond. Of course, the ward, after he becomes of age, may so deal with him as to disable himself from proceeding, and then in a proper case the sureties could complain. But so long as the ward does not make a binding agreement for the extension of time, and does not preclude himself in any way from instituting the proper proceeding against the guardian, mere delay will not affect the obligation of the sureties on the bond, providing the right to proceed is not barred by the statute of limitations. ^ If he institutes the proper proceeding within the time allowed by law, neither the guardian nor his surties can defeat it by alleging that he has waited too long. In this case, had no fraud been perpetrated upon the ward, he could have waited and left the property in the hands of his guardian without relieving him or his sureties. The law did not require him to proceed within any particular period of time except that designated in the statute of limitations. Mere indulgence by the plaintiff of the guardian without any valid agreement for delay or the extension of time does not affect the obligation of the surety. Powers v. Silberstein, 108 N.Y., 169; 13 St. Rep., 125; Hurd v. Callahan, 9 Abb. N. C., 374; Daniels v. Patterson, 3 N. Y., 47; McKecknie v. Ward, 58 id., 541; H. M. Co. v. Farrington, 82 id., 121; Lowman v. Yates, 37 id., 604; Hunt v. Purdy, 82 id., 486; Steinbock v. Evans, 122 id., 551; 34 St. Rep., 138.

When the creditor refuses or neglects to proceed against the principal, after requested so to do by the sureties, this rule is modified, but that distinction has no application to this case, as no such request was ever made. Hencp the only ground of complaint that defendants can urge upon this appeal is the mere indulgence or delay to prosecute on the part of the plaintiff, and that is not a defense.

The facts of this case do not furnish any sufficient ground upon which the plaintiff can be deprived of the benefit of this rule, lie was induced by fraud to settle with his guardian, and when he discovered the fraud he promptly repudiated the transaction, and called upon the guardian to account or pay. This the guardian promised to do, and while we may assume that such promise had some effect upon the plaintiff’s mind, yet he did nothing whatever to tie his hands or bind himself to wait a single moment. He could have proceeded at once against the guardian, but how did the delay in bringing the action affect the sureties any more than it would if no fraud had been committed? When the plaintiff rescinded the fraudulent settlement, he did no more than he had a right to, and no more than was his duty, but the fact that the fraud was committed and repudiated imposed no greater duty of active vigilance upon the plaintiff than would have otherwise existed with respect to the sureties.' After the ward had repudiated the fraud by offering to restore what he had received, and demanding the money from the guardian, he was not limited by any different period of time for instituting proceedings to call him to account than he would have been if the fraud had not been practiced upon him.

The estate of a deceased surety upon a bond of this character, joint in form, becomes discharged by the law as it existed when the obligation was given. Getty v. Binsse, 49 N. Y., 385; Wood v. Fisk, 63 id.. 245; Risley v. Brown, 67 id., 160; Hauck v. Craighead, id., 432; Code, § 758.

But as this bond was several, as well as joint, we cannot see how the principle applies. ' The parties could have been sued jointly or separately, and the action revived against the personal representatives of the deceased defendant. Code, § 454.

One of the conditions of the bond was that the guardian would account. The sureties could not be made liable until after decree or judgment against the guardian in the proper court, and that decree or judgment constitutes the measure of their liability. If •the court before which the accounting is had directs costs to be included in the judgment, then the costs are a part of the debt for which the sureties may be liable. So that sureties upon a bond of this character may be liable for costs included in a decree adjudging the amount due from the guardian, as their liability is generally co-extensive with that of their principal. But in this case there never was any dispute between the plaintiff and the guardian with respect to the amount in his hands. After the plaintiff became of age, he assumed to settle with his guardian without any accounting, and to release him and to authorize the surrogate to enter a decree to that effect. The action in which costs were recovered was brought to get rid of these obstacles which stood in the way of proceedings upon the bond, and which had their origin in the plaintiff’s consent, though induced by fraud. The costs of suits to set aside settlements and discharges made by the ward himself, when of full age and after he assumed the control and management of the estate, are not within the conditions of the bond, whatever the general rule may be as to costs upon an accounting. The plaintiff and his guardian agreed upon the amount due, and the fraud did not enter into the statement of the account, but consisted in inducing the plaintiff to accept in payment the worthless obligations of a third party. The costs of an action to restore the ward to the position he occupied before he entered into that agreement are not, we think, chargeable to the sureties.

The judgment should, therefore, be modified by striking out all costs included therein of the former suit against the guardian, and the appeals from that judgment, and all sums included for interest and extra allowance thereon, and, as so modified, affirmed, without costs to either party in this court. 0

All concur, except Andrews, Oh. J., dissenting.


author: Andrews, Ch. J.

text:
    The People, Resp'ts, v. Frank W. Roehl, App'lt

      (Court of Appeals,

      Filed April 25, 1893.)

    1. Homicide—Murder in the first degree.
    The accused, after his discharge from, prison, went to the house of K., an acquaintance, and had his hoard for services. On the afternoon of the killing Mrs. K. gave him a little money and two ferry tickets. He was seen to go into the rooms of deceased at 6.30, and heard and seen to come out and run away. Shortly after deceased was discovered bleeding and dying, his skull cut, and his brains spattered on the bed and wall. Roehl visited two saloons the same evening exhibited a large amount of money and two watches, afterwards identified as the deceased’s. Upon his arrest he attempted to strike the officer with a hatchet, which he had concealed, and which was stained with blood, and claimed the watches were his own. On the trial he admitted the killing, and claimed it was done in self defence while struggling with deceased, etc. Held, that the jury had a right to disbelieve the defendant's story, and every element of murder in the first degree was clearly established.
    3. Same—Chau ge.
    The court in reciting to the jury the story of defendant as to his struggle with deceased, said, “which, of course, is not gainsaid, and no one lives to gainsay it.” Held, no error
    3. Same.
    The court said that it was claimed on the part of the prosecution that there was ample evidence of premeditation and deliberation, and added: “Of course, if the defendant had in mind, when he took the axe in hand, the killing of the deceased, and carried that design out, that is ample deliberation and premeditation.” Held, that the charge was free from objection.
    4. Same—Evidence.
    A witness was called by the People to identify the watches found upon defendant as the property of deceased, and was asked preliminarily as to his acquaintance with deceased, and whether deceased and the witness belonged to the same post in the Grand Army, and whether he served with him in the same regiment. Held, no error.
    Appeal from judgment of the court of general sessions of New York, convicting defendant of the crime of murder in the first degree.

      E. Townsend Goldberg, for app'lt; Henry B. B. Stapler, for resp'ts.
   Andrews, Ch. J.

The defendant was convicted at the court of general sessions of the city and county of New York ot the crime of murder in the first degree, in killing one Frank Paulsen on the evening of September 29, 1892.

The leading facts appearing in the evidence will be briefly stated. The deceased was a man fifty years of age, married, but living apart from his wife, and at the time of the homicide occupied a small hall bedroom in the third story of a house in Hester street, in the city of New York, one of a suite of five rooms rented by a Mr. Burns, who, with his wife, occupied the other rooms, and with whom the deceased had lived for about nine months preceding his death. Paulsen was an acquaintance of the defendant. He owned a watch and chain, and also a small watch, and this was known tortile defendant. The defendant Roehl was a Herman, about twenty-nine years of age, and about a month before the death of Paulsen had, upon his discharge from prison on the expiration of a sentence for petit larceny, gone to the house of an acquaintance, Mrs. Kattina, in Hoboken, and being out of employment, Roehl was permitted to remain in the house, paying nothing for his board, but assisting Mr. Kattina in securing drift wood and cutting it up and storing it in the cellar of the house. Roehl, before going to prison, had worked in a manufacturing establishment on Forty-eighth street, in the city of New York. On the morning of September 29th, he left the house of Mrs. Kattina to go to the city for the purpose, as he stated, of getting employment in the establishment where he had formerly worked. Mrs. Kattina gave him two ferry tickets and a few cents in money. He appeared to be poor. He returned to Mrs. Kattina’s house about three or four o’clock on the same afternoon, and about five o’clock, after changing his clothes, started again for the city, Mrs. Kattina giving him ferry tickets and a little money as before.

About half-past six o’clock the same evening- a Mrs. Gould, who occupied the second story of the house on Hester street, while standing in the doorway of the door opening from her rooms into the hall, observed a man pass up the stairway leading to the third story of the house, and she subsequently identified the man as Eoehl. Mr. Burns also testified that at this time he was standing in the hallway in front of his rooms, waiting for his wife to return and open the door of his room, she having the key, and was amusing himself in playing with a dog, and that while so engaged a man, whom he also afterwards identified as Eoehl, came up the stairs and knocked at the door of Paulsen’s room, and that Paulsen, whose voice he identified, bade him “ come in.” Soon afterwards Mrs. Burns came in and she and her husband went into their rooms. After a time they heard the door of Paulsen’s room “ slammed ” aud the footsteps of a person going rapidly down stairs. Mrs. Gould’s attention was also attracted by the noise of a person going down the stairs, and she went to the window and saw Eoehl leaving the house, and he walked towards Grand street and then commenced running. Shortly after the man left the house Mr. and Mrs. Burns went from their rooms into the hallway and to the door of Paulsen’s bedroom, which was ajar, and opened it, and there saw Paulsen sitting in a chair with his head leaning to one side and covered with blood. Alarm was immediately given, and in a few minutes some policemen came and found Paulsen gasping, and he very soon died. The autopsy disclosed that his skull was cut and fractured in several places, as with a sharp instrument The brains of the deceased were exposed and blood was found spattered on the bed and on the wall near where he was sitting. There was no other disorder in the room or anything indicating, that there had been a struggle. Neither Mr. nor Mrs. Burns heard any noise in Paul-sen’s room while the man was there. Their rooms were adjoining his.

The evidence shows that between eight and ten o’clock the same evening Eoehl visited two saloons, where he ordered wine and beer, and exhibited several five dollar bills, and also silver money, and drank quite heavily. While in these saloons he also exhibited two watches (one with a heavy gold chain attached), which were afterwards identified by several witnesses as Paulsen’s. Later in the evening, Eoehl, on leaving one of the saloons, was arrested by a policeman as a suspicious person, and on his way to the station house with the officer he drew a small axe or hatchet, which apparently had been concealed by placing the handle in his trowsers behind and the blade under his vest, and attempted to strike the officer. He was subdued and taken to the station house, and the watches were found on his person. The next morning he was taken to view the body of Paulsen, and there denied that he recognized the deceased, or that he had ever known a man by the name of Paulsen. He also claimed that the watches belonged to him, having bought one, as be said (naming the’ place where he obtained it), and the other he claimed, he procured in South America. The axe taken from him was stained with blood. Mrs. Kattina identified it as one that belonged to her, and she testified that it had been taken from her house without her knowledge or consent. Eoehl, on the trial, was sworn in his own behalf. He admitted the killing; that he was well acquainted with Paulsen ; that the watches were Paulsen’s, and that he had seen them in his possession before the day of the homicide.

The defense was that he had killed Paulsen in self defense. He stated that he took the axe from Mrs. Kattina’s with her knowledge, and for the purpose of getting it sharpened at the shop where he formerly had worked, and left her house with it at about five o’clock on the afternoon of September 29th, but that when he reached New York he thought it was too late for him to go to Forty-eighth street and get it sharpened that night; that he then thought he would go to Paulsen’s room and leave it there till morning, and went there for that purpose; that in the course of his conversation with Paulsen the latter made an insulting remark about Eoehl’s wife, which the latter resented, whereupon Paulsen sprang towards him, threw him upon the floor upon his back, placed his knee upon his body to hold him down and commenced choking him and saying: “ I’ll kill you, I’ll kill you;” that thereupon in the struggle his hand came upon the axe, which he had before placed by the stand, and he seized it and struck at Paulsen until he let go of him. Eoehl accounted for the possession of the watches by saying that Paulsen, soon after he went into the room, asked him to try to sell the watches for him, and gave them to him for that purpose. He accounts for the possession of the money by saying that it was part of some money he had before he went to prison, and that he brought it with him from Mrs. Kattina’s that day. It was shown by witnesses that he visited two saloons in the afternoon before the hour of the homicide and claimed to have no money, and obtained drinks without paying for them.

It is unnecessary to go into further detail of the facts. Hpon the People’s case there can be no doubt that this was an atrocious murder. The jury disbelieved the defendant’s story, as they had a right to do. It is not often that every element of murder in the first degree is so clearly established. Motive, deliberation, premeditation, intent to kill, are all present and are written in unmistakable characters in this fearful story.

There were no errors committed on the trial. The judge, in reciting to the jury in his charge the story of the defendant as to the struggle with Paulsen, said : “ Which, of course, is not gainsaid, and no one lives to gainsay it.” The remark was true and it was proper to call the attention of the jury to the fact that the defendant’s story was uncorroborated and was incapable of corroboration, as one of the facts to be considered in determining the case.

It is claimed that the court erred in charging that there was “ ample evidence of premeditation and deliberation.” The judge did not so charge. He said it was so claimed on the part of the prosecution, and added: “ Of course, if the defendant had in mind, when he took the axe in hand, the killing of the deceased, and carried that design out, that is ample deliberation and premeditation.” The charge in this respect was free from objection. Whether the evidence made out a case of justifiable homicide was left to the jury under proper instructions.

One Unger was called by the People to identify the watches found on Roehl as the property of Paulsen, and was asked preliminarily as to his acquaintance with Paulsen, and whether Paul-sen and the witness belonged to the same post in the Grand Army of the Republic, and whether he served in the war with him in the same 'regiment. The evidence of the extent of the acquaintance between the witness and Paulsen was proper to be shown, as bearing upon the opportunities the witness had to become acquainted with Paulsen’s affairs, and that the jury might be able to give the proper weight to his testimony.

Some time subsequent to the trial an affidavit was filed in behalf of the defendant, which is annexed to the record, to the effect that the district attorney in his closing remarks to the jury referred to the deceased as “ a veteran in the late war who rendered meritorious service to the government, went to war, and would be the last man to call a woman a whore.” This language, if used, did not pass the proper limit of debate. The district attorney had a right to allude to any circumstance disclosed by the evidence which in his view rendered the story of the defendant improbable.

We have noticed all the points urged by the counsel for the reversal of the judgment. There is no error of law or fact disclosed by the record, nor is there any reason to doubt the justice of the conviction.

The judgment should be affirmed.

Judgment affirmed.

All concur.


author: Earl, J.

text:
    Eliza N. White et al., Resp'ts, v. Edward M. Benjamin, App'lt.

      (Court of Appeals,

      Filed April 25, 1893.)

    1. Bills and notes—Usuey.
    Usury is a crime, and he who alleges it as a defense to an obligation to pay money must establish it by clear and satisfactory evidence.
    8. Same.
    Where there was some evidence from which it could be inferred that the defendant at various times paid to the deceased payee more than the legal rate of interest, but it did not appear that such payments were made in pursuance of an usurious agreement, and it was fairly inferable from all the evidence that the payments were voluntarily made by defendant and not in pursuance of any exaction made by the payee at the time of the loan, the jury is not authorized to find that the note was given in pursuance of an usurious agreement.
    Appeal from, judgment of the New York superior court, general term, denying motion, for new trial upon exceptions and ordering judgment for plaintiffs upon the verdict.
    The plaintiffs allege in their complaint that on the 1st day of January, 1884, the defendant made and delivered to James L. White his promissory note for $100,000, payable in eighteen months from the date thereof; that James L. White died on the 1st day of May, 1884, leaving a will which was admitted to probate, in which John J. White was named executor, and that letters testamentary thereon were issued to him; that on or about the 1st day of January, 1885, John J. White, as executor, surrendered that note to the defendant, and that the defendant, then executed and delivered to him as such executor, in place thereof, his promissory note for $100,000, payable eighteen months after the date thereof; that thereafter John J. White, as executor, transferred and assigned the note to these plaintiffs, and that they became the true and lawful owners thereof; that there was due on the note the sum of $100,000, with interest from the 1st day of January, 1889.
    The sole defense which the defendant makes to the note is-that it originated in an usurious agreement between him and James L. White, and he claims that the note, on account of such usurious agreement, is invalid.
    The action being at issue was brought to trial before the court and a jury, and a verdict was directed in favor of the plaintiffs. The judgment entered upon the verdict having been affirmed at the general term, the defendant has appealed to this court.

      J. Hampden Dougherty, for app'lt; William C. Beecher and Alexander B. Simonds, for resp'ts.

       Affirming 46 St. Rep., 25.

   Earl, J.

Usury is a crime, and he who alleges it as a defense to an obligation to pay money must establish it by clear and satisfactory evidence. He enters upon the defense with the presumption against the violation of the law and in favor of the innocence of the party charged with the usury. He cannot properly claim to have the usury inferred where the evidence is inconclusive and just as consistent with the absence as with the presence of usury. It is a just requirement that all the facts constituting the usury should be proved with reasonable certainty, and that they shall not be established by mere surmise and conjecture, or bv inferences entirely uncertain. Matter of Consalus, 95 N. Y., 340; Stillman v. Northrup, 109 id., 473; 16 St. Rep., 417; Baldwin v. Doying, 114 N. Y., 452; 23 St. Rep., 759.

We have carefully scrutinized the evidence in this case and we do not find any certain or satisfactory proof that there ever was a usurious agreement between James L. White and the defendant, by which the former exacted of the latter more than the legal rate of interest as a condition of any of the loans which finally entéred into the note in suit. There is some evidence from which it could be inferred that the defendant at various times paid to Mr. White more than the legal rate of interest; but it does not appear that such payments were made in pursuance of an usurious agreement. It is fairly inferable from all the evidence that the payments were voluntarily made by the defendant and not in pursuance of any exaction made by Mr. White at the time of the loan of money. There seems to have been various business transactions between White and the defendant, and we have no means of knowing the precise bearing of many of the payments which are alleged to have been for excessive interest. It would be a useless labor now to analyze all the evidence and attempt to show the bearings of it. It is sufficient to say of it that it is not of such a satisfactory character as wrould have authorized the jury, if submitted to-them, to find that the note in- suit, or any one of the notes which preceded it, was given in pursuance of an usurious agreement.

James L. White having died long before the commencement of this action, and the defendant claiming that the usurious agreements were made with him, he attempted in various ways to give evidence tending to establish such agreements. And there were many objections to evidence which he offered to give on the ground that it would violate § 829 of the Code. We have carefully examined the objections, and without calling particular attention to them we are satisfied that that section was fairly enforced at the trial, and that none of the evidence which the defendant offered to give was erroneously excluded under that section.

The defendant setting up the defense of usury more than five years after the death of Mr. White, in the meantime having paid the annual interest upon the note, and for the first time alleging the usury when called upon to pay the principal, cannot justly complain if the rules of evidence established for the protection of the estates of the dead are rigidly applied and wisely and discreetly enforced to that end.

The defendant claims that the first note for $100,000 was given by him to Mr. White January 1, 1881, and that that note was annually renewed by him, the last one having been given to Mr. White January 1, 1884, and then the note in suit having been given to his executor January 1, 1885. The annual interest upon these notes at the rate of six per cent was paid to January 1, 1889. The defendant claims that the first of these notes was given under an agreement witli Mr. White that he should in addition to the lawful interest receive twenty per cent of the profits of the business in which the defendant was engaged, and that he paid him that share of the profits during his lifetime. There is no evidence tending to show that these payments were made in pursuance of an usurious agreement or exaction. For aught that appears, they «may have been rightfully made under some lawful agreement with Mr. White and upon some lawful consideration. It cannot be presumed that they were unlawful and usurious. Even if they were voluntarily made by the defendant from motives of gratitude or generosity, and not for the loan or forbearance of money, he could not at any time have recovered them back under the statute, R. S., part 2, chap. 4, title 3, § 3, and he could not ask to have them credited as payments upon this note. Before the defendant could properly claim to have such payments credited as payments upon this note, he was bound to show that they were usurious, and this he failed to do.

On the whole record, we think no error was committed prejudicial to the defendant, and that the judgment should be affirmed, with costs.

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


author: Per Curiam.

text:
    Louis T. Duryea et al., App'lts, v. William C. Vosburgh, Resp't.

      (Court of Appeals,

      Filed April 25, 1893.)

    Brokers—Action fob moneys retained by.
    Defendant was employed as agent for plaintiffs for the purpose of ascertaining the lowest price at which one Peck would sell his interest in the business of V. & Co., in which firm defendant was a partner. He ascertained the lowest price that Peck would take was $45,750, and reported the amount of $51,750 to plaintiffs, retaining the $6,000 himself; which he claimed Peck had agreed to allow him for his consent to plaintiff’s coming into the firm. In an action for the amount retained by him the court, upon request, charged the jury that before they could find a verdict against defendant, they must find that $51,750 was not Peck’s lowest price in view of the sum he was to pay Yosburgh. Held, error; that, as plaintiffs’ agent, he was bound, in good faith, to report to plaintiffs that the lowest price was a certain sum, but to that was to be added another sum as a consideration to defendant to obtain his consent to taking in the new partner.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for defendant entered on verdict.
    Defendant was employed, or undertook, to obtain the lowest price for which the interest of Edwin S. Peck in the partnership of R. C. Yosburgh & Co. could be bought by the plaintiffs. Defendant bought the interest for $6,000 less than the sum which plaintiffs paid for the interest and kept the $6,000 himself, reporting to plaintiffs the larger sum. Defendant claimed that the $6,000, by agreement between himself and Peck, was to be paid for his services, also for his consent that plaintiffs should be admitted as partners in the firm.

      E. Countryman, for app’lts; Matthew Hale, for resp’t.

       Reversing 45 St. Rep., 17.

   Per Curiam.

The court, upon request, charged the jury that before they could find a verdict against defendant, they must find that $51,750 was not Peck’s lowest price in view of the sum that he was to pay Yosburgh. We think this was error; Taking the evidence on the part of the plaintiffs as true, which we must, when looking at the case with reference to this charge, we have the defendant occupying the position of their agent for the purpose of ascertaining the lowest price at which Peck would sell his interest in the business. As such agent, he was bound in good faith to perform that duty, and to ascertain and report to the plaintiffs what the lowest price was. Bid he perform such duty, by ascertaining the lowest price that Peck would take for his interest, and then silently adding to that sum the amount of $6,000, which was to be paid by Peck to defendant as the price of his consent to the transfer of the partnership interest by Peck, and reporting to the plaintiffs this total sum for Peck’s interest and for defendant’s consent as the lowest price" for Peck’s interest alone ? We think not.

If defendant were such agent, it would have been his duty to inform the plaintiffs that the lowest price for Peck’s interest was a ■certain sum, but to that was to be added another sum as a consideration to defendant to obtain his consent to taking in as a partner the person who was to' purchase the interest of Peck.

It is true that in the main charge the court instructed the jury that if, under the circumstances, the defendant acted as the agent of the plaintiffs to get the lowest price from Peck, he was liable. But the request made by defendant’s counsel subsequent to the main charge might well be understood as qualifying that statement in the manner and to the extent mentioned in the request. After this charge, as made upon the request, there was not much left of the plaintiffs’ case.

This error was material and radical. The judgment must, therefore, be reversed, and a new trial granted, with costs to abide the event.

All concur.


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    William Lord, App'lt, v. Albert H. Atkins et al., Resp'ts.

      (Court of Appeals,

      Filed April 25, 1893.)

    Highways—Dedication.
    In 1849 one K. conveyed fifty-seven acres of land to a college, the trustees of whicl^ divided the tract into village lots, bounded upon streets and avenues. Upon a map which they caused to be made, in 1858, of the northern part of the tract, East avenue was laid out three rods wide, running north and south. The easterly boundary was delineated for the full length of the street, but the westerly appeared only by a line for part of the way. The college project was abandoned, and the title to the village lots in question, in front of which defendants attempted to grade for a street, came to plaintiff through several mesne conveyances from the trustees of the college, in all of which East avenue is referred to, or the lots described as on the east side of, or on the avenue. Held, that these facts and circumstances justified the finding of the trial court that the locus in quo had become a public street or highway by dedication as to these parties, though the duties and burdens of maintaining it are not imposed upon the public until accepted in some way.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendants.

      Wm. J. Mantanye, for app'lt; A. P. Smith, for resp'ts.

       Affirming 48 St. Rep., 968.

   O'Brien, J.

The complaint charged the defendants with a trespass upon the plaintiff’s lands by entering upon them without authority, with teams, and plowing the same and injuring the plaintiff’s crops. The defendants justified their acts by alleging that the locus in quo was a public highway. The place had never been worked as a public highway before, but all the acts done or performed by the defendants upon the land in question were, confessedly, such as they could rightfully do upon the assumption that the locus in quo was in fact a public street or highway. The plaintiff claimed to own the land in fee free from any easement in favor of the defendants or the public for a street, highway or otherwise. The issues between the parties were mostly, if not wholly, upon questions of fact, and the courts below have found with the defendants. It is not claimed that the street was ever laid out by any public authority, but only that it was dedicated to the use of the public as a street or highway by the original owners of the land, and from whom both the plaintiff’s and defendants’ title is derived. The strip of land upon which the alleged wrongful entry was made was originally part of a parcel of fifty seven acres winch was conveyed to New York Central College by Gilmore Kinney in the year 1849. This deed recalls an interesting chapter in the political history of that day, recent enough to be within the memory of men still in active life. The college was projected by Gerrit Smith and others with a view to aid in the crusade that they had entered upon against the institution of slavery.'

It was intended, as we may assume, to be not only an instrument for the propagation of the principles of its founders, but a _ home where the fugitive from the South might be educated. The buildings were erected on this fifty-seven acres, and the projectors, with that hope and confidence which colored all their views of the future, anticipated that a considerable village would soon grow up and cluster around them. The trustees divided the tract into village lots, bounded upon streets and avenues. In 1858, they caused a map to be made of the northern portion of the tract, upon which these village lots and the streets and avenues were shown, and a written explanation was annexed to such map giving the location of the streets and avenues and the dimensions, location and number of the several village lots thereon. From this written statement it appears that East avenue was a street three rods in width running north and south. The eastern boundary is delineated on the map for the full length of the street, but the westerly boundary appears only by a line on the map three rods west of the easterly boundary, but extending south only about two-thirds of the length of the avenue, as claimed by the defendants. The land on the east is all divided and plotted into village lots, and numbered upon the map from one to eleven, the last named being the most southerly lot. Though the westerly street line is not delineated on the map in front of the lots on the south, from seven to eleven inclusive, yet these lots, with the others, are all described by numbers in the written statement attached to the map as bounded on East avenue. The locus in quo is in front of these seven lots on the west, and if the westerly line upon the map referred to was extended south the same distance as the easterly line, then it would be within the boundaries of the street, and the defendants had the right to grade and prepare the land there for use as a street. The court below has found that there was a dedication of the land in question to the use of the public as a street

The plaintiff is the owner of four acres in front and west of the seven village lots, and he claims that his title in fee extends to the west line of the lots as they appear on the map, which would exclude the street claimed, whereas the defendants claim that plaintiff’s easterly boundary and their westerly boundary are separated by a street three rods in width. The college is the common source of title, and it evidently intended to dedicate the strip of land in question to the purposes of a public street by the written statement attached to the map, describing the lots as on East avenue, though the westerly street line was not exhibited on the map for the whole distance north and south. In 1858 it became apparent that the college was not to be a success, and the trustees conveyed the whole tract to Gferrit Smith, excepting, however, . eight of the village lots “ lying on and east of East avenue,” which lots are described in the exception by numbers. This deed, therefore, recognized the existence of a street at the point in question.

In 1872 Smith conveyed the whole tract to McGraw, subject, however, to the reservations expressed in his deed from the trustees, and in 1884 McGraw conveyed about eight acres, including the college buildings, to the union free school. This grant extended to the east side of East avenue, and includes the street, but recognizes its existence as such. The same year the trustees of the school conveyed about four acres to the plaintiff. This grant extended to the east line of East avenue, and included the street, or the land which the defendants claim was subject to an easement for a street. The plaintiff, therefore, took his title with a distinct recognition in his deed of the existence of a street on the east side of it. It is of but little consequence that the deed assumed to convey the soil included in the street boundaries. The grantor could convey it subject to the easement, and that is the effect of the conveyance.

The important thing in the deed is that it recognized the existence of East avenue in front and west of the lands of the defendants. So the title of the defendants to the village lots, in front of which they attempted to grade for a street, came to them through several mesne conveyances from the trustees of the college, in all of which East avenue is referred to, or the lots are described as on the east side of, or on the avenue. These facts and circumstances justified the finding of the trial court that the locus in quo had become a public street or highway by dedication as to these parties, though the duties and burdens of maintaining it are not imposed upon the public until accepted in some way.

It is well settled that when the owner of land lays it out into distinct lots, with intersecting streets or avenues, and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. When, in such a case, a lot is sold bounded by a street, the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right. Story case, 90 N.Y., 145; The Trustees, etc., v. Cowen, 4 Paige, 510; Wyman v. The Mayor, 11 Wend., 487; Bissell v. N. Y. C. & H. R. R. R. Co. 23 N.Y., 61; White's Bank, etc., v. Nichols, 64 id., 65; Taylor v. Hopper, 62 id., 649; Huttemeier v. Albro, 18 id., 48.

The main contention of the plaintiff seems to be that after and about the time that Smith took the conveyance of the property from the college, he also foreclosed a prior purchase money mortgage, and took title under that, thus extinguishing all easements for street purposes originating after the college became possessed of the property. There is no finding to sustain this claim, though it does appear in the evidence that Smith did foreclose a mortgage, under the statute, given by the college for a portion of the purchase money, and purchased the land upon the sale. It is not important to inquire as to the purpose or effect of this proceeding, for, more than ten years afterwards, when Smith conveyed to Mc-Grraw, he limited the grant to such estate as had been conveyed to him in the deed from the college. He did not assume to convey any other or greater right, and it is under this conveyance that the plaintiff claims. In purchasing under the statutory foreclosure he could have recognized the division of the property, subsequent to the mortgage, into village lots intersected by streets and bounded thereon. Indeed, he was in equity bound to take notice of the new situation and recognize rights which had arisen in the meantime. That he did so.is shown by the fact that he subsequently conveyed the whole property subject to every easement or right that could have been enforced against the college, his grantor. Some exceptions taken at the trial are discussed upon the brief of the learned counsel for the plaintiff. We have examined them, and as they do not appear to present any legal error that could have prejudiced him, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


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    Tobias Oberfelder, Resp't, v. The Metropolitan Elevated Railway Company et al., App'lts.

      (Court of Appeals,

      Filed April 25, 1893.)

    Bailboads—Elevated—Evidence.
    Where, after the commencement of an action in the usual form against an elevated railroad, the defendants institute condemnation proceedings for the purpose of acquiring the property interests of the plaintiff in the avenue in front of his lot, and the report of the commissioners of appraisal is confirmed and the order duly entered, the determination as to the value of the property interests of the plaintiff in the avenue is admissible in evidence, and is just as binding upon both parties as though it had been made in an action.
    Appeal from judgment of the New York Superior court, general term, affirming judgment in favor of plaintiff upon a decision after trial at special term.

      Brainard Tolies, for app'lts; Justus A. B. Cowles, for resp't

       Affirming 46 St. Rep., 967.

   Earl, J.

The plaintiff owns a lot abutting upon First avenue, in the city of New York, through which the elevated railroad was constructed, and he commenced this action in the usual form to recover damages and for an injunction. At the special term, the court found the rental damages to be §1,580, and the fee damage $1,700, and granted judgment in the usual form in this class of cases.

After the commencement of this action, the defendants instituted condemnation proceedings for the purpose of acquiring the property interests of the plaintiff in the avenue in front of his lot. The proceedings were instituted under the general railroad act of 1850, and the acts amendatory thereof. Commissioners of appraisal were appointed, and, after hearing the parties, they made their report to the supreme court, by which they appraised the value of the plaintiff’s property interests at $1,700. Upon motion of the defendants that report was confirmed by the special term, and an order of confirmation was duly entered. Upon the trial of this action, for the purpose of establishing the value of the property interests of the plaintiff in the avenue, the condemnation proceedings, including the final order of confirmation, were introduced in evidence, and the court held that the defendants were concluded by the value of the plaintiff’s property interests as thus determined. The defendants now complain of this ruling as erroneous, and solely on account thereof seek to have this judgment reversed.

We think the determination in the condemnation proceedings as to the value of the property interests of the plaintiff in the avenue was binding upon both parties. It was a final adjudication in a special proceeding, and the adjudication is just as binding as though it had been made in an action. People ex rel. Hatzel v. Hall, 80 N. Y., 117. There was to be no further judicial action in that proceeding. The claim of the defendants is that it did not become a final adjudication until a certified copy of the order was recorded as required by §18 of the act as amended in 1876. It is true that under that section the defendants would not be vested with the title of the property taken until a certified copy of the order of confirmation was recorded in the county clerk’s office, and the value of the property as determinéd was paid or deposited. That section also provides that if the company prosecuting the condemnation proceedings shall neglect to have the order recorded and make the payment or deposit as required in the section for a period of ten days after the date of the order, then any party to the proceeding interested therein may, at his election, cause a certified copy of the order to be recorded, and thereupon the moneys directed to be paid, with interest from the date of the order, shall be a lien upon the real estate, and may be enforced and collected by action at law or in equity in the supreme court, with costs. It is further provided that the company may abandon the proceedings by filing within thirty days after notice in writing of such recorded order, in the office of the county clerk, a notice of its determination to do so and paying the reasonable costs and expenses of the party, to be ascertained and adjusted by the court making the order. By these provisions there is to be no change of the adjudication contained in the final order. They simply provide for carrying the adjudication into effect, or for its abandonment. The value of the property taken is finally fixed and determined for all purposes, and the adjudication remains in force unless set aside, reversed or abandoned. Here the defendants did not abandon the proceedings, and the order of confirmation is in full force and effect. The value of the property interests of the plaintiff has once been litigated between these parties and determined by a competent tribunal, and we can perceive no reason for taking this case out of the general rule that both parties are concluded by an adjudication thus made.

The judgment should be affirmed, with costs.

All concur.


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    Leopold Adler, Resp't, v. The Metropolitan Elevated Railway Company et al., App'lts.

      (Court of Appeals,

      Filed April 25, 1893.)

    1. Railroads—Elevated.
    Upon the trial of an equitable action to restrain defendants from operating their road in front of plaintiff’s premises and to recover past damages the following requests to find were presented on behalf of defendants, (1) that the proximity of the station to plaintiff’s premises was a convenience to tenants occupying the flats and tended to render them more desirable as places of residence; (3) that the station was used by thousands of passengers daily, and (8) that many persons are caused thereby to pass near to or in front of the plaintiff’s store, and that the business was thereby benefited, and the rental value of the store increased. 1 he court refused the findings proposed because they related to matters of evidence, and not because the facts embodied in the requests were not material to the injury. Held, no error. -
    U. Same—Encroachment on street.
    The defendants had placed an iron pillar in Eighth street, on the corner of which plaintiff's premises were situated, and a portion of its station encroaches on Eighth street about two feet and extends within about two feet ten inches of plaintiff’s house. The judgment in the action enjoined defendant from maintaining the station structure in Eighth street and directed its removal so far as it encroached upon said street. Held, error; as plaintiff could not, in his capacity as a citizen, merely, maintain an equitable action for an injunction for the removal of the obstruction, or as the owner of the adjacent property, as it was not shown that he had an interest in the soil occupied by the station.
    3. Same.
    The erection of a pillar or other structure in front of plaintiff’s premises in the street, which does not substantially and appreciably interfere with the plaintiff’s right to light, air and access to his premises, furnishes no ground for his invoking the equitable powers of the court.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiff.

      Brainard Tolles, for app’lts; Charles P. Cowles, for resp’t.

       Modifying and affirming 46 St. Rep., 253.

   Andrews, Ch. J.

appeal is taken by the defendants from

This the affirmance by the general term of the superior court of the city of New York of the judgment of the trial court in an equitable action brought by the plaintiff, the owner of premises on the corner of First avenue and Eighth street in the city of New York, to restrain the defendants from operating their road in front thereof on First avenue, and to recover past damages. The complaint also alleges that the station of the defendants’ road at that point encroaches upon Eighth street adjoining the plaintiff’s lot. The judgment awards the plaintiff $1,250 foropast damages, and conditionally the sum of .$5,000 for the permanent depreciation of the fee value of his property. The judgment by a separate and independent provision enjoins the defendants from the occupation of the part of Eighth street encroached upon by the station and structure of the defendants, and directs them to remove therefrom the part of the same within the limits of Eighth street.

The plaintiff purchased the premises in 1887, and changed and reconstructed the building which had theretofore existed thereon, and finished the upper stories for flats and the first story for a store, with a basement which was rented as a grocery and liquor store. In order to establish a claim for past damages the plaintiff gave evidence "tending to show that the tenants were annoyed by the dust, smoke and noise from the operation of the railway and that he was unable for that reason to keep tenants in the flats, and lost thereby rents which otherwise he would have received. He relied for proof of the permanent damages to the property upon evidence such as is usually given in these cases. In addition to the proof of the physical disturbances caused by the operation of the road, witnesses were called to prove the relation of the rents obtained to the fee value of the property; the course of values on First avenue and the side streets in the vicinity of the plaintiff's property, and each party produced experts who gave testimony bearing upon the question of damages. It is claimed in behalf of the defendants that there was no sufficient evidence to sustain the award of damages made by the trial court. It must be admitted that the proof as to the existence or quanlurrj of damages is not of that certain character upon which the mind can rest with entire confidence. This seems to be a condition inseparable from the inquiry in these cases. The facts upon which the inference of damage or benefit by reason of the existence and operation of the elevated railway "is to be drawn are so varied, and the true bearing of the facts proved upon the ultimate question to be determined is so difficult many times to perceive, that the court may well distrust the exact justice of the conclusion reached. But these difficulties are inherent in the nature of the inquiry. This court is to a great extent relieved from the perplexities which attend the original inquiry. The cases against the elevated railways are subject to the general rule which limits the jurisdiction of this court to the review and determination of questions of law, and if there is evidence in the record tending to sustain the finding of damages, and no rule of law has been violated, the award must be sustained. We are of opinion that there is evidence in the record before us which authorized the findings of the court below on the question of damages, and it would serve no useful purpose to recapitulate it.

The counsel for the defendants urges that there was legal error in the refusal of the trial court to find certain requests presented ■ on their behalf, viz.: (1) that the proximity of the station to the plaintiff’s premises was a convenience to tenants occupying the fiats, and tended to render them more desirable as places of residence ; (2) that the station was used by thousands of passengers daily, and (8) that many persons are caused thereby to pass near to or in front of the plaintiff’s store, and that the business was thereby benefited and the rental value of the store increased. The trial judge refused to find these requests on the ground that they related to matters of evidence.

We think these rulings present no error of law. The first two requests relate exclusively to evidence bearing upon the ultimate fact whether the plaintiff’s property was benefited by the railway, and the proposed finding in the last clause of the third request is not supported by uncontradicted evidence. The rule that a court or referee is not bound to find evidentiary facts leading to or bearing upon the ultimate fact is well settled. The case of Bohm, 129 N. Y., 576; 42 St. Rep., 247, does not and was not intended to disturb this rule. The question in that case was, whether the trial judge had erred in the rule of damages and had excluded in ascertaining the damages the consideration of benefit. In that case findings were proposed in behalf of the defendants which were supported by uncontradicted evidence that the effect of the railway had been to greatly increase the population and thereby incidentally benefit the property there in question, and also that it had largely increased the value of real estate on Second avenue. The trial judge refused to find these requests, on the ground, as the court inferred from the record, that the facts requested to be found were immaterial, which was plainly erroneous, and that a wrong rule of damages had been applied.

In the present case the court refused the findings proposed because they related to matters of evidence, and not because the facts embodied in the requests were not material to the inquiry. There is nothing in the record which tends to show that the trial judge in awarding damages did not take into consideration both the advantages and disadvantages to the property from the existence of the road. There are some exceptions to evidence taken on the trial by the defendants, but they present no material error.

We are of opinion, however, that that part of the judgment which enjoins the defendants from maintaining the part of the station structure located in Eighth street and directing its removal so far as it encroaches on that street, should be reversed. It appears that in Eighth street the defendants have placed an iron pillar and that a portion of its station encroaches on Eighth street about two feet and extends within about two feet ten inches of plaintiff’s house. It is claimed in behalf of the plaintiff that the authority vested in the defendants to construct stations limits them to a location wholly within the lines of First avenue, and that any extension of any part of the structure into Eighth street was unlawful and without authority, and that, therefore, the judgment requiring the defendants to remove the part of the structure in that street was authorized. It is claimed by the counsel for the defendants that there is no such narrow restriction of their authority in the location of their stations as is claimed by the plaintiff.

But without considering this contention, we are of opinion that this part of the judgment should be reversed, on the ground that the plaintiff is not the representative of the public right, and that assuming that the location in Eighth street was an infringement of the public right in the street, he cannot, in his capacity as a citizen merely, maintain an equitable action for an injunction for the removal of the obstruction, and that he cannot maintain it as the owner of adjacent property, for the reason that the case discloses that he has no interest in the soil occupied by the station, and that it is not shown by the evidence that he has sustained any substantial injury, by reason of the encroachment, to any right appurtenant to his premises. The rule is elementary that a private individual cannot maintain an action to abate a public nuisance unless he is specially injured, nor will the court exert its equitable power of injunction in a case of a violation of a mere abstract right, unaccompanied with any substantial injury, present or apprehended. The erection of a pillar or other structure in front of plaintiff’s premises in the street, which does not substantially and appreciably interfere with the plaintiff’s right to light, air and access to his premises, furnishes no ground for his invoking the equitable powers of the court. In the present case there is no evidence which would justify a finding that any distinct, separate or additional injury to the plaintiff’s premises was inflicted by the encroachment in question. He was allowed damages for the permanent injury to his property from the existence of the railroad and station in First avenue, and the attempt to separate the damages caused by this encroachment of two feet from that caused by the rest of the station is impracticable. The plaintiff failed to show any special injury, or any injury whatever, from the part of the structure in Eighth street. There was no invasion of anything in the nature of a property right of the plaintiff by the erection, unless it perceptibly interfered with his easements of light, air and access to his premises, and this was not shown.

The authorities are numerous that special injury is an indispensable condition to the maintaining by a private person of an action to abate or restrain a public nuisance. Lansing v. Smith, 8 Cow., 146; Doolittle v. Supervisors, 18 N. Y., 155; Fort Plain Bridge Co. v. Smith, 30 id., 44.

The judgment should be modified by striking out that part of the judgment relating to the structure in Eighth street, and, as so modified, affirmed, without costs to either party in this court.

All concur.