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

text:
    Benjamin J. Blankman, Resp’t, v. John McQueen, Adm’r, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Evidence—Code Orv. Pbo., § 839.
    Testimony given by a witness upon re-examination as to personal transactions with a decedent is not objectionable under § 839 of the Code, where he has been questioned by the counsel for the administrator on cross-examination as to the same subjects.
    Appeal from order of special term denying motion for new trial on a case containing exceptions, a reference having been had to determine the validity of a claim against the decedent’s estate.

      A. McDonald, for app’lt; D. C. Briggs, for resp’t.
   Van Brunt, P. J.

We have examined the record in the case at bar and see no reason to differ from the conclusion arrived at by the judge at the special term.

Hone of the objections presented upon the record are well taken; and we do not think it necessary to refer to them in detail, because the counsel for the appellant has not considered the question of sufficient importance to refer in his points to the correct folios in the case affecting the same; but reference is made to some imaginary case which is not before the court.

The order should be affirmed, with costs.

Daniels, J.

It is quite clear that the answers obtained from the witness Pandjiris on her re-examination were free from legal exception. For on her cross-examination she was questioned on the same subject by the counsel for the administrator. And after that examination the claimant’s counsel was entitled to fortify or explain, or add to her answers given by way of cross-examination. In no other respect does the rules of evidence appear to have been violated, and the mode adopted for the final disposition of the case was regular.

It is, therefore, considered that the order made should be affirmed, with costs.

Brady, J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    Sarah J. Pandjiris, Resp’t, v. John McQueen, Adm’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)
    1. Witness—Privileged communications.
    Testimony of physicians concerning the rendition of services of a claimant as a nurse to their patient is not objectionable under § 834 of the Code. Knowledge of such fact is not information at all entering into their professional conduct as the physicians of the intestate.
    2. Same—Claims against decedent’s estates.
    The joinder of two or more claims against a decedent’s estate in the sam e reference does not deprive either of its individuality, or make either of the claimants a party to the proceeding of the other.
    Appeal from order of special term denying motion for new trial on a case containing exceptions, a reference having been had to determine the validity of a claim against the decedent’s estate.

      A. McDonald, for app’lt'; D. C. Briggs, for resp’t.
   Van Brunt, P. J.

We have examined the record in the case at bar and see no reason to differ from the conclusion arrived at by the judge at the special term.

None of the objections presented upon the record are well taken, and we do not think it necessary to refer to them in detail, because the counsel for the appellant has not considered the question of sufficient importance to refer in his points to the correct folios in the case affecting the same, but reference is made to folios in some imaginary case which is not before the court

The order should be affirmed, with costs.

Daniels, J.

The objections taken to the evidence obtained from the physicians, and the motion to strike out their answers, were devoid of legal foundation. What they testified to concerning the claimant’s services and employment in no way entrenched upon § 834 of the Code of Civil Procedure. It was not information at all entering into their professional conduct as the physicians of the intestate, but related to a wholly distinct and separate subject. Neither were either of the physicians a party to her proceeding, nor was this claimant a party to the proceeding of either physician. Joining them in the reference agreed upon and ordered did not deprive either proceeding of its individuality. And the oath administered was entirely regular. The evidence, too, was sufficient to sustain the conclusion of the referee. It was for him to decide upon the weight of the evidence given. There are other objections, but they seem to be clearly frivolous, and the order should be affirmed, with costs.

Brady, J., concurs.


author: Beach, J. Brady, J.

text:
    The People ex rel. Benjamin W. Winans et al., App’lts, v. Ambrose T. Adams et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Costs—Extra allowance—Usurpation op office.
    Where the complaint in an action to oust defendants as usurpers in office demands that each shall pay the fine provided for by § 1956 of the Code, the aggregate amount of such fines furnishes a basis for an extra allowance.
    Appeal from order made at circuit, granting defendants an extra allowance of $350.
    The action was brought to set aside an election of the Church of the Holy Nativity, held in April, 1890, at which election these plaintiffs claimed to have been duly elected wardens and vestrymen of said church.

      W. H. Arnoux, for app’lts; Hoffman Miller, for resp’ts.
   The following is the opinion at special term:

Beach, J.

The complaint, additional to other relief, demands a judgment that each of the defendants pay to the People of the State of New York a fine of $2,000. This is an “ amount claimed ” aggregating $20,000, and may be made the basis for an additional allowance under § 3253, Code of Civ. Pro. An allowance of $350 is granted.

Brady, J.

This is an action against the defendants as usurpers and its object is to oust them. The relief demanded is not only this but that others named be declared entitled to the offices they usurp, and that each of the usurpers pay a fine of $2,000. The fine could be imposed under § 1956 of the Code and the defendants having this additional claim made against them, were justified in making any and all preparation to resist it. The proof required to warrant such a fine, it has been said, must be of some criminal or grossly improper act in taking or holding the office, People v. Nolan, 65 How., 468, and hence the claim was not only grave in aspect but to an amount aggregating $20,000, as said by the learned justice in the court below, and the basis therefore for an additional allowance under § 3253 of the Code. If the plaintiff did not intend to essay to recover the sum named it should not have been claimed in the complaint It is there, howevér, and must bear the ordinary vicissitudes of legal proceedings.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

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


author: Van Brunt, P. J.

text:
    William T. Doyle, an Infant, Resp’t, v. The Manhattan R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Trial—Striking out testimony.
    It is to a certain degree discretionary -with, the trial court as to whether evidence admitted without objection shall be stricken out or not, and hence a refusal to strike out such evidence is not reversible error.
    3. Negligence—Evidence.
    In an action for injuries caused by negligence, evidence to the effect that plaintiff since the accident had headaches every day is competent as evidence of a physical fact which existed subsequent to the accident and did not exist before.
    3. Same.
    A nonexpert witness may testify to the fact that he observed a cast in plaintiff’s eye which was not there before the accident, and the fact that there was no evidence connecting this condition of the eye with the accident is no reason for the exclusion of such testimony.
    Appeal from judgment entered after trial before a jury.

      Davies & Rapallo, for app’lt; John C. McGuire, for resp’t.
   Van Brunt, P. J.

All the principal points taken in this case having already been decided in the case of Weiler v. Manhattan Ry. Co., 53 Hun, 372; 25 N. Y. State Rep., 543, it is not necessary to re-discuss the same here.

There are one or two exceptions to evidence which it may be necessary to note.

The plaintiff testified that prior to the accident he had been healthy, and was never sick before the accident; and he was asked : “ Since the accident what has been your condition ? ” His reply was: “I have headaches and bad feelings when I get up in the morning.”

The defendant’s counsel moved to strike out the ansjver as to the bad feelings when he gets up in the morning on the ground that it was indefinite, uncertain, conjectural, and not shown to be connected with the accident, and that there was no proper basis for it The court denied the motion, and an exception was taken.

He was then asked: “Q. You say you have headaches since? A. Yes.”

“Q. How frequently ? ” The question was objected to upon the same ground, the objection overruled, and the witness answered : “ Every day.”

There seems to have been no error in refusing to strike out the testimony which was given, because of which a new trial should be granted, because it is to a certain degree discretionary with the court as to whether evidence once admitted without objection shall be stricken out or not

As to the next question, the witness was testifying to a physical fact which existed subsequent to the accident, and did not exist before. Evidence of this character seems to be entirely competent

Another witness was asked: “ Have you observed the cast in your brother’s eye at present ? ” He answered “Yes.” He was then asked: “ Do you know whether or not that crossing or cast in his eye was there before the accident ? ”

This was objected to as irrelevant and that there was no direct or expert evidence showing that the plaintiff had received any injury which was the cause of any such defect; and upon the further ground that it was not a matter for a lay witness to testify to.

This objection is clearly untenable. Lay witnesses could testify to this physical fact with equal certainty as an expert could, and the fact that there was no evidence connecting this condition of the eye with the accident was no reason for its exclusion. That was a question for the jury to determine whether from the evidence one could be deduced from the other.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.


author: Van Brunt. P. J.

text:
    Frederick J. Prentiss, App’lt, v. George H. H. Butler, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Attachment—Non-residence.
    . Unless there is a clear preponderance of evidence against it, the conclusion of the special term on the question of residence will not be disturbed by the general term, although as an original question it might have come to a different conclusion on the affidavits.
    3. Same.
    Facts insufficient to show non-residence.
    . Appeal from order vacating attachment issued against the property of the respondent as a non-resident

      L. A. Lockwood, for app’lt; J. H. Dougherty, for resp’t.
   Van Brunt. P. J.

A large part of the bulky record presented upon this appeal consists of affidavits reflecting upon the motive in procuring the attachment in question and upon the validity of the notes upon which this action is brought The special term in its order vacating the attachment basing its conclusion solely upon the ground that the defendant was not a non-resident of this state, only this point will be considered in the determination of this appeal.

Although perhaps if this question had been presented originally to this court, upon the affidavits contained in this record, we might have come to a different conclusion from that arrived at by the learned judge at the special term, we do not think there was such a preponderance of evidence against that conclusion as will justify us in a reversal of the order.

_ Residence is so much a question of intention that it is with difficulty often that a correct conclusion can be reached; and such intention can only be deduced from facts and circumstances in respect to the existence of which there may be great conflict of testimony.

It may be that notwithstanding the leasing of his house in New York, the hiring of the house in New Jersey and his removal there, the defendant Butler had no intention of giving up his residence in the state of New York.

There is no question but that he had no place of abode except at Orange, N. J., and the attempt to make out a place of abode at his uncle’s in the city of New York is so manifestly a fabrication that it seems to reflect discredit upon the whole of his claim. There is no question but that this place at his uncle’s was not intended as a place of abode, but as a place in which he might transact his business, and there is no claim that at any part of the time either he or any of his family ever spent a night there.

The claim made upon the part of the plaintiff that the imposition of a poll tax in New Jersey and the fact that it was not appealed from clearly can have but little weight. The tax was so small that the tacit assent to its levy cannot in any way tend to establish the fact that he was a resident, although such tax can only be imposed upon residents.

The mailing of his latters to Orange was entirely consistent with a temporary residence there and the giving of his address in the New York City Directory was not done by himself but by another.

The fact that he was regarded by the employes of the firm as a resident of New Jersey entirely arose from the fact of his having moved over there even though he may have had no intention of acquiring a residence in that state.

There is also evidence that he claimed exemption from the levy of a personal tax upon the ground that he was not a resident of New Jersey but of New York.

The personal tax levied upon his wife was upon the furniture and personal property within the „ state, which it appears, according to the laws of that state was liable to taxation whether its owner was a resident of the state or not.

Upon the whole case we think the question was a fair one for the determination of the court below and no sufficient reason appears upon the record for the reversal of the order made.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.


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

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Railboad—Elevated—Action may be maintained by owneb of leased PBEMISES.
    An action against an elevated railroad to recover damages for trespass committed by it to easements may be maintained by an owner of leased premises where, because of such trespass, he can procure from his lessee only a reduced rent from that which he would have received had the trespass not existed.
    Appeal from judgment entered upon the verdict of a jury.

      Edward B. Thomas, for app’lt; W. H. Arnoux, for resp’t.
   Van Brunt, P. J.

The plaintiff is the owner of the premises known as Ho. 13 Bowery, and this action was brought to recover damages for the trespass committed upon the easements incident and appurtenant to the plaintiff’s ownership of said premises by the erection, maintenance and operation of the defendant’s railroad.

The plaintiff testified in respect to the time set forth in the complaint that he was not in the actual occupancy of any part of this property; that it was all rented out to somebody else and in the possession of somebody else.

The letting is shown to have continued during the whole period of time, but it would seem that the premises were occupied by different tenants during the time under consideration.

It further appears from the evidence that the rents were affected by the building of the railroad of the defendant and that the plaintiff was able to let the premises for much less than he could have done were it not for the existence, maintenance and operation of the defendant’s road.

There is but one question presented upon this appeal for our consideration; and it arises from an exception taken to the refusal of the court to charge as requested.

The charge was in the following language:

“ That if the jury find that the premises described in the complaint were in the possession of tenants at any or. all times during the period subsequent to the construction of the defendant’s railroad and prior to the commencement of this action, then they must award no damages to the plaintiff for such period as the premises were in the possession of such tenant or tenants.”

A very learned and exhaustive argument was submitted to the court touching the relative rights of lessors and lessees in respect to trespasses continuing in their nature upon premises leased. But we do not think that any such question arises in the consideration of the exception to which attention has been called.

The rule is well settled that trespasses such as the defendant committed in respect to the property of the plaintiff are continuing trespasses, new causes of action arising thereon from day to day; and it is also well settled that the cause of action for past damages arising from a trespass is a chose in action belonging to the owner of the fee which passes upon his death to his personal representatives and not to his heirs-at-law, as does a right to compensation for permanent injury. In the one case the right is attached to the realty; in the other it becomes daily severed therefrom.

The result, therefore, is that the trespasses having been commenced and being continued at the time that the owner of the fee makes a lease of his premises, and because of the existence of that trespass the owner can procure from his lessee only a reduced rent from that which he would have received had the trespass not existed, a right of action at once accrues for the whole loss. It does not depend upon the continuance of the trespass. It is not a recovery of damages in anticipation of a continuation of the trespass. Under such circumstances the damages are at once sustained and his right of action at once accrues; and he cannot maintain, as the learned counsel for the defendant has so ably demonstrated, an action for damages accruing during the term when the lessee is in possession.

It would indeed be a startling proposition to hold, in respect to the trespass committed by these elevated railroads, that the owner would be either required to occupy the premises himself or leave them vacant in order to maintain an action for damages sustained by the trespass. And there is no principle which has been evoked by the appellant’s counsel which requires the court to hold any such proposition. In fact every rule regulating the measure of damage, whether in actions upon' contract or actions sounding in tort, proceeds upon an entirely different theory and requires the person injured to do that which any ordinarily prudent man would do to render the damage as little as possible.

In the case of Tallman v. The Metropolitan Elevated R. Co., 121 N. Y., 124; 30 N. Y. State Rep., 491, in speaking of the damages which might be recovered in these cases the court say : “ The question to be determined in such an action is, how much has the rental or usable value of the lots been damaged by the construction, maintenance and operation of the railway? As a basis for estimating the damages the lots must be taken as they are used during the time embraced in the action and the plaintiff’s recovery must be confined to the damage to the rental or usable value of the lots just as they were.”

Applying this principle, which is entirely in harmony with the proposition already laid down, it appears that when the owner of the premises rents the same at a rental diminished by reason of the trespass, by so much as such rental is so diminished is he damaged and the damage is then fixed and liquidated, and he has suffered it, and his right of action accrues.

In the case of a trespass without a shadow of right there seems to be no special reason why the court should be astute to protect the trespasser from responding to the owner for the plain damage which he has sustained.

We are of opinion that the request was rightly refused and that the judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.


author: Bookstaver, J.

text:
    Robert Berls, Pl’ff, v. The Metropolitan Elevated R. R. Co. et al., Def'ts.

      (New York Common Pleas, Chambers,

      Filed April, 1891.)

    , Reference—Submission after death of one of several referees.
    Where one of several referees appointed by consent dies after the testimony has been closed and the case submitted, and thereafter a stipulation is entered into authorizing the surviving referees to render a decision and sign the report, this constitutes a new submission to them, and the time limited by the Code for the filing of the report or the delivery thereof to the attorney runs from the time of such new submission.
    Motion to vacate referees’ report.

      Peckham & Tyler, for pl’ff; Davies, Short & Townsend, for def’ts.
   Bookstaver, J.

The issues in this action were referred to Messrs. Andrew H. Green, Dwight H. Olmstead and Edward C. Donnelly, by order entered on stipulation. The action was tried in November, 1890, and on the 1st of December the referees fixed the 15th of that month for the submission of briefs and findings and they were submitted about that day. Before the referees had ■come to any determination, and on the 4th of January, 1891, Mr. Donnelly died. Thereafter, and on the 4th of February, 1891, the following stipulation was entered into between the parties:

Robert Berls v. The Metropolitan Elevated R. R. Co. et al.
Edward C. Donnelly, one of the referees appointed herein to determine the issues in this action, having died, it is hereby stipulated, by and between the parties to this action, that the surviving referees may render a decision and- sign findings and a report herein, which shall have the same force and effect in all respects as if the same had been rendered and signed by the three referees originally appointed herein.
Dated New York, January 7, 1891.

On February 20th the referees sent a written decision to the .attorneys of both parties as follows:

Robert Berls v. The Metropolitan Elevated R. R. Co. et al.
The evidence in this action, in our opinion, not entitling the plaintiff to the relief demanded in the complaint, is dismissed on the merits, with costs.
Dated February 20, 1891.
To Messrs. Davies, Short & Townsend, defendants’ attorneys, and Messrs. Beckham & Tyler, plaintiff’s attorneys.
(Signed.) Andrew H. Green.
Dwight H.. Olmstead.

Immediately on the reception of this decision, but not before, plaintiff’s attorneys served a notice upon the referees and defendants’ attorneys that they elected to regard the reference at an end, because the case was not decided within sixty days from December 15, 1890.

The question presented for determination under this state of facts is whether the sixty days should' be computed from the 15th of December, 1890, or from the 4th of February, 1891, when the final submission was made and filed with the referees. Section 1091 of the Code provides that “ upon the trial by the referee of an issue of law, or where a reference is made as prescribed in § 1015 of this act, the referee’s written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the case or matter is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice upon the attorneys for the adverse party that he elects to end the reference. In such a case, the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees."

In this case the reference was not compulsory, but was made upon the written stipulation of the parties, selecting three referees by name to hear and determine the issues. The consent was predicated upon the expectation that the three referees would hear proofs and would all participate in the decision. Mr. Donnelly died before any determination whatever was arrived at. His. death, on the 4th of January, 1891, ipso facto, vacated and terminated the original reference, Devlin v. The Mayor, 62 How., 164, where Hon. Charles P.Daly, then chief judge of this court, said: “ Where a cause is referred by consent of parties, and a referee dies, it puts an end to the reference, because the extent of the consent is that the cause may be tried and decided by the particular person whom they have agreed upon as referee.” See, also, Emmet v. Bowers, 23 How., 300; Townsend v. The Glens Falls Ins. Co., 33 Supr. Ct., 130.

In this case, instead of one, three referees were agreed upon, and it was intended that all should participate in the decision. It is-not like the case of a board of public officers, where a majority may act. The reference having terminated, of course the surviving referees could have done ' nothing thereafter which would be binding upon the parties.

I think, therefore, that the stipulation of February 4, 1891, was in legal effect a new submission of the case ■ to the surviving referees, and that the cause was not finally submitted until that time. I cannot agree with the plaintiff’s contention that the stipulation related back to the time of the first submission, because, if it did that merely, it could not have revived that which had been terminated by the death of Mr. Donnelly. It cannot operate backwards. Besides, it would be unreasonable to presume that the parties to the stipulation contemplated, when the same was filed with the referees on the 4th of February, that a decision must be rendered within nine days from that date, because if the final submission was on the loth of December, the sixty days would, have expired on the 13th of February.

But there is another view to take of this case. It is clear that, between the death of Mr. Donnelly and the filing of the final submission, the surviving referees could not have acted in any way. The month which intervened between his death and the filing of the stipulation ought not to be regarded in computing the sixty days. Therefore, the notice to terminate the reference was prematurely given.

Then, too, if plaintiff’s contention is sound, he did not promptly avail himself of his right to terminate the reference, but waited until after the decision had been announced, and I do not think that he should, under the circumstances, be allowed to avail himself of a technical irregularity, if there was one, nor to have two chances to try his action, especially where it is not claimed that the decision of the referees as made is not in accordance with the facts and the law of the case.

The motion will, therefore, be denied, with ten dollars costs.


author: Clement, Ch. J.

text:
    Michael McGoldrick, Resp’t, v. Samuel Metcalf, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    Master and servant—Negligence.
    Plaintiff was an iron chipper, and was employed by defendant. He was ordered to chip an iron casting, which was round and weighed 1250 pounds, and which laid on a truck. In doing so, he moved the casting by means of a stick so as to make one end higher than the other, and then let it roll hack, when it struck a wedge which had before held it in position. The wedge was cross grained and broke, letting the casting fall upon plaintiff. It appeared that the wedge would have held from three to five tons if the casting had not been moved. Held, that defendant was not liable, and the complaint should have been dismissed.
    Appeal from judgment for $2,718.31, entered on verdict, and from order denying motion for a new trial.

      Edmund B. Terry, for resp’t; Charles C. Nadal (Thomas S. Moore and M. L. Towns, of counsel), for appl’t.
   Clement, Ch. J.

The plaintiff is an iron chipper by trade, and prior to the date of his injury had worked for the defendant for nearly eight years. On March 10, 1890, the plaintiff was ordered by the defendant to hurry out and chip the fins from a casting, which was lying on a truck in front of the shop. The casting was in the form of a cylinder with flanges on either end, and weighed 1,250 pounds. The plaintiff, finding that the rear wheels of the truck interfered with the removal of the fins on the inside of the casting, got upon the truck and moved the casting about nine inches toward the front, nipping it up, so that one end of the casting became higher than the other, using a stick for that purpose. He then allowed the casting to roll back slowly in such a manner that one end of it would be nearer the front of the truck than the other, until it struck a wedge that had previously held it in position. This wedge, which had been put in by the driver of the truck, was cross-grained, and broke by reason of the rolling of the casting against it The casting rolled upon the ground and fell on plaintiff, who thereby sustained severe injuries. The wedge, if the casting had not been moved, according to the testimony of the witness for the plaintiff, would have held three to five tons. The plaintiff did not ask the other employes to aid him in moving the casting. The foregoing statement of facts is as favorable to plaintiff as can be made.

We are of opinion that the case should have been dismissed. The allegation in the complaint that the defendant had carelessly allowed the rung to become rotten, weak, unsafe and insecure, was not proven. On the trial it was shown that the rung was cross-grained, and the verdict must have been found on such fact. The law as to the duty of the master toward the servant is plain. “ His duty is discharged when he furnishes a machine which is reasonably safe and suitable * * * that is,’safe, considering the use for which it is designed.’’ Hickey v. Taaffe, 105 N. Y., 26 ; 6 N. Y. State Rep., 426 ; Stringham v. Hilton, 111 N. Y., 188 ; 19 N. Y. State Rep., 621. “He did not owe the duty to his workmen to furnish the best known or the best conceivable appliances.” Burke v. Witherbee, 98 N. Y., 562; Hickey v. Taaffe, 105 N. Y., 26, 34; 6 N. Y. State Rep., 426.

Applying the law to the facts of this case, it was the duty of the defendant to furnish a rung which was reasonably safe; safe considering the use for which it was designed. It was used to-hold the casting and prevent it from falling off, but was not designed to hold a casting rolled against it. According to the undisputed testimony, if the casting had not been moved the rang would have held it, even though it weighed three tons. The-plaintiff should have asked for help from his fellow workmen before he attempted to move the casting, or should himself have-wedged it. Other wedges lay by the truck, and the plaintiff held back the casting with a stick, and it was only after he threw the stick away that the casting broke the wedge. The plaintiff had worked about a foundry for eight years, and knew that the casting was round and heavy, and might roll upon him if not properly held back. When he attempted to roll a weight of 1,250 pounds with a stick up an incline, we think that he took the risk, in case any appliance broke, which, if the casting had not been moved, was reasonably safe for its purpose.

Judgment and order denying new trial reversed, and a new trial granted, costs to abide the event

Yan Wyck, J., concurs.


author: Van Wyck, J.

text:
    Jerome L. Radley, an Infant, App’lt, v. Patrick J. Kenedy, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    Infants—Rescission of contract—Counterclaim.
    In an action to avoid a contract made by an infant and to recover payments made thereon, the defendant cannot recover by way of counterclaim damages for breach of the contract on the theory that plaintiff concealed the fact of his infancy or his right to avoid the contract.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court

      L. B. Bunnell, for app'lt; A. W. S. Proctor, for resp’t.
   Van Wyck, J.

The plaintiff, an infant, entered into an executory contract under seal with defendant to purchase from him certain real estate, and paid on account thereof $500. This action is brought to avoid the contract on the ground of infancy, and to recover back the $500. The defense, material to the-consideration of this appeal, was by way of counterclaim, the-defendant claiming that the plaintiff’s fraudulent silence as to the fact of his infancy induced the defendant to make the contract, with him, and that consequently he, defendant, was induced by the same fraud to incur an indebtedness of $250 for commissions to the real estate broker who brought about the sale, and of twenty-five dollars to his lawyer for drawing the instruments incident thereto.

The trial court, at the request of the defendant, under the objection and exception of plaintiff, directed a verdict for the plaintiff for $500 and interest, less these sums of $250 and $25, and refused to direct a verdict for plaintiff for his claim without these deductions, to which plaintiff duly excepted. This raises the question whether or not defendant should have been allowed this counterclaim of $275. The items making up this sum are the damages resulting to defendant from plaintiff’s breach of or failure to carry out the contract which the plaintiff has elected to avoid on the ground of infancy. It is an effort to recover indirectly for a breach of a contract which is not obligatory upon the plaintiff. We do not think the defendant can recover for such breach on the theory that the plaintiff concealed either the fact of his infancy or his right to avoid the contract. Otherwise, the plea of infancy, the minor’s weapon of defense against his contracts, would be converted into one of self-destruction in most cases, and in many rendering his body, as well as his property, liable indirectly for the breach of a contract. It seems that “if the substantive ground of the claim rest in contract, an infant cannot be rendered liable by changing the form of the action to one in tort, when he would not be liable on the contract itself.” 2 Kent, 241; Studwell v. Chapter, 54 N. Y., 252; Brown v. McCune, 5 Sandford, 224; People v. Kendall, 25 Wend., 400.

For these reasons, we are of the opinion that the judgment and order must be reversed, and a new trial ordered, with costs to abide the event

Osborne, J., concurs.


text:
    Lester A. Lewis, App’lt, v. Ervin G. Gollner and Ada F. M. Gollner, Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    Contract—Not to build, when personal only.
    One G. having contracted for the purchase of lands on which to erect flats, plaintiff and other adjoining owners, in order to prevent such erection, purchased his contract at an advance and in consideration of such advance G. orally agreed not to erect any flats in their immediate neighborhood. Held, that this was a personal agreement between such owners and G. and did not impose any covenant or equity upon any lands which he should thereafter buy which could he enforced against a subsequent grantee from him, even though such grantee had notice of the agreement.
    Appeal from judgment dismissing complaint

      Rufus T. Griggs, for app’lt; Taber & Case, for resp’ts.
   Clement, Ch. J.

The learned judge at special term found all the facts in this case in favor of the plaintiff, but held that such facts did not justify a judgment in his favor. The plaintiff owns and resides in a house on the northerly side of President street in this city, between Seventh and Eighth avenues. The defendant, Ervin G. Gollner, on February 19, 1890, contracted in writing to purchase a plot of ground on the southerly side of Union street, 100 feet front and rear and ninety feet in depth on each side, which plot is directly in the rear of the nropertv of plaintiff, and on which Mr. Gollner intended to erect flats. The plaintiff and three adjoining owners of residences on President street, in order to prevent the construction of flats, purchased from Gollner his contract and paid him therefor an advance of $6,300, though the property was worth only the contract price of $18,000. Gollner agreed, in writing, to transfer the contract on March 12, and on March 25 the matter was closed up. The plaintiff claims, and the finding on conflicting testimony is in his favor, that prior to and on March 12, Gollner, in consideration of the payment of the $6,300 and of the execution of the agreement to buy him out, agreed with plaintiff, orally, that he would not construct or erect any flats in plaintiff’s immediate neighborhood, or trouble him any more. About March 23, Gollner began to negotiate for the purchase of a plot of land on the northerly side of Union street and diagonally across the street from the plot he had sold, and on April 1, purchased the same, and subsequently commenced the erection of five flats on said premises. On June 28, he transferred the property for a valuable consideration to his wife, who has continued the erection of the buildings. Mrs. Gollner took with full notice of the claim of plaintiff. The plaintiff brought this action to obtain an injunction to prevent the erection of the flats.

On the facts, as found below, a strong case is made out against the defendant, Gollner. He bought property for $18,000, which was its full value, and threatened to erect flats thereon, whereupon the neighbors who owned fine residences, and who thought their homes would be injured, paid him $6,300 simply to control the property. ■ As soon as he has closed his bargain, he buys a plot of the same size for $20,000, on the side of the street opposite to the lots which he had sold, and commences to build flats. He negotiates with the immediate neighbors of the new purchase, asking a large advance on his purchase price, but is unable to agree with them, and continues the erection of the buildings. If there was any authority which was directly or indirectly in point, in favor of the plaintiff, we would have no hesitation on the facts in rendering a decision in his favor, and against the defendants.

We have examined all the authorities cited, but it will suffice to refer to two only. In Tulk v. Moxhay, 11 Beav., 571; 2 Phillips, 774, A. being seized of houses and a garden on Leicester Square, conveyed the garden to B. and B. covenanted for himself and assigns not to build in the garden. Held, that a purchaser from B, with notice of the covenant, was bound by it in equity, although the covenant did not run with the land. This is the leading case in England, and has been repeatedly followed in that country. The second authority to which we shall refer ps Hodge v. Sloan, 107 N. Y., 244; 11 N. Y. State Rep., 770. In that case the facts were briefly as follows : R was the owner of lands containing building sand, and the sale of the sand was his business. S. purchased a portion of the land and covenanted in the deed not to sell sand from the parcel. S. subsequently conveyed to C. by warrantee deed, and without covenants on the part of C., who however had notice of the covenant in the deed of R to S. Held, that an action could be maintained by R against C. to restrain the sale of sand by him. In each of the above cases the agreement related to a specific piece of land, and was to be found in a deed which would appear in the chain of title. The agreement was a covenant as to the use of the land which was made on the sale, and was restrictive. The parties purchasing took with notice of the agreement, and an action would lie against them for a specific performance, on the same principle that a party who purchases from one who has contracted to sell real property with notice of the contract can be compelled to carry out such contract, as in Duffy v. O’Donovan, 46 N. Y., 223. The question in equity is not whether the covenant runs with the land, but whether the party purchasing the land shall be allowed to use it in violation of the contract entered into by his grantor, and when the party purchased with full notice of the covenant. Hodge v. Sloan, supra.

The agreement made by Gfollner related to no specific piece of land, for he owned no land in the neighborhood when he made' it. He agreed that he would not in the future buy any land in the neighborhood for the purpose of erecting flats thereon. This, in our opinion, was a personal agreement between the plaintiff and Gfollner, and did not impose any covenant or equity upon any lands which he should buy which could be enforced against any subsequent grantee from him, even though the party who purchased had notice of the agreement. Courts should not spell out a restrictive covenant as to real property unless the agreement is clear and for a defined purpose. It may be said that the distinction that Gfollner did not own the lots on the north side of Union street when he made the agreement is finely drawn. The answer is that if he had owned the lots when he made the agreement it might be well claimed that he contracted as to the particular lots which he owned. His agreement related to his future a'cts, and not to the restrictive use of land which he should purchase.

Judgment should be affirmed, with costs to the respondent, Ada F. M. Gollner.

Van Wvck, J., concurs.


text:
    John Burns, App’lt, v. The Bricklayers’ Benevolent & Protective Union, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    1. Associations—Trade unions—Fines.
    A member of an association, such as a trade union, cannot maintain an action in equity to set aside fines imposed upon him until he has exhausted his remedy in the society.
    3. Same—Working card.
    The by-laws of the society provided that any member in arrears for fines or dues over six months was prohibited from working. Plaintiff was fined and such fines were not paid during that period of time. Feld, that if the fines were valid, his working card was properly taken away from him.
    Appeal from judgment dismissing the complaint.

      Chas. F. Brandt, for app’lt; Thos. E. Pearsall, for resp’t.
   Clement, Ch. J.

The plaintiff brought this action and asked judgment in his favor. First. That a “strike" claimed to have been ordered by the defendant on or about January 2, 1889, be declared irregular and void : Second. That four fines amounting to seventy-five dollars imposed on plaintiff be declared null and void. Third. That the plaintiff be reinstated in defendant, and to his rights and privileges as a union man, and that he be given a pass-card to show that he is a member of defendant in good standing. The learned judge at special term found that a “strike” had not been ordered by the defendant, that the fines complained of were legally imposed, and that plaintiff was properly deprived of his pass-card, and rendered judgment in favor of the defendant.

We think that the question whether or not a strike was ordered by the defendant is entirely immaterial, for the reason that the plaintiff was fined because he worked for an employer who did not pay his men weekly, and because he worked with non-union men, and for no other reasons. By-§ 9 of the working Code of the defendant, it was provided that the bricklayers should be paid every Saturday, and by § 13 it was further provided that no member should work on the same job with a non-union man. It is conceded that the plaintiff worked for several weeks for one Thomas H. Robbins, whodidnotpayhismenon every Saturday, and it is also conceded that Mr. Robbins employed, during the same period, nonunion bricklayers. The plaintiff clearly violated the rules of the union, and therefore whether a strike was ordered against Mr. Robbins properly or not need not be considered in this case.

The next question is as to the relief asked, that the fines for seventy-five dollars be declared void. We are not called upon to decide whether the fines were lawfully imposed, for the reason that the plaintiff has not exhausted his remedy in the union. The executive committee may not have acted legally in fining the plaintiff without a trial, but their action was valid until rer versed by the act of the union, and the plaintiff, as soon as he learned that the fines stood against him, should have appealed, and can not maintain an action in equity until he has exhausted his remedy in the society.

This point seems well settled by a number of authorities. Poultney v. Bachman, 31 Hun, 49; La Fond v. Deems, 81 N. Y., 507 : Gebhard v. New York Club, 21 Abb. N. C., 248.

The plaintiff was fined on four occasions, as follows: January 7, 1889, ten dollars ; January 14th, twenty-five dollars; January 28th, twenty-five dollars; February 11, 1889, fifteen dollars. He paid twenty-five dollars, and on July 29th was in default over six months for the fine of January 28th. By Article X of the by-laws any member in arrears for fines or dues over six months was prohibited from working until the same were paid. The plaintiff was deprived of his card on July 29, 1889, and at that time was in arrears over six months. The card was properly taken away from him if the fines were valid.

We have examined all the questions raised by the appellant, and conclude that, for the reasons above stated, the appeal is not well taken.

Judgment affirmed, with coste.

Van Wtck, J., concurs.


author: Daniels, J.

text:
    In the Matter of the Application of George H. Stonebridge, Jr., Rec’r.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Receiver—Insolvent corporations—Appointment.
    Where the appointment of a receiver of an insolvent corporation is regularly made on due notice, such appointment vests him with all the right and authority of his office, although his appointment as temporary receiver was illegally made.
    3. Same—Examination of officer as to concealed assets.
    Proof that early in the year the president of the corporation had made statements and reports showing that it had more property than was required to pay its debts, and had as late as June made similar statements; that in September executions against it were returned unsatisfied; that the receiver obtained only the books of the" concern, from which it appeared that large transfers of property had been made prior to the obtaining of such judgments, and that the president was active in making such transfers, is sufficient to sustain a warrant for the examination of said president.
    3. Same.
    The fact that the receiver availed himself of the assistance of the counsel for the creditor at whose suit he was appointed furnishes no legal reason for denying the warrant, or setting it aside after it has been issued, as it was a mere irregularity.
    Appeals by John B. Alden from an order directing a warrant to issue to take the appellant before a justice of this court to be examined concerning the property of the New York Book Company, and from an order denying a motion to set aside such warrant. .

      Dill, Chandler & Seymour, for app’lt; Charles E. Hughes, for resp’t.
   Daniels, J.

The warrant has been directed to issue on the application of the receiver of the New York Book Company, appointed at the suit of a judgment creditor of the corporation, after the return of an execution unsatisfied, issued against its property. The objection has been taken that the receiver has not been legally appointed, for want of compliance with § 8 of chap. 378 of the Laws of 1883. And to remove the objection it must appear that this part of that act has been complied with. Whitney v. N. Y. & Atlantic R. R. Co., 32 Hun, 164.

The receiver was first appointed temporarily during the pendency of the action brought against the corporation after the return of the execution unsatisfied. And in the proceedings to obtain that appointment there was a failure to give notice to the attorney-general and also to serve a copy of the proposed order upon him, which rendered the appointment void under the language of this section of the act of 1883.

But the present proceeding does not rest or depend upon that appointment of the receiver. For the action afterwards proceeded to judgment and a copy of the proposed judgment was served upon the attorney-general, with notice of the application for it, and he admitted due and timely service thereof. And it was pursuant thereto that the final judgment was afterwards directed and entered, and in that judgment it was adjudged :

That George H. Stonebridge, Jr., Esq., heretofore appointed receiver of the said corporation, is hereby continued as the permanent receiver thereof, with the usual powers and duties, and vested with all the rights and powers of receivers in like cases; and said receiver is hereby directed and empowered to collect and receive the debts, demands and other property of the said corporation ; to preserve the property and the proceeds of the debts and demands collected; to sell or otherwise dispose of the property as directed by the court; to collect, receive and preserve the proceeds thereof, and to maintain any action or special proceedings for either of those purposes.

And after that he took the oath of office, and filed the bond required to complete and perfect the appointment. And these facts set forth in the petition for the warrant have not been denied in,, the answer of the appellant.

This appointment was legally and regularly made, and vested the appointee with all the right and authority of his office, although the appointment during the pendency of the action was illegally made. He was, therefore, authorized to institute these proceedings, inasmuch as the notice required to be given and published was in course of actual publication before they were commenced. After the first publication of that notice it has been provided that all the provisions of law in respect to trustees of insolvent debtors, the collection and preservation of their property, the concealment and discovery thereof, and the means of enforcing that discovery, shall be applicable to the receiver so appointed. 3 R. S., 6th ed., 754, § 87. And that first publication had been made, of the statutory notice, priqr to the application for this warrant.-

It has been, however, objected that the statute in this manner referred to and providing for this proceeding is in conflict with the constitution of this state. But upon that subject no doubt was entertained when this mode of proceeding was before this court, and the decision was made upon it, which has been reported. as Matter of Stonebridge, 53 Hun, 545, 547; 25 N. Y. State Rep., 425.

It may be further added to what was then said, that this legislation does not transcend the bounds of that which has been otherwise and since enacted. For a similar examination may be directed of a defendant in an action to obtain information to frame a complaint. O'Reilly v. Telegraph Co., 12 Hun, 124; Glenney v. Stedwell, 64 N. Y., 120. And in the course of the proceedings in an action to discover the property and effects of a corporation. 3 R. S., 6th ed., 751, § 65; Code Civ. Pro., 1805. And it has invariably been enforced without question as to the constitutional power of the legislature to enact and provide it.

By the provisions in this manner referred to and made applicable, he has been empowered, certainly after the first publication of the notice, to sue for and recover the property and effects of the debtor corporation, and the debts due to it, and also to do that at any time before the day appointed by the notice for the delivery or payment thereof. 3 B. S., 6th ed., 38, § 12. And it is to render the proceedings which may be taken for that end more effectual that the authority has been provided to examine on oath any person whom there may be good reason to believe has concealed property of the corporation, or that can testify concerning the same. Id., § 14. And this proceeding has been taken under that authority.

To sustain it the section has made it necessary that the receiver shall show by his own oath, or other competent proof, that there is good reason to believe that the person proposed to be examined has concealed or embezzled some part of the estate of the corporation, or can testify concerning such concealment. And the receiver, by his own oath and the oaths of other persons, has endeavored to establish these facts to the legal satisfaction of the justice who was applied to for and who issued this warrant. And for that object he has transcribed reports and statements made by the appellant to the effect that early in 1888 this corporation had more property than would be required to pay its debts and liquidate its obligations to its stockholders for their investments in its stock.

On the 2d of June, 1888, in a letter to Trow’s Printing & Bookbinding Co. he stated that: “The Mew York Book Company has an abundance of property to pay its debts in full.” And in an affidavit made by him still later in the same month, he stated: “ That the company still has large assets, and which deponent believes are largely in excess of its just indebtedness.” He was the president of the company, and from his personal connection with its affairs may be presumed to have been well acquainted with its financial and proprietary condition. And yet, before the middle of the next September, ah execution upon the judgment upon which the action was commenced for the sequestration and distribution of the property of the corporation was returned unsatisfied, after making under the same no more than the sum of §221.53. And other judgments have also been recovered against the company, which remain unsatisfied. The receiver has shown that he has been unable to obtain any more in the way of property than the books of the company, from which it appears that considerable transfers of its property had been made prior to the issuing of the execution upon the creditor’s judgment. And from the proceedings, an account of which has been transcribed into the papers, it appears that the appellant was an active participant in making such transfers, some of which were for the benefit of another corporation formed under the laws of the state of Mew Jersey, and called The Alden Publishing Company, with which the appellant seems to have been identified in feeling or interest. These facts, which have been reasonably well established in the manner required by the statute, supplied ample evidence that the appellant had either concealed or could testify concerning the concealment of the property of The New York Book Company, and justified the justice in issuing the warrant for his production and examination. And their existence could not regularly be controverted or overcome by his own affidavit or of others produced in his behalf, endeavoring to explain what had been done with the property of this company. It had disappeared after he stated it to be ample to meet all the obligations of the company, and was effectually concealed from the receiver. And he was entitled, not to the affidavit of the appellant, but to his oral examination to discover the existence, as well as the manner in which this property had been taken from the possession of the company. The practice in this respect is the same as in all other proceedings provided for the discovery of the debtor’s property by the creditors, or the receiver representing them, and that is by an oral examination of the parties, and the witnesses. And in no case is that denied because the party or the witness may present his affidavit denying the existence of knowledge concerning the facts expected to be discovered. The justice, therefore, who issued the warrant, and it may be added for the reasons assigned in the appeal already decided and reported, who had ample authority to issue it, was not only right in issuing it, but also in the denial of the motion to vacate it afterwards. And the fact, if it had been satisfactorily shown, that the receiver had availed himself of the assistance of the counsel for the creditor, in whose suit he was appointed, furnished no legal reason for denying the warrant, or setting it aside after it had been issued. The fact, however, has been denied. But even if it had not been, it would be no more than an irregularity in the course of the receiver’s management, furnishing no legal excuse for the appellant in his resistance to these proceedings to discover the property of the company, which is all that has been authorized by this statute, 3 E. S., 6th ed., 39, §§ 19, 20, or that this proceeding is intended to accomplish.

The objection that the receiver had not paid the costs awarded on another appeal to the appellant has probably been obviated, as the order provided it might be, for it has not been renewed in support of the appeal, neither has objection been made that the attorney-general was not properly apprised by notice of the application, or of the orders which were entered, no sound objection seems to exist as a foundation for the appeals, and the orders should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.


text:
    Lorenz Reich, Pl’ff, v. Alice S. McCrea, Def’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Lease—Option to subbendeb.
    A lease to defendant of certain rooms provided that she should have the privilege of giving them up' on the first of February on payment of a certain amount. Held, that she could not avail herself of the privilege after that date.

      3. Same—Damages.
    Where a tenant removes from premises rented by her, the landlord is under no obligation to allow another tenant of his to occupy the premises as an extinguishment of the liability to him under the lease.
    3. Same—Loss of boabd.
    The lease also provided for the board of defendant in the hotel of which the rooms formed a part. Held, that in the absence of proof that a profit would have accrued to plaintiff from continuing to supply such boardfor the unexpired period of the lease, a recovery could not be had for defendant’s failure to receive and pay for such board.
    Appeal by each party from a judgment recovered on the verdict of a jury.

      Abram Kling, for pl’ff; Clark Bell, for deft.
   Daniels, J.

The verdict was directed for the weekly sum of ■sixty-five dollars for the price of rooms from the last of February, 1889, to the first of May following. The defendant entered into the possession of these rooms, which were a part of the hotel known as the Cambridge, under an agreement securing to her the right of their occupancy, and board at the hotel, for the price of $117 a week. She left the hotel on the 28th of February, and did not after that date occupy the rooms or board at the hotel. It appeared by the bills which were rendered and receipted while she did occupy the rooms, that the charge made for them was the ■sum of sixty-five dollars a week. And it was for that amount accruing after she left the hotel to the termination of the period mentioned in the agreement that the verdict was directed. And each party has objected to the amount in this manner recovered in the action.

The defendant has objected to the right of the plaintiff to recover any sum exceeding in any event the sum of $200 under a clause in the agreement reserving to her the privilege of giving up the rooms on the first of February by paying the sum of $100 to the plaintiff. But a sufficient answer to this position arises upon the fact that she did not avail herself of this privilege. It was restricted to the first day of February, and no privilege was •secured to her to surrender the rooms by paying this, or any other ■sum, after that date. And it results from this circumstance that her liability could not be restricted to this sum of $100.

It was proved on behalf of the defendant that a Mrs. Andrews, who also boarded and occupied rooms at the hotel, offered to take these rooms after they were vacated by the defendant, but the plaintiff would not consent to that occupancy by her. And a ■satisfactory reason for withholding that consent arises out of the fact that the plaintiff was not legally bound to consent that Mrs. Andrews should take these rooms and cease to occupy those of which she at the time had possession. If that had been done the plaintiff, instead of the rental of the rooms in question, would have lost that of the rooms occupied by Mrs. Andrews. And for that reason no indemnity would result to him for the failure of the defendant to perform her contract if this exchange of rooms had taken place. It was for the plaintiff to determine whether he would consent to it or not. And as Mrs. Andrews was already his tenant and boarder, he was under no obligation to the defendant to allow her to take the rooms vacated by the latter as an ex-tinguishment of her liability to him under the agreement.

The court in the direction which was given for a verdict rejected the claim made by the plaintiff for the payment of the price of the defendant’s board during this interval of time. It was not proved in the case that a profit would have accrued to him from continuing to supply the defendant with board during the unexpired period of the agreement- And it was therefore to be presumed that he lost nothing on this part of the contract by the defendant leaving his hotel. His right of recovery was for damages, and that alone. Wilson v. Martin, 1 Denio, 602 ; Howard v. Daly, 61 N. Y., 362. And no damages were proved to have been sustained by him by the failure of the defendant to receive and pay for her board at the hotel. But as to the rooms the case was maintained in his favor, for they remained unoccupied from the time the defendant left the hotel until the termination of the agreement ending on the 1st of May, 1889.

The parties have stipulated that upon the appeal the court should be at liberty to make any change by way of increase or diminution in the amount of the verdict which might appear necessary to conform it to their legal rights and obligations. But as no change in the amount appears to be required, no action can be taken under this stipulation by the court. The verdict, as it was recovered only for the weekly compensation charged for the rooms, together with interest thereon, appears to have been right, and the judgment should be affirmed, without costs of the appeals to either party.

Yak Brunt, P. J., and Brady, J., concur.


text:
    Mary Fowler, App’lt, v. The Metropolitan Life Ins. Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Insurance (Life)—Forfeiture.
    Where a policy of insurance expressly provides that the premiums shall be paid on a certain day, and in default thereof the policy shall become void, such provision is not affected by statements and representations in a, pamphlet issued by the company to the effect that 30 days grace would be allowed in payment of premiums,” and such representations will not relieve from a default in payment, although the delay was induced thereby.

      (Fowler v. Metropolitan Life Ins. Co., 116 N. Y., 389; 26 N. Y. State Rep., 770, followed.)
    Appeal from a judgment dismissing the complaint at the circuit.

      Henry C. Wilcox, for app’lt; William H. Arnoux, for resp’t.
   Daniels, J.

The action was brought to recover the amount of a policy of life insurance. It was before this court in 1886 when, on account of assurances contained in a pamphlet issued and circulated in the defendant’s business, it was concluded that the policy was not forfeited by the failure to pay the interest on the-premium, notes held by the company at the time when it became due. There was then evidence before the court from which it could be reasonably inferred that the omission to pay arose out of ■ reliance placed upon the statements contained in the pamphlet, and the company was, therefore, held to be liable to the plaintiff as the assignee of the insurance. Fowler v. Metropolitan Ins. Co., 41 Hun, 357 ; 2 N. Y. State Rep., 583. But a different view of the case was taken by the court of appeals, which reversed the judgment, 116 N. Y., 389 ; 26 N. Y. State Rep., 770, and ordered a new trial.

Upon the last trial evidence was given to the direct effect that it was reliance upon the statements contained in the pamphlet that induced the delay in the payment of the interest from the Saturday when it became due until the next Monday, when it was tendered and refused. This created no substantial change in the state of the case. For whether the fact should be inferred from the conduct of the person entrusted with the money to pay the interest that the delay had been induced by the representation contained in the pamphlet, or from direct proof that such was the truth, can make no difference in the disposition to he made of the action under the opinion of the court of appeals. The representation which appeared to have been made was held not to relieve the default in payment on the part of the assured. That was an effectual disposition of the action adverse to the plaintiff.

And the judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs.


text:
    Edward T. Steele et al., Resp’ts, v. Philip Raphael et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Attachment—Appeal.
    The fact that the Code provides that on an application for an attachment the plaintiff “must show by affidavit to the satisfaction of the judge” that the jurisdictional facts exist does not make the granting of the attachment discretionary and thus not reviewable on appeal.
    '3. Same—Affidavit—Non-eesidence.
    Where the non-residence of the' defendants is positively stated in the affidavit, it is immaterial that their actual places of residence are stated on information and belief and that the grounds of belief and sources of information are not given.
    3. Same—Teem of ceedit on sale of goods.
    On a motion to vacate an attachment granted in an action for goods sold on credit, there can be no presumption indulged that such credit has not expired, but such fact, if it exists, must be affirmatively shown.
    Appeal from order denying motion to vacate a warrant of attachment.

      F. Bien, for app’lts; Stern & Kingsbury, for resp’ts.
   Van Brunt, P. J.

We would not have considered the appeal herein worthy of much consideration had not the respondent thought it necessary to urge in support of the order appealed from taht because the Code provides that the plaintiff “ must show by affidavit to the satisfaction of the judge ” that the jurisdictional fact exists, and thus the sufficiency of the allegations being left to the discretion of the judge, and the determination of the sufficiency of such allegations resting in discretion, such sufficiency is not a matter properly reviewable upon appeal.

It would seem that the respondents’ counsel must have had some doubt himself as to the sufficiency of his papers or he would not have thought it necessary to raise an objection to the consideration of the merits of this appeal which has been overruled at every general term which has been held for years, past

As to the allegations in respect to non-residence the affidavit is-sufficient The allegation is positive as to the non-residence of the defendants. It is true.that their place of residence outside of the state of Hew York is stated on information and belief, and the sources of information and grounds of belief are not given, and if the jurisdiction of the court depended upon the establishment of that fact the affidavit is undoubtedly defective; but it does not matter where they reside outside of the state, the court has jurisdiction.

In respect to the point that the terms of credit do not appear to have expired, and the proofs of fraud are insufficient to support an action commenced before the credit had expired, it may be sufficient to say that there is nothing in these papers showing or tending to show that the terms of credit have not expired. We do not know that there is any presumption to be indulged m that, such credit has not expired.

If it has not, such fact would be a defense to the action and the defendants may easily avail themselves of it

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.


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

text:
    Robert G. Cornell et al., Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Railroad—Elevated—Nuisance—Trial by jury.
    Where the complaint in an action against an elevated railroad for an injunction and damages alleges th at. the enjoyment of the premises is interfered with by the noise of defendant’s trains, and that its locomotives emit foul gases, smoke and cinders, which are a nuisance, whereby the value of the-premises is deteriorated, the action is one for a nuisance so far as damages are claimed, and to that extent is triable by jury. This should first, take place, and thereafter the other issues disposed of by the court.
    2. Same—Leased premises—Right op owner to sue.
    Where the rental value of premises are affected by the operation of an. elevated railroad, the occupancy of the premises by tenants interposes no-legal obstacle in the way of the owner to maintain an action for the recovery of the damages sustained by him.
    ■3. Same—Inconsistent findings.
    Where the decision contained separate findings by which the loss of' rental value was found to be the same sum, but. for different periods of time, the first of which exceeded six years, and judgment was entered for said sum, Held, that as the first finding was erroneous, and it did not appear which one was followed by the judgment, the judgment should be reversed.

      Appeal from a judgment recovered on trial at the special term.

      Julien T. Davies and Arthur O. Townsend, for app’lts; S. Sidney Smith, for resp’ts.
   Daniels, J.

The plaintiffs became the owners, in the" year 1878, of premises situated on the northwest corner of Greenwich and Liberty streets, in the city of New York, fronting on Greenwich street twenty-four feet eight and one-half inches, and on Liberty street eighty-six feet and four inches, and have continued to be the owners thereof from that time to the trial of the action. The New York Elevated Eailroad Company completed the erection of its elevated railroad in Greenwich street in or about the year 1876, and it afterwards leased the structure to the Manhattan Eailroad Company, the other defendant in the action. The structure extended over the surface of the street at the height of about fourteen feet therefrom, and thereby excluded the light and interfered with the access to and from the lower portion of the plaintiffs’ five story brick building, situated upon and extending sixty feet back from the corner. The superstructure extended upwards nearly to the level of the middle of the second story windows of the building, and the cars used in the trains of the defendant extended still higher and above the level of the middle of the third story of the building. In the operation of the railroad the light passing through the front windows into the building was interfered with, and smoke and cinders carried into the rooms when the wind approached from an easterly direction. And it was to recover damages which had been in this manner sustained in the use and enjoyment of the plaintiffs’ property, and to enjoin the further maintenance of the structure and the passage of trains upon it, that the action was brought. And by the judgment which has been recovered the plaintiffs have been awarded damages to the amount of $1,800, with interest thereon from the 15th of July, 1890, which was near or precisely the time of the decision of the action.

And it was further adjudged that the defendant should be enjoined from maintaining or using the railway structure, and from operating trains of cars thereon, and that the structure should be removed, unless within thirty days from the date of the judgment the defendant should pay the sum of $4,500 for the easement in Greenwich street appurtenant to the premises, together with the costs of the action and interest from the entry of judgment, upon the delivery by the plaintiffs of a conveyance and release from themselves, and any one claiming under them, conveying and releasing to the defendants the right to continue this use of the street.

At the opening of the trial an application was made to strike the cause from the special term calendar and send it to the circuit for trial by a jury, on the ground that the defendants were entitled to such a trial of the issues. And “ also upon the ground that this is an action for a nuisance, and that the defendants are entitled to a trial by jury of the issues in such an action by the Code of Civil Procedure.” The motion was denied and the defendants excepted to its denial. In the complaint it was charged:

“ That the trains of the said defendants make so much noise as greatly to interfere with the enjoyment of the said premises ; the locomotives by which they are propelled emit foul gases, smoke and cinders, which are a nuisance, and that by reason of the premises the value of the said property has greatly deteriorated."

And that characterized the action, certainly so far as damages were claimed to be recovered for the injury to the plaintiffs’ premises, as an action for a nuisance. And "by subd. 2 of § 968 of the Code of Civil Pro., the action to that extent certainly has been required to be tried by a jury. Wheeloch v. Lee, 74 N. Y., 495. And this has recently been held to be jhe construction to which this subdivision should be subjected in Libmann v. Manhattan Railway Co., etc., by this general term, 36 N. Y. State Rep., 639. And the result is that this exception is well founded.

The succeeding provisions contained in the Code on the same subject contemplate that the trial before the jury shall first take place in the action. And after that has been disposed of, then the remainder of the issues are triable before the court. Code Civ. Pro., § 976.

It is true, while this objection was presented prior to the commencement of the trial, that the point had not been urged by the counsel upon the attention of the court. But still it is in the case, and prominently so too, and cannot be held to have been waived or surrendered by the proceedings which subsequently took place in the action. And the court is consequently bound to give to this exception its fair and appropriate effect in the disposition'of the appeals. And that can only be done by still providing the defendants with this mode of trial.

It appeared that the premises in question, which included only those standing upon the land on the corner of Greenwich and Liberty streets, have been in the occupancy of tenants, and were in such occupancy at the time of the trial, under a lease extending into the year 1892. And for that reason objection was taken to the right of the plaintiffs to maintain the action. But in Hine v. N. Y. Elevated R. R. Co., ante, 606, it was held that the occupancy of the premises affected by tenants interposes no legal obstacle in the way of the owner to maintain such an action for the recovery of the damages sustained by him. And there seems to be a very solid foundation for this conclusion. For, as is the fact in the present case, the rental value of the property must often be seriously injured and depreciated in consequence of the erection and use of the structure as a railway. In this instance it is quite evident that it must be attended with that effect from the manner in which the structure has been made to occupy the street above the surface, and to affect the premises by the running of the defendants’ trains upon it. And evidence was given to prove the fact, which was not contradicted in the case, that the amount of rents yielded by the premises had failed to appreciate and were comparatively reduced during the existence and use of this railway.

Evidence was elicited from the witnesses also tending to prove the depreciation of property upon the street by this occupancy and use of it by the defendants. But it has been contended that the court at the trial erred in permitting at least one witness to state his opinion as to the extent of this depreciation. And under the ruling in McGean v. Manhattan Railway Co., 117 N.Y., 219; 27 N. Y. State Rep., 337; and Avery v. N. Y. Central, etc., R. R. Co., 121 N. Y., 31; 30 N. Y. State Rep., 471, the answer seems to have been improperly received. But it is not necessary to hold that its effect could have been such upon the rights or obligations of the parties as to justify a reversal of the judgment on this ground. For it does appear from the finding of the court that the amount allowed for damages may have extended over a greater period of time than the law allowed to be included. By the thirty-first paragraph of the decision it was found as a fact:

“ That the matters specified in the preceding findings of fact have diminished the rental value of plaintiffs’ front building on said premises from the 15th day of July, 1883, to the time of the trial of this action, and that the damage to the plaintiffs from such diminution is the sum of $1,800.”

And from this finding it appeared that the plaintiffs’ damages from the 15th of July, 1883, to the time of the trial of the action, was no more than this sum of $1,800. But under the rule as it now exists, damages for that entire period could not be included in the judgment The action was commenced on the 15th of July, 1889, which was six years from the time mentioned in this conclusion of fact, and that period therefore included all the time for which damages could be recovered in the suit. Uline v. N. Y. Central, etc.. R. R. Co., 101 N. Y., 98, 116; Silsby Manf'g Co. v. State of N. Y., 104 N. Y., 562 ; 6 N. Y. State Rep.; 463. By a later finding, probably inserted in the case through the inadvertence of the attorney, it has been found that, “ The injury to the use of the said premises from the first day of May, 1886, until the date of the commencement of this action, resulting from the construction, maintenance and operation of said elevated railway for the purposes for which the said premises were used, and in the condition in which they were during the said period, is the sum of eighteen hundred dollars.” Which presents another and different basis for the recovery of this sum of $1,800. And which finding has been followed* by the judgment itself does not certainly appear, the first conclusion of law declaring only that the plaintiffs are entitled to judgment for this sum of money, with interest from the time of the trial of the action, which apparently sanctions the recovery of damages sustained by the plaintiffs in consequence of this alleged nuisance in the street to the time of the trial of the suit And that under the authorities already cited transcended the period by nearly one year for which damages were legally recovered in the action. These damages are incapable of division or reduction by the court. They include but one general sum of money, and for a part of the period intended to be compensated by them they were not within the scope of the present action. The judgment should, therefore, be reversed, and a new trial ordered, with costs to the defendants to abide the result.

Van Brunt, P. J.

Concur except as to that portion of the opinion which makes the McGean decision applicable to actions of this nature.

O’Brien, ¿T., concurs.


text:
    The People ex rel. Patrick Kelly v. Charles F. MacLean et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Evidence—Intoxication.
    Testimony of a witness that a person was intoxicated is unobjectionable where his opinion is limited to what he saw.
    Certiorari to review removal of relator from the police force.

      Louis J. Grant, for relator; John J. Delany, for resp’ts.
   Van Brunt, P. J.

The power of the court to reverse the proceedings of the respondents is limited to those cases where there is no evidence to support the conclusion arrived at, or if there is some evidence the preponderance of proof is so great against such conclusion that if it were the verdict of a jury such verdict would be set aside as against evidence.

It i"s claimed by the counsel of the relator that the case at bar comes within the latter class; and that although there may be some evidence that the relator was intoxicated, yet it is of so contradictory and unsatisfactory character that it was entirely overcome by the explanation given on behalf of the relator.

It is urged that the witnesses who testified against the relator not only contradicted' themselves but. each other, and that each and every one of them was willing to commit perjury, so great was their interest in having the charge sustained against the relator.

We have examined the record with care, and find no such disposition exhibited upon the part of the witnesses, and if there are any contradictions of the evidence of the witnesses as to what they observed, they arise from difference of opinion as to the cause and not from disagreement as to results.

This charge against the witnesses is also urged, because they swore that the relator was intoxicated, which the learned counsel states was not evidence but malevolence. If the counsel had examined the question with the slightest care before pronouncing judgment, he probably might have learned that it was held in the case of The People v. Eastwood, 4 Kern., 566, over thirty years ago, that “ a child of six years may answer whether a man (whom it has seen) was drunk or sober; it does not require science or opinion to answer the question, but the child could not probably describe the conduct of the man so that from its-description others could decide the question. Whether a person is drunk or sober, or how far he was affected by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct Many persons cannot describe particulars ; if their testimony was excluded great injustice would frequently ensue.”

If it is urged that some of the witnesses only testified to their opinion that the relator was intoxicated, reference may again be made to the case cited, where the question was, “ What was the condition as to sobriety of the prisoner at the time, in your judgment?” And it was held that the judgment being restricted to what the witness saw, the question was unobjectionable. So in the case at bar, the opinion being limited to what the witness saw, it was unobj ectionabl &

We have several witnesses swearing that the relator was intoxicated, although differing as to what was the probable cause.

The surgeon who examined him testified that in his opinion he was laboring under alcoholic influence.

The relator claims that his condition arose from an overdose of quinine. That he did take some quinine may be true, although there is no evidence of that fact There is only the evidence that the relator sent some one to get a prescription of quinine and that he brought back these pills, and the messenger tells the extraordinary story that he got the medicine and did not pay anything,for it because he told the apothecary that it was for an officer. The apothecary is not called to show the prescription and there is no proof that the relator ever took any quinine, much less that he took twenty to twenty-four grains at a dose.

The whole story is suspicious and little entitled to credit, and we think that instead of a preponderance of evidence in favor of the relator the weight of evidence justified the conclusion of the respondents.

The writ should be dismissed, with costs.

Brady and Daniels, JJ., concur.


text:
    The People ex rel. Joseph C. Higgins v. Hugh J. Grant, Mayor, et al.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Municipal corporations—Removal op clerk—Laws 1882, chap. 410, § 48—Civil service rules.
    A clerk in a department of the city of New York is entitled to no greater rights on a proceeding to remove him because of rule 40 of the civil service rules, -endering persons dismissed for misconduct ineligible for appointment within three years.
    Certiorari to review the removal of the relator from the office of the clerk in the office of the city record.-

      Jas. F. Higgins, for relator; C. W. Ridgeway, for resp’ts.
   Van Brunt, P. J.

The case of the People ex rel. Brant v. MacLean, 33 N. Y. State Rep., 974, determines most of the questions involved in this proceeding against the contention of the relator ; it is not necessary to re-discuss questions which are there settled.

It is claimed, however, that because of rule 40 of the rules of the civil service, which is to the effect that no one dismissed from service for misconduct shall" be eligible to appointment in any capacity in any department of the municipal service within three years, the relator is entitled to greater rights than would have been the case had he not incurred the penalty prescribed by this rule by being removed.

We do hot see how it is possible for the rules of the civil service to add to or detract from the statute, which would be the effect was a different construction given to the statute because of the rule than would obtain had no such rule been adopted.

The language of the statute is reasonably clear, and has been interpreted, as has been already said, contrary to the view of the relator, and, while the results of a removal should make the heads of departments careful in the imposition of this penalty, yet when they come within the statute this court cannot interfere with the result.

We think, therefore, the writ should be dismissed, without costs.

Brady and Daniels, JJ., concur.


author: Daniels, J. Van Brunt, P. J. O’Brien, J.

text:
    Max S. Korn, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Railroad—Elevated—Trespass—Parties.
    An action to restrain the operation of an elevated railroad and for damages may be maintained by one who holds the legal title to adjacent property, although others have an equitable interest therein, and is entitled to recover the entire damages sustained.
    2. Same—Diminution op rental value.
    Evidence sufficient to show a diminution of rental value caused by the operation of an elevated railroad.
    3. Same—Evidence.
    The admission of testimony as to the value of the property in answer to questions improper in form is not reversible error where it appears that the court did not follow such testimony in reaching its determination, but followed other evidence bearing on the same question.
    4. Same—Conveyance op easements.
    It appearing that another person was interested in .the property as a partner with plaintiff, although the latter held the legal title, the judgment should provide that such other person should join in the conveyance to be made to defendants on payment of the damages awarded.
    5. Same—Costs.
    Where a request to insert such a condition was refused, and on appeal the judgment is modified in that respect, the modification should be without costs. (Van Brunt, P. J., dissents.)
    Appeal from a judgment recovered on trial at the special terml

      Edward C. James, for app’lts; John E. Burrill and J. Archibald Murray, for resp’t.
   Daniels, J.

The plaintiff became the owner of premises on. the southeasterly corner of Seventy-second street and Third , avenue in the city of New York on the 31st day of December, 1888, by a deed executed and delivered to him at that time. They consisted of the avenue numbers of 1241,1243,1245. He conveyed away that portion of them designated by the number 1241, remaining the owner of the residue, fronting to the extent of fifty-eight feet upon the avenue, and ninety feet in depth upon Seventy-second street. At the time he received his conveyance there had been erected upon the land a building four stories in height. This was divided into two stores fronting upon the avenue, and a small rear store fronting upon Seventy-second street

The building above the stores was divided into apartments and rented and occupied for residences. There were six apartments over the corner and rear store, and three over the other store. The elevated railroad structure of the defendants had previously been erected in the avenue and was operated for railroad purposes by the defendants from the time the plaintiff received his conveyance until the commencement of this action on the 20th of June, 1889.

It was brought for the recovery of damages sustained by the use of the structure for the passage and repassage of railway trains propelled by steam locomotives in the transaction of the business of the defendants. The structure and this use of it were alleged to have injured the premises, and to have reduced their value and rentals during the time the plaintiff was the owner under the deed and the commencement of the action. And as a part of the relief which it was the object of the action to secure, an injunction was demanded restraining the use of this structure in the manner already stated by the defendants.

While the deed which was executed and delivered to the plaintiff for the conveyance of the premises was complete and absolute in its terms, the witness Isidor S. Korn, a brother of the plaintiff, testified that it had been obtained for the joint benefit of himself and the plaintiff as partners in the property. And for that reason it was contended on the part of the defendant that the action could not be maintained by the plaintiff alone, or if it could, that he was entitled to recover no more than a compensation for the undivided half interest in the damages sustained by the property, and in the sum to be awarded as the price of the easements taken and appropriated by the defendants in the use and operation of the railway. But this objection cannot be maintained, for the reason that the deed did convey the legal title to the property to the plaintiff, subject of course to any equities growing out of his relation with his brother as to the division of the proceeds of the property. He was in this respect at least a trustee for the benefit of his brother to the extent of his interest, and as such, under § 449 of the Code of Civil Procedure, could maintain the present action in his own name. The court, therefore, did not err in overruling this objection made on behalf of the defendants.

Evidence was given in the course of the trial tending to prove that the property fronting upon the avenue while it had appreciated in value during the existence of this structure, had failed to do so in the same proportion as the property bad advanced in value upon the side streets. And from this evidence it might very well be inferred that the property upon the avenue had been injured by the construction and operation of this railroad. Upon this point this evidence was ample to support that conclusion, although it was contradicted by the testimony of the witnesses produced on behalf of the defendants. It also appeared that so much of the building as was devoted to flats for the occupancy of families was, for a portion of the time, unoccupied on the avenue front, and that this condition of vacancy was greater than it was in the portions of the building adapted to the same object fronting upon the street.

It was also stated that the rents of these flats were necessarily reduced to obtain occupants, and that the occupants themselves were a less desirable class of tenants than those by whom, when the building "was erected, it had been expected the flats would be taken and used. This evidence tended to support the same conclusion as that given by the witnesses concerning the difference in the appreciation of the rents between property upon the avenue and that located upon the streets crossing the avenue. And it was not overcome in its effect by the testimony establishing the fact that the stores fronting upon the avenue, particularly the one on the corner, had materially advanced in their rental. That on the corner was shown to have rented for a very large advance, but that advance was for a period of time subsequent to the commencement of this action. And it was largely induced by the circumstance that the tenant who took the store had been obliged to surrender another previously occupied by him in the vicinity, and he obtained this store to continue the enjoyment of the advantages of the business he had already in the neighboring store built up and secured for himself. Of course if the claim of the plaintiff had been limited to the injury sustained by him through the occupancy of the stores, no case for damages would have been made out in his favor. But the action was not restricted to that part of the property, but included so much of it as had been devoted to the occupancy of families in the three stories above the stores. And as to them more particularly than the -stores themselves, the evidence was sufficient to support the result reached at the trial that the plaintiff had been injured in the reduction of rents to the extent of $350, which was the amount awarded for that purpose.

Upon the trial the witnesses Freund and Isidor S. Korn were each asked what in their opinion was the value of this property located as it was upon the avenue, having as appertaining to it the use of the whole of the avenue above the surface of the street. This was objected to specifically by the counsel for the defendants, but the court permitted in the first instance the witness Freund to answer. And he testified that the value would be from one hundred to one hundred and ten thousand dollars. And to the ruling allowing this answer the defendants’ counsel excepted.

In answer to a similar question the other witness afterwards testified that the property would be worth the sum of $100,000. And an exception was also taken to the ruling of the court permitting this question to be answered. But as to the evidence in this manner adduced from the witness Freund, the defendants seem to have in the main been responsible for the question which was permitted to be answered. For in the examination of this witness by their counsel evidence was obtained from him that there had been a decrease in the value of property on Third avenue, and he added, “from the very fact of the existence of the elevated road..” This answer certainly opened the door to the further question afterwards put to the same witness by the counsel for the plaintiff as to the value of the property if the avenue itself had not been obstructed or devoted in part to the uses of this railroad. But assuming, as it may be necessary to do under what has been said in McGean v. Manhattan R. Co., 117 N. Y., 219; 27 N. Y. State Rep., 337, that these questions were improper in form, still the defendants do not appear to have been injured by the answers allowed to be taken. For the witness Freund had previously stated that in his judgment the value of this part of the property was no more than the sum of from $75,000 to $77,500, while in his answer to the question to which exception has been taken he places the value, without the railway structure, at from. $100,000 to $110,000. The other witness placed the present value of the property at from $75,000 to $80,000, while without the railroad his testimony was that it would be worth at least $100,000. This presented, in the judgment of each of the witnesses, a very large difference arising out of the construction, maintenance and operation of the railway, while the court, in its final decision, awarded no more than the sum of $5,500 to the plaintiff as the value of the easements which had been appropriated by the defendants through the construction and operation of the railroad.

It is evident, therefore, that this testimony was not followed by the justice presiding at the trial in reaching the determination of the depreciation in the value of the property resulting from the existence and use of the railroad. In adopting the conclusion which is contained in the decision, the other evidence bearing upon the same question appears to have been what was followed by the court. And, under the authority of the case already referred to, the taking of these answers, although erroneous, in no way affected or prejudiced the defendants. And that view was followed under similar circumstances in Mitchell v. Metropolitan R. Co., 31 N. Y. State Rep., 80. So far, therefore, as damages were allowed for injuries to the premises themselves in the diminution of their rental returns, and the compensation was fixed upon the payment of which the defendants have become entitled to a conveyance of these easements, the court did not exceed the fair result and import of the other testimony.

But inasmuch as it was stated by the witness Isidor S. Korn that the plaintiff had taken the title for his benefit, as "well as that of himself, the judgment should have provided that he should join in the conveyance of the easements with the plaintiff to these defendants. That is necessary to avoid any possible claim which he might hereafter present against the railway companies, for they are entitled upon the payment of this as the complete compensation for the reduction of the value of the property by the construction and use of the road to such a title as will shield and. guard them from even an unfounded claim which this party under the circumstances might be disposed to hereafter make. He should, therefore, by the judgment be required so far to join in the conveyance as to consent to the railway companies acquiring these easements for the purposes of the railway through the deed of the plaintiff in the action. ' And, as so modified, the judgment should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J.

I do not concur in that part of Mr. Justice Daniels’ opinion which provides for modification and affirmance without costs. The plaintiff is beyond doubt the real party in interest, and as such was authorized to bring the action, as is conceded in the opinion. If so, while it may be proper to compel Isidor Korn to unite in the conveyance, yet if the action was properly brought there seems to be no reason why the plaintiff should not have his costs.

O’Brien, J.

In this case there is no provision in the decision or judgment that Isidor Korn unite in the conveyance to defendants. The record shows'that .defendants requested as a condition upon their paying the damages awarded that they should receive a conveyance and release of all rights of plaintiff" and his brother Isidor. This request, though proper, was refused. I concur, therefore, with Mr. Justice Daniels that the judgment should be modified, without costs.