text:
    ROSALIE C. BARRY, Respondent, v. WILLIAM H. BRUNE and J. M. HARRIS, Appellants, Impleaded with THE MUTUAL LIFE INSURANCE COMPANY, Respondent.

      Insurance on life of husband for wife's benefit — assignment of, by wife, through coercion— Trust — Judgment of foreign court.

    The plaintiff, under the influence and coercion of her husband, assigned to the defendant Bruñe two policies of insurance, issued to her on the life of her husband, to secure a debt due from him to the defendant. The latter, fearing that the assignment was invalid under the laws of this State, in pursuance of an arrangement with the company, allowed the policies to he forfeited for nonpayment of premiums, and received new policies from the company for his benefit as a creditor, for the same amounts, bearing the same numbers, referring to the same register in the company’s books, and for the same premiums, except that the latter were payable semi-annually instead of annually, such policies being issued upon the original applications and without a new examination.

      Held, that the new policies were to be considered as renewals of the old ones, and subject to a trust in favor of the piaintiff the same as was impressed upon the original ones.
    After the commencement of this action, brought to restrain the company from paying over the amount of the policies to the defendant Bruñe, and to compel the payment thereof to the- plaintiff, Bruñe commenced an action against the company in the United States Circuit Court, in Maryland, upon the new policies, and recovered judgment for the amount thereof. Held (1), that this judgment was impressed with the same trusts in favor of the plaintiff as were the policies ; (2), that it only decided that the company was bound to pajr the money to the defendant in pursuance of its agreement so to do, and that it did not decide that he would be entitled to hold the money for his own use, and free from the trust existing in favor of the plaintiff.

      Held, further, that it was within the power of this court to enjoin the defendant Bruñe from taking any proceedings to enforce the collection of the judgment recovered by him in Maryland, and that a judgment to that effect in this case was proper, and should be affirmed.
    Appeal from a judgment in favor of the plaintiff, entered on the trial of this action at the Special Term.

      S. P. Wash, for the appellants.

      John K. Porter, Henry E. Ernies and Julien T. Ernies, for The Mutual Life Insurance Company, respondent.

      Edm/wnd Itandol/ph Hobinson, for the plaintiff respondent.
   DANIELS, J.:

The object of this action was to prevent the moneys claimed upon two policies of life insurance, issued by the defendant The Mutual Life Insurance Company, from being paid over to the defendant Bruñe, or his assignee, and to secure an adjudication that the policies were, in fact, the property of the plaintiff, and that the moneys owing upon- them should be paid to her. The policies were issued in the name of, and to the defendant William II. Bruñe, upon the life of John S. Barry, the plaintiff’s husband. And when they were issued, and at all times since then, Bruñe, as a creditor, had an insurable interest in the life of Barry exceeding the amount insured. One of the policies was for the sum of $20,000, and the other for $5,000, and they were both issued on or about the 18th day of January, 1872, and Barry, whose life was insured, died in the following month of March.

Before either of these policies was issued, two other policies in the same amount were issued by the same company, upon the same life, in favor of'the plaintiff, who was then the wife of John S. Barry. The first was dated on the 11th day of January, 1867, for the sum of $20,000, at the annual premium of $592.80, payable on that day in each year. And the second was dated on the 9th of December, 1870, for the sum of $5,000, and it was issued in consideration of the payment of an annual premium of $168.60, payable on that day in each year. The premiums on these policies were properly paid up to and including the year 1871, when the plaintiff’s husband, John S. Barry, became embarrassed in his business, which was that of banker. And at his request the defendant Bruñe loaned and advanced him the notes of his firm for about the sum of $80,000. These notes were to be paid by Barry, and, in the mean time, he.was to secure the firm of Bruñe & Sons against their liability upon them. For that purpose, in July, 1871-, the plaintiff under the persuasion, controlling influence and coercion of her husband, executed an assignment in blank which was afterwards so filled up by his direction as to assign the two policies in suit to the defendant Bruñe, and it was then mailed to him by depositing it in the post-office at the city of New York, addressed to him at Baltimore, which was the place of his residence. He held the assignment and the policies in that form until the days on which the premiums respectively became payable and then omitted to pay such premiums in order to secure a forfeiture of the policies for that default, aud have others issued to him in his own name in their place. It appears to have been understood between himself and the agent of the insurance company at Baltimore, that the policies should be so changed partially, if not wholly for the purpose of correcting an infirmity in the title created by the assignment, arising out of the suspected inability, under the laws of this State, of a married woman to transfer the insurance effected for her benefit upon the life of her husband.

By a clause contained in each of the policies, they were liable to forfeiture for the non-payment of the premiums on the days when payment should be made, and after such forfeiture the company was in terms exonerated from all liability upon them, but that was in this case qualified by the understanding that the assignee was to receive others in his own name in lieu of them. Pursuant to that the policies were allowed to lapse for such non-payment and, with the assent and co-operation of Barry, those now in suit were applied for and received by the defendant Bruñe. They were issued and delivered to him upon the basis of the applications and examinations made for those held by the plaintiff; they bore the same numbers respectively; they were for the same amounts, referred to the same registers in the company’s books, and were for the same premiums, but payable in semi-annual instead of annual payments, as'the policies which had lapsed, and they were issued in consideration of the payment of the premiums remaining unpaid on the original policies, and that to the extent of $169.48 was made from dividends, or profits, credited to the plaintiff by the company on the larger and first policy it had delivered to her.

It is entirely clear from these facts, that no substantial change was made in the insurance by what transpired. The new policies were a substitute for those previously issued, a continuation in fact of the same insurance but in the name and for the declared benefit of the defendant Bruñe. They were designed simply to secure him the same advantage expected to have been derived from the assignment alone, and which would have resulted from it, if that had been a valid and binding instrument. It was not intended to create a new insurance, but simply to render that previously made effectual and irrevocable in the hands of the defendant Bruñe. That is very apparent from the circumstances already mentioned, and from the facts that no increase or change was made in the amount of the insurance, or of the premiums to be paid for it. Neither party intendedor expected that the company should be held liable on the four policies, but that the first two should expire according to their terms, and the others be substituted in their-place, and that is what was actually effected. It was done to render the insurance a valid seeuritj'- in the hands of the defendant Bruñe, which it was supposed the assignment alone had failed to accomplish. That was the nature of the understanding entered into with the agent of the insurance company, and its performance was consummated, as far as that was practicable, by the forfeiture of the old and delivery of the new policies. They made the same insurance with the simple change, that from that time it stood in Brune’s name instead of being held by him as assignee; and it was supported by the identical interest in the life of the debtor, Barry, as the assignment was made to protect. The same end was to be subserved by each of the instrumentalities, that was the security of the creditor upon the obligation of the debtor. In one form it was to be done by means of the assignment, which, if it had been valid, would have entitled him to the insurance moneys for its extinguishment; and in the other by a surrender of his formal position as assignee for an insurance in consideration of it directly in his own name. The object to be attained by each was precisely the same; and if Barry had lived and paid the notes, there can be no doubt, from the nature of the transaction, that the plaintiff would have been coneededly entitled to the benefit of the final insurance. Her policies were the moving or inducing cause of those issued to the defendant Bruñe. If they had not been, there is good reason for believing that a new application and examination would have been required, together with an increased premium for the additional age of Mr. Barry at the time. But instead of being an independent transaction, the two policies finally issued, proceeded from and depended upon the others, in such a manner as to form a mere continuation of the same insurance. The liability created by those issued to the plaintiff was carried into those received for them by Bruñe, the defendant, and for the purpose of determining the rights of the parties they must be regarded as, in all essential respects, the same. . For that reason, if the policies assigned were necessarily, though not designedly, held by the defendant Bruñe for the benefit of the plaintiif, and not for himself or his firm, the same trust impressed itself upon those substituted in their place. It is a settled principle, both in law and equity, that the true owner of property cannot be deprived of his or her right to it by changing it into something else, as long as the identity can be ascertained and traced. (Silsbury v. McCoon, 3 Cow., 379, 390.) The rule is broad and liberal, holding that “ wherever the property of a party has been wrongfully misapplied, or a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form liable to the rights of the original owner, or oestui que trust. The general proposition, which is maintained both at law and in equity, upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, not being bona, fide purchasers for a valuable consideration without notice, any more valid claim in respect to it than they “respectively had before such change.” (2 Story’s Equity Jur. [11th ed.], 572, § 1258.) And it has been further affirmed, by the same author, that it will make no difference in law, as indeed it does not in reason, what change of form, different from the original, the property may have undergone, whether it be changed into promissory notes or other securities, or into stock or into money. For the product of the substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fails.” (Story on Agency [4th ed.], §§ 229-231.) And the principle has been frequently applied for the protection of the rights of the assured in cases in which one policy has been surrendered and another received in its place, on the basis of the original insurance. (Dutton v. Willner, 52 N. Y., 312; Nesbitt v. Berridge, 10 Jurist [N. S.], 53 ; Chapin v. Fellowes, 36 Conn., 132; Lemon v. Phœnix Life Ins. Co., 38 id., 294; Norwood v. Guerdon, 60 Ill., 253.)

To that extent it is entirely applicable to the present controversy, even if the defendant JBrune can in any proper sense be considered a bona fide assignee of the original policies. For by the statute of the State, authorizing a married woman to insure the life of her husband, the insurance has been exonerated from the rights of his creditors, and placed beyond her power of alienation to them. (3 R. S. [5th ed.], 240, § 80; Eadie v. Slimmon, 26 N. Y., 9; Barry v. Equitable Ins. Co., 59 id., 587.) And as the assignment proceeded from her to the defendant Bruñe, he had constructive notice of that infirmity in his title which seems to have been followed by actual notice of the fact, before the conversion of the old policies into the new ones. He was not a bona fide assignee therefore, and not within the protection often secured to bona fide purchasers for value without notice. He had what the law regards as the equivalent of actual notice, and acquired his knowledge of the facts from which it proceeded, before he endeavored to change the form of the policies. When he made that change, for the purpose of defeating the rights it was supposed the plaintiff would otherwise have been entitled to claim, it was both unauthorized and wrongful.

But even if he had been an assignee for value without notice, his title would still have been defective. For by the assignment which was made no title whatever to the policies was transferred to him. For there was not only an absence of power to make a valid assignment in the assignor, but beyond that, it never received that assent from her which was necessary to render it binding upon her. It was found as a fact, upon evidence not questioned as insufficient, that she executed it under the persuasion, controlling influence and coercion of her husband; .and that, as well as her want of power, rendered it entirely inoperative against her. (Barry v. Equitable Life Ins. Co., supra; Whitridge v. Barry, 42 Md., 140.) For that reason, as the insurance continued to be practically the same as it previously had been, after the new policies were issued, and, in substance, only a continuation of that which had been made in her own name, she was entitled to receive the moneys the company became liable to pay upon them.

But it has been urged by the learned counsel representing the defendants Bruñe and Hams, the latter of whom has been appointed trustee in place of the deceased assignee Whitridge, that the insurance company was not entitled to be protected against a further payment of the same amount to such trustee, as it has been by the judgment entered in this action. And reliance has been placed upon a judgment recovered in the United States Circuit Court for the district of Maryland, in support of that position. That judgment was recovered in favor of Horatio S. Whitridge, as assignee of the defendant Bruñe, against The Mutual Life Insurance Company. It was, in form, an action at law upon the policies issued to the defendant Bruñe, to recover their amount because of the decease of Barry, whose life was, insured by them. And it was commenced while the present action was pending, and after both Bruñe, and Whitridge his assignee, had appeared as defendants in this suit. The insurance company, by its plea in the United States Circuit Court, denied that it was indebted to the plaintiff in the action there pending, or that it had promised as was alleged, and then set forth the pendency of the present action as a defense. A replication to the plea was filed, which in no manner changed the issues tendered by it. Upon those pleadings the action was tried, and a recovery had in favor of the plaintiff for the amount due on both the policies. That was a direct result of the form of the contracts entered into upon the forfeiture of the policies issued to the plaintiff. The simple pendency of this suit in this State constituted no legal obstacle to the maintenance of that action in the State of Maryland. And as the insurance company had promised to pay the loss to Bruñe, the assignor of the plaintiff in that action, and had become indebted by the decease of Barry, a liability, according to the contracts entered into, was clearly made out. That was all that was in issue in the action in the United States Circuit Court; and to that extent only, is the judgment recovered conclusive as to the obligation of the company. Whitridge, as the assignee of Bruñe, could very properly maintain that action as he did, for he had the express promise of the company to his assignor to predicate it upon. And that was sufficient to entitle him to recover in a court of law. But whether, after a recovery, he could appropriate the fruits of it, or whether by paramount title of the plaintiff in this suit he could be deprived of them, were matters in no way involved in the litigation between Whitridge, as assignee of Bruñe, and the company. What was in controversy, was his right to the insurance moneys under the terms of the policies. So far as the company was concerned, and without a superior elaim-ant, be was clearly entitled to an adjudication of those matters in his favor, and that was all that the judgment recovered in the United States Circuit Court could or did settle, for a judgment is only final and conclusive on the points actually in issue, and which may be litigated by the parties. (Royce v. Burt, 42 Barb., 655 ; Burwell v. Knight, 51 id., 267; Sweet v. Tuttle, 14 N. Y., 465 ; Campbell v. Consalus, 25 id., 613; Angel v. Coon, 38 id., 378.) As the policies themselves, upon which the action was prosecuted, were in equity affected by a trust in Brune’s hands for the benefit of the plaintiff, so was the judgment recovered by his assignee, and so would the money be if he were permitted to receive it. The trust which attached itself to the policies also impressed itself upon the judgment for the recovery of the amount of them. That necessarily follows from the principle already mentioned, and as the existence of such trust was not involved in the action in which the judgment was recovered, and the plaintiff was in no way a party to it, that was a proper subject of inquiry in this ease, notwithstanding the existence of that judgment. . It was only adjudged in the Circuit Court that the plaintiff in that action could enforce the promises the company had made to his assignor. Whether he could retain the money from the plaintiff in this action after he recovered it, was neither in issue nor determined. That depended upon evidence and facts not pertinent to that controversy, but entirely extraneous to it, and they formed a subject-matter entirely distinct and independent of it. -It is by no means an unusual thing for one party to recover and collect money from another, which in the end may be found to be the equitable property of a third, and wherever that may appear to be the case, equity alwaj^s intervenes and determines who has the paramount right to receive and retain it. In fact that is always the case as to property held in trust either by the wrongful act of a party, or upon a lawful and conventional trust, created by the act of one person for the benefit of another. The obligations are the same in each class of cases. The trustee, whether made such by operation of law or the voluntary act of another, holds the trust property not for himself, but for the party beneficially interested in it and ultimately entitled to receive it; and the recovery of it from another, either by force of a contract for its payment or restoration, or by means of the title alone, vests the person charged with the trust with no greater right or interest as to the eestui que trust, than he would ha ve if the subj ect-matter were never invol ved in legal controversy. From the relation borne to the property, whatever the party so recovering it may do, he does not act for himself, but for the party who has the final right to receive and recover the property from him. That was the situation of Bruñe and his assignee in the present case. While they had the nominal and apparent title to the policies, the plaintiff was the beneficial and paramount owner of them. And her title could not be, and was not, divesfed or in any form impaired by reason of the circumstance that a judgment for a recovery of the debt had- been rendered in favor of one of them upon contracts made with the other, enforcing the simple obligation for the payment of the money; whether in equity the plaintiff or the assignee of Bruñe should receive the money, was another controversy, in no way disposed of until it was heard and decided in the present action. And in this case it was properly held that she had the paramount right, and that the money should be paid to her as her property. That resulted necessarily from the facts that the original policies were hers; that she never parted with her title to them, and by those issued to the defendant Bruñe the same insurance was in effect continued.

There was but one insurance either in fact or in law, and the contest was limited to the right to its proceeds. The insurance company became liable for only one aggregate sum of $25,000, and it received the premium or consideration for that, and for nothing beyond it. Whitridge, as the assignee of Bruñe, who received the new policies in the place of and as substitutes for the old ones, limited his claim to the recovery of that money, and for that judgment was awarded in his favor. The plaintiff in this action claimed the same fund, and her right to it has been established. The payment or deposit already made of it, pursuant to the judgment in this ease, will discharge the entire liability of the insurance company, and satisfy the judgment recovered by Whitridge and now held by the defendant Harris, who was appointed as his trustee upon his decease. And it was therefore within the power of this court to enjoin further proceedings after-wards for the enforcement of that judgment. Complete justice could not otherwise be done between the parties. Whitridge recovered a judgment for money which was really the property of the plaintiff in this action. And this court has now determined that instead of its being paid to him, and then by him, as it should be if he received it, paid over to the plaintiff', that it shall be paid directly to her. And it could not properly do that, without at the same time protecting the company against liability to make another payment of it to Harris as the trustee of Bruñe and Whitridge. The Code invested the court with the power of pronouncing just such a judgment in the case. It could not otherwise determine the entire controversy before it or the ultimate rights of the parties as between themselves, as it has been empowered to do. (Code, §§ 122, 2Y4.) It was also properly incidental to an action in equity prosecuted for the settlement of conflicting claims to the same fund or property. Judgment for its payment to one of the parties required that the others should be precluded from also demanding or receiving it; and that could only be done in one of two ways: either by requiring the judgment recovered for the debt to be actually satisfied and discharged of record, or enjoining the party in whose favor it_ stood from afterwards proceeding with its collection. The insurance company was made a party to the action for the purpose of concluding it by the judgment which should be rendered on the conflicting claims made to the proceeds of the policies. And one of the incidents in the determination of such a controversy is to afford protection to the debtor on making the payment directed by the final judgment. It is based upon the facts proved, for the purpose of showing to whom the money should be rightfully paid; and for that reason, within the rule mentioned in the case of Kay v. Whittaker (44 N. Y., 565, 576). Complete redress could be awarded in no other way. As the judgment in the other case was not actually satisfied of record, its future collection, on the payment of the money' to the person entitled to receive it, or its deposit in court for her, was lawfully enjoined. (Savage v. Allen, 54 N. Y., 458; N. Y. and Harlem R. R. v. Haws, 56 id., 1Y5.) The case was a special one, and the controversy was properly terminated in that manner. There would have been no reason in allowing it to remain open for future litigation upon the same evidence, in the courts of another State. But as this action was the first and only one commenced for the purpose of settling the conflicting claims made to the insurance money, by a party who was a citizen of this State, and all the parties having any interest in the controversy were brought before the court, it could do no less than it did, under the well settled principles of equity jurisdiction, which required that the dispute should be completely and effectually disposed of by the judgment finally rendered in the case. (Rathbone v. Warren, 10 Johns., 587; Miller v. McCan, 7 Paige, 451; Elliott v. Pell, 1 id., 263, 268; Jones v. Grant, 10 id., 348, 350.) Any different disposition would have invited further litigation between some of the parties without being attended by any beneficial result not attainable in the present action. The judgment was right and it should be affirmed, with costs to the respondents.

Beady, J., concurred. Davis, P. J., taking no part.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: DANIELS, J.: Davis, P. J.:

license: Public Domain

text:
    GEORGE C. PETERS and others, Executors, etc., of JOHN R. PETERS, Deceased, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Municipal corporation — street opening — neglect of owner to remove building — unauthorized acts of officers in so doing — liability of dty therefor — measure of damages.

    The city of New York having instituted proceedings to acquire title to the lands necessary for the widening of Church street, an award was made to the plaintiffs for land taken from them and for the expense of removing the buildings thereon. Subsequently, upon their failure to remove the buildings, the street commissioner, whose duty it was to take charge of the opening and altering of streets and avenues, advertised them for sale and paid over the proceeds to the defendant. In an action by the plaintiffs to recover the value of the buildings, held (1), that the materials in the buildings belonged to the plaintiffs, and that it was unlawful for the defendant to sell the same; (2), that though the street commissioner was not authorized to sell the buildings, yet, as he acted for the defendant in good faith and in pursuance of a general authority possessed by him, it was liable therefor.

      The plaintiffs should he limited in their recovery, to the amount realized on the sale and actually paid over to the defendants, with interest, less the amount allowed to them for the removal of the buildings. (Per Davis, P. J.)
    Appeal from a judgment in favor of the defendants, entered on the dismissal of the plaintiffs’ complaint on the trial at the Circuit.

      Timothy F. Neville and Moody B. Smith, for the appellants.

      James M. Smith, for the respondent.
   DANIELS, J.:

It seems to be conceded in this case that the defendant instituted, carried on and completed proceedings for widening Church street, in the city of New York ; that a portion of the land required and taken for that purpose, belonged to an estate of which the plaintiffs were the executors; and in the award made they were allowed the value of the land, and the expense of removing the buildings from it, and required to make such removal. The award was paid, but the buildings were not removed by the plaintiffs, nor by any person acting under their authority. After they had neglected, for the period of about sixteen months, to take measures for the removal of the buildings, the street commissioner, whose duty it was, under the ordinances of the city to open the street, advertised them for sale and sold them, and they were afterward removed and appropriated to their own use by the purchasers. The plaintiffs, claiming such sale and appropriation to have been unlawful and unauthorized, brought this action to recover the value of such materials. It appeared that all the buildings in the way of the completion of the widening of the street were sold at the same sale, and the proceeds-received from them were paid into the treasury of the city. Upon this state of facts, together with evidence showing the value of the property claimed, the complaint of the plaintiffs was dismissed, to which they, in due form, excepted.

By the decision which was made in the case of Schuchardt v. The Mayor (53 N. Y., 202), the title of the owners to the materials in the buildings upon land taken for widening this street, was established. And it was further held that they could recover for a sale and appropriation of them, without their authority, against the defendant, when that was made by its act. That was necessarily the result of sustaining the complaint in that case. And it restricts the present controversy to the question, whether the sale was, in this case, shown to have been made by the act or authority of the defendant. That was not proven by direct evidence. But it did appear that the city was engaged in the promotion of the enterprise of widening this street, and (he removal of the buildings was indispensable to the success of that enterprise. It was made the duty of the street department, whose chief officer was the street commissioner, to open streets. Bor the purpose of opening this street that officer advertised, and caused to be sold, the buildings standing upon the land which had been taken for the widening of the street, and the city received the proceeds. It was not shown that it knew whence they proceeded. But that could reasonably have been inferred from the public nature of the enterprise in which it was engaged ; the necessity, of the removal of the buildings; the notoriety of the commissioner’s acts for the promotion of that end, and the nature of the fund paid over to it. There was enough in the case to render the inquiry & proper one for the jury, whether the city had not confirmed the acts of its officer by receiving and enjoying their fruits ; and if that were the case it was equivalent to a direct authority for the performance of such acts.

The decided probabilities of the transaction would appear to lead to the conclusion that the city desired to complete the work of widening the street, and directed the street department to remove the buildings standing in the way, without indicating the manner in which that was expected to be done. And in the exercise of that general authority, the commissioner having no place of storage or deposit for the materials, concluded that they could be most effectually removed by a sale, and made that accordingly. It was one mode of accomplishing the result he was required to produce, and for that reason not so entirely beyond the limits of the authority given to him, as to preclude the defendant from rendering itself liable by a ratification, proceeding from the acceptance and retention of the proceeds of the sale. (Dillon on Municipal Corporations [2d ed.], § 385, and notes; Angell & Ames on Corps. [4th ed.], § 304; Bennett v. Judson, 21 N. Y., 238, 239, 240; Thayer v. City of Boston, 19 Pick., 511.) There can be no doubt but the commissioner acted T>ona fide pursuant to a general authority possessed by him, and supposed he did no more than to discharge the duty which had been imposed upon him. The act was done for the corporation, in the promotion of a proper and lawful enterprise prosecuted by it, and under its general authority, and that has been held to be sufficient to render it liable for the consequences of a deviation from the strict line of such authority. (Lee v. Village of Sandy Hill, 40 N. Y., 442.) The act "of removing the buildings was a lawful and proper one, and if no more than that had been done the defendant would not have been liable. But to secure that removal a sale of their materials was made, and the purchaser according to its terms appropriated them to his own use. Those acts, while they secured the removal the commissioner was authorized to effect, were unauthorized, because the materials belonged to the plaintiffs. And for the reasons already assigned, enough was shown to entitle them to have the questions submitted to the jury, on the determination of which the liability of the defendant for such sale depended.

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

Beady, J., concurred.

Davis, P. J.:

The plaintiffs were wrong-doers in not removing the buildings after receiving compensation for the land and for the expense of removal. The building became a nuisance, which it was the duty of the proper city authorities to abate. The city was not bound to incumber the public streets with the building or its materials, nor to furnish a place of deposit on any of its other property. It had a right, therefore, under the peculiar circumstances of the case, to tear down the building and if necessary to dispose of the materials in any form requisite to get them out of the way of the street to be opened. In getting the building out of the way, the commissioner of public works only did an act which the plaintiffs were bound to perform, and if the same was done with reasonable care and prudence he should be regarded as acting with authority from the plaintiffs, who, from their neglect or refusal to remove the building after compensation for so doing had been paid to them, must be regarded as assenting that the authorities might treat and dispose of the same as a nuisance.

If in disposing of a public nuisance a sale of the materials is made so that money therefor is realized, the proceeds may be regarded as the property of the ownep of such nuisance, which may be recovered after proper demand, and after deducting the expenses incurred in the abatement of the nuisance.

I think, in this ease, there could be no recovery of the city beyond the amount realized on the sale and actually paid into its treasury, with interest after proper demand, subject, also, to a deduction of the amount allowed and paid to plaintiffs in the award for the removal of the building.

In no other way can justice be done to the city, when placed in such a position by the wrongful conduct of a party, whose lands have been taken for a public street on payment of just compensation both for the land and the removal of buildings.

I concur that there should be a new trial in this case, but if the city be found liable, the damages should be measured by the rules above suggested.

Judgment reversed, new trial ordered, costs to abide the event.


author: DaNiels, J.: Davis, P. <T.

text:
    DAVID C. BANCKER and MICHAEL J. QUIGG, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Oertifioate — when made prerequisite of payment — unreasonable refusal to gire— effect of— Presumption — of fact, to sustain, referee's report.

    Where an act authorizing the construction of a court-house in the city of New York provided, that payments therefor should he made by the city upon the production of vouchers, approved hy the commissioners by whom thebuilding was to be erected, a refusal on their part to approve a bill on the ground that they have no personal knowledge of the matter is unreasonable, and relieves the applicant from the necessity of complying with this provision of the act.
    When the uncontradicted evidence establishes the existence of a fact, essential to the plaintiff’s right to recover, it will he presumed, in support of a judgment in his favor, that such fact was found hy the referee, though not so stated in his report.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the report of a referee.
    This action was brought to recover $4,873, with interest, for work, labor and services performed on, and materials furnished in the building of the Harlem court-house. It appeared by the evidence that the plaintiffs, who were partners in the carpenter trade, furnished materials and performed labor as alleged in the complaint, in pursuance of directions given by a Mr. Scallon, who was claimed by them to be an agent of the commissioners appointed to erect the court-house.
    That the plaintiffs prepared bills for the amount of their claim, and caused them .to be presented to the commissioners for their approval, in pursuance of section 3, chapter 410 of 1870, authorizing the construction of the court-house, but that the commissioners refused to approve them, giving as -a reason, “ that they had no personal knowledge of the matter.”

      Ohm. P. Miller, for the appellants.

      Henry Parsons, for the respondents.
   DaNiels, J.:

The judgment from which the appeal has been take^, was recovered for the value of labor and materials performed and supplied by the plaintiffs in the erection of the Harlem court-house, in the ninth judicial district of the city of New York. The controversy was limited to the point of the liability of ,the defendant for the debt, the amount of which was practically undisputed. The materials were furnished and the work performed under the immediate employment of Mr. Scallon, who represented himself as the superintendent under the commissioners designated in the act for the erection of the court-house. His declarations of the fact that he was superintendent were received without objection, during the trial, as evidence in the case. And it appeared that he presented a bill to the defendant, which contained a charge for his services in that capacity during the year 1870, in which the plaintiffs commenced their work, and that it was allowed and paid by the authorities of the city. From these facts the referee was warranted in finding that Scallon was, as he claimed he was, the superintendent in charge of the erection of the building.

The commissioners were empowered by the act designating them, to employ him in that capacity ; for it was provided in it that they might employ the necessary assistants required in the performance of their duties, and that they should be paid by the comptroller of the city, upon vouchers approved by the commissioners. (Laws of 1870, chap. 410, § 3 ) Under that general authority the plaintiffs were also employed- and- performed the services and supplied the materials for which payment was claimed by them, and it was clearly broad enough for that purpose. The commissioners were empowered to locate and erect the court-house and for that purpose to employ the necessary assistants, and as such the plaintiffs seem to have been engaged.

There is- nothing in the act by which the commissioners themselves were rendered liable for the price, etc., or value of the materials supplied and work performed in erecting the building; neither have they been provided with any fund for the payment of the -expenses to be incurred. It could not have been designed, therefore, that they should become personally liable for such payment. The act provided that the land purchased and the building erected under the superintendence of the commissioners should be the property of the defendant (Laws of 1870, chap. 410, § 1), and that payment of the necessary assistants employed by them should be made by the comptroller of the city in the usual method for making payments for city purposes,- upon vouchers approved by at least a majority of the commissioners, and that the board of supervisors should raise the necessary funds for that purpose by a tax upon the real and personal estate within the city. (Id., § 3.) From these provisions it is very clear that the work was to be done by the commissioners for the defendant and at its expense. They were made its agents, and it became liable for their lawful acts, and it was properly held to be so by the referee. The case in this respect is entirely different from those relied upon in support of the appeal, and in which no such agency and obligation to make payment appeared to have been provided for.

It was not objected that the tax had not been levied and collected, as directed by the act for the payment of the expenses incurred, but it was claimed that uo recovery could be had, because the commissioners had approved of no vouchers entitling the plaintiffs to payment. To meet this defect -in the case, it was shown that an application was made to them for the approval of the bills, which they refused, for the assigned reason that they had no personal knowledge on the subject. That was an unreasonable refusal. If they had no personal knowledge, it was their duty to have instituted such an investigation as would have enabled them to have discharged the duty which the statute had imposed upon them. It was the intent of the act, that they should determine the justice of the demand made before payment could be legally required, and it was their duty to acquire the knowledge requisite for the intelligent performance of that duty. By refusing to do that they put it out of the plaintiffs’ power to comply with this provision of the act, and entitled them to payment of what was justly owing without the vouchers unreasonably denied them. This was held in substance by the Court of Appeals, in the decision of the case of The Bowery National Bank v. The Mayor, etc. (not yet reported).

The referee must have adopted this view of the evidence, although he has not so stated in his report. But as the fact appeared by the evidence, which was not contradicted, and it was essential to the right of the plaintiffs to recover, it is to be presumed, in support of the judgment, that it was found though not stated by the referee. (Cooper v. Bean, 5 Lansing, 319; Grant v. Morse, 22 N. Y., 323; Chubbuck v. Vernam, 42 id., 432.)

The judgment should be affirmed.

Bbadt, J., concurred.

Davis, P. <T.

(dissenting):

The city was not bound, nor was the comptroller authorized to pay until the presentation of the vouchers required by the act. The approval of the commissioners was an essential part of such vouchers, made so by the act itself. The respondents were bound to present to the comptroller such approval, or to satisfy him that it was improperly or unreasonably withheld. Nothing of that kind was attempted to be shown. If the city authorities, on such facts being shown to them, had refused to allow and pay the demand, notwithstanding the unreasonable and illegal refusal of the commissioners to approve the account, then the plaintiffs might, upon proper proof, maintain their action. The referee has not, however, thought the question whether or not the commissioners unreasonably withheld their approval, one of sufficient importance to be passed upon by him. To me it seems important that he should not only have found an unreasonable refusal, but also that the fact that the vouchers had been presented to the commissioners and approval refused, on improper grounds, was made known to the city authorities when payment was demanded or before suit brought.

I think there should be a new trial, with costs to abide event.

Judgment affirmed.


author: DANIELS, J.: Beady, J.

text:
    SIEGMUND M. PEYSER, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents.

      Assessment — payment of, under protest — Voluntary payment — right to recover amount paid.

    The plaintiff received a notice from the collector of the city of New York, stating that an assessment had been made on a lot owned by him, payment of which was expected to be made on or before July twenty-seventh, and that unless paid before that day interest would be charged at the rate of seven per cent from the date of confirmation. Plaintiff saw the collector, told him tlie matter was in litigation and that if he paid, it would be under protest; the collector said, “ you can do as you like,” whereupon plaintiff paid theamount. Subsequently, upon a petition filed by the plaintiff and others the assessment was vacated. In an action brought by him to recover back the amount so paid, held, that as the payment was made voluntarily and with full knowledge of all the facts, the action could not be maintained. (Brady, J., dissenting.)
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint herein.
    The action was brought to recover the amount of an assessment paid to the defendant.

      It appears that in the latter part of July, 1869, the plaintiff received a notice from the bureau of collection of assessments of the city of New York, stating that “ an assessment has been made on your property * * ■ * which was confirmed on the 3d of March, 1869, and that payment of the said assessment is expected to be made on or before the 27th day of July, 1869, and unless paid on or before said day, interest will be charged at the rate of seven per cent from the date of confirmation. * * * ” In pursuance of the notice the plaintiff went to the office and told the collector that the matter was in litigation and that if he paid, it would be under protest, the collector said, “you can do as you like,” and plaintiff then paid the amount. The assessment having been subsequently vacated upon the application of plaintiff and others, this action was brought to recover back the amount so paid.

      A. E. Dyett, for the appellant.
    The assessment had been confirmed by this court, and the proceedings of the commissioners, thus confirmed, were judicial and in every respect equivalent to a judgment against the plaintiff for the amount of the assessment. (Bank of Commonwealth v. The Mayor, eto., 43 N. Y., 184, at pages 188, 189, per GeovbR, J.; Swift v. Poughkeepsie, 37 id., 511.) The plaintiff’s sole remedy was by. petition to vacate, and he could not obtain any injunction, order, or process, staying the enforcement of the assessment ad interim, and was, therefore, compelled to pay the assessment. {Bank of Commonwealth v. The Mayor, eto., 43 id., 184-189; Crook v. Andreios, 40 id., 547, at pp. 54S, 549; Wilson v. The Mayor, eto., 4 E. D. Smith, 675, 677, 702, 703 ; Swift v. Poughkeepsie, 37 id., 511.) It was not necessary that he should wait for the issuing of any warrant to collect the assessment, or a sale of his property. {Bank of Commonwealth v. The Mayor, eto., supra ; Sturgis v. Allis, 10 Wend., 355; Meagher v. Kellog, 24 id., 32; Carr v. Martin, 20 N. Y., 306.) It was enough that payment was demanded, though even that was not necessary. {Lott v. Sweezy, 29 Barb., 92, 93, and eases cited.)

      D. J. Dea/n, for the respondents.
    Where there is no fraud or mistake in matter of fact, if the law was mistaken, the rule applies that ignorantia juris non exousat. {Mowatt v. Wright, 1 Wend., 355; Bilbie v. I/umUe, 2 East, 470 ; Brisbane v. Daores, 5 Taunt., 155; Bulkeley v. Stewart, 1 Day, 123.) "Where money is paid with a full knowledge of the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. (Clarice v. Butcher, 9 Cow., 674; Lowery v. Bordieu, Dougl., 470; Knibbs v. Hall, 1 Esp. N. P. Cas., 83; Brown v. MoKinnally, id., 279; Marryatt v. Hampton, 2 id., 546 ; Stevens v. Lynch, 12 East, 38.) Where a void assessment has been paid voluntarily, an action to recover the same cannot be maintained. (Fleetwood v. The Mayor, 2 Sandf., 475; Forrest v. The Mayor, 13 Abb. Pr., 350; Trinity Ohuroh v. The Mayor, 10 How. Pr., 138; Supervisors of Onondaga, v. Briggs, 2 Denio, 26; Wyman v. Farnsworth, 3 Barb., 369 ; Muiual Life Lns. Go. v. Wager, 27 id., 354; Smid-ford v. The Mayor, 33 id., 147; Commercial Bank of Rochester v. The City of Rochester, 42 id., 488; N. Y. amd Harlem R. R. Co. Y. Ma/i'sh, 2 Kern., 308; Swift v. City of Poughkeepsie, 32 N. Y., 511.)
   DANIELS, J.:

The first conclusion adopted in this case was, that Mr. Justice Beady was right in his views of it, and that the plaintiff should have been allowed to recover. But that is believed to be unsound, for the reason that the money was paid for the purpose of discharging the assessment, without any mistake concerning the facts on which it depended for its validity. The plaintiff was subjected to no compulsion requiring the payment to be made by him, but it was made voluntarily. And when that appears to be the case, and the payment was not induced by some mistake of fact, it cannot afterward be recovered back. (Fleetwood v. Mayor, etc., 2 Sandf., 475 ; Wyman v. Farnsworth, 3 Barb., 369 ; Sandford v. Mayor, 33 id., 147; Commercial Bank of Rochester v. City of Rochester, 42 id., 488 ; Forbes v. Appleton, 5 Cush., 117.) The rule upon this subject has been recently stated in terms specially applicable to a case like the present one, in the following words: “If he voluntarily yielded to the claim, and there was no duress of person or goods, or fraud on the part of the creditor, the payment concludes him, and he could not avoid the force or effect of the act of payment as an admission, or reserve the right to draw the matter into controversy thereafter by paying under protest. The act of payment was voluntary, and if he intended to litigate the right, he was bound at the time, to take his position and resist the demand made upon him.” (Flower v. Lance, 59 N. Y., 603, 610; Duncan v. Bellin, 60 id., 151.) The present case differs from that of The Bank of Commonwealth v. Mayor (43 N. Y., 184), in the circumstance that while the proceedings there were pending upon certiorari, a warrant was issued for the collection of the tax, and the defendant is stated to have collected it by its officers by menace and compulsion. And also from Preston v. Boston (12 Pick., 7), where it was paid to avoid a warrant which was to be issued for its collection by a certain specified day. No authority has gone further than that case in the way of maintaining such an action; and the present one falls very far short of it, so far as the feature of compulsion is concerned. The evidence showed that notice alone was sent to the plaintiff that the assessment had been made; that payment was expected before thé 27th day of July, 1869, and if not paid on or before that day, interest at the rate of seven per cent would be charged upon it from the date of its confirmation. Upon that the plaintiff paid it without even a menace of process or the seizure of his property, insisting, at the time, that the proceedings had been irregularly carried on, and that others were pending or about to be taken to set the assessment aside. And in reply he was informed by the officer receiving payment that he could pay or not, just as he chose. No authority has yet proceeded so far as to sanction the right to recover back money paid under such circumstances, even after the assessment itself has been set aside, as this one was afterward on the plaintiff’s application. The claim has no equities in its favor which should induce or justify such an extension of the existing rule on this subject, as would warrant the courts in sustaining it. The plaintiff’s property was improved and advanced in value by the pavement, for the expense of which the assessment was made ; and that benefit he will retain, without compensation for it, if the payment made for it should be recovered back, unless a re-assessment should be made for it, as in that case it ought to be under the power conferred by chapter 338 of the Laws of 1858, section 5.

The defect for which the proceedings were set aside, did not consist in any omission to perform the work for which the assessment was required to be paid, but it was alleged to be an irregularity arising out of the inclusion of the cost of work done that was not authorized by the order in pursuance of which the assessment was laid. It is to be presumed, from the evidence, that the plaintiff’s property received in its improvement a reasonable equivalent for the amount paid by him; and that no real injustice will be sustained by him through the failure of his action to recover back the money he has paid for it.

The judgment in the case should be affirmed.

Davis, P. J., concurred.

Beady, J.

(dissenting):

The plaintiff paid an assessment imposed upon his land for a local improvement. Subsequently, on his application, the assessment was declared to be void, and it was vacated. These facts appearing the complaint was dismissed upon the ground that having voluntarily paid the assessment without disputing its validity, he could not recover. The decision thus made was erroneous. It cannot be denied that there are conflicting views expressed upon this subject in the eases in which the question has been directly or incidentally discussed, but the later cases warrant the conclusion that such a claim may be recovered back. (See Bank of the Commonwealth v. The Mayor, 43 N. Y., 184; Chapman v. City of Brooklyn, 40 id., 372.) The doctrine which has been declared and upheld in reference to voluntary payments may still be maintained upon the principle of stare deeisis, but it cannot stand the test of natural justice and equity, and the greater the inroads made upon it the better. The plaintiff in this case was entirely justified in assuming that the assessment was duly imposed, that is, was a burden upon his land and in paying it on that assumption. He was equally justified when he ascertained his error in that respect to seek to have it set aside, and when it was declared to be void,. the defendants were bound in honesty to refund his money. It is certain that they were not entitled to it, and that fact should determine the duty of the defendants at once. I think the judgment should be reversed and a new trial ordered with costs to abide the event. We cannot say that the defendants may not affect the right of the plaintiff to recover by facts to be shown by them in connection with, or in relation to the claim made herein.

Judgment affirmed.


author: Beady, J.:

text:
    WINIFRED POST and others, Respondents, v. MAX WEIL, Appellant.

      Title — condition subsequent — Sti’cmger to title.

      ■ Hogan contracted to sell certain land to Mark upon condition, that no part thereof or buildings thereon “ should ever he used or occupied as a tavern.” Subsequently he conveyed the same land to trustees, subject to the said agreement. Thereafter he and the trustees conveyed the land to Mark by a tripartite deed, (reciting the agreement and subsequent conveyance to the trustees), “ subject to and upon the condition hereinbefore expressed, unto the said Mark, his heirs and assigns.” The deed contained a covenant by Hogan and the trustees that some or one of them were or was lawfully seized, etc., and full covenant of warranty by Hogan. Subsequently the trustees reconveyed to Hogan all the property undisposed of by them. Reid (1), that the condition was reserved to Hogan and not to the trustees; (2), that he was not a stranger to the title, and that the reservation to him was valid; (8), that the existence of the condition was such a defect as justified a purchaser in refusing to accept the title.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by the court without a jury.

      James 0. Garter, for the appellant.

      Wm. M. JEvarts, for the respondent.
   Beady, J.:

This is an appeal from a judgment decreeing a specific performance by the defendants of an agreement to purchase lands. At an auction sale of real estate belonging to the plaintiffs, on the 1st of April, 1813, the defendant made a large purchase. He paid ten 'per cent of the purchase money, and the auctioneer’s fee; and was to pay the residue on the fifteenth of May following. By the terms of the sale, purchasers were to have a good title in fee simple, with certain exceptions,' not material to be stated. An examination of the title, by tbe attorneys for the purchaser, disclosed the fact that, on the 21st day of January, 1811, one Michael Hogan, then owner of the property and from whom the plain tiffs, through divers mesne conveyances, derived their title, agreed in writing to sell a tract of land of which the premises purchased were a part, to one Jacob Mark, for the sum of $16,000, upon the special condition that no part of the land or buildings thereon “should ever be used or oocu/pied as a tavern.” Four days afterwards, and before performing his agreement aforesaid, Hogan conveyed the same tract which he had agreed to convey to Mark, unto Robert Lenox, Jacob Stout and John Wells, “subject to- the aforesaid contract or agreement,” and upon certain trusts in the said indenture expressed. Neither the agreement to sell to Mark, nor the trust indenture aforesaid are, so far as is known, now in existencenor is any thing known of their contents, except what is "recited in the deed next to be mentioned. On the 29th day of May, 1811, a deed was executed between Hogan and wife, parties of the first part, Lenox, Stout and Wells, parties of the second part, and Mark of the third part, reciting that Hogan “ did, in and by a certain agreement in writing, bearing date on the twenty-first day of January, one thousand eight hundred and eleven, agree to sell to the said Jacob Mark, the party of the third part, the tract, piece or parcel of land hereinafter mentioned and described, with the house, outhouses and buildings thereon, for the sum of sixteen thousand dollars, upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” The foregoing extract is all that is known of the agreement. The deed last mentioned continues with the following recital: And, whereas, the said Michael Hogan, and Frances his wife, did, in and by a certain indenture, bearing date on the twenty-fifth day of January, in the year of our Lord, one thousand eight hundred and eleven, made between them, the said Michael Hogan and Frances his wife, of the first part, and the aforesaid Robert Lenox, Jacob Stout and John Wells, of the second part, grant, bargain, sell, alien, release, convey and confirm unto them, the said Robert Lenox, Jacob Stout and John Wells, the survivors and survivor of them, and the heirs and assigns of sneh survivor, the premises aforesaid, and subject to the aforesaid contract or agreement, upon certain trusts in the said indenture expressed; so nevertheless, that the purchasers of the premises be not answerable for, nor in any wise bound to see to the application of the purchase money, as by the said indenture, reference being had thereunto, may more fully appear.” This last recital contains the only information of the existence or contents of the trust conveyance therein mentioned. The deed then proceeds to convey by apt words, the tract of land from Michael Hogan and wife, to Jacob Mark, for the expressed consideration of one dollar, reserving a condition in these words: “ Provided always, and these premises are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected, or to be erected, be at any time hereafter used or occupied as a tavern or public house of any hind” The deed then further proceeds to convey the same tract of land from Lenox, Stout and Wells to the same Jacob Mark, for the expressed consideration of sixteen thousand dollars, “ subject to and upon the condition hereinbefore expressed, unto the said Jacob Mark, his heirs and assigns,” and contains, among other covenants, one on the part of Hogan, “ that they, the said Michael Hogcm, mid Frances his wife, the said parties of the first part, or they, the said Robert Lenox, Jacob Stout and John Wells, the parties of the second part, some or one of them is, or are, lawfully seized of a good, sure, and undefeasible estate of inheritance,” etc., and also a full covenant of warranty of Michael Hogan. It further appeared, that on the 21st of July, 1819, Lenox, Stout and Wells executed to Hogan an instrument recónveying whatever property conveyed to them by Hogan in trust, had not been sold or disposed of.

■ The plaintiff’s title was derived through this deed. Some evidence was offered and received, subject to exception, for the purpose of showing that the condition reserved by this deed had been extinguished by a release; but the learned judge after argument, held it to be wholly incompetent, and refused to find any such release. The learned judge held that the condition was a condition subsequent, and unless in some manner extinguished, was a blemish upon the title, which would justify the purchasers in refusing to accept it. He held, however, that treating the condition as reserved to Hogan, the reservation was void, on the ground that he was a stranger to the estate at the time of the execution of the deed; and treating it as reserved to Lenox, Stout and Wells, it was extinguished by the reconveyance of July 21st, 1819. That consequently, ■ quaoumquevia, the condition no longer existed.

He therefore held the plaintiffs entitled to a specific performance, and judgment to that effect having been entered, this appeal was taken therefrom to the General Term. This statement of the facts established by the evidence, prepared by the appellant’s counsel, is adopted as a correct exposition of the incidents and results of the trial, but the question which impresses itself in limine upon a clear comprehension of them and the evidence given is, whether a release of the condition was in fact executed, and it is a very important one. The plaintiffs have however taken no exception to the finding of the learned justice against them on that subject and his conclusion is binding. Whether there was one or not is discussed it is true upon the briefs submitted, but the question is not saved for review by exception, and it must be assumed that the plaintiffs relied upon the other conclusions of which the judgment was predicated. In presenting the questions apparently involved, the counsel for the respective parties have not only distinguished themselves by exhaustive argument, but have placed before us ample and able briefs. Their researches have not been confined to the realm of conditions alone. Every thing bearing upon the subject directly and indirectly has been developed and discussed, and the court has been put in possession of all the learning necessary to facilitate the determination of the issue between them. If any criticism be appropriate it is that they have done too much, but careful and astute counsel are always comprehensive and thorough, when important rights and intricate questions are involved.

The subject to be considered will, nevertheless, be briefly discussed. The views entertained about it can be stated with little elaboration. It must be said, at the start, that the condition imposed upon Marks was, in all respects, perfect to accomplish the object in view. It was provided for and assented to by him when the contract of sale was executed, and again when he received from Hogan and his trustees the deed conveying the land purchased. We are not advised, because tbe deed to them was not attainable, what the trust was which Hogan conferred upon his trustees, but that they fully performed it is evident from the subsequent conveyance by them to him. The condition was perfect in itself, and it was annexed to the transferred estate in form and substance, so as to burden it with the consequences of its violation. It is not necessary to discuss or explain the origin, force or effect of conditions, or the tendency of courts to prevent their operation upon slight grounds. We know that forfeitures are not in high repute, and we cannot feel that they should be. They are oppressive in character, if not ungenerous in design; but, nevertheless, when they are legal and intact, they must receive due consideration, and their vitality must be declared. Assuming the condition, then, to be legal, and that no release of it was executed, the question in this controversy which seems controlling presents itself, and that is whether, by the conveyance to Marks the condition was reserved to Hogan or to the trustees. The learned justice presiding at Special Term thought that it was reserved to the latter. Was this conclusion correct ? The trustees uniting with Hogan in the deed to Marks were acting for Hogan, and in conveying the property were carrying out the agreement of sale, which he had made before they were invested with the powers conferred upon them by him. On examination of that instrument it will appear, that the grant is based upon the agreement of sale which is recited between Hogan and Marks, containing the condition which the former imposed upon the estate to be transferred. It will also appear that Hogan and wife convey to Marks, annexing the condition in proper form, but that the trustees convey it subject to and upon the condition thereinbefore expressed. The condition adopted by them is that asserted in accordance with the agreement of sale mentioned, and the grant already made by Hogan and wife, and in the same relation to the contracting parties. The condition thereinbefore expressed is that imposed by Hogan for his benefit, and assented to and accorded him by Marks. There is no other reservation made by the trustees, and therefore none in their favor. It is Hogan’s condition and not theirs, which is preserved. It has, therefore, been aptly said, that “ the contract to convey; the intermediate grant by Hogan to the trustees, and the final settlement of the rights of all the parties by the tripartite deed, constitute, in the reason of the thing and in the judgment of law, one transaction. (See Osborn v. Phelps, 19 Conn., 63, 89 ; Jackson v. Dunsbagh, 1 Johns. Cas, 92 ; Stow v. Tifft, 15 Johns., 458; Church v. Brown, 21 N. Y., 315, 330.) Together they form the assurance of this estate to Marks. “ Hogan was not a stranger to it, and being in substance the original grantor to Marks, he was properly the reservee.” The intent to reserve the condition to Hogan, seems to be clearly apparent therefore. The whole structure of the tripartite conveyance confirms this view. He was in fact the grantor, not a stranger, uniting in the conveyance to Marks, with his own trustees to whom he had conveyed the title for certain purposes, one of which was to carry out his agreement with Marks, but securing to him in so doing all its advantages and preserving for him the condition provided by antecedent stipulation. Courts look to the end contemplated by a deed, and not merely to the mode taken to obtain it. The intention will prevail if it can be ascertained and made dominant without violating some principle of law or equity that should be sustained. This rule of interpretation is adopted and made imperative in this State by statute. (Roe v. Tranmar, 2 Smith’s Leading Cases [7th Am. ed.], 461, note; Jackson v. Dunsbagh, 1 Johns. Cases, 92; 1 R. S., 748, § 2; Nicoll v. N. Y. and Erie R. R. Co., 12 N. Y., 128; Bridger v. Pierson, 45 N. Y., 604.) The principle applies to conditions as well (See note to Dumpor's Case, 1 Smith’s Leading Cases [6th Am. ed.], 128; Nicoll v. N. Y. and Erie R. R. Co., supra.) There are other consideration which favor this view as to the intention of the grantors. It-is true that we are to assume that all the estate of Hogan in the land passed from him to his trustees, but subject to the trust. We are in ignorance as to what that trust was. The conveyancer, and it may be said all the parties in interest, deemed it necessary to unite Hogan and wife with the trustees in the conveyance to Mark, although all the estate he had, had been aliened to the trustees. It is not unreasonable to suppose that this formality was predicated of the proposition, that by the then asserted law of the State, conditions such as that contained in the deed to Marks could only be reserved for the benefit of the grantor and his heirs, and that no other could take advantage of them. (Nicoll v. N. Y. and Erie R. R. Co., supra) It was doubtless in the minds of the trustees and Hogan that the former after accomplishing the object of the grant from him, might, as they did in fact, transfer or convey to him, the estate unappropriated and as the land conveyed to Marks if forfeited by condition broken might not be necessary for the full performance of the trust duties, the condition should be continued for the benefit of Hogan by the deed by which the grant was perfected to Marks. This was a cautious and proper view of the subject considered in all its relations present and future and with reference to the rules of law or the doubts that might arise. It seemed to be settled at least that before breach there was no assignable interest (12 N. Y., swpra) and there being no breach a reconveyance might destroy the condition itself if it were reserved to the trustees and not to Hogan. Hence no doubt the character of the grant from Hogan in the tripartite deed, by which he warranted the title and assumed the responsibility which such a covenant imposes, and hence the full covenants by him made in that instrument. It follows from these views that the judgment pronounced below was erroneous and should be reversed.

Daiíiels, J., concurred.

Present — Davis, P. J., Beady and DaNibls, JJ.

Judgment reversed, new trial ordered, costs to abide event.


author: Daotels, J.: Davis, P. J.: Beady, J.

text:
    FRANCIS SHERIDAN, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents.

      Witness — oredit due to uncontradicted statements of— how affected try intei'est in suit.

    The rule, that where a disinterested witness testifies to the existence of a fact within his own knowledge, and nothing appears to discredit his statement, which is not inherently improbable, neither 'the court nor the jury can arbitrarily reject it, does not apply to the evidence of a person whose interest it is to establish the truth of what he swears to, as where he is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful. (Brady, X, dissenting.)
    The uncontradicted evidence of a party, or other interested witness, is not necessarily conclusive upon either the court or the jury. (Brady, J., dissenting.)

      Appeal from a judgment in favor of the defendant, entered upon, the verdict of a jury, and from an order denying a motion for a new trial.

      Gh. P. Shaw, for the appellant.

      D. J. Deem, for the respondents.
   Daotels, J.:

The demands in suit arose out of the performance of work and materials used in repairing some of the public buildings in the county of New York. The work was done and the materials supplied by Morgan Jones, as a plumber, and the action was brought by him for the recovery of the demands. During its pendency it was claimed that he assigned them to the plaintiff, who for that reason was substituted in his place as plaintiff in the action. It appeared by the evidence that a considerable portion of the work had been done, and the materials for it furnished by the assignor and persons in his employment, and that the bills had been rendered to the board of supervisors, while that body was in existence, and that they were audited and allowed by it.- From the charge, it is very evident that the court took that view of the case, and as it appeared generally that work and materials of the description mentioned had been performed .and furnished' and the bills had been audited by the board, that was held to be conclusive in favor of their allowance, unless there was evidence of positive fraud perpetrated by Jones upon the county through collusion with the board. The learned judge then added: But I do not understand any such defense to be set up in the pleadings, or that there was any such attempt to defraud the county of New York by the auditing of these bills. If these repairs have not been done, if this work charged for in these bills has not been rendered or performed, if there was fraud in it, it appears to me that the proper officials should have investigated it under the circumstances and found out where the fraud was. But as I said before, I do not understand it to be set up in the answer that this was a fraudulent scheme to get money out of the public treasury.” From these portions of the charge it is entirely clear, that the jury were not left at liberty to infer that any question of fraud in the performance of the work, or the allowance of the bills, was submitted to their consideration. The charge on the contrary was, that the proof of performance and the auditing of the bills were conclusive in the plaintiffs favor, unless fraud should be shown, and that nothing of that kind had been alleged or proved. That was as favorable a statement of the law of the ease as the plaintiff could require. • And if improper evidence had been given, or the plaintiff had been required to prove more than he was obliged to on this subject, he could have been injured by neither after this unequivocal statement of the case in his favor. The court considered the case as having been made out by the evidence in all respects, except that of the right of the plaintiff to maintain the action. For it was stated to the jury that “the only real issue which appears to be raised by the pleadings and the proof is, whether this plaintiff is the real party in interest.” The court then stated that a man could give his property away, and after doing it could not revoke the gift. But if it was a mere ruse or subterfuge and not a real transaction, the plaintiff would not be entitled to recover. The production of an assignment would ordinarily be sufficient to support a transfer, but if the jury believed “ from the evidence that the real party in interest in this suit is Morgan Jones, and that this is a sham transaction, then I think the plaintiff should be defeated in the action. If it is otherwise, if the plaintiff, the assignee, is the real party in interest, then I think, under the evidence, the plaintiff is entitled to recover.” This, it will be perceived, was concisely and clearly presented as the only point to be settled by the jury. The plaintiff claimed that it should not have been submitted to them, but that a verdict should be directed in his favor, and excepted to the refusal of the court so to hold. .An exception was also taken in general terms to the refusal of the court to chai’ge four different and several propositions presented by one request in his favor. In the main they were charged, and for that reason this general exception was insufficient to present the point of variance between them and the instructions given. But if it could raise that question, there is no substantial ground presented for sustaining it. For the court did charge that the assignment was sufficient ordinarily to support a transfer. And that the assignor could give his claim away. But it was not charged that there was no evidence to overcome its Iona fide character, and that the testimony of the witnesses sustained it. In those respects the case was submitted to the jury and no exception was made to the propriety of that course, unless the one taken in general terms was sufficient. And that, under the authorities, cannot be held to be the case. If the plaintiffs counsel had been dissatisfied with what was said by the court, he should have excepted explicitly to the submission of those facts to the jury. ( Walsh v. Kelly, 40 N. Y., 556 ; Requa v. City of Rochester, 45 id., 130; Ayrault v. Pacific Bank, 47 id., 570.) And that he did not do.

But if he had done that, perhaps no more would have been accomplished than was already secured by excepting to the refusal to direct a verdict in the plaintiff’s favor. That presented the point as to the right of the plaintiff to recover as a matter of law. And it is maintained that that had been established by the evidence. The controversy was finally limited to the question, whether the demands had been actually transferred to 'the plaintiff, and all the evidence given in support of that was elicited from the plaintiff himself and his assignor. Where a disinterested witness testifies to the existence of a fact as within his own knowledge, and nothing appears tending to discredit his statement, and it is not inherently improbable, neither the court nor the jury can arbitrarily reject it. But the same rule does not apply to the evidence of a person whose interest it is to favor himself by what he may swear to. That circumstance alone is sufficient to subject his statement to suspicion. The rule of the common law was so stringent upon this subject that it rejected the evidence of parties and other interested witnesses, as unworthy of credit, because of the uncertainty of their statements being truthful. This has been abrogated by statute so far as to render them competent witnesses, leaving the question of their credit to be determined as an ordinary matter of fact in the case; and under this change, where the interest may be a controlling one, whether the witness may be believed, notwithstanding its existence, must now be a matter of fact to be determined by the jury. The circumstance that the witness is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful, will certainly, in some instances, be sufficient to warrant the conclusion that the evidence given by him is not reliable. And that must be more particularly so when the proof of the fact'in dispute is not possibly within the knowledge of the opposing party, and might, if true, be corroborated, as it could have been in this case, by further evidence under the control of the party insisting upon it.

The conclusion that the uncontradicted evidence of a party or other interested witness is not necessarily controlling, received the direct sanction of the Court of Appeals in Elwood v. Western Union Telegraph Co. (45 N. Y., 549), for it was there said by Judge Rapallo, who delivered the opinion of the court, that the rule as to the effect of the evidence given by witnesses “ is subject to many qualifications. There may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The general rules laid down in the books at a time when interest absolutely disqualified a witness, necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law, be added.” (Id., 553, 554.)

Whether the assignment was ever delivered or not, or made bona fide, or as a mere sham, was for the jury to decide, as the only evidence in support of it was given by the plaintiff himself and the assignor. The court was, therefore, right in declining to direct a verdict and in refusing to charge that there was no evidence to overcome the presumption of the bona fide character of the assignment and that the testimony of the witnesses sustained it. If there was no delivery of the assignment, or it was a mere ruse or sham, the plaintiff was not the party in interest and he was not entitled to recover. The jury must have found one of these facts against the plaintiff for they could not otherwise have rendered a verdict for the defendant.

Upon the cross-examination of the original plaintiff he was asked whether he had not been sued by the defendant after he commenced this action, for $350,000. This was objected to in general terms and the court allowed the answer to be taken. The plaintiff’s counsel excepted to the ruling and the witness answered that he had been. He was then asked whether it was not subsequent to that be made tlie assignment, and he answered that it was. A like objection was taken to this question and the ruling of the court allowing it to be answered was excepted to. As it was claimed by the defendant that no actual or real assignment had been made of the demands in suit, this evidence seems to have been proper. It tended to render it probable that the transaction was only a colorable one made to avoid some possible effect of a recovery against the witness. The evidence was also proper to show that he was still. a party in interest in the case, and that, if true, would tend to impair his credit as a witness.

No sufficient reason has been found for a reversal of the judgment, or of the order denying the motion made for a new trial. Both should accordingly be affirmed.

Davis, P. J.:

The evidence showed that Jones had been sued by the defendant for $350,000, and afterwards assigned the claim for which this action was then pending, to the present plaintiff. That fact alone threw a shadow of suspicion upon the bona fieles of the assignment, for it was claimed by the defendant that the assignment was made to escape the possible consequences of a recovery by the defendant, and the right that might arise to extinguish the demand in this action by set-off. The jury under such circumstances had a right to scrutinize the testimony of plaintiff touching the assignment, with strictness; and to discredit it if they believed the assignment to have been made in bad faith. To say that the jury must take the testimony of an interested party as true without qualification, because some other witness does not contradict it by direct testimony, is not only to trench on the province of the jury, but to dissipate all distinction between the testimony of disinterested witnesses, and those whose interest in a recovery extends to the whole subject-matter of the action. This would be against the policy of the common law, and no statute has yet gone the length of establishing such a rule. There is nothing improbable or inconsistent with the nature of things in the conclusion reached by the jury. It requires some effort of credibility to believe that the assignment'was made in good faith, upon a bona fide sale of the claim in litigation. Men are not prone to purchase law suits, and the jury might well have supposed that the present plaintiff, had consented to become a mere locum tenens of the real plaintiff, inasmuch as he himself did not venture upon any corroboration of the alleged assignment.

I must therefor concur with my brother DaNiels.

Beady, J.

(dissenting):

There is no conflict of evidence, in this case, on the subject of the assignment of the claim of Jones to the plaintiff.

The only way to discredit the testimony relating to it, is to reject it upon the presumption that it is false, to assume that the statement made by the witness is untrue. The courts have not gone so far as to allow this tó be done. In the case in 45 New York, referred to by Justice DaNiels, there was evidence presumptive in character against the defendants, and the question was, whether the positive evidence given in their behalf overcame the presumption or prima facie evidence against them. That case did not present the question whether the jury could disregard evidence wholly uncontradicted.

In Lomer v. Meeker (25 N. Y., 363), Smith, J., said: “ The positive testimony of an unimpeached, uncontradicted witness, cannot be disregarded by court or jury arbitrarily or capriciously; ” and in the case in 45 New York, Justice Rapallo states the rule to be, that such testimony should be credited and have the effect of overcoming a mere presumption. In this case there was nothing to overcome; no presumption except such as might be created by the evidence itself.

There was nothing to gainsay it. It will also be perceived on a careful perusal of'Judge Rapallo’s opinion, that his deductions are based not on intrinsic, inherent improbability or falsity in the statement alone, but rest upon the presence of facts and circumstances disclosed by other evidence which create presumptions in conflict with, or contradictory of positive evidence given, and thus two elements, not one only, are considered. The circumstances disclosed by Sheridan in reference to the assignment may have been suspicious, but many transactions which bear such an impress have been honest and so declared by courts of jnstice. When the assignor, Jones, was put upon the stand he was not interrogated by the defendants’ counsel in relation to the assignment; no questions were asked him on the subject.

This left the statements of the other witnesses uncontradieted and the jury could not arbitrarily reject their testimony.

There was no pretense of fraud against the claim itself and nothing to warrant the conclusion that the plaintiff had sworn falsely. I think a new trial should be granted.

Judgment and order affirmed.


author:
      DaNiels, J.:
      Davis, P. J.

text:
    THE MECHANICS AND TRADERS’ BANK OF JERSEY CITY, Appellant, v. HENRY DAKIN and others, Respondents.

      Conflicting decisions of Cowt and Commission of Appeals — duty of trial court.

    Upon an appeal from a judgment entered npon an order'dismissing the complaint in this action, the Commission of Appeals granted a new trial, holding that upon the facts proved the action could he maintained; after the argument, and before the decision of this case, the Court of Appeals, in va case then before it, decided that such an action could not be maintained. Upon this case coming on for a new trial, held, that, as the Court of Appeals had decided that such an action could not be maintained, such decision became the law of the State, and as such binding upon this court and the parties to this action, and that a judgment entered upon an order dismissing the complaint herein was proper, and should be affirmed. (Davis, P. J., dissenting.)
    Appeal from, a judgment entered upon an order dismissing tbe complaint herein. This action was commenced by the plaintiff to set aside as fraudulent an assignment of a mortgage executed by the defendant Dakin to the defendant Jewell, and to subject the same to the lien of an attachment obtained by the plaintiff in another action against the defendant Dakin, in which he had recovered a judgment on which an execution had been issued. The Commission of Appeals decided (51 N. Y., 519), that the action could be maintained, and reversed a judgment in favor of the defendant ordering a new trial.

      F. Shepard, for the appellant.

      Wm. H. Arnoux, for the respondents.
   DaNiels, J.:

Upon the first trial of this action the complaint was dismissed for the reason that it was considered that such an action could not properly be maintained. The Commission of Appeals reversed the judgment entered on that dismissal, and held that the action could be maintained. (The Mechanics and Traders' Bank of Jersey City v. Dakin, 51 N. Y., 519.) The case was argued before the decision of the case of Thurber v. Blanck (50 id., 80), which held the law to be the other way, and that such an action could not be maintained. After both decisions had been made this action came on for trial under the reversal of the judgment, and the direction of a new trial by the Commission of Appeals, and upon that trial the complaint was again dismissed, for the reason that the decision made by the Court of Appeals was to be considered and followed as the controlling authority. The plaintiff has again appealed, claiming that the decision of the Commission of Appeals has settled the question of its rights to maintain the present action against the defendants, and that this decision must be followed notwithstanding the contrary has been held by the Court of Appeals. In support of the appeal, authorities have been cited which maintain the position that a decision made in a case by one appellate tribunal will not be reconsidered in the same case by another having co-ordinate authority, when it may be pending upon another appeal, for the reason that the decision actually made will be held to be res ad,ju-dicata between the parties to it, and conclusively controlling upon them. (Justice v. Lang, 52 N. Y., 323; Terry v. Wait, 56 id., 91; Belton v. Baxter, 58 id., 411.) These authorities sustain that proposition, but they were not affected by the circumstance existing in this case, that the continuing court of last resort had, in the mean time, held the law to be different from the annunciation previously made of it. That distinguishes the present case from those cited in support of the appeal, and it is a circumstance whose effect cannot properly be disregarded, for it is clear now, from the effect of the last decision made, that the law was erroneously expounded in the decision made in this case. As the principle is now established by a decision which must be binding upon the court of last resort for the time being, the present action cannot be maintained. That has now become as much the law of the State as though it had been declared by an act of the legislature enacted at the same time, and it was operative and binding on the Special Term when this cause last came on for' trial. That court was bound to administer the law as it was then found to exist. The case was before it on its merits, and the Court of Appeals had held that such an action could not be maintained. That was, at the time, the law of the State, and in its administration the court could do no less than to dismiss the complaint. It would be entirely unreasonable for the court to hold that this action could be maintained, when all others depending on a similar state of facts must be dismissed, as would have been the case if the decision of the Commission of Appeals had been followed. There can be but one prevailing rule of law upon the same subject at the same time, and that which for the time exists should be followed as controlling. If no change had been made, the Court of Appeals would not have disturbed the conclusion of the commission in this case, even if that had been considered of doubtful soundness. But, without any application of that nature having beeD made, a general rule has been promulgated having the effect of abrogating that conclusion, and it cannot be supposed that the court will now allow this case to be disposed of by the application of a principle held not to be the law of the State. It would involve an- inconsistency which would subject the administration of justice to merited condemnation. That such an alternative would be tolerated is not to be supposed. For that reason the parties should not be subjected to the delay and expense, which would be caused by a judgment at this time in the plaintiff’s favor conformably to the decision of the Commission of Appeals, and its subsequent reversal and the direction of another trial by the Court of Appeals, for the purpose of' governing its disposition by the rule which that tribunal has now established as the law. The course taken at the trial was a more proper one, of applying the law to the facts, as that has finally become established by the determinations of the court of last resort.

The judgment appealed from should be affirmed.

Beady, J., concurred.

Davis, P. J.

(dissenting):

When tbis case was before the Commission of Appeals, that court, in respect to it, was not only the court of last resort, but was possessed of the supreme and exclusive' jurisdiction to determine the questions involved in the particular case. The court held that the plaintiffs could maintain this action, and reversed the judgment of the Supreme Court (whicli had dismissed the complaint), and ordered a new trial. (51 N. Y., 510.) This appeal is from the judgment of the Special Term rendered upon the new trial thus ordered. It appears, that subsequently to the argument of this case in the Commission of Appeals, the case of Thurber v. Blanck, which involved the same question, was argued before the Court of Appeals, and the question involved in both cases was under consideration at the same time by both tribunals. The case in the Court of Appeals was first decided, and the opinion of that cdurt appears in 50 N. Y., 80. That decision, it seems, was not brought to the notice of the Commission of Appeals before judgment was pronounced in this case. The decisions of the two courts are in direct conflict. The only question presented on this appeal is, which of these decisions was obligatory upon the Special Term on the trial of this action. The Special Term held that it was bound to follow the decision of the Court of Appeals in Thurber v. Blanck, and accordingly dismissed the plaintiff’s complaint. The question in the case was not one of sta/re decisis, but of res adjudícala between the parties to a particular action. The decision of the Court of Appeals in Thurber v. Blanck (ubi supra), and which has been substantially reiterated in Lynch v. Crary (52 N. Y., 183), is undoubtedly the law of the State to be followed in those and all subsequently occurring cases ; but those decisions are not .at all at war with the doctrine of res adjudicata as between the parties to an action, when the same question in the same case is brought to the consideration of an inferior tribunal upon a retrial of the action. Nor is the question what the court of last resort may or ought to do in the particular case, when it again reaches that tribunal, properly before the subordinate court upon such retrial. Both by reason and authority, the court in which the retrial is had is bound, by the doctrine of res adjudícala, to accept the law of the case as established by the appellate tribunal. Hence we think that the Special Term should, in this case, have received the law as settled by the Commission of Appeals, without looking beyond the decision of that court to ascertain what another tribunal had decided in other cases. It was not the duty of the Special Term to pass upon the merits of the two conflicting decisions, but to respect the decision of the Commission of Appeals as establishing the law applicable to the facts of the case before it, and to be applied thereto by all subordinate tribunals. This rule has been, as we think, established and applied by the Court of Appeals in several cases where the decisions of the Commission of Appeals were sought to be reviewed upon subsequent appeals in the same actions. In Terry v. Wait (56 N. Y., 91), which was a case that went down for a new trial upon the decision of the Commission of Appeals, and came before the Court of Appeals after the second trial, the latter court said: “ Without intimating doubts as to the correctness of the decision of the commission, we decline to interfere with it on the ground that it is an adjudication between the same parties in the same case, upon the very point which we are now asked to consider.” And upon motion for a reargument of that case the court reiterated its refusal to review the decision. In Justice v. Lang (52 N. Y., 323), which was a second appeal of the same case to the Court of Appeals, the court held that its former decision (reported in Justice v. Lang, 42 N. Y., 493), must be regarded as the law of the case, and the judge who delivered the opinion said: “ The question is not merely whether the ease as reported is an authority to be followed as a precedent, but whether the judgment is not to be regarded as final in the same case, and between the same parties, in the absence of any new evidence or other circumstance to take it out of the rule.” The court held in another case recently before it (Sackett v. Ayrault), “that it would not reconsider the question deliberately decided by the court upon a former appeal in the same case, but would adopt and follow such decision. Whether, therefore, the case was well decided as reported in 42 New York, will not be considered.” And in Belton v. Baxter (58 N. Y., 411), which is a case in which the Commission of Appeals had reversed the judgment and ordered a new trial (as will appear by Belton v. Baxter, 54 N. Y., 245), the Court of Appeals on appeal from such new trial say: Upon the former appeal in this action, it was held that the plaintiff should have been nonsuited upon his own showing, the learned Commission of Appeals holding that under the circumstances then appearing in evidence, the plaintiff was culpably negligent in attempting to cross the street upon the mere calculation of the chances of injury and that “if the evidence upon the second trial had been the same as upon the first, the plaintiff would have been concluded by this adjudication. The question recurring in the same action between the same parties, would have been res adjudicaba in this and in all other courts, by the judgment of the court of last resort.” These cases we think are siifficient adjudications of the rule to require us to reverse the judgment of the court below. They are not without abundant authority and support. In Martin v. Hunter’s Lessee (1 Wheaton, 355), the court say: In ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to see how such a proceeding could be sustained upon principle. A final judgment of this court is supposed to be conclusive upon the rights which it decides.” (See Hopkins v. Lee, 6 Wheat., 113; Ex parte Sibbald, 12 Peters, 492; Washington Bridge Co. v. Stewart, 3 How. [U. S.], 413 ; Roberts v. Cooper, 20 id., 480 ; see also Akerly v. Vilas, 24 Wis., 165, where the effect of the doctrine of res adjudicata in the same action between the same parties is very fully and ably considered.) It is not for us to determine whether the Court of Appeals under the peculiar circumstances of this case, ought or ought not to regard itself bound by the decision of the Commission of Appeals. That is a question which peculiarly belongs to that tribunal as the court of last resort, and no subordinate tribunal is justified in anticipating what its ruling may be. We think that the learned judge below erred in anticipating that the Court of Appeals would take this case out of the established doctrine of res adjudicata, and that it is our duty to correct the error, leaving to the court of last resort the province of subjecting the case, if it think proper to do so, to the general law of the State as is now settled by its own decisions. I think the judgment ought to be reversed and new trial ordered with costs to abide the event.

Judgment affirmed.