text:
    Benjamin Cowen, Appellant, v. The Onondaga Iron Company, Respondent.
   Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Augustus Frank and another, Trustees, etc., v. The Erie and Genesee Valley Railway Company and The Erie Railway Company.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the Rochester and Ontario Railway Company, Respondent, v. Henry Brinker, Appellant.
   Orders appealed from reversed, with ten dollars costs in one case and disbursements. The case of Rau (70 N. Y., 101), and the case of Mumford (MS. opinion of Haight, J.), followed.


text:
    Francis E. Cole, Appellant, v. Jay M. Cole, Respondent.
   Order appealed from affirmed.


text:
    Alvin Barry, as President, etc., Respondent, v. Orrin B. Crandall, Appellant.
   Order appealed from affirmed.


text:
    In the Matter of the Petition of Nathan D. Warren and others, as Drainage Commissioners, Appellants.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Thomas Rutherford, Respondent, v. Edwin Bliss and another, Appellants.
   Appeal dismissed, with ten dollars costs.


author: Barnard, P. J.:

text:
    MARIA MERRITT and Others, Respondents, v. THE VILLAGE OF PORTCHESTER and JOHN LEONARD, its Treasurer, Appellants.

      Assessment — power to determine the cost of the improvement — when conferred upon the hoard, of tc'ustees of a milage it cannot he delegated by such board to commissioners— irregulañties in proceedings to open a street will not defeat an assessment for grading it.

    Chapter 227 of 1877, as amended by chapter 277 of 1878, authorized the' board of trustees of the village of Portchester to cancel any illegal, unjust or irregular assessment, and provided that “ the said board of trustees shall thereupon proceed to ascertain and determine ihe actual cost and expense paid or incurred for such improvement, * * * and lawful interest thereon from the time when the same shall have been paid; * * * and thereupon and thereafter commissioners of estimate and assessment shall be appointed.” By these commissioners the assessments were to be made.

      Held, that the duty of determining the costs and expenses of the improvement was imposed upon the board of trustees, and that they could not delegate it to the commissioners.
    That the adoption by the board of trustees of the report of the commissioners, fixing the assessment, was not such an ascertainment and determination of the costs and expenses by the board as was required by the act.

      It seems, that irregularities and informalities in proceedings taken for the opening of a street cannot be set up to defeat an assessment subsequently imposed for the grading thereof.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.

      Tbe action was brought to restrain the defendant from making a •sale of the plaintiffs’ lots, and to set aside an assessment for the ■expense of grading Hassico avenue in the village of Portchester.
    Section 46 of chapter 227 of 1'877, as amended by chapter 277 of 1878, authorized the board of trustees of the village of Portchester to cancel and vacate any illegal, unjust or irregular assessment, and section 47 of the act of 1877, provided that “ the said board of trustees shall thereupon proceed to ascertain and determine the actual cost and expense paid or incurred for such improvement * * * an¿ lawful interest thereon from the time when the same shall have been paid * * * and thereupon and thereafter commissioners of estimate and assessment shall be appointed.” By these commissioners assessments were to be made.

      Edward Wells, for the appellant.

      Italph E. Prime and Cal/oin Frost, for the respondent.
   Barnard, P. J.:

The village of Portchester was incorporated by act of the legislature in 1875. (Chap. 245.) Hassico avenue was a road laid out under the general highway laws before the charter was passed. The village included this road when it was incorporated. The village trustees were made commissioners of highways within the limits of the village, with power to grade and otherwise improve its streets or roads. Proceedings were taken by the village under its ■charter to grade this street. The opening of the street was no part of the work proposed. The village formed the street and attempted to work it. The evidence shows some informalities in the proceedings to open the street, but no one interested objected to its being opened, and the plaintiffs received their damages for the land taken from them. It would not probably be in the power of those objecting to the proceedings taken by the village, to question collaterally the proceedings taken by the overseers of highways before defendant -was incorporated. The opening was submitted to and it thus became a highway. The question is not material, because the proceedings to work the road and to impose an assessment for the work upon parties benefited thereby, must be strictly followed to make such assessment a lien. These proceedings were irregular and illegal, and the assessment against the plaintiffs was declared void by the Court of Appeals. The legislature, by chapter 227, Laws of 1877, amended the charter so that an assessment irregularly made and set aside could be reassessed upon the lands benefited, by new proceedings. This amendment had no retroactive effect, and the legislature again amended the charter by chapter 277, Laws of 1878. By this amendment the village trustees hal th'e power to reassess this assessment, when any such original assessment proceedings shall have been previously set aside for “ any irregularity or defect.” The first requisite to such reassessment was that “ the said board of trustees shall thereupon proceed to ascertain and determine, the actual cost and expense paid or incurred for such improvement, including engineers, surveyors and counsel fees, and lawful interest thereon from the time when the same shall Lave been paid.” This was never done. The assessment against the plaintiff, under the original proceedings, was set aside on the 26th of November, 1877. In October, 1878, the trustees, by resolution, appointed three commissioners “ to estimate and assess the expenses of grading of the said Hassico avenue as authorized and directed by resolution of said trustees, passed September 21, 1873, to be done.” When a power of taxation is delegated to village trustees, it cannot be by the trustees delegated to commissioners. The ascertainment and determination as to the actual costs and expenses was to be made by the trustees. The commissioners alone fixed the amount which they assessed. The adoption of their report by the trustees was not an ascertainment and determination of the actual costs of the work. The trustees were bound to fix a specified sum, and the commissioners were to apportion -that upon the lands within the district of assessment. Instead of pursuing this course the commissioners fixed the amount of the tax based upon what they say is the cost and the trustees approve. This course of procedure was entirely irregular, and the assessment attempted to be imposed thereby failed to be a lien upon the lands of the plaintiffs. The judgment should therefore be affirmed, with costs.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs..


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    WILLIAM LAYTIN and Others, Trustees, Appellants, v. ELLEN LOUISA DAVIDSON and Others, Respondents.

      Commissions — when executor's who act as trustees are entitled to receive them in each capacity.

    The plaintiff’s testator after making certain bequests and devises gave and bequeathed all his property, both real and personal, to his executors, to have and hold the same in trust to make certain payments specified in the will and to divide the residue of his estate into five equal parts, and hold one part in trust for each of the testator’s five children and apply the income thereof to its use during the life of such child, and upon its death to pay and distribute the principal as therein provided. After his death the accounts of the executors were presented to and settled by the surrogate, the decree directing that the residue of the estate should beheld by the “said executors as trustees ” under the will.
    Upon a subsequent accounting by them upon the death of one of the beneficiaries:

      Held, that they were entitled to commissions as trustees upon the principal of the trust fund, although they had already received commissions thereon as executors.
    Appeal by tlie trastees under the last will and testament of William Laytin, deceased, from a determination of the surrogate' of Westchester county, made upon a judicial settlement of the accounts of such trustees in said Surrogate’s Court, that said trustees are not entitled as such to commissions upon the capital or body of ' the estate.
    • William Laytin died on or about November 21, 1874, leaving a last will and testament and codicils thereto, which were duly proved before the surrogate of Westchester county, and letters testamentary thereon duly granted to William Laytin, Abby E. Laytin, Samuel M. Meeker and John Gr. Jenkins, the above named appellants, on or about December 16, 1874, and they duly qualified and acted as such executors until their final accounting as executors in 1877.
    The testator, after making some provisions immaterial to the matter in controversy here, devised and bequeathed unto “ my executors hereinafter named, and to the survivors and survivor of them,” all his estate, real or personal, to have and to hold the same upon the following express trusts (after paying therefrom the debts and legacies and the expenses of a suitable family monument), viz.: To divide the same into five equal parts or shares and to receive the rents, income and profits of one of such equal fifth parts or shares and apply the same to the use of each of the testator’s five children, and upon the death of any such life beneficiaries to pay and distribute the principal of the share held in trust for his or her benefit to and among all the grandchildren of the testator, the issue of any deceased grandchild to represent and take the deceased parent’s share; and with the further provision and upon the further trust, if any of such grandchildren should be minors, to invest the share of such minor grandchild and apply the income thereof to the use of its owner during minority and pay and deliver the principal upon its owner attaining twenty-one years.
    In February, 1877, the said executors rendered their final account as executors of such will before said surrogate, and on March 7,1877, a decree was duly made finally settling, adjusting and allowing their accounts as executors, and giving them' as executors their lawful full commissions on the capital or body of the estate, which decree thereupon lastly provided: “ It is further ordered, adjudged and decreed, that said executors as trustees under the last will and testament of said "William Laytin, deceased, retain the sum of two thousand four hundred and twenty-nine dollars and fifty-one cents, being-the balance of cash remaining in their hands, and also the several investments and securities set forth in said account, which, together with such cash, constitute the capital of such estate, to be held by said executors as trustees under said last will and testament, and amount together to the sum of one million four hundred and thirty thousand dollars and thirty-eight one-hundredth cents.”
    On July 29,1881, one of the children of testator died. By reason of her death, which, by the terms of above recited trusts, rendered necessary the distribution among the grandchildren of testator of the one-fifth share or part of the capital of the estate held in trust for her, said Maria Bieard’s benefit, the- trustees applied to the Surrogate’s Court of "Westchester county for a judicial settlement of their accounts as trustees, and such proceedings were thereupon duly had that on May 10, 1882, a decree was made whereby the accounts of the said trustees, as trustees, were judicially settled and allowed.
    The trustees on this accounting sought to have the surrogate decide that they were entitled as such trustees to half commissions on the entire capital which came into their hands as trustees, and half commissions on the one-fifth share of capital which had been held in trust for the benefit of said Maria Ricard, which upon her decease was to be distributed and paid over by them to the grandchildren as aforesaid. The surrogate decided that such trustees were not entitled to commissions on the capital or body of the estate. This case is reported below in 5 Redfield’s Reports, page 450.

      Albert G. McDonald, for the appellants.

      Morgan J. CP Brien, for the respondents.'
   Barnard, P. J.:

It is not easy to accurately define when the duties of an executor end and those of a trustee begin. In a certain sense executors are trustees. They are to receive the estate and pay it out to creditors, legatees and persons entitled. Ordinarily their duties as executors end in a short time. If the payments are to be made at once when the parties are entitled to distribution, the case is clear that there is no such trust as calls for the payment of other commissions than those of executors. In the present case the executors are directed to retain, substantially, the entire estate in trust, to pay an annuity of $7,000 to the widow of testator, and to pay the income of one-fifth of the estate to each of five children of testator during their respective lives, and at their death to divide the share among their children, with a possible future trust during minority to such grandchildren as might be under age at the death of their parent.

By the terms of the will, the executors were directed to reinvest, when the testator’s securities should' be paid off, in securities upon land. This is no reason why their duties should be held to be those of an executor. The rule is, compensation is right both to executors and trustees, when the duties are performed by the same persons, if the executorship has ended and the trust commenced. The testator has provided that at the close of the executorship there shall be created five separate trusts, which shall last for five separate lives. The trustees are to sell land and invest and reinvest the trust funds. The fees as executors were earned when the estate was handed over by the executors to the trustees for these trusts. • The fund was separated by the decree of the surrogate. The executors were directed to retain the balance of the estate at the final accounting, after payments authorized “to be held by said executors as trustees under said last will and testament.” Such a decree was stated by the Court of Appeals to be most satisfactory evidence of the relation of the party to the fund. (Hurlburt v. Durant, 88 N. Y., 121.)

If the decree has not a conclusive effect, the facts make out. an undoubted trust as separate from that imposed upon an executor. If a testator give without restriction, and the executor pay at the final settlement of the estate, having no title beyond that attached to the office, there is no trust. If a testator convey a title to a sum of money to the executors to invest and reinvest for the benefit of another during his life, there is an additional duty as trustee, separate from executor, imposed upon him, and should be paid for as trustees are paid. There would scarcely be a question made if the will had provided that at the settlement the executor shall pay over the .five trust funds to persons other than the executors. The executors are trustees after the decree, and are to furnish care and skill and to be subjected to severe rules of responsibility in the management of the trust fund, and they ought to be paid accordingly.

Order of surrogate modified so as to declare the executors entitled to commissions as trustees, in addition to fees as executors as such.

Dykman and Pratt, JJ., concurred.

The part of the decree of surrogate appealed from modified so as to declare the executors entitled to commissions as trustees in addition to fees as executors.


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    In the Matter of EMILY P. WOOLSEY and Others in Relation to the Opening, Widening and Improvement of Flushing Avenue in Long Island City.

      Constitution, art. 3, sec. 18 — A local bill providing for the widening of a street in a city is void —1878, chap. 410; 1880, chap. 318; 1881, chap. 326.
    Chapter 410 of 1878, as modified by chapter 318 of 1880, and chapter 326 of 1881, appointing commissioners to widen Flushing avenue, in Long Island City, to the full width of eighty feet from Van Olst avenue to the east bounds of the city, is a violation of section 18 of article 3 of the Constitution, prohibiting the legislature from passing local bills for the laying out, opening, altering, working or discontinuing of roads, highways or alleys, and is for that reason void.
    Appeal from an order made at a Special Term, denying a motion to vacate an order appointing commissioners of estimate and assessment, and from an order confirming their report.

      Frank F. Blackwell, of counsel for the applicants, appellants.

      J. Balph Ba/rnett, for the commissioners, respondents.
   Barnard, P. J.:

By chapter 461, Laws of 1871, the legislature revised the charter of Long Island City. A uniform system of street openings was established by the charter, and the highways thereof were put under the common council as commissioners of highways exclusively. In 1878, by chapter 410 of the laws of that year, the legislature appointed commissioners to widen Flushing avenue to the uniform width of sixty-five feet. For the purpose of the act these commissioners were clothed with the power given by the charter to the common council. By chapter 318, Laws of 1880, the powers of the commissioners were increased, and fhe work to be done. By chapter 326 of Laws of 1881, the scope of the work was again enlarged and the commissioners were authorized to issue certificates to the amount of $150,000, and the avenue or street was to be widened to the full width of eighty feet from Yan- Olst avenue to the east bounds of the city.

By section 18 of article 3 of the Constitution it is provided that, The legislature shall not pass a private or local bill * * * * laying out, opening, altering, working or discontinuing roads, highways or alleys.” ■ '

The question presented is whether the acts in relation to Flushing avenue are repugnant to the Constitution. The bill is a local bill. It refers to a single highway in a specified city. It relates to a particular street of a class in one place. (Matter of N. Y. Elevated R. R. Co., 3 Abb. N. C., 401.)

The provision of the Constitution in question was designed to prevent any interference with the general highway system of the State, or with the keeping of the ordinary highways and public roads in repair under that system and the supervision of the officers designated, and in the use of the means and the labor provided by law.” (People v. Banks, 67 N. Y., 568.)

This language is so clear and explicit that there can be no doubt, unless it be held that the term roads, highways and alleys,” do not include city streets. In the case of The People v. Banks (67 N. Y., 568), the Court of Appeals held that a transfer of a turnpike to park commissioners by legislative permission, was constitutional under this section; that the act did not alter, open or work a highway. The general law did not reach the case, and therefore the turnpike might be graded, paved, sewered and ornamented- by legislative authority. The present case is very different; here the street is to be widened as a street or public avenue, and the general laws do not cover such a case. The city could open the same under its power, except that by the legislative act a consent upon the part of land owners is dispensed with. ' In. other cases a majority of the local feet is required; in this case the will of the legislature is sub-stituted. (Chap. 461, Laws of 1871, tit. 3 ; chap. 2, §§ 1, 2.) That city streets are included in the language “ roads, highways and alleys,” is evident from the city charter itself. The common council is now commissioners of highways in and for said city.” A highway is differently known in the law of the State, it includes all public thoroughfares ; it includes streets and alleys and roads; it has no restriction to place; it may be of any width.

The case to which we are cited (Matter of Lexington Avenue, 29 Hun, 303) is not like the present case. There the legislature directed the city officers to open an avenue. The avenue was opened under tbe law applicable to all other avenues and by tbe proper officers, wbo were charged by tbe charter of tbe city with that duty.

The constitutional provision was designed for cases similar to this. Before the passage of tbe amendment in 1814, it was a common thing for tbe legislature to open boulevards, avenues and public roads, some in cities, some in the country and some extending from city to country. Tbe method pursued in tbe present act was tbe method then generally pursued. It became a great burden to the taxpayer and land owner, and hence this amendment. If it only is to be deemed to apply to tbe country districts of tbe State, it will only reach where the injury was infrequent and insignificant. Tbe cities furnish tbe greatest temptation for these commissions, which can take land without the consent of the owner, as under the general law it would not be right to do.

I think the order confirming the report should be set aside, with costs and disbursements.

Dykman and Pratt, J.L, concurred.

Order confirming report of commissioners vacated, with costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CHARLES H. WEED, Appellant.

      Bvidence — advice, that a paper signed by a husband and wife in legal effect constitutes a divorce, is no defense to am. indictment for bigamy.

    Upon the trial of the defendant for bigamy it was shown that prior to the second marriage he and his wife had signed articles, under seal, in Connecticut, providing that if either party should apply for a divorce, the other party would not oppose the application and would not appear against the petitioning party. He was then asked by his counsel whether the justice of the peace in Connecticut, who witnessed the paper, did not tell him that it was in legal effect a divorce.

      Held, that the court properly refused to allow the question to be put
    Appeal from a judgment of the Court of Sessions of Westchester county, convicting the defendant of bigamy.

      Francis Larkin, for the appellant.

      Nelson H. Baker, district-attorney, for the people.
   Barnard, P. J.:

The prisoner was indicted for bigamy. The offense was clearly proven. The prisoner married one Louisa Bryson, in Westchester county in this State, in 1875, and he again married one Carrie Megol in May, 1881, in Westchester county. Louisa Bryson was at the date of the second marriage and is yet living. It was proven upon the trial that, before the second marriage, the prisoner and his wife signed articles under seal, in Connecticut, that if either party should apply for a divorce the other would not oppose the application and would not appear against the petitioning party. A question was put by the prisoner’s counsel to him whether the justice of the peace in Connecticut, who witnessed the paper, did not tell him that the paper was in legal effect a divorce. The same question was put to another witness to the paper. These questions were overruled and an exception taken to the decision. This presents the only question in the case. We think it was not an erroneous ruling. The general rule is that all are presumed to know the law, and that ignorance of, the law excuses no one from crime. The particular crime alleged was fully made out. The two marriages were understandingly entered into by the prisoner, with full knowledge of the facts which, by statute, establishes the offense. The prisoner, when he married the second time, knew that his first wife was still living. Neither the deputy sheriff who drew the paper nor the justice who read it over could destroy the effect of an intentional violation of a statute, by advice that such violation could be lawfully done.

The conviction should therefore be affirmed.

Dtkman and Pratt, JJ., concurred.

Conviction affirmed.


text:
    SARAH M. NOLAND, Appellant, v. THOMAS H. NOLAND, Respondent.

      Practice — when a dwection to pay money will not he enforced by attachment— Code of Civil Procedure, sec. 1241.
    Section 1241 of' the Code of Civil Procedure, providing that a judgment may be enforced by attachment when it requires “the payment of money into court, or to an officer of the court,” is not imperative, but discretionary, and the court will not grant an attachment to collect costs or alimony in divorce cases, when the party is unable to comply with the requirements of the judgment.

      It seems, that this section only applies where the judgment requires a deposit or payment of money, other than the costs given by a final judgment, to a party or his attorney.
    Appeal from an order made at a Special Term, denying a motion to punish the defendant for a contempt in refusing to pay to the plaintiff’s attorney her costs of the within action.
    In November, 1881, the plaintiff commenced this action against the defendant for a separation from bed and board, on the ground of«*the cruelty of defendant. Thereafter a decree was entered awarding to the plaintiff • the relief sought and contended for. In this decree the plaintiff’s costs having been taxed and having been allowed by the court at the sum of ninety-three dollars and fifty-six cents, were directed to be paid by the defendant to the plaintiff’s attorney within ten days after a demand therefor. This demand was subsequently made and a refusal given.

      George E. Hyatt, for the appellant.

      John, H. Kerhble, for the respondent.
   Barnard, P. J.:

Section 1241 of the Code does not provide for this case. Section 1240 defines the cases where the enforcement of a judgment may be by execution. Section "1241 enacts that a judgment may be enforced by attachment when the judgment requires “ the payment of money into court or to an officer of the court.” The judgment in this case is final 'and it directs the payment of the Oosts to the attorney. The attorney is an officer of the court, and therefore an attachment is asked. The judgment is informal. It should have given costs to the party. The attorney represents, the party but he has no individual standing in the judgment. The rule sought to be applied in this case would authorize an attachment for costs in all judgments. The section is, it seems to me, designed to cover' those cases where the judgment requires a deposit or payment of money other than costs given by a final judgment to the party or to his attorney, even if this is not the true construction, the order should be affirmed. The plaintiff has issued an execution and has failed to collect the same. The right to an attachment in any ease under this section 1241, is not imperative but discretionary. (Cochrane’s Exr., v. Ingersoll, 73 N. Y., 613.) "We have repeatedly held that an attachment would not be granted to collect costs or alimony in divorce cases when the party is unable to comply with the demand. Imprisonment and consequent disgrace should not be put upon a person who is too poor to pay.

Order affirmed, with costs and disbursements.

Hykman and Pratt, JJ., concurred.

Order refusing to commit defendant for contempt affirmed, with costs and disbursements.


author: Barnard, P. J.: Dykhan, J.,

text:
    JOHN GANNON, Appellant, v. THE UNION FERRY COMPANY, Respondent.

      Contributory negligence —when the question is one for the jury to decide.

    This action was brought to recover damages for injuries sustained by the plaintiff while being transported by the defendant as a passenger on its ferry-boat from New York to Brooklyn. The boat was so managed as to strike against the landing bridge with such force that the plaintiff was thrown down and his leg crushed between the boat and the bridge. At the timeiof the accident he was standing in front of the chain, leaning against the post to which it was fastened. ■ Other passengers were standing in front of the chain at the same time.

      Held, that the question of negligence should have been submitted to the jury, and that the court erred in directing a nonsuit.
    Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed at the circuit.

      James W. Bidgwa/y, for tlie appellant.

      B. D. Sittiman, for the respondent.
   Barnard, P. J.:

There was proof given tending to show that the plaintiff was injured by reason of the neglect of the defendant. The Union Perry Company is a corporation which transports passengers between New York and Brooklyn. The plaintiff, on the fifth of July last, was a passenger on one of the defendant’s boats from New York to Brooklyn. The boat was so managed that it came against the bridge, to which the boat is fastened, with such force that the plaintiff was thrown down by the shock and his leg was crushed between the boat and the bridge. It appeared that the plaintiff, at the time of the collision, was standing in front of the chain, leaning on the post to which the chain was fastened. There were other-passengers standing in front of the chain at the time of the accident besides plaintiff. The proof of negligence upon the part of the plaintiff was sufficient to carry the case to the jury. The defendant was bound to carry the passenger safely, and, to that end, to furnish good, sound boats and careful management of the same. "When the boat is driven so hard against the land as to throw the passenger off his feet, and between the boat and landing place, it is for the jury to say whether the defendant did its duty on the occasion. The judge erred in nonsuiting the plaintiff upon the ground that his negligence contributed to the accident. As a general rule, the question of contributory negligence is for the jury. It is only under extraordinary circumstances that this question is one of law. The only fact to justify the nonsuit is that the plaintiff was before the chain. That is not a place of danger peculiarly if the boat is well managed. The fact that the boat was approaching the land swiftly is not of extreme moment, considering the skill and caution with which these boats are uniformly managed, and with what nicety of calculation the speed is proportioned to the needs of the occasion, and how soon the motion is reversed. Bassengers commonly stand in front of the chains as the landing is approached. It was for the jury to say, under the general rule applicable to such cases, whether there was negligence upon defendant’s part that caused the accident, and, also, whether the plaintiffs negligence contributed to the injury he received.

The judgment should be reversed and new trial granted, costs to abide event.

Pratt, J., concurred;

Dykhan, J.,

concurred1 in the result, on the ground, that the case was a proper one for the jury.

Judgment reversed and new trial granted, costs to abide event.


text:
    ALONZO ALFORD v. HENRY BERKELE and Others. DAVID THORNTON, Receiver, Respondent. WINCHESTER REPEATING ARMS COMPANY, a Judgment Creditor, Appellant.
    Beceiver— of a firm, may be appointed without notice to a non-resident partner.

    In an action brought by one partner, against his copartners, to procure a dissolution of the partnership, the court may upon the application of the plaintiff and the appearance of the resident partners, appoint a receiver of the firm assets, without notice to one of the defendant partners, who is a non-resident. Section 713 of the Code of Civil Procedure does not apply to such cases.
    Appeal from au order made at a Special Term denying a motion of the Winchester Repeating Arms Company to vacate and set aside the appointment of David Thornton, as receiver of the firm of Alford, Ward, Davenport & Co.
    The motion was made on the ground that the receiver was appointed without notice to defendant Ward, and on the ground of an alleged non-compliance with section 713 of the Code of Civil Procedure.

      George 8. Hastings, for the appellant.

      Sidney 8. Harris, for the respondent.
   Barnard, P. J.:

We are of the opinion that section 713 of the Code is not applicable to this case. The plaintiff and defendants are partners. The partnership has no fixed term to run, but may be terminated at the will of the parties. They disagreed and cannot harmoniously settle up the business. The partnership owes debts, and the plaintiff has a greater interest in the partnership, by reason of putting in a larger portion of the capital, than the other members of the firm. The complaint stated that the defendant Wild was a non-resident of the State, and kept away to embarrass the business by his neglect. The plaintiff applied for a 'receiver. The defendants, other than Wild, appeared by counsel and opposed. A receiver was appointed without notice to Wild. If the case is not under section 713, Code, the objection that Wild was not served, is not good. It was always the rule of the Court of Chancery to appoint a receiver in like cases without notice to a non-resident partner. (People v. Norton, 1 Paige, 17; Verplanck v. Mercantile Ins. Co., 2 id., 438; Bloodgood v. Clark, 4 id., 574.)

. There was then, and there is now, no way to serve a notice of motion out of the State. Section 713, Code, provides for eases in addition to cases specially provided by law.- Section 1947, Code, specially gives power to the court to appoint a receiver in cases of partnership.

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

Dykman and Pratt, JJ., concurred.

Order refusing to vacate order appointing a receiver affirmed, with costs and disbursements.


author: "Barnard, P. J.:

text:
    LEONARD A. MERRITT, Plaintiff, v. MAURICE FITZGIBBONS and Others, Defendants.

      Negligence — when it is a question for the jury — liability, where two causes tend to produce the injun'y.

    There is not sufficient room between the curb line of Crosby street, in the city of New York in front of the defendants’ place of business, and a railroad track laid in the said street to enable a team to stand there without stopping the cars. To obviate this difficulty, the defendants were accustomed to have' their teams driven partly upon the sidewalk, thereby reducing the space for foot passengers to about two feet. The plaintiff, while passing with his brother, in single file, along this narrow way, slipped upon the cover of a coal-hole, fell under the horses feet, and was stepped upon by one of them, whereby his leg was broken. The horses were not tied, but they did not become frightened or start. The coal-hole was not in front of the defendants’ premises but of an adjoining house. It was snowing at the time of the accident, the ground being covered to nearly an inch in depth.

      Held, that the court erred in refusing to submit the question of the defendants’ negligence to the jury and in non-suiting the plaintiff.
    When two causes contribute to produce an injury upon a highway, both of which are in their nature proximate, the one being a neglect to keep the highway unobstructed, and the other some occurrence for which neither party is responsible, there exists a liability on account of the defect if the injury would not have been sustained but for it.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the circuit.

      P. Q, Eckerson, for the appellant.

      H. Sheldon, for the respondents.
   "Barnard, P. J.:

In considering this appeal we must assume that the defendants were guilty of negligence in having their horses standing upon the sidewalk. There is no other fact fairly in dispute; and as to this the plaintiff would have been entitled to go to the jury as there is no proof of any contributory negligence upon his part. The case is one arising upon these facts.

The plaintiff was walking along Crosby street, in the city of New York, about midday. The sidewalk is narrow and the street also. ■ There is a railroad track in the street. There is not sufficient room for the truck and team to stand outside of the curb without stopping the street cars. To obviate this, defendant was accustomed to drive partly on the sidewalk; this reduced the foot-way for travelers to about two feet. The plaintiff and his brother passed along this narrow way in single file, and when the plaintiff was opposite the horses heads he slipped upon a coal cover over a coal-hole under the sidewalk, fell under the horses feet, touched the horse’s foot, the horse lifted up his foot thereupon and in putting it down again broke the plaintiff’s leg. The horses were not tied, but did not become frightened or start. The coal-hole was not in front of the premises occupied by defendants, and was not an obstruction chargeable to defendants. It is not proven that the cover was unsafe or that it was improperly made or fastened. It did not give way. It was snowing at the time and there was nearly an inch on the ground. The plaintiff was improperly nonsuited. The defendants were not liable for the coal covers. The same was not in front of their premises; was not put in by them and was not used by them. They were under no obligation to keep the snow from collecting in the street (Wenzlick v. McCotter, 87 N. Y., 122), that was the duty of the city, but in the present case there could be no averment of negligence in that respect against either the city or the owner of the property. The case must therefore be considered solely without reference to this coal cover as a proximate cause of the accident. Unless the defendants are liable without imputing responsibility to them on account of the coal cover, they are not liable at all. It must be assumed on this appeal that the plaintiff was free from fault which contributed to the injury. Under the facts proven, his contributory negligence was a question for the jury. The case then is this : A person walking carefully along a street, without fault, accidentally falls upon the sidewalk. By reason of the defendants having put their horses and truck upon the sidewalk the plaintiff fell under the horses feet, and the horses stepped upon him and broke his leg. When several proximate causes contribute to an accident, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause unless without its operation the accident would not have happened. (Ring v. City of Cohoes, 77 N. Y., 83.)

It is for the jury to say whether or not the accident would have happened but for the negligence of the defendants. If they so say then the plaintiff is entitled to recover. When two causes contribute to produce an injury upon a highway, both of which are in their nature proximate, the one being a neglect to keep the highway unobstructed, and the other some occurrence for which neither party is responsible, there is a liability on account of the defect if the injury would not have been sustained but for it.

The exception should be sustained. Nonsuit set aside and new trial granted, costs to abide event.

Pratt, J., concurred; Dykman, J., dissented.

Exceptions sustained and new trial granted, costs to abidfe event.


author:
Pabnard, P. J. :
      Pbatt, J. :

text:
    JOHN GOTTLEIB, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — failure of the master to fwrnish his servant with safe machinery — when a railroad is liable for failing to have proper bumpers put on freight cars, belonging to another company, but drawn upon its road.

    On a dark night, when snow was on the ground, the plaintiff, a brakeman in the employ of the defendant, was sent to couple together two oars in a freight train which had broken apart. The defendant had three rails laid to enable it to run broad and narrow guage cars in the same train. Freight cars usually have upon their ends pieces of wood, called bumpers, extending six or eight inches beyond the car, so that if the draw-heads pass each other, the shock is received by the buffers, and a brakeman if he be between the cars will be uninjured. One of the cars which the plaintiff was to couple, was a broad guage and the other a narrow guage car. The buffers only extended three inches beyond the car. These ears belonged to another company and not to the defendant. The draw-heads passed each other and the plaintiff was injured.

      Held, that the question of the defendant’s negligence in failing to have proper bumpers upon the cars used by it, was properly submitted to the jury, and that a verdict in favor of the plaintiff would not be disturbed.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for personal injuries received by the plaintiff on the 6th day of February, 1879, while in the discharge of his duties as a brakeman on a freight train of the defendant.
    The plaintiff, as rear brakeman on a freight train running over the road of the defendant, from Susquehanna to Port Jervis, on the night of the injury, was called upon to couple the train together, which was then separated or broken in two: • The night was dark and there was snow on the ground. In order to make the coupling the plaintiff was obliged to, and did, take with him for the purpose of making the coupling a three-link coupling chain (weighing sixteen or eighteen pounds), a lantern and a coupling pin.
    That'plaintiff inserted one of the three links in the draw-head of the car of the forward part of the train, which was moving backward, and with the three-link in his hand to connect it with the ■other carón the rear part of, the train, which was standing still, walked back with the three-link, the lamp and coupling pin in his hands.
    The forward car was a broad gauge and the rear one a narrow gauge car. The cars came together and the plaintiff was caught between the bodies of the cars and injured.

      Lewis E. Garr, for the appellant.

      T.J. & J. W. Lyon, for the respondent.
   Pabnard, P. J. :

It is difficult to obtain a rule to apply to cases of this character. The liability of a master is clearly stated. The master owes a duty to the employe to furnish safe machinery, tools and appliances adapted to the work to be done, together with capable fellow servants. (Laning v. N. Y. Central R. R. Co., 49 N. Y., 523; Flike v. Boston and Albany R. R., 53 id., 549.)

There is another class of cases which hold that a master is not bound to furnish the best machinery, tools and appliances, or the .safest, but that the master has a wide discretion in doing his business with such tools and appliances as he deems best, and that an employe assumes the risks and dangers incident to the business. (De Graff v. N. Y. Central, etc., 76 N. Y., 125; Gibson v. Erie R. R. Co., 63 id., 449.) There are other cases holding that the servant 'is chargeable with negligence against known defects by continuing-in the master’s employment, and again, cases holding that a servant is chargeable with notice of defects which he might have known, although he was in fact ignorant of their existence.

In the present case the evidence shows that the plaintiff was employed as a brakeman and oilman upon the defendant’s road. That the gauge of the road was originally six feet; that another rail has been laid down to make the gauge conform to the ordinary railroad gauge of the country ; that narrow gauge and wide gauge ears are hauled indiscriminately on the same train. That upon the ■occasion of the accident in question a freight train broke in two parts; that the brake was between a wide and-narro w-guage car; that the plaintiff was told to couple the two cars and thereby connect the train; that in doing so, in the- very early morning, he was jammed between the two cars and permanently injured. The ears, probably by reason of the difference in gauge, did not strike fair and cover up the draw-heads. The draw-heads passed each other and the ears went violently together. The ends of the cars had pieces of wood, or, as they are called, bumpers, not over three and one-half inches in thickness, so that there was only six inches or thereabouts to protect the plaintiff from injury. The negligence in this case is based solely upon the insufficiency of these bumpers. Upon the whole ease, I think it was improper to nonsuit the plaintiff.

It appears from the evidence that the cars belonged to.other roads than the defendant, but the defendant owes the same duty to its employes in respect to freight cars that it uses as it does as to its own. It appears that these cars are all under the charge of the defendant’s master mechanics. That they are all repaired under the same rules and regulations as govern the repairs of defendant’s cars. It appears that the ordinary car is provided with bumpers, from five and one-half to six inches on each end of the same, “ thick enough to protect a man’s body in case the draw-heads pass.” It further appears that the night was dark; that the ground was covered with a deep snow; that the plaintiff acted with proper care himself and made the effort to connect the cars in the usual way; that the accident was not occasioned by his negligence, but was occasioned by the difference in gauge of the cars, aided, it may be, by a curve in the track. It further appears that the cars were very numerous running over the road, and that plaintiff did not know of the particular defect in the bumpers until the instant of the accident. The plaintiff cannot be expected to know of the defect in a single car. The defendant was chargeable with neglect if the master mechanics and foreman failed to discover and remedy defects, if any existed. At all events, such question was one for the jury. (Court of Appeals, Kain v. Smith, N. Y. Week. Dig., Oct. 6, 1882, vol. 15, p. 160.)

The judgment should be affirmed, with costs.

Cullen, J., concurred.

Pbatt, J. :

The principle is well settled that a railroad company owes to its employes a duty of providing and maintaining its operative machinery in good, safe and suitable condition, so as to protect them against danger so far as reasonable care can do it, and any failure in that respect is negligence of the corporation itself.-

Among the appliances necessary for the protection of brakemen are the buffers of freight cars. If well made and strong, the brakeman’s duties are comparatively safe; if defective, his work is highly dangerous.

In the case at bar, instead of the buffers ordinarily used, thin strips of wood about three inches wide, wholly unfit to protect the brakemen, were nailed upon the ends of the cars. Any inspection would have disclosed the defect.

Defendants argue that the brakemen had full opportunity to discover the defect and to refuse to perform the service. But to examine the cars for such a defect was no part of the brakeman’s duty. (Porter v. Hannibal, etc., 60 Mo., 160.) He had a right to assume that so far as inspection would disclose the cars were in good condition. "While in the act of coupling he discovered the defect, too late to save himself from injury.

That the plaintiff when ordered to couple the cars at five o’clock in the morning, loaded down with his lantern and a three-link chain weighing sixteen or eighteen pounds, oil a slippery road-bed, the train in motion, should fail to examine the cars to see if they were in good condition, is no evidence of negligence. Manifestly his whole attention was required for his proper duty, of which such an examination was not a part.

That the cars were property of other lines' is not material; they were supplied to this train by the act of the defendants, and for any defect which inspection would disclose the defendants are responsible.

The appellants assumed, that if plaintiff was aware of the defect in the cars, he cannot recover in this action; that if he continued in the employ of the company he waived all claim to recover for any injury thereby occasioned.

Such is not the law. Knowing of such defect his duty was to report it to his superior. He had a right to assume that upon the defect being made known it would be remedied; meanwhile the train was upon tlie track, it could not remain there, it must be removed, and the train hands were the persons to do it.

To hold that by performing that duty in the service and for the benefit of their employers, they lose all redress for injury sustained in the performance of such duty, would do violence to reason. If it finally became apparent that the company refused to repair defects, and that the employes must leave the service or continue exposed to peril, then, and not before, he would be put to his election how long he should abide in the service under such notice; and wuat facts would be held equivalent to notice must be a question for a jury in each case as it arises. • To enforce a stricter rule would be unjust to the employes and detrimental to the interest the master. To encourage the train hands to promptly abandon service on the disóovery of a defect, would imperil the whole traveling public and go far to render railroad traffic impracticable.

The judgment and order denying a new trial should be affirmed, with costs.

Judgment and order denying new trial affirmed, with costs.


author: Dtkman, J.:

text:
    CHARLES W. COOKE, an Infant, etc., Respondent, v. THE LALANCE GROJEAN MANUFACTURING COMPANY, Appellant.

      Mcaminaiion before trial — the court cannot compel the defendant, who asks to examine the plaintiff, to allow the attorney for the plaintiff to examine a machine upon which plaintiff was injured.

    In this action, brought by the plaintiff to recover damages for injuries sustained by him while working upon a machine, as an employe of th® defendant, the latter procured an order for the examination of the plaintiff before trial. Upon an affidavit made by the plaintiff’s attorney, stating, among other things, that he could not cross-examine his client on the examination before trial, or comprehend such examination, without a previous inspection of the machine, an order was made directing the defendant to allow the plaintiff’s attorney to inspect the machine, and staying the examination of the plaintiff until his attorney should he allowed to make such inspection.

      Held, that the court had no power to make the order.
    Appeal from an order made at a Special ■ Term, staying the examination of the plaintiff as a party before trial, pursuant to an order made herein' December 27, 1882, and providing, as a condition precedent, “ that the defendant allow the plaintiff’s attorney to inspect the machine on which the plaintiff was working when injured, as alleged in the complaint, before any examination of the plaintiff is had.”
    This is an action for damages for injuries alleged to have been received by the plaintiff from a machine belonging to the defendant, while said plaintiff was in the employ of this defendant, and working upon said machine.
    After an order for the examination of the plaintiff had been made, the plaintiff’s attorney procured an order from this court, at Special Term, requiring the defendant to allow the plaintiff’s attorney to inspect the machine on which the plaintiff was working when injured, as alleged in the complaint, before any examination of the plaintiff is had, and staying the examination of the plaintiff until the plaintiff should be allowed to examine said machine.
    In his affidavit the plaintiff’s attorney alleged, among other things, that when the order for the examination of the plaintiff was made “ he immediately went to the defendant’s attorneys and asked the privilege of inspecting the machinery upon which plaintiff was injured, previous to the examination of said plaintiff. The defendant’s attorneys, after considering the matter a few days, declined to permit deponent such inspection, but promised to do so after the examination.”
    “Plaintiff is but fifteen years old, and deponent cannot derive from him an accurate idea of the machine on which he was hurt, and this deponent will be entirely unable to' comprehend the examination of the plaintiff unless he is permitted to see the machine previous thereto.
    “He will be placed at a disadvantage, and will be entirely unable to cross-examine the plaintiff or bring out the subject in plaintiff’s behalf, unless he is permitted to inspect the machine. The machine is in defendant’s factory, and no possible injury can accrue to defendant from permitting deponent to see it.”

      Morris 0. Pearsall, for the appellant. -

      Charles J. Patterson, for the respondent.
   Dtkman, J.:

The defendant procured an order for the examination of the plaintiff before trial. Then the plaintiff, on motion, obtained an order directing the defendant to allow the plaintiff’s attorney to inspect the machine on which the plaintiff was working at the time he sustained the injury for which the action is brought. The order contained a stay of the examination of the plaintiff until his attorney should be allowed to examine the machine. From this last order we have this appeal.

We find neither precedent nor authority for this order. Under the common law, the Revised Statutes and the Code of Procedure, courts of record possessed jurisdiction and power to compel a party to an action to produce and discover books of account, papers and documents, or to permit an inspection and copy thereof. This same right is now continued by our Code of Civil Procedure. We find no law and have been referred to none carrying the right of discovery or inspection to the private personal property of an adverse party in a civil action.

This order is founded on an affidavit of the plaintiff’s attorney, that he cannot cross-examine his client on the preliminary examination before trial, or comprehend such examination without an inspection of the machine previous thereto. There is neither power nor discretion in this court to assist him in that respect. Such an exercise of power would be a usurpation of authority to search and inspect the private premises of a citizen, in a manner and for a purpose not tolerated by our law. Even the power vested in the courts to order discovery and inspection of books of account and documents is discretionary and not obligatory, and is exercised with great caution, where the party applying has some right or interest in the accounts or papers. No discovery or inspection will be ordered even of account books or documents which are of strictly private character.

The dwellings of our citizens will be of small security to them if they may be invaded by their enemies and searched for articles of personal property to be inspected under an order of a court. Such a proceeding would be at war with all our traditions as freemen, and should find justification in some direct mandate of the law at least. Neither can this order be upheld as a condition to the examination of the plaintiff. That order was granted as a right secured by law, and did not proceed from the favor of the court. The order should be reversed, with costs and disbursements.

Barnard,. P. J., concurred; Pratt, J., not sitting.

Order reversed, with costs and disbursements, and unconditional order to examine plaintiff granted.


author: Dykman, J.:

text:
    RALPH E. PRIME and Others, Respondents, v. ISAIAH ANDERSON, Appellant.

      City Court of Yonkers — executions may issue directly to the sheriff, upon its judgments.

    An execution may be issued to the sheriff of Westchester county upon a judgment recovered in the City Court of Yonkers, although no transcript of the judgment has been filed, and no docket thereof has been made in the office of the clerk of that county.
    Appeal from an order of the County Court of "Westchester county, affirming an order of the city judge of Yonkers denying a motion to dismiss supplementary proceedings. ,

      John H., Ferguson, for the appellant.

      Arthur J. Burns, for the respondent.
   Dykman, J.:

This is an appeal from an order of the County Court of Westchester county, affirming an order of the City Court of Yonkers denying a motion by defendant to vacate an order made by the city judge for the examination of the defendant in proceedings supplementary to execution.

The judgment was recovered in the City Court of Yonkers, and an execution was issued thereon from that court to the sheriff of Westchester county, who returned the same unsatisfied in part. Thereupon the city judge4 made the order complained of. No transcript of the judgment was filed in the office of the county clerk, and no docket of the judgment was there made, and that omission is relied on to avoid the order.

The general provision of the Code is that an execution against property can be issued only to a county in the clerk’s office of which the judgment is docketed. (Code Civil Pro., § 1365.) But there is a special provision in the act for the organization of the City Court of Yonkers, by which every process and mandate, except the original summons, may be directed either to the sheriff of the county of Westchester or- the marshal of the court. (Laws of 1878, chap. 186, tit. 1, § 21.) Section 51 of the same title provides that whenever an execution against property of a judgment-debtor, upon a judgment rendered in the city court, shall be returned unsatisfied in whole or in part by the sheriff of Westchester county or by the marshal of the city court, and the debtor reside in the county of Westchester, the same proceedings may be had before the city judge as could be taken before the county judge of Westchester county upon a judgment recovered in the County Court of Westchester county. In that court, certainly, supplementary proceedings may.be instituted without the filing of a transcript, and these two sections taken together confer power on the City Court to issue an execution to the sheriff of Westchester county and' receive his returns as the foundation for, supplementary proceedings, without filing a transcript of the judgmeht in the office of the county clerk. The statute is special and intended to ‘ remove the City Court of Yonkers from the operation of the general statute requiring judgments to be so docketed. ' *

The City Court of Yonkers is made so independent that an execution out of it may issue directly to the sheriff, and no good purpose could be subserved by requiring a transcript of the judgment to be filed with the county clerk.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Present —Barnard, P. J., Dtkman and Pratt, JJ.

Order refusing to vacate order in supplementary proceedings affirmed, with costs and disbursements,


text:
    In the Matter of the Application of THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Appellants, to Acquire Title to Certain Lands of ELIZABETH L. CHRYSTIE and Others. THE SAME, to Acquire Title to Certain Lands of ELIZABETH WALSH and Others.

      Taking of land for railroad purposes — measure of damages when access to a navigable stream is obstructed — report of the commissioners — when it may be reviewed by the court— what is not a waiver by the company of its right to appeal.

      A railroad company sought to acquire a right of way over lands under the waters of the Hudson river which had been granted by the State to the owners of the adjoining uplands, which were brickyards. The company took from one owner a strip about thirty feet wide and 1,900 feet long, containing about four and a-half acres; from the other a strip of the same width and about 883 feet long, containing about two acres. The west line of the strips was from 100 to 250 feet east of the brickyards, and the channel of the river Was four or five hundred feet east of the proposed road. The construction of the road would damage the brickyards by obstructing the approach thereto from the river. Tramways could be constructed to and across the tracks, which were to be from one and a-half to three feet higher than the hearths of the kilns, to docks which could be constructed on the east of the railroad. The commissioners awarded to the owners and tenants'of one of the pieces to be taken $46,729, and to the owners and tenants of the other $36,800.

      Held, that the awards should be set aside as excessive.

      It seems, that the proper measure of damages would be the expense of restoring the communication with the river, destroyed by the construction of the road.
    In proceedings to take this land an order was made December 24, 1881, appointing commissioners to appraise the damages of the land owners, whose report was made and confirmed by the court on March 11, 1882. On June 30, 1882, the Court of Appeals reversed the order of December twenty-fourth. New proceedings were instituted and on August 16,1882, new commissioners were appointed whose report was made November 18, 1882, .and confirmed. On June twenty-second an order was made in the new proceedings, allowing the company to continue in possession, upon depositing the sum of $17,000 to secure the payment of any awards that might be made, and requiring it during the pendency of the proceedings to keep open a gap of sufficient width to permit the passage- of vessels to and from the brickyards. After the report of the second set of commissioners was confirmed the company paid the amount of the award and closed the gap.
    Upon the motion to dismiss an appeal taken by the company from the report;

      Eeld, that the report was not a “ second report ” within the meaning of section 18 of chapter 140 of 1850, as amended hy chapter 198 of 18!6, making the second report of commissioners final and conclusive.
    That this statute only refers to a second report made in the same proceedings, after the court has refused to confirm a prior report and has directed a new appraisal before the same or new commissioners.
    That the company had not hy paying the amount of the awards or closing the gap waived or lost its right to appeal.
    Appeals by the railroad company in. the two above entitled proceedings from the reports of commissioners appointed to appraise the damages of the owners of lands sought to be taken for the purposes of a railroad, and from orders confirming the same.

      M. FI. Hirsehberg, for the company, appellant.

      Tillotscm ds Kent, for Elizabeth L. Christie, respondent.

      W. W. Badger, for Adams & Lang, respondents.

      K. A. Brewster, for Elizabeth Walsh and others, respondents.
   Dykman, J.:

These cases are brought to us by appeal from the report of commissioners appointed to ascertain and appraise the compensation to be made for the land appropriated for the railroad, and also from the order confirming the same. The appeal is brought by the railroad company in both cases, and they were argued together, and it will be convenient to consider and determine them in the same way.

The property of these' respondents is on the west. bank of the Hudson river. Both have the same general features, and both contain material for the manufacture of brick. There are two brickyards on the Christie property, and one on the Walsh property, all in the possession of tenants. Both are on the river brink and the railroad runs through the river in their front about 300 feet from the west side of the yards in possession of Adams & Lang, and about 200 feet from the south end of the yard in possession of Grygs. The north-east corner of this yard touches the railroad line. The road-bed on the surface will be about thirty feet wide, and the top of the rails will be about three feet higher than the kiln hearths on these yards. The owner has a water grant for her front extending to the river channel, about 400 feet east of the railroad, which runs through this water gi’ant about 3,900 feet, and takes about four acres and a-half of the land under water.

The Walsh yard is immediately south of Christie about 110 feet from the railroad on the south end, and about 240 feet on the north end. There is also a water grant for this property extending to the channel, and the railroad runs over it about 883 feet, taking about two acres of the land. The top of the rail will be about one foot and a half higher than the kiln hearth on this yard. The channel is four or five hundred feet east of the railroad. Aside from the land under water the property of both these owners is left untouched and undisturbed by the railroad. The injuries to these pieces of property result from the obstruction of the approach to the brick yard, by the construction of the causeway to receive the tracks of • the railway. Tramways from the yards to and across the railroad, and docks constructed outside, will re-establish communication with tide-water and navigation, and then the loading of brick on board of vessels, and the unloading of material for the use of the yards will go on as usual with only the slight addition to the length of land. No other injury will accrue to this property.

The commissioners, awarded to the owners and mortgagees of the Chrystie property $40,729, and to the tenants, Adams and Lang, $6,000. They also awarded to the owners and mortgagees of the Walsh property $35,000 and to the tenants $1,800.

These awards are palpably excessive .and unjust.

The protection against the appropriation of private property for public purposes without compensation, is the constitutional inhibition, and that provision is that private property shall not be taken for public use without just compensation. (Article 1, § 6.) Following this interdiction of the paramount law, the statute provides that in case a railroad corporation is unable to agree for the purchase of any real estate required for the purposes of its organization, it shall have the right to acquire title to the same in the manner prescribed. (2 R. S. [6th ed.], 523, § 14.)

These proceedings are instituted only to acquire title to land, and to entitle an owner to compensation there must be an actual "taking of private property. Mere consequential damages do not confer the right. (Radcliff v. Mayor of Brooklyn, 4 N. Y., 195 ; Lansing v. Smith, 4 Wend., 9; Gould v. Hudson R. R. Co., 6 N. Y., 522 ; Bellinger v. New York Central R. R., 23 id., 48.)

The underlying principle is that the property is not taken but only subjected to damages consequential on an act performed pursuant to sovereign authority. The construction of this railroad across the waters of the Hudson river, in front of these premises, was in pursuance of legislative authority.

It thus appears to be established that the construction of a railroad may be authorized by the legislature without requiring compensation to persons whose property has not been actually appropriated, and where only indirect and consequential damages have resulted. The mandate of the fundamental law is that private property shall not be taken for public use without just compensation, but where it is not taken in the full import of that word, there comes no compensation.

Let us see what has been actually taken from these land owners. Their property is on the river bank and they have in their immediate front a navigable river of water, which is a great public highway, over which they have a right of unobstructed passage. Their property was the dominant tenement, and the servitude was an easement in the river which is property within the meaning of the Constitution. (Arnold v. Hudson R. R. Co., 55 N. Y., 661; Story v. N. Y. Elevated R. R. Co., 11 Abb. N. C., 236.) This right, however, is held subject to the power of the legislature to regulate and control the use and occupation of the river. This railroad encroaches on and obstructs the easement, and so impairs the usefulness of the premises. This is an appropriation of property, and the compensation must be measured by its extent.

The causeway of the road is so constructed as to in compass the property of the respondents and leave them no access to the river, and the obstruction of the easement has that extent and no more. The usefulness of this property may, therefore, be brought back to the owners by a restoration of communication with the water navigation of the river.

The expense of such restoration seems, therefore, to measure fairly the compensation to be made to the owners of the upland, with some allowance for additional length of haul. The testimony in this case shows that tramways and docks to connect these brick yards with tide water will cost but a small sum in comparison with the amounts awarded, and it appeal’s plain that erroneous principles have been adopted by these commissioners in the assessment of the damages which they awarded. They are so excessive that we cannot permit them to stand.

A motion is also made to dismiss the appeal in both these cases with these facts for its foundation: On the 24th day of December, 1881, commissioners were appointed to appraise the compensation to be made to these same parties for this same property. They performed the duty and made a report which was confirmed by the court March 11, 1882.

The land owners refused to accept the awards, and the company deposited the money in a trust company and took possession of the land. On the 30th day of June, 1882, the order appointing the commissioners was reversed and the proceedings weiie dismissed by the Court of Appeals. Thus new proceedings were commenced to acquire title to these lands, and new commissioners of appraisement were appointed August 16,1882. They performed their duties and made their report November 18, 1882, which is the report from which we now have these appeals. These reports were confirmed, and the money paid to the respective parties.

On the 22d day of June, 1882, after the commencement of the new proceedings, an order was made authorizing the company to continue in possession of the land on which the causeway was then in course of construction, during the pending of the proceedings.

The sum of $17,000 was to remain on deposit with the trust company as security to the owners for the payment of any compensation to be awarded in such new proceedings. It was also further ordered that during the pendency of the proceedings'the company should keep open a gap in the road of sufficient width to permit the passage of vessels to and from the brick-yard. This was done until the awards were paid, and then the gap was closed up.

The motion to dismiss is based on the ground that the report now under consideration is a second' report, and therefore final under the statute.

Our conclusion on this point is that this report is not within the limit or intention of the statute invoked. The provision is that, on the hearing of an appeal from the report of the commissioners, “the court may direct a new appraisal before the same or new commissioners, in its discretion; the second report shall be final and conclusive on all the parties interested.” (2 R. S. [6th ed.], 526, § 20; Laws of 1876, chap. 198.)

To fit the statute, therefore, the ease must present a refusal to confirm a report and a direction of a new appraisal before the same or new commissioners; and all this must come to pass before the Supreme Court, at a General or Special Term, having the appeal in charge. It is the report under the new appraisal that is to be final and conclusive. N othing of that kind has been transacted in this case. There has been no refusal of confirmation, and no direction for a new appraisal.

The commissioners, whose report we now have in charge on this appeal, were appointed in a new proceeding, instituted anew after the dismissal of the former proceedings, on an original petition presented for that purpose by the company; not on the motion of the court on appeal, as contemplated in the statute referred to. This ground for dismissal is therefore untenable.

Another ground insisted on for dismissal, is that the money awarded by the commissioners was voluntarily paid; and while it may be admitted as a principle that money paid freely and without mistake cannot be recovered in an action therefor, yet this money was paid in conformity with the order of the court and the provisions of the statute, and the payment cannot be deemed voluntary in any legal sense implied in this objection.

The appellants took no benefit hy the awards or orders appealed from. They constituted a judgment against the company which was paid. They contained no. provision beneficial to the company, from which benefit has been accepted. If right of possession resulted from- the payment it was by operation of law. It is true the order contains direction for possession, and vacates all orders inconsistent therewith. But there was no order inconsistent with such possessions.

The closing of the gap in the causeway had no connection with the order appealed from, for it was neither closed or opened under its provisions. Besides this, the company acquired the title by the payment, and closed the gap in the exercise of a light, and not in acceptance of a favor. The right of appeal provided by the statute cannot be foreclosed by a payment of tbe awards. Tbe company could only obtain possession of this land after payment or .deposit of the awards, and the statute plainly contemplates an appeal after such possession, because an appeal by others than the corporation will not be heard except on stipulation not to disturb such possession. (2 R. S. [6th ed.], 526, § 20.)

The motion to dismiss the appeal is therefore denied, with costs and disbursements.

The awards of the commissioners in both cases are set aside, and the orders confirming the same are reversed, with costs and disbursements, and new commissioners appointed to make a new appraisal.

Barnard, P. J., concurred; Pratt, J., not sitting.

Motion to dismiss appeal denied, and award of commissioners and order confirming same vacated, with costs and disbursemónts, and new commissioners appointed.


text:
    PHILANDO C. LANGDON, Respondent, v. CHARLES E. EVANS, Appellant.

      Appeal — Notice of entry of judgment must be both subscribed by the attorney and his office address must be slated thereon.

    A copy of a judgment signed by the clerk of the court and a notice of the entry thereof signed with the name of the attorney, but not indorsed or subscribed with his office address or place of business, was served upon the defendant against wham judgment was recovered.

      Held, that such service was irregular and void and did not set in motion the statute limiting the time within which an appeal could be taken.
    Motion to dismiss an appeal.
    --, for the appellant.

      Devoid Barnett, for the respondent.
   Dykman, J.:

A motion to dismiss the appeal in this action is made on the following facts: The action is replevin and judgment was entered oil the 23d day of January, 1878, and on the same -day a copy of the judgment, signed by the clerk of the court, and written notice of the entry of the judgment, signed by the plaintiff’s attorney, was served on the attorney for the defendant. On the 20th day of February, 1878, the defendant’s attorney filed a notice of appeal from the judgment to the General Term of the Supreme Court, in the office of the county clerk of Kings county, where the judgment was entered. This notice of appeal was not served on the plaintiff’s attorney until the 16th day of December, 1882.

To perfect this appeal it was necessary to take it within thirty days after service of a copy of the judgment appealed from, and a written notice of the entry thereof, by serving on the plaintiff’s attorney and on the clerk of the court, with whom the judgment was entered by filing it in his office, a written notice of the appeal. (Code Civil Pro., §§ 1300,1351.) Service on both the attorney and the clerk was essential, and the latter service was not made.

The excuse put forth for this non-service is that neither the copy of the judgment served nor the notice of entry was indorsed or subscribed with the name of the attorney and his office address or place of business as required by the second rule of the Supreme Court; and it is true that they were, neither of them, so subscribed.

In the case of Kelly v. Sheehan (76 N. Y., 325) a copy of the judgment with notice of the entry thereof, signed by the attorney without the addition of his office address or place of business, was served as here, and the notice of appeal was served one day too late if the notice of entry of judgment had been regular. But the Court of Appeals held that the notice of entry of judgment was irregular and void because it was not indorsed or subscribed with the name of the attorney and his office address or place of business. This omission was again held fatal to the sufficiency of the notice to set in motion the short statute of limitation to appeal in the case of Kilmer v. Hathorn (78 N. Y., 229).

These authorities are decisive of this case and the motion to dismiss the appeal should be denied, with ten dollars costs and disbursements.

Barnard, P. J., concurred; Pratt, J., not sitting.

Motion to dismiss appeal denied, with ten dollars costs.


author: Pratt, J.:

text:
    ELIAS Q. HORTON, Respondent, v. COFFIN S. BROWN, as Executor, etc., of CHARLES A. G. DEPEW, Deceased, Appellant.

      Costs — allowance of, against executors and administrators — Code of Cwil Proced/me, sees. 1835 and 183(5.'
    Under sections 1835 and 1836 of tie Code of Civil Procedure no costs can be allowed to tbe plaintiff in an action against an executor wbo bas published' the statutory notice requiring all creditors to present their claims, unless the claim, upon which the action is brought, was presented to him within the time limited by the notice, and unless, also, the executor unreasonably resisted or neglected to pay the same, or refused to refer it as prescribed by law.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The appellant also sought to review an intermediate order made at a Special Term, awarding costs and an additional allowance to the plaintiff.
    It appeared that the claim upon which the action was brought had not been presented to the executors within the time limited in a notice published by them, requiring all claims to be presented as prescribed by law.

      Lent ds Herrick, for the appellant.

      Tra/ois ds Smith, for the respondent.
   Pratt, J.:

This case was, we think, correctly decided by the learned referee, who has filed an opinion covering all the points made upon the trial.

The judgment is therefore affirmed, .except upon the question of costs.

By section 1835 of the new Code it is provided that, “ Where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section,” which is as follows :

“ Where it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim as prescribed by law; the court may award costs against the executor,” etc.

These sections supply the place of section 41, part 2, chapter 6, title 3 of Revised Statutes (2 R. S. [2d ed.], 30), and do not change the rule in relation to costs.

It seems to he clear that under sections 39 to 41, in force prior to the new Code, a plaintiff to entitle himself to costs must make out two things, viz.: First. Thai the demand was presented to the executors in proper time; and second. That its payment had been unreasonably resisted or neglected or that there had been a refusal to refer.

A construction was squarely given to this section in the opinion of Beardsley, J., in the case of Bulloch v. Bogardus (1 Den., 276), in the following language: “Where notice has been given and the claim is not presented in time, costs are never allowed in ah action brought for its recovery.”

Two grounds are indicated in the section, on either of which costs may be allowed: First. A refusal to refer, the claim being disputed. Second. An unreasonable resistance or neglect of payment. This must be tahen with the qualification that where noUce has been published. the demand must have been presented withi/n the time limited by law. There is no authority, in my opinion, for an allowance of costs on any other ground, or for any other cause than those stated. If such was the settled law prior to the passage of. the new Code, it only remains to determine whether it has been changed by that enactment. In my opinion it has not; the purport of the language in the two acts is the same.

The question turns upon the construction to be given the words “ or that the defendant refused to refer the claim as prescribed by law in section 1836.”

The words in section 41, are: “ Or that the defendant refused to refer the same pursuant to the preceding provisions.”

There is no essential difference in the language, and a judicial construction of section 41 must be held applicable to section 1836.

There are numerous decisions upon the subject, but I cannot find that the principle stated in Bullock v. Bogardus has been overruled, but it seems to have been frequently cited with approval or reaffirmed. (Bradley v. Burwell, 3 Den., 262.) In this case there was no claim existing in favor of the creditor at the time of the publication of the notice, he being a co-surety with the testator upon a bond, and not having paid until seven years after the expiration of the six months’ notice, yet it was held that the language of the forty-first section was “ too broad to be got over,” and the plaintiff was refused costs. (See, also, Willcox , v. Smith, 26 Barb., 334; Russell v. Lane, 1 id., 523; Fort v. Gooding, 9 id., 388; Buckhout v. Hunt, 16 How. Pr., 412.)

The case of Field v. Field (77 N. Y., 294) is cited as establishing a different doctrine, and the head-note, it is true, does so state, and an expression in the opinion seems to point to such a conclusion, but it is plain from a careful reading of the case that no such decision was intended.

In that case the claim was presented "before the publication of any notice by the executors and rejected; this precise question, therefore, was not raised or decided ; it also appears that the case of Bullock v. Bogardus was cited with approval in the opinion.

All of these cases were decided prior to the new Code, and their binding force depends upon the analogy of the two statutes under consideration.

But assume that it is the duty of the court to construe sections 1835 and 1836 of .the new Code, we think that it was the legislative intent that where a notice is published as prescribed, in order that a plaintiff shall recover costs upon a judgment for a sum of money, it is requisite that he shall, first, present .his demand within the time limited by the note; and, second, that the defendant shall unreasonably resist or neglect payment, or refuse to refer the claim as prescribed by law, no other reading can give force to all the language used in both sections.

The first condition of the section must be complied with, and one of the subsequent conditions must also occur to entitle a plaintiff to costs. ■

The plaintiff herein not having presented his claim within the time was not entitled to costs.

So much of the judgment therefore as gave costs must be vacated, and, as so modified, judgment affirmed, without costs.

Barnard, P. J., and Dykman, J., concurred.

Order granting costs against executor out of estate reversed, without costs.


text:
    JAMES ROBERTSON, an Infant, by MARY ROBERTSON, his Guardian ad litem, Appellant, v. JOSHUA BARNUM and STEPHEN C. BARNUM, Respondents.

      Security for costs — when the gua/rdian of an infant plaintiff must give it — amount of it— Code of Oivil Procedure, sec. 3272.
    Under section 3272 of the Code of Civil Procedure the court, upon an application to compel the guardian of an infant plaintiff to file security for costs, cannot require security for more than $250 to he given. ■
    Where a party moves promptly he is entitled, as a matter of right, to an order requiring the guardian to give security as therein provided, hut where he neglects so to move, the granting or withholding of the order rests in the discretion of the court.
    Appeal from an order made at a Special Term requiring the plaintiff to pay into court the sum of $500, or at his election to give an undertaking therefor, to secure the payment of any costs that might be awarded against him.
    The action was brought to recover damages for injuries alleged to have been sustained by the infant plaintiff, by reason of the negligence of the defendants.

      WilUam H. Raynor, for the appellant.

      Walter S'. Poor, for the respondents.
   Pratt, J.:

The defendants, after answering the complaint and before noticing the cause for trial, obtained an order to show cause, returnable less than eight days, why the plaintiff should not file security for costs. On the return day the motion was argued upon the merits and an order entered granting the motion and fixing the amount at $500, from which the appeal is taken.

A number of technical objections were made at the hearing and properly overruled, as it sufficiently appeared that the papers were in proper form; that due service had been made and the proper parties were before the court.

An objection is made that the court below had no power to fix the amount of security to be given at five hundred dollars. This objection we regal’d as fatal. Under the former Code and the Revised Statutes, it was held that the power to require security for costs existed in the Supreme Court, independent of the statute. (Dyer v. Dunivan, 3 How., 135 ; McDonald v. Brass Goods Co., 2 Abb. N. C., 434, and other cases.)

The statute (sec. 4, tit. 2, chap. 10, part 3) upon the subject reads as follows: “ Such security shall be given in the form of a bond, in a penalty of at least two hundred and fifty dollars,” etc., etc.

It will be observed that no restriction was imposed as to amount, except that contained in the words at least two hundred and fifty dollars.”

Assuming that the court has the power to require security for costs, independent of the statute, the question to be determined here is whether the amount which shall be required in any case rests in the discretion of the court, or is restricted by the provisions of the new Code.

By section 3268 a defendant may require “ an infant whose guardian ad litem has not given such security ” to give security. Section 3272 provides that where such security is required to be given, upon due proof a judge “must make an order requiring the plaintiff, within a time specified, either to pay into court the sum of two hundred and fifty dollars, * * * or at his election to file with the clerk an undertaking.” * * * There are other provisions authorizing a stay of proceedings to enforce the order; also for requiring further security in certain cases. All these provisions taken together form a system of practice upon this subject, and are exclusive of any discretion of the court upon the matter specified. In the first instance the defendant in such a case is entitled to the order provided for, ex parte, and the plaintiff is entitled to elect whether to pay into court $250 or file an undertaking. This provision operates as a restriction as to the form of the order in fixing the amount, and therefore the discretion to fix the amount at a sum exceeding that named in the new Code no longer remains in the judge. That this is the proper construction to be placed upon section 3272 seems clear by reference to section 3276, which provides that at any time after the allowance of an undertaking given pursuant to such an order, or as prescribed in section 3278 of this act, the court or a judge thereof, upon satisfactory proof by affidavit that the sum specified in the undertaking is insufficient, * * * must make an order requiring the plaintiff to give an additional undertaking.” By the use of the words at any time after,” in section 3276, it is plain that it was the intent of the legislature to give a plaintiff an opportunity to elect to pay into court $250, before he should be required to file an undertaking.

The order appealed from did not give to the plaintiff the election provided for in section 3272 of the Code, but required him to deposit $500 or give security in like amount. This we think was beyond the power of the court. In the first instance it is a duty of a defendant, in a case wherein he is entitled under the new Code to security for costs, to move promptly. The rule was well settled under the former practice that unless he moved without delay it might be regarded as a waiver, although it rested in the discretion of the court of original jurisdiction to grant such an order at any stage of proceedings in the case. (Gedney v. Purdy, 47 N. Y., 676.) It is the duty of the court to appoint a responsible guardian ad litem, and it is a harsh rule to require security for costs in every instance where an infant is a party, and it is not to be extended beyond the terms stated in the statute. Our attention has not been called to any section of the Code, or any authority changing the previous practice, except in the matters already referred to, so that it seems that the court is bound, if a party moves promptly, to grant an order under the terms of section 3272 of the Code. If, however, a party neglects so to move, then it becomes a matter of judicial discretion upon the facts disclosed whether to grant or refuse such an order. Applying the foregoing rules to the facts in this case it follows that the defendant having failed to move without delay it was a matter of discretion depending upon the facts, but the court was bound not to exceed in the first instance the limit fixed by the Code on the subject of amount of security to be given; the facts having clearly required an order to be made. The infant had no estate and the guardian was utterly irresponsible; that order, therefore, was erroneous only in the amount required.

The order, therefore, must be modified in this respect, and so modified affirmed; ten dollars costs and disbursements to the plaintiff to abide the event.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order requiring deposit of $500, or security for costs, modified by reducing amount to amount required by the Code, and as modified affirmed, with costs and disbursements.