author: Daniels, J.:

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, v. HENRY HART and WILLIAM REMSEN, Respondents.

      Grant of land 'bounded by river— when it runs to low-watei• line — Lands wider water — sale of, by the. City of New York ■— need not beat auction after advertisement — •meaning of adjacent owner.

    By the patent issued to the village of Harlem, in 1666, the property was described as extending “ eastward to the end of the town, and Harlem Kyver, or any parte of the said Ryver on which this island doth abutt, within the lymitts aforementioned, ” etc.

      jBeld, that considering that the grant was to a town, and not to an individual, and that retaining the land between the high and low-water lines would be of no practical advantage to the grantors, while the right to the use and enjoyment of it was indispensable to the trade and prosperity of the village; and considering all the other circumstances of the case, the grant should be construed to extend to the low-water line.
    The sale of lands under water, by the city of New York, is not subject to the restrictions imposed upon the sale of corporate property by section 105 of chapter 137 of 1870, and section 13, title, 4 of the Sinking Fund ordinance of February 22,1844, but such lands are to be sold in pursuance of section 11 of title 4 of the said Sinking Fund ordinance of February 22, 1844.
    The term “ adjacent owner,” as used in the act to designate the persons entitled to purchase lands under water, is not limited to the owner of the land lying next to it, e. g., the owner of the land between high and low-water line, but means the owner of the upland which is bounded by the river.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tins action by tbe court without a jury.
    This was a suit in ejectment, brought to recover a tract of land on and under tbe Harlem river, within tbe city of New York, extending from near tbe Third avenue to a short distance beyond Lexington avenue. On the 19th day of March, 1870, defendants petitioned the commissioners of the sinking fund for a grant of the premises, the subject of this suit, and on reference to the comptroller and street commissioner, they reported in favor of giving the defendants a grant of the premises for the consideration of $1,700, and the grant was accordingly given. There was no sale at public auction or public advertisement of such sale. The property was between high and low-water mark and below low-water mark on the Harlem river, a navigable river in wbicb the tide ebbs and flows. The defendants, in answer, deny plaintiff’s title; claim title in themselves under conveyances from plaintiff and others, and that they have been in possession, through themselves and their grantees, adversely to the plaintiff for more than twenty years prior to the commencement of this action, and set up the grant from the city to them as an estoppel.

      I 8. L. Orimmins and Oharles Matthews, for the appellant.

      Qlarlcsm JV. Potter, for the respondents.
   Daniels, J.:

This action was brought to recover possession of land outside of the high-water line of the Harlem river, and between that and the exterior line established by chapter 285 of the Laws of 1852. A deed of this land was executed and delivered by the plaintiff to the defendants on or about the 21st day of June, 1870 ; but the plaintiff assails the validity of this deed, because it was executed and delivered without any previous public notice of the sale of the property. The defendants applied for its purchase to the commissioners of the sinking fund of the city of New York, for the reason that they owned the land directly south of it, a portion of which was bounded by the Harlem river, and the residue had in terms been conveyed to them by a deed extending the line to the low-water mark. In support of the title which the deed from the plaintiff was intended to convey the original patents to the inhabitants of Harlem have been given in evidence in the case, for the purpose of extending their previous right in the property to the low-water line of the river. These patents, so far as their consideration has become necessary in this case, were made and delivered in May and October in the year 1666, for that which followed them in 1668 was merely confirmatory of the preceding grants. By these two prior patents the lands described, and the privileges mentioned in them, were given and granted to the freeholders and inhabitants of what is stated to have, at that time, become the town or village of New Harlem, and by the first the property and privileges granted were declared to extend easterly to the town, and Harlem river. This description was evidently considered too indefinite and obscure to subserve the purposes intended to be promoted by the grant, for by the patent .succeeding this, and issued on the 11th of October, 1666, the property and privileges granted were in terms extended ‘ ‘ eastward to the end of the town and Harlem ryver, or any parte of the said ryver on which this island doth abutt, within the lymitts aforementioned, described, doth and shall belong to the said towne * * * # together with all the soils, creeks, quarries, woods, meadows, pastures, marshes, waters, lakes, fishing, hawking, hunting and fowling, and all other profits commodityes, emoluments and hereditaments to ye said lands and premises within ye said bounds and lymitts sett forth belonging or in anywise apper-teyning.” By this patent the grant made to the village or town was extended to the river, but whether to high or low-water line was not in terms stated. Ordinarily, a grant made and limited by such a reference would end at the high-water fine, as the river mentioned was not only navigable, but also affected by the ebb and flow of the tides. But a consideration of the circumstances existing at the time of, and under which these patents were issued, and which, as well as their language, may be allowed to affect their construction (Knapp v. Warner, 57 N. Y., 668), and the purposes they wore designed to advance, appear to suggest the propriety of a different rule for the interpretation of these instruments.

The intent of the patents must be ascertained in order to determine the point on the river by which they should be bounded ; and as that may be gathered from their terms, and the circumstances then existing by which those terms were necessarily affected, it must be maintained as controlling over the case. (Canal Co. v. Hill, 15 Wallace, 94.) The grants made by these patents wore not to individuals, but to a town or village whose prosperity and growth had attracted the attention of the colonial governor. An element of that prosperity must have been its facilities for prospective trade and commerce ; and as that prosperity was evidently intended to be advanced by the grants made, those facilities could not have escaped the notice of the granting authority. The controlling and paramount purpose of the patents was evidently to place tlie town or village in the position previously maintained by the colonial authority, and that could only be done by extending its proprietary rights as far into the river as should be considered necessary for the development of the commercial advantages of the place. No good reason exists for the supposition that the colonial governor intended to confer on the village the title to the high-water line, and to retain and withhold all that was beyond it, when, without that, the inhabitants whose interests as a community were to be promoted would be excluded from the possibility of enjoying the commercial advantages of their immediate vicinity. Retaining the land between the high and low-water lines would be of no practical advantage to the granting authority, while its right and enjoyment would be indispensable to the prosperity of the village which had then become a community of importance. A grant from the public authorities to individuals would undoubtedly require a different construction. (Ex parte Jennings, 6 Cow., 518.) But the language, purposes and the circumstances affecting these patents appear to require a broader construction. They were executed to donate to the village or town the lands undisposed of, lying within the prescribed bounds, to subject them to its authority, and contribute them to its improvement and the advancement of its interests. That could only be done by giving it the unrestricted benefit of its water front, and its exclusion would not be consistent in the least with the probable design and purpose of the grants: This has been made manifest by the terms used, for they are of the most general nature, and these are followed by such special enumerations as show that it was the intent to give to the village all that the colonial governor had the power to bestow within its limits, as they were declared. The object plainly was to confer the title to the territory which it was deemed useful for the village to own, and the water-front constituted a most important attribute of that territory. It was, in terms, the grant of the undisposed village site, with its adjacent water, and whether made by patent or by legislative authority, it would be little less than absurd to suppose that it was the intent to exclude the inhabitants from the privileges of those waters. A prominent purpose in the establishment of such a community is that of trade and commerce by means of the contiguous waters, and conferring the territory required for its existence must be ordinarily intended to include that of the promotion of this purpose ; beside that the waters appertaining to the bounds and limits set forth were in terms given by the patents, and the waters of this river were certainly included within these terms, as well as those extending the grant as far as the island abutted.

The succeeding governor Dongan, by his patent of March 7, 1686, confirmed those made by his predecessor -in office; and when, in the succeeding month of April, he conferred the original charter on the mayor, aldermen and commonalty of the city of New York, he apparently had these patents in his mind, for it was only in the lands which were then impatented that he granted .that which laid between the high and low-water lines to the city. The description given was in the nature of a saving clause, by which the land between the high and low-water lines was declared not to be included in the grant then made, when it should be found to appertain to what had been previously donated by public patents, as this land had been.

• Under these instruments, as they should be construed in order to give effect to, and carry out the evident designs of the granting 'power, the land should be held to have been conveyed to the village as far as low-water mark, and that of itself will prevent the plaintiff from recovering in the case for that reason to that extent, even though the defendants have not succeeded, by the conveyances through which their title has been derived, in acquiring the title to it, for title out of the plaintiff is a complete defense in an action of this nature. But as this line does not include all the land claimed in this action by the plaintiff, it will still be necessary to examine the grounds on which the objection has been placed to the validity of the deed received by the defendants from the plaintiff. This depends very much upon the prohibition contained in the charter of 1870, which was in force when this deed was executed. By that it was provided that “ all property sold under the authority of the common council shall be sold at auction after previous public notice, under the superintendence of the appropriate head of department.” (Laws of 1870, ch. 137, § 105, vol. 1, p. 392.) Similar provisions had before existed which were repealed by this act of 1870. (Laws of 1853, ch. 217, § 7, vol. 1, p. 411; Laws of 1857, ch. 446, § 41, p. 888.) But they did not include lands of the description of that claimed in this action. For all lands under water were excepted by these acts from the provisions requiring previous public notice of sale ; and the owners of what were designated the uplands were recognized as possessing a pre-emptive right to become the purchasers of the lands under water. (Id.) This was distinctly indicated by both the acts of 1853 and 1857, which, however, were repealed in 1870. (Laws of 1870, ch. 137, § 120, vol. 1, p. 396.) And chapter 285 of the Laws of 1852, so far as it related to this subject, proceeded upon the same policy that had been adopted before the passage of either of these acts, and it was not in terms changed by the act of 1870. As to property of this description it was also the theory of the ordinance of the common council for the creation of the sinking fund, passed on the 22d of February, 1844; and as to that ordinance it was afterward provided that it should not be amended without the consent of the Legislature first had and obtained, except by setting aside additional revenue, but that it should remain in force until the Croton water debt should be fully redeemed. (Laws of 1845, ch. 225, § 5, p. 248.) And as no change in this provision has been made the ordinance still continues as one of the permanent and existing laws of the city. By that it was provided that the commissioners of the sinking fund, whose functions and authority were left unchanged by the charter of 1870 (Laws of 1870, ch. 137, § 116, p. 395), wore authorized to sell and dispose of all real estate belonging to the corporation, and not in use or reserved for public purposes. But the sale was required to be by auction, and on at least twenty days previous notice, containing a description of the property, published in each of the newspapers employed by the corporation. (Section 13, title 4 of Sinking Fmid Ordinance.) This provision, and that contained in section 105 of the charter of 1870, were all that existed, requiring public notice to be given of the sale to be made, when the defendants received their deed. The one in general terms included all property of the corporation to be sold, and the other all its real estate; but neither of these phrases were designed to include this land, although it might be properly included within the terms real estate, or property, for the reason that the sinking fund ordinance had specially characterized it not simply as property, or real estate, bat as lands under water ; and, as lands under water, a particular and different mode had been proscribed for its disposition. That was to be done by an estimate of its value by the comptroller and street commissioner of the city, an agreement to that valuation by at least a majority of the sinking-fund commissioners, and a grant for that price “ to the parties who may legally be entitled to the same.” (Title 4, section 11, Sinking Fund Ordinance.) This was all that was required to be’ observed in order to make a valid sale of land .under water ; and as to land of that description the ordinance in terms assumed that there were parties legally entitled to become its owners. By that could be intended no others than the persons whoso land abutted, as the defendants’ did, upon the river; and, in that respect, it was conformable to the general policy of the State concerning the disposition of lands under navigable water. (1 R. S. [5th ed.], 552, § 82.) It is entirely obvious, for that x-eason, that the requirement of previous public notice could have ixo application to sales of such lands, for no advantage whatever could bo dei-ived from it, as thei-e was no room for competition. This assumption of the ordinance, that there wei-e persons legally entitled to acquire this property, was sanctioned by the acts of 1853 and 1857, as already mentioned; for as to lands under water, the ownex-s of the uplands, as they wore called, were acknowledged to have a pre-emptive right to {inquire the title to them. That was in terms preserved for the same class of persons, under the description of adjacent owners, by the act of 1852. For whether called the owners of the uplands or adjacent owners, the same persons must have been referred to, for the reason that all the legislation on this subject was without doubt intended to be uniform. (Laws of 1853, ch. 217, § 7, vol. 1, p. 411; Laws of 1857, ch. 446, § 41, p. 888; Laws of 1852, ch. 285, p. 421, § 4.) This was a just and equitable policy for the disposition of this description of property, and it could not have been intended that it should bo abrogated by the subsequeixt section of the same ordinance, declaring in general terms the manner in which the real estate of the city must be sold, or by the pi-ovisions of the charter of 1870, relative to the sale of corporate property. These provisions, though sufficiently genex-al in their terms to include all lauds ukder water, if they bad boon left unqualified and aloue should, because of the special provisions prescribing in detail the mode in which such lands were to be sold and conveyed, be so restricted as not to include lands under water. That this should be so is evident from the fact that the two provisions are contained in the same ordinance. It could not for that reason have "been intended by the later to have superseded the earlier one. Then it was confirmed as enacted, and it has never been amended in this respect either by the Legislature or the common council, acting as it has been required alone to act concerning this ordinance, by legislative authority, and being a special provision relating to a peculiar subject, it could not have been intended to affect or qualify it by so general a provision as was made for the sale of corporate property by the charter of 1870. (Matter of Comm’rs of Central Park, 50 N. Y., 498 ; People v. Quigg, 59, id., 83, 88.) But as both certainly, without any inconsistency may, they both should be maintained and enforced together. (Mongeon v. People, 55 N. Y., 613, 616-617.) The first as declaring the mode in which land under water could be properly sold without public notice, while all the other salable property of the city should be first advertised to secure competition. Construed in that manner, the conveyance in controversy was lawfully made, for if that part of the land which was between the high and low-water lines ever belonged to the city, the manner in which it should be sold and conveyed was regulated by the sinking fund ordinance; while that and the act of 1852 conferred the like autkoritity to dispose of and convey what was beyond the low-water line.

It has been urged that this act should be so construed as to include . within the pre-emptive privilege only the proprietor of the land lying next to it; but if the act should be so construed, and the city owned the land between the high and low-water lines, the conveyance of that which laid beyond could only run to itself No such intention animated the law; for the property was by the act given to, and was to be conveyed by, the city to some other adjacent .owner or owners, who could be no other than the proprietors of what the other acts designated the uplands, and they, though repealed, may still be referred to as subsequent legislative expositions of the understanding existing concerning the signification of the term adjacent owners ; for the same intent must have induced and pervaded all the legislation on this subject. By adjacent owners, must, therefore, have been intended those whoso lands were bounded by the river. The same class of persons were referred to who were entitled to the lands under water, as that had been expressed by the ordinance. If that were not so, then the absurdity would exist of providing by law for the sale of the land between the high and low-water lines to one person, and that outside of it to another, which would necessarily very much diminish the practical value and importance of both.

But even if that extreme position were sanctioned the defendants did still become entitled to the land vested in the city by the act of 1852 ; for as the land between the high and low-water lines was lawfully sold to them by virtue of the provisions contained in the ordinance, that strictly created them adjacent owners to the other, and entitled them to the full benefit of the preemptive privilege. By acquiring the right to a deed of the first they became literally owners adjacent to the other. One was lawfully sold under the sinking fund ordinance, and the other under the authority of the act of 1852, and by neither was any public notice required to be given. It was dispensed Avith by the ordinance as to the land between the high and low-water lines, and by the statute as to the land affected by its own provisions. The design of both upon this subject was reasonably apparent, and it Avas observed in the disposition of this property, and it could be all properly sold by one contract, and one deed, as it was to be done in the same way, even if the plaintiff, and not the village of Harlem, should be held to have acquired title under its first charter to so much as was included by the high and Ioav-Avater linos of the Harlem river. The statute required no such notice for the sale of the lands donated by its authority beyond the low-Avater line; neither did the sinking fund ordinance, for that which Avas inside of it, and between it and the high-Avatei line.

This was evidently the clear understanding of the authorities, acting in behalf of the plaintiff, and of those engaged in the subsequent improvement of the locality, for they have taxed this land as the private property of the defendants, and assessed it for the improvements made in its vicinity, and those taxes and assessments have been paid by the defendants as its owners. This, though not conclusive, is very clear evidence of the existence of a general understanding that the property had been legally obtained by the defendants.

It has not been claimed that the second section of chapter 121 of the Laws of 1855, declaring that no grants of land under water should afterwards be made until further directed by the Legislature, in any respect affected this case, and it probably could not have been consistently, for that prohibition extended' no farther than the lands the commissioners were required to report upon, and their duties were restricted to what was termed the harbor of the city of New York. This locality does not appear to have properly formed any part of that harbor, as it was there intended to be referred to, and for that reason should not be held to be bound by the restriction imposed.

It has been urged that the use made of the portion of the land between 'the high and low-water line had created a title to it by adverse possession, but the acts shown were not of that exclusive nature as would justify the position taken upon them. There was no such occupancy, enclosure, or claim of title as the law required to create an adverse possession.

But as the sale conformed to the regulations adopted for the disposition of lands under water, and under them, and the provisions of the act of 1852, the conveyance was valid, the plaintiff was rightly held to have failed in its action, even though it and not the town, or village of Harlem, became the owner of the land between the high and low-water lines.

The judgment in the case was proper, audit should accordingly be affirmed.

INGAlls, P. J., and Potteh, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Bxiady, J. : Davis, P. J.,

license: Public Domain

text:
    WILLIS S. PAINE, as Receiver of the Bond Street Savings Bank of the City of New York, Appellant, v. ROBERT IRWIN, Respondent.

      Sale of land to a corporation by a trustee thereof— right of the former to avoid the sale and recova-for improvements.

    In this action, brought by the plaintiff as receiver of a savings bank, the com- ' 'plaint alleged that in 1871, and while the defendant was one of the trustees of the bank, he sold to it a lot for §89,500 ; that a building was erected thereon by the bank for §125,000, defendant being one of the building committee. That such sale was voidable at the option of the bank; that owing to the improvements it was not practicable, consistently with the rights and interests of the bank, to simply avoid the sale and receive back the purchase-price, with interest, and asked that the defendant be compelled to take a reconveyance of the lot and building, and to pay to plaintiff the amount expended by the bank, with interest, or to pay the difference between the purchase-price of §89,500 and the value of the lot at the date of the judgment to be entered in such action.

      Held, that, as it appeared from the complaint that a simple avoidance of the sale of the lot purchased was impracticable, a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, should be sustained.
    Appeal from an order, sustaining a demurrer to tbe complaint. The complaint in this action alleges the due appointment of the plaintiff as receiver of the Bond Street Savings Bank; that in the year 1870, and continuously down to February, 1876, the defendant was a trustee of that bank; that in 1873 the defendant was the owner of a lot of land upon the corner of Bond street and Bowery; that in April, 1873, the defendant conveyed this lot of land to the bank for $89,500; that thereafter the bank erected a building upon the lot in question, at a cost of $125,000, which building was erected under the supervision of a building conn mitteo, of which the defendant was one. The complaint contains no allegation of any"fraud upon the part of the defendant in procuring the purchase, or that the price paid was beyond the value of the lot at the time of the conveyance. The complaint states that said promises having been built upon (said sale having been made by the defendant for that purpose, and the defendant having, as a trustee of said bank, aided and been concerned in the erection of said building) it is not practicable, consistently with the rights and interests of said bank to simply avoid said sale, and demand and receive back the purchase-money and interest upon a reconveyance of said premises to the defendant; that, under these circumstances, he is advised and believes and claims that he is entitled, as receiver, to require of the defendant that, upon the reconveyance to him of said premises, he repay to the plaintiff-said consideration money and interest, and also the aggregate amount expended by said bank in the erection of said building, together with the interest; or else that the defendant shall repay to him, the said plaintiff, the difference between such a sum as represents the value, at the time of the judgment herein; of said premises, exclusive of the building (that is, the present value of the lot alone) and the purchase-money, with interest thereon at seven per cent, from the date of its payment to the date of the judgment to be rendered herein.
    The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action.
    The following is the opinion delivered at Special Term:
    VaN BpujNT, J.:
    The authorities cited by the plaintiff’s counsel would perhaps sustain the proposition that, even in the absence of fraud, a corporation would have the right to avoid contracts made between itself and its trustees, and that that right is not limited to merely executory contracts, nor is it limited to purchases by trustees of a corporation, but the same principle would apply to a sale by a trustee to a corporation.
    In the case of the Cumberland Coal Company v. Sherman (30 Barb., 553), the authorities affecting this question have been studiously gathered by the learned judge who wrote the opinion in that case, who sums up the conclusion to be derived from a consideration of the various cases in England and in this State in the following language: “ Neither are the duties or obligations of a director or trustee altered from the circumstance that he is one of a number of directors or trustees, and that this circumstance diminishes his responsibility or relieves him from any incapacity to deal with the property of his cestui que trust. The same prin-ciplos apply; to him, as one of a nmpber, as if be was acting as a sole trustee. It is not doubted that it has been shown that the relation of the directors to the stockholders is the same as that of the agent to his principal, the trustee to his cestui que trust, and out of the identity of these relations necessarily spring the same duties, the same danger and the same policy of the law.
    “In the language of the plaintiff’s counsel, it is justly said, ‘ whether it be a director dealing with the board, of which he is a member, or a trustee dealing with his co-trustees, and himself the real party in interest, the principal is absent, the watchful and effective self-interest of the director or trustee seeking a bargain is not counteracted by the equally watchful and effective self-interest of the other party who is there only by his representatives, and the wise policy of the law treats all such cases as that of a trustee dealing with himself.’ The number of directors or trustees does not lessen the danger or insure security that the interests of the cestui que trust will be protected.
    “ The moment the directors permit one or more of their number to deal with the property of the stockholders, they surrender their own independence and self-control. If five directors permit the sixth to purchase the property intrusted to their care, the same thing must be clone with the others if they desire it. Increase of the number of the agents in no degree diminishes the danger of unfaithfulness. Whichcote v. Lawrence (3 Vesey, 740) was a case of several trustees. In this case Lord Loughborough says: ‘ There was more opportunity for that species of management which does not betray itself much in the conduct and language of the party when several trustees are acting together. I am sorry to say there is greater negligence when there is a number of trustees.’ ”
    But in none of the cases has it ever been hinted at, that in the absence of fraud a corporation or a cestui que trust could rescind a contract of purchase made with a trustee, and compel the trustee to pay for improvements put upon the premises by the corporation or cestui que trust. The fact that the corporation or cestui que trust had erected improvements upon property bought from a trustee would not impair their right to rescind the contract and recover the property, provided they abandoned the improvements ; but in the absence of fraud I know of no case which will justify me in holding that the corporation or cestui que trust can compel the trustee upon a rescisión to indemnify for improvements.
    It is urged upon the part of the plaintiff that the fact that the defendant was one of a committee, especially authorized to superintend the erection of the building upon the premises in question, justifies the demand made by the plaintiff, because the defendant was instrumental in the erection of this building ; but I fail to see that this circumstance in any respect alters the question, because his liability rests entirely upon the fact of his being a trustee, and not upon the fact as to whether he did or not take an active part in the matter.
    The complaint having alleged that it is impracticable, consistent with the interests of the bank, to simply avoid the sale, I am unable to see that any relief can be granted in this action, there being no authority in a cestui que trust to compel the trustee to pay for improvements.
    It is undoubtedly true that no case in this State can be found that a corporation, in the absence of fraud, has a right to avoid a sale made to it by a trustee; but it is also equally true that no case to the contrary can be found, and as it undoubtedly has been decided, and is the rule that a purchase by a trustee of a cestui que trust may be avoided by the cestui que trust, the same reasoning and the same principle would apply with the same force to a sale by a trustee to a cestui que trust.

    I have not thought it necessary to discuss the questions as to the defendant’s presence at the meeting at which it was resolved to purchase this property, because his presence or absence at such a meeting would in no maimer affect his disability to deal with the corporation. The confidential relation existed whether he was present at the meeting which directed the purchase or not.
    The plaintiff in this action, not being in . a condition to simply avoid the sale, as I have hereinbefore stated, no relief can be granted, and the demurrer must be sustained, with costs, the plaintiff to have leave to amend upon payment of costs.

      Francis Q. Barlow, for the appellant.
    In cases like that at bar, the purchase is voidable "as a conclusion of law, and without reference to its fairness or unfairness.” (Cumberland Land Co. v. Sherman, 30 Barb.,, at foot of p. 563, and top of p. 564 ; Hoffman Steam Goal Go. v. Cumberland Goal and Iron Go., 16 Maryland R., at middle of p. 506, and by counsel arguendo at foot of p. 489, and top of id. 490, and cases there cited; G. G. & S. R. R. Go. v. Kelly, 77 Ill., 426, and at pp. 434 and 435, a strong case ; Michaud v. Qirod, 4 How. [U. S.J, 503, and pp. 552-560 Davoue v. Fanning, 2 J. Cb. R., 251, and atp. 259 at foot, and p. 263 at foot; ■Hawley v, Qramer, 4 Cow., at foot of p. 734, and at top of p. 735 ; in Jewett v. Miller, 10 N. Y., 402, and near foot of p. 405 ; Boerum v. Sehenelc, 41 N. Y., 182, and at p. 188 ; Murphy v. O’Shea, 2 J. & L. [Sugden’s Decisions], bead note at p. 402, and tbe Chancellor at p. 424 ; York Building Go. v. Mackenzie, 3 Raton’s Appeal Cases, 378 ; Colbourn v. Morton, in Court of Appeals, 5 Abb. [N. S.], 308, bead note at p. 309, and by tbe court passim.) It makes no difference in tbe application of this rule that Irwin was one of many, or not a sole trustee. (See Aberdeen Railroad Go. y. Blaikie, 1 McQueen, at p. 473, per CraNworth, Lord Chancellor; Cumberland Goal Go. v. Sherman, 30 Barb., at foot of p. 572, and at p. 573 ; Hoffman Company v. Cumberland Company, 16 Md. R., at p. 493 ; G. O. & S. R. R. Go. y. Kelly, 77 Ill., 426.) Tbe same principles are applied to a sale by a trustee to bis corporation, as are applied to a purchase by him of tbe corporate property. (Gonkey v. Bond, 34 Barb., 276 ; affirmed in Court of Appeals, 36 N. Y., 427 ; Gillette y. Beppercorne, 3 Beavan, 78, pp. 83, 84 ; Bentleys. Graven, 18 id., 75 ; McOants v. Bee, 1 McCord’s Chancery [S. C.] R., top paging 222 ; star paging 383, 225 [star paging 389] ; Aberdeen R. R. Go. v. Blaikie, 1 McQueen, 461; Michoud v. Girod, 4 How. [IT. S.], 503; 17 Barb., at p. 134, near top, per AlleN, J., and 14 N. Y., p. 91, per DeNio, J.) Besides tbe relief of abandoning the improvements, plaintiff is also entitled to either one or tbe other of tbe methods of relief asked for in tbe complaint. (Coulbourn v. Morton, 5 Abb. [N. S.], 308, and foot of p. 325 ; Bentleo v. Graven, 18 Beavan, at p. 76, and cases cited in Leading Cases in Equity; Hare & Wallace’s Notes, vol. 1 [3d Am. ed., 1859], atp. 206, under head of “Nature of Relief Granted by Courts of Equity Brackenridge v. Holland, 2 Black., 377, and at p. 383 ; Ring old v. Ring old, 1 Harris & Gill [Md.], p. 11; Massonr. Bovet, 1 Denio, 74; and see Blalee v. Mowatt, 21 Beavan, at foot of p. 613.)

      B. F. Dunning, for the respondent.
    A party having an election to rescind a contract must rescind it in toto or in no part. (Chitty on Con. [9th ed.], 748, note 2; The Law of Trusts and Trustees, by Tiffany and Bullard, 558; Story’s Eq. Jur., § 322, a ; Willard’s Eq. Jur. [Potter’s ed.], 187; Bartholomew v. Finnemore, 17 Barb. [S. C.], 428; Ilunlr. SilJc, 5 East, 449; Beedy. Bland-ford, 2 Y. & Jer., 278.)
   Bxiady, J. :

We do not deem it necessary to express our views in an elaborate manner upon the questions discussed on the appellant’s brief. The order made at Special Term was demanded by the allegations of the complaint, construed together. The avowed impracticability of the bank to simply avoid the sale, places the relief sought beyond any remedy which this court could grant on the facts alleged. The court below was decidedly influenced by the avowal mentioned, but granted leave to amend, of which the plaintiff did not avail himself. Whether, if the complaint were amended, the relief sought could be given, is a question we are not called upon now to consider. The absence of any charge of fraud, and of any charge of excess in price in the sale by the defendant, are circumstances which must be of much weight in the ultimate disposition of the case.

We adopt as expressive of our views the opinion rendered at Special Term by the learned justice presiding.

The order appealed from should therefore be affirmed.

Ingalls, J., concurred.

Davis, P. J.,

dissenting :

If any relief whatever could have been granted upon the material facts pleaded, the demurrer should not have been sustained.

I am of opinion that, upon the facts pleaded, the plaintiff could have been adjudged entitled to abandon and restore to the defendant the property with all the improvements put upon it, and recover the purchase-price paid without interest, if for the best interests of the beneficiaries, on his election to do so within a prescribed time. That relief might be neither desirable nor valuable, but as a court of equity, upon the facts admitted by the demurrer, could and ought to award it, it was error to sustain the demurrer and give judgment for defendant.

I dissent, therefore, from the conclusion of my brethren, that the judgment should be affirmed.

Order affirmed.


author: DANIELS, J. : INGALLS, P. J.,

text:
    PETER ZINK, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Larceny — what facts auihw'iee a conviction of.

    One Schelly was induced by the fraudulent representation of the plaintiff in error to consign to him for sale certain malt; Schelly intended that the malt should go into the possession of the plaintiff, to be sold by him for the benefit of Schelly, the consignor, and that the proceeds should be remitted to him. The plaintiff in error received the malt, sold it in violation of the terms of the consignment, and convei'ted the proceeds to his own use. Upon his trial for larceny the court charged, that if he obtained possession of the malt with the intent to deprive the owner of his property in it, and to defraud him and not to account to him for the goods or for the money, and if he received the goods in pursuance of such design, then he might be convicted of larceny.

      Held, that the charge was proper, and that a conviction thereunder should be sustained. (Ingalls, J., dissenting.)
    Writ of error to the New York Court of General Sessions to review a conviction of the plaintiff in error of the crime of grand larceny. Plaintiff in error was jointly indicted with Louis Diehl and Samuel Schuster for the larceny of 501 sacks of'malt on the 10th of March, 1875. There were two counts in the indictment: One for larceny of the malt, and the other for receiving the malt knowing it to have been stolen. The issue was tried at the March Term of the General Sessions against Zink alone, who was convicted on the first count. The property in questions belonged to one John Schelly, who was a resident of Hamilton, Ohio. It was consigned, by Schelly to the plaintiff in error with the intent that it should go into his possession and be sold by him for the benefit of the consignor, and that the proceeds thereof should be returned to the consignor.

      Ira Shafer, for the plaintiff in error.

      B. II. Phelps (district attorney), for the people.
   DANIELS, J. :

The prisoner was indicted and convicted of stealing five hundred and one sacks of malt, the property of John Schelly. He resided at Hamilton, in the State of Ohio, and consigned this and other malt to the prisoner for sale at the city of New York, and it was there sold, but not according to the terms of the consignments. The proceeds, so far as they were received by him were not sent or remitted, as they should' have been, to the consignor, but in violation of the terms under which the malt was received, they were converted and appropriated by the prisoner to his own use. The malt was delivered to a railway company at Hamilton, in Ohio, by Schelly, its owner, and bills of lading taken for it by the terms of which the carrier undertook to transport and deliver it to. the prisoner at Melrose, in the city of New York, and it was there delivered to him accordingly. This was evidently induced by false representations made by the prisoner concerning his financial situation, and of the intention and purposes to be executed by him concerning it, and it was in reliance upon the truth of the representations made, that the prosecuting witness was induced to send the malt to him for sale. It was sent between the 7th of January and the 2d of March, 1875, and consisted of eleven different consignments, amounting to two thousand eight hundred and ninety bags, of about two and one-half bushels each.

As to nine of the consignments, invoices, etc., bills of sale were produced, stating in terms that the prisoner had bought the malt consigned, from the consignor ; but while they were made out in his writing they were not subscribed by him, and as to all of them he testified in the following manner : “You swore you thought he was good, and that is the reason you trusted him. Is that true, you did trust him because you thought he was good ? I would not trust him that amount; I would trust him a small amount. You did trust him. that amount ? I did trust.him ; he wrote me a letter and he told me a lie. From what he told you and wrote you, you trusted him, did you not ? He promised to come to me with money. Did you trust this man from what he said to you, and from what he wrote you, with all these goods ? Yes, sir ; I would not trust him that much. You would not have trusted him if he had not said these things, represented these things, would you ? Certainly I would not. Having said these things and written these things, you did trust him ? I did trust him in this big amount; I expected to get, money every day, and he promised to come down to Hamilton himself. You expected to get the money for your goods ? Certainly. You expected him to sell the goods in order that he should get money ? Yes, sir. You meant he should do that ? Yes, sir. When he did sell the goods he did precisely what you intended he should ? But when he did not send you the money, he did not do what you intended him to do ? No, sir.”

And the evidence discloses no different intention or purpose, concerning any portion of the consigned property. It was delivered by its owner, by means of these consignments, to the prisoner, with the intent that it should go into his possession, and be sold by him for the benefit of the consignor, and that the proceeds should be returned to him. What was given to the prisoner was the custody of the property for the accomplishment of a particular object — that of holding and selling it for the benefit of the consignor. The prisoner acquired no title to it, nor any right to withhold it from the consignor, who continued to be its owner, and could at any time, while the prisoner retained possession, have recovered it from him and countermanded his authority over it. In this respect the case differs from that of Kelly v. People, (13 S. C. N. Y. [6 Hun], 509), where the title as well as the possession were transferred to the prisoner. Here the prisoner had the possession merely, without the title, and the transaction showed, for the time being, and until the property was actually sold, was to, and did, remain in the consignor.

The court, at the trial, charged the jury that if the prisoner obtained possession of the goods with the intent to deprive the owner of his property in them and to defraud him, and not to account to him for the goods or for the money, and that he received the goods in pursuance of that design, then he might be convicted of larceny, and the request to charge that the offense, if any was committed, was that of obtaining property by false pretenses or embezzlement, and not that of larceny, wore refused. The prisoner’s counsel excepted to the charge as given and to these refusals.

These exceptions present the controverted issue in substance and effect, upon which the conviction of the accused was secured. If the court was right in the disposition made of them, then there seems to be nothing in the case, or in the other rulings made, that can be of any positive benefit to the prisoner, and that it was right appears to result from the circumstance that he acquired only the bare possession of, without the title to, the property, with the authority to sell it for the benefit of another person who continued to be the owner. The case was delivered to the jury upon the theory that they could only convict in case it had been established that the prisoner obtained this possession, intending to deprive the owner of his property in the goods and to misappropriate their proceeds, and by their verdict of guilty, they must have been satisfied of the existence of that intent; and as they found it to have been proven it was a criminal intent and sufficient to constitute the crime of larceny.

In the case of Smith v. People (53 N. Y., 111), it was held that “the proposition is elementary that larceny may be committed of goods obtained from the owner by delivery, if it be done animo furandi.” “ The rule is, that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside, not parted with, in the first proprietor.” (Smith v. People, 53 N. Y., 113.) “A distinction is made between a bail charge, or special use of the goods, and a general bailment, and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with • the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with tbe custody or naked possession to one wbo receives tbe property animo furandi, tbe owner still meaning to retain tbe right of property, tbe taking will be larceny; but if the owner part with not only tbe possession but tbe right of property also, tbe offense of the party obtaining them will not be larceny but that of obtaining goods by false pretenses;” and then was added, what is significantly applicable to this case, that “tbe jury have found tbe hitent to steal at tbe time of taking, which is all that is required to constitute larceny, where tbe mere possession is obtained by fraud or trick.” [Smith v. People, 53 N. Y., 114.) And no different principle was advanced in tbe case of People v. McDonald (43 id., 61), nor in that of Loomis v. People (67 id., 322.) On tbe contrary, tbe principle of the last case tends to sustain tbe propriety of this conviction. Tbe representations and assurances made use of were mere artifices to conceal tbe real purposes of the person making them, which was to induce the owner to place bis property under tbe defendant’s control in order to afford him a favorable opportunity of appropriating it to bis own use, and that created tbe offense of larceny. (Weyman v. People, 11 S. C. N. Y. [4 Hun], 511.)

Tbe case of Regina v. Goodbody (34 Eng. Com. Law, 951; 8 C. & P., 665) and Regina v. Thomas (38 Eng. Com. Law, 429; 9 C. & P., 741) have been relied upon as favorable to the prisoner’s appeal. But they differ very materially from this case, in tbe fact that it did not there appear in any form that tbe accused were actuated by any criminal intent when they acquired possession of tbe ]Droperty. On tbe other band, tbe circumstances, under which tbe delivery was made, exclude tbe idea of tbe existence of any such intention.

Whether the court was right in allowing proof of the value of tbe bags, or of tbe market prices of malt, is of no particular-importance in the case; for, according to the prices mentioned in tbe inyoices, and at which tbe malt was actually sold under tbe defendant’s authority, tbe value greatly exceeded that required to create the crime of grand larceny. Neither was there error in the refusals to charge, jn tbe language of tbe several requests, that the jury should consider tbe invoices as evidence, and that tbe taking of tbe notes was evidence that a sale bad been made. Eor tbe learned, recorder directed the jury that they were to reflect upon every item of evidence that had been adduced in the case, whether m oral statements or papers presented ; they were the judges of all the evidence.

Other exceptions were taken, but they seem to be all subordinated to those already considered. If the case was correctly disposed of, so far as they are concerned, and it is believed, under the authorities that it was, then the prisoner has been lawfully convicted ; and the security of trade and proprietary rights, as well as as a just administration of the laws, require that the result should not bo disturbed. The judgment should therefore be affirmed.

Potter, J., concurred.

INGALLS, P. J.,

dissenting :

I feel compelled to differ with our learned brother in the conclusion to wdiich he has arrived in this case, and will state the reasons. John Schelly in accordance with an arrangement which he had made with Zink, the prisoner, consigned to him a quantity of malt, with directions to sell the same at a price designated, and after deducting expenses to remit the balance. Bills of lading in the usual form and without special conditions, accompanied the malt, which consisted of several shipments. Zink was to pay the freights and become liable therefor. (Davis v. Pattison, 24 N. Y., 317.) The malt was sold and notes were taken for the same; and there can be no doubt but that the purchasers acquired a good title thereto. It is quite apparent that Schelly was imposed upon by Zink, who doubtless deserves the punishment which the conviction would impose upon him; yet it should not be inflicted contrary to law. The prisoner was indicted and convicted of the offense of larceny, and the question presented is whether the facts established justified such conviction. We conclude that they did not, and consequently the judgment should be reversed. Schelly parted voluntarily with the actual possession of the malt, and by authorizing -the sale surrendered all claim to the constructive possession thereof. Zink was directed to sell all of the malt, and was invested by Schelly with the indicia of ownership. . Under such circumstances we cannot assent to the proposition that the charge of larceny was properly sustained. (Ross v. People, 5 Hill, 294; Mowrey v. Walsh, 8 Cowen, 238; The People v. McDonald, 43 N. Y., 61.) The following cases are cited by the learned district-attorney in support of the conviction: (Hildebrand v. People, 1 Hun, 19; Weyman v. People, 4 id., 511; Lewis & Loomis v. People, 67 N. Y., 322; Smith v. People, 53 id., 111.) In all of these cases an examination shows that the control of the property was not absolutely parted with by the owner. In the case first cited a treasury note of fifty dollar's was by the owner laid upon a counter, for the purpose of having it changed and paying ten cents for a glass of soda water. The prisoner seized and appropriated to his own use the entire note, and was convicted of the offense of larceny. In the second case, the prisoner received from the owner a quantity of jewelry for the purpose of enabling a customer of the former to select therefrom one article, and the residue to bo returned to the ownei, with the money for the article sold. The prisoner appropriated to his use all of the jewelry and was convicted of larceny. In that case the learned judge remarks : “ The distinction between this class of cases, and obtaining property by means of false pretences, seems to consist in the circumstance that in the latter the owner intends to part with his title with the change of custody ; while in the former no intention of that kind exists.” In the case we are considering, the facts show that Schelly did intend to part with the title to the malt, as well as the possession thereof. In the third case, Lewis induced Olason to accompany him to a bank to procure a $500 check cashed, and on the way led Olason into a saloon and there met Loomis, to whom Lewis jn-oposed that they should throw dice for $100, which was assented to by Loomis ; whereupon Lewis asked Olason to lend him ninety dollars, saying : “I am'sure to beat him again, and you can have your money back if I do lose ; I have got the check for $500, and we will go up to the bank and get the check cashed and you can have the money.” In that case Judge Miller remarks: “It is contended that the conviction was erroneous, because the prosecutor voluntarily -parted with his money, not expecting to receive back the same bills, but others in their place, and hence the crime is not made out. It must be conceded that in order to establish the offense of larceny, there must be a trespass, and without this element the offense is not complete, even although the owner is induced to part with his property by fraudulent means ; yet if he actually intends to part with it and delivers up possession absolutely, it is not larceny In the last case, Smith v. People, the prisoner procured a locket, chain and two dollars, with' directions from the owner to pawn them and procure twelve dollars to prevent the imprisonment of her husband. All the pretences in regard to the arrest of the husband were false. The prisoner appropriated the property to his own use, and was convicted of larceny. In that case the owner did not absolutely part with the property; she merely authorized the creation of a lien thereon. Judge AlleN says : “The owner did not part with the property in the chattel or transfer the legal possession. The accused had merely the custody; the possession and ownership remaining in the original proprietor.” It will be perceived that in all of these cases where a conviction for larceny has been sustained, the court has determined from the facts of the particular case, that there was the absence of an intention, on the part of the owner of the property, to part with the ownership, possession and control. In this controlling particular the case at bar differs with that class of cases, and the distinction rests upon principle. Schelly parted with the malt so effectually as to enable Zink to confer upon the purchaser a good title thereto.

We conclude that the evidence did not justify a conviction and the judgment should be reversed.

Judgment affirmed.


author: Davis, P. J.;

text:
    DAVID H. WALLACE and ALFRED S. MALCOMSON, Respondents, v. THE AMERICAN LINEN THREAD COMPANY, Appellant.

      Code, § 385 —the judgment, not the verdict determines the right to costs — Verdict on feigned issue — -power of court, at Special Term, to approve or set it aside or find the fads itself.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    This action was brought to enjoin the defendants from infringing the plaintiffs’ trade-mark, and to recover damages for the infringement already made. The Special Term framed certain issues and ordered them to be tried before a jury. They were brought down to trial at Circuit, and a verdict rendered by the jury, answering specifically the several questions contained in the issues. The case was afterwards brought to trial at Special Term, upon the pleadings and evidence in the case and the verdict of the jury. The jury had found that the defendant had knowingly used plaintiffs’ trade-mark without their knowledge or consent; that the defendant did not use the same with intent to defraud ; that the quantity of thread made by defendant with plaintiffs’ trade-mark affixed was three hundred and forty pounds of the value of $340, and that the plaintiffs had sustained no damage by reason of the defendant’s using such trade-mark. On the trial at Special Term the court in substance adopted the finding of the jury, that the defendant had knowingly used plaintiffs’ trademark without their knowledge or consent, and the finding in respect to the quantity of thread made and sold; and held that the finding that tlie defendant used the trade-mark without intent to defraud was immaterial, and rejected the finding on the question of damages. The court then proceeded to find other and additional facts, to wit: First, that the plaintiffs were at the time of the act complained of in the complaint, and still arc selling a class of goods known as linen thread, having thereon the name, brand or trade-mark of the plaintiffs ; second, that the profit made by the plaintiffs on thread similar to that sold by defendant with their trade-mark affixed was thirty-five cents per pound; and upon these facts found by the court, and upon the facts found by the jury and adopted by the court, the court decided as conclusions of law that the plaintiffs were entitled to an order perpetually restraining the defendant and its agents from using the plaintiffs’ trade-mark or any imitation thereof, and that the plaintiffs wore entitled to recover from the defendant the sum of $119, being the amount of profits that could be made on the quantity of thread sold by the defendant with their trade-mark affixed.
    The court at General Term among other things said: “ Before the trial the defendant had served an offer of judgment, to the effect that an injunction should issue according to the prayer of the complaint, and that plaintiffs recover damages against the defendant to the amount of $50, with the costs of the action.” Section 385 of the Code of Procedure, section 738 of the Code of Civil Procedure, provides where such offer is served and not accepted. “ If the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.” But in this case the plaintiffs have recovered a more favorable judgment than that offered. The verdict of the jury was less favorable, but it is the judgment of the court to which the Code looks, and which must be controlling as to the right to recover costs. It is claimed by the appellant that the verdict of the jury upon the question of damages is conclusive, and that the court on the trial had no right to disregard that verdict and proceed to ascertain damages for itself. But the practice in such cases was definitely settled by the Court of Appeals in Vermilyea v. Palmer (52 N. Y., 471) to be substantially that which existed in chancery before the Code. In that case the court say: ‘ ‘•If the order for trial is made in an equitable action, it is a substitute for tbe old feigned issue, and tbe finding has tbe same and no greater force or effect, than a finding under that proceeding in chancery had. Such a finding was used to inform the mind or conscience of the court. It was a means for the court to ascertain the facts for itself, and not as an independent adjudication; it was ancillary to the judgment of the court; the nature of the proceeding contemplated an approval by the court. In ordinary trials by jury, it is the peculiar province of the juiy, and not the court, to decide the facts. Courts may set aside verdicts as against the weight of evidence, but this power is restricted by fixed rules and within defined limits. Every intendment is in favor of the verdict, and it has a far more binding effect than the finding upon a feigned issue; the latter may or may not be adopted by the court. The court may set the verdict aside and order a now trial, or find the facts itself and discharge the order, or it may qualify or alter the finding. The practice upon feigned issues was fully considered in Snell v. Louclcs (12 Barb., 385), by Willard, J.” The power of the Special Term, therefore, to disregard or reject the verdict of the jury, or any portion of it cannot be doubted, and it follows that this court is not at liberty to interfere with the judgment, on the ground that the court did not adopt the findings of the jury, on the issue sent down for trial, as conclusive.
    The case is to be reviewed by us precisely as though the facts had all been found by the court, without the intervention of any jury. The decision signed by the learned judge at Special Term adopts some portions of the verdict of the jury, and rejects other portions either in express terms or by necessary implication, and that decision is alone the subject of review upon this appeal.

      Edward Fitch Bullard, for the appellant. A. Bell Malcomson, for the respondents.
   Opinion by

Davis, P. J.;

Ingalls, J., concurred.

Present — Davis, P. J., Brady and INGALLS, JJ.

Judgment reversed ; new trial granted ; costs to abide event.


author: Davis, P. J. ;

text:
    SAMUEL F. DINAN, Respondent, v. JULIAN ALLEN, Appellant.

      Attachment — presumption as to the ground upon which it was granted.

    Appeal from an order denying a motion to vacate an order of arrest and a warrant of attachment.
    ■With reference to the attachment, the court at General Term said : “The affidavit upon which the order of attachment is also granted shows that the defendant was a non-resident of the State at the time of the commencement of the action, and is quite sufficient to have justified the order of attachment on that ground. The attachment does not appear in the papers, and we are not able, therefore, to see that it was not granted on the ground of non-residence as well as of alleged fraud. The Code requires that the attachment shall state the ground, but in the absence of the warrant we ought to assume that the court granted the attachment upon all the grounds sufficiently established, prima facie, by the affidavit.
    “ For these reasons we think the attachment should not be vacated.”

      Jff. Gothren, for the appellant. Qornelius A.. Runlcle, for the respondent.
   Opinion by

Davis, P. J. ;

Brady and Ingalls, JJ., concurred.

Order modified as directed in opinion, and affirmed as modified, without costs to either party.


author: Beady, J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FREDERICK S. HEISER, Executor, etc., Relator, v. THE BOARD OF ASSESSORS, Respondents.

      Where assessors have completed the roll and sent it to another hoard — the roll cannot he corrected hy means of a writ of certiorari issued to the assessors.
    Writ of certiorari to review proceedings in relation to an award for a change of grade of Eighth avenue in New York.

      The court at General Term said : “This proceeding is one to review the action of the respondents, in awarding damages to the relator and executor of the last will and testament of Christina E. Smith, deceased; but it appears that the respondents, who constitute a board of assessors, had concluded their labors in regard to the subject and had transmitted to the board of revision and correction the assessment list; and, further, that the statement of awards had been filed in the finance department before the writ herein was issued. There is, therefore, nothing before the board of assessors, and the relator’s remedy is not by this mode of procedure. The office of a certiorari accomplishes nothing under such circumstances. The assessment-roll is not in their possession or under the control of the respondents, and this court, as said in the case of The People ex rel. Raplee v. Reddy (43 Barb., 539) cannot, therefore, “render any judgment that can aifect the assessment-roll, or correct any errors, although it is satisfied that there was error in the proceedings.” See, also, People ex rel. Buffalo R. R. v. Fredericks (48 Barb., 173), and cases cited. The case referred to by the relator, in response, apparently, to this view (vide The People ex rel. O. V. Rat. Bk. v. Supervisors of Mad. Go., 51 N. Y., 442) is one in which a - valid claim was presented to the board of supervisors and they rejected it. The court held that on .certiorari they could reverse the action of the board, leaving the relator to a further remedy to enforce payment. It must be borne in mind, however, that the control of the claim had not passed away from the board of supervisors, which in regard to it was an existing authority. Such is not the case when the assessors having completed the roll transfer it to another body for revision and correction. Their functions have ceased.”

      II. M. Whitehead, for the relator. Hugh L. Oole, for the respondents.
   Opinion by

Beady, J.,

Davis, P. J., and ING-alls, J., concurred.

Writ dismissed.


author: Smith, J. :

text:
    GEORGE BRUST, Appellant, v. JOSEPH B. BARRETT, Respondent.

      Check — when barred by the statute of limitation.

    April 1, 1S65, defendant drew a check upon a bank for §430.49 to the order of, and delivered the same to, Stephen A. Shepard, who on the same day indorsed and transfered the check to one Heed. It remained in the latter’s possession until April, 1875, having- been mislaid, when it was presented to the bank and payment refused. In an action upon the check against the drawer, field, that it was barred by the statute of limitations.
    "Whether or not the drawer had funds on deposit in the bank at the time the check was drawn, or within six years thereafter, held to be immaterial.
    Appeal from an order of the Special Term in Genesee county, setting aside a verdict in favor of the plaintiff and granting a new trial, on a case.
    The action was brought for the recovery of the amount of a bank-check, given by the defendant to Stephen A. Shepard, and by Shepard indorsed and delivered to John Reed, the assignor of the plaintiff. The only defense, which it is material to notice, was the statute of limitations. At the trial, the plaintiff produced and proved the check, which was as follows :

      “ $430.49. Elba, April 1, 1865.
    “First National Bank of Batavia. Pay to Stephen A. Shepard or order four hundred and thirty dollars and forty-nine cents, and charge to
    “(Signed). J. B. BARRETT.
    (Indorsed). “Stephen A. Shepakd.”
    The plaintiff gave evidence tending to show that the check was delivered to the payee for a valuable consideration, on the day of its date, and that it was transferred by the payee to Reed on the same day; that it remained in Reed’s possession until on or about the 1st day of April, 1875, it having been accidentally mislaid by him, when he presented it to the bank on which it was drawn and demanded payment, which was refused ; and that he immediately gave notice of such demand and refusal to the defendant and demanded payment of him, and he refused. The action was commenced on 25th September, 1876. The defendant’s counsel gave evidence, under the plaintiff’s objection and exception, tending to show that the defendant had no funds on deposit with the drawee, subject to the payment of the check on the 1st day of April, 1865, or at any time within six years thereafter. The defendant’s counsel requested the court to charge that the check was duo at its giving, and unless presented within six years from its date, it was barred by the statute of limitations. The court declined so to charge and the defendant excepted. The plaintiff had a verdict which the Special Term set aside, on the ground that the demand was barred by the statute.

      M. II Peck, for the appellant.
    The liability of the drawer of a check is no more primary and absolute, than is that of the indorser of a promissory note. (Oruger v. Armstrong, 3 Johns. Cases, 5; S. C., Ct. Errors, 7 Hill, 425; Murray v. Judah, 6 Cow., 484; Ilarkerx. Anderson, 21 Wend., 372; Juddx. Smith, 3 Ilun, 190; Oonkling v. Gandall, 1 Keyes, 228; Edwards on Bills and Notes, 396; Story on Prom. Notes, 492; 2 Abb. Pr. R., 301, 305; 12 Barb., 298.) It is a patent absurdity to hold that a cause of action has accrued, and at the same time determine that the party cannot enforce it, until he has taken further preliminary steps, indispensable to his right to institute a suit upon it. (Payne v. Gardner, 29 N. Y., 146; Pardee v. Fish, 60 id., 265; Edwards on Bills and Notes, 398; Story on Prom. Notes, 497.) No delay in taking these preliminary steps to fix the drawer’s direct liability will discharge him, or impair his liability, unless he is actually damnified thereby. (Daniels on Negotiable Instruments, § 1589; Little v. Phoenix BanJe, 2 Hill, 425; Mo-hawlc Banh v. Broderich, 10 Wend., 306; Biting v. Brinkerhoff 2 Hall, 463Í Purchase v. Mattison, 6 Duer, 589; White v. Canal Bk., 8 N. Y., 170.)

      L. FT. Bangs, for the respondent.
    The check was due at its giving, and the statute commenced to run from its date. (Salter v. Burt, 20 Wend., 205; Smith v. Miller, 43 N. Y., 171-175; 4 Mason, 336-345; The Pittsburg and Connellsville B. B. Co.y. Byers, 32 Penn. St. R., 22; La Forge v. Jayne, 9 id., 77; Morrison, Admin’rs v. Mullen, 34 id., 12; The Pittsburg and Connells-ville B. B. Co. y. Graham, 36 id., 410; Bhines, Adm’rs v. Bvans, 66 id., 192; Codma.n v. Bogers, 10 Pick., 112-119; Angelí on Limitations [3d ed.], § 96; 2 Schouler on Personal Property, 689; Wilkinson v. Veritz, 6 English L. R. Com. PL, 206-209; Whitehead v. Walker, 9 Meeson & Welsby, 506-513; The Bast India Co. v. Paul, 1 English L. & E. R., 44-49; Beltrey v. Faulkner, 3 Barn. & Aid., 288-292; Short v. McCarthy, 3 id., 626; Whitehouse v. Felloios, 100 English Com. Law, 765; Northrop v. Hill, 57 N. Y., 351.) The drawer had no funds in bank at the giving of the check and for more than six years thereafter. No presentment and notice was therefore necessary. The check was duo immediately at its giving, and for want of funds an action could have been maintained against the drawer immediately, and the statute therefore runs from the- date of the check. (Edwards on Bills [1st ed.], 397; Mohawk Bank v. Boderick, 10 Wend., 304; Franklin v. Vanderpool, 1 Hall, 78; Fitch v. Bedding, 4 Sandf. Sup. C. R., 130; Coyle v. Smith, 1 E. D. Smith Com. PI. R., 400; Beddington v. Gilman, 1 Bos., 235 — 241; Johnson v. Bank of'North America, 5 Robertson, '554-595, IIoytY. Seeley, 18 Conn., 353; Emery v. Hobson, 63 Me., 32.
   Smith, J. :

The paper upon which the claim in suit arose was an ordinary bank check. The check was not presented to the bank on which it was drawn until ten years after it was given to the payee, and the only question in the case is whether, by reason of such delay, the holder’s right of action against the drawer is barred by the statute of limitations. We are not aware of any case in which the question has been decided. The numerous cases in the books, which treat of the question when the statute of limitations begins to run upon promissory notes payable on demand, are not strictly analagous to this. The engagement of the maker of a promissory note is absolute, but that of a drawer of a check is conditional only, depending upon the refusal of the drawee to pay on presentment and demand, within a reasonable time. The question, what is a reasonable time for such presentment and demand, depends upon circumstances. If, for instance, the drawee fails or becomes insolvent after the giving of the check, the payee is held to the shortest period within which, consistently with the ordinary employments and duties of commercial business, the duty of presentment and demand could be performed. (Story on Pr. Notes, § 497.) But where no change of circumstances has occurred in the intermediate time, between the drawing and presentment of ■ the check, materially affecting the rights or interests of the drawer in respect to the drawee, the drawer will, in general, remain liable. But in no reported case in which the latter rule was applied, so far as we have observed, did the delay of the holder exceed the period fixed by the statute of limitations for bringing an action upon the check. That fact exists here, and we are inclined to hold with the Special Term that it is fatal to the cause of action.

Bank checks arc not designed or intended to be outstanding for years. The holder has it in his power to make the liability of the drawee absolute at any time. We are not prepared to hold that, by omitting to make the necessary demand, he may suspend the statute for an indefinite period. If he may suspend it as against .the drawer, it must follow that the statute will also be suspended in favor of the drawer as against the bank. If the drawer has funds in the bank, the latter is liable to him for refusing payment. (Marzetti v. Williams, 1 Barn. & Adolph., 415; per Nelsok, J., Little v. Phœnix Bank, 2 Hill, 431.) A demand after six years nann of, be good as against the drawer, unless the bank is under an obligation to pay, notwithstanding an unexplained delay for that period of time. But it would be a harsh rule which would make a bank liable to its depositors, for refusing to pay out its funds upon a check of that suspicious character.

In many cases where the nature of the obligation was such that the party was only bound to pay on demand, it has been held that the statute began to run, although no demand had been made. Those cases proceed upon the principle, that as the rule requiring a demand is for the protection of the party sought to be made liable it cannot -be used for his annoyance, and the fact that the opposite party omits to make a demand which he can make at any time will not save the statute. Stafford v. Richardson (15 Wend., 302) was an aption against an attorney for moneys collected by him. More than six years had elapsed subsequently to the collection of the money before suit was commenced, and the statute of limitations having been pleaded, the plaintiff .relied upon the fact that no demand was made until the commencement of the suit, to take the case out of the statute. The defense prevailed. Savage, Ch. J., delivering the opinion of the court, treated the case . as one in which the attorney might shield himself from responsibility, on the ground that no demand had been made, and said: “ Although, therefore, an attorney may protect himself from a suit by want of a demand, he is not for that reason to be subject all his lifetime to demands, however stale. If a demand was necessary in this case, the plaintiff should have made it in season to have brought his suit within six years after the defendant had converted the property received by him to his own use” (page 306). That case was referred to with approbation, and the doctrine above expressed was reiterated by the Superior Court of New York, in Lyle v. Murray (4 Sandf. Sup. Ct. R., 590). The same doctrine seems to have been asserted by the Court of Appeals, in White v. Sutherland, decided m June, 1870, but not reported. (See note of the decision in 2 Alb. L. Jour., 50, 51.) The case of Palmer v. Palmer (36 Mich. R., 487) is to the same effect. In that case the action was brought on a promissory note, payable thirty days after demand. The note was dated 16th Octo-bcr, 1867, and no demand was shown to have been made until 22d May, 1874. The statute of limitations was pleaded and held to be a bar. Campbell, J., delivering the opinion of the court, said : “ Whatever may have been the ancient prejudice against statutes of limitation, they are now regarded as just, and entitled to be fairly construed. If a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really, and in fact, able "at any time to bring an action, when ho can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable. It may be otherwise, possibly, where delay is contemplated by the express terms of the contract, and where a speedy demand would manifestly violate its intent. But where no delay is contemplated, the rule is just and reasonable, and the presentment should be reasonably prompt, or the creditor should be subjected to the operation of the statute.” We concur in these views, and think them applicable to the case at bar.

In coming to the conclusion that the statute of limitations is a defense, we attach no importance to the testimony introduced by the defendant tending to show that he had no funds in the bank.

But, lor the reasons above stated, we think the order appealed from should be affirmed.

MulliN, P. J., and Talcott, J., concurred.

Order of Special Term affirmed.


author: SMITH, J. :

text:
    JAMES E. CHENEY, Jr., as Administrator, etc., of THOMAS McAUSLIN, deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Motion on the minutes for a new trial, on the ground that a ver diet is against the weight of evidence — it is in the discretion of the justice to entei'tain it— Liability and duty of Railroad Company backing an engine at night aei'oss streets.

    Under section 999 of the Code of Civil Procedure it is left to the discretion of the trial justice to decide whether or not he will entertain a motion, upon his minutes, to set aside a verdict as against the weight of evidence. Where such a motion is entertained and denied it cannot he reviewed at General Term, unless the case states that it contains all the evidence hearing upon the question.
    "Where, on a disputed question of fact, there is a conflict of testimony, the preponderance of evidence must he overwhelming to induce a court to disturb a verdict.
    The plaintiff’s intestate, while crossing defendant’s tracks, at their intersection with a street in the city of Rochester, on a dark night, was struck hy an engine moving backwards, and lulled. Upon the trial the justice charged that it was for the jury to say whether it was the duty of the company, under the circumstances, to have a light upon the engine, and, as it was moving backwards, upon the rear of it, and if so what kind of a light was required; and then said, “the company was hound to have so much light, and so located, that a person reasonably diligent, and of natural powers of observation, might have been able to discover it.” Meld, that the charge was correct.
    The court also charged that it was the duty of the engineer “ to keep a look-out to see whether he is running down foot-passengers who are crossing the railroad track upon the highways of the city.” Meld, no error.
    Appeal from a judgment entered on a verdict rendered at the Monroe Circuit, and also from an order denying a motion for a new trial, made on the minutes of the judge.
    The action was brought to recover damages, for the alleged negligence of the defendant’s sciwant, whereby the plaintiff’s intestate received injuries of which he died. The intestate was injured by being struck and run over by a locomotive engine of defendants, while he was in the act of crossing the defendants railroad trades at their intersection with Sophia street, in the city of Rochester. The court in its charge said : “ Now, what else was required of these employees of the company, to ensure the safety of foot-passengers at that crossing ? It was night. It is for you to say whether it was necessary, in order to perform the duty of the company to foot-passengers, that there should be a light upon this engine; and not only that, but whether, when the engine was backing, there should be a light upon the rear of it; and it is for you to say what kind of a light was required. The court cannot say to you what power of reflector and of lens was necessary, in order to constitute due diligence on the part of the railroad company. The court can say, and must say, that it was only necessary that the company should have so much light, and so located, as would enable an ordinarily careful person undertaking to cross that track, in the use of his powers of observation, to see that the engine was coming. Iiow much light was required for that, it is for you to say. The company was bound to have so much light, and so located, that a person reasonably diligent, and of natural powers of observation, might have been able to discover it. Did the company have all that is required by that rule ? It is, undoubtedly, the duty of the court to say that it was the duty of the engineer, chiefly charged with the operation of his engine, who has his hand upon the machinery of the engine, and controls its movement, to keep a look-out to see whether he is running down foot-passengers who are crossing the railroad track upon the highways of the city ; because, upon him and upon his look-out depends the operation of his engine — depends the stopping of his engine, if it be necessary in order to save life.”

      JS. Harris, for the appellant.

      J. H. Martindale, for the respondent.
   SMITH, J. :

The case as proved without dispute, or as the jury were warranted in finding upon conflicting testimony, was this : About nine o’clock on the night of February, 1877, the deceased and the witness Miles were about to cross the defendant’s railroad, on the east sidewalk of Sophia street, on their way to their home north of the track. There were six tracks across the street, and a long freight train was passing there on the third track from the south. McAuslin, the deceased, halted at or near the edge of the first track and stood waiting for the train to pass. As soon as tbe trained crossed the sidewalk, bo stepped forward at an ordinary pace, and was struck and fatally injured by an engine backing toward tbe cast, on tbe second track. Tbe night was cloudy and at tbe point where tbe injury occurred it was very dark. Tbe outer tracks of tbe railroad were lined with embankments of snow about eight feet in height, which had been thrown up in clearing snow from tbe track.

The space between tbe embankment on tbe south side of the railroad and tbe track nearest it was about three feet. McAuslin was familiar with the crossing. He was of steady habits; was about twenty-four years of age, and not in good health. Miles also was crossing tbe railroad at tbe time of the collision. He was immediately behind McAuslin, and was so close to him that he was struck by tbe southwest corner of the engine, and was carried about four yards down tbe track. Another witness, Wagner, was immediately behind Miles. Wagner bad stood at tbe outer edge of tbe south track waiting for the train to pass, and when it uncovered tbe sidewalk, be started on simultaneously with tbe others. He had no intimation that anything was wrong until be perceived that Miles ivas struck by something that moved out of his sight; be instantly brought up his band and found that be ivas in front of an engine. The engine was moving at a slow rate of speed. • It was stopped very soon after the deceased was struck. There was a conflict of testimony as to whether the bell of the engine vras rung and whether there was a light on the engine. Three of the defendant’s witnesses, who were employed on the engine, testified that the bell was rung, and throe others, who were engaged on the track in the vicinity, testified that they heard the bell. Each of these six witnesses testified that the engine had lights burning, and that one of them was at the rear. Miles testified that when McAuslin stepped forward and ho followed him, he (Miles) looked across and on either side to see if there was anything passing, and he did not see ór hear anything, and that from the time he got to the railroad he was thinking about getting over it safely. Wagner testified: “As I went forward before the accident, I did not see anything to hinder me in going across; I probably did look, because I was on the look-out; I don’t remember all those little points; I know I did not bear anything; if I had I should have halted.” The bell on the engine of the freight train was ringing, and the train made much noise in passing.

The counsel for the appellant argues that the verdict is against evidence, in finding, as the jury must have done, that no bell was rung or light carried on the colliding engine. The point is not tenable. The number of witnesses alone is not to control. The testimony of the defendant’s witnesses is controverted by that of Milas and Wagner; the testimony of the latter witnesses is not negative merely. As they were intent upon ascertaining, if possible, whether there was anything to endanger them in attempting to cross the track, as they looked and listened for that purpose, and as they were in a position to see the light on the rear of the approaching engine, if there was one, and to hear its bell, if it was ringing, their testimony is affirmative evidence, tending to show that the bell was not rung, and that there was no light. Thus the facts in dispute depended upon the credibility of witnesses, or upon inference to be drawn from the circumstances proved, about which honest men might differ. It was, therefore, the duty of the trial court to submit the question of the defendant’s negligence to the jury. (Hackford v. N. Y. C. and H. R. R. R. Co., 53 N. Y., 654; Salter v. Utica and Black R. R. Co., 59 id., 631.) And in this view of the case the defendant’s counsel seems to have acquiesced at the trial, for although he moved for a nonsuit when the plaintiff rested, and also at the close of the testimony the motion was put solely upon the ground that the intestate was not shown to have been free from negligence. It was not suggested that there was no proof of defendant’s negligence. The evidence being conflicting, and there being some evidence to sustain the verdict as to the negligence of the defendant, the verdict would bo conclusive on that question, if the appeal were from the judgment alone. In the case of an appeal from a judgment entered on a verdict (unlike that of a judgment entered on the report of a referee or a decision of the court), the right of reviewing the facts is not conferred upon this court. (Code of Procedure, § 348; Code of Civil Procedure, § 1346; Godfrey v. Moser, 66 N. Y., 250.) But the appeal covers also the order denying the motion for a now trial made on the judge’s minutes.

A question that has sometimes been suggested of not a little practical consequence here arises, whether in a case of conflicting testimony a judge can entertain a motion made upon his minutes to set aside a verdict, on the ground that it is against the weight of evidence. By the Code of Civil Procedure (section 999), the cases in which a judge may entertain a motion on his minutes, to set aside a verdict and grant a new trial, are thus specified “upon exceptions ; or because the verdict is for excessive or insufficient damages; or otherwise contrary to the evidence or contrary to law.” The question depends upon the sense in which the words “ contrary to the evidence” are used. They are a substitue for the words “ insufficient evidence” employed in the Code of Procedure. (Code of Procedure, § 264; Throop’s note to section 999 of Code of Civil Procedure.) Doubtless they include the case of a verdict without any evidence to sustain it, and the ease of a verdict without sufficient evidence. In those cases the judge will ordinarily need no other examination of the evidence than his minutes will enable him to make, in order to determine the questions raised, but the doubt suggested is, whether the statute intends that questions as to the preponderance of conflicting testimony shall be disposed of in that summary way, thus making the remedy given by motion for a new trial on the minutes a substitute in all cases for a motion on a case upon the merits. (2 Whit. Pr. [2d cd.], 724; 3 Wait’s Pr., 423.) The correct view, probably, is that the statute leaves the matter to the discretion of the trial judge; but the power in question is to be cautiously exercised. (Algeo v. Duncan, 39 N. Y., 313.) But we are of the opinion that whenever a motion to set aside a verdict, on the ground that it is against the preponderance of evidence, has been heard and decided on the minutes of the judge, it is necessary that the case to be made for the purpose of review should state that it contains all the evidence bearing upon the question.

It does not appear, from the case before us, that it contains all the evidence relating to the question of the defendant’s negligence. On that ground, if there were no other, wo would bo justified in affirming the order denying the motion to set aside the verdict as against the evidence.

But assuming that all the evidence is before us, we are of the opinion that the verdict should not be set aside as against evidence. The case does not show any abuse committed by the jurors. In general, whenever, on a disputed question of fact, there is a conflict of testimony, the preponderance must be overwhelming to induce a court to disturb a verdict. (Morss v. Sherrill, 63 Barb., 21; Board of Comm’rs of Excise v. Backus, 29 How., 33 ; Holman v. Dord, 12 Barb., 336.) In reviewing the finding of a jury, and the evidence upon which it is based, there are certain cardinal rules which are not to be lost sight of. It is the right of the jury to decide as to the credibility of testimony to weigh the evidence and to draw inferences from it; the court are not authorized to set aside a verdict simply because, if they had been on the jury, they would have found a different verdict ; and it is not enough that the verdict may possibly be wrong, but the court should be satisfied that after giving a proper weight to all the evidence it cannot be right. (Gr. & Wat. on New Trials.) Tested by these rules, and having regard to the nature of the evidence in this case already adverted to, we cannot say that the verdict is against the weight of evidence, especially as it has been affirmed by the learned judge who presided at the trial, and had the opportunity of seeing and hearing the witnesses.

Another point taken by the appellants’ counsel is, that the motion for a nonsuit, the grounds for which have already been mentioned, was improperly denied, and also that the evidence was insufficient to warrant a finding that the deceased was free from negligence. In view of the testimony given on the part of the plaintiff, which has been already referred to, we think neither of these positions is well-founded.

Two exceptions were taken to the charge. - It is insisted that the judge erred in charging that it was the duty of the railroad company to have so much light upon the tender of the engine as to enable an ordinary person to see it, in the exercise of reasonable diligence. The appellant’s counsel concedes that the absence of a light was a material circumstance, to be considered by the jury in determining whether the engine was run with proper care. But if we understand his position, it is, that the charge subjected the defendant, while operating its trains, to the duty of warning persons crossing their track of the approach of such trams, by specific signals, or means other than those prescribed by statute, and is therefore within the condemnation of the ease of Beisiegel v. N. Y. C. R. R. Co. (40 N. Y., 9), the case of Grippen v. Same (id., 34), and others that might be cited. The part of the charge excepted to is to be read with its context. Just before that, the judge had told the jury that it was for them to say whether it was necessary, in order to perform the duty of the company to foot-passengers, that there should be a light upon the engine; and not only that, but whether, when the engine was backing, there should be a light upon the rear of it, and what kind of a light was required. As a whole, the charge on the subject of a light seems unexceptionable. The precaution pointed out by the judge was not one exclusively designed to give warning to travelers, like the posting of a fiagman at a street-crossing, but it had respect to the moving of the trains and the use of the road. (Weber v. N. Y. C. and H. R. R. R. Co., 58 N. Y., 451.) Besides, the evidence warranted the jury in finding that, owing to the darkness of the night, the engine could not be seen at the crossing unless it had a light upon it, and as it was the duty of the intestate to use his eyes, it would seem to follow that it was the correlative duty of the defendant to take reasonble precaution that the engine could bo seen. (See Maginnis v. N. Y. C. and H. R. R. R. Co., 52 N. Y., 215.)

An exception was taken to the charge, that it was the duty of the engineer operating the engine to keep á look-out for foot passengers while crossing the streets of the city. The appellant’s counsel insists that there is no rule of law requiring an engineer to look out for foot passengers. We cannot subscribe to the doctrine that persons operating an engine upon a railroad track are under no obligations to take clue care to avoid injuring others lawfully crossing such track. The degree of care required is governed by a regard for the' time, place and all other circumstances affecting the liability of third parties to receive injuries while in the exercise of reasonable care and prudence on their part. (Grippen v. N. Y. C. R. R. Co., 40 N. Y., 34; Johnson v. Hudson R. R. R. Co., 20 id., 65; as limited in Weber v. N. Y. C. and H. R. R. R. Co., 58 id., 451; Fero v. Buf. and St. Louis R. R. Co., 22 id., 209 ; Maginnis v. N. Y. C. and H. R. R. R. Co. [supra].) It cannot be doubted, but that it was the duty of the defendant's servant, when backing his engine across the street, to use his eyes, as far as he could reasonably, to avoid injuring persons traveling in the highway. Ho was not required to neglect his duty in respect to the management of the engine, and the rule of reasonable care above stated would not require him to do that. If it be suggested that the charge was not so qualified, the lack of such qualification was not pointed out at the time by exception or request to charge.

The judgment and order appealed from should be affirmed.

MulliN, P. J., and Talcott, J., concurred.

Judgment and order denying motion for now trial affirmed.